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 Is Sex for Money or Reward always Prostitution?

The following article was in part inspired from and includes major excerpts from "Escort Services - Legal Issues" by Marc Perkel 

The excellent full article is at http://sex.perkel.com/escort/legal.htm which I have tried to condense a bit and add my own comments as I've tried to clearly indicate.

This article is being shared with full credit, under the Fair Use provision of US Copyright laws for educational purposes with no financial gain.

If a man buys a woman flowers and chocolates in hopes that she will have intercourse, or a woman cooks dinner for a man hoping for sexual contact, that's not prostitution. Even if a man gives woman money as a gift because he is expecting or hoping for sexual contact in exchange for the gift, that's not prostitution. So there are a lot of cases where people spend money to get sex that is not prostitution.

The making of a porn movie is not prostitution. But in a porn movie you have sexual contact and the actors are paid to have sex in front of a camera. This is clearly sex for money, but it's not prostitution.

We have all seen movies involving love making on the screen. Many sex scenes have even made it to prime time television. They involve simulated sex. Simulated sex is where the actors don't have genital penetration. The visuals are often faked, although in many cases, real sexual stimulation occurs. Although much of the sex is simulated sex, often the scene involves the licking of nipples, grinding of groins, kissing of the thighs and navels, penises get hard, faces get red, and nipples become erect. These acts are real and these people are doing it for money. Is this prostitution? No! Is this sex for money? Yes it is. But, they're making a movie. Thus it is legal to have sex for money in the context of making a movie.

A man goes into a topless bar and sits down next to the stage. He pulls out a dollar bill, folds it lengthwise and lays it on the stage. The female dancer sees the money and moves right in front of him. She shakes her breasts in his face, spreads her legs, shows him her ass and moves her hips in a humping motion. She then turns and hisses him on the forehead and pulls her garter indicating for him to put the money there. He does, and she repeats the performance for the next man with a dollar. Is this prostitution? No. Is it sex for money? Yes it is. But it's dancing.

A woman is working for a large company. Her supervisor is a handsome single man. An opportunity for a promotion opens up. She indicates to her supervisor that she's willing to have sex with him if she gets the job. The new job pays more than her present job. They have known each other for years and have dated in the past but never had sex. She has sex with him and she gets the job. Is it unethical? Yes it is. Is it sex for money? Yes it is. Is it prostitution? No.

A man and a woman are dating. They are out shopping and she sees something she wants. He asks if he buys the item for her if she'll have sex with him. She agrees. Is that prostitution? No. Is it sex for money? Yes it is. But it's in the context of a relationship. It may be a screwed up relationship, but it's not a crime. We are Americans and we have the right to have a screwed up relationship.

A smart young man has an affair with a rich old woman. She is lonely and she desperately wants sexual contact. He lives with her and takes care of her needs. She takes care of his expenses. Both know what's going on. He knows if he doesn't give her sex that he's gone. She knows that if she doesn't give him money he's gone. However, they have lived together for a long time and are both getting what they want. Is this prostitution? No. Is it sex for money? Yes it is. A prosecutor might in theory be able to press criminal charges, but what jury would actually convict either party of prostitution, especially if there were other things that they did together besides sex and money.

A man pulls his truck into a truck stop to spend the night. Just as he parks a woman knocks on his door and asks him if he wants a date. He says, "how much for a blow job?" She responds, I'll suck you for $40. He gives her a pair of twenties and she goes for it. Is this prostitution? Yes it is.

What makes Sex for Money not Prostitution?

What is the common element that makes sex for money not prostitution? If you are making a movie then sex for money isn't prostitution. If it is part of dancing on stage then sex for money isn't prostitution. If it's in the context of a relationship then sex for money isn't prostitution. If it's in the context of getting a job then sex for money isn't prostitution. If it's in the context of friendship then sex for money isn't prostitution. If they are living together then sex for money isn't prostitution.

It seems that the common element that makes sex for money not prostitution is that if it's not only sex for money. In all these cases there is a third element involved. It's always sex for money and something else. The one example of prostitution was when there was only sex for money and nothing else. Thus, although the statute defines prostitution as sexual contact in exchange for something of value, it seems like in practice that the real rule is an exchange of something of value for only sex and nothing else. Because if you are buying sex and friendship or sex in the context of a relationship, or making a movie, then the third element makes the event not an act of prostitution, even with the element of sex for money.

Thus the language of the statute is incomplete because it doesn't say what it really means. Prostitution is more accurately defined as:

"Prostitution", a person commits prostitution if he, in return for something of value to be received by the person or by a third person, engages or offers or agrees to engage in only sexual conduct with another person.

Sex for Money vs. Sex for Free

The State has outlawed sex for money, or rather paying money for only sexual contact. But the sex itself is legal for free. There is no sex act that can be done by a sex worker that can't be done for free legally by a friend who doesn't charge any money, or for that matter, a total stranger that doesn't charge any money. So what is the difference between free sex and paid for sex? This is the all-important question to answer so that we can determine the will of the legislature and what they were trying to prevent when they made prostitution (only in the U.S.) illegal.

Making money isn't a crime. Sex isn't a crime either. It's the combination of money and sex that is criminal; especially when there are no other redeeming elements involved. One must therefore assume that the legislature believes that act of paying money for sex alters the sex into some form of immoral sex which members of society should not do.

Dave notes: This is quite unique to the U.S. where laws are often influenced by the Religious Right which knows what is best and moral for everyone, since we are incapable of making our own free choices. Ironically the U.S. was founded based on escape from religious persecution. There are few other countries in the world where prostitution itself is illegal, or if it is, it has very narrow application and is mostly tolerated. You can't just eliminate the natural need for sexual interaction and the harder you try the worse the results. In the U.S. we have organized crime in prostitution and Hitler like tactics police agencies take to be sure we have no sexual freedoms in the U.S. - because the religious fundamentalists say so and have been sure everyone has been brainwashed to view sex out of marriage or with more than one wife, as something immoral. This is odd since the norm in biblical times was having many wives and concubines and the sexual repression now taught has no biblical basis.

Presumably, the intent of the legislature is to discourage sex that is totally impersonal. A situation where a woman is reduced to a warm wet hole for a penis to ejaculate into. My example of the woman and the trucker is an example of this. The proposition is that for $40 the woman will provide a female hole for the man to use. The legislature perhaps presumes that this sort of sex is immoral. One could debate the virtues of this but that would be a waste of time. The law is that this is illegal and the courts are bound to uphold the law unless they rule the law unconstitutional. We have however demonstrated by example that not all sex for money is prostitution and that other elements seem to change the nature of the act.

It seems that the intent of the legislature is to prevent sexual contact that involves only genital stimulation between total strangers with no other redeeming factors involved. If the act involves other factors then it is not merely a hard penis ejaculating into a wet hole. If the people involved have a relationship as co-workers, friends, or a client patient relationship, then the sex for money is not prostitution. Therefore the question is, is the services that are provided by escort services more like a whore at a truck stop? Or do escort services provide a personal service in the context of a professional/client relationship where there is a personal relationship in which a sexual act may or may not occur. Escort services are not in the sex for money business. It is a sexually charged profession and human nature and human instinct sometimes causes two consenting adults to choose to have sex, which is their right under the law. But when they do, if that occurs, it's in the con text of getting to know each other and deciding that is what they want to do.
Escort Services are not Prostitution Businesses

Escort services are not prostitution businesses because escort services are not selling sexual contact for money. Escort services provide women (or men) for a variety of purposes. These purposes include dating, companionship, conversation, kissing, touching, massage, affection, someone to talk to, a shoulder to cry on, someone to be with, someone to help you feel more comfortable around women, someone to train you about how to be with women. There are a lot of services that escort services provide and they're legal services.

Let's look at what goes on in a typical bar on a Friday or Saturday night. Men go to bars looking to get laid. They are looking to have sex with a total stranger. This is totally legal. There are no laws prohibiting a person from having sex with total strangers.

Prostitutes often hang out in bars. A bar is probably the most common place to find a prostitute. The owners of the bars and the bartenders know that prostitution occurs in bars. In many cases, the bartenders either know or have a pretty good idea who the whores are. In fact, a person looking for a whore can ask the bartender whom he thinks is a prostitute and in many cases he'll point them out.

So a bar is a business where, among other things, men come to meet whores. Is a bar a prostitution business? No. So if a bar is a place where men come to meet whores, and the bar knows this and is aware that it occurs, and is making money selling drinks to men and whores, then why isn't a bar a prostitution business?

The reason a bar isn't a prostitution business is because it's a drinking establishment where people go to have a good time. They drink, dance, play pool, meet people, sing, get drunk, fight, and have fun. Part of having fun is trying to get laid. Sex, after all is part of human nature. What kind of a country would we have if we closed down every business where people go to get laid or find a hooker? Do we close down all bars because whores hang out there? I'm sure that maybe some Baptist preachers would like that. Might keep their daughters at home.

The reason that a bar isn't a prostitution business is because it provides other services that have little or nothing to do with prostitution. This is in contrast with the traditional whorehouse that is illegal because it sells only prostitution. Thus a business in which prostitution regularly occurs with the knowledge of the owner is not a prostitution business unless it is only in the prostitution business. If it's primary business is not prostitution, even though it is known that prostitution occurs, and even though the owners of the business are knowingly profiting because of the prostitution, the business is not a prostitution business.

The question therefore is, is an escort service more like a bar or a whorehouse? It's more like a bar. It's the kind of business where some prostitution occurs, but escort services are in business to provide companionship, models, entertainment, and other personal services that are not sex for money services. Like a bar one must assume that some prostitution occurs. But like a bar, an escort service is not a prostitution business even if men often use the service to find a prostitute, and the owners know that some prostitution is likely to occur. And even if the owner of the escort service makes indirect money as a result of the prostitution activity.

Whores hang out in bars. It's just the nature of the business. Some escorts are in a position where they are offered money for sex on occasion and take it. That's not what they are supposed to do, but it happens. Wal-Mart employees are not supposed to steal. Often they do and the management knows that there are always employees that steal. But Wal-Mart is not a criminal organization even though they know they have employees that steal.

Just because a particular business attracts a certain kind of crime doesn't mean that business is a criminal enterprise. Wal-Mart is not a criminal organization even though there are probably several hundred employees stealing from them at any one time. Bars are not criminal enterprise even though that along with prostitution, a wide variety of criminal activities occur in bars. There is more prostitution in bars than in escort services. Why then do we not bust the bars as prostitution businesses? Because bars are not prostitution businesses and neither are escort services.

Are Escorts Prostitutes or professional providers of legal services?

They may provide totally non-sexual companionship or a dinner mate for a client. But even if they do provide more directly sensual services, should escorts be treated as prostitutes, or a legal, respected professional service?

As Marc Perkel says:

A man is confined to a wheelchair. Once a month he calls an escort to spend some time with him. She talks to him, kisses him, and provides him with physical female contact. They have become friends and he sees the same escort every month. Other women want nothing to do with him.

A man is very shy and inexperienced with women. He wants to learn but has no female friends who he trusts to help him with his problems. He wants to be able to have a conversation about intimate issues with a woman who knows what she's talking about and is yet a stranger and not someone he will have to see again if he doesn't want to. He wants someone who will take her clothes off and show him things a psychologist won't show him. So he calls an escort.

A man isn't interested in a relationship. He has no desire to get married. However, he does want to be with women and he feels it's dishonest to allow a woman to think that she has a chance at marriage when he knows she doesn't. He's looking for a more limited relationship that fits his unusual lifestyle. He therefore sees an escort on a regular basis.

Dave adds, or an older man isn't attracted to women his own age, has no interest in marriage, enjoys caring, interactions with a variety of women, especially good touch, massage and some emotional intimacy even if just for the short time of a session.

In all of these situations, sex often happens. But it is part of a otherwise legal relationship and as long as their is no addition compensation specifically just for the sex, it isn't prostitution. If within the legal companionship, good touch, massage relationship two consenting adults decide to also share sexually, it should be no big deal nor considered prostitution no more than the other examples earlier cited where sex occurs and the women financially benefits. But since it is not directly just sex for money, it has not historically been considered prostitution.

Escort Services as Surrogate Relationships

One of the most common services provided by escort services and sex workers are surrogate relationships. It would be nice if we lived in a world where there was someone for everyone and everyone eventually met "the right one" and we got married and lived happily ever after. Wouldn't that be nice? But that's not the reality we live in.

The reality is that there isn't someone for everyone. There are many people in society that are so damn lonely they can't stand it. Some of these people have physical or emotional disabilities that either preclude the possibility of a relationship or reduce the odds to virtually zero. Some people have been so badly burned by relationships that they are not capable of what we call a normal relationship. Some people, such as business executives and politicians, have a lifestyle that is not compatible with traditional family life. Some people have untraditional tastes when it comes to relationships and are looking for experiences that are unusual but legal. The divorce courts have burned some people so bad that they will never marry. (Dave adds and some people seek a variety of intimate relationships and may not be interested in just one woman to settle down with)

So what are these people to do? Are they to live their lives without a relationship and without sexual contact? I'm sure that there are several religions that believe that they should. But fortunately we live in a free country where the individual is (or should be) free from religious oppression and is not subject to the religious beliefs of other people's faiths. The State does not compel us to get married in order to have sexual contact. It's perfectly legal in America to have sex in the context of a relationship. In fact it's perfectly legal to have sex with a total stranger if there isn't any money involved.

In a surrogate relationship, as provided by sex workers and escorts, there may or may not be sexual contact. And if there is sexual contact, it's in the context of a relationship (even if short term)

Most people would agree, although it isn't universally true, that a traditional relationship is better that a paid for surrogate relationship. However, most people would also agree that a surrogate relationship is better than no relationship at all. If a person looses a leg they get an artificial (or surrogate) leg. The artificial leg isn't as good as the original leg but it's better than nothing. At least the person can continue to walk.

For those who can not have a normal relationship (or choose not to) escort services and sex workers provide a valuable service to society by providing surrogate relationships to people who would otherwise have none at all. As I have already previously stated, sex is an essential element in the individuals well being. We as humans have a strong instinctive need to have relationships and sexual contact and that desire doesn't go away because a person is physically or emotionally incapacitated.

When surrogate relationships aren't available, the individuals are driven by instinct and human nature to find whatever human contact they can. This often results in violence, stalking, rape, or a lot of unsocial behavior. It becomes an issue similar to a starving man stealing a loaf of bread. If we feed the hungry, we eliminate hunger related crimes. Surrogate relationships fulfill needs that prevent or reduce criminal activity resulting from needs not being met. When an individual is using surrogate relationships, they need not resort to patronizing prostitution (such as on the street. Escort's services therefore reduce prostitution by providing surrogate relationships. I believe that even though incidences of prostitution occur in the escort business, that the net result is an overall decrease in prostitution.

Although escort services do business with people passing through town on a one-time basis, most of an escort service's business is regular customers who have established relationships with a particular escort. If sexual contact is involved, it is not the cold anonymous sex as depicted on television. Regulars have established a relationship with their escorts and if sexual contact occurs, it's personal contact in the context of the surrogate relationship. And sexual contact in the context of a long term surrogate relationship with a regular client is not what the legislature intended to prevent when they wrote the laws on prostitution. If this were prostitution, then a man who marries a woman for her money would be a prostitute. And I don't think that any prosecutor is ready to go there!

Dave adds, Marc Perkel's article is far more comprehensive and also includes more on the legal issues and burden of proof required to convict on prostitution charges.

Again the excellent full article is at http://sex.perkel.com/escort/legal.htm, which I have tried to condense a bit and add my own comments as I've tried to clearly indicate.


This article is being shared with full credit under the Fair Use provision of US Copyright laws for educational purposes with no financial gain.