CIVIL RIGHTS ANTI-PORNOGRAPHY LEGISLATION:
ADDRESSING THE HARM TO WOMEN
Copyright © 1992
by Steven Hill and Nina Silver.
All Rights Reserved.
Originally published in Transforming a Rape Culture
Published by Milkweed Editions.
In February 1992, the movement to stop violence and discrimination against women won a remarkable victory when Canada's Supreme Court ruled 9-0 that obscenity is to be defined by the harm it does to women and not by what offends our values. "Mate rials portraying woman as a class of objects for sexual exploitation and abuse have a negative impact on the individual's sense of self-worth and acceptance," read the court's landmark opinion, the first time a court has established the precedent that a t hreat to the equality and safety of women "is a substantial concern which justifies restricting the otherwise full exercise of the freedom of expression."
"In the United States, the obscenity laws are all about not liking to see naked bodies, or homosexual activity, in public," commented University of Michigan law professor Catharine MacKinnon, who helped write the law brief and along with author An drea Dworkin has pioneered the "harm to women" approach to antipornography legislation. "Our laws in the United States don't consider the harm to women. But in Canada it will now be materials that subordinate, degrade or dehumanize women that are obscene."
The Canadian Supreme Court's decision is the latest attempt in North America to enact civil rights antipornography legislation based on the "harm to women" approach. Previously several attempts had been made in the U.S. to pass such measures, the most recent attempt being a Congressional bill called the Pornography Victims Compensation Act which focuses on the harm done to women both in the production and the use of pornography. In 1983 and 1984, the Minneapolis city council passed the first civ il rights antipornography ordinance written by MacKinnon and Dworkin, only to have it vetoed by the mayor both times. Then in Indianapolis the city council passed and the mayor signed the first version of the Dworkin-MacKinnon Ordinance to become law. I n 1985 the law was struck down by the United States Court of Appeals for the Seventh Circuit as being unconstitutional, a ruling later affirmed without comment by the U.S. Supreme Court. In 1988, a version of the Dworkin-MacKinnon Ordinance was adopted i n Bellingham, Washington by voter initiative, garnering over 62 percent of the vote. It met a similar fate as the Indianapolis ordinance when it was struck down by Federal District Court Judge Carolyn Dimmick.
In each case where the U.S. courts vetoed or revoked the civil rights antipornography ordinance, pornographers, free speech fundamentalists, and civil libertarians (including some feminists) hailed the defeat as a great triumph for First Amendment rights, decrying the censorship and "chilling effects" they were certain would result had the Ordinance been passed. Some critics also claimed that pornography, rather than being harmful, actually provides a cathartic outlet for anti-social attitudes wh ich otherwise might escalate into harmful behavior if the consumer did not have access to the pornographic materials.
Are their claims true? And does the Ordinance really equal censorship? Or are the claims of the Ordinance proponents true, that pornographic images contribute toward violence and discrimination against women, and the Ordinance is an even-handed way to rectify such social, class-based harm? Unfortunately, the debate has become a tangled mess of accusations, errors, and outright lies, seemingly polarized to a point of no return. After nine years of activism by Ordinance proponents in the United States that has yielded mixed results--followed by the triumphant emergence of a "harm to women" antipornography obscenity law in Canada--perhaps now is the time for us to calmly re-assess the true meaning of such civil rights antipornography legislat ion.
Two doubts seem crucial to resolve, if any headway is to be made. The first: is there in fact a need for this or similar kinds of legislation--or, put another way, is any real harm caused by pornography that needs to be addressed? And two: if it is decided that yes, there is harm and yes, we need some legal redress, then is civil rights antipornography legislation the desired course, or will it lead to the censorship dreaded by its opponents?
Pornography: Harmless or Harmful?
In pornographic images and text, (usually) women are presented as continually available to (usually) men on a sexual basis for the purpose of pleasing the male viewer. The dehumanization of women occurs because the pornographic female images are not regarded as persons with feelings, opinions, or needs of their own. This is what defines the women as commodities: they exist solely for the purpose of their consumers. The climate is sexual, but the setting is the marketplace. In hardcore porn, no t only are women presented as experiencing sexual pleasure in being raped--they are tied up, cut, mutilated, bruised, caused physical pain, and portrayed as enjoying this pain. They are also penetrated not only by men, but by objects and animals.
Opponents of the Ordinance inevitably claim that there is no scientific evidence of the connection between "unreal" pornography and violence against women in the "real" world, but this claim is untrue. There have been hundreds of such studies, an d the results of some of the most comprehensive of these studies have been published in books like Pornography and Sexual Aggression edited by Dr. Neil Malamuth and Dr. Edward Donnerstein (New York: Academic Press, 1984); Connections Between Sex and Aggre ssion by Dolf Zillman (Hillsdale, New Jersey: Lawrence Erlbaum Associates, 1984); and in the work of sociologist Dr. Diana Russell (see "Pornography and Rape: a Causal Model" by Russell in Political Psychology, Vol. 9, No. 1, 1988). Here are some of the findings:
* After exposure to pornography in a laboratory situation where women were depicted as enjoying rape, male college students ("average Joes" pre-screened to select out "hostile" personalities) were more prone to accept commonly held conceptions lik e "a woman really wants to be raped," and "yes means no." These men also denied the credibility of actual rape victims by viewing them as feeling less pain than they actually experienced, and by holding them responsible for their own rapes.
* Fifty-seven percent of these males indicated some likelihood that they would commit a rape if guaranteed that they would not be caught. They also claimed that 30 percent of the women they know would enjoy being aggressively forced into sexual i ntercourse.
* With a repeated exposure period of only two weeks, the subjects found violent pornography to be less and less violent, and they were increasingly less offended by the material. Most important, contrary to the cathartic benefits which some Ordin ance opponents mention, these men's sexual arousal did not decrease but in some cases increased.
* Finally, the researchers found that themes of violence and domination in pornography had very strong effects on adolescent boys who are beginning to form stereotypes about human sexuality, rape and violence. Other social science research of the media not limited to pornography found a direct link between people's attitudes toward sex and violence and what they see in the media. These studies confirmed that repetition played a significant factor in de sensitizing men to women's experiences of being shamed, attacked and punished. The more sensory input men received that promulgated sexual stereotypes about women, the less guilty and accountable they felt about replicating the behaviors they read about in books and viewed in images. Violence, humiliation, and eroticism became enmeshed in the same socially-sanctioned matrix, causing sex to be regarded as a situation of domination and power-over rather than reciprocity and love.
The scientific foundation of the "cathartic effect" has in recent years been refuted, yet anti-Ordinance/pro-pornography proponents continue to promote this perspective as if mere repetition will wipe out the scientific record. The catharsis theo ry, which impressed the 1970 U.S. Presidential Commission on Pornography, is mostly based on research by Berl Kutchinsky. Kutchinsky had discovered that the relaxation of porn laws in Denmark and Sweden coincided with a decrease in reported sex crimes. But subsequent inspection of his study revealed that his correlation was poor since he failed to account for other social factors, such as an abnormally high rape rate after the German occupation during World War II, which would have made any subsequent d ecrease of sex crimes seem statistically supportive of his original premise. Interestingly, Kutchinsky himself has since recanted his initial conclusions, noting that the rape rates of Denmark and Sweden have increased since he conducted his study. It s hould also be noted that Norway, which has a culture similar to Denmark and Sweden and far stricter laws against pornography, has had even greater success in combatting sex crimes (34 percent decrease from 1970 to 1981, compared to a 14.2 percent decrease for Denmark).
In 1984, Dr. John Court examined changes in rape rates in several countries that had periods of greater or lesser legal control of pornography. He concluded that greater legal control of porn appears to hold down rape rates. Similarly, Baron and Straus (1984, 1985) have shown a highly significant statistical correlation between state by state circulation rates for seven porn magazines (Playboy, Oui, Hustler, Genesis, Gallery, Chic and Club) and state by state reported rape rates. Their study re vealed that proliferation of pornographic magazines and the level of urbanization explained variance in rape rates more than did unemployment, economic inequality, sexual inequality, and social disorganization. In Mary Koss's 1986 national survey of over 6000 college students, she found that college men who reported behavior that meets the legal definition of rape were significantly more likely than men who did not report such behavior to be frequent readers of at least one of the following magazines: Pl ayboy, Penthouse, Chic, Club, Forum, Gallery, Genesis, Oui, and Hustler.
Finally, the National Coalition on Television Violence has found over 750 scientific studies and reports which show that TV and film violence are linked to increases in real life violence and aggression in normal children and adult viewers. They have located only 18 studies (some of which were funded by the entertainment industry) that show screen violence as having a cathartic effect on viewers. A spokesperson for the American Psychological Association testified before Congress that "the relati onship between televised violence and aggression is real, long lasting, and of practical as well as statistical significance." According to the NCTV, one out of eight Hollywood movies depicts a rape theme. By age 18, the average U.S. citizen will have s een 250,000 acts of violence and 40,000 attempted murders on television.
Summing up the scientific evidence, Dr. Edward Donnerstein from the University of Wisconsin has testified:
[I]f you take a look at the research and really talk about hundreds and hundreds of studies....there is an incredible amount of consensus across populations and measures and studies. We are not talking about correlations where we get into chicken/egg problems of which came first, we are talking about causality.
Dr. Donnerstein affirmed the ability of his research to take certain types of pornographic images, expose people to those images, and make highly accurate predictions of potential aggressive behavior independent of the viewers' backgrounds, their past vie wing habits, or their initial hostility. The scientific evidence, Donnerstein concluded, strongly advised that there are obvious relationships between pornographic material and subsequent assault.
In fact, good colleagues of mine would argue that the relationship between particularly sexually violent images in the media and subsequent aggression and changes in callous attitudes toward women, is much stronger statistically than the r elationship between smoking and cancer, mainly because most of that research is correlational. This is not.
But these are laboratory statistics, one might claim. What about real life? In one study conducted by Dr. Diana Russell, it was found that 14 percent of the 930 women interviewed reported that they had been asked to pose for pornographic picture s, and 10 percent reported that they had been upset by someone trying to get them to enact what had been seen in pornographic pictures, movies or books. This study also established that only 7.8 percent of these women had not been sexually assaulted or h arassed at some point in their lives. Additionally, the testimonies of law enforcement officials and sexual abuse counselors confirm that pornography plays an active role in the fantasies of both sexual offenders and mass murderers and in the acting out of their violence on their victims. Piles of pornography have been found in the homes of virtually every mass killer. In some cases, pornography has been used as an actual textbook that illustrated how to rape.
Undoubtedly the causes of of rape are multi-etiological. Violent and sexist images, all by themselves, are not causing this epidemic of rape in our society. But why should social policy advocates--civil libertarian or otherwise--ignore such a well-documented body of scientific and anecdotal evidence about the contribution of these images toward violence against women and children?
Porn Industry Performers: Stars or Scars?
We now come to the issue of choice for a woman who takes part in the production of pornography. Is a performer in a pornographic film or photo a willing participant just because she has a smile on her face? At public hearings in 1983 before the Minneapolis City Council, when that council was considering the Dworkin-Mackinnon Ordinance, woman after woman came forward and attested to the harm that pornography had personally caused her. Wives, women friends and prostitutes testified about having b een intimidated and physically coerced into performing in pornography by their husbands, partners and pimps.
The testimony at the Minneapolis hearings was historic, because it revealed to the world for the first time that pornography was not simply about "speech"; in fact, it was a practice, often a business practice with a profitable bottom line, in whi ch real things--dreadful things--happened to real people in its production. In subsequent years, runaway children have told their sad stories about running from sexually abusive parents and their ensuing lives on the streets, in which they were intimidated and coerced into performing in pornography by their "daddies" and pimps who had promised to protect them from danger. Rape victims of all ages, euphemistically called "models," have t estified about being forced to perform sexual acts on film under threat of their very lives, with the guns and knives off-camera. Women--coerced into having sex with animals or submitting to mass rapes by men (euphemistically called "gangbangs") on fil m--have related grotesque tales of being ordered to act as though they were enjoying themselves, despite the fact that they got cut from the ropes binding their genitals and the broken bottles and knives inserted into their vaginas in order to create th e photographic images. This tendency toward the ugliest forms of exploitation and domination culminated in the appearance of "snuff films," in which women are actually raped and murdered and the atrocities filmed and then distributed as movies for a view ing audience.
The most famous case of coercion into pornography is that of Linda Marchiano (a.k.a. Linda Lovelace), the "star" of Deep Throat, the largest grossing porn film of all time. Marchiano has publicly stated and written in her book Ordeal how she was battered and terrorized during the making of that film. During the course of her life with her pimp/boyfriend Chuck Traynor, she was beaten repeatedly; her family was threatened with murder by Traynor if she tried to leave him; and on those occasions whe n she did try to escape, he brutally bludgeoned her within an inch of her life. Once, when she refused to make a film in which she was told to fornicate with a dog, a gun was pulled and she knew that if she did not comply she would be murdered. She made the film. So when movie-goers view Deep Throat for their own "sexual liberation," what they are actually viewing is the cinematic recording of the rape and dehumanization of Linda Marchiano.
It is true that some women (and men) who act in pornographic films do so out of choice. However, gender-linked economic conditions often induce women to make that "choice." And an alarmingly high percentage of participants in the pornography ind ustry have already been sexually abused at home and elsewhere before they ever make their "decision," thereby rendering them vulnerable to continuing the abusive cycle.
With such a mounting body of evidence, including reams of scientific studies, the testimony of law enforcement and mental health officials, and the actual experiences of real, live women, the civil rights antipornography activists began to ask: Wh ose freedom, and whose speech, is being protected? When the American Civil Liberties Union defends the "freedom of speech" of the pornographers, an equally compelling argument can be made that they are denying the "freedom of speech" of all women. In Fl orida, when the ACLU filed an amicus brief defending the right of men to hang pornography in the workplace as a legitimate expression of their free speech, a counter argument was made that the ACLU was contributing toward the continued discrimination and harassment of working women.
Andrea Dworkin and Catharine A. MacKinnon in Pornography & Civil Rights (Minnesota: Organizing Against Pornography, 1988), pp. 62-63, commented on the "free speech" controversy:
Women screaming in pain in a pornography film is "speech." Women screaming in the audiences to express their pain and dissent is breach of the peace and interferes with "speech." "Snuff" is "speech." Demonstrators who use strong languag e to protest "Snuff" are arrested for obscenity. When Penthouse hangs Asian women from trees, it is "speech." When antipornography activist Nikki Craft leaflets with the same photographs in protest, she is threatened with arrest for public lewdness. When B. Dalton sells pornography in a shopping mall displayed at a child's eye level, that is "speech." When Nikki Craft holds up the same pornography in the same shopping mall in protest, she is detained in a back room of B. Dalton's by the police for con tributing to the delinquency of minors.
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