A New York judge has finally "clarified" a legal question I raised last year: how can pornography be legal and prostitution illegal? My own contention is that only a twisted conception of sexuality and rational law could justify one but not the other, especially since one can easily be disguised as the other with a little forethought.
A Manhattan judge has enunciated the legal distinction between prostitution and paying someone to participate in sexual activity to make a pornographic film.
Prostitution, as traditionally defined, requires person A paying person B for sexual activity to be performed on A, Supreme Court Justice Budd G. Goodman wrote in People v. Paulino, 6687/04.
Pornography, on the other hand, involves person C paying B for sexual activity performed on A.
Where, presumably, (C != A).
The case arises from the owner of an "escort" service complaining about selective prosecution because she was arrested while much larger pornographers operate in complete security protected by the First Amendment. The judge banked and dived in every direction attempting to explain the difference between pornography and prostitution, but in the end his analysis is rather unsatisfying in that it rests on:
The "court concludes [that] because the pornographic motion picture industry has flourished without prosecution since its infancy, that industry was not intended to be covered," Goodman wrote. "If it had meant to be covered, the legislature would have taken up the matter long ago."
The solution for an "escort" agencies is, of course, to videotape the proceedings and sell the tapes to their clients for a nominal fee.
(HT: James Taranto.)