One of the biggest arguments used by both those against pornography and those in favor of legalized prostitution is that it is illegal to pay someone for sex, but as long as you record it, it becomes a porno and is then legal. It’s a similar debate as to why prostitution is illegal, but escorts can still operate their business out in the open when both typically involve women charging someone by the hour for their time.
So, what is the distinction when it comes to porn vs prostitution? Can you hire a prostitute, film the encounter and then avoid the risk of being charged for solicitation? Or, could a prostitute set up a camera in her room and avoid any legal convictions? There has to be some line between the two, so ultimately, what does the law say?
The Porn Vs. Prostitution Argument
First, the base logic behind this argument is sound. Why is legal to film pornographic material in California, though prostitution is illegal? Both types of sex work involve at least one person, usually a woman, getting paid to perform some type of sex act. The only apparent difference is that one involves people performing sexual acts on camera, while the other is done in relative privacy.
The courts have upheld the legality of pornography since the 1987 California Supreme Court case of California vs. Freeman, where the state accused pornographic film producer Harold Freeman of pimping. Because putting something on film brings into question the matter of free speech, the judges concluded that as long as the production was not made for the pleasure of the director or the actors, it did not involve prostitution.
Is Prostitution Legal if You Film It?
Merely hiring a prostitute off the street, filming the sex, and then claiming you were acting in a porno is not considered a legitimate form of First Amendment expression and will not clear you from any risk of prostitution charges. If it was that easy, anyone and everyone interested in prostitution would just place a camera in front of themselves while they have sex and claim they’re making a porno. The biggest difference between pornography and prostitution is that adult films have a number of rules they must follow in order to be legal under California law.
In order to differentiate your porn from prostitution, you may need a business license, you will need the signed consent of everyone who appears on the screen, you need sufficient paperwork to prove that anyone on camera was over 18, and you need to show that anyone who performed sex acts on camera was tested for STDs within the last 30 days.
What Happens if You Don’t Follow Laws for Making Porn?
If you fail to follow these laws, you could still be charged with prostitution as the prosecution may show you only filmed the act to attempt to skirt the law and had no intent to make an adult film or to express your first amendment rights.
You could also be charged with breaking other laws as well. In fact, if you didn’t tell the other party that you were filming the encounter, you could even be charged with wiretapping, which can be a felony crime punishable through years in prison. While you don’t want to get charged with prostitution or solicitation, getting charged with wiretapping and prostitution is a whole lot worse. Which is why you should always consult with a lawyer when you want to do something and you aren’t sure if it is legal —especially if it involves paying money to prostitutes and filming the encounter.
Remember, it’s a lot easier to discuss something with your defense attorney before you break the law than it is to fight criminal charges after the fact. If you have any questions, you can always call Peter M. Liss at (760) 643-4050 to schedule a free initial consultation and discuss the difference between porn and prostitution.
