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13 Mar 2008 08:48 am

A Legal Question About Prostitution Answered

A reader writes:

Let me make it all clear for your reader.  Since the 1988 California Supreme Court decision People v. Freeman, hiring someone for work in a porn film has not been considered pandering or pimping and the participants are not prostitutes.

Hal Freeman, the defendant in the case, was a porn director/producer. He was arrested in 1983 in connection with his film, Caught from Behind, Part II, and charged with pandering.  California law defined a panderer as someone who procures “another person for the purpose of prostitution.”  The statute defines prostitution as “any lewd act between persons for money or other consideration.”   To connect the dots, the kind of lewd act that has to be accomplished consists of “the genitals, buttocks, or female breast, of either the prostitute or the customer” coming in “contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.”  Freeman was convicted, and after several years of appeals the case hit the CA Supreme Court.

The defense argued that the pandering/prostitution statutes didn’t apply to porn. Who is receiving sexual gratification? Not Freeman. Nor, principally, are the performers; they are accomplishing a labor intensive, albeit revealing, acting job.  Their primary interest is in getting a paycheck, not to receive or bestow gratification.  On those grounds, The CA Supreme Court overruled the conviction.

California sought to have the U.S. Supreme Court overturn the CA Supreme Court, but Sandra Day O’Connor, writing for the Court turned down the requested stay. See: California v. Freeman, 488 U.S. 1311 (1989).

For what it’s worth, the CA Supreme Court also held that the application of the prostitution statutes to porn films was a “somewhat transparent attempt at an ‘end run’ around the First Amendment and the state obscenity laws.”

After that lengthy prelude, the answers to your reader’s questions are: 1.) he is getting sexual gratification from the hookers, and the director is paying for an acting job. 2.) Read my dissertation.

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