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.
For the opinion, click here.
For the full story, click here and here/
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Jill and Ryan,
Well I always admit when I’ve been corrected. So I’ll tentatively admitting that I was wrong on this one (at least as far as the systems that were mentioned in the side link in the article go). I’m not one-hundred percent convinced, but that’s mainly because of my inherent distrust in the way news organizations report on studies, especially when they’re being used by Governments.
Gyges,
Along that line, I read recently that Amsterdam is shutting down some of its brothels because of the organized crime that has been attracted to the city’s red light district.
Now I had just assumed that the crime had more to do with the hash bars/coffee shops that were allowed to sell illegally imported product was the main factor, but the fact that they are shutting down some brothels shows me that they also contributed to the increased crime.
I think it can work, but I haven’t seen a working model yet that protects the women (or men).
Gyges,
This is part of the story, but there was an interview with a woman who had looked at the studies. I’ll keep trying to find it.–Jill
http://news.bbc.co.uk/2/hi/uk_news/politics/7735908.stm
Gyges,
I did recently hear a report from the BBC on just the issue you bring up. Evidently violence against women is quite high in places where prostitution has been legalized and prostitutes are not safer from violence. I will try to find you the link, as it’s been a few weeks since I heard this.
Jill and Ryan,
While I agree that human slavery in any form should never be tolerated, I wonder if it wouldn’t be easier to spot and punish in a well regulated industry. I’d be interested in seeing a comparison of the occurrence of what you talk about in countries where prostitution is legal versus those where it is illegal. I would think that after the stigma of being worthless criminals was removed, prostitutes would be more likely to report abuse to authorities. The things we all find abhorrent are all illegal regardless of the legal status of prostitution.
I don’t think that legalization by itself wouldn’t be a panacea. I think it certainly would allow the women involved more options like forming a union, working in more public and safer locations, etc. It might also help to end a societal tendency to view them as less than human.
This was on point with ‘Boston Legal’, recently…
Live Action TV
* An episode of Boston Legal had a university professor accused of soliciting prostitution under the guise of “research”. He had made a video of himself with the prostitute that the prosecution was going to use as evidence. But, taking advantage of the odd American legal rule, his own lawyers argue that he actually was creating pornography and was therefore protected under the First Amendment. If it’s porn, it’s not prostitution and therefore not a crime!
o So, in this case, it’s porn and art?
o And SCIENCE!
http://www.tv.com/boston-legal/spring-fever/episode/697127/summary.html
Jill,
You make a great point. All too often people talk about legalizing prostitution as if it takes place is a vacuum, and that there are no other illegal factors involved. It’s a vicious self-sustaining circle of drugs, human trafficking and violence that hides behind the scenes. I personally would like to see it legalized (not out of personal preference…of course) but there remains significant hurdles to that process, mainly making sure that those involved are choosing to do so.
This article points out a small version of what I think would be a working system, that is successful people using “the trade” as a way to make a little cash on the side. Obviously getting rid of the madame would be a main priority too.
http://radaronline.com/from-the-magazine/2008/08/secrets_of_a_hipster_hooker_01.php
I am not addressing the specifics of this story, rather I’m speaking to the idea that prostitution doesn’t involve a crime. I do not believe that is true. There are massive world-wide human trafficing rings– women brought over from Russia and Eastern Europe to the West with the lure of jobs such as waitressing, modeling, etc. who are taken, have the shit beaten out of them, have their passports taken away, are gang raped then turned out as prostitutes. This is not a free choice, this is a criminal act perpetrated on these women. The same happens to women from the Phillipines. Girls and boys are bought and sold in India and Thailand. In our own country, poor children and women are taken and given the same treatment. This gross violation of human rights cannot be covered over as a freely chosen act. When such things happen, and that is often, they should be prosecuted for the crime they are. Here is a story in my small local paper of prostitution in Toledo. We have many poor people here and this is a hugh problem for women and girls in our area. I know some of the people this has happened to. It was not a free choice. They were all sex abuse victims in their family of origin, had the shit beat out of them by pimps and got turned out in fear for their lives.
No doubt some people do choose prostitution as a job and I would not want that woman or man arrested. However I do not see many women who have lucrative careers in other fields chosing prostitution instead of say, being a CEO. I think it is fair to question why so many women who have the opportunity to work in lucrative fields do not choose such work. It is mostly the “choice” of the poor and that should tell us something.
http://www.toledocitypaper.com/view_article.php?id=2142&highlight=prostitution
Strangely enough I had this ‘loophole’ pointed out to me several years ago when someone idly talked about opening a ‘adult talent agency’ where people could pay to film an ‘audition tape’ that they were able to take with them for their portfolio.
I see a defense opportunity for all pimps and prostitutes. Always have a video camera with you and have it running and the cops will not be able to charge you with prostitution. At least not in New Hampshire.