The Prostitute and the Porn Star

The other week, when the former governor of New York was busy getting busted for hiring a prostitute, a bunch of sex-positive liberals came crawling out of the woodwork to point out that maybe prostitution should be legal.

The point was endlessly discussed in blogs, on news sites, even in the New York Times. And then Andrew Sullivan said (as quoted in The Marginal Revolution,

We live in a country where it's legal to pay two people to have sex and film them and sell the film; it just isn't legal to pay two people to have sex and simply watch them. That's what I call absurd.

Good sex-positive liberal that I am, I looked at this and frowned to myself and said, "Huh, that is weird." And I sent the quote to some of my friends, who all said approximately the same thing I had said; I assume that you, reading the quote now, are also saying to yourself, "Gosh, that's odd," or words to that effect[1].

Of course the question which sprang immediately to my mind was, "Why is it weird?" What is it about this situation which strikes us all as bizarre?

Americans, of course, are capitalists, which means that we have a strong attachment to the idea of property and privacy. Having money allows us to purchase things, for example a house or the use of a hotel room, and because we own this place and no one else does, we are entitled to the use of it without being disturbed[2].

In public places, we enjoy what I believe has been called a diminished expectation of privacy, which is to say that some things - quite a number of things - which we do in private without consequence are not entirely or at all legal when moved into the public sphere. I can walk around my apartment naked, but if I were to walk down State Street in the same state of dishabille, I would quickly be taken into police custody. This is based on public decency, which is of course a social construct, but one we must obey[3].

So we have one category of things, like nudity and (non-prostitute-involving) sex, which are legal in private and illegal in public. We have another category of things (like murder or rape) which are equally illegal in both public and private. But is there anything which is illegal in private, yet becomes legal when done publicly?

I thought about this for a long time, and nothing came to mind. This is, then, where the paradoxical feeling springs from, in the prostitute vs porn star debate: both of them are the same in private, but one is later publicized - and it's legal, whereas the one which remains private is illegal. So this brings me to my second question, which is, "What's the difference?" There's some rational behind this law (or there should be), but what is it?

The two acts seem virtually identical, especially when phrased the way they've been set out above. In fact, if you were to pay the two prostitutes to have sex and film it, and then later show that film to people, that would still be illegal. Even when we make the two acts exactly the same, then, they're still different. What's going on here?

If the acts are the same, maybe those doing the acting are what's different. The prostitute and the porn star. That there is a difference is intuitive, but when I considered what they actually do a little more closely, it started to fall apart. To wit, both accept money and have sex with people, either those paying them or those designated by those paying them. Both may actually enjoy their jobs or not, but will certainly give all pretense of enjoyment to those employing them. Both may turn up on film from time to time. But there is a difference.

Intent is a huge part of our legal system. For example, if I shoot a man in Memphis just to watch him die, that's murder. And if I shot him while I thought he was asleep, but he had in fact died of a massive stroke a few minutes earlier, that's attempted murder. Whether or not I actually killed him is less important than the fact that I meant to kill him. Similarly, if you get angry at your cheating husband and run him over with your car, that's murder. If you fall asleep at the wheel and run into a highway divider, killing your cheating husband in the process, that's unintentional homicide or a dumb accident or any number of things - but it's not murder, because it clearly wasn't the intent of the driver (you) to kill the passenger (your husband).

Similarly, when you hire a couple of porn stars to have sex on camera, you are hiring them for the purpose of making a film. You could be hiring them to read Hamlet naked on tape, or you could be hiring them to ride bicycles fully clothed, or any number of things; it's all legally the same. This can't be stopped for the same reason we can't stop Hollywood from making films staring Paris Hilton: canceling a film, or excising part of it, or whatever, on the basis of things like taste or decency is censorship, and therefore something which falls squarely under our first amendment rights.

On the other hand, when you hire a prostitute or two, you are hiring them for sex, by definition. If you were hiring them to play Go with you or something, they wouldn't be prostitutes, they would be something like the companions who visit old people. The intent is crucial - whether or not you or the film's director or anyone ever gets off on the proceedings is immaterial.

It's outside of my scope to say whether or not the laws themselves are just, or the acts which they govern are morally acceptable, but this does raise an interesting question: if an aging man hires a prostitute but, being unable to perform, sits down fully clothed to play a game of Go with her, also fully clothed, can he still be arrested for prostitution? Offhand, I'd say yes, because the intent was there, but the defense would almost certainly argue that the man just wanted a Go partner; that's the problem with intent, it's so difficult to prove what someone actually intends to do. But I can just imagine the bad headlines.

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[1] If you don't think it's odd, you're excused. This probably won't be of interest to you.

[2] For more on how this leads to the downfall of society, see Karl Marx's The German Ideology. For more on how this is normal and even beneficial, see John Locke's Second Treatise on Government or Robert Nozick's Anarchy, State, and Utopia. Marx, of course, goes on to talk about how ownership causes the stratification of society, the oppression of the poor, and so forth. You don't have to accept this little communist critique for my purposes, you just have to agree that Americans think privacy is very important.

[3] In France, public decency dictates other things, like it's okay to be topless on public beaches, where in America this is not the case. It's just something we make up to make our lives easier, and Americans have made it up in a particular way. I'm not saying if it's right or wrong; that's not really the point.