Why Aren't Porn Performers Arrested for Prostitution?

If getting paid to have sex is considered prostitution, why aren't porn stars routinely arrested? Don't they get paid to have sex?

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Tim
"My hovercraft is full of eels."

Because they are not paying the people with whom they are having sex, they are being paid to have consensual voluntary sex with someone (or something) else.

Uh.. that did not come out right.
What I meant to say was they are not being paid by the person or persons or (other) they are engaging in sex with. (Presumably) both actors are being paid by a third party to have voluntary sex on-camera (or live, damn this stuff get complicated!).

(Presumably) both actors are being paid by a third party to have voluntary sex
Sounds really close to pimping.

Enright3

In many places, Torgo, they are -- that's one of the reasons why they don't use their own names. In my state, prostitution is defined as follows:

A person commits the offense of prostitution if such person engages in or agrees or offers to engage in sexual intercourse with another person for compensation, whether such compensation is received or to be received or paid or to be paid.

So "prostitution" = "having sex for money," and that would include in the movies. The problem, of course, is that if you only have a film of two anonymous people having sex, how do you prosecute the crime? You don't even know if the act took place in your jurisdiction, or whether the actors were paid (though we all know they probably were, they can deny it), or who they are (assuming the use of aliases). So it's tough to catch 'em in the act, so to speak, but they ARE committing the offense of prostitution nonetheless -- at least they are in my jurisdiction.

Although working in a porn movie for pay probably DOES qualify as prostitution under most state and local laws, as a practical matter, very few police departments have any interest in shutting down this sort of operation. Cops don't really want to be in the morality business- they just want to keep the civic peace.

What most police and most citizens object to is not so much the act of providing sex for money as the act of solicitation. Prostitutes who take over a city street and aggressively solicit business are both a nuisance to passersby and bad for the legitimate businesses in that part of town.
For instance, if ordinary citizens are uncomfortable going to a movie/play/restaurant downtown because of aggressive street prostitutes, those businesses are going to lean on the police to crack down on the hookers, if only to get them off the street.

You rarely hear about police going after high-priced call girls for this very reason. In general, most people don't care that much if sex-for-sale is going on. They just don't want to see it or know about it. A prostitute throwing herself at passersby is a menace or nuisance in a way that a call girl in her own apartment or a porn star in a closed studio is not.

Well gee, I guess that blew me right out of the water, eh?

Psst! You mean "Buffy St. Cloud" isn't her real name?

One important thing to realize is that virtually all the professional pornography is this country is made in only two lacations: Los Angeles and New York City (and the majority is from L.A.). So while the production of a porno video would probably be illegal in many jurisdictions, in actually the producers only have to worry about the laws and community standards of two cities.

There have been occasions in which local law enforcement officials have attempted to prosecute porno producers and performers on prostitution charges. Most of these instances have been when a local politician is attempting to make a name for himself as an enforcer of "family values". But usually the cases are of dubious enough legal merit that, after the prosecuter gets sufficient publicity, the charges are dropped or a plea bargain is made. I have never heard of any porno performer actually being imprisoned on prostitution charges.

Um, the obvious answer is that if they were arested then there would be no porn!

Seriouly. You guys are really missing the point. The reason porn isn't illegal under most laws is because as a legal matter of speaking the couple is having concentual sex as adults and are being paid as actors. This is to say they aren't getting paid to have sex, or strip, but they are getting paid in order for the filmmaker to use their image, and performance to make a profit. This distinction is very important.

Speaking to the comment about local laws and porn being made in LA or NY, you haven't been online much have you? Fact is there are local obscenity laws usually stating that questionable businesses (bars, liquor stores, porn shops, sex toy shops, adult arcades, and porn studios) can not be run within certain defined proximities to schools, and neighborhoods. Occasionaly you'll hear about porn being made in someones home, and that since at some point they cross the line from being a private homeowner and become a commercial porn business they must now come to abide by the local laws. This recently happened in the "Vouyer Dorm" in Florida. The residents found out that it existed in a house in a typical suburban neighborhood, and the town proceeded to bastardize the obsenity laws to attempt to force them to move or close down. Last I heard it was in litigation and the gray area is based on the percentage of the business that is adult related, and on a larger scale what is considered "porn".

Is it really porn if you simply watch a persons day to day life, and happen to see them naked occasionally?

While in reality I think most of the country could care less about porn and prostitution occuring behind closed doors, there are enough relgious zealots and conservative politicians tring to get some PR that the "what they don't see doesn't hurt them" arguement doesn't really work. Fact is there is a very specific precedent in legal matters that define the difference betwen porn and prostitution. Now the invention of the internet is raising new questions that have never been approached, specifically "What is public domain?", "What is porn?", What local laws apply?" and so on.

Get used to this type of nit picking in the future. Luckily most of the Religious zealots, radical conservatives, and people who generally push censorship are old fogeys, and usually fear or hate technology. this is a big asset to the internet, most preachers and republicans have never even been online.

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The facts expressed here belong to everybody, the opinions to me. The distinction is
yours to draw...

Omniscient; BAG

One day on MTV there was a special called "My life as a porn star" or something like that and at the beginning they said that sex for money is legal when it is recorded and made public for anyone to view (I think that's how it was worded)

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Formerly known as Nec3f on the AOL SDMB

I went to see a 3-D porn movie down in LA about a year ago. Before the feature, the star/director of the film was answering questions. On being asked about "Boogie Nights" he said it was really close to the truth, but the one thing it missed was the "danger" involved in making the movies. Apparently, it was illegal in the 70s, and the vice cops were constantly on his and the entire porn industry's tail. He said laws had been changed so it was no longer illegal, not much more explanation was given.

My favorite quote from the guy:
"We didn't do it (porn) for the money, because there wasn't much.
We didn't do it for the sex, because that was mechanical.
We did it for immortality".


pat

A person commits the offense of prostitution if such person engages in or agrees or offers to engage in sexual intercourse with another person for compensation, whether such compensation is received or to be received or paid or to be paid.

Suppose the customer is into watching...say, two women go at it and masturbate during the show. Would he, or they, be violating any laws?

Forget prostitution--I want to know when they have porn involving animals why aren't they prosecuted for cruelty to animals? People do it willingly, with understanding. Animals are USED!

Maybe the animals enjoy it?

Anyway, I asked about why porn is legal and prostitution is not before. Might still be around on the board.

It just seems as long as a camera is there, it's legal.

Although Nick says that as long as you don't pay the person doing it to you, it's legal, I have a feeling this isn't so. It's too easy to pay the pimp intead to make it think that it's legal, when of course, that too is not legal.

The legality of porn has to do with the fact that once you've put something on camera and made it available for public viewing, you're communicating, and so the First Amendment becomes an issue.

Are you sure about that, ruadh? It seems to me that you're talking about two different issues. You're implying that anything is legal as long as you film it because of the first amendment. You know that's not true.

enright3

Omni, what the hell makes you think, "most preachers and republicans have never even been online"? You lost me on that one, especially since it has been shown exhaustively that the vast majority of internet users are white male conservatives. check your facts before slinging perjoratives around at anyone you may have a beef with.

You're implying that anything is legal as long as you film it because of the first amendment. You know that's not true.

Nor did I say it was.

The actors in a porn movie are not being paid to have sex. They're being paid to have sex ON CAMERA. That's a big difference. They wouldn't be paid for going and having sex in a closet where nobody could film them. The sex itself isn't illegal; the actors are hired to make a film which includes the legal act of sex. The First Amendment protects the right to make films of legal acts. That you're being paid to make these films doesn't strip you of that right.

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Never regret what seemed like a good idea at the time.

So I'm watching "COPS" the other night, and they have a hidden camera set up in a motel room. A female officer posing as a hooker enters with a prospective john and asks him what he wants. He says, "a spanking", so she tells him a spanking costs fifty bucks. After he pays up, the vice squad jumps out and arrests the guy for soliciting prostitution. Seems to me a consensual spanking is no more prostitution than a massage, or a haircut, fer chrissakes!!! Granted the poor bewildered guy looked like a pathetic loser, but that's no justification for expending law enforcement resources and the time of our overcrowded courts on private, personal conduct. Will this insane obsession with what goes on in America's bedrooms ever stop????

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TT

"Cheating is a gift a man gives to himself"
--C. Montgomery Burns

Omniscient:and are being paid as actors

ruadh: actors in a porn movie

Actors? You haven't actually seen a porn movie, have you?

Hey, I've watched Keanu Reeves in movies before too.

Ok, so here's my idea for a legal prostitution service: "Star In Your Own Porn Movie". Just like those novelty booths you see at amusement parks where you make a recording of yourself wailing to your favorite pop song. How could it go wrong?

If, as astorian points out, starring in porn movies (being paid to have sex with someone else) technically *is* prostitution, and just isn't prosecuted because it's considered acceptable, then this probably wouldn't work, because they'd see right through you and simply decide that it wasn't "acceptable".

That's the big problem with selective enforcement of the law. It's impossible to know where you stand.

The legality of porn has to do with the fact that once you've put something on camera and made it available for public viewing, you're communicating, and so the First Amendment becomes an issue. There is a theoretical grey area here (i.e. if a prostitute records her, uh, sessions and sells the tapes), but in most cases the distinction between prostitution and porn is clear enough.

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Never regret what seemed like a good idea at the time.

One deciding point I can see is that porno actors pay taxes & prostitutes do not.

I forgot where I read this (I think it was Playboy) but they basically described why Porn is legal and prostitution is not.

Some time ago, California took one of the porn companies to trial and tried to claim that they were in violation of prostitution laws and the evidence, of course, was the porno tape. Somehow, and this is a bit mind-boggling, the defense argued that having actors taped having sex wasn't prostitution because they were merely acting. The defense brought up the analogy of watching a murder mystery and that you wouldn't try to convict the bad guy for murder. Everybody knows that it's merely a simulation. Somehow, the judge/jury bought this and this has basically made porn legal in California.

I'm not quite sure why California hasn't rewritten their laws to make it illegal, although I'm sure they enjoy the extra tax revenue... Since it's legal in California, this is why you see virtually every porn movie made there as opposed to some other state.

Brian

OMNISCIENT says --

The reason porn isn't illegal under most laws is because as a legal matter of speaking the couple is having concentual sex as adults and are being paid as actors. This is to say they aren't getting paid to have sex, or strip, but they are getting paid in order for the filmmaker to use their image, and performance to make a profit. This distinction is very important.

Though I couldn't find any cases addressing this "acting" defense (though really I didn't look too hard), I have to tell you that, as a prosecutor, I would have laugh at this defense. Assuming the participants are really having sex -- not just simulating sex -- I think the stronger argument is that they are being paid to perform the sexual act on film. The point of your average hard-core pornographic film is to feed the viewers' sexual interest, not to produce a piece of art. Since the sex is the reason for the film's entire existence, I don't think you'd be too successful in arguing that the point is the film and not the sex. This feeds into the definition of pornography (nebulous as it is), which is material that is patently offensive, appeals to the prurient interest, and lacks serious artistic value. If you can show the film in question is artistic, it is by definition not pornographic. Anyway, the fact that the sex is consentual is irrelevant; prostitution is consentual too.

JOEY P says --

One day on MTV there was a special called "My life as a porn star" or something like that and at the beginning they said that sex for money is legal when it is recorded and made public for anyone to view (I think that's how it was worded)

Just because making porn movies may be legal in one jurisdiction does not make it legal in all jurisdictions. Even if it is legal in New York (which I frankly don't know but kind of doubt), it is NOT legal in many other places.

POOCH asks --

Suppose the customer is into watching...say, two women go at it and masturbate during the show. Would he, or they, be violating any laws?

Under the law I posted (and which you quoted), there would be no violation, because the law specifies "sexual intercourse" and masturbation is not sexual intercourse.

RUADH says --

The actors in a porn movie are not being paid to have sex. They're being paid to have sex ON CAMERA. That's a big difference. They wouldn't be paid for going and having sex in a closet where nobody could film them. The sex itself isn't illegal; the actors are hired to make a film which includes the legal act of sex. The First Amendment protects the right to make films of legal acts. That you're being paid to make these films doesn't strip you of that right.

If we accept the definition of prostitution as "having sex for money," then the fact that the participants are being paid to have sex on camera doesn't mean they are not still being paid to have sex. By the same token, if you paid two people to go into a closet and get it on, they STILL would be guily of prostitution under this definition because they are being paid to have sex for money. The wheres and whys of it don't change that fact and therefore don't change the act's legality (or, rather, its illegality). You're right; having sex is not illegal, and having sex on camera is not illegal; having sex FOR MONEY is illegal (at least it is here). While the First Amendment may be relevant to the question of what constitutes pornography, it is not relevant to the question of what constitutes prostitution.

GALT says --

If, as astorian points out, starring in porn movies (being paid to have sex with someone else) technically *is* prostitution, and just isn't prosecuted because it's considered acceptable . . . That's the big problem with selective enforcement of the law. It's impossible to know where you stand.

It IS true that most law enforcement personnel don't waste a lot of time worrying about porn movies people buy to watch in the privacy of their own homes (provided it's not kiddie porn); they rightly think they have better things to do with their limited resources. But I don't think the lack of enforcment arises from some general attitude that porn is acceptable, I think it arises from the inherent difficulties in prosecuting porn performers for prosecution. As I set forth above -- How would you know where the film was filmed, or when? How do you know the people were actually paid? How do you know you have jurisdiction over the act? How do you know you'd even be able to find the performers again to arrest them? It would be very difficult to prosecute such people for prostitution under those circumstances, and the offense would hardly be worth the enormous effort necessary to effect an arrest.

BPAULSON -- I'm not familiar with the case you're talking about, but the obvious reason it would not constitute prostitution is that the acts on film were, according to you, simulated. Since prostitution is having sex for money, not [i]pretending[i/] to have sex for money, the law would not apply in such a case.

Though I couldn't find any cases addressing this "acting" defense

The only cases I was able to find addressing the issue at all (and I have no idea how closely they addressed it) were two Illinois Supreme Court cases: Chicago v. Geraci and Chicago v. Festival Theatre Corp. Unfortunately, they both date from the early 80s, and only Illinois cases after 1996 are online. If someone with access to the texts wants to go look them up for us, we may be able to settle this once and for all.

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Never regret what seemed like a good idea at the time.

As I set forth above -- How would you know where the film was filmed, or when? How do you know the people were actually paid? How do you know you have jurisdiction over the act? How do you know you'd even be able to find the performers again to arrest them?

Actually it would be pretty easy. All porno videos carry a disclaimer giving information on how to contact the production company and verify the date the film was made and the identity of all the performers. This was done in the wake of the Traci Lord scandal so the producers can prove they verified the age of all performers when they made the film.

I wish I still had the copy of the article that I read, but from my recollection, the article made it clear that California was the only jurisdiction where porn is free to be made. Looking up cases in Chicago isn't going to do much because Illinois case law doesn't tell us anything about California.

RE: jodih - This is coming as recollection from an article that I read around a year ago, so it's quite possible that I have some of the details wrong. However, when I read it then, it sounded a bit incredible and I wouldn't be surprised if what worked in California wouldn't work in other jurisdictions.

Brian

2 cases. Compare and contrast.

#1) An "escort service" charges only for the time that a man spends with an attractive woman. What they do in that time does not affect the payment, and is not officially copmany business. A customer asks an "escort" for sex during his paid hour, and she complies willingly.

#2) A legitimate maid service charges for cleaning a house. A man becomes attracted to his maid, and asks her for sex. On company time, the two have sex.

How is the company in #1 guilty (legally), when the company in #2 is not?

Your Quadell

P.S. Almost no one has quoted actual laws or court cases. There's too much speculation and too few facts going on.

Quadell, here's the difference between your two cases; the first is a situation where a third party is acting as an accessory to a crime, the second is a Seinfeld episode. Seriously, the difference is the history of the services. If 100% of your employees are having sex for money with your customers, it's hard to claim you're not running a procurement service. The maid service would be able to defend itself by showing that the single instance of employee/customer sex is not characteristic of their service.

As for "too much speculation and too few facts", without claiming Cecil-like wisdom, the answer I posted on 7-22 is correct. The reason porno performers don't get arrested is because they work almost exclusively in LA, and local law enforcement allows them to. Brian Paulsen's post explains the law behind this.

Well, I DID quote the law from here, Quadell, which only highlights the problem -- we're not talking Federal law, we're talking state law, and different states have different laws, so it's largely fruitless to compare them. What's illegal in my state might not be illegal in yours.

The difference between your examples is arguably this: If an escort service charges clients for "spending time" with them, they are arguably charging the client for the escort's participation in whatever activity takes place during that paid time -- you go to a party, you've paid the escort to go to the party with you; you go out to dinner, you've paid the escort to go to dinner with you; you have sex, you've paid the escort to have sex with you, which constitutes prostitution (at least in my jurisdiction). This is without taking into account the fact that "escort service" is almost always code for "prostitute procurement service."

In the second case, the maid is paid to clean -- that's why she was hired. If she's having sex with one of her clients instead, that's not prostitution -- unless or until he starts paying her for the sex instead of the cleaning, at which time it IS prostitution.

Looking up cases in Chicago isn't going to do much because Illinois case law doesn't tell us anything about California.

The decisions wouldn't be binding in California, but that doesn't mean reading them wouldn't help offer an explanation.

In a footnote to Osborne v. Ohio the US Supreme Court noted that several states have excluded pornography from prostitution laws; the Chicago cases were cited, and the reference to Festival Theatre Corp. was that the Illinois Supreme Court had therein noted that "various courts" (the USSC's words) had already held that porn wasn't prostitution. Maybe a California court was one of those. Or maybe this decision (or the other Illinois one I mentioned) actually provides a compelling answer to the topic question. Either way, I think it would be worth looking up.

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Never regret what seemed like a good idea at the time.

I'm not a legal eagle but a quick net search gave me California Penal Code 653.20a, emphasis mine:

(a) "Commit prostitution" means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public.