Periodically someone posts here asking if filming their pay-for-play makes it legal.  Here is a three-year-old article; the analysis still applies.

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Judge Sees No Link Between Prostitution, Paying for Sex to Make Films
By Mark Fass
08-02-2005

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.

"In other words, prostitution is and has always been intuitively defined as a bilateral exchange between a prostitute and client," Goodman opined.

The common ground between prostitution and pornography was at issue in Paulino, the ongoing trial of an Upper East Side woman accused of running a multimillion dollar prostitution ring, because the defendant argued that the decision to prosecute her but not the "Goliaths" of the pornography industry constituted selective prosecution in violation of the Equal Protection Clause.

Jenny Paulino, 44, was arrested along with her sister Elsa and four other alleged employees of American Beauties Escort Service in December. The Manhattan District Attorney's Office alleged the service was in fact a front for prostitution, where rates ran from $500 to $3,750 an hour. Prosecutors charged Paulino with one count of promoting prostitution and one count of laundering money.

Paulino moved to dismiss on the grounds that the action represents selective prosecution in violation of the U.S. Constitution's Equal Protection Clause.

"The defendant contends that the targeting of so-called 'escort services' for prosecution, while ignoring 'Goliath corporations' that 'conspicuously reap huge profits from the distribution of adult films,' violates [the clause] because both enterprises are similarly situated," Goodman wrote.

That claim failed, he ruled, because Paulino's case rested on a "specious" interpretation of "prostitution."

Citing People v. Kovner, 409 NYS2d 349, Paulino had argued that "'no legal distinction' existed between a man who paid for sexual activity to be performed on him and a nonparticipating third party who paid for an actor to participate in sexual activity, because both involved the essential elements of prostitution: sexual activity in exchange for a fee," according to the decision.

Goodman, calling Kovner "stale, faulty and nonprecedential," ruled that Paulino's argument rested on an "unjustifiably broad" definition of prostitution.

Penal Law §230.00 defines a prostitute as one "who engages or agrees or offers to engage in sexual conduct with another person in return for a fee." The word "fee," Goodman wrote, represents the key to distinguishing prostitution from paying someone to perform sexual activity in making pornography.

The "fair import" of the word "fee" is "payment in return for professional services rendered," Goodman wrote, quoting People v. Block, 337 NYS2d 153.

"The Block approach … comports with the common sense notion that prostitution is 'the trading of "sexual conduct" with another person for a "fee,"' where the sexual conduct is performed on the person who pays the fee," Block added, citing PL39 McKinney's Penal Law 248.

"Because the definition of prostitution is generally confined to a bilateral exchange between only two parties, escort services and 'Goliath' corporations are not similarly situated," he concluded.

The legislative purpose in enacting the state's prostitution statute supports this holding, the judge added.

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."

Paulino's attorney, criminal defense specialist Gerald B. Lefcourt, expressed disappointment with the decision.

"Certainly pornography [promotes prostitution] in that people are paid to have sex and not only paid to have sex between them, but then it's shown to millions of people for phenomenal profits," he said. "It's ludicrous to simply pick out someone who's simply running an escort service, to introduce person A to person B, for whatever purpose. This is a victimless crime that shouldn't be subject to the whim of a prosecutor."

Assistant District Attorney Michelle Warren opposed the motion. A spokeswoman for the district attorney's office declined to comment.

to focus on his last comments regarding prostitution (or sex work as I would prefer it be called) being a "victemless crime"; and argued that the laws against it infringe on the liberities enshirned in the Bill of Rights, especially the right to be secure in our homes, etc.

The argument equating the filming of erotic movies with the business of selling sexual favors is much too much of a stretch.

(still not a lawyer)

           The typical state prostitution statute defines prostitution as engaging in sexual contact for a fee

3. "Prostitute" means a male or female person who for a fee engages in sexual intercourse, oral-genital contact or any touching of the sexual organs or other intimate parts of a person for the purpose of arousing or gratifying the sexual desire of either person.

          There is absolutely no requirement that the client must pay the lady the fee for the sexual act to constitute prostitution. If the presence of a camera and payment by A to C removes the sexual act from the prostitution statute, then an agency, the client, and the lady could avoid all criminal penalties by simply having the client pay the agency and then the agency films and pays the lady.

            So the judge’s reasoning creates a tremendous loophole. Furthermore, while the judge’s reasoning might have some validity as to the 1970 type porn where sex acts were filmed in the context of bonehead stories, now there are plenty of porno films made by guys who film themselves having sex with a lady and then pay the lady a fee. How is that different from prostitution? Not at all.

         There are some legitimate First Amendment concerns where filming is involved but if you allow the First Amendment to give blanket protection to sex for pay solely because it is filmed, then all ladies and clients should film their encounters and, if caught, say they were planning to put the film on the internet to express their sexuality.

          So I’ve never understood why LE chases escorts and their clients for violation of these laws but never goes after the porno film makers, except on obscenity charges.


In reality there is a far greater public nuisance impact from porn then from the activities of the professional companions of TER.
And I wonder if the ladies who become escorts are any more "victim"s than the clueless 18 and 19 year old girls who permanently will have their faces splashed across the net having sex.

making a convincing case that you have the wherewithal to put these recorded activities on the web (or other distribution network) so as to convince the fuzz that you are a legitimate pornorgrapher and not a John.

It would be pretty cumbersome.

And besides, since when does LE need any legitimate reason to bust someone?

The fact is that a lot of cases of prostitution that do go to trial end up in something less than a conviction because providing proof beyond a reasonable doubt is quite a high standard for guilt.

LE's aim is not to get convictions per se, but to harass the client and escort by arresting them, therefore having them have to deal with jail, bail, trial and legal costs.

The only reasonable way to get away with the hobby is to do whatever you have to to never get caught.

(still not a lawyer)

In California the violation occurs when prostitution is solicited.  No act other than the offer of sex for money or money for sex has to occur for a violation. Otherwise, the police couldn't make an arrest until the actual sex act happened.

the criminalization of solicitation explains the distinction between the illeglaity of sex for pay in private and the presumed legality  of non-obscene sex for pay when it is filmed and distributed.

And the rationale used by the judge - that the legislature would have specifically addressed pornography if it had intended to prohibit it  - does not get far with me. The prostitution statutes precede the porno industry by many years. I think it has always been illegal under these statutes but for some reason LE seems to disagree.

It maybe that First Amendment concerns are the determining factor here.

-- Modified on 9/10/2008 4:39:09 PM

"It maybe that First Amendment concerns are the determining factor here": Correct. If I pay people to have sex and film it , it is a protected art form. If shut down the camera and join the fun it is no longer protected by the 1st amendment. I think.

The distinction seems to lie in that in pornography, a customer pays to have actors have (or pretend to have) sex with each other for the gratification of an audience, and in prostitution, a customer pays another to have sex with him for his own gratification. One is a crime and the other is art. Go figure.

The fact that sex in front of a camera is protected art, and that which is not is not art, may be arbitrary and unfair, but I'm not complaining. Here's a link that gives a good analysis of the distinction.

Actually, I think pornography goes back to before Sodom and Gomorrah, if you count cave paintings and other early pictographs and art depicting the act.  eom

good article with a much better analysis than the first link posted.