Pornography and Prostitution

I've finally found an answer to a question that had been nagging me for quite a while: how can it be legal to pay someone to have sex on camera, but illegal to pay someone to have sex otherwise? Attorney Lawrence G. Walters explains:

The answer begins with a man named Hal Freeman, a legend in the realm of adult filmmaking back in the early 80’s whose productions included a film called Caught From Behind, II. For years, adult films were shot in secret locations, which always changed to avoid the eye of law enforcement. The concerns were serious – in California, pandering carries a minimum three-year sentence with no possibility of probation.

Despite these concealment efforts, Mr. Freeman was charged and convicted under California’s "pandering" law, because he was paying individuals to perform sex acts on camera.1 The filming was done in private, and all models consented to the acts depicted in the film. There was no allegation that the movie was obscene. His attorneys sought to convince the courts that the First Amendment prohibited the application of pandering laws to the creation of adult materials, even though they might appear to apply. Ultimately, Freeman won the case, and the California Supreme Court decided that pandering laws could not be used as a tool to impose a system of governmental censorship of erotic materials.2 Specifically, the court held, "[E]ven if Defendant’s conduct could somehow be found to come within the definition of "prostitution" literally, the application of the pandering statute to the hiring of actors to perform in the production of a non-obscene motion picture would impinge unconstitutionally on First Amendment values."3 An appeal to the United States Supreme Court resulted in a ruling that the outcome turned independently on construction of California law, and thus the Supremes refused to get involved.4

So paying for sex is bad, unless you videotape it -- everyone got it? Oddly, the situation is exactly the opposite when it comes to child pornography. In approximately 39 states it's legal for an adult to have sex with a 16-year-old, but if the activities are recorded then the adult can be sent to prison for more than 15 years. Perhaps this labyrinth indicates that our society has a screwed up, irrational, perspective on sex.