Report No. 64
A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
[Prostitution is a violation. L. 1965, c. 1030, eff. Sept. 1, 1967]. A person is guilty of patronizing a prostitute when:
1. Pursuant to a prior understanding, he pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or
2. He pays or agrees to pay a fee to another person pursuant to an understanding that in return therefore such person or a third person will engage in sexual conduct with him; or
3. He solicits or requests another person to engage in sexual conduct with him in return for a fee.
Patronizing a prostitute is a violation1.
1. L. 1965, C. 1030, eff. Sept. 1, 1967
Section 230.10 Prostitution, and patronizing a prostitute Sex no defence.
In any prosecution for prostitution or patronizing a prostitute, the sex of the two parties or prospective parties to the sexual conduct engaged in, contemplated, or solicited is immaterial, and it is no defence that:
1. Such persons were of the same sex; or
2. The person who received, agreed to receive or solicited a fee with a male and the person who paid or agreed or offered to pay such fee was a female1-2.
It was after public hearing that the New York Penal Law and Criminal Revision Commission added, section 230.05, concerning patrons. In its comments on Article 230, the Commission termed the addition of the New offence, "Patronizing a Prostitute", the most important change in the article. In explaining the change, the Commission wrote3:
"Though not presently an offence in New York, such 'patronizing' conduct is prescribed in various forms by the penal codes of several other jurisdiction, including the recently revised Codes of Illinois and Wisconsin.
"At the public hearings held by the Commission with respect to the proposed Penal Law and in conferences and correspondence with the Commission and its staff, a number of persons and organizations have strongly urged the inclusion of a "patronizing" offence. The reasons most vigorously advanced are:
(1) that criminal sanctions against the patron as well as the prostitute should aid in the curtailment of prostitution; and
(2) that to penalize the prostitute and exempt the equally culpable patron is inherently unjust.
"After consideration of these contentions, the Commission decided to include the indicated patronizing offence in the new bill as a proper corollary to prostitution."
1. L. 1965, C. 1030, eff. Sept. 1, 1967.
2. Also see B. George Legal, Medical and Psychiatric Consideration, in the Control of Prostitution, (1962), 60 Mich Law Review.
3. New York Penal Law, Comments S. 230.05 (Mckinney 1965) cited by Pamela A. Roby Politics and Criminal Law, (1969) (Summer), Vol. 17 Social Problems No. 1, 83.92.
The power of forces opposing the "patron's" penalty was discussed by Flexner1 in the twenties:
"The professional prostitute being a social outcaste may be periodically punished without disturbing the usual course of society the man, however, is something more than a partner in an immoral act; he discharges important social and business relations, is a father or brother responsible for the maintenance of others, has commercial or industrial duties to meet. He cannot be imprisoned without damaging society (i.e., those with influence in society)."
1. Flexner Prostitution in Europe, (1920), p. 108, cited in Pamela A. Roby Politics and Criminal Law, (1969) (Summer), Vol. 17, No. 1, Social Problems 88, 108, footnote.
In 1966, Davis wrote, "Although the service is illegitimate, the citizen cannot ordinarily be held guilty, for it is inadvisable to punish a large portion of the populace for a crime that has no political significance. Each such citizen participates in the basic activities of the society, in business, government, the home, the church, etc. To disrupt all of these by throwing him in jail for a mere vice would cause more social disruption and inefficiency than correcting the alleged crimes would be worths."1
In 1968, in New York State (contrary to Davis' expectations), the patron can be held guilty, but the theory upon which Davis based his expectations remains true, for the law is seldom enforced2
Model Penal Code-The Model Penal Code3, original draft, section 207.12, was as follows:-
1. Davis Sexual Behaviour in R. Merton and Nisbet, Contemporary Social Problems, (1966) 358 cited. in Pamela A. Roby, Politics and Criminal Law etc., (1969) (Summer) Vol. 17, No. 1, Social Problems, 83, 108.
2. Pamela A. Roby Polities and Criminal Law etc., (1969) (Summer) Vol. 17. No. 1 Social Problems, 83, 108.
3. Model Penal Code (American Law Institute), Tentative Draft No. 9(1959) Comments at pp. 170 to 174, quoted in Paulson and Radish Criminal Law and its Processes, (1969).