Steve Sachs Duke


Thursday, March 11, 2004


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the owner of an asset--shares in a private corporation, very complex financial instruments, the copyright in an as-yet-unpublished work of unspecified sentimental value (say, "The 'Law Merchant' and the Fair Court of St. Ives, 1270-1324")--whose worth is not easily assessed.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.




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