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Tuesday, August 02, 2005

The obvious loophole

Hillel and Christine are discussing the Manhattan ruling that porn does not violate anti-prostitution laws because you're paying an actor or actress to have sex with someone else, not with you. There are a number of potential issues, such as the director/producer/performer (as Hillel notes) and the strangeness of a contract that negates part of the penal code (Christine's point).

Let me point out another obvious issue -- this exception creates a huge loophole, where all that is required to subvert the law is a willing accomplice.

Let's say that I wish to obtain the services of a prostitute. (Obvious disclaimer: I don't actually want to do this; it's all hypothetical). I can go down and pay my $100, or whatever the going rate may be, to a young lady on Second Avenue. At that point, I run the risk of being arrested for solicitation.

However, I can give that $100 to Dan Markel and ask him to hire the young lady, as a "porn actress," to have sex with me. As long as we produce some record of that act, I can claim that we're porn producers, producing porn for Dan's benefit. (Dan need not ever actually view any tapes that I produce). And the end result is exactly the same -- I pay $100, the $100 goes to the young lady, and she has sex with me.

One possible counter-argument is that it costs money to record events on video. Except that it really doesn't anymore; it is dirt-cheap to produce tapes or computerized recordings of events. A cheap digital camera will do just fine; hell, I can record things on my cell phone! So the expense of video equipment is no barrier.

I don't know if prostitutes and their clients use this defense already. If they don't, I would expect them to start using it soon. The loophole is obvious.

Posted by Kaimi Wenger on August 2, 2005 at 06:33 PM in Criminal Law, Culture, Kaimi Wenger, Odd World | Permalink

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Comments

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If the judge had not ruled that porn and prostitution are different, wouldn't current prostitution laws be unconstitutionally overbroad? Non-obscene porn is protected speech, after all, and it seems that prostitution laws might cover a substantial amoung of protected speech, namely porn. Actually, if the law had not made the distinction, then NY could have outlawed porn, unless people wanted to work for free.

Anyhow, it might be fun to bring a 1983 action on behalf of a prostitute arguing that anti-prostitution laws are unconstitutionally overbroad, since they cover a substantial amount of protected speech, viz., porn. I don't know of any laws that have a porn exception, so the prostitute might win. After all, if "virtual porn," a subclass of porn, is prevelant enough that law covering it is overbroad, then by definition, a law covering the entire class of porn would be overbroad, and thus, unconstitutional. (Assuming, of course, that the court's did not narrow the interpretation of prostitution laws, as the NY judge did here.)

Then again, if all of us can't come up with a difference between porn and prostitution, arne't all anti-prostitution laws void-for-vagueness?

Posted by: Mike | Aug 2, 2005 7:05:03 PM

Interesting. Your loophole hypo has two problems, however, one practical and one legal. First, having represented many prostitutes, johns and pimps in my days as a public defender, I can tell you that this level of legal scheming is far from their radar in most instances. Many still believe in the urban legend that if an undercover cop is asked whether he or she is a cop, the cop has to respond truthfully. Second, even with the well-informed Kaimi and Dan hatching the plot, your loophole hypo overlooks the onerous federal registration provision with which you and Dan would be required to comply as producers of porn. See 18 USC § 2257. Even if this hypothetical tryst justified the burdens of compliance--a question only you could answer as the hypothetical consumer here, of course--you and Dan might not want to register your sham porn business with the federal government. But, the 5 years you each could get for failing to do so is far worse than the penalties you generally would face under most state prostitution laws if you just approached this transaction old-school.

Posted by: Brooks | Aug 2, 2005 7:32:19 PM

Ah, but you know what they say:

Safe Sex: No Pictures.

Posted by: bago | Aug 2, 2005 9:49:26 PM

How likely is it that a person would choose to minimize their legal liability by hiring someone to take a video of themselves committing the crime? The loophole theory seems rather far-fetched to me.

Posted by: lawprof | Aug 2, 2005 11:34:49 PM

I see where you were going with the loophole argument, but the registration process and licensing requirements that would go along with the shooting of the porn may be what slows it all down. Now, I am with you in that the first time I saw this story, I started scratching my head and began trying to outscheme this judge. And there does seem to be something that does not quite add up here. Does anybody know if the pleadings or the order are available on-line yet?

Posted by: Joel | Aug 3, 2005 8:23:05 AM

I haven't seen the opinion here yet, but it probably will be posted on this site:

http://www.courts.state.ny.us/reporter/slipidx/miscolo.htm

Posted by: Brooks | Aug 3, 2005 11:13:02 AM

Hi Brooks, just a thought related to your argument and USC 2257. Article 1 seems to be the most important: Whoever produces any book, magazine, periodical, film, videotape, or other matter which—
(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce.

So, provided that Mr. John Doe has no intention of shipping the product to another state or to another country, and there are no visual representations of the product as pointed out in 3a1, ie., and you're making an audio recording, then there's no need to register as a porn producer while yet being a producer of porn.

Posted by: Steven | Nov 30, 2006 2:33:23 PM

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