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.
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 –
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 –
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 –
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 –
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 –
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 *pretending[i/] to have sex for money, the law would not apply in such a case.
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.
Never regret what seemed like a good idea at the time.
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.
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.
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.
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.
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: