7 ms·

tldr: the article asks why is porn legal and prostitution illegal when both are being paid for sex. I never really thought about that distinction before. The a

tldr: the article asks why is porn legal and prostitution illegal when both are being paid for sex. I never really thought about that distinction before. The author's answer makes sense. What it really shows is that prostitution should be legal.

alicewales 10y ago
I guess in the case of pornography, both participants are being paid by a third party (the producer) for taking part in the sex act. This is different from a typical prostitute/client relationship, where one is paying the other for sex. (I don't know if this is addressed in the article - the site seems to have fallen over.)
- pavel_lishin 10y ago
  That's one of the criteria, yep. Another one is legal forms required for producers and actors - there are forms that each actor must fill out, these must be verified and kept. Not doing so is a felony.
  - irishcoffee 10y ago
    So, I can't believe I'm about to say this: this kind of presents a prostitution loophole, no? As long as a 3rd party is involved, and "films" it (still, unmanned camera in the room) and everyone fills out the paperwork, and the 3rd party handles the payment (minimum wage for party A, minimum wage + $X for party B), party A "buys some porn" at the curious cost of minimum wage + $X. Am I missing something? Did I explain this poorly?
    - ge0rg 10y ago
      I suppose most customers will be strongly opposed to being filmed, for fear of blackmail or leakage.
    - pdpi 10y ago
      "A" buying for minimum wage + $X won't pass the smell test. Judges aren't automatons blindly following a set of rules, they're (usually, pretty clever) human beings with both the capacity and the authority to use their best judgement in interpreting the law.
    - burkaman 10y ago
      Law is not code, prostitution as a concept is illegal. This is sort of like wondering if you could avoid income tax by just doing a bunch of favors for your really good friend, and then getting a totally unrelated Christmas present from them.
      - bfstein 10y ago
        FWIW, this is taxable by law. Gifts above a certain amount (I believe $10k) are taxed as normal income.
        cbr 10y ago
        It's also not a gift if it's compensation for doing work.
        _audakel 10y ago
        but then doesn't the reciever have to pay taxes?
        akurtzhs 10y ago
        At least in the US, this is incorrect. There is a gift tax, but it's paid by the donor, and they can give up to the annual exclusion amount a year without hitting it. This year, the limit's $14,000. Once a gift goes past that for the year, the excess starts counting against the donor's lifetime exclusion and needs to be reported on the donor's taxes. Gift taxes come into play once the lifetime exclusion limit is exceeded, and it's $5.4 million.
      - pc86 10y ago
        > Law is not code Remembering this would put a stop to 90% of legal "discussions" on HN.
        mcphage 10y ago
        It's disappointing how many people here imagine that an incredibly transparent ruse will get them out of legal difficulties no problem. It's like they can't conceive that yes, other people have thought of it before, and yes, it's transparently obvious, and no, you can't get away with a crime with a "gotcha!".
    - quirkafleeg 10y ago
      From the article: I get a handful of calls per year from guys who think they're the first geniuses to come up with the great idea of setting up a "Freeman Brothel" and calling it a "film studio." They're all disappointed when I tell them that they're not getting away with this "brilliant plan" unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place?
      - AndrewKemendo 10y ago
        So, yes? The author incredulously assumes that "it's not worth it" in which case it actually might be worth it for someone and that is an avenue to do it.
    - schoen 10y ago
      The linked article is primarily about this scenario.
    - jessaustin 10y ago
      A friend who claims to have watched a fair amount of free online porn suspects that many of the "POV" sites are basically just fat ugly trust-fund dudes paying for intercourse with attractive young women, in those particular locales in which lots of attractive young women are interested in "getting started in porn". (SoCal, Miami, Eastern Europe, etc.) The "producer" and "camera operator" and "actor" seem all to be the same person.
      - pavel_lishin 10y ago
        I've watched some of the porn that's like what you describe, and yeah, it seems to be the same camera guy every time - and nobody else but the girl - but I think the key distinction is that they market themselves, they do sell the videos, and they are actually producing porn that a lot of people end up watching. One of the things the article points out is that if you're going to "exploit the loophole", it's going to take about as much work as actually running a production company. This seems to be the case here. (And, presumably the guys in question are also keeping records of the actresses, filling out all the paperwork, etc. No fun going to prison for fucking a 17 year old on camera.)
      - AndrewKemendo 10y ago
        Oh man, maybe that's why there is so much free porn out there!
- bashinator 10y ago
  That might once have been true, but these days most of the public own a pocket-sized video production and distribution studio.
Avshalom 10y ago
The article isn't about why is one legal and the other not so much as how the law distinguishes between the two cases.
finid 10y ago
What it really shows is that prostitution should be legal. That's not going to happen easily. And that's partly because it will take away an avenue for filling up prisons. And undercover cops doing the prostitution beat are not going to like it. But I'm sure if politicians see a tax benefit from legalizing it, they will show some interest.
- ska 10y ago
  Are prostitution related convictions actually representing a significant fraction of prison population? That would surprise me, at least.
- BurningFrog 10y ago
  The undercover cop lobby is not actually that powerful. Prostitution is kept illegal mostly because that's what the majority of voters strongly prefer.
  - thephyber 10y ago
    I would argue it's more a case of concentrated benefits and diffuse costs. I doubt most people strongly want to outlaw adult, consenting prostitution. But the religious (socially conservative, etc) lobby is loud and participates when the law is challenged. The majority if people don't, so they tend to get what the anti-protitution lobby wants.
    - BurningFrog 10y ago
      Checking the facts, we're both a bit off. From https://today.yougov.com/news/2015/09/01/country-split-legalizing-prostitution/ https://today.yougov.com/news/2015/09/01/country-split-legal... : "44% of Americans think that prostitution should be legal while 46% think that it should be illegal. Democrats tend to support rather than oppose legalization (50% to 40%) while most Republicans oppose rather than support legalization (54% to 34%). Independents are evenly split, 45% to 45%." As I expected, men are more pro legalization (59%) than women (30%). I think you underestimate the left's anti prostitution fervor. Their stated arguments are around exploitation and trafficking.
thephyber 10y ago
The site won't load, but... In the USA, porn has been largely protected under the 1st Amendment. It is important to note that some pornography is not legal. This is usually called "obscene" and the standards are judged by your local community. There was a famous SCOtUS decision whereby the opinion used the test of "I know it when I see it"[1] to judge the threshold between legal porn and illegal porn, which I find problematic to the point of not being a useful law. You are at the whims of the delicate sensibilities of your neighbors on a jury when you are accused of consuming illegal porn. Side note: there is a great scene in a movie on the Muhammed Ali SCOTUS case where the justices spend one day a week reviewing "evidence" of another ongoing case involving porn. [2] Prostitution is usually prohibited because American protestantism (typically in the form of social pressure or local laws) is largely prudish. This is the same social pressure that brought about the alcohol prohibition (with the dubious distinction of being the only Amendment to have been repealed). It is hyperbolized in the movie Footloose in the form of drinking (which leads to unplanned non marital sex, of course!) and dancing (the horror!). Prostitution, specifically, is usually outlawed because of the effects on public health (both medical health and the mental/social health of men who use prostitutes), and fear of the unknown (violence and other associated crime). Many communities in the US already legalize some forms of sex work (phone sex, video and still camera pornography, bikini waitresses, strip clubs, etc) or perhaps better worded, can not outlaw them. NIMBYs are largely to credit for the threshold of where a community draws a line on local sex work. Nevada brothels are still legal in many of the less populated counties, but the legal brothels are regulated, the girls must register with the sheriff's office, and they are all tested for medical issues frequently. The US has had a long history with using the law to outlaw "socially undesirable" behaviors (put another way, the prevailing social cohort is able to control other unapproved cohorts with the law, creating something of a tyrant of the majority). I firmly believe that marijuana is much less dangerous than many other, more acceptable drugs which have been legalized (like alcohol and tobacco). Even legal gambling is a much larger risk to public health than marijuana. But marijuana (which I don't use) prohibition has, in the past, been a convenient tool to outlaw to control non-white populations in the US and to prevent a drop in the insane work ethic protestants require of their community, similar to how the alcohol prohibition was sold to other WASPs by controlling those "unruly" Southern Europeans during a generation when the US was becoming increasingly fearful of its changing demographics. Like many other prohibitions, prostitution is hard to police and the side effects of the prohibition are probably worse than if the action were legalized. Modern prostitution is a fund-raising tool for drug cartels, people smugglers, and has contributed to a rise in modern slavery. [1] https://en.wikipedia.org/wiki/I_know_it_when_I_see_it https://en.wikipedia.org/wiki/I_know_it_when_I_see_it [2] http://www.imdb.com/title/tt2061756/ http://www.imdb.com/title/tt2061756/
davesque 10y ago
Just for the sake of debate, maybe there's an argument against prostitution since, presumably, it would take place on a much larger scale? This could lead to things like faster spread of STDs?
- cheiVia0 10y ago
  But the government can also mandate frequent STD tests and safety reqirements. AFAIR Netherlands, where prostitution is legal, has the lowest STD rates.

alicewales 10y ago

I guess in the case of pornography, both participants are being paid by a third party (the producer) for taking part in the sex act. This is different from a typical prostitute/client relationship, where one is paying the other for sex. (I don't know if this is addressed in the article - the site seems to have fallen over.)

pavel_lishin 10y ago
That's one of the criteria, yep. Another one is legal forms required for producers and actors - there are forms that each actor must fill out, these must be verified and kept. Not doing so is a felony.
- irishcoffee 10y ago
  So, I can't believe I'm about to say this: this kind of presents a prostitution loophole, no? As long as a 3rd party is involved, and "films" it (still, unmanned camera in the room) and everyone fills out the paperwork, and the 3rd party handles the payment (minimum wage for party A, minimum wage + $X for party B), party A "buys some porn" at the curious cost of minimum wage + $X. Am I missing something? Did I explain this poorly?
  - ge0rg 10y ago
    I suppose most customers will be strongly opposed to being filmed, for fear of blackmail or leakage.
  - pdpi 10y ago
    "A" buying for minimum wage + $X won't pass the smell test. Judges aren't automatons blindly following a set of rules, they're (usually, pretty clever) human beings with both the capacity and the authority to use their best judgement in interpreting the law.
  - burkaman 10y ago
    Law is not code, prostitution as a concept is illegal. This is sort of like wondering if you could avoid income tax by just doing a bunch of favors for your really good friend, and then getting a totally unrelated Christmas present from them.
    - bfstein 10y ago
      FWIW, this is taxable by law. Gifts above a certain amount (I believe $10k) are taxed as normal income.
      - cbr 10y ago
        It's also not a gift if it's compensation for doing work.
        _audakel 10y ago
        but then doesn't the reciever have to pay taxes?
      - akurtzhs 10y ago
        At least in the US, this is incorrect. There is a gift tax, but it's paid by the donor, and they can give up to the annual exclusion amount a year without hitting it. This year, the limit's $14,000. Once a gift goes past that for the year, the excess starts counting against the donor's lifetime exclusion and needs to be reported on the donor's taxes. Gift taxes come into play once the lifetime exclusion limit is exceeded, and it's $5.4 million.
    - pc86 10y ago
      > Law is not code Remembering this would put a stop to 90% of legal "discussions" on HN.
      - mcphage 10y ago
        It's disappointing how many people here imagine that an incredibly transparent ruse will get them out of legal difficulties no problem. It's like they can't conceive that yes, other people have thought of it before, and yes, it's transparently obvious, and no, you can't get away with a crime with a "gotcha!".
  - quirkafleeg 10y ago
    From the article: I get a handful of calls per year from guys who think they're the first geniuses to come up with the great idea of setting up a "Freeman Brothel" and calling it a "film studio." They're all disappointed when I tell them that they're not getting away with this "brilliant plan" unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place?
    - AndrewKemendo 10y ago
      So, yes? The author incredulously assumes that "it's not worth it" in which case it actually might be worth it for someone and that is an avenue to do it.
  - schoen 10y ago
    The linked article is primarily about this scenario.
  - jessaustin 10y ago
    A friend who claims to have watched a fair amount of free online porn suspects that many of the "POV" sites are basically just fat ugly trust-fund dudes paying for intercourse with attractive young women, in those particular locales in which lots of attractive young women are interested in "getting started in porn". (SoCal, Miami, Eastern Europe, etc.) The "producer" and "camera operator" and "actor" seem all to be the same person.
    - pavel_lishin 10y ago
      I've watched some of the porn that's like what you describe, and yeah, it seems to be the same camera guy every time - and nobody else but the girl - but I think the key distinction is that they market themselves, they do sell the videos, and they are actually producing porn that a lot of people end up watching. One of the things the article points out is that if you're going to "exploit the loophole", it's going to take about as much work as actually running a production company. This seems to be the case here. (And, presumably the guys in question are also keeping records of the actresses, filling out all the paperwork, etc. No fun going to prison for fucking a 17 year old on camera.)
    - AndrewKemendo 10y ago
      Oh man, maybe that's why there is so much free porn out there!
bashinator 10y ago
That might once have been true, but these days most of the public own a pocket-sized video production and distribution studio.

Avshalom 10y ago

The article isn't about why is one legal and the other not so much as how the law distinguishes between the two cases.

finid 10y ago

What it really shows is that prostitution should be legal. That's not going to happen easily. And that's partly because it will take away an avenue for filling up prisons. And undercover cops doing the prostitution beat are not going to like it. But I'm sure if politicians see a tax benefit from legalizing it, they will show some interest.

ska 10y ago
Are prostitution related convictions actually representing a significant fraction of prison population? That would surprise me, at least.
BurningFrog 10y ago
The undercover cop lobby is not actually that powerful. Prostitution is kept illegal mostly because that's what the majority of voters strongly prefer.
- thephyber 10y ago
  I would argue it's more a case of concentrated benefits and diffuse costs. I doubt most people strongly want to outlaw adult, consenting prostitution. But the religious (socially conservative, etc) lobby is loud and participates when the law is challenged. The majority if people don't, so they tend to get what the anti-protitution lobby wants.
  - BurningFrog 10y ago
    Checking the facts, we're both a bit off. From https://today.yougov.com/news/2015/09/01/country-split-legalizing-prostitution/ https://today.yougov.com/news/2015/09/01/country-split-legal... : "44% of Americans think that prostitution should be legal while 46% think that it should be illegal. Democrats tend to support rather than oppose legalization (50% to 40%) while most Republicans oppose rather than support legalization (54% to 34%). Independents are evenly split, 45% to 45%." As I expected, men are more pro legalization (59%) than women (30%). I think you underestimate the left's anti prostitution fervor. Their stated arguments are around exploitation and trafficking.

thephyber 10y ago

The site won't load, but... In the USA, porn has been largely protected under the 1st Amendment. It is important to note that some pornography is not legal. This is usually called "obscene" and the standards are judged by your local community. There was a famous SCOtUS decision whereby the opinion used the test of "I know it when I see it"[1] to judge the threshold between legal porn and illegal porn, which I find problematic to the point of not being a useful law. You are at the whims of the delicate sensibilities of your neighbors on a jury when you are accused of consuming illegal porn. Side note: there is a great scene in a movie on the Muhammed Ali SCOTUS case where the justices spend one day a week reviewing "evidence" of another ongoing case involving porn. [2] Prostitution is usually prohibited because American protestantism (typically in the form of social pressure or local laws) is largely prudish. This is the same social pressure that brought about the alcohol prohibition (with the dubious distinction of being the only Amendment to have been repealed). It is hyperbolized in the movie Footloose in the form of drinking (which leads to unplanned non marital sex, of course!) and dancing (the horror!). Prostitution, specifically, is usually outlawed because of the effects on public health (both medical health and the mental/social health of men who use prostitutes), and fear of the unknown (violence and other associated crime). Many communities in the US already legalize some forms of sex work (phone sex, video and still camera pornography, bikini waitresses, strip clubs, etc) or perhaps better worded, can not outlaw them. NIMBYs are largely to credit for the threshold of where a community draws a line on local sex work. Nevada brothels are still legal in many of the less populated counties, but the legal brothels are regulated, the girls must register with the sheriff's office, and they are all tested for medical issues frequently. The US has had a long history with using the law to outlaw "socially undesirable" behaviors (put another way, the prevailing social cohort is able to control other unapproved cohorts with the law, creating something of a tyrant of the majority). I firmly believe that marijuana is much less dangerous than many other, more acceptable drugs which have been legalized (like alcohol and tobacco). Even legal gambling is a much larger risk to public health than marijuana. But marijuana (which I don't use) prohibition has, in the past, been a convenient tool to outlaw to control non-white populations in the US and to prevent a drop in the insane work ethic protestants require of their community, similar to how the alcohol prohibition was sold to other WASPs by controlling those "unruly" Southern Europeans during a generation when the US was becoming increasingly fearful of its changing demographics. Like many other prohibitions, prostitution is hard to police and the side effects of the prohibition are probably worse than if the action were legalized. Modern prostitution is a fund-raising tool for drug cartels, people smugglers, and has contributed to a rise in modern slavery. [1] https://en.wikipedia.org/wiki/I_know_it_when_I_see_it https://en.wikipedia.org/wiki/I_know_it_when_I_see_it [2] http://www.imdb.com/title/tt2061756/ http://www.imdb.com/title/tt2061756/

davesque 10y ago

Just for the sake of debate, maybe there's an argument against prostitution since, presumably, it would take place on a much larger scale? This could lead to things like faster spread of STDs?

cheiVia0 10y ago
But the government can also mandate frequent STD tests and safety reqirements. AFAIR Netherlands, where prostitution is legal, has the lowest STD rates.