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What is the Difference between Pornography and Prostitution. Criminal Defense Attorneys Explain

First of all, pornography, usually abbreviated to porn or porno, is defined as the depiction of nudity or sexual behavior, which is intended to arouse sexual gratification in the viewer.

Pornography comes in different media, including print (adult magazines), drawings, paintings, videos, etc. Prostitution is generally defined as sexual services in exchange for payment. The payment for sexual services in prostitution cases can be money, goods, services, or even a promise. For example, an offer to repair another person's vehicle in exchange for sexual services, could arguably be charged as an act of soliciting prostitution.

Pornography as Protected Free Speech: The production of pornography has some legal protections as conduct that might be protected under the First Amendment to the United States Constitution (protected Free Speech and Free Artistic Expression). On the other hand, prostitution is a crime in all United States except in some parts of Nevada.

Note: Notice, that under the definitions of both pornography and prostitution, that sexual intercourse does not actually have to occur for an act to be considered either pornography, or an act of prostitution. In fact, in California, simply loitering with intent to commit prostitution in a public place may be charged as a prostitution crime (PC653.22(a)-M).

So, what’s the difference between pornography and prostitution? Here are the major differences:

Legality: Prostitution is illegal in most parts of the United States. Only the state of Nevada allows legal prostitution in some areas. The prostitution in Nevada is heavily regulated and allowed only in brothels where the customer visits the prostitute. Also, prostitution brothels are allowed only in Nevada counties where the population is less than 400,000, which excludes the big gambling cities of Las Vegas and Reno. On the other hand, pornography may be viewed in every part of the United States because the production and distribution of pornography has been classified as protected Free Speech related to the United States Constitution’s First Amendment (some legal restriction still apply).

Note: Pornography is legal so long as it does not amount to obscenity. The California courts have chipped away at the definition of obscenity over the years, at least as the term obscenity relates to pornography. Today, pornography is considered obscene, and therefore not protected under the First Amendment (freedom of speech and expression), only if that pornography has no literary, scientific, educational, or artistic value. In practice, the production and distribution of pornography seems limited only by the laws that protect against non-consensual sexual intercourse, i.e.. use of minors in production and distribution of porn, sexual battery, rape, indecent exposure, etc.

Location: (Illegal) Prostitution occurs just about everywhere (whether legally or illegally). Prostitution has been referred to as the oldest profession in the world and modernly takes place in massage parlors, strip clubs, motels, and just about anywhere a person can imagine. On the other hand, most pornography is filmed in California and distributed from that state because of that states’ court decisions that have legally protected pornography production and distribution over the years.

Actors Used in Porn: Pornography uses “actors” who are paid to portray sexual behavior, including the real portrayal of sexual intercourse, which is intended to arouse the viewer of the pornography. Prostitutes are paid to provide a sexual service, which is intended to arouse the payer of the prostitute.

In other words, the porn actors are supposed to be providing a value to the audience and the prostitute is supposed to be providing a value to the participant of the sexual act. Therefore, the intent of the person engaging in a sex act in a porn film is to arouse the viewer or to provide some literary, scientific, artistic, or educational value; the intent of the prostitute is to arouse the person who is actually engaged in the sex act. The compensation paid to porn actors is not considered payment for sex, but rather, payment for performance of a sexual act. The fact that the porn actors are actually engaging in, and might even enjoy, sex for payment is irrelevant to the question of whether or not pornography is equal to prostitution.

Note: The difference between pornography and prostitution becomes very blurred when viewed in light of the payment-in-exchange-for-sex definition. This is especially true when the porn actors are also the producers of the porn (the same person who paid for the sex is engaging in the sex), when the production of pornography includes the use of an audience member who paid to be included in the porn (auctions used by porn companies where the winner of the auction engages in sexual intercourse with a porn actor), where the camera operator involves himself in the sex act, or in live sex performances where the audience member directly pays the porn actors to sexually stimulate the non-participating audience member. These issues have seriously blurred the lines of distinction when comparing prostitution to pornography.

Payment: In pornography cases, the porn actors are paid to engage in sexual intercourse, whether simulated or real, with the intent to sexually arouse another person who is not engaging in the sexual activity (or provide some value, such as literary, educational, artistic, scientific value, etc.). In prostitution cases, the person paying the prostitute is the same person who engages sexually with the prostitute.

Note: A situation where a third person pays a prostitute so that the prostitute may engage in sexual intercourse with a non-payer should still considered prostitution because the payment is not made to sexually stimulate a person who is not involved in the sexual intercourse; the payment is made for the purpose of sexually stimulating a participant to the sexual act.

Of course, in this situation, the person who engages in sexual activity with the prostitute might not know that the prostitute is acting as such (paid by another person for his or her sexual services). This could lead to a defense against prostitution charges for the person who did not know that he or she was engaging in sexual services for payment. On the other hand, the person who paid the prostitute to engage in prostitution services with a third person could be charged under prostitution laws.

Filming: A porn is filmed or recorded in some manner. The reason for this is clear: the sexual intercourse in a porno is supposed to provide some literary, artistic, scientific, or educational value to a person who is not involved in the sex act. The only way for that to occur is either with a live sex show, which more closely resembles prostitution (see above) or for the viewer to view the pornography in a picture or movie. In fact, pornography that is not filmed could be evidence that the sexual activity is related to prostitution as opposed to protected First Amendment Free Speech. On the other hand, the filming of acts of prostitution does not create a porno which enjoys First Amendment Free Speech protection.

In fact, most prostitution occurs off-camera because the video recording of an act of prostitution can usually be used as evidence against either the person paying for the prostitute ("John") or the prostitute. In other words, simply recording an act of prostitution does not turn that prostitution act in porno that enjoys legal protections.

Note: It is usually legal for a porn movie to portray and act of simulated prostitution, so long as the portrayal does not amount to obscenity or involve minors, because the purpose of the portrayal is intended to arouse a person not participating in the porn (or provide some literary, education, scientific, artistic value, etc.). On the other hand, an act of prostitution is not legal in most states, even if the participants to the prostitution are pretending to make a porno.

Registration and Regulation: Pornography is regulated by the government. Porn production companies, often called porn studios, must comply with laws that allow government involvement in the process of production and distribution of porn magazines and movies. This government regulation includes requiring pornography companies to keep a custodian of records. The custodian of records keeps vital information on the porn actors, including the age of the actors, current HIV results of the actors, and the income and business records of the actors, producers, agents, etc. (other legal requirements apply). On the other hand, there is no custodian of records in prostitution cases (outside of some parts of Nevada).

Note: The regulation of pornography might allow the porn actors to receive unemployment benefits, file workers’ compensation claims, and other work-related benefits that are enjoyed by some employees in other industries. Also, the regulation of pornography helps to keep the human sex trafficking away from the industry and helps keep the porn actors safe by ensuring that the porn actors are free of sexually transmitted diseases (STD) before they engage in sex acts. Finally, regulation of the porn industry allows the government to receive the tax benefits of the actors’ employment.

Public Outlook: Another difference between pornography and prostitution is the public’s outlook on these respective industries. Porn actors can be famous and well-respected. In fact, the term “porn star” is commonly used in the pornography industry when referring to a porn actor, even when the porn actor is not genuinely famous.

On the other hand, the term prostitute is usually considered a disparaging or dysphemistic term. In fact, the terms pimping and pandering, are usually used only in the context of prostitution, even though the conduct that defines those criminal terms is somewhat similar to the conduct used by producers and agents in the porn industry.

Note: Early cases involving pornography were prosecuted under pimping and pandering laws. A pimp is a person who receives money from the sexual exploitation of a prostitute. A panderer is person who procures or encourages another person to engage in prostitution. The terms pimping and pandering are not used in the porn industry when referring to persons who receive money for producing and encouraging sex acts because the sex acts that those persons are producing and encouraging are not themselves defined as illegal (usually).

Protection (similar to regulation above): The difference in pornography and prostitution is clearly contrasted in the amount of protection afforded to the sex workers in the related industries: For porn actors, the participants have some assurance that the person with whom they engage in sexual activity is free of disease. This is one of the benefits of government regulation of the porn industry.

Also, porn actors are usually surrounded by many people in the production of the movie while the pornography is being filmed. This creates personal protection for the porn actor(s), especially if the porn actor(s) changes his or her mind about engaging in consensual sex.

By contrast, prostitutes have little or no personal protection when engaging in prostitution. In fact, prostitutes that are controlled by pimps are often subjected to violence by their respective pimps. Some prostitutes work in a massage parlor, where a “manager” might provide some security to the prostitute, but the manager of a massage parlor where prostitution is known to take place will usually avoid adequate security or control of the actual massage rooms so as to avoid criminal charges of keeping a house of prostitution, or "peeping Tom" charges.

Note: As stated, there are huge differences in pornography and prostitution when it comes to legal protections, but legal protections against unconsented-to conduct applies to both pornography and prostitution.

For example, neither a porn actor, nor a prostitute, can flash his or her nudity towards an unsuspecting public (indecent exposure). Indecent exposure laws are not circumvented just because a porn actor describes himself as such. If that were the case, a porn actor, or even a porn producer, would be granted a license to victimize people.

In fact, in prostitution cases, the prostitute is often charged with the crime of indecent exposure when he or she reveals his or her private parts to a prospective customer or undercover police officer in a sting operation.

Note: The term revenge porn is used to describe a situation where a defendant, who operates without the consent of another person, exposes or distributes the other person’s private pictures or movies that involve the sexual activity or nudity of that other person (sexually explicit material). The intent of the defendant in a revenge porn case is to humiliate or embarrass the person depicted in the exposed or distributed pictures or movies. Revenge porn is usually associated with an ex-boyfriend or ex-girlfriend who intends to embarrass the other as an act of revenge. Revenge porn is neither true porn, nor an act of prostitution. For more information, see California Revenge Porn Law.

Public Nuisance Issues: Pornography and prostitution are different in terms of the perceived public nuisance associated with these industries. Prostitution is usually considered a public nuisance; whereas, pornography does not usually have that same public nuisance aspect. The reasons for this difference is obvious: Prostitution is usually local and apparent, such as street prostitutes, massage parlors, and even strip clubs that pepper a particular neighborhood. These prostitution related activities tend to bring an unwelcomed blight to the community in which they are located.

On the other hand, pornography is usually produced in a place far from the pornography viewer and the viewing of the pornography is not usually apparent to the neighborhood.

Sexual Simulations Possible in Pornography: Another big difference between pornography and prostitution concerns the ability to simulate a sexual activity in porno. With pornography, it is possible to simulate sexual intercourse, even if no actual contact occurs between the porn actors. In fact, pornography can involve non-human characters, such as cartoons, drawings, paintings, animation, and more. On the other hand, prostitution is not simulated and always involves real people.

Note: Most pornography involves non-simulated sexual intercourse between two or more real persons. In other words, the participants in a porn movie are actually engaging in sexual intercourse and nothing is simulated unless the desired affect is a simulated sexual intercourse portrayal.

Remember, even if the participants in a porn movie are enjoying sex, that fact will not usually turn pornography into prostitution. This is because the point of the pornography is to sexually stimulate the viewer, or provide some value beyond sexual stimulation (i.e. artistic, scientific, educational, etc.). The First Amendment Free Speech protection applies to pornography even if the porn actors are incidentally sexually stimulated while simulating sexual activity.

Biblical References: There is no reference to the term pornography in biblical texts. However, there are references to the term prostitution in biblical texts. Most of the biblical references to prostitution discuss prostitution as an immoral concept. This might account for some of the reasons that prostitution is an act that is considered immoral in society. The terms porn producer, porn distributor, and porn actor do not carry the same level of negative connotation in society that the terms prostitution or prostitute carry. This is likely a result, at least in part, of the fact that pornography has not been previously classified as an immoral act in ecclesiastical texts.

Survivability: Pornography was created in the mid-20th century. That is not to say that people have not created, distributed, or viewed pictures, movies, drawings, painting, or acts depicting sexual activity before the mid-20th century. It simply means that pornography was created as a legal right of expression in the mid-20th century in response to obscenity laws that attempted to prosecute the production and distribution of sexually explicit materials.

During the mid-20th century, a line of criminal and civil cases overturned obscenity laws on the ground that those laws could infringe on the defendant’s right to Free Speech and Free Expression where legitimate art was included with sexually explicit content. Before the mid-20th century, pornography would be described as the production, distribution, or viewing of sexually explicit materials, but no rights to that conduct were announced.

On the other hand, prostitution is often referred to as the oldest profession in the world. Prostitution survives and thrives, and will likely continue to survive and thrive, regardless of legislature or judicial approval.

Taxes Generated: Any discussion of the differences between pornography and prostitution usually includes the ability to tax one (pornography) and not the other (prostitution)

The tax and licensing revenue generated by the porn industry is massive. Porn actors are taxed on their respective incomes and those incomes are verifiable because of the record-keeping requirements placed on porn companies. The porn studios must maintain business licenses and pay production fees to government agencies in order to continue the porn company’s business operations (among other requirements).

On the other hand, prostitution is not regulated outside of some parts of Nevada; therefore, the government does not generate tax revenue directly from prostitution activities. The ability to tax one industry (pornography) over the other (prostitution) is often cited as another reason that explains why pornography is legally permitted and prostitution is not legally permitted.

In other words, there is an existing argument in society that states pornography is factually no different than prostitution, but the law created differences between the two by creating a legal fiction that applies to one industry and not the other, with the purpose and intent of generating tax revenue on a potentially massive tax-generating industry, and which was not likely to subside, regardless of the government’s efforts.

Note: There are current efforts by different groups to either decriminalize prostitution, or to criminalize the acts related to the production of pornography.

With respect to the decriminalization of prostitution, the arguments advanced in favor of this concept include: legitimize the “profession” so as to ameliorate the negative connotation of the profession, raise tax revenue, provide legal protection for the sex workers, reduce sex crimes, reduce expensive law enforcement commitments to curb prostitution, and more.

Arguments against decriminalizing prostitution include: Prostitution will legitimize behavior that exploits women and children, legitimize immoral and sinful behavior, expand the spread and rate of transmission of sexually transmitted diseases (STD), entice infidelity, and more.

The pros and cons of criminalizing pornography have not been discussed in society as much at the pros and cons of decriminalizing prostitution. With that said, the most common argument advanced in support of criminalizing conduct that is currently protected as pornography includes: pornography exploits women and children, pornography creates a society where women are viewed as sexual objects, pornography creates a lowered self-image or self-worth in women because so much focus on a woman’s beauty is equated to her desirability in pornography, and more.

Remember: Prostitution is illegal in California (PC 647(b)(2)). If you are accused of committing a violation of any civil or criminal law you should contact a lawyer immediately.

Also, the above listed information is not intended to serve as a substitute for legal advice. No attorney-client relationship is created by use of this information. This information is not guaranteed to be accurate despite our best efforts to provide current and accurate information. Finally, the author is not advocating for or against any position related to the justification, legality, or morality of either pornography or prostitution, other than to state that prostitution is currently illegal in California and no one should violate California law.

For more information on the differences between prostitution and pornography, see Miller v. California (1973), People v. Freeman (1989), Prostitution Crimes in California (PC 647(b)(2), PC 653.22(a), PC 315), and more. To talk to a criminal defense attorney familiar with California pornography laws and prostitution crimes, call today!


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Prostitution v. Pornography


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