dissenting, with whom Chief Judge PRYOR and Associate Judges BELSON and STEADMAN concur:
We are concerned with an atypical amendment to an old statute. However, we are not really concerned with its meaning, for it is nearly meaningless. It is first appropriate to ask: what additional conduct does the amendment proscribe? The answer is nothing. That is why the amendment is a strange one. It says it proscribes, inter alia, stopping or attempting to stop motor vehicles or passers-by “for the purpose of prostitution.” But every act the amendment addresses was already covered by the original proscription of inviting, enticing, persuading or addressing for those purposes “for the purposes of prostitution.”
The purpose in amending the statute seems obvious in historical context. Before the addition, soliciting for prostitution was proved by direct testimony of a verbal encounter between a covert operative and the defendant. The conversation touched all elements of the offense. No case has held that such proof is the only way to prove the offense under our statute. The fact is that until recently the enforcement method was limited to verbal encounters. The purpose of the amendment was to make enforcement of the statute more efficient than the previous “one-on-one” conversational method.
In the amendment, the Council suggests the offense can be proven by observations of conduct. No elements have been added or removed for proof of the offense. Therefore, the meaning of the statute remains as it was — to prohibit “solicitations” of sexual acts for a fee. Whether proof of conduct is enough is really a constitutional question of due process, i.e., sufficiency of the evidence. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In these cases the theory of the prosecution (perhaps prompted by the addition to the statute) is that the elements of the offense can be proven by circumstantial evidence and reasonable inferences. The circumstantial evidence in these cases, in my view, is compelling. It is just like proof beyond a reasonable doubt where possession of recently stolen property proves the theft act, such as robbery, burglary or larceny, etc., or where identity, intent, or other state of mind may be proved from objective conduct or proof of prior knowledge or experience. The process is a familiar one of fact determination by deductive reasoning, i.e., a specific determination derived by general, objective data. Thus, these cases become easy of decision. The question is: does the testimony permit inferences relative to the elements of the offense which are sufficiently likely or reasonable for proof beyond a reasonable doubt? Those in the majority say “no” but do not say why. They do not say how inferences can be drawn from circumstantial evidence in so many other offenses, but not as to the fee element here. They do, however, allow as to how it may be inferred that these women were advertising their sexual availability.
The majority spends many words justifying why some of them were right on a division when they held observations to be insufficient proof (ante at 624-625). This is hardly necessary since the en banc court may do as it wishes, subject only to the dictates of common sense if it wishes to decide credibly.
In its last paragraph on the sufficiency issue (ante at 625), the majority readily admits that these women “looked and ... acted like prostitutes.” I take it they must mean purveyors of sex in exchange for something of value. But then the majority says their actions were ambiguous without “further proof” of financial consideration. Such a statement is a delightful nod to common sense in that it admits that some inference of sex for a fee is reasonable on this proof. Then comes our unrealistic holding: “Because there was no evidence” of a fee for the inferred “sexual availability,” their convictions must be reversed. The inconsistency in reasoning is obvious. We have now indulged in an impermissible hypothesis of innocence, and a laughable *629one at that. Given the majority’s enlightened willingness to agree that sex acts by prostitutes were the purposes of the observed actions, they then inexplicably hold that absent further proof concerning fee the prostitute must be presumed to have offered sex as a gift of gratification. To do so under the facts of these cases is to affect ignorance of “the world’s oldest profession.”
Furthermore, the majority departs from the understandable when it says that the government must prove “the substance of the exchange between the defendant and another person” and that “there must at least be evidence of a communication, verbal or nonverbal, between the defendant and the other person and some proof that the contents of that communication is within the proscription of the statute.” Nor do I understand the further statement that “the illegality lies in the communication itself, not in the conduct leading up to it.”
These comments fly squarely in the face of the language of the statute with its 1981 amendments. The statute does not proscribe “offering to engage in sexual acts or contacts with another person for a fee,” as the quoted comments would suggest. That concept is contained in the definition of “prostitution” itself, which includes not only engaging in sex for pay but also “offering to engage” in such acts. What the statute proscribes is “inviting, enticing, or persuading, or addressing ... for the purpose of prostitution.” And the proscribed acts include, among other things, “repeatedly attempting to stop ... passersby,” or “attempting to stop motor vehicles” or “repeatedly interfering with the free passage of other persons.”
None of these proscribed acts require any communication at all. Indeed, they are all lawful standing alone. What makes them unlawful under the statute is whether they are done “for the purpose of ... offering to engage in” sex for pay. Thus, it is the intent with which the proscribed acts are done that makes them lawful vel non. It is proof of unlawful intent — a familiar requirement of the law — that must be presented to sustain a conviction. And under familiar principles, proof of intent is almost invariably circumstantial. I would hold the evidence to be sufficient in each case, as, indeed, have many states. See Ford v. United States, 498 A.2d 1135, 1139-40 (D.C.1985).
Given that the majority has now destroyed the observation method of enforcing the statute, it is understandable that it holds the use of the expert’s testimony in the Blair case, to be “not probative of any material fact that had not already been established by other evidence.” To do otherwise would make the insufficiency-of-the-evidence holding bootless.
The majority agrees that this testimony proves behavior of a prostitute and even that the woman “was in fact a prostitute.” {Ante at 626.) Now we know that a prostitute provides her body for sex for a fee. That is precisely what the expert testified —that the conduct showed she was “trying to get a date,” meaning “[h]ave sex for money.” Why then is it not apparent that the woman — a prostitute acting as a prostitute — was seeking to “have sex for money.” The majority says not, but the witness opined that is what she was doing. His testimony was patently “adequate” to prove the fee element. At least we do not hold that expert testimony on this subject is always inadmissible.
I vote to affirm the convictions.