Sexual Loopholes

Orin Kerr of the Volokh Conspiracy notes an odd legal inconsistency:

In Nebraska, the age of consent to engage in sexual activity is 16; however, sexually explicit images of those under the age of 18 count as criminal child pornography. So what happens if a 31-year old man creates a videotape of himself and his 17-year old girlfriend having sex? The sex is legal, but the videotape is not. Or so the government argues in a case you can read about here.

I came up with another one during a conversation with one of my philosophy professors a few months ago, although I doubt I was the first person to think of this, and I wouldn't be surprised if it has already been attempted.

Prositution is illegal in most states, but filming pornographic videos for sale is not. Both the male and female participants are paid to make these films. But what if the director decides to produce and star in his or her own pornographic film? (Vincent Gallo comes to mind.) Is it pornography or prostitution? An enterprising prostitute, either male or female, could offer his or her "acting" services to people under the pretenses of making a pornographic video, but really as a way to engage in prostitution without breaking the law.

Obviously, the government would put a stop to this as soon as it is tried. But it would be interesting to see judges try to reason their way out of this apparent inconsistency, if they haven't done so already.

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Obviously, the Government

Obviously, the Government would put a stop to this as soon as it is tried.

Um, not so much. Any number of prostitutes are generally left free to pursue their entreprenurial activities with minimal to no enforcement of anti-prostitution laws in much of the country. If this legal loophole were exercised as a publicity stunt, the Government might well step in. But if the participants exercised discretion, I see no reason to assume they'd be prosecuted any more than other discretion-exercising prostitutes are.

Micha, you're aware of this

Micha, you're aware of this heinous sex offender here, right?

[...] 217;s just a man

[...] 217;s just a man trying to fix a personal problem of his. In either case, he came up with a loophole that might end all loopholes: Prositution is illegal in most states, [...]

DJW, True, anti-prostitution


True, anti-prostitution laws are not as strictly enforced as anti-drug laws, but that is small comfort to the many innocent, non-violent offenders convicted every day of these sorts of sexual "crimes." Unlike anachronistic anti-sodomy laws, when the state wishes to enforce anti-prostitution laws, it can and it does, with almost no complaints from the general public (in contrast to the uproar from cases like Lawrence v. Texas). And as I pointed out, loopholes like this one wouldn't go very far in convincing government officials to look the other when they are not doing so already.


Yep,I'm familiar with that case. Yet another government absurdity, in a endless sea of other non-crimes.

Here's another curious legal

Here's another curious legal inconsistency. The minimum age for appearing in a pornographic film is 18, but the minimum age for viewing a pornographic film is 21. So it is legal to film an 18 year old having sex but it is illegal to show her the film afterwards!

What we need to do is

What we need to do is decriminalize prostitution so that prostitutes wouldn't have to stoop that low.