CONCORD, N.H. - The New Hampshire Supreme Court ruled last Thursday that a man who offered to pay two adults to have sex while he videotaped the act is not guilty of a crime.
Robert Theriault was charged under New Hampshire Revised Statutes 645:2, which holds that a person is guilty of a misdemeanor if that person "[p]ays, agrees to pay, or offers to pay another person to engage in sexual contact as defined in RSA 632-A:1, IV or sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person."
However, the statute defines "sexual contact" as "the intentional touching whether directly, through clothing, or otherwise, of the victim's or actor's sexual or intimate parts, including breasts and buttocks. Sexual contact includes only that aforementioned conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification." The statute also lists a number of acts which constitute "sexual penetration," but as the Supreme Court noted in its opinion, issued Dec. 4, that portion of the statute "does not include the provision 'for the purpose of sexual arousal or gratification.'"
According to court documents, Theriault "was employed as a court security officer in Franklin District Court. On December 5, 2005, he asked a young woman, C.H., and her boyfriend, J.S., who were at the court paying fines, if they needed employment. After informing them that he could not discuss the job at the courthouse, he met them in a parking lot behind a bank. The defendant asked the couple if they wanted to make 'f... flicks.' The defendant specified the details: he would pay them fifty dollars per hour, he would rent a hotel room, and they would use temperature blankets and different condoms while the defendant videotaped them having intercourse." (The reference to "temperature blankets" is unclear, although we note that the incident did take place in December in northern New England, where it gets pretty damned cold at that time of year.) (Of course, the phrase may have been misheard.)
Apparently, the couple wasn't interested, and reported the offer to J.S.'s mother, who in turn reported the incident to a court official, who had Theriault arrested on the prostitution charge.
Theriault eventually went to trial on two prostitution charges, including one in which he didn't tell another couple he'd propositioned that he intended to videotape them, and he was convicted on that charge.
However, although the trial court, in a separate proceeding, convicted Theriault on the charge involving C.H. and J.S., the Supreme Court reversed.
Theriault, who was represented by two of the state's appellate defenders, David M. Rothstein and Paul Borchardt, had argued to the high court that the prostitution statute was "substantially overbroad because it could be applied to criminalize constitutionally permissible activities such as the production of a non-obscene but sexually explicit movie." The court rejected that overbreadth argument, finding that it was not facially overbroad, but allowed that it could be subject to "as-applied" challenges, which Theriault's attorneys proceeded to do.
"In this case, however," the Court noted, "the State did not charge the defendant with offering to pay another to engage in 'sexual contact,' and there was no evidence or allegation that the defendant acted with 'the purpose of sexual arousal or gratification.' In fact, at trial, the only witness was C.H. She testified that the defendant asked her and her boyfriend if they needed employment, and if they wanted to make videos. She testified that '[h]e said that he would rent a hotel room and he would be the only one recording, so we didn't feel uncomfortable.' C.H. said that the defendant offered to pay them fifty dollars per hour, and she specified: 'He's just going to pay us to make the video.' The trial court found that the State 'proved beyond a reasonable doubt, that [the defendant] offered to pay [the couple] money, that is $50 an hour, to engage in sexual penetration. That is, [J.S.] would sexually penetrate [C.H.] while [the defendant] videotaped them.'"
"The facts boil down to the defendant offering to remunerate the couple to have sexual intercourse while being videotaped," the Court continued. "There was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video. The State did not charge the defendant under the 'sexual contact' portion of the statute and therefore there was no finding by the trial court that the defendant acted for the purpose of sexual arousal or gratification. Thus, if the statute constitutionally prohibits the defendant's conduct, a request to pay two individuals to make a sexually explicit video would be unprotected under the free speech guarantees of the State Constitution."
The Court then proceeded to affirm the concept that making "motion pictures" is a constitutionally protected activity, noting however that, as set forth in Miller v. California, the state has a "legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles," but that, as set forth in Ashcroft v. Free Speech Coalition, "As a general rule, pornography can be banned only if obscene."
"We must decide to what extent the production of sexually explicit but non-obscene videos is constitutionally protected," the Court stated. "Although this issue has not been widely decided in other jurisdictions, those that have addressed it are divided."
The Court then referred to People v. Freeman, the decision which established the right to film sexually explicit content in California, and People v. Kovner, a 1978 New York case where that state's high court found that, "While First Amendment considerations may protect the dissemination of printed or photographic material regardless of the manner in which it was obtained, this protection will not shield one against a prosecution for a crime committed during the origination of the act." In other words, while the end product may be legal, the acts which give rise to that product are not.
The New Hampshire Supreme Court, however, found Kovner's logic to be flawed.
"The reasoning in Kovner is based upon a distinction that has never been adopted by the United States Supreme Court," the New Hampshire high court stated. "The [U.S. Supreme] Court has never held that for First Amendment purposes, there is a distinction between production and dissemination in regulating pornography. Moreover, this distinction is illogical. It would mean that sale, distribution and viewing of a non-obscene movie is constitutionally protected while production of the same movie is not. Instead, to regulate the production and dissemination of sexually explicit films, the Court has established certain categories that are simply outside First Amendment protection." The New Hampshire court referenced the U.S. Supreme Court's rulings in New York v. Ferber (child porn) and Miller v. California (obscenity). Moreover, the Court noted, the Kovner case referenced a California case, People v. Fixler, which involved an underage performer, and its basis was "abandoned" in Freeman, with the Freeman court laying the basis for the New Hampshire's logical conclusion that it is untenable to make the creation of legal sexual material a crime.
"To uphold the conviction in the instant case, where the only facts adduced at trial were that the defendant offered to pay two people to have sexual intercourse while being videotaped, would infringe upon an area of speech protected by the State Constitution," the New Hampshire Supreme Court concluded.
"We emphasize that our holding is dictated by the specific charges and unique facts of this case. The defendant was charged with offering to pay two individuals to engage in sexual penetration while he videotaped them. We note that the State did not charge the defendant with offering to pay them to engage in sexual contact, which would have required the State to prove that he acted for 'the purpose of sexual arousal or gratification' and thus engaged in conduct that was not constitutionally protected. Thus, our holding today will not prevent the State from continuing to prosecute prostitution, even when the acts are videotaped."
However, it would appear that the Theriault ruling would prevent the state from prosecuting adult filmmakers in New Hampshire - a victory for free sexual speech.
For additional thoughts on this topic, and a more in-depth discussion of People v. Freeman, see Marc Randzza's article here .