by Jay Marshall Wolman
My recent post on the Ninth Amendment got me thinking about Griswold v. Connecticut, and its progeny, including Lawrence v. Texas. Although the latter explicitly stated it wasn’t ruling on prostitution, it didn’t say it wasn’t protected.
Assuming a logical thread from Griswold, the case law is that, basically, whatever two consenting adults choose to do in private is private and the government should not be intruding. There are governmental interests in preventing abuse (based on consent or ability to consent) or preventing public sex, but other than that, how is prostitution still a crime? The government has no interest in restraining two (or more) consenting adults from having intercourse.
States do have the ability to declare certain contracts unlawful–working for less than minimum wage, selling contraband–and otherwise set limits on commercial activity. Thus, I would think that attempted prostitution/solicitation might still be lawfully prohibited (the two are still free to agree to have sex, so there isn’t a restraint a la sodomy prohibitions and attempted sodomy). But, the actual sex act itself is private. And, if violation of constitutional rights results in evidentiary suppression for 4th and 5th amendment violations, then evidence of the sex act itself should be inadmissible. Once inadmissible, the prima facie case disappears and the charge should be dismissed.
I did say attempted prostitution/solicitation might be prohibited. Marc previously distinguished prostitution and pornography, but I think that the First Amendment angle might be a way to go. Producer A can hire Actors B & C to have sex for money, so long as it is expressive activity. Can Producer A also insert himself into the scene with B & C or even with just B? I don’t see why not–Jason Segel produced and acted in Forgetting Sarah Marshall and The Muppets. Basically, so long as you film the encounter (or have a live audience), you can call it expressive activity. And performers have been known to be the videographers–e.g. Blair Witch Project and some documentaries. All that’s left is film distribution issues–so long as the John gets the recording at the end, but with a restriction that he and the prostitute will later have to agree on any viewing by a third person, then the pornography exemption could swallow any law regarding attempted (or actual) prostitution.
This, of course, is just an initial musing, and not a law review article or appellate brief. But, critiques are welcome. How am I wrong on either privacy or 1st amendment (with subsequent contractual) grounds?
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The Legal Satyricon 
your approach might work for the act but I don’t see it as standing up to the solicitation angle. 4th and 5th amendment rights would seem to drop off the table. There does not seem to be any problem of admissibility if someone is caught soliciting, any more than there is for someone caught selling any other illegal good or service.
I agree. That’s why my second prong approach is that it not simply be solicitation of a prostitute, but rather hiring an actress to appear with you in your film.
Here’s how I’m imagining the structure:
Incorporate ProstiSex Productions, Inc. as a film company.
Prostitute is an officer of ProstiSex and either employee or contractor
John signs an agreement with ProstiSex to finance the production of its next feature film (to be shot that night). Contract includes an option to appear in the film, along with the distribution terms noted above.
ProstiSex retains Prostitute as the actress.
John pays ProstiSex the production costs. ProstiSex pays Actress her appearance fee.
How does that not work under the 1st Amendment (at least in California)?
I don’t know the answer. However, this may be a subject worthy of my upper level writing requirement. After finals, I want to look further into it.
There are legitimate governmental bases for criminalizing prostitution. Making it against the law to sell and buy sex begins with the premise that it’s base and exploitative. Whether this is a legitimate governmental concern is straightforward; viz, prostitution, theft, andn gambling are crimes of moral turpitude and carry societal proscriptions apart from their criminality. To uphold the legality of prostitution would exempt it from its societal place as a crime of moral turpitude; a position that few, if any, courts may be willing to take, even in the context of the money-for-sex aspect being some sort of expressive activity.
You are arguing policy, not law.
I can say the same thing about outlawing contraceptives or homosexuality, as they are crimes of moral turpitude. However, the Court basically said what happens in the bedroom is private. If it is private, it should not be admissible evidence. Hence my thought that solicitation might survive as a crime (assuming the film structure isn’t viable), but prostitution cannon since it requires evidence of sex.
I guess that Google may be my friend here, but are there any places (countries/regions/cities) where prostitution has been explicitly legalized based on similar reasoning? Obviously there are cities even here in the US where prostitution (between adults) is basically tolerated by the police (possibly in order to allow them to direct their limited resources to other crimes), but what about legalization? I know that other countries don’t have the same legal structure, but anything similar (prostitution = private sex)?
I would start Googling this, but I’m in the office, and searching for “legalized prostitution” may be unwise on a work computer…
I am not aware of any. I know it is somewhat legal in Nevada, but regulated. I don’t have the legislative debate record. [Same answer for other nations]
Pretty sure there were a couple of cases in Manhattan a few years ago that used the “it’s not prostitution if you’re filming it” scenario successfully. But prostitution is clearly constitutional under the Ninth Amendment, as is drug use. Laws against both are based solely on religious moralism, though certain health guidelines should be put in place for both types of activity (i.e., STD tests for partners; purity requirements for drugs).