The Legal Line between Porn and Prostitution
Highlights of long article September 15, 2005
(FindLaw) -- Jenny Paulino stands accused of running a prostitution ring on the
Upper East Side of Manhattan. Among other defense arguments, Paulino moved to
dismiss the case on Equal Protection grounds. She claimed that the Manhattan
District Attorney's office selectively targets "escort services" for
prosecution, while ignoring distributors of adult films, who are engaged in what
is essentially the same activity. Justice Budd G. Goodman recently issued a
ruling rejecting Paulino's claim, on the ground that pornography does not
qualify as prostitution under the relevant New York statute.
What is prostitution legally?
Most of us typically think of prostitution as involving a customer who pays a
prostitute for providing sexual services. We intuit that pornography, by
contrast, involves a customer paying an actor for providing sexual services to
another actor. In other words, prostitution is generally understood as the
bilateral trading of sex for money, while 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. In keeping with this distinction,
notes Justice Goodman, "the pornographic motion picture industry has flourished
without prosecution since its infancy."
Distinctions
Most distributors of pornography would express shock at the prospect of being
prosecuted for promoting prostitution. Under Miller v. California, as long as a
work, taken as a whole, has "serious literary, artistic, political, or
scientific value," the First Amendment protects its distribution. Given this
legal principle, how could pornography be criminal, in the way that prostitution
is?
Who is paying whom?
When pornography is correctly understood as involving real sex, the question in
comparing pornography to prostitution becomes whether who is paying whom matters
(or should matter) to the law. That is, should it make a difference whether
Jason pays June to have sex with Jason or whether, instead, Filmore (the
filmmaker) pays June to have sex with Jason? If these two scenarios seem
functionally equivalent, then there may be something seriously wrong with our
laws.
Why court protects adult movies
It's almost certain that on its current precedents, the U.S. Supreme Court would
hold that garden-variety pornographic actors are indeed engaged in
First-Amendment-protected activity, so long as obscenity is not involved. Odd as
it may seem, what appears finally to make all of the difference is the mode of
gratification for the person who is paying but not himself seeking money.
Because the impact of pornography occurs through the mediation of an audience
witnessing a performance, rather than an audience receiving physical services
from a performer, pornography and its making qualify as First-Amendment
protected speech.
Does this make sense? Consider again the significance of the sexual act: legal
consequences can follow from it and it can, accordingly, be regulated by the law
in a variety of ways. Though two people may very much want to have sex with each
other in private, the law can intervene to say that they cannot, just because
one of them seeks money and the other gratification, for example. If, however,
both members of the couple are in it for the money, and there is a man with a
camera taping them, then the sex is insulated by the Constitution from legal
regulation. That is in fact the law, but Jenny Paulino can hardly be faulted for
calling it arbitrary.
Much longer full article at
http://edition.cnn.com/2005/LAW/08/12/colb.pornography/
California is the only state with case law (People v. Freeman) that tends to
support porn movies not being subject to prostitution related charges such as
pandering against the producer. But it rests only on the fine line, that it was
not obscene. There is no other case precedent protection in other states
although the case is helpful even if not setting a precedent in other states.
Stevi Secret was successful in Las Vegas, where a judge tossed out a botched
case of pandering and the Freeman case was cited but it never went to court to
be fully tested in Nevada. See her interesting extensive report on her 1995
fight of pandering charges and what the police tried to do to her is at http://www.stevisecret.com/library/sample/1095vx.htm
California is the only place that has strong case law in the Freeman case, yet
it leaves wide open the opportunity for a prosecutor to try and attack a porn
film on obscenity charges. There is no clear definition of what obscenity is -
it is based on local "community standards." Also more conservative states may
not follow the Freeman case. While other cases in other states have referred to
it, it is not a precedent in any other state, nor is Stevi's Las Vegas
experience, since fortunately a judge tossed the case, but there was no trial or
decision to establish a precedent.
In the Freeman Case, the California Supreme Court reversed the pandering
conviction of a film producer who paid actors to copulate on screen. The
defendant in Freeman was not charged with obscenity. The court observed that
"the self-evident purpose of the prosecuting authority in bringing ... charges
[of pandering] was to prevent profiteering in pornography without the necessity
of proving obscenity." The court concluded (1) that the state must prove the
film lacked First Amendment protection in order to punish the defendant for
producing it; (2) that the state could only establish that the film lacked First
Amendment protection by proving it obscene; and (3) that this film had not been
proved--and thus could not be assumed--obscene.
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."
The Court said; "State has legitimate interests in regulating prostitution
unrelated to suppressing free speech; supporting rationales include preventing
communicable disease, preventing sexual exploitation, and reducing assorted
criminal misconduct that tends to cluster with prostitution. U.S.C.A.
Const.Amend. 1. " Remember there was no physical contact - there was glass
window between the customer and performer !
A few years ago there was a "video studio" trying to have customer be filmed
with "actors" for private porn videos. They were charged with prostitution and
closed down. I do not know the case outcome, but I bet they were all convicted
as we have VERY conservative judges in Phoenix. We even have a law making it
illegal to "massage to arose". And the State tried to make it illegal to have an
erection in a bar. That proved to be too much of a joke in the media about how
one would enforce such a law! But the religious morality police are very much in
control in Phoenix and Arizona, as they are in other conservative states. That
could make the making of porn movies risky - and costly to appeal a case you do
not know if you would win in a conservative jurisdiction.
Therefore, it seems only legally safe, but not absolutely safe (the obscenity
issue) to do porn films in California.
See Stevi Secrets good comments and points of disagreement with my views.
Here is the complete text of the Arizona Court of Appeals Decision upholding the
prostitution related charges:
Court of Appeals of Arizona,
Division 1, Department D.
STATE of Arizona, Appellee,
v.
Laure TAYLOR, Appellant.
No. 1 CA-CR 88-927.
Nov. 6, 1990.
Lower Court Convicted finding:
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." A.R.S. § 13-3211, subds. 5, 8, 9.
State has legitimate interests in regulating prostitution unrelated to
suppressing free speech; supporting rationales include preventing communicable
disease, preventing sexual exploitation, and reducing assorted criminal
misconduct that tends to cluster with prostitution. U.S.C.A. Const.Amend. 1.
State could prosecute for prostitution a woman who, in the setting of a sexual
theater, performed sexual acts upon other women for the gratification of
customers who paid to watch, without having to prove obscenity; the customers
were only distanced by glass from the defendant and the other women, the sex
show facilitated and explicitly encouraged masturbation, and the show was not a
public performance of a potentially sexually arousing type, but a semiprivate
performance with an explicitly masturbatory end.
The Appeals Issue:
May the state secure prostitution convictions and avoid the burden of proving
obscenity against women who, in the setting of a sex show theatre, perform
sexual acts upon each other for the gratification of customers who pay to watch?
That is the central question of this case. Defendant claims on appeal that,
because the acts were in the nature of theatrical performance, the state was
obliged to prove obscenity to establish that they lacked protection of the First
Amendment. The state responds that, whatever their expressive content, these
were acts of prostitution as Arizona defines that crime and that no proof of
obscenity was required.
The most interesting facts
The Ellwest Stereo Theatre in Phoenix, Arizona, is described by defendant's
counsel as a place that "caters to the sexual fantasies of the desperate." The
case against defendant was compiled by undercover police officers of the City of
Phoenix who visited the Ellwest on six occasions and paid to watch performances
by defendant Taylor and several codefendants.
Defendant was tried before a court sitting without a jury and convicted of four
prostitution-related crimes. Defendant was convicted of one count of
prostitution, a class 1 misdemeanor. As a manager of the Ellwest, defendant was
also convicted of one count of operating or maintaining a house of prostitution
and two counts of pandering, all class 5 felonies.
The defendant, however, emphasizes theatrical freedom of expression and argues
that, to prove her conduct unprotected by the First Amendment, the state must
first prove it obscene. Defendant acknowledges that the law may place some
boundary on erotic performance. Yet she argues that proof of obscenity is the
constitutionally indispensable route to establish that a sexually explicit
theatrical performance has exceeded First Amendment bounds.
Defendant rests this argument principally on People v. Freeman, 46 Cal.3d 419,
758 P.2d 1128, 250 Cal.Rptr. 598 (1988), cert. denied, 489 U.S. 1017, 109 S.Ct.
1133, 103 L.Ed.2d 194 (1989). There the California Supreme Court reversed the
pandering conviction of a film producer who paid actors to copulate on screen.
The defendant in Freeman was not charged with obscenity; nor did a jury find
that his production was obscene. The court observed that "the self-evident
purpose of the prosecuting authority in bringing ... charges [of pandering] was
to prevent profiteering in pornography without the necessity of proving
obscenity." The court concluded (1) that the state must prove the film lacked
First Amendment protection in order to punish the defendant for producing it;
(2) that the state could only establish that the film lacked First Amendment
protection by proving it obscene; and (3) that this film had not been
proved--and thus could not be assumed--obscene.
Freeman is considerably different from this case. The court there interpreted
California's prostitution statute to require payment for the purpose of sexual
arousal or gratification. The court found no evidence that the defendant paid
the actors to perform for his sexual gratification, their own, or that of other
persons present. To the contrary, the actors were paid for performing in a film.
While the film might ultimately have induced sexual arousal or gratification in
the hands of remote consumers, the performers were separated from such consumers
by time and the distancing medium of film. Any question of illegal sexual
arousal or gratification thus required a judgment concerning the nature of the
film--a judgment indistinguishable from the question of obscenity.
Yet the Freeman court approved as "fundamentally distinguishable" an earlier
case in which a prostitution-related conviction had been upheld without proof of
obscenity where "members of the 'theater' audience [paid] for sexual conduct
with the 'actors' hired by the theater owner for that purpose." describing
People v. Maita, 157 Cal.App.3d 309, 203 Cal.Rptr. 685 (1984). In the stage show
considered in Maita, the performer stripped and fondled herself before a paying
audience, then let members of the audience suck her breasts and perform
cunnilingus if they chose. Finally, a male volunteer was selected from the
audience for fellatio on stage and, on at least one occasion, for intercourse
offstage. The defendant owner-manager was convicted of pimping, pandering,
keeping a house of ill fame, and keeping a house used for prostitution.
The California Court of Appeal acknowledged that "theatrical performances have,
in recent years, been afforded broad First Amendment protection," and further
acknowledged that the state's unquestioned authority to prosecute under the
pimping and pandering laws presents an incidental restriction on appellant's
First Amendment freedoms. However, that restriction is no greater than is
essential to further the substantial government interest in controlling
prostitution. After all, the pimping and pandering laws do not prohibit the
presentation of live nude entertainment--they merely direct that the entertainer
cannot have sexual relations with the audience.
This case lies somewhere between Freeman and Maita, but considerably closer to
the latter in our view. There was no film here as in Freeman to distance the
observer temporally and physically from the performers; here the customer was
temporally present, distanced only by the intervening glass. In Freeman the film
was the commercial product, an inescapable subject of obscenity analysis. Here
the commercial product was a live sex show in a setting that facilitated and
explicitly encouraged masturbation.
This case resembles Maita in the presence of the consumer. It is more difficult
than Maita, however, because the shows were enacted for the customer as voyeur.
There are few definitional difficulties in a law that prohibits charging the
customers to have sex with the actors. Voyeurism, however, unlike participatory
sex, is a common element of theatre, and eros is an element of human nature that
theatrical producers, performers, and patrons are constitutionally at liberty to
explore. Thus, there are obvious definitional and constitutional difficulties in
a law that prohibits charging a customer to watch what might be an erotic or a
sexually arousing show. Those difficulties, however, are only theoretically, not
practically, presented by this case. Two points here persuade us that this
prosecution was constitutionally sound. First, the show was not a public
performance of a potentially sexually arousing type, but a semi-private
performance with an explicitly masturbatory end. Second, as we have previously
indicated, had a customer paid to watch defendant and another woman act
identically in a private motel room, the application of A.R.S. § 13-3211(5)
would be clear; that statute defines prostitution as "engaging ... in sexual
conduct with another person under a fee arrangement with that person or any
other person." The United States Supreme Court has stated:
We recognize that A.R.S. § 13-3211(5) is broadly written and might be literally
applied to sexual contact of a nature that the theatre is constitutionally
entitled to present. The defendant, however, has not briefed the issue as one of
overbreadth. Moreover, although courts have occasionally considered a First
Amendment statutory challenge by a litigant whose "conduct ... is not
constitutionally protected and clearly falls within the statute's legitimate
scope," this exception to normal standing requirements is reserved for instances
of "realistic danger that the statute will significantly jeopardize recognized
first amendment protections of individuals not before the court." We find no
such realistic danger in this case and, therefore, leave overbreadth analysis
for the case, if it ever arises, where prosecutorial discretion under A.R.S. §
13-3211(5) is abused.
CONCLUSION
We conclude that defendant's conduct was legitimately prosecuted under Arizona's
prostitution statutes, that her prosecution and conviction satisfy O'Brien
analysis, and that, on the facts of this case, proof of obscenity was not
required. The judgment and sentence of the trial court are affirmed.
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Dave notes: What is really scary is if you recall back up in 2nd paragraph
above:
State has legitimate interests in regulating prostitution unrelated to
suppressing free speech; supporting rationales include preventing communicable
disease (from behind a glass partition?) , preventing sexual exploitation ( for
the dancer making money?) and reducing assorted criminal misconduct that tends
to cluster with prostitution (yep but just about only in the good old USA is
this conduct criminal unlike most of the rest of the world when done in private
with consenting adults). U.S.C.A. Const.Amend. 1.