Defenses

It shall not be a defense that the defendant in an action under this law did not know or intend that the materials were pornography or sex discrimination, except that in an action for damages for trafficking and in an action for damages against a publisher, seller, exhibitor, or distributor for assault, it shall be a defense that the defendant did not know or have reason to know that the materials were pornography.

Either pornography does harm or it does not. If it does, it does not stop doing so because the pornographers do not know that it is pornography or that it does harm. But pornographers know exactly what they are doing and to whom; they just do not care. The problem is, the more they know what they are doing, the more difficult it becomes to prove that they know, because they are far better at covering up what they do than are those who act unconsciously or inadvertently. As a result, requiring victims to prove that perpetrators like pornographers know or intend their acts against them is an invitation to cover-ups that would make the Ordinance a dead letter.

The main practical purposes of the Ordinance are to stop the harm of pornography from continuing and to compensate direct victims in a way that both helps them and provides some deterrent to future abuse. In light of these purposes, this provision recognizes the difference between major pornography distributors and the legitimate booksellers who sell an occasional item of pornography. Women and children are not being bought and sold in this country so that legitimate booksellers can sell the occasional copy of the Marquis de Sade's 120 Days of Sodom. But women and children are being raped because they are doing this. Therefore, they can be sued for selling materials that cause assault. If they were sued for damages for trafficking, they could argue that they did not know or intend what they sold to be pornography. They might win and they might not.

A big producer or distributor of pornography would have a difficult time credibly denying that he knew or had reason to know that he was in the pornography business. Often it is so advertised. Plaintiffs could attempt to prove compensatory damages against such big traffickers for all the sexual assault, forced prostitution, street harassment, and civil denigration they arguably cause. Punitive damages (money paid to victims to punish perpetrators) could be requested as well. But it might well be more difficult to show that a legitimate bookseller being sued for trafficking, or for assault due to specific pornography, knew or had reason to know he was selling pornography. This provision thus protects legitimate booksellers from damages for truly inadvertent violations while retaining the ability to stop all of them.

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