Civilized life is full of distinctions, but many times, enforcers of the law have imperfect information to help them determine under which ‘bin’ a certain act falls.
The recent scandal involving Eliot Spitzer and a prostitution ring has brought out alot of debate about sexuality in america: legality of prostitution, the trafficking of women, the age of consent, and now, i’ve been reading about the distinction between Pornography and Prostitution here and here.
As i understand it, the distinction is clear in theory, but it still leaves the reader uncomfortable. Why?
Pornography is paying two people to have sex, while someone watches/films for profit. Prostitution is where one participant in the act itself pays the other to gratify himself/herself.
Pornography, on the other hand, is legal, and is protected under free speech. The reason is the free speech is about the impact of the filmed act on the viewer, who is not a direct participant.
Hence, we must as: where does the final demand come from? Is it from the guy paying for sex? Or is it some viewer who pays for the movie with the sex act in it? [i originally wanted to create a distinction about net surplus, but its not true -- all members of this transaction benefit, the porn actors and the viewer. In any given transaction, any participant can benefit more than another, The surplus is determined largely by market structure/elasticities].
Why does this bother me? This distinction seems solominic, but i don’t think its completely incentive compatible. For this to trully work, you really need to know who the final demander is, that is mostly unobserved.
Imagine, what if jerry hires june to have sex with him, and invites frank the filmaker along for fun. Here, the film is only the side product of prostitution. But the mere possibility of outside demand [people buying the film] is enough to ‘legalize’ the prostitution. In effect, all prostitution can be legal, as long as you film it and intend to sell it.
What remains incentive compatible is the filming part. Many people (including Ex-Gov Spitzer) would not want to be filmed while obtaining the services of a prostitute. However, for some, it would be acceptable to film while doing the act, and hence, prostitution would then be legal.
This is an imperfect system, but its the best system available to balance conflicting interests, on the assumption that prostitution is illegal.