What's the legal difference....

[MiamiLooker]

What's the legal difference between (so-called) pornography, both film and print, and prostitution? The actors in porn movies are obviously getting paid for sex.

[Guest JustANametoPlay]

Nope, the actors in these movies are being paid to ACT in a FILM in which their CHARACTERS have sex. Films, as well as magazines have a whole 1st amendment argument thing going for them and argue that they are art.

 

Now, escorts don't have that same luxury. That is some escorts that ahve web sites etc alwyas make it clear that you are paying for their time, and anything else that happens is soley between two consenting adults etc.

 

In order to be stooped, a film/magazine must be shown to be legally obscene. That is defined at "a desrciption or depiction of sexual conduct that, taken as a whole, by the average person, applying contempororary community standards: (i) appeals to the purient interst in sex; (ii) portrays sex in a patentley offensive way; and (iii) using a reasonable person standard, rather than a contemporary communitys tandard, does not have serious literary, artistic, political, or scientific value." Miller v. CA, 413 U.S. 15 (1973).

 

The Federal Courts are generally hesitant to label something obscene because as you can see from the above requirements, ity is not easy to find something that doesn't meet one of the requirements. It is why Justice Potter (lord I think it was Potter) made the famous comment "I can't define obscene but I know it when I see it."

 

OK, my head hurts now from having to remember my Con Law from law school, so now I have to go have a drink! ;-)

[Justice]

About 20 years ago, I saw a piece on the Playboy channel that alleged that the producer of a straight porn flick was charged with a number of prostitution related offenses by an overzealous prosecutor in Los Angeles. I don't remember the outcome of the case, but I remember thinking that the case raised a number of first ammendment issues.

[Guest pickwick]

LAST EDITED ON Apr-22-01 AT 10:08PM (EST)[p]The correct answer is that there may not be any difference, depending on the statute prohibiting prostitution that applies in a given jurisdiction. It's entirely possible that a transaction in which two people are paid to have sex with each other so that they can be filmed could be covered by the statute, and thus constitute an act of prostitution. It just depends on the wording of the statute. If such a transaction is covered, it would be a crime and would not be affected by the First Amendment. The First Amendment doesn't allow people to commit a crime and escape prosecution by claiming that the criminal act is part of a work of art. To give another example, one can't beat or kill someone for the purpose of making a film and claim that such acts are a form of "expression" protected by the Constitution.

[Guest blankman]

Pickwick, that makes a lot of sense to me.

 

Before you wrote that, I was thinking that, given that we have "performance art" nowadays, who's to say that if you engage an escort to have sex with you that you aren't paying the escort to perform in a performance art piece in which the two of you have sex for an audience consisting of just the two of you? That might count as "art" on somebody's definition. An argument might be made?

 

Maybe I should have been a lawyer?

[Guest trekker]

Well, you might be able to make that argument, but do you think you could get a jury to buy it?

[Guest pickwick]

>who's

>to say that if you

>engage an escort to have

>sex with you that you

>aren't paying the escort to

>perform in a performance art

>piece in which the two

>of you have sex for

>an audience consisting of just

>the two of you?

>That might count as "art"

>on somebody's definition. An

>argument might be made?

 

Not a chance. None, zero, zip, nada, niente, bupkes, zilch. N-O-N-E.

[Guest blankman]

Right, I wasn't really serious, it just seemed like logically speaking if art is exempt then the problem is defining art. And I wasn't thinking of a jury, but only a judge called upon to interpret the law. Oh well, none of it really makes any sense anyway.

[+ deej]

>> depends on jurisidiction

 

That's exactly right, and it's why some porn distributors will not ship to some states, or shoot a film in some locations. In fact, NO gay porn is shot in LA because it is illegal to do so. They shoot everywhere *around* LA, but never *in* the county itself. Ironic, eh? ;-) (Actually, I think they can shoot oral-only scenes, if I remember the discussion right. Just no anal.)

[RM]

Is that the city of Los Angeles or Los Angeles county? Los Angeles is a big city, but a very big county. I thought there were film companies located in nearby cities.

[Guest]

>LAST EDITED ON Apr-22-01

>AT 10:08 PM (EST)

>

>The correct answer is that there

>may not be any difference,

>depending on the statute prohibiting

>prostitution that applies in a

>given jurisdiction. It's entirely

>possible that a transaction in

>which two people are paid

>to have sex with each

>other so that they can

>be filmed could be covered

>by the statute, and thus

>constitute an act of prostitution.

> It just depends on

>the wording of the statute.

> If such a transaction

>is covered, it would be

>a crime and would not

>be affected by the First

>Amendment. The First Amendment

>doesn't allow people to commit

>a crime and escape prosecution

>by claiming that the criminal

>act is part of a

>work of art. To

>give another example, one can't

>beat or kill someone for

>the purpose of making a

>film and claim that such

>acts are a form of

>"expression" protected by the Constitution.

 

 

I see an important difference there, though. In the case of the sex scene, both of the participants in the scene are clearly actors. If one were to film the killing or beating of another person, the person getting killed or beaten would not be an actor. Unless, of course, he was pretending to be killed or beaten, in which case he would be an actor, and the filming would be legal.

[Guest]

>>> depends on jurisidiction

>

>That's exactly right, and it's why

>some porn distributors will not

>ship to some states, or

>shoot a film in some

>locations. In fact, NO gay

>porn is shot in LA

>because it is illegal to

>do so. They shoot everywhere

>*around* LA, but never *in*

>the county itself. Ironic, eh?

>;-) (Actually, I think they

>can shoot oral-only scenes, if

>I remember the discussion right.

>Just no anal.)

 

Hmmm. I definitely recognize scenes in porn videos which are in Los Angeles County. And I think some are in the city as well. There's a good reason that the San Fernando Valley (which is part of the city of Los Angeles) is considered the porn capital of the world...

[Guest pickwick]

>>LAST EDITED ON Apr-22-01

>>AT 10:08 PM (EST)

 

>I see an important difference there,

>though. In the case

>of the sex scene, both

>of the participants in the

>scene are clearly actors.

>If one were to film

>the killing or beating of

>another person, the person getting

>killed or beaten would not

>be an actor.

 

No. The fact that a person is an actor does not make him exempt from a statute that prohibits the payment of money for sexual activity. If the statute applies to a situation in one person pays two other persons to have sex with each other, the fact that the persons having sex are actors doing so for the purpose of making a film makes no difference.

[Guest JustANametoPlay]

Which is why porn actors are hired to act in a film, in which it just so happens that the characters have sex. The sex is a part of the story of the film. And we allknow how wonderfully devloped the story lines in porn movies are!

[Guest]

>>>LAST EDITED ON Apr-22-01

>>>AT 10:08 PM (EST)

>

>>I see an important difference there,

>>though. In the case

>>of the sex scene, both

>>of the participants in the

>>scene are clearly actors.

>>If one were to film

>>the killing or beating of

>>another person, the person getting

>>killed or beaten would not

>>be an actor.

>

>No. The fact that a

>person is an actor does

>not make him exempt from

>a statute that prohibits the

>payment of money for sexual

>activity. If the statute

>applies to a situation in

>one person pays two other

>persons to have sex with

>each other, the fact that

>the persons having sex are

>actors doing so for the

>purpose of making a film

>makes no difference.

 

I'm not a lawyer, but it obviously makes some difference. There are tons of mainstream and not so mainstream video and film productions in which actors engage in sexual activity. Those involved are not getting arrested. So it must be legal at least in some communities (granted, if it were filmed in a state where gay sex were illegal, people would be getting arrested). It's not illegal to act nor to have gay sex, at least where these films and videos are being made. The actors are being paid to act, some of which involves sex. Murder and battery, on the other hand, are illegal everywhere.

[Guest Ellipse]

That would be Potter Stewart. I don't remember if he was referring to Miller v. CA or an earlier obscenity case, though. Hello to all, by the way, this is my first post.

[Guest JustANametoPlay]

Yes Stewart! I couldn't remember if it was Potter Stewart or Harry Potter ;-)

[Guest pickwick]

>

>I'm not a lawyer, but it

>obviously makes some difference.

>There are tons of mainstream

>and not so mainstream video

>and film productions in which

>actors engage in sexual activity.

> Those involved are not

>getting arrested. So it

>must be legal at least

>in some communities (granted, if

>it were filmed in a

>state where gay sex were

>illegal, people would be getting

>arrested). It's not illegal

>to act nor to have

>gay sex, at least where

>these films and videos are

>being made. The actors

>are being paid to act,

>some of which involves sex.

> Murder and battery, on

>the other hand, are illegal

>everywhere.

 

Read my first post in this thread. In a jurisdiction in which a statute prohibiting prostitution defines the crime so as to include A paying B and C to have sex with each other, the fact that A wants to film B and C while they do it does not create a First Amendment exception to the statute. Got it?

[Guest CZ]

All the hair-splitting & semantic contortions cited in the above merely go to show the inappropriateness (& ultimate futility) of trying to legislate 'morality' in such areas of essentially private behavior as having, reading about, or looking at sex. The useless guidelines produced by Miller vs. CA are an especially laughable example of what happens when the tenets of organized religion are misapplied to civic policy. In the end, all these attempted strictures fall victim to their own illogic.

 

Richard Posner's 'Sex and Reason' deals with the topic in a strikingly sane and novel way. Some might say the book is all the more extraordinary in that Posner is clearly a jurist of conservative sympathies. Recommended reading!

[Guest JustANametoPlay]

Pick I have to disagree with you. Solicitation laws in most juridictions are very specific, and there has been porn shot in almost every part of this country. I stand by my original comment that in general that porn falls into the obscenity category and not solicitation laws because there is no payment for sex involved (yes this done with a nod and a wink but legally for the most part it hold up).

 

The distinction when dealing with sex vs other acts and the reason the 1st amendment doesn't hold up with them is that the act of sex in and of itself is generally not illegal (although certain types of sex acts such as sodomy are illegal in some areas). Therefore, the "characters" in a film are doing a legal act. This would not apply when paying actors to do an illgal act such as murder, rape, burglary, doing drugs, etc. Those acts are alone illegal and therefore the 1st amendment right would be outweighed.

[Guest pickwick]

LAST EDITED ON Apr-25-01 AT 03:55PM (EST)[p]>Pick I have to disagree with

>you. Solicitation laws in

>most juridictions are very specific,

>and there has been porn

>shot in almost every part

>of this country. I

>stand by my original comment

>that in general that porn

>falls into the obscenity category

>and not solicitation laws because

>there is no payment for

>sex involved (yes this done

>with a nod and a

>wink but legally for the

>most part it hold up).

>

 

If you have any authority for that position I'd be interested to hear about it. I recently had occasion to look at the Florida law on prostitution, which if I'm not mistaken is under Chapter 796 of the 2000 Florida Statutes. Its definition of prostitution is quite broad enough to include a situation in which A hires B and C to have sex with each other so that A can film them. I know of no statute or case law that would prevent a prosecutor from applying that statute to the situation we're discussing. Do you?

[Guest JustANametoPlay]

I don't disagree with your statement that statutes are broad enough to encompass a third party hiring two people to have sex and filming it. My point is that that is NOT what porn actors are being hired to do. They are being paid to act in a film in which it just so happens their characters have sex with someone. They are being paid to act, not to have sex. Yes, a fine line, and yes we all know it's a farce, but it works none the less. It is the same type of farce as when an escort puts in their info "the payment is for time not for anything else, and anything that happens between to consenting adults is purely outside the payment."

 

Yes, a prosecutor could try to argue otherwise. And actually, I think there have been one or two cases in which it was attempted but failed. Courts are very hesitant to draw a line as to what is "art" and what is not. Once the line is drawn, it becomes easier and easier to bring that line in. At some point you could even have "credible" hollywood studios charged.

 

Again, yes the statute is broad enough to cover it, but IMHO I doubt it would hold up, and my authority for that is that we don't have prosecutors out there trying to use it because they know what the probably outcome is. This is not to say a prosecutor can't and won't try this route, and who knows, theymight even win. But for now, as distatasteful as the moral majority may find it, pornos are fo rthe most part given latitude and that is because the defense of porn has always been based in 1st Amend arguments.

[Guest pickwick]

LAST EDITED ON Apr-25-01 AT 10:30PM (EST)[p]>I don't disagree with your statement

>that statutes are broad enough

>to encompass a third party

>hiring two people to have

>sex and filming it.

>My point is that that

>is NOT what porn actors

>are being hired to do.

> They are being paid

>to act in a film

>in which it just so

>happens their characters have sex

>with someone. They are

>being paid to act, not

>to have sex.

 

The statute I cited provides a very specific description of the physical acts that constitute prostitution if performed for hire. I don't see any language in the statute to suggest that it doesn't apply when those acts are performed by professional actors who are pretending to be someone else. If it was established that any of those acts was performed, the only remaining question would be whether that act was what the persons involved were hired to do. That's a question of fact, not a question of law. Penetration is one of the acts covered. Given the fact that most gay porn films are full of closeups of the act of penetration itself, and given the fact that considerable staging and preparation are necessary to get that on film, I think it would be very easy to establish what the director intended the actors to do.

 

>Again, yes the statute is broad

>enough to cover it, but

>IMHO I doubt it would

>hold up, and my authority

>for that is that we

>don't have prosecutors out there

>trying to use it because

>they know what the probably

>outcome is.

 

I don't know about every prosecution ever brought under the Florida statute I cited, let alone under similar statutes in the other 49 states. Do you? I have no reason to think it hasn't been done and couldn't be done again.

 

Miamilooker's question was about the legal difference between two situations. The correct answer is the one I gave in my first post.

[Guest trekker]

OK, guys, let me overload your circuits for a bit.

 

Let's say that 2 actors are hired to make a mainstream movie. Just so we can keep track, let's call one of them Tom and the other one Nick. Now this is a mainstream dramatic movie, but like any movie that wants to make money these days, it has to have an R rating. That's OK, because the script calls for Tom and Nick to do some hot sex scenes. And the producer/director, let's call him Stan, is into realism in a big way, so he wants nothing left to the imagination in those hot scenes. So they film it that way. Now, of course, Stan is paying Tom and Nick to act in the movie. And let's say that the definition of prostitution is broad enough to include paying 2 people to have sex with each other if the prosecutor wants to stretch it that way. Is Stan liable for a charge of solicitation/prostitution? Are Tom and Nick? True, they are getting paid for acting, but, after all, the acting involves engaging in sex acts, so aren't they getting paid for engaging in sex acts?

 

Now let's suppose that Tom is Tom Cruise, and Nick is Nicole Kidman, and Stan is Stanley Kubrick, and the movie is Eyes Wide Shut. *Does* that make a difference in the real world? (Yes.) *Should* it make a difference? (No.) Will there be a charge of solicitation/prostitution arising from it? (No.) And please don't tell me that it's moot because Kubrick is dead, or that the movie was made in England so it's a different jurisdiction. You get the idea, and if it had been an American producer/director it would have been made here. And without charges of solicitation/prostitution.

 

Now consider the further fact that Tom and Nick are *married to each other* (or, at least, were when the scenes were being filmed). Can they or Stan be prosecuted for solicitation/prostitution if they are married to each other? They are still getting paid for sex-through-acting, in the same way as any other pair of actors. They are married, but Stan is not married to either of them, so is he still soliciting? Or is he pimping?

[Guest pickwick]

>Let's say that 2 actors are

>hired to make a mainstream

>movie.

 

The answer to your question is already given in my previous posts, except for the marriage issue.

 

Do you think that Hollywood big shots are never prosecuted for offenses committed in the course of making big-budget films? Does the name John Landis ring a bell?