Ask Tristan: Is Webcamming Prostitution?

Jan 182013
 

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[Ed. note: This question is a legal one, so I asked my awesome expert, Davis from Sexquire to answer it.]

So, I was just reading a Coyote L.A. article that talks about what Prostitution is defined as, and I noticed that one can
define Prostitution as masturbation for pay. Would that mean that webcam modeling could be included in that definition? Is there an exception for cam, because I am using my camera?

To be sure I was answering the right question, I did some research to find the Coyote LA article you mentioned. After reviewing it, I can see how the issue might still be a bit confusing. The answer to your question is most likely no, but let me add a few caveats before getting in to too much detail.

Caveat 1 –The article you cited discussed California laws regarding prostitution, and each state (and often city or town) has its own specific rules that govern what is/is not illegal there. I’m going to answer your question under California law, but if you’re wondering about another state, or even an area in California other than LA, you’ll need to do some additional research.

Caveat 2 – Some places don’t have very specific laws, and often whoever is in power (mayors, council persons, sheriffs) dictate what types of things are more vigorously pursued at any particular time. If you’re new to an area, be sure you learn about the prostitution and sex work laws that govern, but also find out a bit about the area’s political climate and whether local governmental authorities are particularly active in this area.

Caveat 3 – Your question was about prostitution laws, but obscenity laws may also govern cam or fetish video work. Just because a local government agent can’t fit what you’re doing into the definition of prostitution doesn’t mean you’re necessarily in the clear, as obscenity and “lewdness” laws vary quite a bit from state to state.

Okay, with all that being said, let’s dive into your question. The article you mentioned discussed how dancing nude and masturbating oneself might meet the definition of prostitution under California Penal Code Sec. 647 (which defines prostitution). The actual language of the law is long and confusing, but the article is correct that the law includes in its definition of prostitution “a lewd act for money or other consideration” which is “the touching of breast, buttocks or genitals for the purpose of sexual gratification or arousal.” The article goes on to say that since the law does not define WHO is doing the touching, that one who dances nude or masturbates oneself as part of their act could, if their customer achieves sexual gratification, be found to have committed an act of prostitution. However, your question was not about someone dancing nude or masturbating themselves in front of someone IN PERSON, it was about cam work, where you are far removed from, and indeed may not even have any information at all about, your client. And this is what, at least for now, removes cam work from the definition of prostitution. It does not take place between two persons in public or private, as the California statute states for every definition of prostitution. It may seem a bit fuzzy, but because you have the barrier of the computer, the internet and space/time between you and the person purchasing your services, it simply doesn’t fit the current definition of illegal sex work. Of course it may fit under a pornography or obscenity definition, and with the recent laws and referendums in California one never knows how laws may change, but for now, at least in California, cam work does not likely fit the definition of prostitution and to my knowledge, no cases have been pursued.

One final caveat though – despite not technically fitting the definition, nothing prevents local law enforcement from claiming that a particular act is illegal, so know that although a case would likely not prevail, an overzealous officer and prosecutor could certainly charge someone with prostitution simply for cam or other work. So be careful out there regardless of what your local law currently says.

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Davis is the founder of Sexquire, a complete sex-positive business services company. Davis is the legal arm of Sexquire, having advised brick and mortar sex toy stores, sex educators, sex workers and other sex positive business folk on all manner of legal issues for over 7 years.   In addition to legal matters, Sexquire also provides bookkeeping, accounting, personal assistance and other business services all with a sex-positive spin.  You can find them online at their website, as well as Twitter and Facebook.

Ask Tristan: Sex Toys and the Law

Jan 272012
 

[Ed. note: For this question, I turned it over to my legal expert, Davis from Sexquire.]

As a fellow New Yorker and former sex shop clerk, I’m hoping you can shed some light on this subject.  I’m a clerk at a sex shop in the Finger Lakes of New York, and I love the job – I’ve been a sex educator for seven years and love helping people pick out safe, well-designed sexy things. My boss, however, asks that clerks not give directions as to how to use the products in our store (we actually direct them to the store copy of your Big Book of Sex Toys).  But I can’t help myself!  Sex ed is in my blood!  Sex toys are not intuitive to people who have never seen one before! My boss says this is a legal issue: because the products are “novelties,” we can’t come right out and say what they’re for. In Jessica Valenti’s book, The Purity Myth, she points to a case in Texas about a “Passion Party” saleswoman who faced obscenity charges for explaining how to use a vibrator.  That scared the crap out of me.  Do you know what the deal is with obscenity laws and sex toys?  Is it really a legal risk for a clerk to talk about this stuff?  Is it only a risk in certain states?  Any response will be very much appreciated!

– Concerned Shopkeep

Let’s start with the technical legal part of your question, and then get to what it means for clerks like you.

The saleswoman Valenti speaks of, Joanne Webb, was initially charged, but once the case received attention, the Johnson County prosecutor dropped the charges, and later, in an unrelated case, the law under which she was charged was struck down as unconstitutional by the U.S. Court of Appeals for the Fifth Circuit. (The United States federal court system is divided into 13 U.S. Circuit Courts of Appeal by geographic location, so when the Fifth Circuit struck down the Texas law, it had the effect of also invalidating a similar law in Mississippi though that law had not yet been directly challenged).

Most legal scholars felt that this case, coupled with the Supreme Court case of Lawrence v. Texas 539 U.S. 558 (2003) (which struck down a Texas law prohibiting sodomy between consenting adults in their own home) signaled the eventual end of laws regulating sex/sex toys and consenting adults.  However, the U.S. Court of Appeals for the Eleventh Circuit later upheld a similar Alabama law that criminalized the sale of sex toys.  The court cited the fact that the Alabama law regulated only commercial activity – the sale of sexual aids, and not their use (unlike the more broad-based Texas law) in its justification for reaching a different result than the previous Fifth Circuit decision.

So what does all of this litigation mean to sex shop clerks? First, unless you are in Alabama, you have no reason to fear being arrested on obscenity charges for providing sex education about or selling these products as other than novelties. Second, if it is customer litigation that your boss fears, they should know that although some sex toy manufacturers apply a “FOR NOVELTY USE ONLY” label to sex toys in an attempt to circumvent potential injury claims from consumers, there has never been a reported case of this being a successful defense against such a claim. In fact there has not, to my knowledge, ever been a reported case of a consumer suing for damage caused by a sex toy, likely due not to the lack of such injuries but more to the social stigma and publicity such a case would cause for the potential plaintiff. And finally, and perhaps most importantly for you, know that New York is an at-will employment state, so despite your being technically right, your boss can legally fire you for any or no reason, just not an illegal reason, and sex educators are not a protected class. So, proceed forward with your new knowledge with caution, and feel free to refer any further questions your boss might have to me!

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Davis is the founder of Sexquire, a complete sex-positive business services company. Davis is the legal arm of Sexquire, having advised brick and mortar sex toy stores, sex educators, sex workers and other sex positive business folk on all manner of legal issues for over 7 years.   In addition to legal matters, Sexquire also provides bookkeeping, accounting, personal assistance and other business services all with a sex-positive spin.  You can find them online at their website, as well as Twitter and Facebook.