It is sometimes difficult to see the difference between prostitution and pornography. The best way to tell the difference between prostitution and pornography is to look at the definitions of both prostitution and pornography and then illustrate with some examples.
Pornography Defined: Pornography is the study of making, producing, or engagement of pictures or videos of persons acting in sexual congress with themselves or others and depicted or produced for the purpose of sexual arousal of the viewer.
Pornography is legal as long as certain conditions are met, including,
The porn producer keeps accurate records of the porn actors (mostly for taxes, age verification, business records, and health and safety issues),
The porn producer assures the porn actors act with voluntary consent to engage in sexual conduct,
The porn producer does not allow minors under the age of 18 into the porn pictures or videos (i.e., no production or possession of child pornography),
The porn producer does not distribute the pornography to minors, and
The porn producer focusing on the scientific, art, education, literary, or social value of the porn to the viewer.
A few other requirements might be needed depending on the local laws of the state and city where porn is produced.
The idea behind legal pornography is that the porn actors are “acting,” or simulating sexual arousal or sexual intercourse, for the benefit of furthering some value beyond mere sexual arousal itself. The fact that the porn actors who engage in sexual intercourse or masturbation for pictures or videos is secondary to the purpose of pornography (at least in theory).
Also, the fact that the porn actors are paid is incidental to the production of porn. In other words, even though the porn actors might be paid to perform sexual acts for pictures or videos, and even though the porn actors might enjoy the sexual acts related to the making of pornography, these facts are incidental, or secondary, to the purpose of pornography, which is to make some value to the community or viewer (i.e., literary, social, scientific, education value, etc.).
Of course, with today’s version of pornography distribution, it is difficult to see how anyone can derive any scientific, art, literary, education, or social value from most pornography. This is because modern pornography producers and companies depict scenes from the larger work, and the focus of the larger work displays mostly the sex scenes.
For example, a porn movie today is often divided into many scenes where the viewer can advance to porn scene of choice. Because of the frequency of that scene in requests, that scene then becomes the dominant result for searches within the porn company’s catalog. As a result, short “clip” or scenes are viewed without context of the scene to the entire work. This means that the viewer will find almost no literary, scientific, educational, or social value within the short porn scene itself. Nevertheless, the entirety of the porn film might pass muster under the rules set forth to produce pornography.
This circumstance helps to blur the lines and rules for the difference between prostitution and pornography. This is especially true when the producers or camera operators get involved in the porn scene or where private videos are uploaded to porn company catalogs.
In any event, from the perspective of the viewer, the porn actors simply appear to be sexual arousal between two consenting adults for the purpose financial gain, which is exactly the definition of prostitution.
Prostitution Defined: Prostitution is the solicitation of, engaging in, or agreement to perform, sex for money or other consideration (i.e., goods, services, food stamps, etc.). Prostitution is illegal in every state except Nevada, where some Nevada counties allow legal prostitution under certain conditions. Further definitions found at soliciting prostitution & keeping a house of prostitution.
With prostitution, outside of certain areas of Nevada, there is no record keeping of the prostitute’s income or health records. Therefore, no taxes are paid by the prostitute, or the prostitute’s client (“John”), and the community may suffer more sexually transmitted diseases. Many people believe the former argument is the main reason why prostitution is not legal in most parts of the United States (can’t tax what is not known to the government).
Prostitution also differs from pornography in that sexual arousal is the primary focus when a defendant engages a prostitute (as opposed to the sexual arousal as an incidental or secondary focus in the production of pornography).
Keep in mind that is not the filming or taking of pictures that turns illegal prostitution into legal pornography.
For example, John takes pictures of himself having sex with a prostitute is illegal, but John taking pictures of himself while having sex with a prostitute is legal if John’s purpose is to produce some literary, social, art, educational, or scientific value, and if John meets all the requirements for producing pornography. The fact that John has the same sexual enjoyment from taking picture of himself while having sex with a prostitute, regardless of whether he produces the porn legally, or the porn illegal with a prostitute, is not a consideration as to whether the production is legal.
Of course, with both the production of pornography and the use of prostitutes, it is always illegal to engage a minor for such purposes. In fact, if the defendant engages with a minor regardless of whether it’s for producing pornography or engaging in prostitution, the defendant could face very serious criminal charges depending on the circumstances, including child molestation charges (PC 288(a)) Crimes), statutory rape charges (PC 261.5), and more.
For more information on these crimes, see Distribution of Child Pornography (PC 311.1) & Solicitation of a Minor for Prostitution (PC 647(b)(3)).
Examples:
Example I: John engages a prostitute to make pornography for his film studio. The primary focus is to make simulated illegal massage parlor sex for literary and educational value. John legally sets up his porn company and follows all the rules. The prostitute “actor” performs the message parlor sex on videos: Result: This is probably legal pornography because the focus is on the literary value of the porn, and not on the sexual arousal of the prostitute or simulated massage parlor customer.
Example II: John goes to a massage parlor for a “happy ending.” The prostitute and John reach an agreement for sexual services during the “massage.” Result: This is likely illegal prostitution because the focus is on payment for sexual services and sexual arousal is the primary focus of John’s visit to the massage parlor prostitute.
Example III: Vicky loves having sex and she joins a porn production company to make pornography. Vicky’s primary purpose for making porn is that she wants to get paid for doing something she loves doing (sex). Result: Vicky is not engaging in prostitution even though she herself is having sex for money. This is because the focus of the porn videos in which she appears, are produced for a literary, social, educational, scientific, or art value (theoretically anyway).
Example IV: Amber works for a porn studio. She has sex with the porn producer for the purpose of getting a raise and/or the privilege in starring in more porn movies, which she really loves. Result: Amber is engaging in prostitution because she has sex with the porn producer for the purpose of financial gain as the primary reason of her “bargain,” and because the sex occurs without proper business record keeping.
Example V: Stuart is a Cameron for a porn company. Stuart has sex with all the porn actresses as part of his “payment” from porn studio. The studio incorporates the illicit sex acts and incorporates the scenes in its catalog under “Cameraman Joins.” Result: Stuart is engaging in illegal prostitution even though he works for the porn company because he has bargain for sexual intercourse for payment with the porn company. The porn company could also be liable for pandering (PC 266i) or pimping (PC 266h), or even human sex trafficking (PC 236.1) depending on the circumstances, and the porn actresses could be charged with prostitution if they understand Stuart’s payment arrangement.
Note: The boundaries between prostitution and pornography are especially blurred when the producer of pornography gets involves in the sex scenes. This is because the producer is the same person who is paying the performer and it appears to be a direct payment for personal sexual services even though it is under the guise of having some literary, scientific, art, social, or educational value to the viewer.
Finally, regardless of whether a person is engaging in the production of legal pornography, that person may still be liable for crimes against unsuspecting participants. This can occur when the porn company creates videos of “stranger porn” and does not use actors to depict the stranger.
For example, Pete is a producer of pornography in California. Pete decides to make porn scenes where a simulated prostitute, Patricia, approaches strangers on the street to coax the strangers into sexual intercourse on camera. To do this, Patricia approaches Paul in a public park while a porn Cameron man films circumstance. Patricia exposes her breast to Paul and invites him to have sex with her for free. Paul is underage.
In the above example, both Peter and Patricia may be charged with engaging in lewd public conduct (PC 647(a)), indecent exposure (PC 314), annoying or harassing a minor (PC 647.6(a)), contacting a minor for lewd act (PC 288.3), arranging to meet a minor for lewd act (PC 288.4), and solicitation to engage in a live sex act (PC 311.6).
For further reading on the difference between prostitution and pornography, please visit prostitution defense attorneys today, or see (PC 647(b)), possession of obscene matter depicting a minor (PC 311.11), pandering crimes (PC 266i), engage in public lewd act (PC 647(a)), annoying or molesting a minor (PC 647.6(a)), contacting a minor to commit a lewd act (PC 288.3), indecent exposure (PC 314), statutory rape (PC 261.5), arrange to meet a minor for lewd act (PC 288.4), and engage in live sex scene (PC 311.6).
If you have been charged with any misdemeanor or felony sex crime in the Inland Empire, including the cites and courts of Redlands, Rancho Cucamonga, Riverside, Victorville, Ontario, Fontana, Rialto, Yucaipa, Banning, Hesperia, Upland, and more, contact our sex crimes criminal defense attorneys today for a free consultation. Call today!
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