The Current State of the Law
Prostitution is prohibited in New Jersey under N.J.S.A. 2C:34-1(a). The law states specifically that "a person is guilty of prostitution if he or she agrees or offers to engage in sexual penetration, sexual contact or sexual penetration for a fee." The penalty for prostitution depends on the circumstances. First time offenders potentially face a very light penalty. For example, under N.J.S.A. 2C:34-1(b), prostitution is a disorderly persons offense punishable by up to six months in county jail and a $1,000.00 fine. However, subsequent offenses must be charged as a fourth degree crime under the same statute. A fourth degree charge means a potential penalty of up to 18 months in state prison and a maximum fine of $10,000.00.
There are some factors that can enhance the charges against an individual, making it more likely that they will be sentenced to a lengthy stint in state prison. For instance, an individual could face second degree criminal charges if they engage in acts of prostitution while also possessing any controlled dangerous substance (CDS). That is pursuant to N.J.S.A. 2C:34-8. If a CDS is involved , the accused faces a potential 5-10 year sentence in New Jersey State Prison in addition to a potential $150,000 fine. Under certain circumstances, a customer could also face the same level of punishment in New Jersey. According to N.J.S.A. 2C:34-1(b)(2), someone who hires a prostitute, otherwise engages in acts of prostitution, or uses a conveyance to promote prostitution could be charged with a third degree crime. A third degree crime in New Jersey is punishable by 3-5 years in New Jersey State Prison.
Although prostitution is illegal in New Jersey, there are two primary exemptions that permit certain activities that otherwise qualify as acts of prostitution. One of these exemptions permits strip clubs and dancing establishments to provide services during private parties so long as the owner or someone who is associated with the business obtains a special license pursuant to N.J.S.A. 2C:34-3.1. Another exemption permits sexual acts in exchange for money or other goods where the parties to the transaction are legally married. This exemption is set forth at N.J.S.A. 2C:34-1(b) in a paragraph following the criminalization of prostitution.
Exceptions and Special Circumstances
While prosecution for engaging in prostitution in New Jersey is serious, there are a few exceptions and specific instances in which this crime may not be charged or may be difficult to prove. Some of these include, but are certainly not limited to:
- Entrapment: After the State has the burden of proof in proving each element of this crime, the next job is proving that you or the person that you hired committed the crimes by entering the act. This means that the person must of their own will go through with the crime as a result of being lured or deceived by an undercover detective or officer.
- Traffic Offenses: In the State of New Jersey, a prostitution offense (such as engaging in sexual conduct for profit) is a disorderly persons offense punishable by up to 6 months in jail and a fine of $1,000. This is essentially a misdemeanor charge in NJ. However, there are traffic offenses/charges such as speeding or other electronic driving violations that can cost upwards of $1,000, making them more expensive than a prostitution charge.
- Legal Loopholes: A legal loophole is basically just what it sounds like. An instance in which the State did not correctly come to the conclusion that a crime had been committed. For example, the Police Officer may have conducted an "unconstitutional search" in the area in which the alleged prostitution was to occur. If the court finds that the search was indeed unconstitutional, anything that is found as a result of the search is "suppressed," meaning that it cannot be used against you in a court of law. Suppressed evidence makes the prosecution’s job that much harder.
Offenses and Sanctions
The act of prostitution is a disorderly persons offense in New Jersey, punishable by up to six months in county jail. However, the penalties increase significantly when certain aggravating factors are present, including the defendant being a repeat offender, or if the defendant solicited sex for money with a minor. Moreover, the government arrests, fines, and in some cases, incarcerates sex workers regardless of whether or not they are charged with a prostitution-related crime. Consequently, a prostitute or pimp may face sizable legal penalties and undesirable career consequences as a result of one brief incident.
Given the persistent myth surrounding prostitutes in New Jersey, as well as the low numbers of less serious charges filed against sex workers (e.g., charges are filed for violating federal sealed or state law) and the fact that most prostitute have never been arrested, the penalties more often than not apt to be heavier for the person who was in charge of the prostitution ring.
Whether the person is a landlord, employee, manager, or fellow "worker," the prosecutor will allege that the Defendant knew of the nature of his or her "business," and that any profits obtained were based on that knowledge.
The penalties for sex trafficking crimes – defined as knowingly promoting commercial vice or engaging in the practice of keeping a house of prostitution for the purposes of offering sexual services for money – range from a third degree charge to a first degree charge, with a third degree sex trafficking crime carrying a three to five year prison sentence, and a first degree sex trafficking crime lasting anywhere from 10 to 20 years in prison.
Sex slavery is punishable by a 10 to 20 year prison sentence while promoting organized crime is punishable by a five to ten year prison sentence.
Comparison with Surrounding States
According to a recent ProCon.org report, only three other states in the nation have criminalized prostitution to the extent to which New Jersey has. Of New Jersey’s four immediate neighbors, however, only Pennsylvania has retained a similar policy. They, along with Minnesota, are the only two states in the country to retain the possibility of jail time for engaging in a consensual sexual act in exchange for compensation.
New York and Delaware are notably less strict in this regard. In New York State, a person is guilty of prostitution in the fifth degree, an infraction punishable with a fine only . Further, the law specifically instructs law enforcement to provide "an opportunity for the person charged to enter into a program established pursuant to subdivision two of section 500-j of the corrections law." It then adds that "[a] conviction under this section must not result in any entry on his or her criminal history record."
Delaware does still maintain a criminal statute on the books. However, its application is limited in practice, as the only penalty imposed includes "a fine not to exceed $50." This contrasts sharply with the penalties imposed in Pennsylvania, where a prostitution conviction can result in a maximum five years in state prison for first-time offenders.
Controversy and Proposed Changes
With the growing challenge of sex trafficking and increasing public awareness, not to mention the ongoing opioid crisis and its link to prostitution, there have been recent calls for reforming prostitution laws, including repealing or reforming New Jersey’s "promoting prostitution" statute. In December 2019, a commission formed by the New Jersey Supreme Court recommended that criminal laws governing prostitution be upgraded "at least to decriminalize the acts of selling sex in all circumstances." The commission also suggested that law enforcement focus on customers, human trafficking, and defendants who are accused of these acts when they are drug- or alcohol-dependent.
Recently, lawmakers put forth two such bills that proposed at least some reform of the current sex work laws to decriminalize or downgrade the penalties for persons who were "under duress" and/or were "engaged in prostitution as a means of survival," but both bills did not advance. Proponents of such reform asserted that the criminalization of prostitution may discourage people with a desire to exit the sex work industry from making the complete cut, and thereby subjects them to the dangers of sex work longer than needed—and can compel those in sex work to continue engaging in risky behaviors that contribute to violence against women and their deaths.
Opponents of decriminalizing prostitution assert that a large body of research, including a report released by the University of Southern California in February 2019, states that decriminalized sex work has led to increases in violence, human trafficking, and drug-related crime. Indeed, the report noted that both Sweden and Norway suffered increases in street-based sex trafficking after they decriminalized prostitution in 2009. Opponents further assert that any reform should lean toward ending demand for sex—and treating the act of prostitution itself as criminal, without forcing those in prostitution to undergo any compelling treatment or anything else to remove themselves.
Some opponents also assert that decriminalization would do little to "normalize sex work" in the eyes of society, which might be the goal of some reform advocates. This would not only include "pro-choice sex workers"—a term used to describe those who view sex work as legitimate work and voluntarily engage in it, separate from the issue of human trafficking—but women who are not "pro-choice" (a.k.a. do not willingly or fully chose to be in sex work by their own volition). Instead, they might be doing so to satisfy debts, support a drug habit, or otherwise to avoid a downfall into the deadly grip of addiction.
Support Services and Assistance
Community resources in New Jersey provide assistance to individuals involved in prostitution that have been charged with or arrested for a prostitution offense. Family service organizations often offer services to counseling and therapy to individuals struggling with sex work. In some situations, these services may be used to help obtain a more favorable plea agreement or sentence by providing the court with a rehabilitative option for the offender rather than being sentenced to traditional incarceration.
Many counties in New Jersey have non-profit agencies that specialize in providing services for at-risk women who live within their area. These non-profit groups offer everything from case management services to job readiness programs for women who have been arrested for or charged with prostitution offenses. There are even emergency shelters available through some community organizations that can provide the accused with housing to avoid freezing temperatures. Some groups offer healthcare services , get legal aid, and employ social workers to assist with everything from finding a job to getting enrolled in educational programs.
Organizations with connections to religious groups often provide counseling services that might reduce the potential sentence for charges brought against accused sex workers. In some situations, it might be possible to obtain a diversion under a conditional discharge program that permits an accused to receive a dismissal of the charges if they meet certain conditions, usually among them receiving treatment for drug and alcohol abuse, mental health issues, and similar concerns. Many community organizations that offer counseling, assistance with safe housing, and other services to those working in the sex trade rely on private donations and are not part of the New Jersey state welfare agency. Non-profit shelters for abused women are also available.
