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California is the only state so far that has a State Supreme Court ruling that exempts porn from prostitution laws. New York could be next! Another small victory for the good guys.

Judge Sees No Link Between Prostitution, Paying for Sex to Make Films
Mark Fass
New York Law Journal
08-02-2005

A Manhattan judge has enunciated the legal distinction between prostitution and paying someone to participate in sexual activity to make a pornographic film.

Prostitution, as traditionally defined, requires person A paying person B for sexual activity to be performed on A, Supreme Court Justice Budd G. Goodman wrote in People v. Paulino, 6687/04.

Pornography, on the other hand, involves person C paying B for sexual activity performed on A.

"In other words, prostitution is and has always been intuitively defined as a bilateral exchange between a prostitute and client," Goodman opined.

The common ground between prostitution and pornography was at issue in Paulino, the ongoing trial of an Upper East Side woman accused of running a multimillion dollar prostitution ring, because the defendant argued that the decision to prosecute her but not the "Goliaths" of the pornography industry constituted selective prosecution in violation of the Equal Protection Clause.

Jenny Paulino, 44, was arrested along with her sister Elsa and four other alleged employees of American Beauties Escort Service in December. The Manhattan District Attorney's Office alleged the service was in fact a front for prostitution, where rates ran from $500 to $3,750 an hour. Prosecutors charged Paulino with one count of promoting prostitution and one count of laundering money.

Paulino moved to dismiss on the grounds that the action represents selective prosecution in violation of the U.S. Constitution's Equal Protection Clause.

"The defendant contends that the targeting of so-called 'escort services' for prosecution, while ignoring 'Goliath corporations' that 'conspicuously reap huge profits from the distribution of adult films,' violates [the clause] because both enterprises are similarly situated," Goodman wrote.

That claim failed, he ruled, because Paulino's case rested on a "specious" interpretation of "prostitution."

Citing People v. Kovner, 409 NYS2d 349, Paulino had argued that "'no legal distinction' existed between a man who paid for sexual activity to be performed on him and a nonparticipating third party who paid for an actor to participate in sexual activity, because both involved the essential elements of prostitution: sexual activity in exchange for a fee," according to the decision.

Goodman, calling Kovner "stale, faulty and nonprecedential," ruled that Paulino's argument rested on an "unjustifiably broad" definition of prostitution.

Penal Law §230.00 defines a prostitute as one "who engages or agrees or offers to engage in sexual conduct with another person in return for a fee." The word "fee," Goodman wrote, represents the key to distinguishing prostitution from paying someone to perform sexual activity in making pornography.

The "fair import" of the word "fee" is "payment in return for professional services rendered," Goodman wrote, quoting People v. Block, 337 NYS2d 153.

"The Block approach ? comports with the common sense notion that prostitution is 'the trading of "sexual conduct" with another person for a "fee,"' where the sexual conduct is performed on the person who pays the fee," Block added, citing PL39 McKinney's Penal Law 248.

"Because the definition of prostitution is generally confined to a bilateral exchange between only two parties, escort services and 'Goliath' corporations are not similarly situated," he concluded.

The legislative purpose in enacting the state's prostitution statute supports this holding, the judge added.

The "court concludes [that] because the pornographic motion picture industry has flourished without prosecution since its infancy, that industry was not intended to be covered," Goodman wrote. "If it had meant to be covered, the legislature would have taken up the matter long ago."

Paulino's attorney, criminal defense specialist Gerald B. Lefcourt, expressed disappointment with the decision.

"Certainly pornography [promotes prostitution] in that people are paid to have sex and not only paid to have sex between them, but then it's shown to millions of people for phenomenal profits," he said. "It's ludicrous to simply pick out someone who's simply running an escort service, to introduce person A to person B, for whatever purpose. This is a victimless crime that shouldn't be subject to the whim of a prosecutor."

Assistant District Attorney Michelle Warren opposed the motion. A spokeswoman for the district attorney's office declined to comment.