Here’s the premise: prostitution is illegal, but filming an X-rated film (and paying the actors to have sex on camera) isn’t. So, can you avoid being charged with soliciting (is that what johns are charged with?) if you say to the hooker “Listen. I’m not paying you to have sex with me. I’m going to film us, and I’ll be paying you to appear in my amatuer porn flick, with me as the co-star.”? Probably to make it work, you would have to try to sell the film - but if you don’t succeed, well hey, that’s the free market at work.
With respect, SUA, you’re a lawyer – why don’t you just look it up? I mean, are you looking for the non-lawyer’s opinion on what is or is not legal? (And if so, why?) If you’re looking for a legitmate answer, why don’t you find out yourself?
This had been discussed many, many times in GQ, but the bottom line is:
Filming the act doesn’t make it legal- it’s still sex for money, illegal in most places. It doesn’t matter if you sell it, put it on video, or even win an Academy Award with it.
Actual porn flicks are almost exclusively made in LA, where it’s not pursued (much) by local authorities. I’m sure “community standards”, etc. are involved at a local level.
Several previous threads have info from people with first-hand knowledge …
Your Honor, I was not blackmailing him with that tape from the brothel, I was just asking him to pay me his share of our filming expenses, and selling him the distribution rights to the film.
Sure I’m a lawyer - but I’m a corporate drone. This type of question usually doesn’t come my way. I was hoping to get an answer from either a criminal lawyer or a pornographer (I know of at least two on this board). Of course, anyone else with personal experience, or who wants to make a snide/funny comment is welcome, too.
As for looking it up – to my mind, this is an intersection of two statutory schemes, with possible federal/state implications to muck it up. That means case law. If I can get the answer here relatively quickly instead of mucking through Wests on something that’s nothing more than idle curiousity (although jmullaney might be on to something ), I’ll try it.
The short answer is that filming an X-rated movie, and paying the actors involved, are actions almost certainly violative of the laws against prostitution.
However, there are certain defenses available to the makers of a skinn flick that would not be available to your average streetwalker and john, inter alia the First Amendment’s protection of expressive conduct.
Because of the shaky ground that prostitution charges against a filmmaker would face, prosecutorial discretion ensures that such charges are never filed.
But wait! I hear you cry. If an action is permitted for one person, shouldn’t it be permitted for all?
No. A person may only raise Constitutional defenses as they apply to him; he may not vicariously assert another’s Constitutional rights. (There is an exception to this general principle when dealing with First Amendment jurisprudence, but it is inapplicable here).
So a john arrested for offering to engage in prostitution cannot claim that he should be set free because, ten miles away, a filmmaker is paying girls to do the exact same acts.
Now turning our attention to the instant hypothesis, I suppose you could theoretically bring your home video camera along with you as you cruised Hollywood & Sunset in an effort to give yourself an instant First Amendment defense. But in order to assert that defense, the finder of fact would have to determine that you legitimately were trying to create and distribute porn. If you couldn’t show any compelling evidence that this was so… you’d lose your case without ever reaching the issue of whether the First Amendment protected your nascent porn business, because the finding would be that there was no porn business, nascent or otherwise.
As the person said, this has come up lots of times already.
First of all, you DON’T have any permits to make such a film & there is only one place you can get the permits, Hollywood & they won’t give just anyone permits.
Also, if you come to think of it (where do I get these puns?) & do a film & pay someone to have sex in it, all you are doing is giving the district attorney real evidence that you comitted an act of prostitution …
Yes, but in order to assert the “skin flick defense,” you’d have to admit that you were having sex for money and filming it, so if it didn’t work, you’d probably be SOL.
couldn’t you film your entire trip, claim that you’re an marxist-indie director making a documentary about prostitution, and insist that your freedom of expression cannot be denied, and committing this crime (solicitation and whatever the crime of being a john is) was absolutely necessary to the completion of the film?
If it works, do a documentary about being a stoner. Sure, there’s gonna be a lot of footage to edit, but that’ll certainly be fun if you are muy baked.
I did read a book (I think it was an Ed McBain mystery) where three guys hired a girl to make a porn movie, solely for the purpose of having all sorts of kinky sex with her.
They paid her scale for it, but never made a movie. Figured it was cheaper than hiring a prostitute.
Not for nothing, but almost every city has a Film Office of some kind. As long as you have a standard Insurance Bond ( Usually a 1 Mil. General Liability Bond), you can get a permit to shoot on the streets- at least, in NYC. Now, it doesn’t have to be " Law & Order" for you to get a permit. I’m a freelance camera operator, but a few years go decided I really needed some liability insurance. I interact closely with actors, sometimes at high speeds, etc. So now I have my Certificate of Insurance ( aka C of I ). I take my C of I down to the Mayor’s Office of Film Television and Theatre. I tell them I’m shooting a commercial, just me and my little lonesome Steadicam, on the street. I get a permit to film on that block, as long as I obey all existing laws regarding traffic, etc ( Let’s say it’s an easy shoot). And, off I go.
Hollywood IS NOT the only place to get a permit to film a movie or videotape project. However- I don’t think at least in NYC that the script is approved by the city for prurient content. YOU as the Producer are obliged to say " We are shooting in Times Square for 3 nights running, all night. We will need the police to lock down 4 blocks of 7th Avenue between 48th and 44th streets, on our command". Or- " I’m doing a small film that only involves conversation on West 54th Street. We will have no explosions, or extras". That kind of thing.
Most porn is shot indoors for a good reason. The laws controlling permits to shoot in public don’t apply to private property in any way. It’s very hard to march in to a closed room and demand that the owner of the home produce documentation that says they’re allowed to have sex with 9 people at once, in front of a camera.
++Aside++. I was once offered the chance to shoot a porn movie one weekend. They wanted a Steadicam Operator to shoot it. I quoted a rate that at the time was blindingly high, and in cash. The guy didn’t blink, and said Sure, we’ll pay that. I just smiled and declined. I may consume, but I won’t create.
[hijack]Annie - like the nick! Mind if I ask where it’s from? A character in Whistle Down the Wind tells a tall tale about an Annie Christmas, who had a necklace with for every ear and nose she had bitten off… and the necklace was already thirty feet long… *
Yes, but the Commonwealth has to prove you’re guilty of the elements of the crime of prostitution, which are (1) for money or its equivalent, (2) commits adultery, fornication, carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, or offers to do any of the foregoing and thereafter does any substantial act in furtherance thereof. Once those elements are proved, you have been “proven guilty.” If there are defenses to raise, such as you being forced into it, or entrapped, or having a First Amendment right to do it… it falls to you to prove the elements of that defense by preponderence of the evidence.
So while ‘innocent until proven guilty’ is, in fact, still hip – it makes a difference what you’re being proven guilty of, and how you’re asserting that you shouldn’t be punished.
), I’ll try it.