Expert: Jim Boyd - 11/10/2009

Question
A friend of mine is interested in starting a BDSM porn internet company.  I know that production of porn is illegal in NYS...what is the exact definition of that?  Does it simply mean sex can't happen?  Do you have any knowledge of how the NYS laws apply to BDSM porn?

Answer
Unfortunately, there is no concrete legal definition of "Porn" in NYC...or anywhere else in the United States. However, U.S. Federal Law (USC Title 18 Section 2256)does provide a legal definition for "sexually explicit conduct" as being:

Actual or simulated
  (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
  (ii) bestiality;
  (iii) masturbation;
  (iv) sadistic or masochistic abuse; or
  (v) lascivious exhibition of the genitals or pubic area of any person
     (B) For purposes of subsection (8) (B) of this section, “sexually explicit conduct” means—
  (i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
  (ii) graphic or lascivious simulated;
  (I) bestiality;
  (II) masturbation; or
  (III) sadistic or masochistic abuse; or
  (iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

So under Federal Law something as simple as full frontal nudity could be considered pornography.


Now...this does not in any way mean that filming non-sexual BDSM material in NYS is a crime...provided it remains non-sexual in nature. Meaning no actual sex or sexual acts that would put you afoul of NYS prostitution/pandering Laws.