Prostitution, Pornography and Hypocrisy, Part II

Why is paying adult film actors not prostitution? I addressed an adult film industry seminar on this issue in August 2008, at the New York Exxotica Conference. This is what I told them . . .

In 1983, while shooting a film called "Caught From Behind, Part II,"a Harold Freeman was arrested and charged with five counts of pandering for purposed of prostitution based on his hiring of five of the film's performers. Even though he was never charged with violation of any of California's obscenity laws, Freeman was tried before a jury and convicted on all five counts of pandering. He was sentenced to 90 days in the county jail and ordered to pay more than $10,000 in restitution. Even though Freeman lost on appeal to the California Court of Appeal, the California Supreme Court reversed the conviction and issued a groundbreaking opinion. People vs. Freeman, 250 Cal.Rptr. 589 (Cal. 1988):

“[F]or a 'lewd' or 'dissolute' act to constitute 'prostitution,' the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute. . . .[I]n order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification. The payment of acting fees was the only payment involved in the instant case. This payment was made to the actors for performing in a nonobscene film. There is no evidence that defendant paid the acting fees for the purpose of sexual arousal or gratification, his own or the actors'. Defendant, of course, did not himself participate in any of the sexual conduct. Defendant, the payor, thus did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution.

The linchpin of the decision founded in judicial activism was the imposing of the “arousal” element onto prostitution/pandering statute which was enacted by the California legislature. Simply put, notwithstanding the video evidence to the contrary, the California Supreme Court ruled ex cathedra that no one on the set of a porn movie was being aroused sexually.

Upon this thin reed of a legal decision, the $13 billion/year porn industry was launched and is now so powerful that no state or federal prosecutor will take them on – even though to do so would be prosecutorial child’s plan.

Yet, escort services are being regularly targeted for engaging in the same behavior: money for sex. Thus, if the escort would bring her video camera, I guess there would be no crime . . .