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.)
I don't like that line of argumentation when it's used to defend long-standing rulings on constitutional provisions, but it seems reasonable enough when interpreting a statute the Legislature can amend at any time by a simple majority, and has opted not to. Sometimes what you don't do communicates a great deal about what you do intend.
Xrlq: But what if the reason that state legislatures have not take the issue up is just because they know if they tried to do anything about pornography, the law would be struck down?
It sounds to me like the court is going to pretend to defer to the legislature as long as the legislature doesn't do anything.
"Pretend[ing] to defer to the legislature as long as the legislature doesn't do anything" seems a bit cynical. I hate it when judges act like they are the legislature. Shouldn't we applaud them when they stick to interpreting the laws, rather than making up their own?
" to videotape the proceedings and sell the tapes to their clients for a nominal fee"
Doubt this would work because most escort customers don't want video evidence.
But it does seem a customer could just hire a escort/actress to participate in a porno film he was making and staring in. Still have the video evidence though.
I wonder what qualifies as pornography? Does it have to be sold on the open market?
I never understood the difference myself.
It seem then to make prostitution legal. You would just need a third party to pay for the act.
X: I don't think a legislature could outlaw pornography even if it tried to do so explicitly, because the courts would just overrule them.
Jim Clay: The problem as I see it is that there's no way to usefully distinguish between filmed prostitution and pornography production (say that five times fast). And yet the court claims to have an oracle it uses to tell them apart.