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Tuesday, August 02, 2005

The distinction between prostitution and pornography

A judge rules: it all depends on who pays. 

(1) As a contract matter, isn't this a distinction without a difference?

(2) As a public policy matter, isn't this a distinction without a difference?

(3) Under this theory, what would happen if the producer of the porn flick is also the actor?

(4) Shouldn't we expect an enterprising pimp to figure out how to avoid prosecution by somehow utilizing this distinction?

[Hat tip: Bashman]

Posted by Hillel Levin on August 2, 2005 at 11:57 AM in Legal Theory | Permalink

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Comments

Interesting case, Hillel, and good questions. I would think that pimps would videotape the activities of the sex workers and johns, and then set up subscription services; johns will pay to act in the movies, and subscribe to the series in which they perform. The johns can put on disguises, and then they wouldn't care about the distribution. This wouldn't eliminate street prostitution, but it might reduce it at the high end of the market (ie, escort services). If this circumvention device would work, then there would likely be bad distributive effects, since the poor johns and sex workers would continue to get busted w/o a first amendment defense.

Posted by: Dan | Aug 2, 2005 12:12:21 PM

Funny case. I've actually thought about that distinction a lot (for the right reasons!) I think that Dan is right: this is a way for wealthy people to have legalized prostitution. Good call girl services (again, I know this from having a client, not being a client) keep pretty accurate records. IOW, the johsn are known by name. So there's no reason they couldn't set up waivers, install a viewing room, etc.

Ethical question: Would it be ethical for a lawyer to help a call girl service go "legit"? Or would the lawyer be helping a client commit a crime? In our minds, we all know that the service, er, production company wouldn't really be porn; it'd still be prostitution. But I don't think the criminal law can draw a line between the two. Could the law of lawyers distinguish them?

Posted by: Mike | Aug 2, 2005 12:27:00 PM

Mike: it would seem to me that the lawyer would be helping that service conform their conduct to the bounds of the law as asserted by that court in New York, not helping 'em commit a crime. There's a difference between concealing evidence/advising a client how not to get caught and advising a client how to turn an illegal plan into a legal one, and surely a lawyer is allowed to rely on that ruling...

(I'm refraining from making jokes about how said lawyer is getting paid here, really I am)

Posted by: Paul Gowder | Aug 2, 2005 12:53:01 PM

I cover this case in exhausting, nay, nauseating detail at my post Uh-oh: pornography and prostitution in NY. There's already one good comment- not mine, I mean, somebody else's.

Posted by: Eh Nonymous | Aug 2, 2005 4:28:02 PM

Does anyone have a copy of the actual opinion ?

Or are you just relying on popular press reports ?

Posted by: S.cotus | Aug 16, 2005 12:11:35 PM

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Posted by: Jackie S. | Aug 5, 2006 8:13:29 PM

You can request the Pre-Trial Decision and Order, Indictment No. 6908/04 by sending $8 to New York Supreme Court of Manhattan, Criminal Term, Room 1000, 100 Center Street, New York, NY 10013. I was told this is the only way to get it, they will not fax it and it is not available online. The $8 has to be a money order. I know this because I am writing a comment for my law journal based on this opinion and the distinction that is made.

Posted by: Colleen R. | Oct 2, 2006 11:16:49 PM

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