November 18th, 2004
A friend of mine works in law enforcement. The other day she and I were discussing the recent election, and I mentioned that I voted for a libertarian for the second time ever. (The last time I voted for a libertarian was in 2000, and it was for the same person for the same position. Jocelyn Langlois says that, if elected as Lt. Governor of Washington, she would do one and only one thing: lobby our legislature to abolish the office of Lt. Governor and save the state $40K a year.) From here we segued into a discussion of libertarianism in general and I mentioned that I thought all acts between consenting adults should be legal, including prostitution. “I mean, porn movies are legal,” I said, “and that’s practically the same thing”
“Wait a minute,” I continued, confused. “That’s exactly the same thing. Are all porn movies made in Nevada or The Netherlands or something?”
“I think most of the are made in California,” my friend said.
“How does that work?” said I. “I can’t legally pay someone to have sex with me, but I can pay someone to have sex with someone else? And film it?”
“You can legally pay someone to have sex with you if you film it,” my friend added. “Because, in that instance, you’re not paying them for the sex, you’re paying them for ‘acting.’”
“Totally true,” she said. “We even have a prostitute here in Seattle that we can’t prosecute, because whenever we bring her in she steadfastly insists that men don’t pay her for sex, they pay her for her time.”
Thinking that there must be more to it than that, I did a little research. What I found is that that there is no shortage of loopholes to exploit to avoid getting nailed (so to speak) for prostitution. In general, it’s the solicitation that’s criminalized, not the act itself, which means that exchanging sex for money = legal, while proposing to exchange sex for money = busted. (Although it’s probably more accurate to say that the exchange of sex for money isn’t so much “legal” as it is largely unprocecutable — unless the client says “I am now going to compensate you for the carnal acts we are currently committing” and hands over and wad of cash right in the middle of foolin’ around, proving that the sex and the payment are irrefutably part of the same transaction is very tough.) So a creative pimp, prostitute, or john could concoct all sorts of wacky scenarios to evade arrest, like, “what if I started a bar where some of the drinks on the menu cost $200, but I let it be known that, historically, everyone person who has every ordered one has later had sex with the waitress who brought it to him?”
So one hypothesis floating around on the Internet is that porn movies are not legal, per se, and the whole industry is just one of these wacky scenario writ large. Because the participants in the sex acts receive money from the film’s production company (rather than one of them giving it to another), and because at no point is any actor explicitly asked to engage in (just) sex in return for payment, they do an end-run around so-called “pander laws.”
But as this FAQ make clear, there’s usually a little more to it than that — namely, the First Amendment. And there’s a reason why California is the center of the porn movie universe.
In 1988, a California D.A. decided to call the bluff of a pornographer named Freeman, and rang him up on charges of “procurement of persons for the purpose of prostitution.” After Freeman was found guilty in both superior court and on appeal, the decision was reversed by the state’s Supreme Court. They cited two main reasons for their findings. First, the definition of “pandering” in California criminalizes sex-for-money exchanges “for the purpose of sexual arousal or gratification of the customer or of the prostitute;” but actors in a porn movie aren’t in it for fun, they’re just a bunch of working, uh, stiffs.
[Honestly, I'm not trying to make all these innuendos. But every phrase sounds dirty when discussing porn -- there's just no way around it. I've already written and deleted the phrase "tit-for-tat" twice.]
Secondly, the court ruled that the movies were entitled to First Amendment protection, so long as they were not obscene. Since something can only be deemed officially “obscene” if “taken as a whole, [it] lacks serious literary, artistic, political, or scientific value” — and since even porn movies meet this incredibly low standard — Freeman was adjudged to be in the clear. When the US Supreme Court declined to review the case (thereby letting the lower court’s decision stand), California became the only state to have such a precedent on the books, and soon became a Mecca for the porn industry.
The curious thing about People v. Freeman, to my mind, is that it didn’t actually legalize porn movies, it just declined to declare them illegal. And it didn’t really delineate the distinction between porn and prostitution, either. After all, the First Amendment protections apply to the making of the film, but not to the original solicitation of sex for money. Also, the implication seems to be that if California just removed the phrase “sexual arousal or gratification of the customer” from California’s pandering law, porn films would become verboten.
So here we have an entire industry operating in an enormous legal gray area, with neither side really wanting to press the courts for clarification as to whether the practice is legal or not. It doesn’t make much sense to me. But what do I know? I don’t even understand why we have a Lt. Governor.