prostitution vs XXX films

October 8, 2005 11:02 AM

why is prostitution illigal, yet the porn industry thrives?

whats the difference between a pimp paying his hooker to have sex with a stranger... and a movie producer paying his actor to have sex with a stranger (basically) ???

posted by airnxtz to law & government (15 comments total)

Ummm... Do pimps pay their hookers to have sex? I thought the arrangement was that the hooker is forced to pay her pimp for whatever dubious services he provides.
posted by soiled cowboy at 11:30 AM on October 8, 2005

Defective Yeti explains.
posted by Zed_Lopez at 11:34 AM on October 8, 2005

In the Uk, I believe that the illegality of prostitution is the 'living off immoral earnings', a nebulous phrase which allows various forms of procurement by the pimp to be illegal. However, porn, which is frequenrly defensible under freedom of speech legislation, does not fall under such definitions. Secondarily, I suppose the question of prostitution under duress (cf. the Birmingham massage parlour using Eastern European immigrants) doesn't really apply to porn films.
posted by Hermit at 11:46 AM on October 8, 2005

Prositution isn't technically illegal in most places. Soliciting in a public place is illegal. Pimping is illegal (living from the avails of prostitution (is it legal if you save the money instead of living off it?)), and running a brothel/bawdy house is illegal.

Prositution is A-ok. If you and your friends want to agree on a price list between you and make (or pass around) some extra cash, go for it. Don't want to get a job, but want your spouse to support your shopping addiction? No problem. Just draw up a menu of services. I would avoid making the agreement in a public place, but other than that, it's legal.

Oh, and as for the scenario suggested in the article above where you buy a drink that comes with sex...When the GST was first introduced in Canada, there was a dry cleaner in Ottawa who started selling potatoes (no GST on basic food items), and provided free shirt cleaning with each potato sold. I dont' doubt for a second that they found some way to get him.
posted by duck at 11:51 AM on October 8, 2005

porn is not legal in most places. it is legal in california (there's more than just nice weather that accounts for the popularity of the san fernando valley!) because the act of filming the sex, no matter how much money is involved, makes it a form of creative expression which california law rules is protected by the first amendment to the constitution of the united states of america.

can't speak for other countries.

and prostitution is legal in nevada (except las vegas).
posted by shmegegge at 12:32 PM on October 8, 2005

Pimping is illegal (living from the avails of prostitution)

Given the original question, this makes me wonder if there's a cute loophole where you could effectively pimp 'legally' if you advertise a service where you "Get To Star In A Porn Film.. Only $200!" .. the customer pays the pimp, the pimp deducts his cut and gives the rest to the girl. Have a camera in the room for completeness.. and bam, it's legal?
posted by wackybrit at 12:35 PM on October 8, 2005

Heh heh, after reading Zed's interesting link, it seems they're ahead of me on this one.. :)
posted by wackybrit at 12:36 PM on October 8, 2005

Yeah, but who wants to be filmed with a prostitute...unless you were thinking of adding blackmail to the business model.
posted by furiousxgeorge at 2:18 PM on October 8, 2005

If you and your friends want to agree on a price list between you and make (or pass around) some extra cash, go for it. Don't want to get a job, but want your spouse to support your shopping addiction? No problem. Just draw up a menu of services. I would avoid making the agreement in a public place, but other than that, it's legal.

Making such an agreement may be legal, but such contracts are called "meretricious" and are unenforcable according to US contract law. So if you provide the services and the other party refuses to pay up (or vica versa), you're screwed in more ways than one.
posted by equipoise at 3:57 PM on October 8, 2005

porn is not legal in most place

Most places where? Porn is legal in various municipalities, counties, parishes, states, and provinces all over North America.
posted by Mo Nickels at 4:04 PM on October 8, 2005

mo nickels, I'm referring to making porn, no buying selling or watching it. sorry for the confusion.
posted by shmegegge at 8:26 PM on October 8, 2005

The porn industry pays taxes. "Freelance" sex workers do not.
posted by spiderskull at 9:54 PM on October 8, 2005

airnxtz, the critical case on this question was People v. Freeman (1988), in which the California Supreme Court ruled that an adult video producer did not violate pandering laws. It was upheld by the US Supreme Court (in technical terms, they declined cert, i.e. said there was no federal legal question). The basic argument is that prostitutes are paid to have sex with their clients, while adult film actors are paid to have sex with each other. Under Miller adult films are not "obscene", and under decriminalization, it was unconstitutional in California to prosecute based on private acts of "copulation or sodomy".

It remains the case that adult film actors and producers are brought up on charges -- a zealous prosecutor in the San Fernando valley did so as recently as 2000 -- but they are often stuck with misdemeanor offenses such as "public nuisance", which fails as a deterrent.

Outside of California, the laws are a little murkier -- after all there are still states which prosecute private sex acts such as sodomy. Additionally, more federal prosecutions -- at least of materials deemed "obscene" under dubious local Miller standards -- are in the wings, particularly the in-progress Extreme Associates case.
posted by dhartung at 10:49 PM on October 8, 2005

It's a fine distinction, but I would say that in prostitution one receives pay from a client for sexual services, while in porn one receives pay from a third party for allowing one's sexual acts to be filmed.
posted by orange swan at 9:26 AM on October 9, 2005

after all there are still states which prosecute private sex acts such as sodomy

Like where? This 2003 Supreme Court decision would seem to have put an end to that.
posted by Zed_Lopez at 12:33 PM on October 13, 2005