Monday, October 24, 2011

Question of the Week: Should Pornography Be Illegal?

The other night, I watched the new documentary, Miss Representation, a documentary which uses successful women (and men) to discuss how women are portrayed in visual mainstream media today. The documentary raises a lot of worthwhile questions, so a review will be forthcoming on Tuesday. But until Tuesday, I'd like to consider one of the questions the group of us wound up discussing after the viewing.

That question, as you might guess from the title of today's post, is whether pornography should be illegal. We all know Erica's answer to the question - a resounding no -  and you might assume that my answer is an immediate across-the-board yes! but let's not oversimplify the issue. Yes, people should be free to express themselves, and material labeled pornographic by one group is often art or beach wear to another, so there are certainly issues with trying to ban anything pornographic - if I had my druthers, Twilight would be banned as pornographic.

But what about child pornography? And where is the line between pornography and prostitution? And where on Earth do we draw the line between art and pornography?

Dear readers, have at it!


  1. The problem is that it seems impossible to even advocate for making "pornography" illegal. Establishing a definition for pornography isn't going to happen, and you can't make illegal that which you can't clearly define.

    How would someone even going about making a case for exactly what material would be illegal? We could go with something like "all visual depictions of sex acts are illegal," but what constitutes a "sex act?" Would that mean only penetrative sex acts would be illegal? Or anything that depicts an erotic depiction of sexuality? Nudity? Sensual kissing?

    For me, talking about the ethics, morality, politics, etc, of pornography can be interesting and fruitful, talking about legality, however, seems pointless. That's not so say I wouldn't hear arguments to the contrary, but to me talking about whether or not pornography should be made illegal is like talking about whether or not evil should be made illegal. Both are very amorphous categories, and while a person's morality may sometimes be based on amorphous ideas about evil (or pornography so some similarly indeterminate category), legality cannot because everyone must abide by what is legal, but what is moral is much more personal.

    My position: If you can tell me what pornography is I'll tell you whether or not I think it should be illegal.

  2. Jeremy, I think that's a fair enough argument against trying to outlaw all pornography, but what about more specific types? Child pornography, for instance, is illegal, despite all those same drawbacks to defining pornography. What are your views on codifying "pornography" in order to outlaw it when minors are involved?

  3. I think with something like child pornography, it is a bit easier to make illegal because you can argue that depictions of children in states of undress or in potentially sexual poses will be seen as an exploitation of a class of people who are not legally able to consent to using their bodies in that way.

    If we talk about certain elements within pornography, then we can be specific enough to discuss legality, but it is not the pornography itself that is the topic, but the specific element that participates in the pornographic.

    I don't think codification of the constitutive elements of pornography is relevant in determining the legality of children and underage pornography. Why? Because we can talk about children and minors in ways that we can't talk about adults. Minors, by definition, do not have the same rights as adults, therefore we can use that difference as a way to legislate. We need not define pornography to say that any nudity or sexual poses in prepubescent minors is illegal, and depictions of nudity with any minors is illegal.

    If there is any way to make headway in a discussion of making "pornography" illegal, I think it would have to continue on the trajectory you have suggested (focusing on the legality of specific constitutive elements) but dispensing with a desire to define pornography in broader terms.

    The difficulty is that while there is a general consensus in wanting to protect children from various forms of exploitation, I'm not sure that there is as much consensus about why a person should not be able to, and I'll get specific hear, expose one's genitals using some form of media dissemination. With kids I see how we can get categorical because restricting the rights of minors is a wholly acceptable social method of protection, but with adults we don't have the same latitude.

    So yes there are ways of potentially limiting some of the elements of "pornography," but I simply don't see how something like restrictions against child pornography could be expanded to include restrictions on pornography more broadly.

    If you have any specific ideas I'd be interested in hearing how steps could be taken to restrict other elements of pornography.

  4. This Documentary really opened my eyes to the violent nature of much of the pornography viewed today, while I definitely don't think that making it illegal is going to do much, I do think that limits on what you can show should be out there. For instance, using rape as a means for sexual arousal shouldn't be used I think, since that does MORE damage to women by increasing the normalcy of violent acts.

  5. The famous line "I know it when I see it" has more to do with a lack of eloquence than it does with a lack of legal mobility for it's definition. There are a lot of things that could be done to define certain pornographic acts as artistic while defining others as oppressive, violent, restrictive to the rights of individuals, etc.

    I think we could use smoking as a case study. And I mean popular smoking. I know smoking existed prior to the 1600's. During and after the 1600's, smoking grew in its popularity and its availability. As it got cheaper to produce the marketing was increasingly focused on a certain demographic that would maximize profits. After the Tobacco Master Settlement Agreement in 1998, marketing and sale of tobacco has been certainly if anything restrictive. How tobacco is portrayed, how it is packaged, how, it is produced, are all regulated and taxed. Although I don't have numbers, I think it is safe to say that the number of new smokers has declined over the past couple of decades and that many smokers are doing their best to quit. Smoking has earned itself a stigma for its destructive qualities. (That is where my opinion is clear. I am of the opinion that almost all types of pornography is destructive to society but I realize that it is only my opinion.)

    Pornography has become, like tobacco, cheap to produce, market and disperse. If we believe that there are certain things that should be subject to scrutiny in the bedroom: i.e. spousal statutory assault among others, then I think there should be just as much scrutiny for what we make available to people of all ages.

    I have worked with teenagers struggling with addictions to pornography and it always surprised me how violent their choice of pornography was.

    There are, as has been suggested, certain types of pornography that deserve negative stereotypes similar to child pornography. Rape, school-girl fantasy, incest, male or female brutality, bondage sex, among others are just part of a long list of pornography sub-sets that according to my belief are deserving of legal regulation.

    Pornography can be defined. I make no pretense in my personal opinion that it should be defined just like I believe that the power of a husband to demand sex from his wife should be better defined to protect both people involved.

  6. Jonathan, you asserted in both your first and last paragraphs that pornography can be defined, but then provided nothing. I'd really like to hear a compelling definition that could be used for legal purposes, so please share if you think you've got one. I ask because I've had these kinds of conversations before and I gave on the possibility that pornography could be made illegal because all the definitions fell apart at some point.

    And that is why smoking is a poor case study and analogy to pornography. It is relatively easy to make a categorical claim about smoking's destructive qualities, but more difficult with pornography because it contains an almost universally approved and desired element: sex.

    The sub-types of pornography, in my mind, are a great place to discuss potential regulation and legislation. However, I still don't think that would work because I don't see how you could make a cut and dry determination of what constitutes those various sub-types. I'd love to find a way to make those especially detestable forms of pornography illegal, but I'm not sure that they could be defined in such a way so as to actually halt production of films like that. With children it's pretty cut and dry because all it takes to be illegal is the presence of a minor. I'd be interested to know if you have a way to describe one of these sub-types in a way that we could effectively legislate against it.

  7. Ok J.
    I am not the most qualified to answer these questions but here are some simple ideas.

    We would have to agree that sexual assault, rape, bondage and other such crimes were wrong at the outset because naturally if one does not consider rape a crime than any definition prohibiting its depiction would be moot.

    Pornography Definitions

    Rape Pornography

    The depiction and or portrayal of sexual intercourse with another person who does not consent.
    The Model Penal Code applied to define illegal portrayals of sexual intercourse.
    The depiction and or portrayal of unlawful sexual intercourse committed by a man or a woman with a person of the opposite sex through force or against his or her will. (The common law crime of rape required at least a slight penetration of the penis into the vagina)
    The depiction and or portrayal of unlawful sexual intercourse by a man or a woman with a person of the opposite sex through extortion or the threat of violence.
    The depiction and or portrayal of command rape; as applied to various authority structures.
    The depiction and or portrayal of marital rape, statutory rape, rape by means of fraud, date rape.

    These are definitions based upon the wording and construction of what one might find in the Ninth Edition of the Blacks Law Dictionary and although they specifically don't appear in that dictionary word for word the use of each word is as closely articulated to it's precise definition as I was able to manage.

    For your stimulation, here is black's definition of pornography.


    Material (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement - Pornography is protected speech under the First Amendment unless it is determined to be legally obscene. (Both child pornography and virtual child pornography are illegal and sanctionable offenses)

    Again, if you can define child pornography you can define almost every subset of pornography. The question is, what would society deem as legally obscene? What would you define as legally obscene and how would you define that type of pornography?

    So to your question about the definition of pornography. The definition is broad but narrows as one begins to legislate the subsets of pornography. And this is why smoking is a great example for pornography. Not many years ago smoking was one of the most widely accepted and desired past-times because of one element: nicotine.

    Now here is where I start to rant about your naivety. So prepare yourself!

    Since when has pornography been about sex? That is complete bull shit. Pardon my passion but if you are honest with yourself and if you have any exposure to pornography then it should be clear that pornography is not about sex. Since when has rape been approved and desired? Since when has it been desired for students to get assaulted by teachers in positions of power–whether male or female? Since when has it been desired for a husband to brutally ravage his spouse because he found out she was cheating? Since when has it been about sex? It has always been about selling people. Selling a sexual high. Selling exotic pleasure while struggling to evade the probing guilt that it should cause. We don't sit idly by when real people are raped but we accept it's depiction as common place? It has always been about money, power, prestige and a patriarchal system. Even when women are powerful it is more about them taking on the role of masculine than about them actually being in control because if I make them like me I am actually in control as a man.

    I would welcome your comments but don't try to feed me shit about pornography being about sex. That is a naive explanation for a complex feeling of pleasure and guilt when we know that standing by and watching someone being raped is just as wrong as seeing someone get led into a closet at a party and we do nothing about it, because that's her problem. To bad she drank too much. It's her problem.

  8. Ok J.

    First of all, I had to smile when you called me naive. I get lots of insults thrown my way, but that's not one I can ever remember hearing. I'm usually looked at with sideways glances as people assume my familiarity with all manner of perversions are somehow autobiographically linked to my own debauchery and find resistance to my protestations to the contrary. So thank you for letting me know that sometimes I can be read from the opposite angle. That's the kindest insult I've ever received. :)

    Now on to the substance: In your rant against my "naivete" you twice conflate pornography with rape. Is that intentional? Why in your challenging of my assertion that sex is a basic element of pornography do you use rape as evidence to the contrary? I'm a bit confused here because it seems you are saying that all porn is rape. Is that what you're saying?

    And I think the reason you see me as naive is because your view of sexuality is far too narrow and normative. We can use your rape example: when people say that rape is about power not sex, what they mean is that rape does not occur because of some over-powering moment of hornyness resulting in the forcing someone to have sex, but that does not mean that rape is not sexual and still about sex. For the rapist, it is not simply the act of sex, but the domination and abuse that are linked to arousal, so yes it's an unhealthy and criminal, but still sexual. Another way of thinking about non-normative sexuality is in terms of sexual fetishism where a person's sexual arousal is linked often to the presence of a physical object. The objects for the people are then all about sex, just as the abuse, violation, domination through a use of power is all about sex for a rapist.

    So now that I've explained why I see deviant (and even criminal) acts tied to sex in spite of the deviance, let me turn directly to pornography. Let's talk about a picture of a woman in a magazine like Hustler or Penthouse. It may not be a manifestation of healthy sexual intercourse between two consenting adults, but that picture will evoke arousal and result in a sex act. It is therefore all about sex. Let's take another example of a filmic depiction of a couple having sex. Even in the description, what is being depicted is people having SEX, and the purpose of the film is for the stimulation of the viewer which will result in a sex act (this could be masturbation or a couple using pornography to heighten their pleasure). Either way, even if the voyeuristic quality is deemed unhealthy and damaging, pornography is still about sex. It may be sex that is non-normative, perverse, illegal, revolting, degrading, etc, but it is still about sex. Pornography depicts sex and is used for the purposes of the viewer's sex acts, and while the sex that is part of and a result of pornography may be shunned in its specificity, the fact that it is about sex means that it has a connection with something nearly all humans experience: sex.

    Nicotine, on the other hand, is not connected to biological drives like sex is and smoking is only a desire had by part of any given population (and it is brought about by enculturation rather than an expression of urges that are rooted in biology).

  9. Ok. Now I'll move on to the viability of your definitions for legislation against "Rape Pornography." Critics of rape culture often challenge how people view consent as a clear cut thing. Those critics of rape culture will often point out that the problem with assuming that the absence of a verbal articulation or physical struggle against an aggressor is not the same as consent. They argue that if a person is even subtly pressured to engage in sex act that what results is not consensual sex, but rape.

    Now I'm sure you are familiar with these ideas, but the problem here is that if in actual rape cases establishing consent or non-consent can be difficult, how then could a filmic depiction of sex be sure to establish consent? Furthermore, what happens when there is a depiction of an expression of consent that is both verbal and physical, followed by an expression of hesitancy or timidity? I'm not saying that your definition couldn't work, but I'm guessing the first things the high power lawyers hired would do is to argue that the absence of an explicit depiction of consent is not the same as the absence of consent.

    Then those lawyers could ask whether or not all visual media depictions of rape would likewise be made illegal. I don't think there would likely be much agreement on saying a painter could not visually depict his or her own rape or that a film maker could no longer deal with the tragedy of rape by depicting it in a careful and conservative fashion. That lack of agreement on how far to go in legislating the legality of the visual depiction of rape would land you right back in the territory of trying to define porn, because it is not just any depiction of rape being made illegal, but the depiction within a pornographic context.

    And by the way, the problem with Black's definition is that one, conclusively determining the intentionality (what it is "designed" for) of anything is pretty much impossible, and two, lots of even PG-13 movies and even non-cable TV shows depict sexual activity that could be potentially sexually arousing, meaning that they could be designed to sexually arouse. Black's definition seems like a slippery slope to making illegal anything that is remotely sexual because it could potentially be viewed as intentionally designed for the purposes of arousal.

    Anyway, I hope you'll respond again, Jonathan. You have some interesting thoughts and I'm actually hoping that you'll refute my concerns because I'd really like to be able to take a position against pornography (even if it is only certain sub-types) that feels like firm argumentative ground to me.

  10. J *and* J - I love you two. Seriously, you're the best. And I sympathize so much with both your arguments that I must somehow be comprised of two contradictory personalities.

  11. You're the one with the blog, so thanks for hosting.

    First of all. I need to apologize to J for taking so long to respond. I read your response a while ago but have been stuck with very pressing assignments and due dates that I have been able to do little productive outside of education.

    OK. J. I am pleasantly surprised by your response. You have a much greater facility for setting others at ease with your arguments than I and for that I thank you.

    You are welcome for the insult. I never meant it as an insult. You may have come across as naive only because the alternative seemed much more lascivious and debouched. I would rather view the world and it's people as good. So calling you naive should say more about me and my values than it does about your intellectual state.

    So was it intentional to connect rape with pornography? Yes but not in the sense that you used. It was intentional because of all the subsets of pornography it is the easiest to define. It does not answer the argument of the 1st amendment but rather the argument that pornography can not be defined. Pornography can be defined in general and specific contexts. Of course, pornography is not rape but with the ease of transference from creator to an underage audience, I believe that the public is allowed some sort of oversight when it comes to what is legally obscene.

  12. The second reason is this. I don't think that a rape culture is desirable. That may be a difference of opinion but I can not think of any classical or modern philosopher that argues a rape culture is beneficial to society as a whole. Perhaps you can enlighten me to the philosophical argument. In that way you are totally correct when you say that my perception of sex is normative.

    So pornography is about sex? Ok let me see if I can refine my argument. Let me say from the outset that I still disagree with you, although I am sure that is not surprising. Pornography, in almost all of it's forms, (NOT ALL, but many) is more about conquest–with sex as the vehicle for that conquest. Conquest is about control and power. So when I say "It has always been about money, power, prestige and a patriarchal system" that is what I mean. I think that when someone uses pornographic materials (video, books, magazines, pictures, etc) it is more about the conquest of the metempirical than it is about the enjoyment of the art-form. (Since when have the articles in playboy and hustler been literary masterpieces?) When it is used by a single person it is the metempirical conquest. When used in couples it is both the metempirical conquest and the conquest of the other individual. In interrelationship or behavioral terms, the question that is sub-conciously posed is "who's in control?"

  13. I am sure that there are very healthy relationships with very exotic sex relationships. I am not arguing that people's sexual preferences should be questioned but I am questioning the motives of many people who watch pornography and then establish an unrealistic bar of sexual perfection for their spouse/partner. Those who view sex as a conquest rather than a mutual progression of experience seem to experience the cloying that comes by viewing another person as a means to an end. I know I make a lot of assumptions here but since I don't have the quantitative research or the time to comb through it all I have to rely on flow of conscientiousness.

    (You are right to say that the Nicotine metaphor breaks down fairly soon. I am sure there are more useful metaphors than that one)

    "how then could a filmic depiction of sex be sure to establish consent?" The easy answer is to not have it! But there are a lot of ways to establish consent. The mere fact that someone is excited or proactively engages is a sign of consent. The question should be, in what ways does someone say NO and what are their rights when they have said no? The Model Penal Code is a legal system to help clarify under what conditions someone has the capacity for consent. For example, when someone is drugged they can not legally consent to sex (not that drugged sex has never happened consensually), when someone is underage (not that underage sex has never happened consensually, when someone is mentally handicapped (again, because there are various levels of mental capacity I am sure there are cases when sex was consensual but from the viewpoint of the Law consent does not exist) , etc. Common Law is available to establish consent in MOST cases but not all.

  14. "Material (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement - Pornography is protected speech under the First Amendment unless it is determined to be legally obscene. (Both child pornography and virtual child pornography are illegal and sanctionable offenses) "

    I like this definition Black gives because it takes intention out of the equation. Pornographic materials are protected, unless...something is deemed "legally obscene" Some may say that defining their art as legally obscene is oppressive but I still feel that there is room for the majority to make it clear what types of pornography should be pervasive within a society. Rape pornography seems to have won for itself a definition of acceptability and even thought I disagree with it, there are very few people who want to limit it's availability .

    As for intention, let's use Miss Saigon the Steven Sondheim musical for example. If you have not seen it I recommend it highly. I don't think it was intended to arouse people in the audience. On the contrary I think it was intended to encourage the audience to feel ashamed for how these strippers and prostitutes were being treated by a majority of the US military. The contrast is with the main couple but you can watch it and decide for yourself. Many things arouse that were never intended to arouse.

    I hope these have clarified some of my thoughts. I am against pornography. I am against its creation and proliferation. At the same time I feel very strong that the rights of the individual to make choices and produce "speech" in it's various forms is eternally sacred. I am sure that if the majority wanted to, there would be ways to make pornography illegal, as I think it should be. But most of those methods are, as you might say, intrusive upon the sacred rights of the individual. I don't think the answer is to make it illegal but rather allow society greater oversight in the methods of distribution.

  15. But we are talking more about the legal side of pornography, when the question was "should" it be illegal? We both know there are problems with forcing others to obtain from producing pornographic materials, but help answer this question for me. Without getting into the befuddling questions of who and how, does pornography add so much greatness to society that if it were gone it part or in it's entirety we would lose some portion of our identity? I know that is not going to happen. And what would be defined as pornography has always evolved from Ayn Rand to the Bible's depiction of incest. I would be interested to hear your thoughts on the consequences of prolific pornography–both negative and positive.

    I am one long winded son of a gun! Although I do have a great dad!! hahaha euphemistic humor!