Criminal Defense

If prostitution is illegal, why is porn legal? If I pay a woman to have sex with me, I get arrested, but if I pay her to have sex with me while I record it, it’s perfectly legal? What? (Note: That statement is exaggerated and there was actually a “film studio” that did this sort of thing that got busted for it, but you get the GENERAL idea). Needless to say, this question piqued my interest and so I tried to do a little research on the field. As a reference, my major reading source is this article on CNN Porn vs Prostitution which did a great job of anticipating my questions and attempting to answer them as it went.

First, define the terms! Pornography:Pornography involves the customer of an adult film paying money to watch other people have sex with each other, while receiving no sexual favors himself in return. Prostitution: Prostitution is generally understood as the bilateral trading of sex for money. However, these simple definitions will prove to have some significant flaws which we will encounter as we progress.

First, looking in the state of New York, a prostitute is defined as someone “who engages or agrees or offers to engage in sexual conduct with another person in return for a fee.” Now I don’t know if anyone sees anything wrong with this, but… isn’t a porn star paid to engage in sexual conduct with another person in return for a fee?

Using this rational, aren’t porn actors just prostitutes on film? So looking at it in that light, it should be really easy to convict porn actors because they’ve compiled all of the necessary evidence to convict them on prostitution charges.

This leads to the next part of the answer. Who is paying whom? In prostitution, Person A pays Person B to have sex with A. In pornography, Person A pays Person B to have sex with Person C. If you’re like me, you’re probably saying right now “wait a minute! So I can just have my friends pay for my prostitutes and then I’m set? Success!” Wrong.

The CNN article seems to sort of tackle this part of the question but what seems to be the rational here is that both parties involved in the sexual act have to be in it for the money. With a pornographic film, both sexual partners are being paid to perform in front of the camera. The “customer” is the viewership who gets the pleasure from watching these participants have sex. Because of this, pornography is protected because the actors involved are being paid for their performance, and so, they’re protected for their freedom of speech.

Prostitution doesn’t have this fortune. In that case, the act is now being performed for one of the participants, who is receiving direct pleasure from the act.

This brings up a few questions for me though.

Say uncle Bob takes his nephew Jimmy to a prostitute Chastity, and pays Chastity to have sex with Jimmy. However, he pays Jimmy for the act too and then Bob tapes it. Now Jimmy is enjoying the act AND being paid for it, and uncle Bob is recording it, so is it now pornography or is it still prostitution? Furthermore, I found a case described as follows:

“In Arizona there is a bad case that does not involve making porn but private booth dancers, behind glass who fondled each other – who were convicted of prostitution along with owner convicted of felonies for pandering etc. Here the Appeals court upheld the conviction. No contact occurred between dancer and customer.

The AZ case discusses the Freeman Case from California but found “A defendant’s engaging in the fondling of another woman’s breasts under a fee arrangement whereby undercover police detectives paid to watch the defendant and the other woman constituted “prostitution.”"

In this case, the person paying is no longer part of the sexual act and is instead, simply getting a “live showing” of the porn he would have otherwise watched. Yet in this case, it’s illegal?

Basically, it sounds like there’s no black and white between porn and prostitution, and it’s especially challenging to come to a standard view since it likely varies from state to state. Just thought it was interesting stuff! What do you guys think?