Sex-Film Maker Loses Appeal of Conviction in Pandering Case

In a ruling that both sides agree could cause pornographic film makers to move their operations out of California, a state appellate court Tuesday upheld the pandering conviction of a San Fernando Valley film producer.

In a 2-1 ruling, a three-judge panel of the 2nd District Court of Appeal upheld the conviction of Harold Freeman of Encino, the first film maker prosecuted under a 1982 state law aimed at increasing penalties against pimping and pandering. Prosecutors argued that film makers could be charged with pandering if they hired actors and actresses to have sex in their films.

Freeman was arrested by Los Angeles police in October, 1983, and charged with five counts of pandering in connection with the film “Caught From Behind, Part II.” He produced and directed the film, which includes numerous explicit sex acts.

Freeman contended that the women in the film were actresses, but prosecutors argued that they were prostitutes because they performed sex acts for money.

Protection for ‘Production’

Freeman, who was convicted of all five counts in May, 1985, argued on appeal that the sex acts were protected by the First Amendment because they were part of a “theatrical production.”

Writing for the court’s majority, acting Presiding Justice Robert Kingsley said, “It is well settled that the distribution of a movie or book is protected under the First Amendment. However, a criminal act is not protected under the First Amendment merely because it occurs within the context of a motion picture production.

“The actors and actresses herein involved were employed to engage in acts of prostitution, which is defined in numerous California cases as the engaging in sexual acts for money,” Kingsley wrote. Justice John A. Arguelles concurred.

In a dissenting opinion, Justice Eugene McClosky wrote: “While the motion picture ‘Caught From Behind, Part II’ may be of little value to our culture, the record does not reflect that petitioner has been charged with or found to have violated any obscenity law. . . . It is plain to me that the defendant’s purpose here was to profit from making a motion picture and not to ‘procure a person, or attempt to procure a person, for the purpose of prostitution.’ ”

Freeman could not be reached for comment, but his attorney, Stuart Goldfarb of Beverly Hills, said he would appeal the ruling to the state Supreme Court. Goldfarb said the ruling might cause pornographic film makers to move their operations out of California and inhibit mainstream film makers.

Decision Called ‘Tragic’

“I think the ruling is tragic because what they’re doing is setting up a standard that will prohibit or could, theoretically, prohibit producers from putting into any creative project areas that may be sensitive in the area of sexuality,” he said.

Deputy Atty. Gen. Lauren E. Dana, who argued the prosecution’s case before the court, said the ruling could have “a very strong impact on the pornographic film industry. They’re going to be taking a big risk if they continue to make pornographic movies here.”

Dana said an actual sex act, not a simulated sex act, must be performed in order for a producer to be charged with pandering.

Police say the sex-film business earns more than $550 million annually in Los Angeles, making the city “the capital” of that industry. Los Angeles police were the first in the state to arrest makers of sex films for pandering.

“I think the ruling justifies what we believed when we enforced the statute. It more or less affirms that we were on the right track,” said Lt. Les Coil of the Los Angeles Police Department.

“They’re doing a lot of their filming outside of Los Angeles now because of the enforcement posture that we’ve taken,” Coil said.

The law under which Freeman was convicted was introduced by state Senate President Pro Tem David A. Roberti (D-Los Angeles). Roberti’s district includes Hollywood, an area with a significant prostitution problem. The law requires a three- to six-year prison term for anyone convicted of pandering. Formerly, the law permitted probation as a minimum penalty.

Van Nuys Superior Court Judge James A. Albracht refused, however, to impose the mandatory three-year term on Freeman, saying it was “cruel and unusual punishment” for his crime. Albracht instead sentenced the Encino man to 90 days in jail and a $10,000 fine.

The district attorney’s office appealed Albracht’s sentence, and the Court of Appeal has scheduled oral arguments on that appeal for Jan. 13.