T.P.I. -- CRIM. 10.09

PROSTITUTION

            Any person who commits the offense of [prostitution] [prostitution within one hundred feet (100') of a church] [prostitution within one and one-half (1½) miles of a school] is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

[Part A:

            (1)  that the defendant engaged in, or offered to engage in, sexual activity

                   as a business, or was an inmate in a house of prostitution, or loitered

                   in a public place for the purpose of being hired to engage in sexual

                   activity;

and

         (2)  that the defendant acted either intentionally, knowingly or recklessly.²]

or

[Part B:

            (1)  that the defendant engaged in, or offered to engage in, sexual activity

                   as a business, or was an inmate in a house of prostitution, or loitered

                   in a public place for the purpose of being hired to engage in sexual

                   activity;

and

            (2)  that the defendant engaged in the above conduct within one hundred

                    feet (100') of a church;

and

            (3)  that the defendant acted either intentionally, knowingly or recklessly.³]

or

[Part C:

            (1)  that the defendant engaged in, or offered to engage in, sexual activity

                   as a business, or was an inmate in a house of prostitution, or loitered

                   in a public place for the purpose of being hired to engage in sexual

                   activity;

and

            (2)  that the defendant engaged in the above conduct within one and one-

                   half (1½) miles of a school;

 and

            (3)  that the defendant acted either intentionally, knowingly or recklessly.⁴]

            "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.⁵

            "House of prostitution" means any place where prostitution or the promotion of prostitution is regularly carried on by one or more persons under the control, management or supervision of another.⁶

            "Inmate" means a person who engages in prostitution in or through the agency of a house of prostitution.⁷

            "Sexual activity" means any sexual relations including homosexual sexual relations.⁸

            ["School" means all public and private schools which conduct classes in any grade from kindergarten (K) through grade twelve (12).] ⁹

            "Intentionally" means a that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result. ¹⁰

            "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.¹¹

            "Recklessly" means that a person acts recklessly with respect to circumstances surrounding the conduct or the result of the conduct when the person is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the person's standpoint.¹²

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-513.

  2.  Tenn. Code Ann. § 39-11-302(b) and (c) and accompanying Sentencing

       Commission Comment.

  3.  Id.

  4.  Id.

  5  Tenn. Code Ann. § 39-13-512(5).

  6.  Tenn. Code Ann. § 39-13-512(1).

  7  Tenn. Code Ann. § 39-13-512(2).

  8.  Tenn. Code Ann. § 39-13-512(6).

  9.  Tenn. Code Ann. § 39-13-513(c).

10.  Tenn. Code Ann. § 39-11-106(a)(18).

11.  Tenn. Code Ann. § 39-11-106(a)(20).

12.  Tenn. Code Ann. § 39-11-106(a)(31).

COMMENTS

                 1.  Prostitution is a Class B misdemeanor.  Tenn. Code Ann. § 39-13-513(b).  Prostitution within one hundred feet (100') of a church or within one and one-half (1½) miles of a school is a Class A misdemeanor.  Tenn. Code Ann. § 39-13-513(b)(2).  A person convicted of prostitution within one and one-half (1½) miles of a school shall, in addition to any other authorized punishment, be sentenced to at least seven (7) days of incarceration and fined at least one thousand dollars ($1,000).  Tenn. Code Ann. § 39-13-513(b)(3).

                 2.  If the definition of an offense within Title 39 does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.  Tenn. Code Ann. § 39-11-301(c).  The Committee is of the opinion that the definitions of "intentionally", "knowingly", and "recklessly" should all be charged for this offense.