A single question is presented by these appeals: Is RCW 9A.88.030 unconstitutionally void for vagueness? In each instance, these cases were dismissed prior to trial so that no factual determination was made as to the precise conduct in which defendants were engaged. We hold RCW 9A.88.030 to be constitutional and reverse the trial courts.
It is important to understand the focus of defendants' case. They do not complain the statute is vague only as applied to their conduct or the hypothetical conduct of others. See Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974); State v. Hegge, 89 Wn.2d 584, *63574 P.2d 386 (1978). Rather, each defendant alleges the term "sexual conduct" in RCW 9A.88.030 is impermissibly vague and that the statute on its face is unconstitutionally void for vagueness. Since they attack the statute under which they have been accused as vague and with no standards regardless of their conduct, they have standing. See Lanzetta v. New Jersey, 306 U.S. 451, 83 L. Ed. 888, 59 S. Ct. 618 (1939); Coates v. Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971); Bellevue v. Miller, 85 Wn.2d 539, 536 P.2d 603 (1975).
The test for vagueness under these circumstances is well described in Bellevue v. Miller, supra, where we held that, although a statute may be "potentially vague as to some conduct, [it] may nevertheless be constitutionally applied to one whose act clearly falls within the statute's 'hard core.'"
The test of RCW 9A.88.030, the prostitution statute, is:
(1) A person is guilty of prostitution if such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
(2) Prostitution is a misdemeanor.
Defendants Zuanich, Hansen and Bohenstiel were charged under it.
RCW 9A.88.080, the promoting prostitution statute reads:
(1) A person is guilty of promoting prostitution in the second degree if he knowingly:
(a) Profits from prostitution; or
(b) Advances prostitution.
(2) Promoting prostitution in the second degree is a class C felony.
Defendants Brandes, Wardell, Ross, Fecteau, O'Neill and French were charged under it. As can be seen, the validity of RCW 9A.88.080 depends upon the constitutionality of RCW 9A.88.030. Is there a "hard core" to the meaning of "sexual conduct" which will save RCW 9A.88.030 from constitutional attack?
*64Among his affidavits, defendant Brandes submits a "poll" conducted among 104 persons "encountered at random in the University District of Seattle". It purports to illustrate an inability of what are denoted "citizens of common intelligence" to "distinguish between innocent sexual activity and 'sexual conduct1 in the context of the state prostitution laws." A variety of questions are asked as to whether certain activities are sexual conduct. As is the case in most polls conducted to prove a point, the answers are prefigured by the questions. The one question which defendants neglect to ask is whether heterosexual genital intercourse is sexual conduct. While there may be some pre-Fall Eden in which this question could not be answered affirmatively, to argue that heterosexual genital intercourse is not sexual conduct is a doctrine to which no reasonable person could ascribe. Nor can it reasonably be asserted that legislative intent to include heterosexual genital intercourse within the meaning of sexual conduct is not clear on the face of the statute.
Since 1967, New York State has had a statute on prostitution as follows:
A person is guilty of prostitution [if] when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
Prostitution is a [misdemeanor.] class B Misdemeanor.
N.Y. Penal Law § 230.00 (39 McKinney, 1977-78 Supp. at 67). Except for the word "when" instead of the word "if", and the insertion of "class B", the Washington and New York statutes are identical. The precise question of whether the term "sexual conduct" as used in the New York statute is unconstitutionally vague has been addressed by the United States Court of Appeals for the Second Circuit. In United States v. Herrera, 584 F.2d 1137, 1149 (2d Cir. 1978), the court stated:
This prohibition against excessive vagueness does not, however, invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for "in *65most English words and phrases there lurk uncertainties." Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945). All the Due Process clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden, and thus not lull the potential defendant into a false sense of security, giving him no reason even to suspect that his conduct might be within its scope.3 Even in criminal cases where the vagueness standard is more stringently applied, the statute must only present "ascertainable standards of guilt." Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1944); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947).
We have little doubt that the New York statute is not so vague that "men of common intelligence must necessarily guess at its meaning." Connelly v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). We do not believe that the defendants were "required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). The New York statute clearly places men of reasonable intelligence on notice that they cannot promote prostitution. The definition of prostitution as being a person who engages or agrees or offers to engage in sexual conduct with another person in return for a fee is not so vague as to make persons of common intelligence guess at its meaning. Although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that can be sufficiently understood and complied with by the ordinary person exercising ordinary common sense. Moreover, even if the outermost boundaries of the statute may be imprecise, any such uncertainty has little relevance here where the defendants' conduct falls squarely within the "hard core" of the statute's proscriptions. See Broadrick v. Oklahoma, [413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973)]; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Robinson *66v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1934).
In People v. Costello, 90 Misc.2d 431, 395 N.Y.S.2d 139 (Sup.Ct.N.Y.Cty.1977), Costello's argument that his conviction for promoting prostitution should be set aside because the phrases "sexual conduct" and "fee" are unconstitutionally vague was rejected by the court. We believe the statute establishes standards of guilt, at least as definite as those which withstood the same constitutional challenge in People v. Capparelli, 29 A.D.2d 1000, 289 N.Y.S.2d 499 (1968), affirmed, 25 N.Y.2d 832, 303 N.Y.S.2d 685 (1969); and in Rose v. Locke, [423 U.S. 48, 46 L. Ed. 2d 185, 96 S. Ct. 243 (1975)], and, accordingly, is constitutional.
3This is not a case in which the statute threatens a fundamental right such as freedom of speech so as to call for any special judicial scrutiny. See Rose v. Locke [423 U.S. 48, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975)]; Broad-rick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
Furthermore, in a recent case we had occasion to consider a statute relating to a sex crime where the arguments as to vagueness were considerably more substantial than they are here.
In State v. Carter, 89 Wn.2d 236, 570 P.2d 1218 (1977), the defendant argued the pimping statute then in effect was unconstitutionally vague on its face. That statute, RCW 9.79.060, provided:
Every person who—
(3) Shall give, offer, or promise any compensation, gratuity or reward, to procure any person for the purpose of placing such person for immoral purposes in any house of prostitution, or elsewhere; . . .
Shall be punished by imprisonment in the state penitentiary for not less than one year nor more than five years.
(Italics ours.)
*67In response to the argument as to vagueness, we said:
Appellant alleges the words "immoral purposes" found in RCW 9.79.060(3) did not sufficiently define the conduct sought to be proscribed as criminal and thus RCW 9.79.060(3) must be declared unconstitutionally vague. The requirement that criminal legislation be definite in language is premised on two considerations. First, the statute must provide fair notice, measured by common practice and understanding, of that conduct which is prohibited, so that persons of reasonable understanding are not required to guess at the meaning of the enactment. Second, the statute must contain ascertainable standards for adjudication so that police, judges, and juries are not free to decide what is prohibited and what is not, depending on the facts in each particular case. Bellevue v. Miller, 85 Wn.2d 539, 536 P.2d 603 (1975); Blondheim v. State, 84 Wn.2d 874, 529 P.2d 1096 (1975).
We might not hesitate to agree with appellant that the words "immoral purposes" found in RCW 9.79.060(3) were too vague under constitutional standards were we looking at these words in a vacuum. However, we agree with the trial court that in the context of RCW 9.79.060(3), these words clearly provided persons of common intelligence and understanding with fair notice and ascertainable standards of the conduct sought to be prohibited. RCW 9.79 was entitled "Sex Crimes" and RCW 9.79.060 was entitled "Placing persons in house of prostitution — Pimping." Further, RCW 9.79.060(3) made it a crime to "offer . . . any compensation ... to procure any person for the purpose of placing such person for immoral purposes in any house of prostitution, or elsewhere ..." (Italics ours.) The words "in any house of prostitution," plus the chapter and section headings of RCW 9.79.060 certainly provided a person of reasonable intelligence and understanding with notice that immoral purposes meant sexually immoral purposes involving acts of prostitution. We fail to see how appellant was denied due process under the vagueness doctrine.
Carter, at 240-41.
We believe the arguments in Herrera and Carter are decisive in this case. One final question is raised by defendants, however. They point to a repealed definition of "sexual conduct" in Laws of 1973, 1st Ex. Sess., ch. 154, § *68124, p. 1199 (RCW 9.79.030), and other recent changes made in the criminal code relative to prostitution as well as varying suggestions by prosecuting attorneys as to what is within the statutory ambit of "sexual conduct" as giving evidence of vagueness having been admitted by both legislators and prosecutors. Defendants also suggest that "the flirting of a braless waitress, the dancing of a go-go girl, the operation of a kissing booth, and even the Miss America bathing suit competition" could fall within the term "sexual conduct".
All of this is interesting but irrelevant. The sole question is whether there is a "hard core" of conduct within the phrase "sexual conduct" which saves it from the infirmity of vagueness. We find heterosexual genital intercourse is this hard core conduct and the constitutional test is met. There may well be other activities which could qualify as "hard core" a it pertains to sexual conduct. However, we need not list them as "heterosexual genital intercourse" alone is sufficient to overcome the constitutional challenge for vagueness.
The precise conduct of defendants is unknown since charges were dismissed. We do not know if the defendants were in fact operating a kissing booth or some other such innocent enterprise. Once this is discovered, we may then, if called upon to do so, determine the constitutionality of the statute as it applies to defendants. For now, we hold RCW 9A.88.030 on its face not to be unconstitutionally vague. The -trial courts are reversed.
Rosellini, Wright, and Horowitz, JJ., and Nordquist, J. Pro Tern., concur."9A.88.060 Promoting prostitution — Definitions. The following definitions are applicable in RCW 9A.88.070 through 9A.88.090:
*73"(1) 'Advances prostitution.' A person 'advances prostitution' if, acting other than as a prostitute or as a customer thereof, he causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.
"(2) 'Profits from prostitution.' A person 'profits from prostitution' if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity. [1975 1st ex.s. c. 260 § 9A.88-.060.]" (Italics mine.)
This definition also is derived from the term "sexual contact" as defined in RCW 9A.88.100(2) (not "sexual conduct").