Does the legal definition of prostitution exclude gifts as a type of “fee”?

Question

This is a really interesting and great question:

Hypothetically walking the line between pornography and prostitution

I wanted to add one question to the general one of where the conceptual “boundary” of prostitution is.

That post quotes this Texas law of the Texas penal code:

Sec. 43.02. PROSTITUTION.

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:

(1) offers to engage, agrees to engage, or engages in sexual conduct; or

(2) solicits another in a public place to engage with the actor in sexual conduct for hire.

(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:

(1) offers to engage, agrees to engage, or engages in sexual conduct; or

(2) solicits another in a public place to engage with the actor in sexual conduct for hire.

I’d be curious to know more about that phrasing, “in return for a receipt of a fee”, and “based on the payment of a fee”. As far as I can tell, the first one restricts sellers of prostitution, the second one buyers. I feel like the language could be made even more neutral, simple and clear though, and I’d be curious to know why legislators hashed out this exact wording, from a legal theory standpoint.

My true question is, does the above wording mean that exchanging services or gifts for sex is either a) not illegal or b) not prostitution? In other contexts, for example the definition of “bribery”, I have seen “gifts and services” mentioned along with payment as possible culpable behaviors that would qualify as bribery.

Answer 1

Does the legal definition of prostitution exclude gifts as a type of “fee”?

No.

The term "fee" is defined at Texas Penal Code § 43.01 which states:

(1-b) “Fee” means the payment or offer of payment in the form of money, goods, services, or other benefit.

Some cases interpreting Texas Penal Code § 43.02 provide further clarification.

The term “fee,” within subd. (a)(1) of this section, means payment in return for professional services rendered.  Tisdale v. State, 640 S.W.2d 409 (Tex. App. 1982).

Encounters between sex workers and clients were not “intimate relationships” protected by First Amendment, and thus statute criminalizing solicitation of prostitution did not violate defendant's right to freedom of association, where encounters did not involve deep attachments and commitments, like the creation and sustenance of family, raising and education of children, or cohabitation with relatives, were not distinguished by attributes such as relative smallness, high degree of selectivity in decisions to begin and maintain affiliation, and seclusion from others in critical aspects of relationship, and were by their very nature transactional.  Robles v. State, 585 S.W.3d 59 (Tex. App. 2019)

The culpable mental state of knowledge for prostitution offense could have been inferred by the jury when the facts showed that a fee was paid, that sexual contact occurred, and that other fees were paid with the understanding, explicitly or implicitly, that similar acts, contacts, and performances would follow the continued flow of money, and they did. Steinbach v. State, 979 S.W.2d 836 (Tex. App. 1998). For purposes of prostitution offense, the element of intent to arouse or gratify the sexual desire of any person could be inferred by the trier of fact by defendant's acts, conduct, and words where the defendant told an undercover officer that, the more he paid, the more clothing she would remove, and each time after the sixth, seventh, and eighth payment of $20, defendant, who was nude, sat in officer's lap and ground her genitalia against officer's sexual organ, with the grinding becoming heavier after each $20 payment. Steinbach v. State, 979 S.W.2d 836 (Tex. App. 1998).

does the above wording mean that exchanging services or gifts for sex is either a) not illegal or b) not prostitution?

The thing given doesn't really matter, as explained by the definition. The distinction between a gift and a fee (i.e. a quid pro quo transactional exchange), is really one for the jury to determine on the facts of each case. The jury isn't bound to adhere to the label that the parties to the interaction gave it. If it is an exchange of money, or goods, or services, or another benefit for sex with someone to whom you aren't married, it can count as prostitution, even if the parties choose to call it a "gift."

Answer 2

Giving or receiving a gift doesn’t make it prostitution. But just because you call it a gift doesn’t make it one.

A gift is something given without an expectation of anything in return, and you can’t ask for it to be returned if you don’t receive whatever it was that you didn’t expect in return.

“If you have sex with me then I’ll give you this expensive gift as a present” - it’s not a gift. On the other hand, if you pick up a prostitute and you are so naïve that you never realise her profession, and afterwards you are so pleased that you give her an expensive gift, that’s not prostitution. Although that may be hard to prove in court.