TCA § 39-13-512 — Prostitution — Definitions

As used in §§ 39-13-512 — 39-13-515 , unless the context otherwise requires: “House of prostitution” means any place where prostitution or the promotion of prostitution is regularly carried on by one (1) or more persons under the control, management or supervision of another; “Inmate” means, within the meaning of this part concerning prostitution, a person who engages in prostitution in or through the agency of a house of prostitution; “Patronizing prostitution” means soliciting or hiring another person with the intent that the other person engage in prostitution, or entering or remaining in a house of prostitution for the purpose of engaging in sexual activity; “Promoting prostitution” means: Owning, controlling, managing, supervising, or in any way keeping, alone or in association with others, a business for the purpose of engaging in prostitution, or a house of prostitution; Procuring an inmate for a house of prostitution; Encouraging, inducing, or otherwise purposely causing another to become a prostitute; Soliciting a person to patronize a prostitute; Procuring a prostitute for a patron; or Soliciting, receiving, or agreeing to receive any benefit for engaging in any of the activities defined in subdivisions (4)(A)(i)-(v); and “Promoting prostitution” does not include a person who solicits, procures, induces, encourages, or attempts to cause another to patronize a prostitute if: The person promoting the prostitute and the prostitute being promoted are the same person; and The intent of the promotion is the solicitation of business for only the prostitute engaging in the promotion; “Promoting prostitution of a minor” means engaging in any of the activities described in subdivision (4) when one (1) or more of the persons engaged in prostitution is less than eighteen (18) years of age or has an intellectual disability; “Prostitution” means engaging in, or offering to engage in, sexual activity as a business or being an inmate in a house of prostitution or loitering in a public place for the purpose of being hired to engage in sexual activity; and “Sexual activity” means any sexual relations including homosexual sexual relations. Acts 1989, ch. 591, § 1; 1995, ch. 296, § 1; 2011, ch. 377, § 3; 2016, ch. 979, § 1. Compiler's Notes. Acts 2011, ch. 377, § 5 provided that the act, which added the definition of “promoting prostitution of a minor”, shall apply to any acts committed on or after June 1, 2011. Law Reviews. Dignity, and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization, 80 Tenn. L. Rev. 291 (2013). NOTES TO DECISIONS 1. Sexual Relations. 2. Sexual Activity. 3. Promoting Prostitution. 4. Double Jeopardy. 5. Lesser-Incured Offense. 1. Sexual Relations. Language of the prostitution statute did not give sufficient warning that acts involving nude dancing by two defendants, where there was no touching of the genitals between them and only the touching of the finger of the patron, would constitute prohibited “sexual relations.” State v. Boyd, 925 S.W.2d 237, 1995 Tenn. Crim. App. LEXIS 869 (Tenn. Crim. App. 1995). The legislature clearly did not intend for prostitution to be limited to those instances where sexual penetration or intercourse occurs. State ex rel. Gibbons v. Jackson, 16 S.W.3d 797, 1999 Tenn. App. LEXIS 674 (Tenn. Ct. App. 1999), aff'd, Haney v. First Am. Nat'l Bank, — S.W.3d —, 1999 Tenn. LEXIS 675 (Tenn. Dec. 20, 1999). 2. Sexual Activity. Because activities taking place at nude dancing establishment satisfied the standard of sexual activity as a business, there was no error in ruling that “lap dancing,” as conducted at defendant's place of business, constituted “prostitution” as that term is used in T.C.A. § 39-13-512 . State ex rel. Gibbons v. Jackson, 16 S.W.3d 797, 1999 Tenn. App. LEXIS 674 (Tenn. Ct. App. 1999), aff'd, Haney v. First Am. Nat'l Bank, — S.W.3d —, 1999 Tenn. LEXIS 675 (Tenn. Dec. 20, 1999). 3. Promoting Prostitution. In order to be convicted of promoting prostitution, an accused need not be found to have owned the premises. Merely supervising or managing can lead to a conviction. State v. Bell, 832 S.W.2d 583, 1991 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. 1991), appeal denied, 1992 Tenn. LEXIS 122 (Tenn. Jan. 27, 1992). Sufficient evidence supported defendant's conviction of promoting prostitution; defendant approached the victims, offering to protect them and provide them with drugs if they worked for him as prostitutes, he took suggestive photographs of them and posted the pictures in advertisements for sexual services, he provided cash to pay for the hotel rooms rented for prostitution, and all money the victims made went directly to defendant. State v. Ward, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 27, 2020). 4. Double Jeopardy. Both promoting prostitution and trafficking a person for a commercial sex act require the defendant to cause the victim to perform sexual activities in exchange for something of value, and although the trafficking statute contains the additional requirement that the victim be coerced, the promoting prostitution statute does not contain an essential element that the trafficking statute does not. Any additional differences in the wording of the statutes do not constitute separate elements and defendant's convictions had to merge. State v. Ward, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 27, 2020). 5. Lesser-Incured Offense. All of the statutory elements of promoting prostitution are included within the statutory elements of trafficking a person for a commercial sex act; thus, the trial court erred in determining promoting prostitution was not a lesser-included offense of trafficking a person for a commercial sex act, and defendant's convictions were to be merged. State v. Ward, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 27, 2020).