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.