Blog
4:42 AM
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Stephen
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When Swords are Outlawed: Only outlaws will have swords. (Link via Volokh)
5:17 PM
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Stephen
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Letter to the Editors: Printed in last Monday's Harvard Crimson:
To the editors:
"The Case for Separation" (Staff Ed, March 2) objects to "state funds paying for a dogmatic and colored religious education," and fears that the free use of government-funded vouchers would produce "de facto state sponsorship of one religious mindset." Does the staff also wish to prevent welfare recipients from donating to religious charities? Surely the flow of taxpayer dollars into the collection plate constitutes "de facto state sponsorship"—yet such sponsorship is hardly terrifying when it comes, not from the hand of a government bureaucrat, but from the choices of individuals.
Stephen E. Sachs '02
Oxford, U.K.
March 2, 2004
8:46 PM
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Stephen
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Pornography and Prostitution, Part III: One final issue, developed late on a Thursday evening with Josh Chafetz (no, not in that way) -- all of the above discussion (Part I, Part II) assumes that the money or object changing hands is uncontroversially a "thing of value." But what if this couldn't easily be proven? Suppose that A is the owner of an asset--shares in a private corporation, very complex financial instruments, the copyright in an as-yet-unpublished work of unspecified sentimental value (say, "The 'Law Merchant' and the Fair Court of St. Ives, 1270-1324")--whose worth is not easily assessed. Whether a sex act conditioned on the transfer of this asset qualifies as prostitution might depend on how the asset is valued in court.
For instance, suppose that persons A and B sign a contract according to which A transfers the copyright to B, B transfers $500 to A, and A and B have sex. According to the Missouri definition, A has committed prostitution only if A has engaged in sexual conduct with B "in return for something of value" to be received by A or a third party C. If the copyright is worth more than $500, then neither A nor any third party C has received something of value; in fact, A lost money on the deal. Furthermore, A has "patronize[d] prostitution" only if A gives something of value to B, in return for which B engages in sexual conduct with A or a third party C. If the copyright is worth less than $500, then A has given nothing of value to B; in fact, B has lost money on the deal.
So convicting A of either prostitution or patronizing prostitution will require establishing the value of the copyright beyond reasonable doubt--or at least whether or not it exceeds $500. The same logic, of course, holds true for B: either A was the prostitute and B the patron, or B was the prostitute and A the patron. It's obvious from the nature of the transaction that A and B have both committed a crime; it's just impossible to know which committed which. And the American legal system (as well as the drafting of the statute) requires that each person be convicted of one or the other offense. This is one of those unusual situations where the affirmative defense to a given crime is having committed an entirely different crime. ("He couldn't possibly have been the gunman, your Honor, because he was too busy transporting minors across state lines.") If A and B were both involved in a murder, but only one person fired the gun, it would be necessary to prove that A was guilty of murder or that A was an accessory to murder--we couldn't simply convict him because he had done at least something bad. And even though the evidence introduced by the defense lawyer might be used against A in another trial, there might be enough uncertainty to produce a reasonable doubt in each case -- in which case A would have to be acquitted on both charges. There's also no possibility of catching A on a general conspiracy charge, at least in the case of prostitution; Missouri's catchall "promoting prostitution" offense--Chapter 567.010(1)--only applies to someone "acting other than as a prostitute or a patron of a prostitute," and A falls into at least one of these categories by definition.
Another concern for valuation -- the asset is a "thing of value" for whom? Is the value of the copyright subjectively determined by the giver or the receiver, or is it objectively determined by a neutral observer? Could A and B both be patrons, and neither prostitutes, if their valuations of the copyright disagree? And what if A transfers to B something that has significant market value, but that B doesn't necessarily want, such as an unmanageably large amount of scrap metal?
I don't pretend to have the answers to these questions, but I think they hold a great deal of promise. To escape liability, prostitutes might choose to condition their sexual favors on highly complex financial transactions. (Imagine a jury in a prostitution case having to work through the Black-Scholes equation.) So long as the payment has been appropriately cloaked, both patron and prostitute will fall through the cracks of the legal system -- an appropriate reward, perhaps, for their entrepreneurial innovation.
8:45 PM
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Stephen
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Pornography and Prostitution, Part II: What site logs will tell you: SteveSachs is your Internet source for "pornography and prostitution in Missouri"!
Unsurprisingly, that post has generated a fair bit of reader email. First, PW asks, "Is the sex act without the intent to achieve gratification still the sex act?" According to Missouri Revised Statutes chapter 567.010(4), not necessarily. Most acts, when committed in return for a thing of value, are automatically considered "prostitution" regardless of intent. But others must be "done for the purpose of arousing or gratifying sexual desire of either party." (Which are which? I won't go into detail, because despite what you might think, this is a family website.)
PW also distinguishes pornography from the manufacture of murders-on-film on the grounds that (1) the participants in a pornographic video are willing, unlike the unwilling victim of a murder, and (2) the act of sex is itself legal, while murder is not. I don't think either of these distinctions are material as far as legality's concerned. On the first, the participants in an act of prostitution might also be willing, but that doesn't mean it's legal (although that might, depending on one's libertarian convictions, mean it should be). On the second, even if the sex per se is legal, the situation changes once money gets involved. Donating a kidney is itself legal, but doing so on the understanding that I will be paid by the recipient is not.
KW makes the following business proposal:
on your site you question why some enterprising young DA hasn't gone after prostitution. an equally pertinent question would be why hasn't some enterprising young pimp started filming his prostitutes' transactions (with the camera appropriately concealing the identities of certain parties) and paying a buck to each party involved. the money that he receives from the gentleman is for the tape at the end.
(i'll make millions.)
SP, however, counters with the following real-life example (well, from TV, but close enough):
All I know about prostitution vs. pornography is from LA Law, so bear with me but...
The production of pornography does not need to be protected by the First Amendment in that it is not illegal to have sex. It is not illegal to film someone having sex (with their permission). Under the First Amendment, it is not illegal to sell that film or to earn a profit off of it. Therefore, the "actor" is not being paid to have sex but is in fact being paid for the film rights.
It's a fine line, but the main distinction is distribution. As long as you are making money off of the distribution of said film, then you are not paying them to have sex. But if the tape is never distributed (and this is where the LA Law episode comes in) and you are paying two people to have sex for your own viewing pleasure, that IS prostitution, as you are clearly NOT paying them for the film rights.
At least, that's what the porn industry argues.
...
p.s. The "author" of film, even if copyright is established by contract, is the director. That really pisses off writers, but hey, that's the way it goes. So you say usually say Spielberg's "Indiana Jones," even though Lucas wrote it and Paramount still holds the copyright.
I can understand how this argument might be used in practice, by prosecutors who don't want to make trouble. But to be honest, I can't believe that it would stand up in court if the government really wanted to test it. The actors in a pornographic movie clearly participate pursuant to an agreement that they will receive a "thing of value" in exchange for their actions--namely, a share of the valuable film rights. (They might not know exactly how valuable they might be--but would prostitution no longer be illegal if its practitioners were paid in stock options?)
What's important is that the participants know that they will profit from their sexual activity--and they know that, should they suddenly decide not to have sex once the cameras were rolling, they wouldn't get paid. Having sex is believed to be a necessary condition for payment, and that's all the law demands. (Suppose that A lies to B, and engages in sexual conduct without any intention of actually paying. Under Missouri law, even if no money changes hands, A is still guilty of patronizing prostitution--what matters is that A led B to act in the expectation of reward.)
To provide a better example, suppose that I'm a government contractor, and I inform a procurement official that I would like to film the ceremony at which she awards a contract to my company. In fact, I would be willing to give her a share of the rights to the film's distribution, which will be valuable, because all my wealthy friends want to purchase hundreds of copies. It's not illegal for an official to award a contract to my company. It's not illegal to film it (with her permission). Under the First Amendment, it's not illegal to sell that film or to earn a profit on it. Therefore, the official is not being illegally bribed into sending me a plum contract--she's just being paid for the film rights.
If the film had already been made (and the contract awarded) before any suggestion were made of money changing hands, the transaction would be perfectly legal, and there would be no suspicion of bribery. But because the promise of valuable film rights led to the expectation of reward, I couldn't get out of jail by explaining that it was all in the name of cinema. I don't see why money-for-contracts should be treated any differently from money-for-sex; and I don't know why more prosecutors haven't tried their hand at this approach.
UPDATE: See further post above.
