Tuesday, January 05, 2010

Prostitution Question

Is there anyone with knowledge of the law who can tell my why existing prostitution statues cannot be brought to bear against the pornography industry? After all, do not the actors in these films essentially have sex for money? If they weren't getting paid (presumably) they wouldn't be doing it. Why can't we take laws that prohibit the sale of sexual services and use them against pornography producers? I am assuming the distinction lies in the fact that with a prostitute one is paying for sexual services directly whereas with pornography an actor is not paid for sex per se but for the video recording/photos of the sexual activity? Still, I think this is a tenuous distinction because obviously, even if the focus of the transaction is on the video and not the sex itself, there would be no transaction is the video did not contain sex, which is of course the whole point of pornography.

Any insight on this from a legal standpoint?

4 comments:

Alex said...

I'm not sure from the legal standpoint what all the relevant differences would be; however, it seems to me that it all goes back to the test set forth in Miller v. California where there are 1st Amendment protections which protect the "artistic" value so long as the obscenity does not venture into "unprotected" speech as held by the local community standard. I'm guessing that they would view the film as an artistic expression meant for entertainment. What is really odd is that one of the prevailing arguments against legalizing prostitution is that it would directly influence and increase the sex slave trade…as if that is not already happening with legalized porn. Protecting men, women, and children will continue to be a difficult task so long as there is this massively disordered view of human sexuality.

hilaron said...

I just have to say I had the same idea just the other day. Very interesting to see that my ideas maybe aren't so original after all. :)

Greetings from Sweden,
David

Han said...

Even if one leaves out the 1st Amendment, there are other, more practical, problems with trying to proscute pornographers using prostitution law. First, one would have to look to see if the prostitute and the john are both covered under the same criminal stuatue. For example, in Colorado at least, one commits prostitution only when one receives a thing of value for any number of statutorily-defined sexual acts. Prositution in Colorado is a Class 3 Misdemeanor that carries up to a mere 6 months jail, or up to a $750 fine, or both. If one is the john, one commits patronizing a prostitute, which is a Class 1 Petty offense, which carries the same penalties, but the max fine is only $500. Soliciting and Pandering (arranging for a person or place, respectively) are also only misdemeanors. Thus, what we have here is a situation where is is not really worth the effort to try to creatively use a statue to go after pornographers, because one would be unable to get any worthwhile sentence even if the pornagrapher were convicted.

I write "worth the effort" because it raises the practical question of how one is going to prove the charge. Obviously, the guy producing the porn is not going to be on camera. How then will one be able to prove, beyond a reasonable doubt, that he actually gave money to the porn star in exchange for performing the sexual act? Even if all these people keep good records (for tax purposes), what can the prosecutor say if the defense is "these people just came to me with a video asking for a cut of the profits if I would distribute it for them." Can one even prove that prostitution took place, as opposed to some act of recorded sex that someone later tried to profit from? The prosecutor certainly wouldn't be able to get the distributor on soliciting or pandering. Furthermore, where will one get the witnesses to testify to the activities of the porn producer, or even to authenticate the video to get it admitted into evidence? The "actress" is unlikely to be a cooperative witness. Unlike normal prostitution prosecution, the police cannot do an undercover sting (which are more for the purpose of drug interdiction rather than getting prostitutes off of Craigslist).

Finally, there is the problem of jursidiction and venue. If one wants to prosecute a pornographer under a theory of pandering or soliciting a prostitute, one needs to know where the actus reus occurred. If one is really lucky, some agreement was reached over the phone, so one might have two possible places with jurisdiction, but otherwise, one would have to track down where the filming took place. Then one would have to know with some specificity when the act took place. Then one would have to hope that the statute of limitations has not yet run (which could be very problematic since one would not know that the act occurred until after one gets ahold of the video). Misdemeanors typically have a pretty short statute of limitations (18 months in Colorado), so by the time one tracks down all the necessary information, the statute of limitations could very well have run.

In short, you put forth an interesting idea, but it is not a practical way to crack down on pornography.

Phil Onochie said...

Blanketed free speech will be the ruin of us all. Why is it free speech let the KKK exist or the Black Panthers for that reason?