A Sordid Affair: Prostitution, Adultery and the Fall of Rentboy

09/01/2015 06:07 pm ET Updated Dec 06, 2017

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The world of pornography and the world of escorting are intimately intertwined. Many of my fellow performers are, or have been, escorts -- my fiancé Dirk Caber included. The "porn star" appellation is an attention-grabbing asset that attracts potential clients, and the films themselves are a form of free video marketing. (It's better than free, in fact: they get paid to make it!) While an escort is officially paid for the time he spends with a client, there's usually a reasonable expectation that sex between two consenting adults may occur. But directly exchanging sex for money is considered prostitution, which (in most parts of the country) is illegal. So where is the legal boundary between prostitution and porn? Why is pornography (in which individuals are paid to perform sexual acts) allowed, but prostitution (in which individuals are paid to perform sexual acts) is not? Where does escorting fit into this dynamic? And what is the future of escorting in the United States, now that the federal government has shut down Rentboy, the most popular male escorting website in the world?

It may surprise you to learn that the making of pornography is technically illegal in most parts of the United States, as it violates existing prostitution laws. There is, however, strong precedent for its legality should it ever be challenged in federal court. As determined by People v. Freeman in 1988, the filming of pornography is protected in the state of California by the First Amendment's right to freedom of expression. The U.S. Supreme Court refused to stay the Freeman decision, saying that there was little chance the ruling would be overturned on appeal. Freeman was affirmed in New Hampshire two decades later when that state's Supreme Court, citing the California case, reasserted porn's legality. The overall understanding is that the pornography industry is here to stay... even though it's still technically illegal in all but two states.

The production of pornography isn't the only sexual activity that's illegal, yet widely practiced. Adultery, for example, is a crime in twenty states. Websites like Ashley Madison -- whose slogan reads "Life is short, have an affair" -- actively promote criminal sexual behavior that is in violation of the Travel Act. Because Ashley Madison is headquartered in Canada, the U.S. government would have a difficult time prosecuting that particular company, but there are plenty of other sites that offer the same service. Why, then, doesn't the federal government prosecute them? Aren't those sites explicitly encouraging its members to commit a crime?

The answer is two-fold. First, adultery laws are rarely enforced. According to The New York Times, only about a dozen adultery cases have been prosecuted since 1977 in New York state, one of the twenty states where the practice is still illegal. But perhaps more significantly, while many consider the practice immoral, our nation on the whole accepts adultery as a personal choice, and not an area in which the government should intrude.

Our nation, however, does not generally accept prostitution as being a personal choice. Because Rentboy implied that its users might engage in prostitution after using the site, the company became an easy moral target. Last week, Department of Homeland Security officials raided Rentboy's corporate offices and arrested its executives on suspicion of promoting prostitution. The bust of an "alleged internet prostitution ring" (as the official DHS press release calls it) looks good politically to be sure, but there may be more to the Rentboy raid than meets the eye.

Rentboy's customers were exchanging money for time, even though the site made no secret of what it encouraged two consenting adults to do with that time. This allowed the site to operate legally for almost twenty years. In 2010, though, Rentboy might have made a mistake. A close inspection of last week's criminal complaint filed by the New York Attorney General's office lists one count of money laundering in addition to the prostitution charges. Five years ago, Rentboy submitted an H-1B non-immigrant visa application for one of its employees, and listed Viagra in its required itemization of business expenses (according to section 58 of the complaint). This may have led the DHS, which oversees foreign visa applications, to believe that Rentboy's corporate assets might be paying for sex-related activity, leading to an investigation and the subsequent charges. And by invoking RICO, the Racketeer Influenced and Corrupt Organizations Act, authorities were able to seize Rentboy's records to look for evidence of prostitution... and procure the personal information of thousands of escorts in the process, on the suspicion that some of them might not be paying taxes on all that escorting-related revenue.

If the Attorney General decides to prosecute Rentboy on the prostitution charges, the company will likely base its defense on the Digital Millennium Copyright Act. The DMCA states that an online service is not held liable for the actions of its users as long as it has implemented "a policy that provides for the termination in appropriate circumstances of subscribers and account holders who are repeat infringers." With this in mind, Rentboy's terms and conditions expressly prohibited the advertising of sexual services on the site, and any offending material was removed by a team of content screeners. The site also provided for DMCA takedown notifications as required by law. Once these conditions were met, the DMCA should have given Rentboy safe harbor with regards to what the site was being used for. Rentboy didn't control the activities of escorts and clients once they connected through the site; it merely facilitated the connection.

The future of the Rentboy case remains unclear. If the DHS fails to find evidence of direct money-for-sex exchange on the site, the company may very well be exonerated. But the issue of the government's intrusion into the private lives of its citizens will remain.