Some readers have asked me to explain this passage, from the post before this one, in more detail:
Personally, I think that child porn and rape porn should be censored as heavily as possible (within the bounds of the Miller decision) and driven as far underground as possible. Allowing a market for child or rape porn (including “virtual” stuff) to flourish is wrong, because those markets encourage porn producers to harm real people.
Beyond that, I really don’t give a damn.
Avram responded:
And is “rape porn” depictions of actual rape, or just of people pretending to engage in rape? If the latter, again, where is the harm?
I suppose you could argue that such things encourage the viewers to go out and harm people, but you argued that it’s the producers who are doing the harm, and how exactly does that work?
The analogy I’d use is elephant ivory. Having a market for new elephant ivory is obviously a bad thing; it encourages poachers to kill elephants, leading to near-extinction.
What’s not so obvious is that having a legal market for old elephant ivory also encourages poachers to kill elephants. Why? Because in practice, it’s practically impossible to tell the difference between new and old elephant ivory. Therefore, if there’s a profitable market in old elephant ivory, that will motivate poachers to kill elephants and sell the new ivory, falsely claiming that it’s old ivory.
If we want to take as much of the profit out of poaching as possible, it’s not enough to just outlaw selling new elephant ivory. We also have to outlaw selling anything that’s in practice nearly impossible to distinguish from new elephant ivory.
Similarly, it’s not enough to outlaw possessing or selling “real” child porn – by which I mean, child pornography that was produced by actually sexually abusing real children. We also have to outlaw “virtual” child porn – that is, child-porn-like images so realistic that they’re indistinguishable from the real thing. If there’s a marketplace for material that’s for all practical purposes indistinguishable from real child porn, in practice that creates a market on which real child porn – falsely marketed as “virtual” – can be sold.
The same argument applies to rape porn (that is, photos or films depicting realistic-seeming rape scenes). If we want to outlaw people making money by selling films of real rapes, then we have to outlaw all rape porn.
To see why, imagine the police raid a porn producer’s studio and find tons of photos of children being raped. The porn producer says “sorry, I bought all of these from someone – I forget who – and he said he generated them on computer.” Suddenly, it becomes, for all practical purposes, impossible to enforce child-porn laws. I’m not willing to pay that price in order to protect the market viability of virtual child porn.
Lis wrote:
I wouldn’t outlaw prose and poetic descriptions – the only “virtual” porn I’d outlaw is visual representations so realistic that they’re not easily distinguishable from the real thing, for the reasons I just described in my answer to Avram.
Also, I’m calling for this in the context of the Miller decision – which says that no work that, taken as a whole, has serious literary, artistic, political or scientific value, can be obscene. So performances of Romeo and Juliet would be safe.
UPDATE: Reading the comments, I think I’d better clarify something (thanks, Charles and Kip!).
This post is not calling for an expansion of censorship laws. On the contrary, I’m saying the censorship laws should be narrowed, so that fewer works are deemed “obscene” and therefore lacking first amendment protection.
Under current law, all the stuff I talk about above is obscene – plus many more things besides, such as Demon Beast Invasion. What I’m advocating is that only rape porn and child porn (as defined in this post, above) should be censored; nothing else should be. I’m arguing for less censorship than we currently have, not more..
Couple questions, bean
1) I don’t buy the bunk she’s been sold. I read over the links she gave, and WOAH, what a load of hooey.
Could you clarify please which bunk from which links you don’t accept? The lecture, the book review or medical institute?
[One more link you may not like, but provides a useful service is The Women’s Sexual Health Foundation, which was founded by other women with sexual dysfunctions.]
My sex drive has been nonexistent for years; blood tests showed my body was producing abnormally low levels of hormones. Taking supplemental hormones has increased my sex drive. In the mean time, anything that can get me aroused is a good thing for me and my relationship with my husband. And, generally, it’s porn that gets me aroused.
Incidentally, does it make any difference to you that most of the porn I read is prose fiction? No visuals, no models being victimized, just a writer, fictional characters, and me, the reader.
2) I have never denied that you may have a real sexual dysfunction. I simply disagree about porn as treatment.
But you did accuse Avram of bringing me in as a ringer. I’ve had this blog bookmarked for over six months and have been reading it for longer. At least Amy S. apologized for questioning my identity.
3) I’m not going to lie and pretend that I’m ok with porn in any situation
Not in any situation whatsoever? Then what do you suggest my husband do? He has a healthy sex drive; I have none. The options as we’ve seen them are (a) break up (unwilling to do, everything else in our relationship is healthy), (b) he does without sex (unfair/impossible) (c) force me to have sex unwillingly (rape); I’ve given him the option of (d) opening the relationship so he can have sex with others, which he’s been unwilling to do, or (e) masturbate to pornography.
Both of us being able to have sex together would be ideal, but until that’s possible I see (e) as the best solution to a bad situation. This isn’t hypothetical to us. If you disagree with “porn in any way” then what’s a real-world solution to our problem?
Oh, and Cleis is correct about how I’m defining objectification. You never specified sexual objectification, so I was taking your words at face value.
Not in any situation whatsoever? Then what do you suggest my husband do? He has a healthy sex drive; I have none. The options as we’ve seen them are (a) break up (unwilling to do, everything else in our relationship is healthy), (b) he does without sex (unfair/impossible) (c) force me to have sex unwillingly (rape); I’ve given him the option of (d) opening the relationship so he can have sex with others, which he’s been unwilling to do, or (e) masturbate to pornography.
That’s all the choices you see? Really? Funny, most people don’t need porn to masturbate, and if they do, then perhaps you should look into that little problem there (yes, I know, porn can be addictive — hence, getting help for the problem). Or are you saying that he has a sexual dysfunction, too? I thought you clearly stated that he didn’t.
That’s just one additional choice to the rather limited scope of choices you seem to think he’s limited to.
I guess my question, bean, is “why should I?”
Is there anything about, for instance, http://www.geekporn.com/ which implies that people who choose to display their sexuality for the enjoyment of others are any less deserving of respect than people who don’t?
Let’s get a few things straight. IMO, IME, based on the experiences of far too many women I’ve worked and/or am friends with, and based on my own research, porn is misogynist, hateful, and harmful to society.
And yet, unless you’re agitating for rape or child porn, I’m not standing in your way of using it. I’m not lobbying or voting for laws which will make it illegal. As I said, I’m not going to fight against those laws, but I’m not going to fight for them, either.
No, I do not respect people who use porn — NOTHING is going to change my opinion. And not only that, I’M FUCKING ENTITLED TO MY OPINION. Just as you are entitled to your opinion. You don’t have to respect mine and I don’t have to respect yours. And as obviously no one, other than Amy or Tishie does respect my opinion, your attempts at getting me to respect yours are just that much more laughable.
Now, if people want to come out and tell the truth — you want to use porn, you think your right to use porn supercedes the rights of those who are harmed by it, whatever, fine. But at least be honest about it.
Sorry, but crying about how an otherwise sexually healthy man has “NO CHOICE” but to use porn (because god forbid he masturbate without it) is ridiculous. Making up lies in a vain attempt to rationalize porn use is beyond the pale.
Technically, if “nothing can change your opinion,” it’s not an opinion, it’s a belief. Me, my opinions can be changed by argument, because they’re “opinions”, which are things you think about the world based on research and logic. Just as a gedankenexperiment, if you found proof some day that all the research about porn that you’d found had been faked, would that change your opinions? Because, if it would, then clearly there is SOMETHING which could change your opinion, which would mean that it’s an opinion.
But, if NOTHING could change your belief, then it’s a belief, founded on faith.
I don’t argue against beliefs, anyone else’s or my own. If it’s not an opinion, I won’t argue it. Because opinions are the only things which CAN be argued.
Bean, if some guy were to post about how he thought all women were inferior to men — not that he thinks women should be stripped of their rights, he just thinks they’re naturally inferior — would you just shrug and say “Hey, he’s entitled to his opinion”? Or would you get annoyed and try to convince him that he was wrong?
I suppose eventually you might just lose patience and walk away (assuming it wasn’t your own blog), figuring the guy for a hopeless case if he just held stubbornly to his own case, immune to facts or logic. But might you not at least try to convince him first?
Me, I’m just about at the walking away stage, myself.
As far as porn and masturbation go, I dunno. I don’t need the stuff myself, but I’ve got a pretty good visual imagination. I’ve been told that sperm banks and fertility clinics often have porn magazines in the bathrooms (or wherever the men are expected to make their, um, deposits), so I’m thinking there’s some percentage of guys that find added visual stimulation helpful.
I’m also trying to figure out what the difference is. For the sake of argument, let’s grant your premise — the images in pornography are harmful in some way. Now, let’s assume some guy is masturbating, not to actual porn, but to images in his head. Let’s assume that those images are pretty much the same kind of images that you’d find in typical pornography. How is it any less harmful for the guy to conjure those images up in his own head than to see them in a magazine?
Hm, maybe I’m not at the walking away stage after all. Damn.
Ian, if every single study that showed the harms was proven a lie, and every single woman who ever shared her story with me came up and told me she lied, I’d still have my own experience, which, I guess in your opinion, makes this my belief. That’s fine, I can live with that. And because my belief is borne not just from research — but from actual experience (mine own and hundreds of other women’s), it’s not actually going to change.
I’ve never said you weren’t entitled to your opinion, but I am trying to figure out how this real-world dilemma can be solved within your theoretical framework.
I suppose I should’ve clarified option (e) as “masturbating, occasionally to porn” since you’ve chosen to interpret my initial posting as possible pathological addiction.
I already know I’m atypical, but solo sex with only imagination for company gets boring after a while. And we’re talking about a period of years that he’s been faithful while I’ve been unable to have sex.
So, any other options besides masturbating and never using porn? I suppose I should’ve mentioned strip clubs and prostitutes as other options we’ve ruled out, but I’m sure you’d frown upon those as well.
Bean, I’m trying to figure out what sort of experiences you could have that could lead you to rationally draw the conclusions you seem to have drawn about pornography. OK, if you’re carrying a box of porn and it slips and falls on your foot, sure, you could say you were hurt by porn, but I’m pretty sure that’s not what you’re talking about. If some person hurt you, then you were hurt by a person, not by porn.
If you can somehow prove that it was porn that caused the person to hurt you, you might have a case, but I don’t see how that’s a provable claim. Even if a rapist actually says porn made him commit rape, he could just be lying. “Oh, don’t blame me, it’s not my fault, it was that porn that made me do it, blame the pornographers!”
I’m reluctant to pry in detail, because I’m sure the actual details are private and painful. But really, I don’t see how you could plausibly have the knowledge you’re claiming to have.
The correlation and causality arguments stated above should be irrelevant with regards to porn laws. Porn, by law, can only be sold to adults. Adults, by law, are responsible for their actions. The overwhelming vast majority of individuals exposed to porn DO NOT commit violent and criminal acts. I don’t doubt that their may be a statistical correlation between exposure to porn and increases in sexual assault, just like I don’t doubt that constant exposure to real and simulated gun violence correlates to increase incidents of violent crime. Free speech is an ideal that at times isn’t pretty, but the alternatives are much worse than the current state of affairs.
The liquor and tobacco advertisement comparison is off target since they were banned from broadcast TV due to the powerful impact advertising can have on minors who are deemed much more susceptible to the ad’s message. (Note: I believe the liquor ban is a voluntary, industry-driven ban).
“Walking leads to running, and running leads to purse snatching so let’s outlaw walking.”
I’ve been thinking about this whole thing most of the day, and I’ve been drawing scenarios in my mind, to see just where the boundaries of what is “harmful porn” would be.
If I walk into the bathroom while Lis is taking a shower, and she says, “Want to take a peek?” and poses while I peek behind the shower curtain, I think we can all agree that there was no harm. If she decides to pose for me while I masturbate, I think there’s no harm done. What if she decides to take pictures of herself and give them to me to use as wank material? I suspect there was no harm done there, either.
All these scenarios involve no third parties, you’ll notice. So now I want to start thinking of other scenarios.
If a sketching or painting class pays someone $15/hr or so to stand around nude while people draw or paint them, has harm been done? There are people who say so, but I don’t agree. I think that no harm has been done. What if it’s a photography class? Again, I don’t see a problem.
One could argue that in those cases, the primary purpose of the art was not sexual gratification, but I don’t see that. Nudes, historically, have often been created to demonstrate sensuality, eroticism, and sexuality. I can’t see any real reasonable place to draw a line between sensuality, eroticism, and sexuality: I believe that many nudes were clearly created to be sexual in nature: look at Renoir’s Nude bather standing, or Manet’s Luncheon on the grass — the Manet one, I’d even be willing to entertain arguments that THAT objectifies women, and wasn’t he prosecuted for it?
Yet I don’t see the Renoir or the Manet as causing harm, even though, like many kids, my first wank material was by Renior, Manet, and Gaugan.
Obviously, there is art that WAS designed to demean and objectify women; I’m thinking of the Roman brothel “art”, for instance, which was actually there to demonstrate what the prostitutes could do, and for what prices, to customers who either couldn’t read, or couldn’t speak the language.
But I percieve a difference between that and Gaugan, for instance.
So: where I see the harm coming is when sexually explicit imagery or text is used in the context of, for the benefit of, or was created by an established sexuality industry which commodizes sexuality in a mass-market way — like a Roman brothel, or a porn studio.
But that’s not the same thing as “porn.” I can see an argument for “a porn industry” can cause harm — but that’s not the same thing as “porn” can cause harm.
As it turns out, the pornography which I use and enjoy is not mass-market. It’s amateur, it’s local, it’s stuff created for the enjoyment of the creators, and in which THEIR enjoyment is expanded through making it available to others.
And I think that a distinction can, and should be, made between those two situations — although, even with this distincion made, I don’t think that pornography made in a mass-market manner should be prohibited, because that would require the law to be making judgements of intent, which is never a good thing. . . .
Ian, bean has said she’s not trying to make mass-produced porn prohibited.
I know; I wasn’t saying she was. I was just trying to figure out what there was about porn to hate at all.
Free speech is an ideal that at times isn?t pretty, but the alternatives are much worse than the current state of affairs.
Why?
Seriously. Here’s my proposed alternative:
A is, of course, currently true; but B is not.
Why do you think my specific alternative is so much worse than the current state of affairs?
Well, for one thing, it would mean that there was yet another realm in which law enforcement authorities felt they had license to be overzealous. We’ve already got child porn hysteria, anti-drug hysteria, and anti-terrorist hysteria; do we really need another?
By that logic, we shouldn’t have any laws which are subject to abuse or hysteria. But obviously that’s not a practical thing: should we make child abuse legal to prevent further child abuse panics such as the “satanic ritual abuse” panics of the 80s and 90s?
Even laws against homicide can be (and have been) abused by overzelous or mistaken prosecutors. I would certainly favor laws intended to prevent such abuses in general; however, I don’t think legalizing things which ought to be illegal is the right solution to the problem.
I’m with the poster (about 150 posts above) who was a free speech absolutist. While he was troubled with outlawing simulated child porn, he could live with it, but could not agree to outlaw simulated rape porn. If consenting adults want to act out violent fantasies, photograph them and distribute the images to other adults interested in that type of content, it is my contention that any restrictions on that form “speech” would be a violation of our constitutional concept of free speech. To outlaw simulated rape porn would be institutionalizing thought crime, because the only rape occurring in the scenario I described above is in the minds of the models, photographer and consumers. Even in Ashcroft’s America, we can still think prurient, obscene, dangerous and illegal thoughts (no matter what our neighbors think).
I think your POV is too narrowly focused on restricting obscene speech. It is naïve to think that ultra-conservatives – who currently control all 3 branches of the federal government – would not exploit any weakening of the 1st Amendment to further their political goals. The Patriot Act (and god forbid the Victory Act) is a perfect example of their desire to limit once sacrosanct constitutional protections. The separation of church and state – another 1st amendment institution – has been watered down to the point where the US government is considering providing direct financial support for religious organizations to build churches and to employ workers using discriminatory practices (how many mosques do you think are going to get built with this dough?). Some ultra-conservatives call liberals traitors. What’s next, an updated version of the alien and sedition act? I may sound paranoid, but who would have thought that a “pre-emptive” war would have been possible 3 years ago (other than the PNAC folks).
That’s the slippery slope I’m worried about.
One last point – the Miller Standard is ridiculously vague. I’m no lawyer, but phrases such as “average person applying contemporary community standards,” “prurient interest,” “patently offensive,” “lacks serious literary, artistic, political, or scientific value” are so broad that they make the Miller Standard essentially meaningless. The law as its written is a cop out, because it fails to establish a standard that can be consistently applied over time. The law’s interpretation is subject to the fashion of the times (and place), and that’s no way to treat such an important right.
BTW – Ampersand thanks for running such a stimulating blog/board. Lots of great stuff to read and think about.
Ampersand, the federal legal definitions of rape can be found in the US Code, at http://www4.law.cornell.edu/uscode/18/2241.html, http://www4.law.cornell.edu/uscode/18/2242.html, and http://www4.law.cornell.edu/uscode/18/2246.html
That INCLUDES intoxication and cases when one partner is unconscious or incapable of consenting. And think of the current difficulties adjucating he-said/she-said date rapes. You wish to outlaw any simulation of that? That leaves a hell of a lot of uncertainty in the law, depending how rigorous or generous the prosecutor wishes to be.
Whoops, sorry those links weren’t live (just copy them into the address bar), but reading them makes the point that the law doesn’t differentiate between the kinds of violent rape I think you’re talking about and more common questions of impaired consent.
What’s more, by your logic it’s perfectly legal for two consenting adults to play Pirate Captive:
“Arrr! Prepare to be boarded, wench!”
“Oh, no!” (eyelashes flutter) “Won’t somebody save me!”
But if they should happen to take a photograph or film themselves, it’s illegal. In other words, you’re saying that visual representation of an otherwise legal action is illegal. That does not sound reasonable to me.
By the way, Amp, does the fact that you’re back in this thread mean that I shouldn’t expect an answer from bean about which links of mine she considers hooey? Because if there’s something wrong with the information in the medical lecture or health institute, I’d like to either get those sites corrected or clarified, or explain the science further as needed. But I can’t do that with more specifics on what she objects to.
that last sentence should read “without”
By that logic, we shouldn’t have any laws which are subject to abuse or hysteria.
You said cops should prosecute rape porn to the same degree as they prosecute child porn; I think they prosecute child porn over-zealously.
And sure, any law can be enforced over-zealously, but knowing that, shouldn’t we be really careful about what laws we pass? Shouldn’t we make no more things illegal than we really need to?
Lis: “By the way, Amp, does the fact that you’re back in this thread mean that I shouldn’t expect an answer from bean…”
Huh?
I can see absolutely no logical connection between the two things (me being “back” in this thread – did I leave? – and what Bean will be posting).
With respect, Lis, please realize that Bean and I are two different people. Questions for Bean should be addressed to Bean – not to me.
Riffin’ man wrote: I?m with the poster (about 150 posts above) who was a free speech absolutist. While he was troubled with outlawing simulated child porn, he could live with it, but could not agree to outlaw simulated rape porn. If consenting adults want to act out violent fantasies, photograph them and distribute the images to other adults interested in that type of content, it is my contention that any restrictions on that form ?speech? would be a violation of our constitutional concept of free speech. To outlaw simulated rape porn would be institutionalizing thought crime, because the only rape occurring in the scenario I described above is in the minds of the models, photographer and consumers.
Wait a second, here. You do favor outlawing simulated child porn, yet that’s also a case in which the only crime occurs “in the minds of the models, photographer and consumers.” (Strictly speaking, either there is no model – if the images are entirely computer-generated – or the model is an adult whose image is later altered to appear childlike on computer). So why do you approve the ban on virtual child porn, but oppose the ban on virutal rape porn? Since in neither case is an “actual” crime (aside from obscenity) committed, what is your distinction based on?
Riffin’ Man: It is naïve to think that ultra-conservatives ? who currently control all 3 branches of the federal government – would not exploit any weakening of the 1st Amendment to further their political goals.
First of all, my proposal would make the obscenity exception to the first amendment narrower overall, not wider.
Second of all, this is just more slippery slope arguments. But the fact is, obscenity laws have been in place for longer than I’ve been alive, and as far as I can tell that slope just isn’t slippery. Free speech has not steadily declined, year by year, due to those laws; if anything, it’s broader now than it was when the laws were first enacted.
So where is this slippery slope you’re talking about? Why should I beleive it’ll suddenly take effect now, when it hasn’t taken effect for decades up until now?
You’re talking about a different slippery slope – you’re in fear not of effects of obscenity legislation, but of effects of new legislation that directly hurts civil rights or separatation of church and state. But those pieces of leglislation (bad as they are) aren’t the result of a “slippery slope” effect from obscenity laws – they’re the result of Republicans winning elections combined with 9/11 creating a window in which any stupid piece of legislation labeled “anti-terrorist” could have been passed.
Do you really beleive that if obscenity laws hadn’t existed, the Patriot Act wouldn’t have been passed? To me, that seems like a very far-fetched assertion – and one that you haven’t even come within ten miles of proving.
Finally, I do agree that the Miller Standard is subjective – but so is the difference between “first degree murder,” “second degree murder,” and “manslaughter.” Just becuase something’s subjective doesn’t mean it’s necessarily a bad law.
You seem to agree with me that child porn should be outlawed – even virtual child porn – and yet serious art that includes images of minors having simulated sex (for instance, a movie of Lolita or Romeo and Juliet) should not be outlawed. It seems to me that the only way of distinguishing between the two is to use Miller, or something akin to Miller.
And, despite your contention that Miller is “essentially meaningless,” it appears to work pretty well in practice; child porn has been effectively outlawed, but movies like Kids have not been.
Lis wrote: That INCLUDES intoxication and cases when one partner is unconscious or incapable of consenting. And think of the current difficulties adjucating he-said/she-said date rapes. You wish to outlaw any simulation of that?
The main difficulties you refer to with date-rape come from the fact that the jury isn’t there, and so must choose, after-the-fact, one person’s word to take over the other’s. How that difficulty would apply to a filmed date-rape scene is beyond me.
Similarly, a film of someone having sex with an unconcious person is a film of someone being raped. I don’t see the difficulty there – having sex with someone who isn’t conscious is rape.
Finally, I’m not a lawyer, and I can’t write new laws myself. That said, I think there’s a BIG and obvious difference between a realistic rape scene – that is, “a filmed or photograph or series of photographs depicting rape sufficiently realistically to be indistinguishable from a filmed or photographed actual incident of rape” – and two giggling people in a 21st-century bedroom pretending that they’re in an 18th-century pirate ship. There is an enourmous difference between someone saying “Oh, no!” (eyelashes flutter) “Won’t somebody save me!” and what a rape victim – either actual or realistically simulated – says and does.
I’m pretty confident that a law could be written in such a way that only realistic simulations of rape – one that a reasonable person could mistake for an actual rape – would be banned under the law. Do you seriously beleive that a reasonable person would have trouble making a distinction between the scenario you describe and a realistic film of an actual rape? Would you?
And sure, any law can be enforced over-zealously, but knowing that, shouldn’t we be really careful about what laws we pass? Shouldn’t we make no more things illegal than we really need to?
So what determines what we “really need to” make illegal?
I’ve already explained in detail why I think rape porn that’s indistinguishable from the real thing “really needs to” be outlawed – see my initial post that began this thread, and also my post of August 16, 2003, at 05:30 AM. So from my perspective, I think I’ve already established why the law I’m suggesting is “really needed.”
While we’re talking about Romeo and Juliet, and Lolita, let me also point out that the Sopranos episode “Employee of the Month”, whose central point is a violent rape scene, won the 2001 Emmy for Outstanding Writing in a Dramatic Series. Writing laws that would illegalize recent award winners should be done with great care.
DonBoy, with all due respect, I think you’ve failed to follow the arguments in this discussion correctly. Do you honestly think that “Employee of the Month” (which I’ve seen – I’m a big Sporanos fan) would have any trouble getting recognized as protected art under the Miller standard?
As far as I know, HBO is broadcast in every one of the fifty states. Is there a single state in which a single court found HBO, or a local cable distributor, guilty of distributing obscene materials for broadcasting that episode of the Sopranos?
Although I’m sure you mean it sincerely, I think it’s a red herring to bring up The Sopranos. There is no danger that “Employee of the Month” would be outlawed, either under our current obscenity laws, or under the narrower obscenity laws that I’m proposing.
Yes — upon rereading, I’m going to take the hit for misunderstanding; I’m conflating one stream of the discussion (what the laws ought to be) with the other stream (is porn always bad). That’ll teach me to read before bedtime and post the next day.
The main difficulties you refer to with date-rape come from the fact that the jury isn’t there, and so must choose, after-the-fact, one person’s word to take over the other’s. How that difficulty would apply to a filmed date-rape scene is beyond me.
Which, like my first comment on virtual child porn, means that the better the artists/actors in these depictions, the more likely they are to be punished.
Also, something that I know is true for domestic assaults and (I believe) may also be true for rapes, is that police have prosecuted cases even when the “victim” says there was consent. This is sometimes used to prosecute people for BDSM, because no “reasonable person” would consent.
Therefore, A) I don’t buy the notion that people viewing a filmed date-rape scene would necessarily determine accurately how much consent was involved, and B) in the law as you described, the consent of the participants don’t matter if it looks like rape.
a film of someone having sex with an unconcious person is a film of someone being raped
How do you know after the fact, looking at a film/video/photo whether the person is unconscious or just faking it really well?
And, again, if it’s done realistically, does it matter under your proposal?
having sex with someone who isn’t conscious is rape
Hypothetical situation: X says “I’m curious about what sex is like with someone unconscious.” Y says, “That sounds interesting, I’m game.” X & Y write up exact details of what X is allowed to do with/to Y while Y is unconscious. Y then becomes unconscious, and X has sex with Y, doing nothing outside the scope of what was written down.
Given that level of consent, do you still count that as rape?
Finally, I’m not a lawyer, and I can’t write new laws myself…
I’m pretty confident that a law could be written in such a way…
You see, that’s the difference.
You sound fairly optimistic that lawmakers and prosecutors, dealing with a hot-button topic, would craft legislation finely to avoid entrapping the wrong people. I’ve seen too many cases where laws were painted with an overbroad brush, wrongly tarnishing innocents, particularly if those innocents are of sexual minorities.
I used to do Quality Engineering and am now in Product Design, so I’ve gotten pretty good at finding bugs and loopholes BEFORE implementation.
And that’s the kind of thing I’m pointing out here, innocent cases that any such law would have to take into account. I am glad you agree with me that such cases are innocent.
Lis, before I respond to your new post, I want you to answer my questions – I feel that you’ve rather dodged them. Here they are again.
I’d like answers to those last two “yes or no” questions, unless you object to answering them.
Ampersand, in the two posts you refer to, I see three arguments:
1. Having markets for rape porn and child porn encourages porn-producers to commit rapes and molest children while making more porn to satisfy the market.
This argument applies to child porn, I agree, but I don’t see how it applies to rape porn unless we’re talking about filming actual rapes, which I don’t think we are.
2. Allowing virtual rape and child-porn, indistinguishable from the real thing, allows porn producers who’ve committed real rape and child abuse to hide be claiming it was virtual.
I don’t buy this either. I doubt that it’s possible to create virtual porn that could fool a serious criminal investigation, and if there’s a victim to bring charges against the producer, then you have probably cause to start a serious investigation.
3. Rape porn encourages real-world rape, even outside the production studio.
I consider this unproven as well. You yourself suggest that it’s only true in a tiny percentage of cases, one in 10,000. That’s so small a number as to be unprovable — even if you did outlaw the porn you ‘re talking about, you couldn’t know that it had done any good because the change in rape statistics would be too small to be statistically significant.
Some people have claimed that the existence of porn acts as a release mechanism, allowing men who might otherwise commit rape to satisfy their urges harmlessly. What if this is also true to some small extent? What if there are two cases in 10,000 along these lines, so that banning such porn causes twice as many rapes as it prevents? That’s the problem with tossing around imaginary numbers like this; anyone can make up numbers.
Do you seriously beleive that a reasonable person would have trouble making a distinction between the scenario you describe and a realistic film of an actual rape? Would you?
I don’t object to answering them, but I’m just not sure I could.
Honestly, I’d have to see the whole thing, what happens after that point, in order to evaluate.
I wrote a purposely silly scenario precisely because I didn’t want to make things too dark. But I can envision ways that such a sexual romp could continue light and fluffy all the way through; I can see ways where something might go horribly wrong and it turns into a rape; I can see ways where it might be difficult to determine.
It also depends on other circumstances. Suddenly the couple undergoes a bitter divorce, and one party pulls out the tape and claims it was a case of coercion in order to deny the other one child custody. [That’s how many of the anti-gay rulings on the books have been used in recent years; people claim they’re innocuous because nobody’s prosecuted under them, but that doesn’t de-fang their threat.]
That’s why I like laws written as explicitly as possible, to minimize unintended consequences.
Speaking of your confidence in lawmakers, did you know that Massachusetts firearms law considers a jump-rope or tin-can telephone to be a firearm? The law was amended around the time certain bad kung-fu movies were popular. So, it’s illegal to carry a “weapon consisting of two sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather” without a firearms license. See 6b in http://www.state.ma.us/legis/laws/mgl/269-10.htm.
Similarly, a few years back, the state tried to charge someone with assault with a dangerous weapon where the “weapon” in question was toilet paper (abandoning a newborn in a public bathroom). The crime may have been horrible, but does that really justify that particular charge?
Have you read last year’s Supreme Court ruling on virtual child porn, Ashcroft v. Free Speech Coalition? There are lots and lots of great quotes here, but I wish to excerpt one portion (bold emphasis mine):
A few other quotes of note (though the whole opinion is really fascinating and worth reading):
And reading through all that brought up a counter-question for you on your proposed law. Suppose your law passed and somebody is accused of filming a “virtual rape.” How does somebody defend against such a charge? Proving that it was entirely consensual among all participants isn’t a defense, because you’re talking about perception, not intent. Given the current hoopla over MPAA ratings, where people can’t even agree whether a film deserves a G or PG-13, how well do you really expect a prosecutor and jury to make even finer distinctions?
In certain instances I’m willing to compromise a principle to accommodate a greater good. From a purist perspective, there should be no restrictions on simulated child porn, but I think that’s a difficult argument to make today. From an absolute purist perspective, owning real child porn should be legal, if the possessor had nothing to do with the heinous abuse of the children. They’re just images of a crime (a truly disgusting and horrible crime), but as far as I know it’s the only visual representation of a criminal act that is illegal to own. TV is inundated with real-life depictions of criminal acts (cops, chase videos, etc…). However, this is not an argument I would be comfortable making in anything other than a faceless comments section of webblog. I’m not looking to take a leadership position in the pro-child porn movement.
I also think you’re incorrect to think defining simulated rape porn as illegally obscene is a narrowing of the current obscenity laws. The one good thing about the Miller Standard is that it refuses to define specific content as obscene. They left it purposely vague, I believe, to avoid establishing content precedents that could be used to further restrict speech. Making depictions of adult fantasies illegal will establish a very troubling thought crime precedent that will be used in some communities as a foundation to further restrict what is currently considered protected speech.
Lastly, free speech is a civil right. Any encroachment on that right by defining specific content as obscene will have a damaging effect on other cherished civil rights and vice versa. I do not believe you can look at obscenity laws in a vacuum. Those that wish to trample on our valued constitutional protections do not, and I see no reason to provide them with a chink in our civil rights armor.
Amp and Don: It’s unlikely that anyone will go after The Sopranos, but you never can tell….look what happened to 1979 Academy Award winner for best foreign film, The Tin Drum in Oklahoma City. More on the story and here.
That is, here and here.
So a few out-of-control cops and one judge with a very questionable understanding of even basic law went on a vendetta against a wonderful film, The Tin Drum. This caused them to be ridiculed all over the state (including by other prosecutors). Far from being made unavailable to consumers, sales of the video they had attempted to censor went up. The legal system swung into action, and the federal courts ruled that the cops and judge were wrong in every way, and that The Tin Drum was clearly not child pornography. In the end, the state ended up having to pay out nearly a million dollars in damages to the video store association, the individuals whose privacy they infringed (by examining their video rental records without a warrent), and the ACLU.
It seems to me that this proves my case much more than it proves yours, Aaron. My contention all along has not been “obscenity laws will never be abused by individual bad cops, prosucutors or judges” – if that alone was enough to make a law illegitimate, then not only obscenity laws but all laws would be illegitimate.
My contention, rather, has been that the mechanisms we currently have in place are enough to prevent works like The Tin Drum from being seriously censored (by which I mean, becoming unavailable to the average citizen). That there is a real difference between child pornography and a work of art like The Tin Drum, and the justice system overall is able to make that distinction.
The Tin Drum example proves my point perfectly – despite the initial actions of some cops and a prosecutor who were clearly acting out of some impulse to force conservative-christian tastes on the rest of us, the system as a whole worked, and prevented the outlawing of The Tin Drum.
Lis: Is there an actual case of the courts interpreting a jump rope as a weapon, under the terms of that law, and sending someone to prison for carrying a jump rope in Massachusetts?
Similarly, a few years back, the state tried to charge someone with assault with a dangerous weapon where the “weapon” in question was toilet paper (abandoning a newborn in a public bathroom). The crime may have been horrible, but does that really justify that particular charge?
No, of course not. But the relevant question for this thread is, does the fact that the “assault with a deadly weapon” charge is, like all laws, subject to abuse, mean that we shouldn’t make “assualt with a deadly weapon” illegal at all?
Actually, I thik the fuss over the MPAA rating you linked to is an excellent example of why “writing laws as explicitly as possible” is often a bad idea. The MPAA rulings are very explicit; they have a forumula, relating to using x number of “bad” words, x number of drug references, x number of sexual situations, nudity over x number of frames, no “pg-13” movie can ever be marketed for kids, etc etc. And the result of that formula is really stupid situations like Whale Rider being rated PG-13 and then being told that it couldn’t run an ad quoting Roger Ebert saying “Take the kids, and they’ll see a movie that will touch their hearts and minds.”
Now, part of the problem here is that the rules the MPAA uses are basically stupid. But just as important, the problem is that because the MPAA’s rules are written “as explicitly as possible,” they have no flexibility at all. I think that subjective standards are in fact often superior, because they would give the ratings board the ability to stand back from the work and as “okay, forgetting the count of how many times a character said ‘dick’ in this movie – taken as a whole, is this movie unsuitable for children? Does it deliver unsuitable messages for children, such as ‘drug use – hooray!’ or ‘it’s cool to be cruel to animals’? Does it contain so much sexuality that parents may reasonably not want their children to see it unsupervised?”
You would presumably object to the MPAA asking questions like that, since they’re subjective questions. And in fact, those are all questions that the MPAA can’t ask, because they’ve got a set of very explicit rules they work with. But I’d argue that it’s the practice of using explicit rules – rather than asking reasonable-but-subjective questions – which led them to make such an unreasonable conclusion about Whale Rider
As for Ashcroft v. Free Speech Coalition, I’ve read it (at the time – I haven’t gone and reread it today). It’s not the same thing as what I’m advocating – I’m calling for the Miller standard to be maintained, which is a very significant difference from the law they’re discussing. On the whole, I agreed with the Court; it was a bad law which deserved to be overturned for violating the first amendment. In other ways, obviously, I disagreed with some aspects of the court’s decision.
Actually, as I understand it, the MPAA is very subjective, based upon the opinions and impressions of a group of anonymous LA residents whose only qualification seems to be that they have reproduced*. Quoting from the MPAA (emphasis mine):
And maybe after everything ended, the Tin Drum mess seems like a vindication, but imagine the folks caught in the middle of multiple years in the legal system, dealing with court costs and the potential criminal record. I couldn’t afford that, in terms of time, money or emotional strain…
And remember, the only reason we heard much about this case was because the police knocked on the door of somebody who worked for the ACLU and he countersued! Articles state the police had already confiscated at least a half-dozen other copies of the video from various locations before dealing with Mr. Camfield. And think about how much more attention and success that case got than Mike Diana or Jesus Castillo, who weren’t as wealthy or connected.
Amp, would a disclaimer at the beginning of a piece of simulated rape and/or child porn saying “all actors/models involved in the making of this work are consenting adults” be enough under your standard to make the work not subject to Miller? Or would the actual piece of porn itself have to be obviously not a real rape or obviously not use underage models/actors?
What about if the portrayed context around the actual sex act showed consent, but the sex act itself looked like rape/ child porn, i.e. if the actors said “let’s pretend you break into my house and rape me”, but then when the sex scene came up the pretend rape seemed pretty realistic?
I’m curious about this in relation to BDSM themed porn, where the context is often “this is all a fantasy/scene”, but the actual sex can often be a simulation (sometimes realistic, sometimes not) of rape. Often the sex is portrayed as rape except that the “victim” enjoys it. What do you think about this?
Laura wrote: Amp, would a disclaimer at the beginning of a piece of simulated rape and/or child porn saying “all actors/models involved in the making of this work are consenting adults” be enough under your standard to make the work not subject to Miller? Or would the actual piece of porn itself have to be obviously not a real rape or obviously not use underage models/actors?
The latter. Maybe I’m too cynical, but in my heart I feel that child and rape pornographers might not be totally honorable people whose disclaimers can be trusted.
What about if the portrayed context around the actual sex act showed consent, but the sex act itself looked like rape/ child porn, i.e. if the actors said “let’s pretend you break into my house and rape me”, but then when the sex scene came up the pretend rape seemed pretty realistic?
I’d say that wasn’t very realistic. No real stranger break-in rape begins with the victim saying that. (In other words, yes, I think the work should be judged as a whole.)
Do you have any news stories about rape pornography or rape pornographers that would demonstrate this is a real or growing problem? Or is this something like snuff films which everybody agrees would be horrible if any actually existed?
Amp wrote:Maybe I’m too cynical, but in my heart I feel that child and rape pornographers might not be totally honorable people whose disclaimers can be trusted.
Hmmm. You’re obviously right of course. But I wasn’t thinking about actual child pornographers and rapists when I asked about disclaimers. I don’t think the obscenity standard is a big deterrent to them anyway (the standard you espouse plus more is already in effect, but all one has to do is open some spam to find copious examples of what is claimed to be real child and rape porn).
I was thinking of people who want to produce or view simulated child or rape porn without being or supporting actual rapists or child molesters.
I think there is a significant population of people whose sexuality is irrepairably contaminated with violence, who are self aware, still want to be sexual, but don’t want to cause or condone any real harm to anyone. I am one of those people, and the BDSM community is full of lots more people like me.
With your proposed standard such people could produce or view protected porn that turned them on as long as it was clear any lack of consent was simulated. I think this is overall a pretty good idea. I was just wondering about the practical aspects of it.
In movies, the context of the work as a whole could serve that function, but still pictures are more complicated. How can one tell whether the violent aspects of a picture (for example, bondage)have been consented to or not? And what about written stories? Are they ok as long as the author presents them as fiction, or only ok if the characters consent within the body of the piece?
Wow! Lots of comments. After catching up, I have but one two-part question:
How in the world do the authorities prosecute child-porn too zealously, and how is that even possible?
Overzealous prosecution is entirely possible and has happened.
Did your parents (or family) ever take any photos of you as an infant when you were not fully clothed? Playing around at bathtime or the stereotypical baby-posing-on-the-rug pictures that are solely for the scrapbook, family and friends?
Photo developing labs have turned parents in to the police for taking these kinds of innocent pictures of their own children.
Examples inlcude this case in Texas and this Cambridge woman several years back.
And even though the people were eventually acquitted, there’s still the stress and expense of arrest and fighting the court case. Plus, the government’s efforts to deny the parent custody is probably far more harmful to the children than those photos ever were.
Oh, and here’s a case where the prosecutor is threatening to have a defense attorney arrested for possessing file copies of the alleged pornographic photos he received in discovery from the state and needs by law to have in order to defend his client.
I’d say all these qualify as overzealous prosecution. Also, the Tin Drum case mentioned above was prosecuted as child porn, notwithstanding the fact it was an Oscar-winning film.
Laura: “Amp, would a disclaimer at the beginning of a piece of simulated rape and/or child porn saying ‘all actors/models involved in the making of this work are consenting adults’ be enough…”
Amp: “Maybe I’m too cynical, but in my heart I feel that child and rape pornographers might not be totally honorable people whose disclaimers can be trusted.”
Of course such disclaimers would be worthless if they had to be taken on faith. But the last time I saw a porn video, there was some text at the beginning saying “All of the actors are over 18 etc. and the documentation of this is on file at (address of producer’s office).” I haven’t seen a lot of porn so I don’t know whether this is a standard practice, but it makes sense to me.
Maybe I’m too cynical, but in my heart I feel that child and rape pornographers might not be totally honorable people whose disclaimers can be trusted.
Look, you don’t have to trust the pornographers to be honest. That’s the entire point of having a legal system. If someone makes a porn movie, claims that the actors are all over 18, and then turns out to have lied, you can prosecute! If the law requires him to have made sure about the ages of the actors, and he hasn’t, then you’ve just got more charges to hit him with. I suppose there needs to be a statute of limitations, to keep people from having to maintain paperwork forever.
And if the work is all computer-generated, you can demand that the pornographer prove it. This shouldn’t be difficult, as long as his hard drive hasn’t crashed; most people doing serious 3D modeling work keep their files around for possible reuse.
Okay, I see what you mean. I thought you meant actual child porn. I don’t see how actual child porn can be prosecuted too zealously. I guess this is a case where digital cameras are good AND bad… easier to take cute bathtime pics, and easier to produce illegal images as well.
I don’t see how actual child porn can be prosecuted too zealously.
Well, you could drop a nuke on every suspected pornographer, as a ridiculous example.
Though it might not be as absurd as you think. In 1985 Philadelphia police firebombed a building in a residential area, to get at a group called MOVE, and the resulting fire took down 60 row houses.
Even if you think no fate is too awful for actual child pornographers, have some concern for the damage that gets done to bystanders, the falsely accused, and the people who get caught up when the law proves to have been written more broadly than you might have intended, like Larry Matthews and Patrick Corp.
Avram wrote: “In 1985 Philadelphia police firebombed a building in a residential area, to get at a group called MOVE, and the resulting fire took down 60 row houses.”
To be honest, Philiadelphia police dropped a “concussion” bomb on MOVE. It started a fire that took out all those buildings & killed several. So they didn’t really “firebomb” them.
<Sigh>
Only one post yesterday. It looks like this thread is ending with a whimper and not a bang.
I honestly feel rather disappointed, because I’ve asked several questions over the past week that haven’t been answered. I believe that communication can foster understanding, and think this discussion has been worthwhile, but (as usual) I feel unsatisfied and frustrated and lacking a climax. :}
Lis – Ampersand is away for a week – and after reading all of the above, I can’t imagine why you would want any further comment from Bean. (I have NO desire to enter into a flamewar, but I find Lis’s and Avram’s attempts to argue with someone who says things like “NOTHING is going to change my opinion,” and who thinks she understands other people’s sexuality better than they do, to be quixotic to say the least… and unlikely to generate more light than heat.)
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Not so much: your logic calls for an exception to be made to the benchmarks set up by Miller–no matter the serious value of a work of art, if it realistically depicts rape (“photos or films depicting realistic-seeming rape scenes”), or scenes involving sex with children, you’d want it banned.
I’d like to imagine you’d reconsider, in the case of realistic depictions of rape, and allow Miller to obtain; in other words, works of art that depend on realistic depictions of rape for their impact and that otherwise have artistic, social, political, scientific, etc. etc.–non-prurient, that is–value not to be determined obscene. Perhaps you’d then claim that the need to protect children from abuse trumps the free speech rights inherent to virtual depictions of sex with children–no matter the artistic, social, political, scientific, etc. etc. value that someone might find in it. Thus calling for virtual depictions of sex with children to be a special case, beyond the purview of the Miller benchmarks.
(I disagree; people who make child pornography should be prosecuted for the child abuse necessary to make their product, not for trafficking in obscenity; much as people who make pornography that relies upon actual non-consensual sex should be prosecuted for assault and rape, and not for trafficking in obscenity. –People who deal in virtual forms of either should not be prosecuted–no crime has been committed, and Barry’s ivory analogy is flawed. It would be much easier and safer to produce virtual child pornography; no actual children would be involved, and anyone who’s watched Lifetime movies can draw a similar conclusion as regards faked depictions of rape–much as producing flawless replicas of elephant ivory from plastic wouldn’t harm actual elephants. –But I am as I’ve noted something of an absolutist as regards free speech. Sigh.)
Ahem. “No crime in my opinion has been committed.” –The difficulties of being an absolutist; one forgets the actual facts in play.
I’d like to imagine you’d reconsider, in the case of realistic depictions of rape, and allow Miller to obtain…
You’ve misread me. I’m calling for the Miller standard to be retained; that is, it would always obtain, even in the case of realistic depictions of rape or child sex.
Well, I based my apparent misreading on this passage–
–and the fact that you called for depicitons of rape to be treated similarly. This passage seems to call for legal action over and above what’s currently available–after all, if you want Miller to obtain, then no new laws need to be passed; virtual child porn that couldn’t pass a Miller test is obscene. Whether real children were harmed or not would make no difference in an obscenity case.
But your analogy, and the practical consequences you describe, seem to require the outright banning of realistic-but-virtual depictions of sex with minors, to prevent the possible future harm to real, actual minors. (Also, I’m cheating–you’ve expressed this idea to me in personal conversation.) This would be beyond the purview of Miller (or would, perhaps, hold that any realistic depiction of sex with a minor is so obscene that no other value could redeem its obscenity by any community standard, but given that The Tin Drum has survived obscenity challenges on the grounds of an implied sexual act with a minor, precedent would seem to be against that interpretation).
So: either virtual depictions of sex with children must be banned outright, in which case new laws need to be written and passed, and I’ll get grumpy and hurl what thunderbolts I can; or Miller obtains, and no new legal action needs to be taken.
–Which is (apparently) your point of view. Which makes this post seem a bit–forgive me–hyperbolic. But it’s a poor craftsman who blames his tools, and so I will apologize for having misread you.
(That last is said with my usual smirk. Carry on.)
Amp-
Do you believe depictions of crimes involving sex are special? Do you believe the realistically virtual and artisicly meritless “slasher” film genre (Texas Chainsaw Massacre, Freddy vs. Jason, etc.) creates the marketablity and enforcement problems you describe with regard to “snuff” films (showing people actually getting killed)? And if so, is the problem big enough to justify censoring slasher films?
I’m pretty sure that Amp is actually advocating restricting Miller, not expanding it. I think he is saying that the pruriency aspect should be replaced with “depicting rape or child sexual abuse sufficiently realistically to be indistinguishable from a filmed or photographed actual incident of rape or child sexual abuse.” So merely depicting lewd acts in a manner with no redeeming social merit would no longer be prosecutable, but depicting rape in a manner which might be mistaken for the filming of an actual rape and which was also without social merit would remain prosecutable.
I think thats what he is saying.
Amp-
Also, in response to your comments in a previous thread on this topic, I would suggest you look at Canada as a place where the slippery slope has allowed censorship to run amok. Having no First Admendment and passing “progressive” anti-censorship laws designed to protect women, one of Andrea Dworkin’s books against porn was censored, Maddonna was threatned due to the content of her live show, and gay and lesbian book shops are frequently harrassed using the censorship law as cover. And I use Canada precisely because it is an otherwise very admiral country from a progressive point of view: The overall good sense of the Canadian people has not prevented a well-intentioned censorship law from being frequently misused. The U.S.’s committment to Free Speach is an historical anomaly that is maintained only due to vigilence of people like the ones you suggest (probably rightly) are being a little hysterical in this one case.
That should read:
passing “progressive” CENSORSHIP laws designed to protect women,
Decnavda:
There are real-life examples of child porn and rape porn being traded and marketed. Despite the legends, there is no evidence that any actual commercial “snuff porn” has ever been made and marketed. So I’d say the difference is that child porn and rape porn are real-life problems that it makes sense to address, whereas snuff-porn is an urban legend and can thus be safely ignored.
As for Canada, I’d say their law is much broader than what I’ve advocated for in this post, and the results are not as clear-cut as you describe. For instance, Dworkin’s book is available in Canada (or it used to be, I’m not sure it’s still in print); it’s true that once, many years ago, a shipment was stopped at the border, but it’s an exaggeration to imply that the book is therefore not available to Canadian readers.
It’s true that gay and lesbian bookstores have been harassed since the Butler ruling, but those same bookstores were also harassed before the Butler ruling. To blame the harassment on Butler therefore seems a bit unfair.
The thing is, I know many Canadians. I don’t get the impression that they seriously lack free-speech rights; Canadians are not routinely arrested for expressing political opinions. Are there things in Canadian law I would change? Yes, absolutely. They clearly need to put laws in place to protect lesbian and gay bookstores from harassment, for one thing.
Is Canada the awful place free-speech-purists predict from slippery-slope arguments, where no one can buy a copy of Andrea Dworkin, Lolita or Dave Sim’s incredibly misogynisic comics (which are published in Ontario, by the way)? No, it isn’t. In fact, for most practical purposes, it doesn’t really seem that the slope has slipped much at all; Canadians seem about as free to speak as Americans are.
If the worse outcome of comics like DBI being censored is “art will be as censored here as it is in Canada!,” then excuse me if I don’t see what all the panic is about. Canadians don’t have it that bad.
i think that rape and child porn should be banned, but i also think that the laws against child abuse and rape should be more aggressively prosecuted. i don’t think eliminating the images of the acts will eliminate the real issues involved with what goes into producing those images. i’m not sure jail would either, but i think it’s important for there to be consequences…
hey, amp, i noticed you took me off your blogroll… *sniff* i still have a book of yours that i’ve read and need to return to you…
Wow, what spirited and literate and intelligent discussion I see on this blog! My compliments to the chef and to all the patrons!
In my blog about the Castillo piece, I started by saying that when it comes to obscenity laws, I’m “close to being an absolutist” — which is to say, taking the First Amendment very literally, and reading it to provide very expansive protection against prosecution for obscenity.
Amp’s arguments are persuasive to me with respect to kiddy porn. For policy reasons — which is to say, speaking as a citizen and a father of four, not as a lawyer trying to make principled distinctions about constitutional law — I’d very much not want to see the First Amendment interpreted in a way that protects kiddy porn. When created using real children, laws governing non-speech conduct already make what’s going on illegal, and quite appropriately those tend to be laws with far more bite to them than the class A misdemeanor that threatened Mr. Castillo with a year in jail and a $4000 fine. But genuine kiddy-porn (with live actors who are minors) is, to me, so very evil that it drives me, albeit with some intellectual discomfort, away from an absolutist First Amendment position. You’ve simply got to be able to suppress that stuff from the distributor-side too, for the reasons Amp argues.
However — and here I’m about to plunge through the looking-glass, for a political conservative — I’m not similarly persuaded as to rape-theme pornography.
I can’t see a principled distinction between that and “Saving Private Ryan.” Both may have a tendency to promote violence indirectly, but the First Amendment makes the policy judgment that we, as a society, have to run that theoretical social risk in order to protect free expression, including artistic and political speech. We trust adults to make the distinction between the fictitious scenarios they’re watching and real life. If from time to time someone gets confused and commits an actual rape or blows up a bus with a live grenade, then we punish them for that conduct — and neither the “Twinky” defense nor the “I saw the Terminator too many times”-defense has been very effective in court, and they shouldn’t be.
Adult human sexuality being as weird and quirky as it is, lots and lots of reasonably normal people, of both sexes, get turned on by watching, or acting out, rape scenes. And for that matter, the same is true of post-puberty Lolita scenes. (Tell me any other reason why “Brazilian waxes” have become fashionable.) That’s why I applaud, for instance, the relatively recent federal law that requires porn makers to confirm, maintain records to show, and certify to their viewers that their actors aren’t minors. It’s good that there are those reminders to the consumers that “Hey, this is all just pretend. Don’t do it for real. It’s illegal if you do it for real.”
Indeed, in condemning child pornography and agreeing that those who purchase or possess it ought to be subject to criminal penalties, the sole reason I believe that’s justified is the “suppress the demand to discourage the supply” argument, because I don’t equate the consumption of that pornography to the manufacture of it on my scale of social evils.
That’s drawing some pretty fine lines, I know, and puts me into the uncomfortable position of defending some pretty raunchy, tasteless stuff that, in my opinion, does lack any redeeming value. “Redeeming value” is a stupid standard, though, that’s impossible as a practical matter to quantify — which is why I think the Miller v. California line of cases is pretty pathetic.
the only “virtual” porn I’d outlaw is visual representations so realistic that they’re not easily distinguishable from the real thing
In other words, bad artists can get away with anything, but good realistic artists get punished…
To see why, imagine the police raid a porn producer’s studio and find tons of photos of children being raped. The porn producer says “sorry, I bought all of these from someone – I forget who – and he said he generated them on computer.” Suddenly, it becomes, for all practical purposes, impossible to enforce child-porn laws.
What, is the testimony of the victims somehow inadmissible in court?
It occurs to me that there’s a fairly easy loophole if virtual kiddy porn is illegal. Mix in some artsy-fartsy stuff and voila – artistic value! Shouldn’t be that hard for a (competent) lawyer to defend in court considering the utter garbage stinking up modern art museums and mansion walls these days.
It also occurs to me that I read in the L.A. Times that the big-eyed children in the stuff that we know-nothing Yankees refer to as hentai appeared as a way to get around Japanese pornography laws somehow.
I rather significantly disagree. Obviously rape and child abuse (sexual or not) are illegal and should be heavily prosecuted (far more than they are today). However, from my PoV making virutal representations of these activites illegal is IMHO a bad idea from two distinct perspectives.
1) First, making it illegal to create any virutal images or in fact any images at all that do not require harmful acts or crimes to create is an exceptionally dubious and in my opionion immoral ideal. Such a law also provides ad excuse for many more forms of censorship, including types we both would disagree with.
2) Equally (or perhaps more) importantly, there are people out there who would like to see such images. These people are not going to suddenly vanish. I would far rather have wuch people watch these images than go out and actually hurt someone (there is no indication that watching such images causes anyone to commit rape or abuse children). If such people are any legal access to an outlet for their obessions, then they will turn to illegal ones, including committing these acts. If nothing else, the lessons of prohibition are clear.
Also, if there is a demand for such images, someone somewhere will meet this demand. If both virtual and real images are illegal then there is little incentive for people to illegally produce virtual ones. However, if virutal ones are legal and real ones are not, then it is at least likely that there will be less incentive to create images that involve someone actually being hurt.
From the Andrea Dworking Lie Detector
Andrea Dworkin’s own books have been censored due to feminist anti-pornography efforts in Canada.
FALSE. As the […] public statement explains, several of Andrea’s books were once detained for inspection by Canadian Customs officials but under procedural guidelines that were in effect for years before 1993 and have been unaffected by the Butler decision. (The books then passed routinely into Canada.)
(And, ftr, that same public statement also debunks the myth that Dworkin helped pass the Butler decision, as well as the myth that she even supported this law.)
As for my opinions on child pornography — real or virtual — it’s fucking sick. And, IMO, it’s even more than fucking sick that anyone would defend them. FUCKING SICK!!!!!!!!!!! People fucking disgust me. Slippery slope schlippery slope. It’s a bullshit argument in order to protect a bullshit form of media.
Want to call me an anti-First Amendment freak? Go for it. I don’t fucking care. I would never, ever, ever, ever want to be associated with shitheads who want to defend any kind of sick fucking shit like this.
What the fuck ever — it’s shit like this that makes me glad I’m moving to Canada — to get away from assholes who think that any kind of child pornography should be protected. FUCK THIS SHIT!!!!!!! It’s disgusting.
Oh — and btw — anyone who wants to rant on about Canada’s lack of free speech has obviously never been to Canada, has never seen the stores that exist, has never watched Canadian television, has never been to a Canadian bookstore.
I had a big post written out, but I’ll just agree with Bean here.
People don’t want to throw the baby out with the bathwater. I say, don’t keep the bathwater with the baby. Rape and child porn are not speech, they are sick, violent, hateful acts against children and women and NOTHING is lost if they are banned. Nothing. That doesn’t hurt free speech. Defending something that has a higher correlation with violence than smoking does with lung cancer has nothing to do with protecting people. Protecting free speech is about protecting freedom. Apparently free speech NUTS don’t only care about the freedom of pedophiles and rapists. Who gives a shit about children and women, right?
Fuck that.
(there is no indication that watching such images causes anyone to commit rape or abuse children).
And there is no indication that watching such images DOESN’T cause anyone to commit rape or abuse children. The results of nearly every study have been ambiguous at best (although there have been some that have found NUMEROUS correlations). Call me crazy, but these are situations I’d rather err on the side of caution. Maybe it’s because I’ve endured the pain of rape. Maybe it’s because I’ve known far too many women who have endured this pain. And I’ve known far too many children who are raped and abused. Maybe it’s because I actually give a shit about these people. Maybe it’s because I don’t give a shit about anyone shithead that wants to watch that shit to get his rocks off. Lock him and throw away the fucking key. That would help society.
AND, I don’t care about the law. The law says that virtual child/rape porn is okay because no real people were hurt making it. But people ARE hurt by the product. Nobody benefits, nobody needs that shit. Nobody benefits when people are conditioned to find children and rape sexually arousing. I repeat that nothing, no freedoms, nothing good is lost if that shit is banned.
And, I’d like to have a few minutes with anyone who produces, consumes, or defends this shit. A society that cares about protecting its oppressed populations would not allow these sort of inciteful images to be legal.
One last thing: for you people who want to say this is okay, why do you put more value on the ability of these sickos to put out violent “speech” than you do upon the victims of it? This slope isn’t even slippery. Everything out there isn’t speech. This isn’t SPEECH! This isn’t a commentary on the violence of our society, like an artistic work about rape would be. It’s just violence and hatred produced for the sole purpose of having people become more strongly conditioned to ENJOY the image of rape. And this isn’t a slope and it isn’t slippery! Banning images of rape has nothing to do with allowing communists to publish or even allowing racists to spew their vitriol. Rape porn (real or not) is not an idea! It’s not a belief! It’s not a thought! It’s not speech! It cannot be defended! It is violence, and it incites violence.
What in the world is the benefit to protecting this? I understand that the law protects it, but why should it? How does that improve society? Who does it protect? What purpose does it serve? Adhering so strenuously to one single idea (free speech no matter the cost) is just inflexible, nonsensical zealotry. The point of free speech is to protect… this SHIT doesn’t protect anyone. Doesn’t help anyone. Doesn’t make anything better. Banning it doesn’t restrict any thought. Doesn’t restrict anything good at all.
If you can’t see the difference between images of a child being raped, and say, a shootout scene in a western, then you are a total fundamentalist idiot bound to rigidly stick to an idea even in a circumstance when the application of that idea doesn’t make any sense.
Just a couple of more comments:
WRT to the studies that have not shown indications that rape and child porn leads to rape and child abuse (and, yet, have not shown indications that it DOESN’T lead to it). Many studies have shown that certain individuals are content simply with the porn, while others become encouraged to seek out more, and more, and more, until it becomes real rape. What should we do — come up with some assessment of who is more prone to the violence via watching the movies and ban them from seeing it?
For another — advocating protection for this form of “porn” is condoning it. You may think you don’t personally condone it, but you do. You are saying that it is perfectly acceptable to be sexually aroused by rape and violence and children. And you know what — that’s NOT a message that protects society. It HARMS women, and it HARMS children. Condoning (even indirectly) rape porn, child porn, rape jokes, all of it is what causes us to live in a rape culture. AND I’M FUCKING SICK OF LIVING IN A RAPE CULTURE!!!
How delightful to learn this morning that I am a sicko who doesn’t give a damn about people.
More coffee is in order.
Avram wrote: What, is the testimony of the victims somehow inadmissible in court?
You’re assuming that the victims can be located and are willing to testify. As I understand it, that’s not true in most child pornography arrests, and I doubt for rape porn either.
I know it’s not your intention, but requring victim testimony would, in effect, legalize a lot of child porn and rape porn.
With all respect to my friends Tishie and Bean, the turn this thread has taken makes me very unhappy. I’m reminded of being on the Ms boards and the anger directed at me by Heart, Lucky, and others because I disagreed with the MacKinnon/Dworkin anti-porn ordinance.
I was told that my disagreeing with the M/D ordinance meant that I was didn’t give a shit about the harms women suffered, etc etc. But that wasn’t true; I merely felt that the M/D ordinance wouldn’t provide much relief to women, wouldn’t actually change society (or the rape culture) enough to really reduce rape and violence against women, and would cause more harm (by censoring people, especially women artists, who tend to have less money to spend defending themselves in lawsuits) than good.
As far as I can tell, no one here is defending actual child or rape porn – the stuff in which real people are unambiguously, directly harmed by the production of it. People are defending the free speech rights of the virtual stuff, on the grounds that they don’t believe that stuff causes harm, and on the grounds that censoring it would cause more harm than help. As it happens, I don’t agree, but I think folks should be given the benefit of the doubt; if they disagree, it’s not because they don’t care about harm to women and children, but becuase they haven’t been convinced that virtual porn does harm women and children.
I really hated it when Lucky, Heart, et al were unwilling to give me that kind of the benefit of the doubt. I think the kind of thinking they engaged in is a major reason that the Ms boards are so impossible to read today.
Of course, I’m not saying that either of you are the equivilent of a hateful asshole like Lucky! But I do think that not giving people who disagree the benefit of the doubt is an error, no matter who makes that error.
Bean, if favoring 1st amendment protection for virtual child porn – which, in the worldview of those who make such an argument, doesn’t harm children or anyone else – is condoning child porn, does that mean that favoring 1st amendment protection for – say – people who reprint the SCUM manifesto are condoning shooting men for being male? Or people who think the KKK have the right to state their political views are condoning racism?
I agree with you (Bean and Tishie both) that the publication of child porn and rape porn contributes to a rape culture, and leads to concrete harms to women and children. But I can’t prove it empirically, and I don’t think it’s true that people who disagree with banning virtual rape porn are indifferent to harm to women; they merely don’t believe that publishing such materials harms women more than censoring them will harm people (including women).
(Despite my hypocritical previous post, I hope the discussion here will remain focused on the issue, rather than switching to focus on meta-discussion issues.)
I basically agree with both Bean and Tishie. I don’t see that virtual child porn has any value; it doesn’t add to the political discourse, and it doesn’t provide any social good.
John S. writes: First, making it illegal to create any virutal images or in fact any images at all that do not require harmful acts or crimes to create is an exceptionally dubious and in my opinion immoral idea.
Why? It’s not enough to just baldly state your opinion; you need to give an argument in support of it.
How about making an absolutely perfect, life-sized image of a $100 bill? That doesn’t require any harmful acts to make – and yet doing so, in most contexts, is illegal and called “counterfeiting.” Do you find that immoral?
I don’t, because I understand that allowing people to print their own money, indistingishable from treasury-printed money, will cause real indirect harms (via inflation). Similarly, allowing people to create virtual child/rape porn, indistingishable from non-virtual stuff, causes real indirect harms (via creating a market for the real stuff).
John S.: Such a law also provides ad excuse for many more forms of censorship, including types we both would disagree with.
This is a “slippery slope” argument But I don’t think that the slope is that slippery. We’ve had obscenity laws in place for longer than either of us have been alive – yet it seems to me that free speech in the US is pretty much alive and well (or where it’s not alive and well, the problem isn’t obscenity laws but other things, such as the implicity censorship of capitalism). Yes, the laws are occasionally abused – just like all laws are occasionally abused, given the immense scope of our justice system. But there’s been no systematic reduction of free speech rights due to obscenity laws that I can see – therefore, no slippery slope.
John S.: Equally (or perhaps more) importantly, there are people out there who would like to see such images.
Actually, I suspect that the more available such things are, the larger the audience who wants to see such things. Admittedly, I can’t prove it. But it seems to me that (to swith to a harmless example) before superhero comics existed, there were far fewer people who wanted to read superhero comics, planned to buy superhero comics, and sat around thinking of superhero plots and adventures. The existance of a product, to some degree, creates its own market, by encouraging people to think in directions that they would not have thought in as often – or at all – had the product not existed to guide their thinking in that direction.
John S: These people are not going to suddenly vanish. I would far rather have such people watch these images than go out and actually hurt someone (there is no indication that watching such images causes anyone to commit rape or abuse children). If such people are [denied] any legal access to an outlet for their obessions, then they will turn to illegal ones, including committing these acts.
Now, this is really slippery of you, John. With your left hand you point out the lack of evidence that watching such images causes people to act them out; with your right hand you postulate that not watching such images will cause people to act them out, even though there isn’t the slightest shred of evidence to support such a contention.
There is in fact some evidence that watching violent rape porn increases men’s acceptance of rape myths, which in turn (in theory) increase propensity to rape. (Those studies tend to be ambiguous because they mix up all porn with violent porn; the evidence that violent rape porn increases anti-women aggression is much stronger than the evidence that porn-in-general does the same thing.)
Do I think such studies are very strong evidence? No. But they’re much more evidence than any I’m aware of to support your proposition, that not watching such images causes people to rape in real life.
If nothing else, the lessons of prohibition are clear.
The lessons of prohibition are that banning a popular, mainstream activity that doesn’t really harm anyone is a mistake. However, I don’t think that viewing child/rape porn is analogous. First of all, the vast majority of porn is NOT child porn or rape porn; I don’t see any indication that child/rape porn is even one-billionth as popular as drinking alcohol is. Second of all, I’d argue that child/rape porn is not harmless.
John S. wrote: However, if virutal ones are legal and real ones are not, then it is at least likely that there will be less incentive to create images that involve someone actually being hurt.
Given the huge disparity in penalties between being found guilty of possessing obscene material – even child porn – and being found guilty of actually raping a child, I think you’re mistaken. To the degree that producers of real child porn and real rape porn are rational actors, the enourmous difference in penalties should be enough to motivate smart criminals to make virtual porn rather than harm real people.
Unfortunately, even with the differenced in penalties, in some ways it still remains cheaper to produce “real” than “virtual.” Producing virtual stuff is expensive, and requires a lot of real skills. Producing “real” child/rape porn is, comparitively speaking, cheap and skill-less; all it requires is a psychotic personality and a camera. But that remains true even if we do as you suggest, and not punish virtual child/rape porn at all.
In the case of elephant ivory, poachers ran the risk of being jailed or even shot to death if they tried to produce new elephant ivory – and yet, they did, even when selling “old” ivory was legal.
In practice, I think that the larger the marketplace for realistic child/rape porn, the more such porn will be distributed, marketed, and sold. Under such circumstances, I think it makes the most sense to make such markets as small as possible, although I agree with you that completely eliminating them is probably not possible.
Outlawing “virtual” porn = thought crime. Ashcroft would be so proud.
I know it’s not your intention, but requring victim testimony would, in effect, legalize a lot of child porn and rape porn.
It’s probably not your intention, but criminalizing mere possession of certain kinds of images makes accidental criminals of a lot of people. There was a case I heard about, a bunch of years ago, in which a guy was arrested for possession of child porn. He’d bought some disks of art, and some of the images on the disk were pornographic, and it turned out that one of the models in one of the porn images was underaged.
Makes it much easier for corrupt cops to frame someone, too.
I don’t see that virtual child porn has any value
I’m not so megalomaniacal as to think I have to right to decide what other people are going to consider valuable. There are probably a good many people in the US who would say that comic books in general have no value, are mere trash. There are some who would say it about your weblog.
True. But in a representative democracy, we make such decisions collectively, not individually. So although I’m not so “megalomaniacal” (thanks for not getting insulting, by the way, Avram) to think that I individually can make suce decisions, I do think that it’s okay for a society – within limits – to make such decisions collectively. Otherwise, there would be no possible basis for any laws.
After all, you could just as easily argue, isn’t it megalomaniacal for me to think I have a right to tell other people what to do with their land? (Bye-bye, land use laws and anti-pollution laws). Isn’t it megalomaniacal for me to tell other people what is or isn’t acceptable working conditions that workers can freely enter into? (Bye-bye, minimum wage and OSHA). And so forth. In every case, my answer is the same: No, it’s not megalomaniacal, it’s representative democracy at work.
There are probably a good many people in the US who would say that comic books in general have no value, are mere trash. There are some who would say it about your weblog.
But comic books, in general, and this blog — regardless of whether anyone finds value in them or not — do not harm people by it’s mere existence.
What a luxury it must be to be able to think of this as some intellectual and theoretical endeavor. But, for other people, it’s real, and the harms are real. Very, very real.
“After all, you could just as easily argue, isn’t it megalomaniacal for me to think I have a right to tell other people what to do with their land?”
Well, wouldn’t it be megalomaniacal to tell other people that they can’t use “your” land in the first place? After all, property exists only as a function of the collective decision to allow certain people monoploly use of specific resources.
On topic: Does Tex know what virtual porn even is? How can it beconsidered a thought crime?
But comic books, in general, and this blog — regardless of whether anyone finds value in them or not — do not harm people by it’s mere existence.
Says you. This blog harms people directly as much as staged depictions of rape harm anyone directly, which is to say, not at all. And indirect harms should never be enough to override the free speech clause. Once you accept the principle that some speech can be banned because it “doesn’t add to the political discourse, and it doesn’t provide any social good,” then you’ve bought the censor’s rationale wholesale.
The Neo-Nazis had a free speech right to march through Skokie, IL – home to many Holocaust survivors – despite the fact that their ideas are hateful, evil and wrong. Doesn’t their speech make it more likely someone will commit anti-Semitic violence? Yes, and so what? Catch the people who commit the violence, and punish them, not the speaker. In our legal system, we let people say what they want, and you are free not to listen.
Virtual child porn absolutely deserves constitutional protection. Staged rape scenes absolutely deserve constitutional protection. No one – whether a majority of the people or not – should be able to impose on others which ideas are acceptable and which are not. Period.
I don’t understand this discussion.
Child “porn” and rape “porn” cannot pass a Miller test. There is therefore no need to take action to make them illegal–“virtual” or not. One might wish that the current laws would be utilized more fully and aggressively, but there is no need to outlaw anything–it’s already outlawed.
When you start talking about making things illegal and outlawing things, you’re talking about making new law–rather like that recent law whose name inaccountably escapes me at the moment which would have made it illegal to distribute anything which seemed to portray a sex act involving a minor. This draconian law would have made illegal already illegal child pornography, yes; it would also have made it illegal to distribute any film dealing frankly with the sex that minors actually have. (To say nothing of filmed versions of Romeo and Juliet, that flick Tadpole, the “Surprise” and “Innocence” episodes of Buffy, etc. etc.)
But what’s decried so vociferously here isn’t art that would depict realistically rape or underaged sex. What’s being decried is rape porn and child porn.
If the work in question can’t pass a Miller test, then it’s obscene, and has no First Amendment protections. Already. Under current law.
So what’s the rumpus?
Kip: I’m simply describing what my ideal censorship law would be. As it happens, my ideal censorship law is narrower than the current law. Maybe you think that’s pointless to discuss; that’s cool. Obviously, not everyone else agrees.
I don’t think it’s so surprising. A lot of people disagree with the existance of obscenity laws at all; it’s not surprising that they’d therefore disagree with a proposal for a narrower, but still existing, obscenity law.
I was rather hoping my initial statement and final question were clearly rhetorical devices. Apparently, if Amp missed them, they were too, too terribly obscure.
I was trying (in my own unique, ah, idiom) to cut through the rhetoric that seems to be fogging everyone’s judgment. No one’s defending child pornography; no one’s proposing outlawing Lolita. (Hereabouts, anyway.) But each side is reacting as if the other were. This is counterproductive and, frankly, a little disappointing. One does expect better of the muchly vaunted Alas comments crew.
(Maybe I’ve had too much coffee..?)
Sorry I misunderstood you, K. :-)
Mithras wrote: This blog harms people directly as much as staged depictions of rape harm anyone directly, which is to say, not at all. And indirect harms should never be enough to override the free speech clause.
Why not? Indirect harm isn’t less harmful than direct harm.
The Neo-Nazis had a free speech right to march through Skokie, IL – home to many Holocaust survivors – despite the fact that their ideas are hateful, evil and wrong.
Yes, but in our system political speech is accorded the very highest level of protection. Therefore, indirect harms are not enough to ban political speech – and a Nazi rally is an example of political speech. Virtual child/rape porn is not, and so doesn’t receive that high level of first amendment protection.
Even owning “real” child porn doesn’t directly cause harm – unless the person possessing it is also the photographer, the only harm done is indirect. Yet we outlaw possessing real child porn, because we recognize that indirect harm can nonetheless be real, and because porn gets very little first amendment protection.
thanks for not getting insulting, by the way, Avram
You’re welcome. While you’re at it, be sure to thank Bean for saying that I’m “fucking sick” for defending the right to create virtual images she doesn’t like.
And in a free society, we try to allow people latitude do make their own decisions about what they’ll read and watch and create. Pollution causes real, measurable damage. So do unsafe work conditions. No such widely recognized, readily provable harm can be traced to pornography.
k, isn’t the Miller test the one about community standards? Theoretically, if a bunch of child-porn fans were to all establish a town somewhere and move there, couldn’t they make child-porn legal there under the Miller test (but not under federal or state anti-child-porn statues)?
What a luxury it must be to be able to think of this as some intellectual and theoretical endeavor.
I suppose it is. Here, a digression:
Remember the presidential race of 1988? How Bernard Shaw asked Michael Dukakis if he’d still oppose the death penalty if his wife had been raped and murdered? That incident crystallized my feelings about the death penalty.
If I were married, and my wife were raped and murdered and the perpetrator caught, I wouldn’t want the guy executed by the state. I’d want him strapped down to a table and me allowed to spend as much time in there with him alone as I wanted with various sharp tools.
And that would be wrong. The mere fact that I’d want that, under those circumstances, wouldn’t make those wants right. Under those circumstances I’d be literally insane with grief and rage, and right now, sitting here calm, I don’t think laws should be written to fulfill the desires of insane people.
Sitting here calm, I can allow the best parts of me — my rational nature, by tendency towards forgiveness, my recognition of the fact that every punishing law that gets written is a weapon in the hand of a possibly abusive authority — to rule. My better nature is, I think, making my decisions.
If I, emotional wounds still fresh from the rape/murder of my hypothetical spouse, were writing, it would be my worse nature in charge. I would hope that other people, more rational people, people able to hold the issues at arm’s length, would be making the important decisions.
I think the principles I’m putting forward here can be generalized to other areas than the death penalty.
It is something of a luxury to be able to talk about child porn rationally, but luxuries are an essential part of civilization.
First, Avram: define your terms, and be very careful of how you use them.
The production of any actual child pornography is illegal, period, and rightly so; you have to abuse a minor–whether through actual physical force, or manipulation of consent they cannot legally give.
The production of art which appears to depict minors engaged in sex–whether in painting (Henry Darger); cartoons (Terry LaBan); text (Samuel Delany); using actors over the legal age of conset (Joss Whedon, though he was depicting characters over the age of consent within California, where filming took place); photo collage (no current examples leap to mind, but); computer modelling (ditto)–is not currently illegal. However: if such a work work to be challenged on obscenity grounds, and could not pass a Miller test, then its possession and dissemination would, indeed, be illegal.
Now: a pedophilliac community could, in theory, coalesce; if an obscenity challenge were brought against a piece of art that used virtual means depicted underaged sex in a way that any other community would find to have no redeeming social value, it is, in theory, possible that a jury drawn from this hypothetical pedophillac community would find the art acceptable. You have found a crucial weakness in the Miller test; congratulations–for all that it is highly unlikely ever to actually occur. (How wonderful it is that our law rarely has to work in hypotheticals, he thinks, wryly.)
Please excuse my monstrous typographical errors. Sigh. Less coffee, less coffee…
Amp-
First, your “meta-discussion” was necessary and apreciated. I have great interest in discussing ideas, little in flame wars, and bean’s status as a co-blogger cause personal attacks from her to make me feel even more unwelcome than if they came from another random poster like myself.
Next, I tried to make clear (but obviously did not) used Canada as an example precisely because it is NOT a distopian nightmare, and is actually better in many ways than the United States. Too often people justifying slippery slope arguments go straight to Nazi Germany or Soviet Russia, which is obviously unconvincing since we are nowhere near that. No, Canada’s obsenty laws have not shut down free expression there any more than the PATRIOT act has made the U.S. a police state. But both go too far for my tastes. Maybe saying Dworkin was “censored” was a stretch, but not much. “Harrassed by government officials under color of law based on the content of written works” falls under what I would call “censorship”. Also, if that, and the harrassment of gay and lesbian bookstores was done under prior law before Butler, that cancels my “Good intentioned law misused” point, but not my “Canada needs more free speech” point.
Got that? I LIKE Canada. Add free speech, more sun, and more Mexicans, and I’m there.
An absolutist free speecher would probably not even want to “censor” REAL images of child and rape porn, just criminalize their production. I would not go that far. I am not a strict rights-based libertarian and do not need a property-based justification for that position, but I can think of one: Intelectual property rights in one’s own image. Normally I am not comfortable with criminal (as opposed to civil) procescutions of intellectual property violations, but if any is deserving, displaying images of a person being raped (by definition without consent) would certainly qualify. Actually, I WILL support this rationalle for pragmatic reasons: It would also cover virtual depictions of child or rape porn of ACTUAL individuals, unless it was an adult who consented to their image being thus used. (I would presume a minor could never effectively consent to their image being thus used.)
And yes, we really are discussing the razor’s edge of free speech here. If we are arguing over only virtual images of child or rape porn of non-existent or consenting persons, we both do favor a more liberal law than currently exists and are probably both closer to each other than either is to current law. Hardley enough of a difference to justify enraged personal attacks.
Finally:
“The lessons of prohibition are that banning a popular, mainstream activity that doesn’t really harm anyone is a mistake.”
Ok, drinking alcohol is a popular, mainstream activity. But “that doesn’t really harm anyone”? Want to re-think that? And not just direct harms to your liver or ability to opporate machinery. The indirect costs and harms are ENORMOUS. Or at least, I bet if I started looking around the internet, I could find evidence of such quite easily.
Intelectual property rights in one’s own image.
That would criminalize the publication of such images, but not their ownership. And is copyright violation a criminal offense or civil?
Intellectual property is property. If you take may money or invade my land, you can be proscecuted criminally or civilly, and the same with intellectual property, although as I said, I USUALLY don’t LIKE criminal proscecution in intellectual property cases.
As for the other question, I’m going further than I actually know well here, but I believe that knowingly possessing vilolations of copywrite can be punished criminally (like buying goods you know to be stolen), although it rarely is. (And the “knowing” requirment admitedly directly feeds one of Amp’s concerns re: proscecution.)
Oh, for God’s sake. We have enough hot-buttons being slapped willy-nill in this thread without dragging in the utterly spurious concept of intellectual “property.”
(I shall now duck the inevitable thread-shift flamage by taking a sudden interest in the state of my shoelaces. Ooh, look! A penny!)