Multiple members of the Colorado Supreme Court appeared skeptical this week of the prosecutors’ argument that soliciting for the purpose of child prostitution does not require a specific intent to have sex with a minor.
“I just fear that your reading reads out the words ‘for the purpose of.’ They have to mean something,” observed Justice Richard L. Gabriel during oral argument on Tuesday.
In the case under consideration, Phillip L. Ross responded to an online prostitution advertisement which stated the women would be at least 19 years old. However, the two girls Ross texted to arrange for sex were under 18, and Denver prosecutors charged him with soliciting for child prostitution.
Under state law, that felony-level crime requires solicitation of another for the purpose of child prostitution, or arranging a meeting for the purpose of child prostitution. A defendant may not assert that he did not know the child’s age or believed her to be 18 years or older.
“So the conduct that is being prohibited here is a certain kind of solicitation: soliciting for prostitution,” Johanna Coats with the Denver District Attorney’s Office told the justices. “And the additional circumstance has to be present: that the victim is a child.”
The Supreme Court agreed to hear the case in January to evaluate whether the solicitation crime required a specific intent to arrange for a prostituted child and whether a “requisite mental state” was necessary for all elements of the crime.
Previously, a three-member Court of Appeals panel concluded that the defendant’s motivation, and not the age of the person being solicited, was the crux of the crime. It upheld a district court judge’s decision to dismiss charges pertaining to one of the girls because no evidence existed Ross exhibited the desire to solicit her for child prostitution.
Although Ross could not assert ignorance of the children’s ages, “it does not relieve the prosecution of its obligation to prove that the defendant’s specific intent was to solicit another, or to arrange or to offer to arrange a meeting, ‘for the purpose of child prostitution,’” wrote Chief Judge Steve Bernard for the panel.
In Ross’s case, the jury deadlocked on the felony charges for soliciting for child prostitution. The prosecutor asked for a mistrial declaration, and before there could be a retrial, Ross pleaded guilty to soliciting another for prostitution — a misdemeanor.
During oral argument, Justice Carlos A. Samour Jr. seemed puzzled by the charges to begin with, given that other child prostitution statutes could have better fit the allegations.
“Solicitation as I read it, and as I understand the concept of soliciting, it seems to be envisioning someone who contacts another person to commit a crime. Here, because of the factual allegations, the same person who is the child of the child prostitution, allegedly, is also the person being solicited,” he said.
“What this statute is going to is the solicitation of another for the purpose of prostitution of a child, or for arranging or offering to arrange a meeting for the purpose of prostitution of a child. So it’s not one of the elements that the person was a child,” Samour continued. “It’s not one of the elements that the defendant knew the person was a child.”
Coats argued that Ross was a defendant who “prefers not to solicit a child but is willing to take the risk.” Whether an individual acts intentionally, unintentionally, or with clear intent not to solicit a child prostitute, “there is nothing unreasonable in the legislature’s decision to hold all three defendants liable.”
Mallika Magner, representing Ross, contended that if prosecutors had charged him for patronizing a prostituted child, the jury would have likely convicted him for that felony if they believed the allegations. But with the crime of soliciting for child prostutition, “the guilt is tied only to the specific intent to solicit,” regardless of whether there is an actual child victim.
Ross had told police that he thought he was texting “adult females,” and Coats conceded the website advertising prostitutes listed the women as 19 or 20 years old. She believed holding defendants liable no matter their mental state could make some think twice about risking the engagement of a child prostitute.
Magner, on the other hand, deemed that consequence a “bad result, which is that somebody who is intending to prostitute an adult has given no indication that they have any interest in soliciting a child, but through some dishonesty, some other situation, would nonetheless be responsible for something for which they did not have the intent.”
Chief Justice Nathan B. Coats and Justice Monica M. Márquez did not participate in the case. Coats is the father of Johanna Coats. Márquez is the daughter of retired Judge Jose D.L. Márquez, who served on the panel that reviewed Ross’s appeal.
The case is People v. Ross.