August 02, 2005
Distinctions Without Differences
Posted by Christine Hurt

I'm no Puzzleblogger, but how's this?

What act can you (i) legally ask someone to perform with you for free; (ii) legally ask someone to perform with another person for free; (iii) legally ask someone to perform with another person for a fee in the context of making a film; but (iv) cannot legally ask someone to perform with you for a fee?

You guessed it -- sex.  A trial judge in Manhattan decided to hew to the line that yes, pornography is legal although Person A is paying Person B and Person C to have sex, but prostitution is still illegal because it is a bilateral contract with only two parties.  (I would think that a filmmaking employment contract is technically a bilateral contract, but I'll let that go.)  So, one unanswered question: is it still illegal to ask a prostitute to have sex with another person for a fee?  If I'm a voyeur, can I create a three-person contract and transcend the penal code?  Is it legal to pay someone dying of a disease to be killed in a film?  Can anyone think of any other consensual crime that is legal or illegal depending on the payor or the existence of a camera?

Now, it's unfair to ask a trial judge to push back an age-old law that has quite certainly become illogical to defend in the modern day when unmarried sex is abundant, destigmatized, and free.  To continue to say that two people having sex with money changing hands is something to be criminalized but fifty people having sex in one room is freedom of association is quite a stretch.  Not to mention two or three or four people on salary having sex in front of a camera is a first amendment right.  In 1992, I asked this question at a symposium at my law school.  I think at the time, my conclusion was that pornography should be illegal.  Now, my conclusion would be that prostitution cannot logically be criminalized.

And don't get me started on the differences between derivatives (investments) and difference contracts (gambling).

Hillel Levin has some thoughts here, and here are my earlier thoughts on why gambling laws have been liberalized in the past century, but not prostitution laws.

Crime and Criminal Law | Bookmark

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