The Legal Definition of Sex


What is it, exactly? I spent the weekend researching California prostitution law to find out.

My curiosity was aroused (heh) when during the course of my job I came across the sites for several professional dominatrices. These women charge by the hour to engage their clients in kinky scenes, which can be anything from your standard “tie ’em up and beat ’em” to “adult baby” play or human toilets.


(pictures not critical to story, but included because – um, do I need a reason?)

While these sites vary in themes and quality, they all contain a vehement declaration that under no circumstances will these scenes include sex. Prostitution, the exchange of sex for money, is illegal in all states but Nevada, so it’s perfectly understandable that they would emphasize that their services do not include illegal activity.


Many of them include strap-on play, both oral and anal, amongst their list of talents. In my personal life I’ve always considered ‘fucking someone up the ass with a dildo’ as – well – sex.


(how is that not sex?)

Does paying someone to fuck your ass with a strap-on not count as soliciting prostitution? What about vaginal strap-on action? Some also advertised anal fisting as a service, does that not count? Is the distinction merely “intent” –  if the purpose is to dominate, not arouse, is that legal to pay for? Is it not sex if you avoid touching the other person’s genitals? I was determined to find out.

I started with the California law prohibiting prostitution.

California Penal Code §647(b):

“As used in this subdivision, “prostitution” includes any lewd act
between persons for money or other consideration.”

Alright, so prostitution consists of exchanging money for “lewd acts.” What constitutes a “lewd act?” The definition, or as close as we come in legal terms, can be found in a 1979 California Supreme Court Case:

Pryor v. Municipal Court, 25 Cal.3d 238

Pryor was arrested for soliciting a blow job (or “oral copulation” as the case so charmingly calls it) from a stranger in a public location. That stranger unfortunately turned out to be an undercover police officer and Pryor was convicted of violating §647(a), which prohibits people from soliciting to engage in “lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”

Pryor appealed to the CA supreme court, one of his arguments being that the phrase “lewd or dissolute conduct” was unconstitutionally vague. The court agreed, further adding that no previous interpretation of the phrase applied to this case, thus they felt mandated to create an actual definition. They came up with the following:

“Although the varieties of sexual expression are almost infinite,
virtually all such offensive conduct will involve the touching of
the genitals, buttocks, or female breast, for ‘purposes of sexual
arousal, gratification, or affront.’ “

The quoted part at the end about purpose was actually pulled from a previous case dealing with California Penal Code §314.1In re Smith , 7 Cal.3d 362, which decided that nude sun-bathing did not constitute indecent exposure.

Although this definition was developed to apply to §647(a), and is based in part from language which was created for §314.1, it stands as the definition of “lewd act” for §647(b). At least according to a whole bunch of CA lawyers.

So! In summation. As defined by California law, an act is sexual if it meets these two criteria:

  1. it must involve touching of genitals, buttocks, or female breasts
  2. it must be intended to arouse, gratify, or affront someone sexually

I’m still debating whether or not the anus is part of the “buttocks,” but I’d say the dominatrices are in the clear due to the intent requirement (at least in California). You can pay someone to stick whatever you want up your butt, they just can’t do it with the intent of getting you off. Alternatively, if you can orgasm from someone touching you in places other than your genitals, buttocks, or female breasts, that might sail under this definition as well.


(Ride me like a pony. Literally, not sexually.)

Although if it only counts as sex if you intend to get your partner off, there are a lot of guys out there who should technically still be virgins. (OH SNAP)

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