There is another interesting case to emerge from the New Hampshire Supreme Court. A former district court bailiff, Robert Theriault, 51, was charged with prostitution after offering a couple $50 to allow him to videotape them having sex. The Court ruled in the opinion below that the state could not prosecute him for prostitution on first amendment grounds since this is precisely what people do in making pornographic movies — which constitutes protected speech. One could call this the Isherwood Defense from Christopher Isherwood’s 1955 movie class, “I Am A Camera.”
For those who have a libertarian opposition to the criminalization of prostitution, the ruling hits on a strange contradiction in our laws. People can pay other people to have sex or accept money to have sex while being filmed. However, if you have sex for money without a camera, you are engaged in a criminal act.
Yet, this is the distinction that ultimately turned the case in New Hampshire.
Theriault remains convicted in an earlier case because the courts ruled that his lawyer argued that the entire law should be thrown out because it was too broad. The court held that Theriault and his attorney had not alleged a specific problem with the law. In the second case, he was more specific and focused on the question of intent.
The justices ruled that “[t]here was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video.”
Merrimack County prosecutor Wayne Coull, who prosecuted Theriault in both cases, is still deciding how to proceed, though pursuing serious crime might be an option. If these movies are consensual and he was not offensive or threatening in his offer, this would not appear to be the greatest priority for Coull’s attention unless Merrimack County is crime free.
The case, however, should serve to focus our attention on the obvious disconnect in our laws. It is hard to see why adults can be criminalized for selling sex without a camera but openly engaged in the same act with a camera. One only need an IPhone or video capability on a cell phone to transform oneself from a “John” to a producer. The determinative element is now a camera rather than consent of the parties. For libertarians and others, prostitution should be treated as a consensual act between adults.
Notably, the New Hampshire Supreme Court recently ruled in the equally interesting question of virtual or computer generated porn, here.