So why an article about prostitution laws in this magazine? The entry of the Internet into the "escort" business, as Editor in Chief Tom Hymes insightfully pointed out, is one reason. Another is if you produce content - if you are paying people to engage in sexual activity, why is that not prostitution? Or, you might just salaciously be curious about the subject. You also may find interesting how these laws fit into the overall scheme of rules regulating adults engaging in consensual sexual activities.
In the first place, prostitution is illegal only where the legislature says it is illegal. It is not illegal everywhere. Like the infield fly rule, rules against prostitution were put in place to accomplish some objective that the drafters thought was worthwhile. The laws against prostitution are more complex than the relatively straightforward infield fly rule ("If there are runners on first and second or first, second, and third with less than two outs and the ball is popped up in the infield where an infielder with reasonable effort can catch the ball, the batter is automatically out."). And they are more debatable (the argument against the infield fly rule is that an infielder intentionally dropping a pop-up in an effort to make a double play would transform a mundane pop-up into a very exciting play, and create interesting new strategies).
Prostitution laws are merely one component of the battery of laws regulating consensual sexual activities involving only adults. Others include laws against obscenity, artificial contraception, the locations where you can open an adult cabaret, and even laws regulating private, non-commercial sexual activities involving only consenting adults. We begin with the latter.
An entire book could be written about the historical development of the regulation of consensual sexual activities involving only adults, going back many centuries in England, before there was any real separation between church and state. But regardless of whether it was 13th century ecclesiastical courts pursuing adulterers in Olde England or the Paducah City Council enacting an ordinance requiring strippers to dance at least six feet from the nearest customer, these sorts of regulations are universally the product of a group of "moralists" - normally far short of a majority - getting their way because the opposition is, for the most part, uncomfortable voicing its position. After all, what state senator would spearhead an effort to repeal arcane criminal laws against adultery, and then use that as the centerpiece for a reelection bid?
In 1986, the Supreme Court was faced with the question of whether laws against homosexual activities offended the constitution. Then-Chief Justice Burger agreed with the 5-4 majority of the Court upholding the laws, punctuating the historical squeamishness about public approval of sexual activities, noting,
"the proscriptions against sodomy have very ancient roots. Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judalo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. Blackstone [the most noted English legal commentator] described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.' The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." Bowers v. Hardwick, 478 U.S. 186 (1986) (Burger, C.J., concurring).
While the above may be viewed as a history of homophobia, it is quite typical of governmental thinking on the topic of regulating sexual activities involving only consenting adults. For example, some 13 years earlier, in rejecting any constitutional protection of obscene materials where the audience was confined to consenting adults, Chief Justice Burger wrote, " there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. Rights and interests other than those of the advocates are involved. These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself." Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). Interestingly, this term, the Supreme Court will take another pass at the issue of laws against homosexual activities, and it will be interesting to see whether the dramatic change in popular thinking about the topic over the 17 years since the Bowers decision will influence the Court. Lawrence v. State, 41 S.W.3d 349 (Tex.App.- Hous. [14th Dist.)] 2001), cert. granted sub nom. Lawrence v. Texas, No. 02-102, 537 U.S. ___, 123 S.Ct. 661 (December 2, 2002).
Now that you have a flavor of governmental thinking about regulation of sex involving only consenting adults, we can turn to the topic at hand. Historically, thinking of prostitution one conjures up the image of "ladies of negotiable charm" - one of the all-time-great euphemisms - with silk stockings and spiked heels, lingering about the red-velvet walls and Victorian furniture in an atmosphere of clinking glasses and a slightly out-of-tune piano, inside a dimly lit brothel in the 19th-century Barbary Coast. Such folklore demonstrates that prostitution laws have historically been observed more in the breach.
Perhaps a good foundation for modern prostitution laws is the Model Penal Code, (� 251.2(1)(a), "Prostitution and Related Offenses") which defines the crime of prostitution as to engage in, support, or profit from any sexual act that is offered for sale. The Model Penal Code was the product of a 1950s legal think tank, which was created with the objective of injecting sense, simplicity and a modicum of uniformity in the criminal law. In some form or another, the Model Penal Code was adopted in a significant majority of states. However, consistent with the uniformly over-simplistic governmental solution to all social problems - to add new crimes and increase the penalty for existing ones - states persisted in adding to the number of prostitution-type crimes and increasing the severity of the punishment. For example, Illinois criminalizes "touching or fondling of the sex organs... for any money... or anything of value." In California, pandering carries a minimum three-year prison sentence, with no possibility of probation.
Analyzing prostitution laws can be accomplished without getting into their innumerable variations around the country (they are limited only by the bounds of the imaginations of members of the state legislative bodies). Starting with the approach of Model Penal Code, whereby it is a crime to engage in, support, or profit from any sexual act that is offered for sale, nowhere in the blizzard of anti-prostitution laws enacted since then is there anything that changes that basic concept - except in Nevada.
Nevada is the only state without a statewide prohibition against prostitution. In Nevada, if you can muster the political support to procure a license for it, you can open a "house of ill fame" in any county with a population of less than 400,000 people. NEV. REV. STAT. 244.345. Clark County (Las Vegas, Laughlin, Henderson, and the area between Las Vegas and the California boarder) is thereby precluded from licensing brothels because of its population. Moreover, smaller Nevada counties can outlaw prostitution outright if their constituency so decides. Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980). And even for legal brothels, they are prohibited from advertising in counties where prostitution is prohibited. NEV. REV. STAT. 201.430. Nonetheless, Nevada is unique in that respect.
So what of advertising "escort services"? The Internet has perhaps taken over the Yellow Pages as the world's leading directory to escorts and escort services. The obvious question is how can the Webmaster be on the hook in the "totally unforeseen" circumstance in which one of the escorts runs afoul of local prostitution laws. The key to this issue is the law involving conspiracy and that of "principals and accomplices." Different states have different titles, but it all involves someone committing an act that furthers the crime in question; in this case, prostitution. To be guilty of conspiracy to commit a crime (or be an accomplice), you must commit an act to further it and have some knowledge of what you are furthering.
Here is a listing: It simply says, "Escorts." Then there are a list of people, all ostensibly females, with a table: name, age, eye color, hair color, measurements, height, weight and telephone number. "Ecstacy" is 31, has blue eyes, brown hair, 36C-26-36, 5'5", 120 pounds, with an Orange County phone number. According to the photograph, she is quite attractive. Under the detail window, it says "service type - escort, independent." There are two ways of looking at this:
1) From the perspective of the Webmaster, "I don't even know who "Ecstacy" is, much less anything about her escort service; she paid for the advertisement, is not advertising anything illegal, and I have no control over what she does. Advertising is protected by the First Amendment!"
2) From the perspective of the police station: "Right! And I suppose that you just fell off of a cabbage truck, too. Advertising only has limited First Amendment protection, and prostitution doesn't have any. You are under arrest for pandering."
That might be stretching it, but then how much revenue is there in just placing an ad? More money begets more exposure. If the Website also serves as a booking service for the "escorts" - operating as a direct intermediary between the customer and the advertiser - knowledge becomes easier to prove (by circumstantial evidence). And if the Website gets a big chunk of the fee, proof of knowledge is that much easier. Suppose, through the undercover operation, they prove that no appointment is necessary and that the escorts are fungible: "Mandy isn't available tonight, how about Tiffany?" Throw in some adult-entertainment pop-up banners, advertisements that also offer massages, and sleazy pictures with captions like, "I love to play, want some?" - the jury won't be out for five minutes.
There is no bright-line rule here. As a practical matter, however, authorities are more interested in people that are "closer to the action," so to speak. But even if all you do is post advertisements, you should not be surprised to receive a grand jury subpoena requesting the identities of your advertising escorts. Your best advice would be to stick to entertainment, which brings about the next topic: producing content.
Under the Model Penal Code's definition of prostitution, it is illegal to engage in, support, or profit from any sexual act that is offered for sale. So why is shooting a sex scene not prostitution? Well, it is and it isn't.
In California, where most of the adult industry's content production has taken place, there were numerous busts in the 1970s and '80s of producers of adult motion pictures for pandering. Shooting adult films operated like Nathan Detroit's floating crap game, the challenge being to shoot the sex scenes before anyone found out about the location. Then came the California Supreme Court's decision in People v. Freeman, 46 Cal.3d 419, 250 Cal.Rptr. 598, 758 P.2d 1128 (1988).
Hal Freeman, the owner of then one of the larger video manufacturers in Los Angeles, Hollywood Video, was convicted of pandering - which, in California, is defined as procurement of persons "for the purpose of prostitution" - arising from the making of an adult video called Caught from Behind, Part II. He was sentenced to 90 days in the county jail plus five years' probation. Both sides appealed. The prosecution contended that the trial court was wrong in dishing out such a minor sentence, because the statutory minimum for pandering in California was three years in prison without the possibility of probation, a statute designed to deal with street pimps in Los Angeles. Hal Freeman, and the entire adult video industry, contended that what he did was to shoot a movie, which is protected by the First Amendment, and not pandering.
The California Supreme Court sided with the industry, holding that the legislature did not intend to include Freeman's activities as "pandering," and even if it had, such a stretch would violate the First Amendment. When the prosecution took the case to the United States Supreme Court, a procedural ruling made clear that the ruling was one strictly under California Law. California v. Freeman, 488 U.S. 1311 (1989) (O'Connor, J., denying the State's application for a stay).
Sadly, Hal Freeman did not live to enjoy the fruits of the victory he brought to the industry. He died of cancer shortly thereafter, and to this day the Free Speech Coalition most appropriately presents an annual award in his name - the Hal Freeman "Freedom Isn't Free" Award - to some deserving industry freedom fighter.
The fact that the Freeman decision rested upon an interpretation of California law is very important. Subsequent decisions of the United States Supreme Court have cast doubt upon the continuing viability of the California Supreme Court's finding in Freeman that applying pandering laws to filming of motion pictures violates the First Amendment. See Barnes v. Glen Theatre, Inc. , 501 U.S. 560 (1991) and City of Erie v. Pap's A.M. , 529 U.S. 277 (2000). And while some states might embrace the free-speech holding in Freeman on the basis of state constitutional provisions, none have, nor have any states followed the lead of Freeman with respect to statutory construction - but none have rejected it, either. (Readers might want to check out the Feb. 2003 issue of AVN for an article on the Pennsylvania Supreme Court's reconsideration of Pap's, which reinforced their view that Pennsylvania's Constitution protects expression more completely than the First Amendment.)
Another wild card is the Mann Act, a federal statue prohibiting taking people across state lines for immoral purposes. 18 U.S.C. � 2421 (Prohibiting "transport[ing] any individual in interstate or foreign commerce... with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense...," originally known as an act to prevent "white slave" traffic.). Cases from some time back have approved of its application to filming of adult motion pictures, e.g., United States v. Roeder, 526 F.2d 736 (10th Cir. 1975) (adult performer taken from Missouri, across the boarder to Kansas, to make an adult film), and no subsequent case has said otherwise. Prosecutions, however, have not been brought for many years.
Clyde DeWitt is a partner in the Los Angeles, California-based national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
