1. Modeling and Prostitution

Part: 
Four
Chapter: 
2

It seems abundantly clear from the facts before us that the bulk of commercial pornographic modeling (that is, all performances which include actual sexual intercourse), quite simply is a form of prostitution. So much was directly asserted by representatives of prostitutes' organizations who testified before us,[1087] as well as representatives of law enforcement[1088] and effectively denied by no one. Every court which has examined the questions from this standpoint has agreed, reasoning that where persons are paid to have sex it is irrelevant that the act is for display to others.[1089] As prostitution is conduct which the state has a strong interest in regulating, the First Amendment does not preclude that regulation merely because it is labelled "speech" or is filmed.[1090] It is also readily apparent that the interests which have in the past most powerfully justified the state's concern over prostitution-exploitation of the young and the weak, prevention of diseaseare just as strongly implicated by pornographic "modeling."

If upon further study our equation of prostitution and "modeling" proves to be true, it is incumbent upon the federal government and the states to consider carefully how to respond. Some of our witnesses have in fact urged legalization of pornographic modeling, and of all prostitution, as a means of eliminating its clandestine character and allowing "sex workers" to improve the conditions under which they labor.[1091] Insofar as that proposal would permit the recruitment of men and women into prostitution, the promotion of prostitution, or the living on the avails of prostitution-all characteristics, so far as we can tell, of the producers and distributors of commercial pornography-it flies in the face of established international mores[1092] longstanding national policy,[1093] and simple good sense.[1094] We agree with the International Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, adopted by the General Assembly of the United Nations in 1949, that the State should punish any person who "procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person" or who "exploits the prostitution of another person, even with the consent of that person."[1095] Lifting sanctions against the "employer" seems no more attractive a solution with regard to exploitation in pornography than it would, for example, with regard to child or subminimum-wage labor. "Legalization," if extended to producers and others currently considered "panderers" under state laws, would only make it easier for them to persuade more vulnerable young people to participate in a world that seems to us inherently abusive.

With regard to penalties directed at models themselves, however, the argument for decriminalization seems much stronger, on several grounds. First, it is not uniform policy in the District of Columbia to make the simple act of prostitution (without accompanying "solicitation") a crime.[1096] Second, those who are misguided, desperate or frightened enough to turn to pornographic modeling are unlikely to be deterred by the relatively light sentences typically imposed on those convicted of prostitution.[1097] Third, models are often so badly harmed by their experience that the addition of criminal penalties to their suffering-which includes a never-ending fear that humiliating photographs or films will be publicly exhibited-may seem superfluous and cruel.[1098] Finally, fear of prosecution may make such models less likely to come forward and provide evidence against those who exploited them.[1099]

While we do not believe, therefore, that prostitution laws are a perfect weapon in every respect for protecting models from procurement and abuse, their application at least to producers and agents seem fully justified. The experience of Los Angeles, where pandering prosecutions and "red-light" nuisance abatement actions have been successfully brought by police and prosecutors, deserves careful study in other jurisdictions. There seems little warrant for a state or locality to tolerate the production of commercial pornography that is as exploitative as that discussed above unless its basic approach to prostitution itself is radically different from the national norm.

Quite apart from the use of pandering statutes, however, an approach that seems to us worthy of careful study is imposition of sanctions on any persons trafficking in products or materials which they know or have reason to know were manufactured or marketed through the use of persons engaging in prostitution.

Such legislation would parallel existing legislation which forbids trafficking in products manufactured through child labor or through certain oppressive adult labor practices.[1100] Because not directed specifically at speech,[1101] and because clearly grounded in legitimate governmental interest in controlling prostitution, it would seem likely to survive constitutional attack.[1102] Given the federal government's long commitment to use its powers to regulate interstate commerce to attack prostitution in every form, we are, indeed, somewhat surprised that such a proposal has not been seriously studied before now. Nevertheless, the idea is sufficiently novel and could affect so much commerce not directly within the purview of our charter that we merely offer it for consideration and debate.

Notes

  1. Los Angeles Hearing, Vol. II, Margaret Prescod, p. 215; Los Angeles Hearing, Vol. II, Priscilla Alexander, p. 224.
  2. Los Angeles Hearing, Vol. I, James Docherty, p. 15. See also, Chicago Hearing, Vol. I, Nan Hunter ("some women work in both pornography and prostitution": statement does not contest their overlapping character).
  3. See, United States v. Roeder, 526 F.2d 726(loth Cir. 1975), cent. denied 462 U.S. 905(1976); People v. Sonter, 178 Cal. Rptr. 111(Ct. App. 2d Dist. 1981); People ex rel. Van DeKamp v. American Art Enterprises, 142 Cal. Rptr. 338(CL App. 2d Dist. 1977); People v. Fixlec 128 Cal. Rptr. 363 (CL App. 2d Cist. 1976); People v. Kovner 96 Misc. 2d 414 (sup. Ct. N.Y. Co. 1978). See also, People v. Marta, 203 Cal. Rptr. 685(CL App. 1st Dist. 1984) (defendant convicted of pimping for hiring women to have on-stage sex with customers in a theater).
  4. Id.; See, United States v. O'Brien, 391 U.S., (1968), p. 367.
  5. Los Angeles Hearing, Vol. II, Margaret Prescod, p. 215; Los Angeles Hearing, Vol. II, Priscilla Alexander, p. 224; Chicago Hearing, Vol. I, Nan Hunter.
  6. The International Convention for the Suppression of the Traffic in Women and Children, League of Nations-Treaty Series (1922) (No. 269), adopted by twenty-eight member nations of the League of Nations in 1921, established the duty of all signatory states to punish the procuring or promoting the prostitution of any women by force, or any woman under age of twenty-one, even with her consent. See, V. Bullough, The History of Prostitution 184(1964). The United States, which of course refused League membership, never acceded to the Convention. In 1949 the United Nations adopted the Convention for the Suppression of the Traffic in Persona and of the Prostitution of Others, which committed signatory states to punish the procuring or the exploitation of the prostitution of another, without regard to any age limit. Report of Mr. Jean Fernand-Laurent, Special Rapporteur on the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others, Economic and Social Council, United Nations (1983), Annex VII [hereinafter, United Nations Report]. At present both international conventions are in effect-although not ratified by the United States and are supplemented by the Convention on the Elimination of All Forms of Discrimination Against Women, adopted by the United Nations in 1979, which also requires (in Article 6) the signatory parties to "suppress all forms of traffic in women and exploitation of prostitution of women." Id. Annex IX. On their face these agreements all seem fully applicable to commercial pornography.
  7. The clearest expression of this policy is the White-Slave Traffic Act (the Mann Act), ch. 395, 36 Stat. 825 (codified as amended at 18 U.S.C. SS2421-2424) (1970 & Supp. 1985), which, inter alia forbids interstate transportation of women or girls for the purposes of prostitution.
  8. For excellent discussions of the pitfalls of legalized prostitution, see, K. Barry, Female Sexual Slavery, (1984), pp. 128-134; C. Winick & P. Kinsie, The Lively Commerce, (1971), pp. 211-2432; and of course the classic work studying legalized prostitution in 19th century Europe, A. Flexner, Prostitution in Europe (1914). For a jolting overview of the pimp-prostitute relationship, See, L. Lee, The Social World of the Female Prostitute in Los Angeles, Ph.D. Diss. (1982).
  9. United Nations Report, supra note 1092, at 60 (Annex VII), quoting resolution 317 (IV) adopted by United Nations on December 2, 1949.
  10. For a listing and analysis of state laws on prostitution, See, Note, Right of Privacy Challenges to Prostitution Statutes, 58 Wash U.L.Q., (1979), pp. 439, 471-80 (four states and District of Columbia punish solicitation for prostitution but not act itself). The act of prostitution was not an offense under English common law. Id. at 443.
  11. See, Winick & Kinsie, supra note 1094, pp. 218-19.
  12. See, e.g., Barry, supra note 1094, pp. 125-28; Fraser Report, supra note 936, pp. 530-37.
  13. Of course, it is also possible that with no fear of criminal prosecution themselves, models will be impervious to police pressure to give evidence against their employers. On balance the threat of a prostitution charge-in every state no more than a misdemeanor-seems unlikely to persuade many models to betray their colleagues and thereby jeopardize their careers.
  14. See, United States v. Darby, 312 U.S., (1914), p. 100.
  15. A company which hired employees whose duties consisted of providing sexual services to potential clients of the firm could be subject to sanction under such a law.
  16. Cf., New York v. Ferber, 458 U.S., (1982), pp. 747, 761 (advertising and selling child pornography "provide an economic motive for and are thus an integral part of the production of such material, an activity illegal throughout the nation. It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. Giboney v. Empire Storage 7 Ice Co., 336 U.S., (1949), pp. 490, 498."); Wirtz v. Keystone Readers Service, Inc. 282 F. Supp., (S.D. Fla. 1968), p. 971 (magazine subscription service violated federal law prohibiting illegal labor practices by employing high school student at below minimum wage).