Straight Dope Message Board

How is porn not prostitution?

Factual Questions

CastleAnthrax February 27, 2012, 4:56am 1

I was watching an episode of Lie To Me where two of the characters go to a porn movie maker to have him make a private film starring them. They tell him they have a fantasy about a threesome, and they ask for a specific girl they’d seen in another of his movies.
So now I’m wondering how porn is legal where prostitution is not. The actors are actually having sex, and they are being paid to do so. In the case of the show, this would have been two people paying a third person to have sex with them. How is that legal because it’s filmed? Does that mean that anyone can hire a prostitute, but so long as there’s a camera on, it’s okay?

grude February 27, 2012, 5:03am 2

I wondered this exact ssame thing many times, you do know there are actual shown in theater movies like Brown Bunny supposedly containing real sexual intercourse right? So not only that but how is prostitution different from a regular movie where the actors must have sex?

The only asnswer I ever got was that porn is usually produced(the commercial stuff) in very few areas because it is so easy to prosecute as prostitution. So the answer seems to be friendly authorities.

drachillix February 27, 2012, 5:07am 3

I don’t remember where I heard it but it rings true.

Just because you have a 9" cock and can fuck all day does not make you a porn star.

Having a 9" cock and being able to fuck all day under 5000 watts of lights, wearing a pound of makeup, constantly getting bumped, by grips and cameramen, while 20 of your coworkers watch and you make it look like the most amazing sex anyone ever had.

Then you are a porn star.

Most people would have a hard time “performing” in any meaningful way under porn production circumstances. I’m sure that since everyone has contracts and that it will be distrubuted commercially help draw the lines more clearly.

Joey_P February 27, 2012, 5:10am 4

Because (in theory anyways) they’re not being paid for their own enjoyment, they’re (both) being paid to act. Prostitutes are being paid to pleasure their customer and the customer is paying for sex.

ETA, Brown Bunny isn’t really “supposedly” it’s real fellatio and if you want real penetrative (gay) sex in a somewhat mainstream movie, there’s Short Bus. Lots of (real) sex in that movie, but it’s actually a really good movie.

Also, if you google Prostitution vs Porn you’ll get a handful of links that explain it a bit better, but it’s still confusing. I’m sure the devil is in the details because it still seems like there’s ways around it. What if you got both people a SAG card, paid them both and recorded it (but the hooker get’s paid more to cover the john’s payment)…would it then be legal since it’s porn?

colonial February 27, 2012, 5:26am 5

Our Master has fully discussed this topic:

Why aren’t porn actors charged with prostitution?

(Our Master speaks):

Back in the 1980s some law-enforcement types in LA got the bright idea that they could use California’s pandering statute to run pornographers out of town. Instead, they established a legal precedent that enshrined their state as the porn capital of the U.S.

The case in question involves porn producer-director Hal Freeman, auteur of more than 100 full-length classics including the immortal Caught From Behind. In 1983 he made Caught From Behind II: The Sequel, and was charged and convicted under California’s pandering law, which makes it a felony to “[procure] another person for the purpose of prostitution.” But in 1988 his conviction was overturned by the California Supreme Court, which cited precedent establishing that "for [an act] to constitute ‘prostitution,’ the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute" [emphasis added]. The court found that the “payment of acting fees was the only payment involved in the instant case. . . . There is no evidence that [Freeman] paid the acting fees for the purpose of sexual arousal or gratification, his own or the actors’.” Thus, no prostitution. Besides, the court went on, “even if [Freeman’s] conduct could somehow be found to come within the definition of ‘prostitution’ literally, the application of the pandering statute to the hiring of actors to perform in the production of a . . . motion picture would impinge unconstitutionally upon First Amendment values.”…

However prostitution is defined, courts are generally reluctant to restrain pornographers because of the First Amendment complications. A publicity-crazy lawman can always make arrests and even get convictions, but it’s foolish to do so without ironclad statutory language. If a conviction is reversed like Hal Freeman’s was, the result would be counterproductive at best. As it stands, there’s a big sign over California saying “PORN PRODUCTION LEGAL HERE.”

CastleAnthrax February 27, 2012, 5:59am 6

Thank you.

UDS February 27, 2012, 6:18am 7

On that basis, though, if I pay you to appear in a sex film with me, and my purpose is my own sexual arousal or gratification, you are indeed a prostitute and I am a john.

In other words, the scenario envisaged in the OP would involve prosititution. If I pay two other people to have sex with one another while I watch for my gratification, that’s not prostitution. But if I pay someone to have sex with me for my gratification, it is. And it doesn’t cease to be because I have another person film it.

CastleAnthrax February 27, 2012, 6:49am 8

I wonder, though… If the purpose of the OP’s sex acts is to make a movie for their future, err, viewing pleasure, is it then a performance, and thus legal? They may be enjoying it now, but the stated purpose of the encounter is to make the movie.
And The Master’s response talked about people getting arrested for performing sex acts with each other while others paid to watch, so I don’t think that scenario gets you off… the hook.

grude February 27, 2012, 6:58am 9

The most important part of Cecil’s column to me is thus:

Not all jurisdictions define prostitution as narrowly as California does. Next door in Arizona, for example, prostitution law was for years written to prohibit “engaging in or agreeing or offering to engage in sexual conduct with another person under a fee arrangement with that person or any other person” [emphasis added]. In 1990 an Arizona appeals court thus upheld the prostitution conviction of one Laure Taylor, who managed and performed in a peep-show theater visited six times by Phoenix undercover police. These were some diligent coppers. The performers asked them to unzip and masturbate, to show their good faith, as it were, but somehow they managed to keep their weapons holstered while the girls got it on.

Then there’s the case of Tom and Suzi Wahl, a married couple from Lake Saint Louis, Missouri. Not to say they enjoyed the spotlight or anything, but in 1992, the year after they were busted for selling pornographic videos (the raid was later ruled illegal), Suzi applied for the job of police chief, and in 1997 Tom ran for mayor. In 2001 they were arrested and convicted of prostitution by undercover cops attending one of their “educational” sex performances. According to the Missouri statute, “a person commits prostitution if he engages or offers or agrees to engage in sexual conduct with another person in return for something of value to be received by the person or by a third person” [emphasis once again added].

So it sounds like most parts of the USA pornography and maybe even general films along with sex therapists and hell some sex counseling could be prosecuted under prostitution laws. In fact it sounds like it is only California’s unusually narrowly worded law and as stated the reluctance to step on the first amendment that made California a porn mecca. Sounds like if I start up Grude’s Porn Productions INC in Alabama or Texas it would be in very murky legal waters.

CastleAnthrax February 27, 2012, 7:08am 10

Reminds me of this: http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCYQtwIwAA&url=http%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DmvJyA-7PwKM&ei=hCtLT5m1FaiPsQK18OHqCA&usg=AFQjCNF-JXHaRZuGn54OGNZbtDOAscSXag
Very NSFW, or if it IS safe where you work, are they hiring?

UDS February 27, 2012, 7:49am 11

Interesting point.

On the face of it, The definition of prostitution in Freeman’s case is not confined to acts whose purpose is the immediate sexual gratification of the customer/the prostitute. If I pay you to have sex with me so that I can gratify myself by recollecting the encounter later, that may be prostitution even in California.

Besides, the now/later distinction may be a little unreal. It’s likely to gratify me now to know that I am making a film, the viewing of which later will gratify me a second time.

psychonaut February 27, 2012, 8:37am 12

This has got to be one of the board’s all-time most popular questions. Really, do a search; you’ll get at least a dozen threads. Someone even compiled a list of about ten of them as of 2005.

Foggy February 27, 2012, 8:45am 13

Oh, thank you! That was wonderful!

md2000 February 27, 2012, 1:40pm 14

In Canada, for example, prostitution itself is not a crime. Soliciting (offering money for sex) is a crime, if done in a public place. (In one case, the woman had her head in the window of the car… that was ruled a private communication). Also “living off the avails of prostitution” (pimping) and “operating a common bawdy house” are crimes.

GreasyJack February 27, 2012, 5:13pm 15

The thing is that in most parts of the US, prostitution works just fine in the underground economy. Once you get above the streetwalker level, arrests are already incredibly infrequent, especially arrests of johns. Even if you could get away with running a brothel in plain sight by masquerading as a porn studio, it’s probably just not worth the trouble. Especially if you’re in someplace like California where the porn industry has lots of regulations that you’d have to follow. It’s the same reason why the legal Nevada brothels aren’t huge sex travel destinations-- the illegality of prostitution is simply such a non-issue for most of the client base that coming up with some way to make it legal really isn’t as much of an advantage as you might think.