HomeMy WebLinkAbout2005-06-28; City Council; 18187 v3 22 Pt 1; Exhibit - AG Commission report on pornographyAttorney General's
ornograpny
Final Report
l/OL.
COPY
Table of Contents
PART ONE
1. Commissioner Biographies , 3
2. Acknowledgements and Notes 23
3. Individual Commissioner Statements 27
PART TWO
1. Introduction 215
The Commission and Its Mandate 215
The Work of the Commission 218
The 1970 Commission on Obscenity 224
and Pornography
Defining Central Terms 227
2. The History of Pornography 233
Pornography as a Social Phenomenon 233
Regulation and the Role of Religion 236
Obscenity Law — The Modern History 249
3. The Constraints of the First Amendment 249
The Presumptive Relevance of the 249
First Amendment
The First Amendment, The Supreme Court, •. 251
and the Regulation of Obscenity
Is the Supreme Court Right? jgo
The Risks of Abuse 269
4. The Market and The Industry
The Market for Sexual Explicitness ....
The Motion Picture Industry
Sexually Explicit Magazines
Television
The Pornography Industry
The Production of Films, Video Tapes,
and Magazines
Channels of Distribution
The Retail Level
The Role of Organized Crime
5. The Question of Harm
Matters of Method
277
277
278
280
281
284
284
287
289
291
299
299
Harm and Regulation —
The Scope of Our Inquiry 299
What Counts as a Harm?
The Standard of Proof
The Problem of Multiple Causation
The Varieties of Evidence
The Need to Subdivide
Our Conclusions About Harm
Sexually Violent Material
Nonviolent Materials Depicting
Degradation, Domination,
Subordination, or Humiliation
Nonviolent and Non-Degrading
Materials
302
306
309
312
320
322
323
323
329
335
Nudity 347
The Need for Further Research 349
6. Laws and Their Enforcement
An Overview of the Problem
Should Pornography be Regulated by Law?
The Question is Deregulation 354
Law Enforcement, Priority, and
Multiple Causation
The Problem of Underinclusiveness
The Criminal Law
The Sufficiency of Existing
Criminal Laws
The Problems of Law Enforcement.
Federalism
What Should be Prosecuted?
The Special Prominence of the
Printed Word
353
353
354
358
360
363
364
366
372
375
381
Regulation by Zoning 385
The Civil Rights Approach to
Pornog raphy 391
Obscenity and the Electronic Media 396
Enforcing Both Sides of the Law 402
7. Child Pornography 405
The Special Horror of Child
Pornography
Child Pornography as a Cottage
Industry
Child Pornography, the Law, and
the First Amendment
Enforcement of the Child
Pornography Laws
405
406
410
415
8. The Role of Private Action
The Right to Condemn and the
Right to Speak
The Methods of Protest
The Risks of Excess
The Importance of Education and
Discuss ion
PART THREE
1. Introduction
2. Law Enforcement Agencies and the
Justice Department
3. Child Pornography
4. Victimization
5. Civil Rights
6. Nuisance Laws
7. Anti-Display Laws
PART FOUR
1. Victimization
2. Performers
3. Social and Behavioral Science
Research Analysis
4. Organized Crime
419
419
421
423
425
433
459
595
737
747
757
759
767
837
901
1037
5. The History of the Regulation of
Pornography 1213
6. First Amendment Considerations 1263
7. Citizen and Community Action and
Corporate Responsibility 1313
8. Production and Distribution of
Sexually Explicit Materials 1351
9. The Imagery Found Among Magazines, Books and
Films, in "Adults Only"
Pornographic Outlets , 1499
10. Sample Forms
11. Witnesses Testifying Before the
Commission
12.Witnesses Invited But Unable to
Appear Before the Commission
13. Persons Submitting Written Statements
PART FIVE
1. Bibliography
2. Additional Suggested Reading
Materials
3. Staff Listing
PART SIX
1. Photographs ..
APPENDIX A
Commission Charter
1803
1845
1861
1865
1875
1925
1933
1937
1957
PART ONE
( I t ;•
> Chapter 1
Commissioner Biographies
,i
i i
Henry E. Hudson served as chairman of the Attorney
General's Commission on Pornography. Henry Hudson was born in
Washington, D.C. He was awarded a bachelor of arts degree from
American University, School of International Service, Washington,
D.C., in 1969. In 1974 Mr. Hudson received his juris doctor from
American University, Washington, D.C.
Mr. Hudson is currently serving his second term as Common-
wealth Attorney in Arlington County, Virginia. Mr. Hudson
recently has been appointed to serve as the United States
Attorney for the Eastern District of Virginia. Prior to his
election, Mr. Hudson was the Assistant United States Attorney for
the Eastern District of Virginia, Criminal Division in
Alexandria. Mr. Hudson has also served as the Assistant
Commonwealth Attorney in Arlington County, Deputy Clerk of the
Circuit Court of Arlington County and Deputy Sheriff.
Chairman Hudson enjoys membership in several professional
organizations including the Virginia State Bar, Virginia Common-
wealth Attorneys Association, Criminal Law Section of the
Virginia State Bar, Virginia Trial Lawyer Association, Arlington
County Bar Association, and the National District Attorneys
Association. In addition, Mr. Hudson has made significant
contributions through his work with various community service
organizations including the Arlington County Volunteer Fire
Department, the Arlington County Police Trial Board, the American
Red Cross, and the Task Force on Substance Abuse and Youth.
In 1981, President Reagan appointed Mr. Hudson to the
National Highway Safety Advisory Committee. Mr. Hudson enjoys
membership on the Congressional Award Council for the Tenth
Congressional District.
Judith Veronica Becker received a bachelor of arts degree in
psychology from Gonzaza University in Spokane, Washington, in
1966. She was awarded a masters of science degree in Clinical
Psychology from Eastern Washington State College, Cheney,
Washington, in 1968. Dr. Becker received her Ph.D. from Univer-
sity of Southern Mississippi, Hattiesburg, Mississippi, in Clin-
ical Psychology in 1975. Dr. Becker completed her internship at
the University of Mississippi Medical School in 1974. Dr. Becker
is currently licensed to practice in New York, New Jersey and
Tennessee.
Dr. Becker is an Associate Professor of Clinical Psychology
in Psychiatry at Columbia University, College of Physicians and
Surgeons. She is also the director of the Sexual Behavior Clinic
at the New York State Psychiatric Institute. Previously, Dr.
Becker has served as Assistant Professor at the University of
Tennessee Medical School, an Instructor in Psychiatry and Human
Behavior at the University of Mississippi Medical School, and
Intern at the University of Mississippi Medical Center.
Dr. Becker's major research interests are in the field of sexual
aggression, rape victimization, human sexuality and behavior
therapy. She has researched and written numerous papers.
Presentations of her research have included those before the
Association for the Advancement of Behavior Therapy, the annual
meeting of the Southern Psychological Association, the annual
meeting of the Southeastern Psychological Association, the
International Academy of Sex Research and the Society for Sex
Therapy and Research.
Diane D. Cusack has recently completed her second term on
the Scottsdale City Council. Mrs. Cusack came to Scottsdale in
1957 and since that time has been very active in community
affairs.
Mrs. Cusack's involvement with Scottsdale began in 1964 and
led to service on the Planning and Zoning Commission for thirteen
years, five as Chairman. Mrs. Cusack has participated as a
speaker and panelist at numerous meetings of the Arizona Planning
Association, and is recognized statewide for her expertise in the
planning field.
Presently, Mrs. Cusack is serving her seventh term as
President of the Maricopa County Board of Health. Long active in
the health field, she is also Chairman of the City's Emergency
Medical Services Committee and in the past has served as a member
of the Board of the local Hospital.
After receiving a bachelor of arts degree in economics from
Rosary College, Mrs. Cusack became one of the first women to
attend the Harvard Business School, receiving a Special
Certificate in 1954. A market research analyst, Mrs. Cusack has
devoted herself to community affairs since residing in
Scottsdale.
While raising her family, Mrs. Cusack was active in
scouting. She initiated and managed a school library, and served
as a Red Cross School Nurses' Assistant at Tonalea School. She
also was president of the Scottsdale League of Women Voters and
President of the Scottsdale Symphony Guild, and is a member of
the Arizona Academy.
Mrs. Cusack and her husband, Joseph, a Senior Engineer with
Motorola, have three grown children and remain active members of
their church and community.
\ I
Park Elliott Dietz received an A.B. from Cornell University
with honors in Psychology and Distinction in All Subjects in
1970. He earned degrees in medicine (M.D.), public health
(M.P.H.), and sociology (Ph.D.) from the Johns Hopkins
University. While a Robert Wood Johnson Foundation Clinical
Scholar, he served psychiatric residencies at the Johns Hopkins
Hospital and the Hospital of the University of Pennsylvania,
where he was Chief Fellow in Forensic Psychiatry. He is board
certified in psychiatry by the American Board of Psychiatry and
Neurology. As an Assistant Professor of Psychiatry at the
Harvard Medical School he served as Director of Forensic
Psychiatry at the maximum security hospital at Bridgewater
operated by the Massachusetts Department of Correction.
Dr. Dietz is Professor of Law, of Behavioral Medicine and
Psychiatry and Medical Director of the Institute of Law,
Psychiatry and Public Policy at the University of Virginia in
Charlottesville. At the University of Virginia, he teaches
courses in Law and Psychiatry, Psychiatry and Criminal Law, and
Crimes of Violence, provides training in forensic psychiatry,
conducts research on sexual offenses, violence, and threats and
directs the Forensic Psychiatry Clinic, which conducts evaluati-
ons on behalf of attorneys and courts in criminal and civil
cases. He also serves as a Lecturer in the Department of Health
Policy and Management at the Johns Hopkins School of Hygiene and
Public Health, as a psychiatric consultant to the Behavioral
Science Unit, Federal Bureau of Investigation Academy, Quantico,
Virginia, and as a consultant to attorneys, courts and public
agencies throughout the United States.
Dr. Dietz is a member of Phi Beta Kappa, Phi Kappa Phi,
Alpha Epsilon Delta, and Alpha Omega Alpha honor societies. He
was the recipient of the 1975 John P. Rattigan Award of the
American Society of Law and Medicine, the 1977 Wendell Muncie
Award of the Maryland Psychiatric Society and Maryland
Association of Private Practicing Psychiatrists, and the 1986
psychiatry Section KrafCt-Ebing Award of the American Academy of
Forensic Sciences.
Dr. Dietz has served on the editorial boards of the Johns
Hopkins Medical Journal, the Bulletin of the American Academy of
Psychiatry and the Law, the Psychiatric Journal of the University
of Ottawa, the Journal of Forensic Sciences, and Behavioral
Sciences and the Law. He has served as Chairman of the
Psychiatry Section of the American Academy of Forensic Sciences;
Vice President of the American Academy of Psychiatry and the Law;
Vice President of the Board of Trustees of the Forensic Sciences
Foundation; a member of the Committee on Federal Trauma Research
of the National Research Council and National Academy of
Sciences; Chairman of the Committee on Abuse and Misuse of
Psychiatry and Psychiatrists in the United States and a member of
the Advisory Committee on the Paraphilias, Task Force on
Nomenclature and Statistics (DSM-III-R), of the American
Psychiatric Association; and a member of the Committee on
Psychiatry and Law of the Group for the Advancement of
I
Psychiatry. He is also a member of the American Society of
Criminology, the American Society of Law and Medicine, the
Forensic Science Society (Great Britain), and the Society for the
Study of Social Problems.
Dr. Dietz's writings have appeared in the American Journal
of Public Health, the Archives of General Psychiatry, the
Bulletin of the American Academy of Psychiatry and the Law,
Behavioral Sciences and Law, the International Journal of
Psychiatry and Law, the Journal of the American Medical
Association, the Journal of Forensic Sciences, the Journal of
Police Science and Administration, the Journal of Public Health
Policy, Medicine and Law, Pharmacology, Biochemistry and
Behavior, Victimology, and other professional journals and in
more than a dozen books. He has addressed medical, psychiatric,
psychological, forensic science, and law enforcement audiences
throughout the United States and in Canada, Mexico, Australia,
and the Federal Republic of Germany.
James C. Dobson received a bachelor of arts degree in
psychology from Pasadena College in 1958. He was awarded a
master of science degree from the University of Southern
California in 1962. He earned a Ph.D. from U.S.C. in 1967 in
Child Development and Research Design.
Dr. Dobson served for fourteen years as Associate Clinical
Professor of Pediatrics at the University of Southern California
School of Medicine, and simultaneously, for seventeen years on
the Attending Staff of Children's Hospital of Los Angeles, in the
Division of Medical Genetics. He was also Director of Behavioral
Research in the Division of Child Development during a portion of
this time.
More recently, Dr. Dobson has been President of Focus on
the Family, a non-profit organization dedicated to the
preservation of the home. In this capacity, he hosts a thirty
minute daily radio program heard on more than eight hundred
stations in seventeen countries. He is a licensed psychologist
in the State of California and a licensed Marriage, Family and
Child Counselor also in California. A six-film series featuring
Dr. Dobson has been seen by fifty million people to date.
Dr. Dobson has been active in governmental activities since
1980. He received a special commendation from President Jimmy
Carter for his work on the Task Force for the White House Confer-
ences on the Family. He was appointed by President Ronald Reagan
in 1982 to the National Advisory Commission for the Office of
Juvenile Justice and Delinquency Prevention. He also served on
10
the Citizens Advisory Panel for Tax-Reform, in consultation with
President Reagan and currently serves on the Army Science Board
as a family consultant for General John Wickham, Chief of Staff,
United States Army.
He has published extensively both in professional journals
and for individual families. His ten books for parents have sold
more than four million copies. His first graduate textbook,
co-edited with Dr. Richard Koch, was entitled The Mentally
Retarded Child and His Family and was designated the best book in
its field by the Wenninger Clinic. Dr. Dobson was the principal
investigator on a $500,000 grant from the National Institute of
Health, studying phenylketonuric children and those with related
metabolic disorders. This medical directed research was funded
by the Department of Health and Human Services.
Edward J. Garcia was born in Sacramento, California. He
received an associate of arts degree in pre-law from Sacramento
City College in 1951. In 1958 he was awarded his LL.B. degree
from the University of Pacific-McGeorge School of Law.
In 1984, President Reagan appointed Judge Garcia as United
States District Court Judge for the Eastern District of
California. Previously, he has served as judge of the Sacramento
Municipal Court.
Judge Garcia has served as Deputy District Attorney, super-
visory Deputy District Attorney, and Chief Deputy District
Attorney for the Sacramento County District Attorney's office.
He has also enjoyed membership in the Sacramento and California
State Bar Associations. Judge Garcia has been a member of the
Board of Directors of the Legal Aid Society for Sacramento and
Yolo Counties, a member of the Board of Directors for the
University of Pacific-McGeorge Alumni Association, a charter
member of the Board of Directors of the Mexican American Educa-
tional Association, a member of the Catholic Charities Advisory
Board for the Diocese of Sacramento, a member of the Board of
Directors of the St. Frances Corporation, a non-profit corpo-
ration for the construction of housing for the elderly and needy.
In addition, Judge Garcia has served as vice chairman for the
Governing Board of the California Center for Judicial Education
and Research and a lecturer at the California Judge College and
as vice president of the California Judges Association.
12 13
Ellen Levine, editor-in-chief of Woman*8 Day and a vice
president of CBS Magazines, joined CBS in 1982. Previously, Ms.
Levine was the editor-in-chief and creator of Cosmopolitan
Living, a lifestyle magazine published by the Hearst Corporation?
and at the same time the decorating and food editor of
Cosmopolitan. Mrs. Levine joined Cosmopolitan in 1976. She
began her journalism career as a reporter in women's newa for The
Record in Hackensack, New Jersey. In addition to her editorial
work, she has been published in many publications, including The
New York Times.
During her career, Ellen Levine has been cited by many
organizations, including receiving the Writers Hall of Fame award
for her coverage of lifestyle news in 1981. A year later she was
elected to the YMCA's Academy of Women Achievers; and in 1984 she
was honored by the Girl Scout Council of Bergen County for
outstanding professional achievement. Similar citations as a
woman of achievement were also given by the New Jersey State
Federation of Women's Clubs and Douglass College of Rutgers
University.
Mrs. Levine is a trustee of the Elisabeth Morrow School in
Englewood, New Jersey, and on the board of directors of the New
Jersey Bell Telephone Company. She is also a member of Senator
Bill Bradley'a executive committee.
Ellen Levine is a graduate of Wellesley College, where she
majored in political science and edited the college newspaper.
She lives with her husband, a physician, and two sons in
Englewood, New Jersey.
Tex Lezar was born in Dallas, Texas. He received a
Bachelor of Arts degree from Yale College and was awarded his
juris doctor degree from the University of Texas where he was
editor-in-chief of the Texas Law Review. Mr. Lezar was admitted
to the practice of law in Texas in 1977.
Currently in private practice in Dallas, Texas, Mr. Lezar
is a partner in the firm of Carrington, Coleman, Sloman &
Blumenthal. Prior to joining the firm, he had most recently
served concurrently as counselor to Attorney General William
French Smith and Assistant Attorney General for Legal Policy. In
addition to engaging in the private practice of law, Mr. Lezar
has previously served as Assistant to William F. Buckley, Jr.;
Staff Assistant and Speech Writer to President Richard M. Nixon;
Special Counsel to the Honorable John B. Connally, Jr.; and
General Counsel to the Texas Secretary of State.
Mr. Lezar is a Fellow with the Institute of Judicial Admin-
istration. In addition, Mr. Lezar was a member of the United
States Delegation to the International Conference on African
Refugee Assistance II and he is a member of the Federal Judiciary
Evaluation Committee of Senator Phil Gramm and a member of the
American Law Institute. ,
14 15
The Reverend Bruce Ritter was born in Trenton, New Jersey.
Father Ritter studied at St. Francis Seminary and then he went to
Our Lady Queen of Peace in Middleburgh, New York. He studied
philosophy at the Assumption Seminary in Chaska, Minnesota.
Father Ritter began his course work in theology at St. Anthony—
on-Hudson in Rensselar, New York, and completed his studies at
St. Bonauenture's Theoligate in Rome. He was ordained in Rome
in 1956 and received his doctorate in medieval dogma in 1958.
Father Ritter is the founder and President of Covenant House, an
international child care agency that operates short-term crisis
centers in New York City, Houston and Toronto, as well as a
long-term residential program in Antigua, Guatemala.
Father Ritter has taught at St. Anthony-on-Hudson in
Rensselaer, New York, St. Hyacinth Seminary in Granby,
Massachusetts, and at Canevin High School in Pittsburgh,
Pennsylvania. In 1963, he was assigned to Manhattan College in
the Bronx, New York as campus chaplain and professor of theology.
Father Ritter has received national recognition for his
extensive work with the homeless and runaway youth. He has
received the National Jefferson Award from the American Institute
of Public Service in Washington, D.C., the Service to Youth award
from the New York State Division for Youth, and the International
Franciscan Award. Father Ritter has received honorary degrees
from Amherst College, Villanova University, Boston College, and
Fordham University.
Frederick Schauer is Professor of Law at the University of
Michigan Law School. He received A.B. and M.B.A. degrees from
Dartmouth College, and a J.D. from the Harvard Law School in
1972.
Professor Schauer was formerly Cutler Professor of Law at
the College of William and Mary. He has also been a Visiting
Scholar at Wolfson College, Cambridge University, and a member of
the law faculty in West Virginia University. Prior to entering
academic life, Professor Schauer practiced law with the firm of
Fine 6 Ambrogne in Boston, Massachusetts. He is a member of the
Bar of the Commonwealth of Massachusetts, and is certified to
practice before the Supreme Court of the United States.
Professor Schauer has written extensively about the law of
obscenity, the First Amendment, and constitutional law generally.
In addition to numerous articles on these subjects, he is the
author of the annual supplements to Gunther, Constitutional Law,
and has written two books, The Law of Obscenity, published by BNA
Books in 1976, and Free Speech; A Philosophical Enquiry.
published by the Cambridge University Press in 1982. The latter
book was awarded the Certificate of Merit by the American Bar
Association in 1983. Professor Schauer currently serves as Chair
of the Section on Constitutional Law of the Association of
American Law Schools, and has previously been Vice-Chair of the
Section on Law and the Arts of the same organization. Among his
other honors and awards is receipt of a National Endowment for
the Humanities Fellowship and selection as Professor of the Year
16 17
aV the School of Law of the College of William and Mary.
Professor Schauer has also lectured at universities, conferences,
and other gatherings throughout the world on,constitutional law,
legal \and political philosophy, freedom of speech, and the legal
and philosophical aspects of the regulation of pornography.
Deanne Tilton is President of the California Consortium of
Child |Abuse Councils (CCCAC), a Statewide network of child abuse
organizations including public and privattly based inter-discipl-
inary councils, agencies, and individuals. The Consortium
provides broad-based networking, training and technical
assistance to programs and agencies providing child abuse
prevention and treatment in both urban and rural communities.
IThe Consortium has also sponsored major legislation in the areai
of child abuse prevention, providing over 15 million in direct
funding to community programs Statewide. The California
Consortium of Child Abuse Councils is the State Chapter of the
National Committee for Prevention of Child Abuse. Ms. Tilton is
Administrative Director of the Los Angeles County Inter-Agency
Council on Child Abuse and Neglect (ICAN). ICAN is one of the
largest child abuse councils in the Country, including the heads
of 18 major City, County, and State departments, professional
experts in every human services field, and nine community child
abuse councils in Los Angeles County. In 1979, Ms. Tilton
organized a private sector partnership between ICAN and ICAN
Associates, a private non-profit charity comprised of
influential corporate and media representatives. This partner-
ship has attracted National attention for its cooperative efforts
and for the development of the ICAN Neighborhood Family Center
Project. This project includes the development and networking of
comprehensive multi-service community-based child abuse programs.
Ms. Tilton is a member of the Board of Directors of the National
18 19
Committee for the Prevention of Child Abuse (NCPCA). She also
serves as a Commissioner on the California Attorney General's
Commission on the Enforcement of Child Abuse Laws. In July, 1985
she was appointed by the California Governor to the Child Abuse
Prevention Committee of the State Social Services Advisory Board.
Ms. Tilton has been in the field of children's services since
1964, beginning as a Los Angeles County Social Worker. She was
the County liaison between the Department of Public Social
Services and the Juvenile Court when child abuse cases were
initially transferred from the Probation Department to DPSS. She
also served as a Supervising Children's Services Worker and
later as Deputy Regional Services Administrator before being
selected to administer ICAN. Ms. Tilton has been awarded
commendations for her work by the National; Association of
Counties, the Los Angeles County Board of Supervisors, the ICAN
Associates, the Los Angeles Latino Community, the Children's
Legislative Organization United by Trauma (CLOUT) and numerous
other public and private organizations concerned with the
welfare of children and families. She is married to Child
Psychiatrist, Michael J. Durfee, M.D.
Executive Director.
Alan E. Sears served as the Executive Director for the
Attorney General's Commission on Pornography. Mr. Sears
previously served as the Chief of the Criminal Division and as
Assistant United States Attorney for the office of United States
Attorney in the Western District of Kentucky. He has extensive
trial experience which includes supervision of investigations and
prosecution of several obscenity law cases. Mr. Sears is
admitted to the practice of law in Kentucky and before the United
States district courts for the Western District of Kentucky, the
Eastern District of Kentucky, the United States Tax Court, the
United States Courts of Appeal for the Sixth Circuit and the
District of Columbia and the United States Supreme Court.
20 21
Chapter 2
Acknowledgements and Notes
One of the most difficult tasks at the conclusion of a
project such as this Commission's work is in properly expressing
appreciation to the countless persons who contributed to the
success of the project. The Commission wishes to thank everyone
who assisted in this work. The Commission also recognizes and
commends the following persons and agencies for their
extraordinary contributions of personnel and support.
Arlington County Police Department
Chief William K. Stover
Metropolitan Police Department
Washington, D.C.
Chief Maurice Turner
United States Postal Inspection Service
Chief Postal Inspector Charles R. Clauson
United States Customs Service
Commissioner William von Raab
Los Angeles County Department of Childrens Services
Robert Chaffee, Director
Stephen Fox, Director of Governmental Relations
23
( , r
Los Angeles County Sheriff's Department
Child Abuse Unit
Lt. Richard Willey
Los Angeles City Attorney's Office
Deputy City Attorney
Mary House
Director William Webster, support personnel at the United States
Department of Justice, the .any persons and entities in the
Onited States Courts, General Services Administration, Federal
protective Services and with the City of Scottsdale, Arizona,
wno provided hearing sites and support for our public hearings
and meetings.
Los Angeles County Counsel
Chief of Juvenile Division
Larry Cory, Esquire
The Police Departments and officers of:
The City of Los Angeles, California
The City of Houston, Texas
The City of Chicago, Illinois
The City of Buffalo, New York
The City of Miami, Florida
We also express special appreciation to support work and
research performed by the Federal Bureau of Investigation,
24 25
Chapter 3
Commissioner Statements
With the reservations expressed herein, I concur in
principle with the conclusions drawn by the majority. The
findings contained in our report reflect a balanced assessment of
the evidence heard. Ideally, I would have preferred that our
condemnation of materials directly affecting behavior be couched
in more forceful language, and that our recommendations for
enhanced law enforcement, particularly with respect to violent
and degrading materials, be likewise more pronounced. The
reluctance of some Commissioners to adopt more potent language in
these areas was undoubtedly attributable to the scarcity of
definitive research on negative effects. While the existing body
of research, particularly when coupled with the totality of the
other evidence heard, well supports our findings, more
corroborative research may warrant firmer control measures.
Hopefully these issues will be addressed by behavioral scientists
in future years.
Undoubtedly the most divisive task which confronted the
Commission has been an analysis of those materials contained in
Category ill. This group encompasses a wide spectrum of imagery
depicting sexual activity without violence, submission,
degradation or humiliation. More than any other class evaluated,
each Commissioner's personal value assessment of the activity
portrayed encumbered objective analysis. The lack of consensus
among the American people as to the morality of certain acts was
27
; 158-315 Vol. 1, o- 86 - 2i
quite evident among our cross-sectional composition.
From a purely social scientific perspective there is no
cogent evidence that materials in this class have a predominately
negative behavioral effect. There is, however, a scarcity of
research material squarely within the definitional boundaries of
this Category.
Much of the research touching material representative
of this group also includes publications in other categories.
The scarcity of significant research in this area adds a
definite element of caution in assessing the behavioral effects
of this class, particularly with respect to children and
adolescents.
Despite the absence of clinical evidence linking Class III
materials to anti-social behavior, several correlational
connections are disturbing. First, it would appear that imagery
comprising this Class may tend to encourage and promote the
activity depicted. To the extent that the activity portrayed may
be morally offensive, its literary propagation could be a social
problem. At least one study has indicated that prolonged
exposure to material in this category may cause a desensitized
attitude toward the sexual abuse of women. This evokes
considerable concern, especially with respect to the effect on
individuals with predispositions for antisocial behavior.
Turning next to an assessment of the social effects of
Class III materials as determined from all sources of evidence,
it is useful to weigh the evidence relating to each category of
potential harm identified by the Commission. Aside from
attitudinal desensitization, there appeared to be no evident
connection between items in this Class and the contention that
women enjoy being raped. Several witnesses alluded to the
possibility that a behavioral nexus may exist, but no persuasive
evidence was introduced. However, depictions in this class do
tend to promote the notion that women are inherently promiscuous
and enjoy sexual exploitation. This type of imagery conveys the
impression that women are fundamentally immoral and hedonistic.
The depictions featured in Category III material appear to
de-emphasize the significant natural bond between sex and
affection in their portrayal of adultery, fornication and
sodomy. Therefore, in the final analysis, Class III material
appears to impact adversely on the family concept and its value
to society.
On balance, it would appear that materials in Class III
have mixed effects depending on their nature and purpose. Those
items which tend to distort the moral sensitivity of women and
undermine the values 'underlying the family unit are socially
harmful.
Aside from the type of harm which lends itself to a
clinical degree of proof, obscenity impacts on society in a
number of ways which defy scientific standards of assessment.
The visible availability of obscene materials and performances in
a community derogates from the family atmosphere normally
fostered by local governmental policy. As Chief Justice Earl
28 29
Warren noted in Jacobellis v. Ohio, 373 U.S. 184, 199, "(t)here
is a right of the Nation and States to maintain a decent
society." The right to preserve a wholesome community atmosphere
conducive to family development in itself warrants the control of
offensive and obscene materials. Chief Justice Warren E. Burger
observed in Paris Adult Theater I v. Slayton, 413 U.S. 49, 58,
that the desire to maintain "the quality of life and the total
community environment" is an adequate legal basis for the
regulation of obscene material. Justice Harlan in his dissenting
opinion in Roth v. United States, 354 U.S. 476, 505, described
this governmental obligation as a "responsibility for the
protection of the local moral fabric." Inherent in the comments
of Chief Justice Burger, as well as those of his predecessors, is
the acknowledgment of the existence of a moral and cultural
texture in our society, worthy of legal protection. Toward that
end, I join Commissioner Park Elliott Dietz in his introductory
comments.
Turning to the issue of law enforcement as developed in the
text, my concern focuses more on the manner of expression than
the underlying conclusion. Initially, the decision to adopt or
enforce obscenity laws should reside, within constitutional
limits, with the citizens of each community. Our recommendations
are predicated on the assumption that a community seeking to
implement these suggestions has made this threshold decision.
From the evidence heard and correspondence received, it would
appear that most communities desire some degree of obscenity
enforcement. 'However, if law enforcement officials in those
communities adopt a policy of conscious oversight or neglect of
obscenity cases, as has apparently happened in many jurisdictio-
ns, this may spawn a spectre of condonation. In time, an
attitude of tolerance will evolve to the level of normal, and
often fossilized, public policy. The necessity for reversing
this course and employing our suggestions for citizen action
deserves more prominence in our report.
The suggested prioritization of obscenity cases, which
places the greatest emphasis on violent and degrading materials,
seems appropriate. Of greater concern is the possible
implication that enforcement with respect to Category III items
should be de-emphasized. While prioritization of resources, like
other obscenity law enforcement policy, is a matter within the
prerogative of each individual jurisdiction, I do not support the
suggestion that any items within the current definition of
obscenity should not be prosecuted if deemed appropriate by that
community. To the extent that prioritization of resources
entails the commitment of personnel to long-term, complex
investigations, a policy of concentration on violent and
degrading materials is logical. On the other hand, the policy
distinction between legally obscene materials of that type
(Category I and II), and those in Category III is less persuasive
when applied to cases developed by routine periodic surveys of
materials on display in commercial areas. Under the latter
circumstances, all materials within the legal definition of
30 31
( r
obscenity, as established by the standards of that community,
should be prosecuted upon discovery.
Our suggestion that publications consisting entirely of the
printed word and without imagery be exempted, except for those
relating to child abuse, is disturbing. While I have never
personally initiated a prosecution of a publication of that type,
and cannot envision circumstances warranting such action in my
community, I will not unilaterally impose my view on other
jurisdictions. To the extent that our text may appear to condone
a relaxation of existing obscenity laws with respect to materials
comprised solely of the printed work, I depart from the
majority. A decision to disregard existing lay must in my view
be made by the individual community affected.
I am also of the opinion that our report understates the
connection between the pornography industry and organized crime.
The evidence which I heard revealed more than a mere
association. In my view, most elements of the pornography
industry, particularly with respect to books and magazines, is
directly controlled by the La Cosa Nostra, through its members or
associates.
In the final analysis, I believe our final report represe-
nts as intensive an examination of the multi-faceted topic of
pornography as could be conducted within our time and budgetary
constraints. Every issue presented to us was considered from
all points of view. Each member of our Commission made a
valuable contribution of time and talent to our final product. I
am proud to sign the resulting report.
Henry E. Hudson
Chairman
32 33
Statement of Diane D. Cusack
At the conclusion of our year-long effort to assess the
impact of pornography on American society, it seems appropriate
to add my personal thoughts on just a few aspects of deliberati-
ons and the report.
Although sometimes with the majority and other times with
the minority on certain points, I believe the report fairly
states both sides of any divided issues and I am proud to sign
this report and to have been a part of a most intensive and
intelligent look into a troublesome aspect of our society today.
Our chairman, Henry Hudson, and Staff Director, Alan Sears,
deserve the gratitude of the country for so keenly perceiving and
discharging their uniquely important responsibilities. I know
they have my admiration and thanks.
Those who seize upon our divisions do the report a great
disservice. Rather, they should credit the high degree of
consensus - and frequent unanimity - as a strong statement of our
concern for society. Our 92 recommendations are sound and sure,
and must be implemented at all levels of government if there is
to be any hope of "stemming the tide" of obscenity which is
flooding our environment.
There is no doubt among us that the quantity of pornography
available today in America is almost overwhelming. In addition,
that large portion of it which would be obscene under the Miller
test is shockingly violent, degrading and perverted. It
is my personal opinion that there is no one who is a consistent
user of this material who is not harmed by it. And who, in turn,
pay harm others because of it. This obscene material should be
prosecuted vigorously under the laws and according to our
recommendations, whether pictorial, film, or written works.
But let us not ignore that body of material which is
sexually explicit but not obscene under the Miller test. This
material can also be harmful - but in a somewhat different way.
Although not prosecutable, nor recommended to be so, it nonethel-
ess presents a cause for concern. Our report clearly states a
concern for material that is objectionable but is and should be
protected by the First Amendment freedoms. The fact that it is
"protected speech" does not automatically remove its objectiona-
ble character. For 2500 years of western civilization, human
sexuality and its expressions have been cherished as a private
act between a loving couple committed to each other. This has
created the strongest unit of society - the family. If our
families become less wholesome, weaker, and less committed to the
fidelity that is their core, our entire society will weaken as
well. People who consistently use the materials we have studied
- and children who inadvertently are exposed to them - are not
made better persons for it. No pornographer has ever made that
claim. And those who insist that these materials do no harm had
better be right, for the risks to our future are substantial.
These materials, whose message is clearly that sexual pleasure
and self-gratification are paramount, have the ability to
34
35
seriously undermine our social fabric. It is the individuals i^
our great nation who must see this, and reverse the trend - not
the government. Chapter 7 of Part Four the Report addresses this
issue quite well.
Aristotle has taught us for years that a society must
concern itself with virtue. "Otherwise . . . law becomes a mere
contract or mutual guarantee of rights, and quite unable to make
citizens good and just, which it ought to do . ..." It is
this "good and just" society which America has enjoyed from its
beginning. It became so because its people had a shared
respect, a unifying vision, a common understanding of man's place;
in the world. We have a phenomenon today, in the pervasive
presence of sexually explicit materials, that challenges one of
those understandings held by society for thousands of years -
that sex is private, to be cherished within the context of love,
commitment, and fidelity. We can use this wondrous gift to
create or destroy, to rule or be ruled, to honor each other or;
debase each other. This Report provides an abundance of informa-i
tion, and the conclusions of a community of eleven citizens.
The American people must now decide what to do with it. :
STATEMENT OF PARK ELLIOTT DIETZ, M.D., M.P.H., PH.D.I
In recent decades there has been a desirable trend toward
using empirical evidence to test long-held assumptions underlying
legal doctrine and procedure and to rely on social science
evidence to make better-informed judgments about difficult
questions of law and social policy. Social science has given
good service in answering questions about adequate jury size, in
determining public perceptions of trademark products, in profil-
ing skyjackers, in sentencing convicted criminals, and in
limiting the exclusionary rule. But social science is too new on
the historical scene to have developed adequate data on every
important social problem, too little funded to have amassed all
the data desired, and too positivistic to tell us what we should
do, particularly when competing interests are at stake.
The 1970 Commission on Obscenity and Pornography went so far
in attempting to rely on social science evidence that a majority
of its members took the absence of experimental evidence of
causation of antisocial behavior or sexual deviance as a basis
for urging the deregulation of obscenity. The present Commission
did not limit its inquiry to the products of social science
research. While in this respect we depart from the tradition of
one predecessor Commission, we do not depart from the tradition
of those who have been charged with formulating social policy
for the whole of human history. Every time an emperor or a king
1 commissioner Cusack concurs in this statement.
36
37
or a queen or a president or a parliament or a congress or a
legislature or a court has made a judgment affecting social
policy, this judgment as been made in the absence of absolute
guidance from the social sciences. The Constitutional Convent-
ion of 1787 had no experimental evidence to guide its decision
making. When the First Congress proposed the First Amendment in
1789 and when it was ratified by the states in 1791 and made a
part of the Constitution, the empirical social sciences had not
yet been conceived.
As in public policy, decision makers in medicine must
exercise their best judgment in the face of uncertainty, being
guided by science as far as it takes us, being guided by a
commitment to the well being of individuals and of society, and
being guided by sensitivity toward those situations in which the
best interests of an individual conflict with the best interests ;
of society. It is within this framework that I have tried to ;
make my own best judgments about pornography while serving on the \
Commission. At every step in our joint decision making, the
medical and public health consequences have been in the forefront
of my concerns. These consequences are not widely recognized,
for which reason I devote most of my personal statement to an
overview of these.
Before the Commissioners had even met one another, the
press had begun to suggest bias among the Commissioners and to
wave red flags of censorship. Now, before our report has even
gone to the printer, there have already been claims that we are
too liberal, that we are too conservative, that we have gone too
jar, that we have not gone far enough, that we have ignored
evidence showing how innocuous pornography is, and that we have
ignored evidence showing how destructive pornography is. In
short, there are those who have rejected our findings before the
report has even been issued, and I have no doubt many more will
do so in the future without having read it. Likewise, but for
somewhat different reasons, there will be those who accept our
findings without having read our report. This is equally risky.
Our report is meant to be read, and I encourage every adult in
America to do so before accepting or rejecting our findings.
The reader should be forewarned, however, that our report
contains offensive materials. Some readers will be offended by
quoted language, particularly the titles of magazines, books, and
films that we considered. But the offensiveness of some of the
quoted language is nothing when compared to the suffering
described by victims whose accounts are quoted in the
victimization chapter. This is not bedtime reading. As with the
practice of medicine, one must sometimes cause discomfort to
effect a cure, and it was our judgment that the public and the
truth would be best served by including certain discomforting
materials in the report.
I came to the Commission with personal views on pornography
which were based on intellectual and humanitarian concerns and on
certain noncontroversial ethical principles; the morality of
pornography was the farthest thing from my mind. Thus, I was
38 39
astonished to find that by the final meeting of the Commission,
pornography had become a matter of moral concern to me. While
other Commissioners may have learned things about the dark side!
of life that they had never known, I remembered something about
the higher purposes of life and of humanity's aspirations that I
had forgotten during too many years working on the dark side. i
therefore conclude my remarks with statements on morality and on
freedom that would have seemed foreign to me not many months ago.i
I. Pornography And Health
A. Abuse of Persons Used in Production
Pornography is a medical and public health problem because
people, particularly women and children, are abused in the
production of certain pornographic materials. People have been
beaten, forced to engage in sexual acts, held prisoner, bound and
gagged, and tortured for purposes of producing pornography. In
the course of these events they have been exposed to the risk of
acquiring sexually transmitted diseases. Some have been supplied
with narcotics. Of course, these crimes could have been prosecu-
ted in their own right, even if there were no obscenity or child
pornography laws. Moreover, the market for pornography is, after
all, but one of several motives for the commission of these
crimes, all of which also occurred before the invention of
photography. If these were the only adverse health consequences
of pornography, the most straightforward remedy would be
regulation of the pornography industry to assure safe and fair
labor practices. But these are not the only adverse health
consequences of pornography.
B. injurious Products
Pornography is a medical and public health problem because
pornographic retail outlets of the "adults only" variety sell
products under the pretext of health and recreation that are the
instruments of injury, both intentional and unintentional.
People have suffocated in bondage hoods. People have asphyxiated
and burned to death in handcuffs and bondage restraints. People
have been raped and lacerated with dildos. People have had
"sexual aid" devices entrapped in body cavities, requiring
extraction at hospital emergency wards. People have died from
orally ingesting volatile nitrites and have suffered cerebrovas-
cular injury from inhaling these same chemicals, sold as
aphrodisiacs under various pretext labels in these establish-
ments. People have been abducted and have been conned into
exiting their vehicles or allowing strangers into their homes
when offenders have shown them phony police badges, sold as
"novelties" in some of these establishments. People have been
robbed and put in fear of their life by offenders who have
wielded phony guns, also sold as "novelties" in some of these
establishments. If these were the only adverse health consequen-
ces of pornography, the most straightforward remedies would be
public education, regulation of some of these products through
food and drug law and others through criminal sanctions, and
tort actions by the injured against producers and distributors
of inherently dangerous products and products that were neglige-
40
41
ntly designed, marketed, labeled, and sold. But these are not
the only adverse health consequences of pornography.
C. Vice Centers
Pornography is a medical and public health problem because
pornographic retail outlets of the "adults only" variety are the
most visible service stations of the vice industry. The
peep-show booths, with their locking doors, are the self-service
pumps, as evidenced by the body fluids on their floors and walls.
The openings in the walls of the booths allow anonymous and
casual sexual contact, making it impossible to trace the donors
and recipients of sexually transmitted diseases. These
establishments draw muggers to a pool of victims who are somewhat
disinclined to report a robbery to the police. These
establishments signal members of the community and visitors that
full vice services may be available nearby through prostitutes
and drug dealers and, if not so directly available, are a phone
call away through the advertisements found in tabloids,
periodicals, and sex-for-sale guides. If these were the only
adverse health consequences of pornography, the most
straightforward remedy would be to prohibit retail sales except
through the mail. But these are not the only adverse health
consequences of pornography.
D. Sexual Disinformation
Pornography is a medical and public health problem because
so much of it teaches false, misleading, and even dangerous
information about human sexuality. A person who learned about
human sexuality in the "adults only" pornography outlets of
America would be a person who had never conceived of a man and
woman marrying or even falling in love before having intercour-
se, who had never conceived of two people making love in privacy
without guilt or fear of discovery, who had never conceived of
tender foreplay, who had never conceived of vaginal intercourse
with ejaculation during intromission, and who had never conceived
of procreation as a purpose of sexual union. Instead, such a
person would be one who had learned that sex at home meant sex
with one's children, stepchildren, parents, stepparents,
siblings, cousins, nephews, nieces, aunts, uncles, and pets, and
with neighbors, milkmen, plumbers, salesmen, burglars, and
peepers, who had learned that people take off their clothes and
have sex within the first five minutes of meeting one another,
who had learned to misjudge the percentage of women who prepare
for sex by shaving their pubic hair, having their breasts,
buttocks, or legs tattooed, having their nipples or labia
pierced, or donning leather, latex, rubber, or child-like
costumes, who had learned to misjudge the proportion of men who
prepare for sex by having their genitals or nipples pierced,
wearing women's clothing, or growing breasts, who had learned
that about one out of every five sexual encounters involves
spanking, whipping, fighting, wrestling, tying, chaining,
gagging, or torture, who had learned that more than one in ten
sexual acts involves a party of more than two, who had learned
that the purpose of ejaculation is that of soiling the mouths,
42 43
faces, breasts, abdomens, backs, and food at which it is always
aimed, who had learned that body cavities were designed for the
insertion of foreign objects, who had learned that the anus was
a genital to be licked and penetrated, who had learned that
urine and excrement are erotic materials, who had learned that
the instruments of sex are chemicals, handcuffs, gags, hoods,
restraints, harnesses, police badges, knives, guns, whips,
paddles, toilets, diapers, enema bags, inflatable rubber women,
and disembodied vaginas, breasts, and penises, and who had
learned that except with the children, where secrecy was
required, photographers and cameras were supposed to be present
to capture the action so that it could be spread abroad. If
these were the only adverse health consequences of pornography,
the most straightforward remedy would be to provide factually
accurate information on human sexuality to people before 'they are
exposed to pornography, if only we could agree on what that
information is, on who should provide it to the many children
whose parents are incapable of doing so, and on effective and
acceptable means by which to ensure that exposure not precede
education. In the absence of such a remedy, the probable health
consequences in this area alone are sufficient to support
recommendations that would reduce the dissemination of that
pornography which teaches false, misleading, or dangerous
information about human sexuality. And these are not the only
adverse health consequences of pornography.
E. Encouraging Social Behavior with Adverse Health Consequences
Pornography is a medical and public health problem because
it encourages patterns of social behavior which have adverse
health consequences. The person who follows the patterns of
social behavior promoted by pornography is a person for whom
love, affection, marriage, procreation, and responsibility are
absolutely irrelevant to sexual conduct. We do not need
research to tell us that such persons on the average contribute
more than other persons to rates of illegitimacy, teenage
pregnancy, abortion, and sexually transmitted diseases. If these
were the only adverse health consequences of pornography, the
most straightforward remedy would be to more effectively
encourage responsible sexual behavior, if only we knew how. In
the absence of such a remedy, the probable health consequences
in this area alone are sufficient to support recommendations that
would reduce the dissemination of pornography. And these are not
the only adverse health consequences of pornography.
F. Postering Attitudes with Adverse Health Consequences
Pornography is a medical and public health problem because
it increases the probability that members of the exposed
population will acquire attitudes that are detrimental to the
physical and mental health of both those exposed and those around
them. The social science evidence adequately demonstrates that
even in experimental samples of mentally stable male college
students, exposure to violent pornography leads to measurable,
negative changes in the content of sexual fantasies, attitudes
toward women, attitudes toward rape, and aggressive behavior
44 45
r~"i i
within the experimental setting. Analogous results of exposure ;
to nonsexual media violence have been well-documented for even ;
longer. Although too few experiments have clearly tested the j
effects of degrading pornography, there are suggestions in the [
few existing studies that exposure to degrading pornography has •
negative effects in the experimental setting, including eliciting
anxiety, depression, and hostility. Biographical accounts of
individuals go beyond the experimental evidence in attributing
changes in male sexual attitudes and demands to pornography,
including nonviolent pornography, and in documenting adverse
consequences to women and children of the behavior of these men.
Some of these accounts include persuasive examples of direct and
immediate imitation and of long-term modeling effects. Moreov-
er, the existing population-based evidence for the United States
shows a correlation between circulation rates of magazines
containing pornography (primarily of a nonviolent type) and
rates of reported rape in the fifty states during the same time
period, even after many other factors were statistically
controlled. In my opinion, we know enough now to be confident
in asserting that a population exposed to violent pornography is
a population that commits more acts of sexual brutality than it
otherwise would and to suggest somewhat less confidently that
the same is probably true of a population exposed to degrading
pornography. Even if these were the only adverse health
consequences of pornography, there would be no straightforward
remedies for these consequences short of reducing the exposure
o£ the population to violent and degrading pornography. And
these are not the only adverse health consequences of
pornography.
C. Instruments of Sexual Abuse
Pornography is a medical and public health problem because
it is used as an instrument of sexual abuse and sexual
harassment. Pornography of all types is used in the sexual abuse
of children to instruct them on particular sexual acts and to
overcome their resistance by showing them what adults do and by
intimidating them about the painful things that might be done to
them if they fail to comply. Pornography of all types is used to
instruct women in the sexual behaviors that men desire of them
but which they have "failed" to provide, forcing women who have
or see no other options to choose between the feelings of
inadequacy that accompany refusal and the feelings of
self-loathing that accompany compliance. Pornography of all
types is used to harass women in the workplace and to remind them
into whose world they are intruding, leading to feelings of
shame, disgust, and powerlessness. Even if these were the only
adverse health consequences of pornography, there would be no
straightforward remedies for these consequences short of reducing
the quantity of pornography in circulation. And these are not
the only adverse health consequences of pornography.
H. Presumed Corruption of Children
Pornography is a medical and public health problem because
it falls into the hands of children, who must be assumed
46 47
r
vulnerable to adverse mental health consequences unless and until
proved otherwise. Although experiments to test this assumption
pose potentially insurmountable ethical dilemmas, it should be
possible to design studies to examine the responses of children
who have been exposed to pornography in other ways, such as
negligent parental storage. Such studies would require
safeguards to protect the child against any further harm and a
suitable control group, such as children whose parents possess
pornography to which the children were not exposed. To date, the
effects of exposure on young children are unknown, but it would
be as imprudent to assume no negative health consequences of
pornography on children as it would to make such an assumption
about a drug that had not been properly tested. Even if the
assumed harms to exposed children were the only adverse health
consequences of pornography, there would be no straightforward
prevention or remedy for these consequences short of reducing I
the quantity of pornography in circulation. And these are not
the only adverse health consequences of pornography.
I. The Limits of Obscenity and Child Pornography Laws in
Reducing the Adverse Health Consequences of Pornography ;
The adverse health consequences of pornography are not j
i
limited to a single class of pornographic materials, though the j
various classes have differing health consequences. Most
importantly perhaps, the adverse health consequences of
pornography are not limited to materials that are legally
obscene or that violate child pornography law. Thus, existing
laws, even if enhanced and enforced as recommended in this
report, are insufficient to prevent the adverse health
consequences attributable to pornography. Obscenity law is
designed to suppress the offensive, but on medical and public
health grounds it would be more desirable to suppress the
harmful. To the extent that the obscene and the harmful overlap,
obscenity law is a powerful tool of health promotion. But if
the adverse health consequences of pornography are to be
minimized, strategies other than effective enforcement of
obscenity law and child pornography law will be necessary. In
addition to the strategies that increase the effectiveness and
enforcement of existing law, the nation's health requires a
creative search for countermeasures against the adverse health
consequences of non-obscene, non-child pornography, which will
inevitably survive law enforcement efforts directed against
obscenity and against child pornography. In this search, we must
inevitably come to terms with the need for appropriate sex
education.
The Commission report endorses citizen actions that could
help reduce the adverse health consequences of non-obscene,
non-child pornography, but the report is necessarily unclear on
the nature and extent of this class of materials. This lack of
clarity carries with it the risk that citizen action will be
misdirected. To the extent that citizens care to base their
actions against non-obscene material on its medical and public
health consequences, they will do more to promote health if they
48 49
insure that their efforts encompass violent and degrading
images, especially sexually violent and degrading images.
Unhealthy as some nonobscene pornography may be, it is not as
unhealthy as detective magazine covers depicting violence toward
a woman whose sexual characteristics are emphasized, horror
films depicting girls or women undressing moments before the
villain pounces upon them, or televised depictions of violence
toward alluring, glamorous, and wanton women. Like rape itself,
violent pornography is not so much about sex as about violence.
It is no distortion of the language to refer to violence, that is
not sexually explicit as pornography. The word "pornography"
derives from the Greek for the writings of prostitutes, and the
life of the prostitute is as much a life of violence as it is a
life of sex. If sexually stimulating materials that are nonviol-
ent, nondegrading, and nonobscene have beneficial health
consequences, the most important among them must be that they
distract attention from materials that are violent and
degrading.
jj_ Pornography And Morality 2
Acting as a whole, the Commission attempted to provide a
reasoned analysis of the permissible and desirable relationships
between government and the regulation of sexually explicit
materials, including the rights of citizens to take private
action. As a governmental body, we studiously avoided making
judgments on behalf of the government about the morality of
particular sexual acts between consenting adults or their
depiction in pornography. This avoidance, however, should not be
mistaken for the absence of moral sentiment among the
Commissioners.
I, for one, have no hesitation in condemning nearly every
specimen of pornography that we have examined in the course of
our deliberations as tasteless, offensive, lewd, and indecent.
According to my values, these materials are themselves immoral>
and to the extent that they encourage immoral behavior they
exert a corrupting influence on the family and on the moral
fabric of society.
Pornography is both causal and symptomatic of immorality
and corruption. A world in which pornography were neither
desired nor produced would be a better world, but it is not
within the power of government or even of a majority of citizens
to create such a world. Pornography is but one of the many
causes of immorality and but one of its manifestations.
Chairman Hudson, Commissioners Dobson, Lezar, Garcia
and Cusack concur in this section.
50 51
Nonetheless, a great deal of contemporary pornography constitu-
tes an offense against human dignity and decency that should be
shunned by the citizens, not because the evils of the world will
thereby be eliminated, but because conscience demands it.
III. Pornography And Freedom
When Andrea Dworkin challenged us to find the courage "to go j
i
and cut that woman down and untie her hands and take the gag out !
of her mouth, and to do something, to risk something, for her
freedom," I cried. And I still cry at that image, even as I j
write, because if we do not act with compassion and conviction
and courage for the hostages and victims of the pornographers we
do not deserve the freedoms that our founding fathers bequeathed j
us. It has been nearly two centuries since Phillipe Pinel struck
the chains from the mentally ill and more than a century since
Abraham Lincoln struck the chains from America's black slaves.
With this statement I ask you, America, to strike the chains from
America's women and children, to free them from the bonds of j
pornography, to free them from the bonds of sexual slavery, to !
free them from the bonds of sexual abuse, to free them from the
bonds of inner torment that entrap the second-class citizen in an :
otherwise free nation.
APPENDIX
To elucidate one example of the types of material that are
probably not obscene under the Miller test but which should be
high on any list of media depictions posing risks to health, I
append an article that I coauthored, with appreciation to the
journal of Forensic Sciences in which it was published and the
American Society for Testing and Materials which holds the
copyright for permission to include it here.
52 S3
1
Park Elliott Dietz,' M.D., M.P.H.. Ph.D.; Bruce Harry.2 M.D.; and
Robert R. Hazelwood.3 M.S.
Detective Magazines: Pornography
for the Sexual Sadist?
REFERENCE! Dietz. P. E., Harry, B., Hazelwood, R. R., "Detective Maiazlmai Pornography
lor th* Sexual Sadbt?" Journal of Forensic Sciencts, IFSCA. Vol. 31, No. 1, Jan. 1986, pp.
197-211.
ABSTRACT: The origins of detective magazines can be traced to 17th and 18th century crime
pamphlets and to 19th century periodicals that Lombroso called "really criminal newspapers." Con-
tent analysis of current detective magazines shows that their covers juxtapose erotic images with
images of violence, bondage, and domination; that their articles provide lurid descriptions of mur-
der, rape, and torture; and that they publish advertisements for weapons, burglary and car theft
tools, false identification, and sexual aids. Six case histories of sexual sadists illustrate the use of
these magazines as a source of fantasy material. We postulate that detective magazines may con-
tribute to the development of sexual sadism, facilitate sadistic fantasies, and serve as training
manuals and equipment catalogs for criminals. We recommend that detective magazines be con-
sidered during policy debates about media violence and pornography.
KEYWORDS; psychiatry, criminal sex offenses, deviant sexual behavior, detective magazines,
sexual sadism, pornography, criminal behavior, sexual homicide
A class of popular periodicals known as "detective magazines" has apparently eluded the
attention of researchers and commentators concerned with media violence and pornography.
These magazines provide factual accounts of crimes and criminals, and are thereby distin-
guished from mystery fiction. They rarely contain photographs of nudes, and are thereby
distinguished from those publications that most individuals casually refer to as erotic, porno-
graphic, or obscene.
In this paper, we review the historical roots of these detective magazines, report data on the
content of current detective magazines, present six case histories in which detective magazines
were a source of fantasy material, and discuss the possible psychiatric and criminologic signifi-
cance of detective magazines.
We postulate that detective magazines serve as pornography for sexual sadists. The works of
the Marquis de Sade and his literary disciples, though known outside the literati, are too
An earlier version of this paper was presented by the authors in a panel entitled "Bloody Instructions:
Intolerable Crimes in Mass Market Magazines" at the Annual Meeting of the American Academy of
Psychiatry and the Law, New York, NY, 24 Oct. 1982. Received for publication 6 May 1985; accepted forpublication 31 Ju|, 1905.
Associate professor of law and of behavioral medicine and psychiatry and medical director, Institute
of Law. Psychiatry and Public Policy. University of Virginia Schools of Law and Medicine, Char-Wtesville. VA.
Assistant professor of psychiatry and adjunct assistant professor of law. University of Missouri—
Cohimbia. Columbia, MO.
Supervisory special agent and instructor, Behavioral Science Unit, FBI Academy, Quantico, VA.
55
198 JOURNAL OF FORENSIC SCIENCES
erudite and too remote in setting from everyday life to appeal to the sexual sadist of average in-
telligence and educational level. In contrast, detective magazines depict and describe sadistic
acts in familiar settings, using the imagery and language of tabloid newspapers. This class of
periodicals receives little commentary in comparison with those that are considered obscene or
pornographic on the basis of their explicit use of erotic imagery. Detective magazines charac-
teristically pah- violent and sadistic images with erotic images, yet are more accessible for pur-
chase by young persons than are magazines that depict naked bodies.
The Origins and Readenhlp of Detective Magazine!
Periodicals reporting crime are thought to have originated in 17th century England [/].
Crime pamphlets and related publications appeared at a time when oral renditions of crime
were still provided by street merchants for a fee. Around 1864, Mayhew described "death
hunters" and "running patterers" who were paid to shout out stories of crimes [2], Death
hunters went to the scenes of murders and reported on the details of the killings; running pat-
terers fabricated or embellished the stories of infamous crimes. Mayhew also described "cara-
van shows," a form of "peep show" in which carts containing a miniature stage, curtains, and
scenery were used by puppeteers to reenact infamous murders [3\.
Crime pamphlets flourished throughout 18th century England and appeared in America
during the last half of that century. By the middle of the 19th century, as British and American
journalists embraced sensationalism [4], the chaotic relationship between crime and law en-
forcement |5] found its natural literary outlet. Gradually, newspapers and crime magazines
began to replace other forms of information about crime.
The first financially successful American crime magazine was The National Police Gazette,
which appeared in 1845 \6}. This magazine was highly celebrated, and at least 22 related mag-
azines followed in its wake [7-9). The Gazette survived well into the 20th century. We ex-
amined all issues of the National Police Gazette from its first year of publication. Initially, it
featured stories of actual crimes and made modest use of woodcut illustrations. There were
many advertisements for home remedies, sexual enhancement and augmentation prepara-
tions, trusses, clothing, hats, boots, jewelry, guns, and "cheap" books. By the late 19th cen-
tury, the Gazette was printed on pink paper and had detailed illustrations of shootings, stab-
bings, hangings, and debauchery, as well as graphic descriptions of bareknuckle boxing,
wrestling, and cockfights. Advertisements offered revealing photographs of women; treat-
ments for venereal diseases, impotence, and "self abuse"; and the services of lawyers and de-
tectives. The Gazette was "for some years the most widely circulated of weekly journals" I/O].
The Gazette's decline began around 1920, and "modem" detective magazines appeared by
1924. They were quickly assessed as having virtually no cultural value [II. 12], and they prolif-
erated. More than 20 are currently published on a regular basis. Four detective magazines for
which data were available had a combined monthly circulation of 9% 000 issues in about 1980
[13].
Otto examined eleven detective magazines as part of a larger study of newsstand magazines
in the 1960s and found that they offered the most sexual and nonsexual violence of all general
circulation magazines, even though his data excluded advertisements and covers [14]. Report-
ing on the content of two detective magazines, Lyte noted that "the stories in general are fairly
explicit in describing what kind of violence was committed, how it was done, and to what ef-
fect" 1/5). Beattie studied one issue each of Official Detective and True Detective as part of his
study of mass market magazines and concluded that detective magazines were among those
with the most violent content [16].
The readership of detective magazines has not been identified. Lazarsfeld and Wyant in-
cluded 1 detective magazine in their study of reading habits in 90 American cities [IT], but
their statistical analysis excluded the genre. Freidman and Johnson surveyed media use among
"aggressive" and "nonaggressive" eighth and ninth grade boys, 20% of whom read "crime
56
DIETZ ET AL • DETECTIVE MAGAZINt- d
and detective magazines"; differences between the two groups in amount and type of maga-
zine reading were not significant [M\. In contrast, Lyle and Hoffman reported that 9% of a
sample of sixth grade boys and girls, and 6 and 7%, respectively, of a sample of tenth grade
boys and girls, preferred to read "detective/mystery" magazines 1/9). Whether these data re-
fer to such magazines as Alfred Hitchcock's Mystery Magazine and Ellery Queen's Mystery
Magazine or to the detective magazines considered here is not known. Thus, there is no audi-
ence whose rate of use of detective magazines is known.
The Content of Detective Magazine!
Detective magazines are readily available at newsstands, drugstores, supermarkets, con-
venience stores, and elsewhere. One copy of each detective magazine issue available on a single
day at ten suburban Boston stores was purchased and studied in detail. The mean purchase
price was SI. 11; the range was from $0.95 to $2.50. These magazines generally were displayed
along with women's, "confession," and children's magazines, usually adjacent to adventure
and gun magazines, and always on a different rack from espousedly erotic men's magazines.
We have subsequently confirmed these observations regarding display patterns in stores in
Charlottesville, VA; Chicago, IL; Columbia, MO; Houston, TX; Kansas City, MO; Los Ange-
les, CA; New York, NY; St. Louis, MO; Washington, DC; Toronto, Ontario, Canada; and
Melbourne, Victoria, Australia.
Nineteen detective magazine issues, representing eighteen different titles from six publish-
ers, were studied. They were: Detective Cases, Detective Diary, Detective Dragnet. Detective
Files. Detective World. Front Page Detective. Guilty! The Best from-True Detective. Head-
quarters Detective, Homicide Detective. Inside Detective. Master Detective. Offical Detective
Stories, Police Detective (two issues). Real Detective. Startling Detective. True Detective.
True Police Cases, and True Police Yearbook.
We analyzed several aspects of the content of these 19 issues. First, we analyzed the violent
and sexual imagery in photographs used for front covers, article illustrations, and commercial
advertisements. Second, we analyzed the words expressive of violence and sexuality used in the
titles of articles promoted on the front covers and listed in the tables of contents. Third, we an-
alyzed the textual content of articles for descriptions of violent and sexual behavior. For this
third purpose, a stratified, random sample of 38 articles was selected (2 articles randomly se-
lected from the signed articles in each issue). The results of these content analyses are pre-
sented in the following sections.
Illustrations
The covers of the 19 magazines bore 21 photographs. The most common image on front
covers was that of a woman in an inferior or submissive position. Seventy-six percent of the
cover photographs showed domination and submission imagery. Men dominated women in
71% of cover pictures, while women dominated men in 5%. Some pictures showed a woman
atone in a submissive or subjugated position. Bondage was depicted in 38% of the cover pic-
tures, and all of the bound subjects were women. Ropes, chains, handcuffs, and cloth were
used to achieve this bondage with 'equal frequency. In order of decreasing frequency, other re-
petitive cover imagery included violent struggles, brassieres, guns, accentuated breasts, stran-
gulation, corpses, blood, and knives or other cutting instruments. Table 1 shows the percen-
tages of each type of image in covers, articles, and advertisements.
In contrast to the cover photographs, the illustrations accompanying articles most often pic-
tured buildings or other«ttings and conventionally dressed people. Law enforcement person-
nel were often shown processing a crime scene or working at a desk; they were always men.
Violent and erotic imagery was much less prevalent in article photographs than in cover photo-
graphs. Whei.. it did occur, the most prevalent form was domination and submission imagery.
57
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200 JOURNAL OF FORENSIC SCIENCES
TABLE \-Perceniages of photographs depicting particular types of images in
detective magazine coven, articles, and advertisements.
Images
Bondage and domination
imagery
bondage
domination
Struggles
strangulation
other violent struggles
Weapons
gunsknives or other cutting
instruments
blunt instruments
bombs
saws
other weapons"
Sadistic imagery
corpses
blood
mutilation/slashing
Body parts
breasts accentuated
buttocks accentuated
genitajs
Clothing
brassiere
negligee
panties
other "erotic" clothing*
Sexual behaviors
intercourse'
masturbation
crossdressing
Covers
(N = 19)
38
76
14
29
29
14
5
S
5
0
14
14
0
24
5
0
29
5
0
0
0
0
0
Articles
(N = 891)
5
36
0.6
2
4
0.7
0.8
0.1
0
1.5
3
1
0.3
1
0.2
0
1
2
2
1.5
0.1
0
0.2
Advertisements
(N = 926)
0.1
0
0
3
6
2
2
0
3
0.1
0
0
0
3
2
2
3
0
4
3.1
3.2
1
0.1
"Includes fire, whips, gas chambers, gallows, and brass knuckles.
''Includes stockings, garters, hoods, exaggerated shoes and boots, and constrictive
waist garments.'Includes heterosexual and homosexual genital intercourse, fellatio, cunnilingus.
and anal intercourse.
Men dominated women in 5% of the article pictures, and women dominated men in less than
1%. Individuals were most often bound with ropes or handcuffs, less commonly with leather,
chains, or cloth.
In illustrated, commercial advertisements (that is, excluding classified advertisements), po-
tential weapons such as guns, knives, blunt instruments, or saws were depicted slightly more
often than body adornments such as panties, brassieres, or stockings. The guns, knives, and
blunt instruments were for sale. The saws appeared in advertisements offering instruction in
sharpening saws. Undergarments most often appeared in the illustrations of advertisements
for other merchandise.
Seventy-three advertisements in our sample promoted enhancement of sexual control, ap-
peal, or function. Detective or law enforcement training was advertised in 68. Fifty-nine pro-
moted "official" photographic identification cards, police badges, or other means of certifying
identity. Mind control techniques were offered in 35 advertisements. Female wrestlers were
depicted in 18, and male wrestlers in 9. Most issues had advertisements for mail-order brides,
DIETZ ET AL • DETECTIVE MAGAZINES '201
lonely hearts clubs, "locksmith training," and equipment for picking locks, opening car
doors, duplicating keys, and building handgun silencers.
Titles and Text
*The titles of articles are similar in construction and terminology among detective maga-
zines. Compare, for example, the titles from two magazines published two years apart by two
different publishers: "A TRUNK-FULL OF FLESH"; "CANADA'S NUMBER 1 MURDER
MYSTERY"; "MURDER BY FREIGHT TRAIN"; "ANNA TOOK THE BLADE 90
TIMES!"; "SEX COPS DEATH CHAMBER"; "IT TAKES A COP"; "OLD FRIEND-
SHIPS DIE EASY WITH A .38"; "PORTLAND'S BLOODY SUMMER"; and "TOR-
TURE-SLAYER OF ELTORO" (Startling Detective, Vol. 73, No. 3, May 1983, published by
Globe Communications Corp.); "SATANIST SMILED AS HE SNUFFED THE SNITCH!";
"ROAST A FAMILY OF SIX!"; "BULLET BARRAGE KO'D THE BOXING REFI";
"WHO LEFT THE NAKED MAN'S HEAD SOAKED IN GORE?"; "THE HOLY VAM-
PIRE DRANK HIS VICTIM'S BLOOD!"; "WHO BLEW THE BICKERING COUPLE
AWAY?"; "WEIRD FETISHES OF WASHINGTON'S RAPE-SLAYER!"; " 'HE WAS
PLAYING HERO, SO I SHOT THE S.O.B.!' "; "ORDEAL OF THE KIDNAPPED GIRL
IN THE PIT!"; and "LETHAL LESSON: NEVER MESS WITH A MARRIED MAN!"
(front Page Detective, Vol. 48, No. 5, May 1985, published by RGH Publishing Corp.).
The magazine covers gave the titles of 77 of the 186 articles listed in the tables of contents.
Table 2 shows the percentages of words about particular themes on the covers and in article
titles. Words describing various forms of killing were most prevalent and included "kill,"
"murder," "execute," "slay," and "hit-man." Roles described included "stranger," "lover,"
"victim," "bride," "dame," "whore," "slut," "gigolo," and "mistress." Descriptors of men-
tal states and traits included "crazy." "mad," "maniac," "greed," "treachery," "lust," and
"hang-ups." Death-related words included "dead," "body," "corpse," "graveyard," "ceme-
tery," "coffin," and "bloodthirsty." While law enforcement words such as "detective," "po-
lice," "crime," "case," and "cop" appeared in the names of every magazine, they were less
commonly used in article titles. Sexual terms such as "rape," "gay," "drag," and "sex" made
up the next most prevalent category. As can be seen in Table 2, the rank order of themes Identi-
fied in article titles in the tables of contents was nearly identical to that for articles listed on
covers.
In the 38 articles sampled for analysis, there were 40 killings. Fifteen involved torture, and
the other twenty-five were less protracted murders of helpless victims. There were 44 episodes
TABLE 1—Percentages of detective magazine article titles
mentioning particular themes.
Theme
Killing
Role.Mental state
Death
Law enforcement
Sex
Strangulation
Weapons
Mutilation
Relentless pursuit
SCC IT t lOCBtlOflLife
On Cover
(W= 77)
38
36
34
30
25
19
9
9
6
6
5
3
In Table of Contents
(N = 166}
32
24
16
15
10
14
5
5
4
3
3
2
58
"8-315 Vol. 1, o - 86 - 3
59
( f
202 JOURNAL OF FORENSIC SCIENCES
of sexual violence (including 13 sexual mutilations), 14 robberies, and 3 burglaries. The inci-
dents described included SO shootings. 40 stabbings, 14 strangulations, 10 episodes of being
bound and gagged, 7 bludgeoning*, 3 burnings, 1 poisoning, and 1 electrocution.
Personal characteristics of victims and perpetrators were usually specified, adding to the
credibility of the articles. Forty-seven perpetrators acted against ninety-eight victims. The of-
fenders included 43 males and 4 females; the victims were 42 males and 56 females. When age
was mentioned, offenders were usually between IS and 35, while their victims were usually
either 15 to 25 years old, or older than 46. Of the cases identifying race, 12 of 35 offenders and 4
of 44 victims were black. Twenty perpetrators were described as having been previously en-
gaged in criminal activity, and seven were noted to have a history of psychiatric disorder. Five
of the offenders were killed during gun battles with police, and all others went to trial. The in-
sanity defense was raised in 13 trials, but only 1 defendant was acquitted by reason of insanity.
The death sentence was given five times; three prisoners had been executed when the articles
were written. Twenty-two victims were strangers, twelve were friends or acquaintances, and
nine were lovers. Two male victims were noted to have been homosexual, and at least seventeen
female victims were prostitutes. Men were killed, but virtually never sexually molested; women
were almost always sexually attacked before being killed.
Many of the articles contained detailed descriptions of violent acts. Colorfully explicit de-
scriptions of wounds and crime scenes were universal. Stalking or surveillance of the victim,
methods of investigation, investigative reconstruction of the events, and crime laboratory work
were commonly described. Networks of informants played a pivotal role in almost all investiga-
tions, and extensive media publicity was emphasized. Arrests tended to be rapid and overpow-
ering. Extensive coverage was afforded to trials, verdicts, and sentences. Many articles ended
by reporting a substantial prison sentence and reminding the reader that the offenders, or
others like them, were still at large or might soon be.
Caw Reports
The following six case histories illustrate how detective magazines are used as a source of
fantasy material. The facts are drawn from investigative files submitted to the FBI Academy
Behavioral Science Unit (Cases I, 5, and 6) or from case files developed in the course of fo-
rensic psychiatric evaluations (Cases 2,3, and 4). Cases 1 and 2 depict multiple murderers who
enjoyed detective magazines. The offender in Case 3 used detective magazines during mastur-
bation, but reportedly never acted out his most extreme fantasy scenarios. The pedophile in
Case 4 used detective magazines to facilitate his masturbation fantasies and may have begun to
act out those fantasies. The offender in Case 5 used detective magazines in the commission of
his offense. Case 6 describes the victim of an autocratic fatality, who used detective magazines
in the course of acting out his fantasies.
Cast I
A multiple murderer of the late 1950s had a collection of the covers of detective magazines.
He told police investigators that he liked detective magazines "sometimes for the words, some-
times for the covers."
He approached two of his victims on the pretext that he wished them to model bondage
scenes for detective magazines. In his statement to the investigating officers he said:
I told her that 1 winted to take pictures that would be suitable for Illustrations for mystery stories or
detective magazine stories of that type, and that this would require me to tie her hands and feet and put
a gag in her mouth, and she | was] agreeable to this, and 1 did tie her hands and feet and put a gag In her
mouth and 1 took a number of pictures, I don't remember exactly how many, of various poses and
changing the pose from picture to picture.
OIETZ ET AL « DETECTIVE MAGAZINES 203
He acknowledged that he never had any intention of submitting the photographs for publica-
tion, and added that he was impotent in the absence of bondage.
Coat 2
A 35-year-old, married, white man was charged with approximately a dozen murders in sev-
eral states.
He had never known his father, who had been executed for murdering a police officer and
who also had killed a correctional officer during an escape. Shortly before being executed the
father wrote: "When I killed this cop, it made me feel good inside. 1 can't get over how good it
did make me feel, for the sensation was something that made me feel elated to the point of hap-
piness ..." He recalled his grandmother showing him a picture of his father and telling him
that his father had been a heroic firefighter. Later, he teamed that the photograph was from a
detective magazine article about his father's murders and execution. Often told of his resem-
blance to his father, he came to believe that his father lived within him.
His mother was married four times and also had a series of short-term extramarital sexual
partners. She frequently told her son that she had been raped by her father when she was nine.
She ridiculed her son's bedwetting, which persisted to age 13, by calling him "pissy pants" in
front of guests; he was also beaten for the bedwetting and for night terrors. For as long as he
could recall he had had recurrent nightmares of being smothered by nylon similar to women's
stockings and being strapped to a chair in a gas chamber as green gas filled the room. One of
his stepfathers beat him relentlessly. For leaving a hammer outside, he was awakened by this
stepfather burning his wrist with a cigar, which left a permanent scar. For playing a childish
game while urinating, he was forced to drink urine. On the one occasion when his mother in-
tervened, the stepfather pushed her head through a plaster wall. From then on she also actively
abused her children from the earlier marriages.
Knocked unconscious on multiple occasions, he was once briefly comatose at age 16 and for
over a week at approximately age 20. A computed tomography (CT) scan of the brain showed
abnormally enlarged sulci and slightly enlarged ventricles. Results of the Halstead-Reitan
Neuropsychological Battery and the Luna-Nebraska Neuropsychological Battery were inter-
preted as showing damage to the right frontal lobe.
As a juvenile, he had police contacts for vandalism, malicious acts, running away, and mul-
tiple burglaries (beginning at age seven in the company of an older brother). Apprehended for
lewd contact with a 7-year-old girl at age 13, he was sent to reform school for a year. He was
suspended from high school for misconduct and poor grades. At age 16, he was arrested for
armed robbery, escaped, and later turned himself in to authorities.
At age 18, 2 weeks after the birth of his first child, he married the child's mother. Despite
subsequent arrests for armed robbery, beating his wife, assault, burglary, auto theft, theft,
parole violation, and other offenses, he was awarded custody of his daughter after divorcing
his first wife. His second and third marriages ended in divorce after he beat his wives, and his
fourth marriage ended in divorce for unknown reasons.
After many more arrests and * jail escape, he was eventually sentenced to prison on an
armed robbery conviction. He initiated sexual contact with his seven-year-old daughter during
a conjugal visit on the prison grounds. Prison records from his early 20s document a psychotic
episode with paranoid delusions and suicidal ideation following the death of a brother. After
he was paroled from prison he impregnated one woman and married another (his fifth wife).
He separated from her after he was released from parole. His second through fifth wives ap-
peared young enough to pass as teenagers.
In his early 30s, he lived as husband and wife with his 13-year-old daughter, whom he im-
pregnated. The pregnancy was aborted. He continued to molest his daughter, who reported
one of his rapes. He also sexually assaulted one of her girlfriends. He celebrated one of his
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204 JOURNAL OF FORENSIC SCIENCES
birthdays by sodomizing his then 14-year-old daughter. Eventually she moved to her grand-
parents' home, and he began living and traveling with another woman, who became his sixth
wife and his partner in a two-year series of rapes and murders.
His wife knew of his fantasies of torturing young girls and his desire for women he could con-
trol and abuse, and she assisted him in each of his known murders by selecting the victim, or-
chestrating the abduction, and concealing the evidence. He beat, tortured, and raped his vic-
tims, whom he forced to play the role of his daughter in fantasy scenarios that he directed.
Available data suggest that he killed his victims to avoid detection and not because the killing
gave him sexual pleasure.
His early victims were all teenage girls; his later victims included adults. After his initial
murders, he again raped his daughter and her friend. They reported these offenses, and an ar-
rest warrant was issued. The offender changed his identity, as he had on previous occasions,
using falsified identification papers. A gun enthusiast, he bought and sold various firearms;
shortly before his last arrest, he possessed two revolvers, an automatic pistol, a derringer, and
a semiautomatic assault rifle. Those victim's bodies that have been located showed death by
gunshot wounds or blows to the head. Some of the bodies were still bound.
Masturbation he regarded as shameful, dirty, and unmanly. The first sexually explicit pic-
tures he could recall having seen were photographs of his mother with a man he did not recog-
nize. Although familiar with sexually explicit men's magazines, he had never been to an adult
book store or an X-rated movie "because I didn't want anybody to think I was in that
category." He considered The Exorcist and Psycho influential in his life. In speaking of sexual
deviations, he referred to "sadism-maschotism" [sic], but noted that this did not apply to him:
"... sadism-masochism is where you like to be hurt while you hurt, and I don't think that's it.
Maybe one half of it, cause I think I've been hurt enough." The imagery characteristic of
bondage"and domination pornography disgusted him: "That ain't me The ball in the
mouth, the excess rope, I think what they've done is taken a fantasy and overdo it. The mask
makes somebody look like out of Mars — You're in a room and a girl walks out with a rubber
suit or whip and she's subject to get shot." Asked about the covers of detective magazines, he
responded by saying that they are what he really likes and that the interviewer seemed to read
his mind, asking questions that allowed him to say what he was already thinking.
When he was 14, he learned that his fugitive father had been caught because his mother had
told the police his whereabouts. After reporting this, he stated: "Sometimes I [think] about
blowin' her head off Sometimes I wanta' put a shotgun in her mouth and blow the back of
her head off ..." For years, his favorite sexual fantasy was of torturing his mother to death:
I was gonna' string her up by her feet, strip her, hang her up by her feet, spin her, take a razor blade,
make little cuts, just little ones, watch the blood run out, just drip off her head. Hang her up in the
closet, put airplane glue on her, light her up. Tattoo "bitch" on her forehead ...
This fantasy gradually changed and came to include forced sexual activity and other forms of
abuse and torture. After his first wife left him, she replaced his mother in the fantasy; eventu-
ally their daughter replaced her.
Case 3
A 35-year-old, single, white man was charged with unarmed robbery. He had had several
psychiatric hospitalizations, each time receiving a diagnosis of chronic undifferentiated
schizophrenia. He was suspected to have committed the current act to gain readmission.
He left school after the ninth grade and never worked. He admitted to bouts of heavy alcohol
consumption, but denied using other drugs. He had been arrested previously for threatening
the President, attempted strong-arm robbery, and attempted bank robbery. He admitted sev-
eral indecent exposures and burglaries for which he had not been arrested. During the burg-
laries he had taken food and worm i's underclothing, searched bureau drawers, and torn up
62
DIETZ ET AL • DETECTIVE MAGAZINES «O5
clothes. He also admitted to "peeping" and several episodes of crossdressing, donning panties,
slips, dresses, and lipstick. On several occasions he had entered houses when the occupants
were'away and left notes threatening to kill them if they did not leave things for him to take. He
denied urinating or defecating in these houses, although he had once thrown a litter box con-
taining cat feces. He had also once tried to steal explosives.
At age ten he had engaged in sexual play with his sister and a niece; there had been at least
one episode of intercourse. After he quit school at age 16, he lived briefly with a 14-year-old girl
who became pregnant and miscarried. At some point thereafter he began having fantasies of
forced vaginal intercourse, sucking and biting on breasts, and mutual oral sexual activity. He
described subsequent enchantment with pornography depicting these activities and dated his
first contact with detective magazines to approximately the same time.
By his mid-20s, his masturbatory fantasies were of lying on a woman, tying her with heavy,
electrical wire, having intercourse with her. killing her by blows and strangulation, and then
attacking her genitalia. He said that the detective magazines had not caused these fantasies,
adding, "I had 'em before but the [detective] magazines bring them out." By his late 20s, he
was having fantasies of mutilation, smearing and drinking blood, and continuing intercourse
after his victim's death. He also had recurrent dreams of being a "bloodthirsty murderer."
He stated that he preferred masturbating while looking at the covers and contents of detec-
tive magazines. He regarded detective magazine photographs as the best match to his current
sexual fantasies and as his most important source of sexual pleasure. He said he masturbated
in his bathroom with detective magazine covers and pictures from explicitly erotic magazines
so positioned that he could see himself and the pictures in a mirror. He particularly liked pic-
tures in which women "look like whores," and he masturbated to orgasm while fantasizing
about "killing whores."
He claimed neverto have acted out his most extreme fantasies, but he believed that he might
be "losing control over them." He admitted to having had intense "sexual thoughts" during
the unarmed robbery, to "enjoying touching, feeling panties and bras," and to excitement at
thoughts of women struggling.
A detailed review of his records uncovered no documentation of symptoms or signs of schizo-
phrenia. He admitted to having feigned mental illness so that he could be stopped from acting
out his fantasies.
Case 4
A 20-year-old, single, black man with no previous criminal record but several psychiatric
evaluations was incarcerated for sexually molesting children. At least three complaints had
been lodged previously against him without formal charges being filed.
He stood charged with two sexual assaults against prepubescent girls. In the first incident he
asked a girl to go with him, claiming that a friend wanted to speak with her. He grabbed the
girl, pulled her pants down, and fondled her genitals until someone appeared, when he fled.
The second incident was similar, although reportedly more forceful, with the victim resisting
more aggressively. He fled when the victim bit him. He denied any sexual contact with his vic-
tims, but did say that in one offense against a girl he "kept hitting until she was unconscious; I
thought she was dead."
His father had been rarely present, and the family was on welfare. One of his brothers was
said to be mentally retarded and institutionalized. He claimed to have had good relationships
with family members and to have had friends. He completed ninth grade with below average
grades; the school authorities had wanted him placed in special education classes, but his
mother had refused. He was never married, had no military history, and worked intermittently
in unskilled jobs. He acknowledged moderate use of alcohol and marijuana, but denied using
other drugs.
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206 JOURNAL OF FORENSIC SCIENCES
During the screening psychiatric interview he denied any symptoms suggestive Of a psy-
chotic illness. He claimed his present offenses occurred because he was "too scared to ask out
women." Fearing that older women might reject him and tell him he was "too young, just a
kid, and I can't handle that," he felt anger toward older women, "like I want to kill them." He
admitted to daydreams about "beating them up" followed by intercourse. His masfurbatory
fantasies involved bondage in which the hands of the women were tied behind their backs,
their mouths gagged, and their legs tied to bedposts. He denied masturbatory fantasies involv-
ing other physical injury. He also denied crossdressing. He believed he would never act on his
masturbatory fantasies: "I just couldn't see myself doing something like that; not if she don't
do as I tell her. If 1 get mad I start tearing up stuff, but not kids; 1 like kids. If 1 had kids I
wouldn't want someone doing that to them." He claimed his fantasies involved "mostly white
girls" ages 12 to 13.
He said that he frequently used visual media to stimulate his masturbatory fantasies. His
favorite images involved women wearing undergarments, such as brassieres and panties, or
two-piece bathing suits, which he commonly found on detective magazine covers, but added
that he found detective magazines less appealing than traditional pornography.
Cote 5
A 34-year-old, white woman received a telephone call from a man claiming to represent a
manufacturing firm that had developed a new line of brassieres and was conducting a market-
ing survey in her area. She was invited to participate in the survey. She would be sent six free
bras to wear for six months, when she would be asked to complete a questionnaire as to their
comfort, durability, and washability. She agreed and provided her bust measurements to the
caller.
Approximately seven months later, the same man called the second time and said that he
would like to deliver the bras to her home. She asked that he call back in a few days as she
wanted to discuss the matter with her husband. When he rang, she told him that she had de-
cided not to participate in the survey. He responded, "I don't want to have intercourse with
you, I just want to deliver the bras." She hung up immediately.
Five months later, upon receiving a package in the mail which contained four sketches de-
picting her bound, in various stages of undress, she notified the police. Shortly thereafter, the
man called again, asking for her opinion of the sketches.
A second package containing four sketches similar to the first ones arrived about four
months later, again followed by a telephone call. During this conversation, the man requested
that she meet him and said he would call again to arrange the meeting. He also described the
wallpaper pattern in her bathroom. He used no profanity in the telephone conversations.
Approximately four months later he called for the sixth time, requesting a meeting. She
hung up on him. Within days came another call during which she agreed to meet him at a
shopping center near her home. She notified the police, who arranged surveillance. After wait-
ing in vain for 45 min at the appointed location, she talked with the surveilling officers and
drove home.
The following month, the man called and accurately described her movements at the ren-
dezvous and her return home. He requested that she deliver two of her bras to a designated
Salvation Army clothes bin. Again she notified the police and a surveillance of the drop site was
arranged; however, the offender was able to pick up the bras undetected by entering the
clothes bin from an opening in the rear. Shortly thereafter, she received a third package con-
taining her bras, two pictorial pages, an advertisement page, and a cover from a detective mag-
azine. The bras had semen stains and handwriting on them. The magazine cover and the pic-
torial pages each showed a woman being threatened by a man holding a knife; her name was
written above the women and the word "me" was written above the men. The advertisement
DIETZ ET AL • DETECTIVE MAGAZINES 207
was for Nazi paraphernalia. One month later he rang to ask what she thought about the
package.
That same month, she received a letter containing polaroid photographs of a white male,
nude except for a ski mask, masturbating in a hotel room. The letter said that he had rented
the room, intended to kidnap her, and had bought rope with which to bind her and a camera
with which to take pictures of her performing various sexual acts. He called her again shortly
after she received the letter. The eleventh and final call came one month later.
From the photographs the police were able to identify thx hotel, where they found that he
had registered under his real name. He was later arrested, convicted, and sentenced to one
year in jail. At the time of his arrest, the police seized a folder containing 30 detective magazine
covers that depicted women in potentially lethal situations.
Case 6
A 30-year-old white man was discovered dead in his apartment. He was partially suspended
in a doorway by a length of plastic clothesline which encircled his neck twice with a knot on the
right. The clothesline went up to and through an airspace above the door and was affixed to a
hinge beside the victim. His arms hung at his sides, and his feet touched the floor. A pair of
wire cutters and more clothesline were found on a washing machine in the apartment. He wore
eyeglasses, a brassiere, jockey shorts, and black calf-length socks.
Propped up on a stand directly in front of him was a detective magazine cover which de-
picted a man strangling a young woman who wore a black brassiere. Two lingerie advertise-
ments taped to a nearby wall showed a woman from the waist up who wore only a brassiere and
a woman wearing a brassiere and a panty girdle. A nearby phonograph was on, and the first
song on the record was "Barbie Ann." An album cover lying beside the phonograph had a pic-
ture of a man with two young women wearing halter tops.
The decedent's wife, Barbara, had been separated from him for four months; she and their
only child had moved to another state. He had appeared to be in normal spirits during a visit
with his parents six days earlier. A friend with whom he had played pool on the evening before
his death and who was the last person to see him alive described him as having been in good
spirits at the time of their parting.
The death was ruled to be an accident occurring during autocratic activity. The decedent's
attire and visual props suggest a brassiere fetish, while the detective magazine cover in front of
him depicting the sexual murder of a woman wearing a brassiere suggests that he entertained a
sadistic fantasy that he had been enacting with his own body. The object of his fantasies may
have been his wife. (This case has been reported in less detail elsewhere 120].)
Dbcntlon
Detective magazines juxtapose conventionally erotic images (for example, pictures of scant-
ily clad women or descriptions of sexual acts) with images of violence and suffering. Detective
magazines are not the only source for this combination of images; many recent horror films,
crime films, and rock video productions have similar characteristics. One study found that
bondage and domination was the primary theme of 17% of the magazines sold in "adults only"
bookstores [21]. Unlike these magazines, however, detective magazines, being inexpensive
and available on many newsstands, have a large circulation. They are always openly displayed,
unlike magazines showing nonviolent nudity, and there is no effort to discourage sales to
minors.
The cases reported-in this paper show that some readers who use detective magazines as
sources of sexual fantasy material also act on their fantasies. MacCulloch et al [22] have de-
scribed men who progress from sadistic masturbation fantasies to crimes that enact portions of
64 65
2lx> JOURNAL OF FORENSIC SCIENCES
the fantasy sequence, and the ce to more serious offenses based on an elaborated fantasy se-
quence. A similar pattern can be recognized in Cases 3 and 4 above.
At least two previously published case reports mention the use of detective magazines as a
source of sexual fantasy imagery. Graber et al [23] reported the history of a 36-year-old man
who forced a woman to fellate him at knife-point in a women's restroom of a public park. This
attack was followed several weeks later by "an abortive attack on a woman that ended when
she was cut by his knife." The offender had no prior criminal record. He reported a lack of sex-
ual experience, including masturbation, until marriage at age 23. The frequency of inter-
course with his wife decreased after he experienced a business failure. About a year before his
arrest he had begun masturbating while reading the sex crime articles in a detective magazine,
which thereafter became his preferred sexual outlet. The offense for which he was arrested was
inspired by a detective magazine article.
Wesselius and Bally [24] recorded the history of a 24-year-old man who practiced autocratic
asphyxia by self-hanging for ten years. He first masturbated at age ten while suspended from
the bar of a swing set. He began using the pictures in True Detective magazine while mastur-
bating around age 14. The authors report: "From this magazine he developed the idea of
dressing in female clothing which he would take from the family laundry hamper.,.." Within
months, he became sexually aroused while watching a hanging scene in a cowboy film, and was
particularly excited by the man's struggle and kicking feet. He then began masturbating while
hanging himself. The authors noted that "(hie continued to use Trite Detective magazines
with only occasional use of other more common soft pornography publications." He would be-
come most aroused by dressing in soiled women's undergarments and hanging himself. He
also became aroused by wearing such clothing and binding his limbs and neck. He fantasized
strangling a woman and was particularly aroused by imagining her helpless struggling and her
kicking feet.
Goldstein and Kant [25] quoted a rapist as saying:
I can remember looking through True Detective and stuff like this and seeing articles about women
that had been murdered or something.... I remember partially nude bodies. There was a lot of
magazines on the stands I used to buy all the time, these horror stories, "trips of terror," weird stories,
stuff like this. Soon after this, they banned 'em from the newsstands. 1 used to like to read them all the
time.
While there is no doubt that detective magazines provide a rich source of sexually sadistic
imagery, the role that these magazines play in the development of sexual sadism, if any, is un-
known. To the extent that paraphilic responsiveness is acquired by repeatedly associating sex-
ual arousal with particular images, the availability of sexually sadistic imagery may be impor-
tant. Detective magazines are one source of such imagery.
The cases we have described do not prove that detective magazines "cause" sexual sadism or
sadistic offenses. Only unethical experiments could prove or disprove such causation, and we
do not encourage that they be contemplated. Tests of the arousal of normal men and of sexual
sadists to the cover imagery we describe could, however, tend to support or refute our postulate
and could be conducted in an ethical manner that minimizes the risk of harming the subjects.
We assume that conventionally erotic elements in detective magazines would arouse many
males and that responsiveness to particular stimuli can be learned. We postulate that repeated
pairing of arousal with the unconditioned stimuli in these magazines, such as depictions of
bondage, domination, weapons, strangulation and other struggles, blood, and corpses in-
creases the probability that the viewer will subsequently be aroused by exposure to these stim-
uli, whether or not they are presented in an erotic context.
We know that some boys and men repeatedly use detective magazines to achieve sexual
arousal and that at least some of these individuals are sexual sadists. Of these latter, however,
we do not know what proportion were sexual sadists before their exposure to detective maga-
zines. We consider it plausible that some boys and young men turn to detective magazines for
(F
OIETZ ET AL • DETECTIVE MAGAZINES,
such conventional sexual imagery as scantily clad women or descriptions of sexual interaction,
and through repeated exposure learn to be aroused by ei ments of the photographs and arti-
cles that otherwise would have had no sexual associations. We recognize, however, that horror
movies and other films probably expose more boys and young men to the pairing of erotic and
violent images.
Detective magazines might affect the established sexual sadist by reinforcing his paraphilia
(particularly if he masturbates to orgasm while looking at or reading the magazines), by add-
ing details to his fantasies and preferred imagery, and by providing consensual validation that
lessens the extent to which he considers his preference abnormal or unacceptable.
Beyond their significance with respect to sexual sadism, detective magazines have other po-
tentially criminogenic effects. None of these potential effects is unique to detective magazines,
but each should be considered in assessing the social value of thesr magazines.
Detective magazines publicize particularly serious crimes. In an era in which many value
fame more highly than esteem or freedom, the prospect of publicity serves as an inducement to
crime. While detective magazines reach a smaller audience than network television, national
news magazines, wire services, or the most widely read newspapers, they P-^ch an audience
with greater than average interest in crime, provide lengthier and more detailed accounts of
particular offenders and offenses, and emphasize the degree of publicity received by the
offender.
Detective magazines are an unsurpassed source of public information on techniques for
committing crimes, on the errors of unsuccessful offenders, and on the methods available to
law enforcement agencies for preventing crimes and apprehending offenders. We have exam-
ined and studied offenders who have sought out, filed, and used such information to commit
crimes, but we also know law enforcement officers who use such information as a source of
continuing education.
The advertisements in detective magazines provide access to information and paraphernalia
that are sometimes used to commit crimes, including weapons, burglary tools, and car theft
equipment. Police badges and other false identification obtained through these advertise-
ments have been used by offenders to gain entry to dwellings or to stop motorists. Cases have
been documented of persons murdered or otherwise victimized by persons whom they met
through lonely hearts advertisements such as those appearing in detective magazines [26].
Conclusions
Detective magazines have a lengthy heritage and generate substantial sales. No doubt some
readers examine detective magazines out of curiosity or casual interest. Sexual sadists, how-
ever, are particularly drawn to detective magazines, and some of these individuals translate
their fantasies into action. Clinicians should learn to ask their patients about reading prefer-
ences and should also have sufficient knowledge of popular publications to be able to interpret
the responses. Since few patients spontaneously mention sadistic sexual fantasies in the course
of assessment or psychotherapy, inquiries about reading habits provide an important route
through which to explore a patient's fantasy life.
Patients with a particular interest in detective magazines may have problems other than sex-
ual sadism. In our experience, many individuals who are paranoid or preoccupied with vio-
lence read or collect detective magazines, mercenary magazines (such as Soldier of Fortune.
Commando, and Gung Ho), and hunting and gun magazines. Peterson [27] noted that "the
market of a medium [usually] coincides with that of its advertisements" and that advertise-
ments generally reflect consumer needs and desires. Some of the advertisements in detective
magazines cater to those with pronounced feelings of inadequacy by offering greater sexual
control, appeal, or function; techniques of mind control; and certification of identity.
Our view that the harmful effects of detective magazines probably outweigh whatever con-
tributions they may make to law enforcement, entertainment, and the economy is, of course,
66 67
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210 JOURNAL OF FORENSIC SCIENCES
not entirely original. Writing at the end of the 19th century, Cesare Lombroso considered
newspaper reports of crime the source of many imitative ("copycat") crimes, of which he gave
multiple examples. He concluded:
This morbid stimulation is increased a hundred-fold by the prodigious increase of really criminal
newspapers, which spread abroad the virus of the most loathsome social plagues, simply for sordid
gain, and excite the morbid appetite and still more morbid curiosity of the lower social classes. They
may be likened to those maggots which, sprung from putrefaction, increase it by their presence \2ft\.
We suppose that Lombroso put it too strongly, as was his custom. Nonetheless, we are con-
cerned that detective magazines—today's equivalent of "really criminal newspapers"—may
contribute to the development and persistence of sexual sadism; facilitate sadistic fantasies;
and encourage crime by rewarding it with publicity, disseminating technical information, and
easing access to criminal equipment.
We therefore urge policymakers to consider detective magazines in their deliberations con-
cerning violence in the media and pornography. We recommend that the new national com-
mission on pornography [29] include detective magazines and other sources of sexually sadistic
imagery among the classes of materials that it studies. Whatever definition of pornography or
obscenity emerges from the ongoing public policy debate should surely be formulated to en-
compass those materials that present the greatest risk of promoting the erotization of violence.
References
I/) Peterson, T., "British Crime Pamphleteers: Forgotten Journalists,"Journalism Quarterly, Vol. 22,
1945. pp. 305-316.
U| Mayhew, H., London Labour and the London Poor. Volume I: London Street-Folk, Charles Griffin
and Company, London, ca. 1864, pp. 227-350.
|J| Mayhew, H., London Labour and the London Poor. Volume 111, Charles Griffin and Company,
London, ca. 1864, pp. 51-167.
\4\ Jowett.G. S., Reath, P., and Schouten, M., "The Control of Mass Entertainment Media in Canada,
the United States and Great Britain: Historical Surveys," in Report of the Royal Commission on
Violence in the Communications Industry, Volume 4: Violence in Print and Music, J. C. Thatcher,
Toronto, 1977, pp. 3-104.
|5) Monkkonen, E. H., Police in Urban America. IS60-I920, Cambridge University Press, Cam-
bridge, 1981.
\6] Mott. F. L., A History of American Magazines. Volume I: 1741-1850. Belknap Press, Cambridge.
MA, 1937, p. 481.
|7) Mott, F. L.. A History of American Magazines, Volume II: I850-IS6S, Harvard University Press,
Cambridge, MA, 1938, pp. 185-187.
|«) Mott, F. L., A History of American Magazines, Volume II: 1850-1865, Harvard University Press,
Cambridge, MA. 1938. pp. 325-337.
[9] Mott, F. L., A History of American Magazines. Volume IV: 1885-1905, Belknap Press, Cambridge.
MA. 1957. pp. 199-200.
[10] Smith, G. and Smith, J. B., The Police Gazette, Simon and Schuster, New York, 1972.
)//) Morgan, W. L. and Leahy, A. M., "The Cultural Content of General Interest Magazines," Journal
of Educational Psychology, Vol. 25, 1934, pp. 530-536.
1/2) Kerr, W. A. and Remmers, H. H., "The Cultural Value of 100 Representative American Maga-
lines," School and Society, Vol. 54, 1941, pp. 476-480.
[13] Hagood, P., The Standard Periodical Directory, 7th ed., Oxbridge Communications, Inc., New
York, 1980.
[14] Otto, H. A., "Sex and Violence on the American Newsstand,"7oi/nniK«m Quarterly. Vol. 40. 1963,
pp. 19-26.
[IS] Lyle, J., "Contemporary Functions of the Mass Media," in A Report to the National Commission on
the Causes and Prevention of Violence, Volume XI: Mass Media and Violence, D. L. Lange, R. K.
Baker, and S. J. Ball, Eds., U.S. Government Printing Office. Washington, DC, 1969, pp. 187-216.
116] Beattie, E., "Magazines and Violence," in Report of the Royal Commission on Violence in the Com-
munications Industry, Volume 4: Violence in Print and Music, J. C. Thatcher, Toronto. 1977,
pp. 161-221.
68
DIETZ ET AL • DETECTIVE MAGAZINES 211
nrt Ijiarsfcld, P. F. and Wyant, R., "Magazines in 90 Cities—Who Reads What?/' Public Opinion
' Quarterly, Vol. I, 1937. pp. 29-41.
iMl Friedman, H. L. and Johnson, R. L., "Mass Media Use and Aggression: A Pilot Study," in Televi-
thn ""4 •&*"1' Behavior. Volume III: Television and Adolescent Aggressiveness, G. A. Comstock
and E. A. Rubinstein, Eds., U.S. Government Printing Office, Washington, DC, 1972, pp.
336-360.. .„, L te j. ,nd Hoffman. H. R., "Children's Use of Television and Other Media," in Television and So-
cial Behavior. Volume IV: Television in Day-to-Day Life: Patterns of Use, E. A. Rubinstein, G. A.
Comstock, and J. P. Murray, Eds., U.S. Government Printing Office, Washington, DC, 1972,
pp. 129-256.120) Dietz, P- £•• Burgess, A. W., and Hazelwood, R. R., "Autocratic Asphyxia, the Paraphiliu, andMental Disorder," in Autoerotic Fatalities, R. R. Hazelwood, P. E. Dietz and A. W. Burgess, Lex-
ington Books, Lexington. MA, 1983, pp. 77-100.
in] Dietz P E. and Evans, B., "Pornographic Imagery and Prevalence of Paraphilia,"X»n«ric<m/oiir-not of Psychiatry, Vol. 139, 1982, pp. 1493-1495.
122) MacCulloch, M. J., Snowden, P. R., Wood, P. J. W., and Mills, H. E., "Sadistic Fantasy, Sadistic
Behaviour, and Offending," British Journal of Psychiatry, Vol. 143, 1983, pp. 20-29.
|27| Graber. B., Hartmann, K., Coffman, J. A., Huey, C. J., and Golden, C. J., "Brain Damage Among
Mentally Disordered Sex Offenders," Journal of Fonnsic Sciences, Vol. 27, No. I.Jan. 1982, pp.
125-134.
[24] Wesselius, C. L. and Bally, R., "A Male with Autoerotic Asphyxia Syndrome," American Journal of
Forensic Medicine and Pathology, Vol. 4, 1983, pp. 341 -345.
|25| Goldstein, M. J. and Kant, H. S., Pornography and Sexual Deviance, University of California
Press, Berkeley, CA, 1973, p. 71.
[X] Brown. W.. Introduction to Murder: The unpublished facts behind the notorious Lonely Hearts
killers Martha Beck and Raymond Fernandez, Greenberg, New York, 1952.
]17] Peterson, T., "Why the Mass Media are That Way," in Mass Media and Communication, 2nd ed.,
C. S. Steinberg, Ed., Hastings House, New York, 1972, pp. 56-71.
|2*| Lombroso. C. (Horton. H. P., trans.). Crime: Its Causes and Remedies, Little, Brown, and Co..
Boston. 1912, p. 211.
129) "Child Pornography Law Signed; U.S. Study Commission Created," Nev York Times, 22 May
1984, p. A20.
Address requests for reprints or additional information to
Pirk Elliott Dietz. M.D., M.P.H., Ph.D.
School of Law
University of Virginia
Chariottesvilte, VA 22901
69
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/ o
I Comments by Commissioner James Dobson
that the work of the Attorney General's Commission on
aphy has come to an end, I look back on this fourteen
project as one of the most difficult . . . and gratifying
responsibilities of my life. On the down side, the task of
. through huge volumes of offensive and legally obscene
terials has not been a pleasant experience. Under other
circumstances one would not willingly devote a year of his life
to depictions of rape, incest, masturbation, mutilation, defecat-
ion, urination, child molestation and sadomasochistic activity.
Nor have the lengthy and difficult deliberations in Commission
meetings been without stress. But on the other hand, there is a
distinct satisfaction in knowing that we gave
ourselves unreservedly to this governmental assignment and, I
b«lieve, served our country well.
I now understand how mountain climbers must feel when they
finally stand atop the highest peak. They overcome
Insurmountable obstacles to reach the rim of the world and
announce proudly to one another, "we made it I" In a similar
context, I feel a sense of accomplishment as the Commission
releases its final report to the President, the Attorney General
and the people. For a brief moment in Scottsdale last month, it
appeared that our differing philosophies would strand us on the
lower slopes. And of course, we were monitored daily by the ACLU
the pornographers and the press, who huddled together and
murmured with one voice, "they are doomed!" But now as we sign
71
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the final document and fling it about to the public, it does not
seem pretentious to indulge ourselves in the satisfaction of
having accomplished our goals. By George, I fehink we made it!
Let me indicate now, from the viewpoint of this one
Commissioner, what the final report is and is not. First, it 18
not the work of a biased Commission which merely rubber stamped
the conservative agenda of the Reagan administration. A quick
analysis of our procaedings will reveal the painstaking process
by which our conclusions were reached. If the deck were stacked,
as some have suggested, we would not have invested such long,
arduous hours in debate and compromise. Serving on the
Commission were three attorneys, two psychologists, one
psychiatrist, one social worker, one city council member, one
Catholic priest, one federal judge and one magazine editor. Some
were Christians, some Jewish, and some atheists. Some were
Democrats and some Republicans. All were independent,
conscientious citizens who took their responsibility very
seriously. Our diversity was also evident on strategic issues
about which society itself is divided. Our voting on these more
troublesome matters often split 6-5, being decided by a swing
member or two. Some whitewash! So the characterization of this
seven man, four woman panel as an ultraconservative hit squad
simply poppycock. Read the transcripts. You will see.
Second, the final report does not do violence to the
Amendment to the Constitution. The Miller standard, by w
the Supreme Court clearly reaffirmed the illegality of obscen«|i
72
matter in 1973, was not assaulted during any of our
deliberations. No suggestion was made that the Court had been
too lenient ... or that a Constitutional Amendment should lower
tne threshold of obscenity ... or that the Justices should
reconsider their position. No. The Miller standard was
accepted and even defended as the law of the land. What was
recommended, to the consternation of pornographers, was that
government should begin enforcing the obscenity laws that are
already on the books . . . criminal laws that have stood
constitutional muster! Considering the unwillingness of our
elected representatives to deal with this issue, that would be
novel, indeed.
Third, the hearings on which this report was based were not
manipulated to produce an anti-pornography slant. Every
qualified libertarian and First Amendment advocate properly
requesting the right to testify was granted a place on the
agenda, limited only by the constraints of time. A few in-
dividuals and organizations on both sides of the issue were
unable to testify because the demand far exceeded available
opportunities. However, objective procedures were established
to deal fairly with those wishing to be heard, and complaints
alleging bias were, I believe, unfounded. In fact, several
organizations were asked to speak on behalf of sexually explicit
materials but either declined or failed to appear. It is true
that more witnesses testified against pornography than those who
ored it, but that was a function of the disproportionate
73
requests that were received by the executive director. Furth
more, I think it also reflects a disproportionate number 0.
American citizens who oppose the proliferation of obscenity.
Looking now at the other side of the coin, let me expres
what the final report is and what I believe its impact is like]
to be. First, the Commission expressed an unmistakable condemns,
tion of sexually explicit material that is violent in nature. ^
were unanimous in that position throughout our deliberations
There is no place in this culture for material deemed legally
obscene by the courts which depicts the dismemberment, burning,
whipping, hanging, torturing or raping of women. The time has
come to eradicate such materials and prosecute those who produce
it. There was no disagreement on that point.
Second, we were also unanimous in our condemnation of
sexually explicit materials which depict women in situations that
are humiliating, demeaning and subjugating. I can still recall
photographs of nude young women being penetrated by broon
handles, smeared with feces, urinated upon, covered in blood or
kneeling submissively in the act of fellatio. Most American
citizens have no idea that such gruesome scenes are common in the
world of obscene publications today. When asked to describe
pornography currently on the market, they think in terms of
airbrushed centerfolds in the popular "men's magazines." But
steady customers of pornography have long since grown tired of
t
simple heterosexual nudity. Indeed, a visit to an adult bookst-'
ore quickly reveals the absence of so-called "normal" sexuality-}
fferings today feature beribboned 18 to 20 year old women
ge italia nave been shaved to make them look like little
iog iris ,and men giving enemas or whippings to one another, and
bars to hold a woman's legs apart, and 3 foot rubber
Ises and photographs of women sipping ejaculate from champagne
ses. I" one sn°P which our staff visited on Times Square,
there were 46 films for sale which depicted women having
Intercourse or performing oral sex with different animals . . .
pigs, dogs, donkeys and horses. This is the world of
pornography today, and I believe the public would rise up in
wrath to condemn it if they knew of its prominence.
Finally, our Commission was unanimously opposed to child
pornography in any form. Though categorically illegal since
1983, a thriving cottage industry still exists in this country.
Fathers, step-fathers, uncles, teachers and neighbors find ways
to secure photographs of the children in their care. They then
sell or trade the pictures to fellow pedophiles. I will never
forget a particular set of photographs shown to us at our first
hearing in Washington, D.C. It focused on a cute, nine year old
boy who had fallen into the hands of a molester. In the first
picture, the blond lad was fully clothed and smiling at the
camera. But in the second, he was nude, dead and had a butcher
knife protruding from his chest. I served for 14 years as a
member of a medical school faculty and thought I had seen it all.
But my knees buckled and tears came to my eyes as these and
hundreds of other photographs of children were presented . . .
74 75
( r
showing pitiful boys and girls with their rectums enlarged to
accommodate adult males and their vaginas penetrated with
pencils, toothbrushes and guns. Perhaps the reader can
understand my anger and disbelief when a representative for the
American Civil Liberties Union testified a few minutes later. He
advocated the free exchange of pornography, all pornography, in
the marketplace. He was promptly asked about material depicting
children such as those we had seen. This man said, with a
straight face, that it is the ACLU's position that child
pornography should not be produced, but once it is in existence,
there should be no restriction on its sale and distribution. In
other words, the photographic record of a child's molestation and
abuse should be a legal source of profit for those who wish to
reproduce, sell, print and distribute it for the world to see.
And that, he said, was the intent of the First Amendment to the
Constitution!
Speaking personally, I now passionately support the control
of sexually explicit material that is legally obscene, whether
it relates to children or adults. Though the Commission has
dealt at some length in its report with specific "harms"
associated with pornography, I would like to list the dangers
here from my own point of view. Our critics have alleged that
the Commission wishes to usher in a new era of sexual repression
. . . that we favor governmental interference in America's
bedrooms and even in our thoughts. That is nonsense. On the j
other hand, I have seen enough evidence in the past year to j
76
1 -
convince me of the devastation inflicted on victims of
pornography. It is on their behalf that we must intervene.
Here, then, are the harms as I perceive them.
(1) Depictions of violence against women are related to
violence against women everywhere. Though social research on
this subject has been difficult to conduct, the totality of
evidence supports the linkage between illustration and imitation.
Furthermore, pornography perpetrates the so-called "rape myth"
whereby women are consistently depicted as wanting to be assaul-
ted even when they deny it. They are shown as terrified victims
In the beginnings of rape scenes, but conclude by begging for
more. Men who want to believe that women crave violent sex can
find plenty of pornographic evidence to support their pre-
dilections.
(2) For a certain percentage of men, the use of
pornographic material is addictive and progressive.
Like the addiction to drugs, alcohol or food, those who
are hooked on sex become obsessed by their need. It
fills their world, night and day. And too often, their
families are destroyed in the process.
3) Pornography is degrading to women. How couiMd
any of us, having heard Andrea Dworkin's
moving testimony, turn a deaf ear to her
protest? The pornographic depictions she
described are an affront to an entire gender,
and I would take that case to any jury in the
77
FT
(4)
land. Remember that men are the purchasers
of pornography. Many witnesses testified
that women are typically repulsed by visual
depictions of the type therein described. It
is provided primarily for the lustful
pleasure of men and boys who use it to
generate excitation. And it is my belief,
though evidence is not easily obtained, that
a small but dangerous minority will then
choose to act aggressively against the
nearest available females. Pornography is the
theory; rape is the practice.
It appears extremely naive to assume that the river of
obscenity which has inundated the American landscape
has not invaded the world of children. This seven
billion dollar industry pervades every dimension of
our lives. There are more stores selling pornographic
videos than there are McDonald hamburger stands. More
than 800,000 phone calls are made each day to
dial-a-porn companies in New York (180,000,000 in
1984), many placed by boys and girls still in
elementary school. Furthermore, recent clinical
observations by Dr. Victor Cline and others have
indicated that a growing number of children are finding
their parents' sexually explicit videos and magazines,
and are experimenting with what they have learned on (5)
78
younger children. The problem is spreading rapidly.
Obviously, obscenity cannot be permitted to flow freely
through the veins of society without reaching the eyes
and ears of our children. Latchkey kids by the
millions are watching porn on Cable TV and reading
their parents' adult magazines. For 50 cents, they can
purchase their own pornographic tabloids from vendor
machines on the street. Or they can hear shocking
vulgarities for free on their heavy metal radio
stations. At an age when elementary school children
should be reading Tom Sawyer and viewing traditional
entertainment in the spirit of Walt Disney, they are
learning perverted facts which neither their minds nor
bodies are equipped to handle. It is my belief,
accordingly, that the behavior of an entire generation
of teenagers is being adversely affected by the current
emphasis on premarital sexuality and general
eroticism seen nightly on television, in the movies,
and in the other sources of pornography I have
mentioned. It is not surprising that the incidence
of unwed pregnancy and abortions has skyrocketed
since 1970. Teens are merely doing what they've
been taught that they should get into bed, early and
often. And to a large degree, pornography has done
this to them.
Organized crime controls more than 85 percent of all
79
(6)
(7)
commercially produced pornography in America. The
and distribution of these materials produces hug.
profits for the crime lords who also sell illegal drug
to our kids and engage in murder, fraud, bribery and
every vice known to man. Are we to conclude
that the 7 billion (or more) tax-free dollars that they
receive each year from the pornography industry is not
harmful to society? Is malignant melanoma harmful to
the human body?
Pornography is often used by pedophiles to soften
children's defenses against sexual exploitation. They
are shown nude pictures of adults, for example, and are
told, "See. This is what mommies and daddies do."
They are then stripped of innocence and subjected to
brutalities that they will remember for a lifetime.
Outlets for obscenity are magnets for sex related
crimes. When a thriving adult bookstore moves into a
neighborhood, an array of "support-services" typically
develops around it. Prostitution, narcotics and street
crime proliferate. From this perspective, it is
interesting that law enforcement officials often claim
they do not investigate or attempt to control the flow
of obscenity because they lack the resources to combat
it. In reality, their resources will extend farther if j
they first enforce the laws relating to pornography.
The consequent reduction in crime makes this a cost
(8)
effective use of taxpayers' funds.
The City of Cincinnati, Ohio has demonstrated how a
community can rid itself of obscenity without
inordinate expenditures of personnel and money.
So-called adult bookstores are often centers of disease
and homosexual activity. Again, the average citizen is
not aware that the primary source of revenue in adult
bookstores is derived from video and film booths.
Patrons enter these 3 by 3 foot cubicles and deposit a
coin in the slot. They are then treated to about 90
seconds of a pornographic movie. If they want to see
more, they must continue to pump coins (usually
quarters) in the machine. The booths I witnessed on
New York's Times Square were even more graphic. Upon
depositing the coin, a screen was raised, revealing two
or more women and men who performed live sex acts upon
one another on a small stage. Everything that is
possible for heterosexuals, homosexuals or lesbians to
do was demonstrated a few feet from the viewers. The
booths from which these videos or live performers are
viewed become filthy beyond description as the day
progresses. Police investigators testified before our
Commission that the stench is unbearable and
that the floor becomes sticky with semen, urine and
saliva. Holes in the walls between the booths are
often provided to permit male homosexuals to service
80 81
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one another. Given the current concern over sexually
transmitted diseases and especially Acquired Immune
Deficiency Syndrome (AIDS), it is incredible that
health departments have not attempted to regulate
such businesses. States that will not allow restaurant
owners or hairdressers or counselors or acupuncturists
to operate without licenses have permitted these
wretched cesspools to escape governmental scrutiny. To
every public health officer in the country I would ask,
"Why?"
(9) Finally, pornography is a source of significant harm to
the institution of the family and to society at large.
Can anything which devastates vulnerable little
children, as we have seen, be considered innocuous to
the parents who produced them? Raising healthy
children is the primary occupation of families, and
anything which invades the childhoods and twists
the minds of boys and girls must be seen as abhorrent
to the mothers and fathers who gave them birth.
Furthermore, what is at stake here is the future of the
family itself. We are sexual creatures, and the
physical attraction between males and females provides
the basis for every dimension of marriage and
parenthood. Thus, anything that interjects itself into
that relationship must be embraced with great caution.
Until we know that pornography is not addictive and
82
progressive . . . until we are certain that the passion
of fantasy does not destroy the passion of reality . .
. until we are sure that obsessive use of obscene
materials will not lead to perversions and conflict
between husbands and wives . . . then we dare not adorn
them with the crown of respectability. Society has an
absolute obligation to protect itself from material
which crosses the line established objectively by its
legislators and court system. That is not sexual
repression. That is self-preservation.
If not limited by time and space, I could describe dozens of
other harms associated with exposure to pornography.
Presumably, members of Congress were also cognizant of these
dangers when they drafted legislation to control sexually
explicit material. The President and his predecessors would not
have signed those bills into criminal laws if they had not
agreed. The Supreme Court must have shared the same concerns
when it ruled that obscenity is not protected by the First
Amendment reaffirming the validity and constitutionality of
current laws. How can it be, then, that these carefully
crafted laws are not being enforced? Good question! The refusal
of federal and local officials to check the rising tide of
obscenity is a disgrace and an outrage. It is said that the
Production and distribution of pornography is the only
unregulated industry remaining today . . . the last vestige of
83
"free enterprise" in America. Indeed, the salient findin_
emerging from 12 months of testimony before our Commission
reflected this utter paralysis of government in response to the
pornographic plague. As citizens of a democratic society, vie
have surrendered our right to protect ourselves in return fot
protection by the State. Thus, our governmental representatives
have a constitutional mandate to shield us from harm and
criminal activity . . . including that associated with obscenity.
It is time that our leaders were held accountable for their
obvious malfeasance. Attorney General Meese, who has
courageously supported other unpopular causes, has been reluctant
to tackle this one. He is reportedly awaiting the final report
from the Commission before mobilizing the Department of Justice.
We will see what happens now. But his predecessors have no such
excuse for their dismal record. Under Attorney General William
French Smith, there was not a single indictment brought against
producers of adult pornography in 1983. None! There were only
six in 1982, but four of those were advanced by one motivated
prosecutor. In 1981 there were two. Of the 93 United States
Attorneys, only seven have devoted any effort to the prosecution
of obscenity. Obviously, the multi-billion dollar porn industry
is under no serious pressure from federal prosecutors.
Considering this apathy, perhaps it is not surprising that the
Department of Justice greeted our Commission with something less
than rampant enthusiasm. For example, the first Presidential
Commission received two million dollars (in 1967 money) and was
-ranted two years to complete their assignment. Our Commission
as allocated only $500,000 (in 1985 money) and was given one
year in which to study an industry that had expanded
exponentially. Repeated requests for adequate time and funding
were summarily denied. Considering the Presidential mandate to
establish the Commission, the Department had no choice but to
execute the order. But it did very little to guarantee its
success or assist with the enormous workload. Quite frankly,
failure would have been inevitable were it not for the
dedication of eleven determined Commissioners who worked under
extreme pressure and without compensation to finish the task. We
were also blessed with a marvelous staff and executive director
who were committed to the challenge. Other branches of
government must also be held accountable for their unwillingness
to enforce the criminal laws. The United States Postal Service
makes virtually no effort to prosecute those who send obscene
material through the mail. Attorney Paul McGeady testified that
there are conservatively 100,000 violations of 18 USC 1461 every
day of the year. Likewise, the Federal Communications Commission
and Interstate Commerce Commission do not attempt to regulate the
Interstate transportation of obscene material. Eighty percent of
all pornography is produced in Los Angeles County and then
shipped to the rest of the country. It would not be difficult to
identify and prosecute those who transport it across state lines,
e Federal Communications Commission does not regulate obscenity
°n cable or satellite television. The Customs Service makes no
84 85
6
effort to prevent adult pornography from entering this country
and catches only five percent of child porn sent from abroad.
The Internal Revenue Service permits organized crime to avoid
taxes on the majority of its retail sales, especially the vi<jeo
booth market. The Federal Bureau of Investigation assigns only
two of 8700 special agents to obscenity investigation, even
though organized crime controls the industry. And on and on it
goes.
Local law enforcement agencies are equally unconcerned about
obscenity. The City of Miami has assigned only two of 1,500
policemen to this area, neither of which is given a car.
Chicago allocates two of 12,000 officers to obscenity control.
Los Angeles assigns 8 out of 6,700, even though Los Angeles is
the porn capital of the country. Very few indictments have been
brought against a pornographer in Los Angeles County in more than
ten years, despite the glut of materials produced there.
Another serious concern is also directed at the court system and
the judges who have winked at pornography. Even when rar«
convictions have been obtained, the penalties assessed have been
pitifull Producers of illegal materials may earn millions in
profit each year, and yet serve no time in prison and pay fines
of perhaps $100. One powerful entrepreneur in Miami was
convicted on obscenity charges for the 61st time, yet received >
fine of only $1600. The judge in another case refused to even
look at child pornography which the defendant had supposedly
produced. He said it would prejudice him to examine th«
86
I
material. That judge had never sentenced a single convicted
ornographer to a day in prison. Is there any wonder why
junerica is inundated in sexually explicit material today? So we
come to the bottom line. We've looked at the conditions that
have led to tne present situation. Now we must consider the
mid-course maneuvers that will correct it. I believe the
suggestions offered in the Commissioner's final report, herein,
will provide an effective guide toward that end. We have not
merely attempted to assess the problem; we have offered a
proposed resolution. The testimony on which it is based make it
clear that we are engaged in a winnable war! America could rid
itself of hard core pornography in 18 months if the
recommendations offered in the following report are implemented.
We have provided a road-map for fine tuning federal and state
legislation and for the mobilization of law enforcement efforts
around the country. Accordingly, it is my hope that the effort
we invested will provide the basis for a new public policy. But
that will occur only if American citizens demand action from
their government. Nothing short of a public outcry will
motivate our slumbering representatives to defend community
standards of decency. It is that public statement that the
pornographers fear most, and for very good reason. The people
possess the power in this wonderful democracy to override
apathetic judges, disinterested police chiefs, unmotivated U.S.
Attorneys, and unwilling federal officials. I pray that they
W1U do so. if they do not, then we have labored in vain. If
87
TT
wisdom more often than not results from the simultaneOu
practice of several key virtues—among which must surely b.
numbered prudence, justice, temperance and fortitude—then th
eleven members of the Attorney General's Commission on
Pornography were no more likely or qualified than any othet
group of eleven Americans to undertake the study of this most
complex and divisive subject.
Statement of Father Bruce Ritter
Eleven Solomons we are notl
Eleven Americans, not Solomons therefore, sat down together
over the course of a year to listen and to learn, to argue and to
debate. At the end we are able to present this modest report of
our conclusions to the American people--a report in which, on
most key issues, we were able to achieve virtual or at least
substantial unanimity.
We are proud of the result. Or to speak for myself and
not the Commission—the purpose of this "personal statement"—I
am proud of the result and quite proud that I had this
opportunity to serve with my fellow citizens on this Commission.
That we could not agree on all issues is hardly
surprising. Indeed that kind of total unanimity is simply not
to be found in the real world of a culturally and religiously
pluralistic society and it would be dangerously disingenuous to
criticize the Commission for memorializing in this Report its
differences of perception, of logic, of background, of personal
conviction.
At bottom, the creation of this Commission was an
inescapably political act—we are, after all, a government body,
convened to give advice to the government of the United States,
and specifically, to the Justice Department.
More important still, we have been asked to put our
eminently fallible judgments at the service of the American
people, who are the final arbiters of political power. Our
89
every word, in every hearing and meeting, has been subject
to—and has received— rigorous public scrutiny, and may be U8«j
and misused in future political debates.
It would be an egregiously self-serving mistake however
to assume that the work of this Commission was therefor,
dominated by political considerations. I think it fair to state
that we attempted, as best we could, within the short life span
of this Commission, to reach our conclusions based on a diligent
and serious study of the evidence brought before us.
In the final analysis, however, every thinking adult is a
walking-around collection of a priori assumptions that influence
his thinking on all serious issues. These assumptions, in part
the product of education and life experience, in part the
rigorous conclusions of reason and logic, are, on balance, the
"givens" each of us bring to every debate, to every effort to
find the truth of a particular matter.' These "givens" ar«
tested, challenged, refined and sometimes . repudiated in the
elastic give and take of serious argument. Eleven
Commissioners, perforce, brought such assumptions and
convictions to our deliberations. It is my hope that we were
able to transcend the limitations necessarily intrinsic to any
personal view of the world and human behavior—and for that
matter, to transcend the limits of any supposed allegiance to
the political and religious ideologies of the Right or Left.
Given the severe time and budgetary constraints undet
which the Commission labored we were neither able, nor should we
90
have been expected, to treat all aspects of our charge with that
ee Qf thoroughness many:readers of this Report might have
desired. Nor is it possible within the limits of this
necessarily brief personal reflection on the work of
Commission to do more than touch upon those areas of
personal concern or those issues where my decision to vote one
way rather than another might require some elaboration, viz. the
absolutely central debate over Category III materials, the
Printed Word controversy, the very thorny issue of the Indecency
Standard for cable; television—and the hugely controversial and
largely shunned as ' tpo-hot-to-handle subject of sex education
for our children.
The Category III Debate.
I think the. Commission was quite correct in its general
approach to our study .'of pornography, not only by refusing to
establish hast^y a priori definitions of what pornography was or
was not, but also in attempting some delineation and distinction
of the various categories of the sexually explicit materials
examined by us. The rationale for this approach is, I think,
•tated quite lucidly and cogently in this Report. That is not to
8*y that other approaches might not have been equally fruitful or
to say that there' were no serious limitations to this approach,
shall discuss below what I consider the major and perhaps in
retrospect, a significantly unacknowledged and even crippling
flaw, of this methodology.
Nonetheless, this particular approach greatly facilitated
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58-315 Vol. 1, 0 - 86 - 4
our difficult and time-consuming discussions of the real o
potential "harms" ascribed to pornography and the identification
of these harms with the various categories of sexually explicj.
materials. In addition, our chosen approach enabled the
Commission to understand better the various kinds of evidence Ol
"proof" needed to draw reasonable conclusions about the kinds of
harms "caused" by pornography.
As Commissioners, therefore, based on the evidence presented
to us, we had little difficulty reaching the firm conclusion that
violent, or even non-violent but degrading pornography
represented a significant harm to individuals and to society as a
whole and that these two categories of sexually explicit
designed-to-arouse materials should be condemned unhesitatingly,
The Commission was again unanimous in asserting that to the
extent that such materials met the Miller standard they should
be prosecuted and, if possible, proscribed.
Is there a third category of sexually explicit
designed-to-arouse material that is neither violent nor
degrading and for which no real harm can be demonstrated thai
therefore does not merit such condemnation and possible legal
proscription under the Miller standard? Because tin
Commissioners became hopelessly deadlocked on this issue it "
resolved that each reserve the right to compose a persons
statement outlining his or her thinking on the matter.
In my view, and perhaps in that of other Commissions'1
as well, this is the central theoretical issue of our year'1
92
debate. We were not able to resolve this question successfully
and for me it represents a major failure of the Commission—not
because we were unable to agree on the merits of the issue, or
much less, that the other Commissioners did not agree with my own
views, but because as a group we were unwilling, or perhaps
unable, to confront or to correct or perhaps merely to adjust to
the inherent limitations of our approach to the study of
pornography.
This inherent and deceptive weakness in our approach—its
fatal flaw in my view--also proved to be for us a fatal
temptation, permitting the Commission to rely quite
heavily—indeed almost exclusively— on evidence of harms drawn
from the empirical and social sciences to the virtual exclusion
of other kinds of "evidence". While this methodology perhaps
proved useful enough when we examined the potential consequences
of exposure to category I and II materials, this over reliance on
such evidence did not serve the Commission well in its
examination of the allegedly more innocuous materials contained
in our so-called category III.
I say "allegedly more innocuous" because implicitly an
assumption began to grow among many Commissioners that sexually
explicit materials that were neither violent nor degrading
somehow had to be less harmful than materials not obviously
so--and indeed, in many important aspects that is quite
indisputably true. As a result the focus of our discussions
entered more and more, and sometimes almost exclusively, on the
93
harms to be ascribed to sexually violent and degrading material
and the evidence we considered almost exclusively that dravn
from the empirical and social sciences—testimony and evideric
that in and of itself necessarily lacks the probative force arvj
authority some, when convenient, wish to ascribe to it.
The weakness of our approach, and one that in my judgment ve
refused as a body to deal with adequately—and that was the basis
for much of the overt and covert disagreement among
Commissioners--lay in the easy temptation not to examine the
underlying sexual behavior depicted in all classes of pornography
and to make fundamental ethical and moral judgments about this
behavior.
Pornography is, after all, nothing more than the depiction
of certain kinds of human sexual behavior. Quite apart, however,
from any depiction in words or in photographs, it is incumbent
upon society to make certain ethical and moral judgments about
certain kinds of human behavior, not excluding sexual behavior.
For example rape is not merely a crime, it is decidedly immoral
quite apart from any depiction of it. Sexual behavior that
degrades women—or men--is immoral quite apart from the
photographic record of it that may exist to memorialize it.
At the heart of our disagreement over the existence, the
nature and the extent of category III materials, in my view, was
the inability and quite specific reluctance of the Commission to
come to terms with the necessity of making ethical and moral
judgments about the underlying behavior depicted in material5
94
r
that would be contained in category III materials, e.g. certain
xually explicit solely designed-to-arouse depictions of
heterosexual or homosexual behavior, or of group sex that were
clearly neither violent nor obviously degrading, in the precise
meaning of this term as used in our discussions concerning
category II materials. I think it fair to say that by its
refusal to take an ethical or moral position on pre-marital or
extra marital sex, either heterosexual or homosexual, the
Commission literally ran for the hills and necessarily
postulated the existence of a third category of sexual materials
designed to arouse that was neither violent nor degrading, and,
that was in some vague and unspecified sense, permissable to
some extent—even though much of it would have been judged
obscene under the Miller standard.
A much larger issue is at stake here than the individual
harm or degradation of a particular man or woman, or even of
society itself caused by materials commonly and confidently
ascribed to categories I and II. The question may be posed:
does pornography, of any category, so degrade the very nature of
human sexuality itself, its purposes, its beauty, and so
distort its meaning that society itself suffers a grave harm?
The message of pornography is unmistakably and
undeniably clear: sex bears no relationship to love and
commitment, to fidelity in marriage, that sex has nothing to do
with privacy and modesty and any necessary and essential ordering
oward procreation. The powerful and provocative images proclaim
95
universally—and most of all to the youth of our country—that
pleasure—not love and commitment—is what sex is all about.
What is more, that message is proclaimed by powerfully
self-validating images, that carry within themselves their own
pragmatic self-justification.
To pose the question in another way: is the imaging, the
message-conveying power of sexually explicit, designed-to-arouse
pornography so great that society must be concerned when that
perniciously convincing message becomes well nigh universal
among us? I think the answer to that question must be an
unequivocal resounding yes!
Speaking for myself, and representing a view that perhaps
could not carry the majority of the Commission, I would affirm
that all sexually explicit material solely designed to arouse in
and of itself degrades the very nature of human sexuality and as
such represents a grave harm to society and ultimately to the
individuals that comprise society. I find it very difficult
therefore to affirm the existence of a third category of
pornography that is neither violent nor degrading and not
harmful.
To a certain but limited extent I have outlined my
convictions further in two documents submitted to this
Commission that can be found immediately following this
statement. The first, entitled: Non Violent, Sexually Explicit
Materials and Sexual Violence, purports to show how an argument
might be drawn from social science itself that the widespread
96
consumption of sexually explicit materials found in universally
disseminated male magazines may well lead inevitably to
increased rape rates. I think my conclusions, although I am no
social scientist, while certainly not apodictic, are at the very
least plausible.
The second, entitled: Pornography and Privacy, attempts to
make a strong argument against all pornography based on its
(pornography's) total and inadmissable invasion of a personal
privacy so sacred and so inalienable that it must always remain
inviolate. There are, in sum, certain rights so intrinsic, so
foundational to the integrity of the human personality and our
duties as citizens that they may never be surrendered. One of
them is our personal liberty. Another is our sexual privacy.
For these reasons, and for others, I have concluded that
for all practical purposes Category III does not exist, viz that
sexually explicit materials designed to arouse that are neither
violent nor degrading per se, nonetheless profoundly indignify
the very state of marriage and degrade the very notion of
sexuality itself and are therefore seriously harmful to
individuals and to society, indignifying both performers and
viewers alike in ways ethically and morally reprehensible.
If in fact such a category does exist, then I am persuaded
that it is so limited as to be totally inconsequential and
certainly not represented by the sexually explicit materials
studied by this Commission.
To conclude otherwise, I fear, is to legitimate the
97
existence of a group of materials that some would call "erotica"
and would in effect license as permissable and presumably
non-prosecutable, a large class of sexually explicit materials
designed to arouse that would all too easily send the clear
message that the primary purpose of sex is for hedonistic,
selfishly solipsistic satisfaction.
To me, the greatest harm of pornography is not that some
people are susceptible to or even directly harmed by the violent
and degrading and radically misleading images portrayed all too
graphically by mainstream pornography. Rather pornography's
greatest harm is caused by its ability—and its intention—to
attack the very dignity and sacredness of sex itself, reducing
human sexual behavior to the level of its animal components.
In a certain sense the Commission was hoist by its own
petard. In its need to describe carefully and to delineate
accurately the possible harms of pornography it adopted an
approach and methodology and a system of proof quite suitable to
establish the—if I may say it—the self evident, the per se
nota, harms of violent :and degrading pornography. When all is
said and done, do the careful conclusions of the Commission with
regard to violent and degrading pornography surprise anyone, or
does any rational man or woman seriously question the legitimacy
of these conclusions—quite apart from any "evidence" thought to
establish such harms? The fact is that the Emperor doesn't have
any clothes on and he--as far as violent and degrading
pornography is concerned--never did and it didn't need tout
98
national Commissions (two American, one Canadian and one
British) to "prove" it.
The fatal weakness — fatal because largely
unacknowledged—of our approach, however, betrayed and undercut
and sadly misdirected the Commission's efforts and prevented us
from, in rav view, considering adequately the more profound harms
to individuals and society caused by pornography as a total
genre. The unmistakable consequence for the Commission, in my
judgment, was to ascribe more harm to the less harmful and to
discount substantially and even to discredit the far graver and
more pervasive harms caused by pornography not evidently violent
or obviously degrading.
To put it in another way: the greatest harm of
pornography does not lie in is links to sexual violence or even
its ability to degrade and to indignity individuals.
Pornography, all three categories of it—if indeed a third
category exists at all—degrades sex itself and dehumanizes and
debases a profoundly important, profoundly beautiful and
profoundly, at its core, sacred relationship between a man and a
woman who seek in sexual union not the mere satisfaction of
erotic desire but the deepest sharing' of their mutual and
committed and faithful love.
This being said however, I hope no one will dispute the
£»ct that while we did not succeed in resolving the major
theoretical dispute before us, the approach and methodology
adopted by the Commission did enable us to deal successfully
99
with matters of great practical importance and concern to ti
American people.
The "Printed Word" Debate.
One of the most difficult and controversial issues tj,
sharply divided the Commission was the special nature a,,,
especially protected character of the printed word. Simply put
the issue was this: does the printed word—including prints
and non-pictorial pornography—deserve special considerati0f
because of the unique relevance the printed word bears for Firs
Amendment considerations and the precious right of politica
dissent in the United States, the almost exclusive burden o[
which is carried by the printed and spoken word?
I voted with the bare majority on this issue, upholding tin
special preeminence of the printed word and holding that
despite the fact that printed pornography can be declared
legally obscene under the Miller standard, printed depictiom
merit special protection unless they involve the degradation am
abuse of children.
Because my vote in particular seemed somewhat out
character in light of other government intervention with which!
agree, and because it was virtually incomprehensible to so*
thoughtful people on the Commission and elsewhere, I take tin
opportunity to at least put on the public record the rational'
for my vote.
It was abundantly clear from our discussions that virtual
no current prosecution, on grounds of obscenity, of the pfin i
100
,,ord occur in the United States, and that furthermore, none are
realistically contemplated because of the great difficulty and
complexity of these prosecutions. Indeed, the Chairman of this
Commission, Henry Hudson, conceded on the record that he could
not conceive of ever undertaking a prosecution of the printed
word.
The problem is of course that among this genre of printed
pornography there exists a large body of materials that describe
the sexual abuse of children and indeed, advocate for it. It is
a particularly noisome and repellent body of literature that in
effect is nothing less than "cook book" and how-to-do-it
manuals, guides for the sexual exploitation of children.
I expressed to the Commission my strong conviction that
unless these particular printed materials involving children were
singled out for special and vigorous prosecution—excerpted as it
were from the broad mass of printed pornography--the general
reluctance to ever prosecute the printed word would prevent any
attempt to proscribe these maleficent materials. It is my
further conviction that the unanimous action of the Commission
recommending the vigoro-us prosecution of obscene printed
raaterials involving or advocating the sexual exploitation of
children will, in fact, spur and aid prosecutors in the vigorous
enforcement of the obscenity law, at least in regard to those
n«terials depicting children. The hope of a total prosecution
obscene printed materials is disingenuous and futile—the
crying need to prosecute to the full extent of the law those
101
< r
materials depicting the prurient sexual abuse of children is a_
urgent necessity.
A second reason led me to vote that special considerat-
ion be accorded the printed word. Fear of censorship was a
constant theme of many witnesses who appeared before this
Commission. I do not think we are entitled to judge that
concern lightly, or to consider that those who express such
anxiety are motivated by self interest. First Amendment values
are crucial to American life and the virtual sanctity and
integrity of the printed word central to the absolute freedom o£
political debate and dissent.
I do not agree with those who hold that efforts to regulate
and proscribe sexually explicit materials according to the
Miller standard signal a return to or adoption of a censorship
mentality. In short I think that those possessed by such fears,
while for them the fear may seem real, are quite simply wrong.
At the same time I thought it very important that the
Commission send a strong message to the public that we do not
favor a return to times when the repression of unpopular ideas
was part of our political landscape. • By the barest of margins,
the majority of Commissioners adopted this view. I am proud to
be among them.
The Indecency Standard.
This was another issue that sharply divided the Commission
and one that only eleven Solomons could have reached consensus
on. Once again I voted with the bare majority and would like to
102
1
put on record my reasons for so doing.
The issue was, once again, central to the charge of this
Commission and could be framed this way: Millions of American
families are concerned about the virtual invasion of their homes
by increasing amounts of increasingly explicit sexual depictions
they find offensive and even dangerous to their families, most
especially to their children.
The issue is fairly simple and straightforward for
broadcast, non cable television. The FCC under its broad powers
to regulate what can be transmitted over the air waves prohibits
the dissemination of "indecent" words and images. The Supreme
Court upheld this right in its Pacifica decision on the ground
that citizens had a right to expect some regulation of broadcast
materials coming into the home over which individual parents had
no control.
The matter is not so simple with regard to cable television
and other forms of satellite-transmitted programming. At least
four court decisions, one of them in federal appeals court, have
clearly established the essential diversity of broadcast and
cable television and decreed that the "indecency" standard used
to regulate broadcast materials could not and must not apply to
cable television. In fact, the courts have so far declared,
unanimously, that the application of the indecency standard to
cable television is unconstitutional.
The issue is complex, not only by reason of the constit-
onal ambiguities that surround it, but also because, from a
103
(J
broader perspective, citizens have a right to be concerned about
who and what are going to regulate what they may see on cable
television.
Many witnesses who appeared before this Commission, for
example, have pointed out, that if the "indecency" standard
currently in force with regard to broadcast television were also
imposed on.cable television, most of the mainline Hollywood
films currently on view in theaters across the country could not
be shown on home television served by cable. It is hardly
likely, even inconceivable, that the courts on any level,
including the Supreme Court, would uphold such an extension of
the indecency standard to cable television.
Indeed it is just as unlikely, regardless of an individ-
ual's particular ethical or moral persuasion, that such a
blanket prohibition would be tolerated by the vast majority of
the American people or the Congress that represents them.
There is still another compelling reason why many
thoughtful people in this country would actively oppose any
attempt to apply the same standards of broadcasting television
to cable. Indeed, almost all of the principal religious
denominations and religious broadcasters unanimously fought such
an equation of broadcast and cable television on the grounds
that it might seriously impede their own religious freedom to
control their programming as they saw fit and might compel them
to grant equal time to atheist or agnostic or anti-religi°us
presentations.
104
Whatever one thinks of their argument, no one could
plausibly accuse these religious leaders of not being sensitive
to the import of their position or that they thereby were in
favor of indecency on television. The fact is however, that
unless we equate broadcast and cable television, the FCC has no
constitutional right to regulate programming on cable using the
indecency standard upheld by the Pacifica decision.
For all these reasons therefore, and for others, I voted
with the bare majority not to recommend the current indecency
standards for cable television.
I would strongly support, however, new legislation by
Congress that could thread its way successfully through the
Scylla of unconstitutionality and the Charybdis of over
regulation of this medium by government.
It seems to me that Congress should look to the principles
of New Vork v. Ginsberg—which allowed lower obscenity standards
to apply if children are recipients of pornography--as a
beginning toward unraveling this conundrum. Ginsberg allows the
government to declare some pornographic material "obscene as to
children" and to make its sale to children a criminal act. Is it
not possible then, that certain material may be judged "obscene
as to the home"—that is, judged by a standard that takes into
account the special problems of parents in preventing access by
their children to cable television or the telephone, and so be
subjected to special regulation when it appears in those
settings?
105
I am certain that all the Commissioners, regardless of ho«
they voted on this narrow issue, deplore the increasing
appearance on our home television screens, whether broadcast or
cable, of sexually explicit and frequently violent and degrading
materials. We differ only on how to achieve the laudable end of
protecting our children from this unwanted and dangerous
incursion into the sanctity of our families.
Sex Education for Our Children.
Few problems have produced more genuine concern among more
Americans than the sexual awareness, behavior, and victimization
of children. Few, if any, dispute the need of children for
knowledge about their sexual natures - its dangers and its
promise, its mystery and its power. Yet few areas of public
discussion have engendered more bitter, if often legitimate,
debate over the means appropriate to achieving a desired end.
This Commission found itself in the middle of that debate
not out of choice but of necessity. We have seen and heard
massive quantities of evidence concerning the abuse and
exploitation of children by adults, both in the making and in the
consumption of sexually explicit material. We have learned, as
well, of the extraordinary extent to which sexually explicit
magazines, films, video tapes, telephone recordings, and books
are a part of the life of our country's children and adolescents.
It has become increasingly clear to us that many children who
escape actual sexual abuse are nevertheless receiving their
primary education in human sexuality from a graphically
106
inappropriate source, one which describes sexual fulfillment as
conditioned upon transience, dominance, aggression or
degradation.
We have seen, too, that in a society flooded with sexual
imagery it is virtually impossible fully to "protect" children
from becoming victims of misleading information about sex. Nor
is it possible to expect that criminal and civil sanctions,
however, vigorously applied, will wholly end sexual abuse.
Teenagers, and to a great extent even younger children, must
learn to protect themselves - both from exploitation by others
and from the consequences of their own ignorance and immaturity.
At the same time, however, they deserve an understanding of
the beauty of sexuality, and its role as the foundation of
family and indeed of human civilization itself. While our
charge is limited to examining the nature and effects of
pornography, we would be remiss if we failed to note our
passionate desire for careful, humane, and explicit instruction
of children regarding the nature and effects of sexuality
itself.
Unfortunately that desire only leads us directly to a
central dilemma of our nation's pluralistic democracy. The very
importance of sexuality makes it a central focus of almost every
system of religious and ethical values. Teaching children about
sex inevitably involves instruction about its relationship with
"totality and human relationships. Any attempt to evade such
"struction or underlying values only results in teaching one
107
specific moral assumption - that no relationship exists between
sex'and morality. Presenting instruction on sex combined with
discussion of the full array of opinions discussed would largely
dilute the importance of all of them. While these problems
could be wholly avoided if full instruction on sexuality were
provided to children by their parents, it is a sad fact that
many, if not most, parents ignore or fail seriously in this
responsibility.
This dilemma is unfortunate in part because I think we all
believe that there is is a core group of values which can and
should form the basis of instruction on sexuality. Above all,
it seems to me we could agree that such instruction should be
presented as one important, but not dominant, part of
instruction on the family - its history, nature, and importance.
The most important institution in human society, the family, is
virtually ignored in modern education. That failing is parti-
cularly tragic because it is only within the context of explor-
ing the meaning of the family that the meaning and role of
sexuality can be understood.
The particular values that almost all of us think it
important to emphasize in "sex education" - responsibility,
commitment, fidelity, understanding, and tenderness - are
precisely those which underlie our society's legal, social and
moral assumptions about the family, and can only be effectively
conveyed if the two topics are inextricably linked.
If a belief in the necessity of teaching those values with
108
respect to sexuality were in fact shared by all Americans, it
would be possible, I think, to devise a mandatory curriculum on
human sexuality in the elementary and secondary public schools.
Because it seems clear that no such consensus exists I have been
forced, in thinking on this subject, to consider only the
appropriate minimum action which is necessary and possible for
federal, state, and local governments to take. As mandatory,
explicitly value-laden age appropriate education in affective
sexuality seems at present a task beyond the capacity of public
schools, we can only center our hopes for providing such
education on the willingness of families to undertake it.
Within a voluntary framework, however, perhaps even within a
released time context, we can urge the public schools to provide
extensive opportunities for students to explore all the issues
surrounding the creation and maintenance of families in the
United States, with instruction on sexuality forming a
substantial part of such a curriculum.
Finally, where children and youth need to learn how to
protect themselves from exploitation by adults or manipulation
by the media we can ask the schools to take a strong, mandatory
role in providing them the facts.
If this year confronting the products of the pornography
Industry has taught me anything, it is that we are all profound-
!y ignorant of the way electronic and photographic images can be
used to manipulate viewers. We continue, quite rightly, to
that our children learn how our novelists and poets use
109
language to shape and redirect emotions and values. Yet with
regard to powerful graphic visual images designed to produce
handsome profits through sexual arousal of viewers, we have
allowed our schools to remain almost completely silent.
Teenagers should be taught not only how their emotions and
instincts are manipulated by viewing pornography, but also how
the pornography industry exploits and abuses the persons used in
making it. Such instruction would present none of the religious
or moral quandaries of sex education generally, and seems to me
a vital protective measure for our young—who are simultaneously
the biggest consumers of pornography and the most vulnerable to
its vicious effects.
A priest on the Commission.
A decent respect for the wholly creditable, almost entirely
unspoken but perhaps genuine anxiety felt by some that my role as
priest, my training and background as Roman Catholic theologian
might somehow unfairly or unconsciously skew my thoughts and
feelings on the issues before the Commission compels this word of
assurance.
I do not think that I was invited to join this Commission
because I was a priest theologian but rather because of almost 18
years of close personal experience and progressional involvement
with literally thousands of sexually exploited children, many
but not most of whom had been victimized in the actual
production of pornography in which they were the hapless
performers and "stars."
110
For this reason I asked a member of my staff, Gregory Loken,
a gifted attorney and scholar in his own right as well as a noted
advocate for the rights of children and Director of the Youth
Advocacy Institute of Covenant House, to make a special study of
the question regarding harms to performers in pornography. The
Commission has made this statement its own and I consider it an
important and original contribution to the research in this
field. It is found in Part Four of the Report.
I freely admit to a certain bias in this regard. Nothing,
absolutely nothing justifies the sexual abuse of children, and
nothing, absolutely nothing - including the most perfervid
defense of the First Amendment justifies the recording of this
loathsome abuse on film. The Supreme Court of the United States
in its unanimous 9-0 Ferber decision affirmed this special
horror and declared that child pornography did not merit
constitutional protection.
But when all is said and done I am who I am. I cannot exit
from my personal skin, I can not divest of myself, anymore than
any other citizen, of that "walking around collections of a
priori assumptions" that in part help constitute who and what I
am.
I am certain that despite some unfair prior assumptions to
the contrary the Commission tried as fairly and honestly and
objectively as it could to reach their conclusions as a result
°f honest and open debate. My position on the Commission
carried for me an added important symbolic responsibility.
Ill
Since I was the only member of the Commission that could be
ever thought to "represent" a major religion in the United
States, I felt a special obligation to my fellow Commissioners
and the people of this country not to adopt or impose a particu-
lar theological or sectarian slant on my contribution to the
work of this Commission.
In short, I tried not to react as a Roman Catholic priest
but as a citizen with a broader mandate and constituency. i
hope therefore that my views represent a wide spectrum of the
current American experience. At the same time I am proud to be
what t am and would have it no other way.
The Writing of this Document.
The difficulties and complexities of this subject could
hardly be exaggerated. One man's nudity is another man's
erotica is another man's soft core pornography is another man's
hard core obscenity is another man's boredom!
When, at the end of our public sessions it came time to
synthesize the import of our debates and discussions in this
report it became abundantly clear to the great majority of
Commissioners that this report could not be a "staff document"—
-that is, a document compiled and assembled by the staff of this
Commission could not represent fairly the differing opinions and
conclusions of the Commissioners. This is not to denigrate the
enormous contribution of the Commission staff. They merit the
highest praise, especially its Director Alan Sears, for their
round-the-clock effort to provide the Commission with the
112
materials and support they needed. The staff worked with great
diligence and zeal to perform their duties and much of this
final report is a product of that diligence.
In the final analysis however, this report could neither be
compiled nor assembled. It demanded single authorship. Quite
simply this report could not have been written by Committee.
Professor Fred Schauer provided to this Commission the grace
of single authorship and it is largely due to his wholly
admirable effort in providing the "framing document" for this
report that, in my view, we can present to the Attorney General
and the American people a product of which I think we can all be
proud.
Conclusion.
The Chairman of this Commission deserves the gratitude of
every member of this body. His was an unenviable and awesome
task—to oversee the taking of public testimony and to guide the
public debate over the issues with fairness and objectivity. I
think Henry Hudson acquitted himself of this responsibility in a
wholly admirable way.
His unfailing courtesy to the members of this Commission and
its staff was particularly noteworthy, especially when too many
late-night sessions over-stressed us all.
To the other Commissioners I can only say thank you. It
has been a privilege and rare honor to have served with them. I
hope they share with me that pride of accomplishment as we submit
this report to the American people for judgment.
113
(
I speak for myself yet I am certain the other ten
Commissioners would echo my concern over the well nigh universal
eroticization of American society. I am convinced, too, that
the vast majority of Americans either intuitively or by rational
conviction share our concern.
I urge therefore that our fellow Americans examine and
debate our logic and conclusions carefully.
114
Pornography and Privacy
Submitted by: Father Bruce Ritter
TABLE OF CONTENTS
Introduction
A. The Material in Question ,
B. Anthropological Perspective
1. Genital Nudity
2. Sexual Intercourse
C. Western and American Traditions .
D. Sexual Privacy in Modern America
1. Attitudes and Practice
2. The Law
E. Pornography and Harm to Privacy .
115
(f
An American has no sense of privacy. He
does not know what it means. There is no
such thing in the country.
George Bernard Shaw
If there is one single lesson we have learned from studying
the "problem of pornography," it may simply be that Mr. Shaw's
acid observations on American privacy may finally be coming true.
Commercially produced material, regularly distributed to millions
of Americans, shows other Americans, in explicit photographic
detail, engaged in every variety of sexual intercourse. What
might have been considered at one time the most private of human
activities is now a matter not simply for public discussion but
for graphic public display.
We have not fully agreed among ourselves whether this
aspect of "pornography" - one which cuts across all the
categories we have used in discussing other issues - should be
deemed a "harm." Some of us have viewed the end of the taboo on
public sex as at least an ambivalent event, with its possible
benefits including an end to ignorant repression of knowledge and
dialogue about sexuality. For the rest of us, however, the issue
is a clear one, and, with limited exceptions explained below, we
consider the assault of pornography on sexual privacy to be one
°f its most direct and corrosive harms. Because that view has
not often been articulated in the debate over sexually explicit
materials, however, we feel bound to explain it fully.
That explanation must begin by acknowledging that a concern
117
for "sexual privacy" does not arise in every type of material
considered "pornographic." That it arises at all is the result,
as we attempt to explain, of deep cultural, moral, and even
biological norms that are generally taken for granted, but not
generally discussed. Finally the extent to which those norms
represent values important to America and Americans - and the
extent to which sexually explicit material offends those values -
is a matter we believe deserving of substantial consideration by
scholars, legislators, and the general public.
A. The Material in Question. That the debate over
"pornography" has traditionally been carried on with only limited
reference to questions of privacy is hardly surprising. Not
until the last fifteen years - that is, after the 1970 Commission
Report - did substantial quantities of material appear on the
general market which depict full, highly provocative genital
nudity and actual (rather than simulated) sexual intercourse.
Many of the great "obscenity" debates of this century - on, for
example, Lady Chatterly's Lover and Tropic of Cancer - in fact
centered solely on the printed word.
Simulated activity, drawings of sexual conduct, and the
printed word may cause concern on other grounds but they are
largely tangential to discussion of sexual privacy. It is true,
as Warren and Brandeis so eloquently explained almost a century
ago, that grave damage may be done when "[t]o satisfy a prurient
taste the details of sexual relations are spread broadcast in the
118
columns of the daily papers."3 Nevertheless it is also true that
the process of such "broadcast" is a largely indirect one: for
damage to occur the writer must be regarded as credible and the
reader must exercise his imagination. Photographic
representations as we explained in discussing the role of
performers in modern commercial pornography, can show actual
sexual relations in such a way that those who are shown cannot
deny what happened, and those who view the depictions cannot
avoid the full force of the images presented.
We thus limit our discussion of "pornography" in this
section to that specific form of it which seems to have most
urgent and clear-cut effects on sexual privacy - that is,
photographic (or live) portrayals of actual sexual intercourse or
of full genital nudity designed solely to excite sexual arousal.4
The direct, unmediated public display of human beings in graphic
sexual conduct is a new phenomenon in the history of culture, and
it represents, in our view, a development harmful to both
Individuals and society at large.
B. Anthropological Perspective. While acutely aware of
the limitations of anthropological evidence for arguing "what
3 Warren & Brandeis, The Right to Privacy, 4 Harv. L.
Rev. 193 (1890).
* Thus not only "mere" nudity, but any form of nudity
"hich is used for purposes - artistic, scientific, political, or
educational - other than simple sexual provocation are outside
the scope of our analysis. We do not deny that privacy concerns
™ay be implicated even in these displays, see, New York v.
•j££5££, 458 U.S. 747, 774-75 (O'Connor, J., concurring) , but we
° not believe the evidence suggests they represent nearly as
substantial a threat to sexual privacy as the material we
include.
119
ought to be" for modern industrial society, we think it at least
worth noting two propositions which are widely accepted by
anthropologists and which seem of real importance for our
inquiry: (1) public display of genitalia is extremely rare among
human cultures; and (2) sexual intercourse universally occurs
under conditions of privacy. Both have relevance as indicating
basic taboos which are more often explained in moral or religious
terms.
1. Genital Nudity. In their still standard overview
of 191 human cultures, Ford and Beach found that, "There are no
peoples in our sample who generally allow women to expose their
genitals under any but the most restricted of circumstances."5
In those few societies where women occasionally expose their
genitals - e.g., the Lesu, Dahomeans and Kurtatchi - it is a
deliberate gesture to invite sexual advance.*> Conversely the
social controls imposed by primitive, semi-primitive and advanced
cultures appear to be founded in "the prevention of accidental
exposure under conditions that might provoke sexual advances by
men."7 A number of societies, however, place no restrictions on
display of male genitals, and in a few nudity by both sexes is
accepted.8 Even in those few which allow such nudity - e.g.i
5 C. Ford and F. Beach, Patterns of Sexual Behavior
i.*,--,, ... Davenport, Sex in ~ ' ~~ «••
Sexuality in Form Perspective
Beacn, fancerns 01 oeAuax uc.m. o.^- -
(1952); W. Davenport, Sex in Cross Cultural Perspective in HumanWe 115, 127-129 (F. Beach, ed. 19T5).
6 Ford and Beach, at 93-94.
7 Idr at 94-
8 Id. at 95.
120
the Australian aborigines - strict rules forbid staring at
genitals.' It is therefore possible to say, in the words of one
anthropologist, that "some form of sexual modesty is observed in
all societies."10 Tnat modesty distinguishes humans from all
other primates.11
2. Sexual Intercourse. If the privacy of genitalia is
the subject of limited variation among cultures, the privacy of
sexual intercourse is not. Every human culture is characterized
by an insistence on seclusion for sexual union, although physical
conditions may make absolute privacy difficult to achieve.12
Thus when more than one family shares a dwelling, couples will
generally copulate in a secluded place outdoors.13 Children are
strictly admonished to ignore their parents' sexual behavior
where it is possible they might see it. 14 Among humans,
according to one scholar, "sexual privacy, like the incest
9 Davenport, supra note 1, at 128.
10 Id. See also A. Kinsey, et al., Sexual Behavior in the
Human Female 283-285 (1953) (finding anthropological data showing
acceptance of nudity only of children before adolescence).
11 Ford and Beach, supra note 1, at 95, 105.
12 Davenport, supra note 1, at 148; Ford and Beach, supra
note 1, at 68-71. Ford and Beach do list two partial exceptions
to this rule - "some Formosan natives" who in the summertime
"copulate out of doors and in public, provided there are no
children around," and "Yapese couples" who, "though generally
alone when they engage in intercourse, copulate almost anywhere
out of doors and do not appear to mind the presence of other
individuals." Id. at 68. Neither of these exceptions, on close
inspection, applies to more than "some" members of what amounts
to 1 percent of Ford and Beach's sample of 191 cultures.
13 Davenport, at 150. Ford and Beach at 69-71.
14 Davenport, at 149-150.
121
taboos, is virtually pancultural."15 only chimpanzees among
all animals have the same absolute regime of sexual privacy - a
fact suggesting that this impulse is biological in nature.16
Margaret Mead's famous study of Samoan culture - widely re_
garded as a plea for more sexual openness - provides powerful
evidence for the extraordinary impulse toward sexual privacy even
in a society with sexual practices far different than our own.
There she found married couples sharing large rooms, but careful
to preserve some sense of privacy even within the house by means
of "purely formal walls" of mosquito netting.*' Outside the
house the urge to privacy is extraordinary, as she discussed in
describing the sexual knowledge of Samoan children:.
In matters of sex the ten-year-olds are
equally sophisticated, although they witness
sex activities only surreptitiously, since
all expressions of affection are rigorously
barred in public .... The only sort of demon-
stration which ever occurs in public is of
the horseplay variety between young people
whose affections are not really involved.
This romping is particularly prevalent in
groups of women, often taking the form of
playfully snatching at the sex organs. *°
Even in a culture she found to be so free of "stress and
15 G. Jensen, Human Sexual Behavior in Primate Perspective
in Contemporary Sexual Behavior; Critical Issues in the 197o'j»
17 ,22( 1973 ) .Accord, ETISymms, The Evolution of Human
Sexuality 67 (1979).
16 Jensen, supra note 12, at 67; Symms, supra note 12 at
67, n. 4.
17 Coming of Age in Samoa 135 (1928, 1961 ed.).
18 Id. at 134-35.
122
strain,"!9 the pancultural norms of sexual privacy were strictly
observed.
C. Western and American Traditions. Margaret Mead's
Disdain for the "Puritanical self-accusations" which character-
jze western attitudes toward sexual freedom did not extend to
the insistence of our culture on the private nature of sexual
conduct. And indeed, any such disdain would be impossible for an
anthropologist, for sexual privacy is at the very heart of our
own culture - assumed in every major strand of Western thought,
and incorporated now in American common and constitutional law.
So clear, indeed, is the strength of the traditional belief in
sexual privacy, that we view only a brief discussion as
necessary. The historical pedigree of that belief is traceable
at least to the customs of the ancient world. One historian has
found that for ancient Jews nudity was "barbaric and indecent,"
and that "li]n Biblical times, it seems, the Hebrews did not come
in contact with tribes that were not sensitive to the shame of
nakedness."20 in the ancient Hellenic world "nakedness was a
vulgarity" that was publicly permitted only in such specialized
settings as the gymnasium.21 indeed, Plato went so far as to
urge shame and complete secrecy in all matters related to sexual
19
20
Id. at 234.
L.M. Epstein, Sex Laws and Customs in Judaism 26-27
(1948) (emphasis added).
Id^ at 27. Romans did allow men and women to bathe
together in the nude, id. at 29.
123
158-315 Vol. 1, o - 86 - 5
liaisons.22 And even the most graphic Greek paintings of sexual
conduct used "formula" faces that were not meant to reproduce the
features of specific persons.23 Exposing the naked body Of
another person, in the ancient world, was a means of humiliation
reserved for slaves and war captives. 24
Developments in Western culture from its Judaic and Hellenic
roots until only very recently were all in the direction of
strengthening the already strict taboos of sexual privacy.
Subsequent Western attitudes toward the subject were perhaps best
summarized by St. Augustine, himself no stranger to sexual
excess, even before the fall of Rome:
And rather will a man endure a crowd of
witnesses when he is unjustly venting
his anger on someone than the eye of
one man when he innocently copulates
with his wife. 25
Social conditions - in particular, housing consisting of one
room for an entire family - even through the early modern and
industrial periods o£ Western history made it difficult to
maintain absolute sexual privacy in the home, particularly in the
22 Plato Laws 841 a-e.
23 A. J. Dover, Greek Homosexuality 71 (1978).
24 Epstein, supra note 19, at 31. "The male slave and the
female slave had no sex personalities in the eyes of the
ancients. They were considered as having no shame and incapable
of causing the sense of shame in others." Id. at 29 r.
25 City of God, Book XIV, pg. 468 (M. Dods trans. 1950).
See J. Boswell,Christianity, Social Tolerance and Homosexuality,
188 (1980) (discussing monastic proscriptions against nudity);
Jewish traditions proscribing nudity continues well into this
century. Epstein, supra note 19, at 29-37 (noting reluctance
even in twentieth century to approve modern bathing suits for
women).
124
presence of family members.26 But the first impulse of every
class as it obtained the power to do so has been to obtain more
personal privacy, particularly in respect to sexual matters. 27
By the beginning of this century sexual privacy had assumed so
important a role in Western thought that Freud could suggest,
with some force, that the awakening of sexual modesty was a
crucial event in the founding of human civilization itself. 28
Whatever its relation to civilization generally, privacy in
sexual matters has long been a deeply ingrained part of American
culture. From the often strict religious repression of the
colonial period 29 through the more freewheeling nineteenth
century,3" sexual modesty was highly esteemed. Mark Twain and
Henry James would have disputed the value of almost every social
restriction of late Victorian society; on the need for sexual
26 P. Aries, Centuries of Childhood 106 (1962) (children
in ancient regime believedtobewholly "unaware of or
indifferent to sex"; "gestures and physical contacts . . . freely
and publicly allowed [to children] . . . were forbidden as soon
as the child reached the age of puberty").
27 Stone, supra note 25, at 253-257.
28 Civilization and Its Discontents 46 n. 1 (J. Strachey
ed 1961).
29 For a full discussion of the "essential" quality of
sexual privacy in the colonial period, see D. Flaherty, Privacy
L" Colonial New England 79-84 (1972). See also F. Henriques,
jjrostitution in Europe and the Americas 23u-4b (J.yb5).
30 See generally, Note; The Right
Nineteenth Century America 94 Narv. L. Rev. II
to Privacy in
Century America 94 Narv. L. Rev. 1892 (1981). The
great exception to the America's Victorian sense of sexual shame
*as the cavalier treatment of slaves' privacy in the Old South.
*• Henriques, supra note 27, at 245-63. That exception is in
ine with long established notions about the unimportance of
sexual privacy for slaves. See, supra note 22.
125
reticence, however, they stood shoulder to shoulder.31
D. Sexual Privacy in Modern America. The gap between our
novelists and the author of Portrait of a Lady is indeed a great
one, and it is clear that our more liberal notions of sexual
reticence form a substantial part of the difference. Yet before
simply conceding that privacy in sexual conduct has been
relegated to a minor role in modern American life, it would be
well to consider two important facts. First, for all their
changing mores, Americans still appear to assert strongly their
need for privacy in matters sexual. Second, American law in this
century has recognized that need ever more forcefully. The
combination of these facts, along with evidence from anthropology
and history, forms for us the basis on which the "harms" and
"benefits- of pornography may, in this area, be assessed.
31 Compare, for example, the treatment of sexual tension
in Tom Sawyer with that of Washington Square. See also, i__.
Secret Life I and The Secret Life II in S. Marcus, The Other.
Victorians (19J64) (describing as "unique" a memoir describing in
detail the sex life of a Victorian gentleman).
126
1. Attitudes and Practice. In launching their seminal
investigation of American sexuality Alfred Kinsey and his
colleagues had this to say about their subjects' need for
privacy:
Our laws and customs are so far
removed from the actual behavior of
the human animal that there are few
persons who can afford to let their
full histories be known to the courts
or even to their neighbors and their
best friends: and persons who are
expected to disclose their sex histories
must be assured that the record will
never become known in connection with
them as individuals. 32
In the nearly four decades that have followed, many of
Kinsey's hopes for greater sexual tolerance have been realized,
but the acute need for sexual privacy has remained. One of the
best indicators of that need has been in fact a wrenching problem
for researchers attempting to conduct scientific study of
pornography: the extraordinarily low volunteer rate for such
experiments. In one careful study specifically designed to
measure differences between volunteers and nonvolunteers in a
sex-film experiment, less than one third of the males and only
one in seven of the females agreed to participate if they would
be required to be "partially undressed (from the waist down)."33
Indeed, no more than half of another group agreed to
Participate even when told only that they would be watching
"erotic movies depicting explicit sexual scenes," with no
32
33
Sexual Behavior in the Human Male 44 (1948).
Wolchik, Braver & Jensen (1985). See also, Wolchik,
& Lisi (1983).
127
references to undressing and with assurances that they would t>e
wholly unobserved and that all data would be completely
confidential.34
Two interesting pieces of evidence from Canada, for which
no comparable data for the United States exist, offer a parallel
to these laboratory observations. The Badgley Committee
surveyed 229 juvenile prostitutes and found that almost 60
percent of both males and females had been asked at least once
by clients to be the subjects of sexually explicit depictions.
Yet among those requested - teenagers desperate for money who
regularly sold their sexual favors to strangers - less than a
third agreed to be photographed.35 of equal significance, the
Fraser Committee conducted a national survey to determine the
attitudes of Canadians toward pornography, and found that while
66 percent of their sample declared private viewing of sexually
explicit material to be acceptable, only 32 percent could approve
of the production of such material, even if no one is "hurt" in
the process.36 Apparently pornography previously produced with
someone else's son or daughter is tolerable to Canadians;
material which might be produced with one's own child is not.
In reaching our conclusion that current American mores
continue tightly to embrace sexual privacy, we note that American
psychiatrists adhere to their longstanding view that
34 Wolchik, Braver & Jensen (1985).
35 Badgley Report at 104.
36 Fraser Report at 104.
exhibitionism and voyeurism are clear and saddening personality
disorders. One overview of their effects finds that they:
are accompanied by an inconspicuous
but real alteration in character, with
chronic anxiety beyond the immediate
fear of being caught, guilt, fear of
losing one's mind, shame, and, usually,
inhibition of normal sexual responses.
Relief after arrest is common.37
pornography aside, healthy Americans simply do not attempt to
peek into other people's bedrooms, and have no interest in
showing off their sexual organs to strangers. The "chronic
anxiety" attending exhibitionism and voyeurism is thus a
reflection of our society's deeply shared commitment to
preserving the privacy of sex.
2. The Law. That commitment has firm, if only recently
developed, expression in American law. After the Warren and
Brandeis article of 1890 38 _ which was provoked by the outrage
of a Boston matriarch over the smarmy treatment by the newspapers
of her daughter's wedding 39 _ the right of Americans to be free
fror. publicity about the graphic details of their sex lives
became enshrined as a fundamental principle of the common law.40
37 A. Stanton Personality Disorders in The Harvard Guide
to Modern Psychiatry 283, 292 (1980). See"Riley, Exhibitionism;
A Psycho-Legal Perspective, 16 San Diego L. Rev. 853, 854-57- - -
39
See, supra note 1.
Prosser, Privacy, 48 Cal. L. Rev. 383 (1960).
128
® See , Restatement (Second) of Torts 652D, Comment L(1977>; Wood v. Hustler Magazine, Inc. , 736 F. 2d 1084 (1984),fc' denied 105 S. Ct. 783; Melvin v. Reid 112 Cal. App. 285,
. Ct. App. 1931). -
129
As we discussed in our review of the use of performers in
pornography, the courts have recently recognized that this
principle may be applied to protect those who are photography
while nude or engaged in sexual relations. The Supreme Court
in New York v. Ferber, seemed recently to imply that the "privacy
interests" of those depicted in pornography may have, as well,
constitutional weight even on the strongly tipped scales of
First Amendment analysis. 42 The special importance of sexual
relations has for more than two decades been crucial to the
development by the Court of the whole concept of a
constitutional "right of privacy."43
E. Pornography and the Harm to Privacy. Simply stating
what is does not resolve what ought to be. Finding that sexual
privacy is pancultural, that it has been a stable feature of
western civilization for as long as we have knowledge, and that
it currently remains highly valued by Americans in their
attitudes, practices and laws, does not ineluctably require a
finding that the taboo of sexual privacy ought to continue to be
held in such high esteem. But we think that these findings,
while not constituting a form of "proof" themselves, are
nevertheless crucial in assessing where the burden of proof ought
41 See, Use of Performers in Commercial Pornography,
supra, in Part Four.
42 458 U.S. 759 n. 10; See also, Bell v. Wolfish 441 U. S.
520, 558-60 (1979) (recognizing~~"privacy interests" of prisoners
implicated by strip searches).
43 See especially, Griswold y. Connecticut, 381 U.S. 479
(1965). See also,Carey v. Population ServicesIn't*1, 431 U.S.
678 (1977); Roe v. Wade, 410 U.S. 113 (1973).
130
to rest. In all fairness, we believe, it should rest: on those
seeking to sweep away the taboo.44 Does current, photographic
pornography offend that taboo? And if so, what is the harm? The
answer to the first question is obvious to anyone who views the
wholly graphic, undiluted sexual exhibitionism inherent even to
•consenting pornography." Nothing is left for the viewer to
imagine; no attempt is made to conceal either the face or the
genitals of the performers. The consumer of "standard"
pornography in the 1980's, unlike the consumers of the materials
generally available at the time of the 1970 Commission Report,
is a full witness to the most intimate, the most private activity
of another human being.
That this is a "harm" we think undisputable, on several
grounds. First, those who "perform" in current pornography are,
as a group, extremely young, ignorant, confused and exploited;
as we have discussed in our examination of their situations, they
very frequently cannot be said to have given an informed consent
to their use. Second, even when such consent exists, such
performances, where they are given in exchange for money, are
Inseparable from prostitution, and degrade the performers in
exactly the same ways as prostitutes are injured by their
profession. Neither of these concerns applies, by contrast, to
the making of noncommercial, sexually explicit films for use in
44 Likewise we believe that the critics of sexual taboos
regarding incest or child molestation, see e.g. , L. Constantini,
Ifle Sexual Rights of Children} ImpTTcations' of a Ra d1 c a 1
Perspective, in children and Sex 4 255 (19B1), must bear a
131
education or sex therapy - arenas where the reputations
performers are unlikely to be damaged.
Quite apart from injury to performers, though, we believ
that injury occurs to society as a whole from such performances
injury that may best be described as the blurring of legitimat
boundaries for public dialogue on sexuality. Where no reticence
is allowed, where only the act of sex is regarded as an
authentic statement about its meaning, most citizens can be
expected to withdraw, rather than enter the discussion. Reducing
the general sense that some aspects of every person's sexual life
are so unique as to deserve special deference means, we think
that many will all the more militantly seek to shut out any
dialogue on sexuality altogether. The virulent, devastating
divisiveness over sex education in the public schools is, we
think, a symptom of the fears that can arise i.rom this
destruction of the sense of boundaries.
Now against all of this, what proof is offered that the
taboo of sexual privacy should be dismissed with regard to filmed
pornography?
Some argue, convincingly enough, that such pornography
expresses an idea, if no more elaborate an idea than an attack on
sexual privacy itself. Yet that is hardly an argument against
the "harm" we have discussed, for ideas can be as harmful as,
indeed more harmful than a wide variety of more concrete
afflictions. Others contend that the extreme reticence on sexual
matters practiced by our society in the past was repressive of
and injurious to healthy sexuality. That is also, so far as it
132
true enough. But do we need to pay other people to
n> for us on film in order to discuss sexuality freely?
copulacB
Surely the case for that need has not been made with even
iraal rigor. And even if it had been made, we remain
nvinced, as we said above, that as many of us are silenced in
ne resulting dialogue as are given voice. Indeed, after a year
f witnessing the grotesque sexism of commercial pornography, we
ow have begun to understand what Catherine MacKinnon, Andrea
nworkin, and others meant when they told us that pornography
•silences" women.
photographic pornography silences and it also degrades.45
With the exception of noncommercial material produced for
educational or therapeutic purposes, it exploits some human
beings in violation of some of mankind's deepest instincts about
the privacy of sexual conduct. The "right of the Nation and of
the States to maintain a decent society,"46 recognized in dissent
by Chief Justice Warren and by a majority of the Supreme Court
since 1973,47 largely means only thiss some aspects of American
life, and of American sexual behavior, deserve special
45 Compare, Williams Report 138 (live sex shows considered
"especially degrading to audience and performer's" because of
their "being in the same space" during performance of
intercourse; no account taken of the fact that photographic
pornography can only be made if cameraman or photographers is "in
the same space" as the performers), critized in Dworkin, Is There
'Right to Pornography? 3 Oxford ~ Legal Stud. 177, 180-183
46
47
Jacobellis v. Ohio, 378 U.S. 184, 199 (1964).
Paris Adult Theater I v. Slaton, 413 U.S. 49, 59-60(1973) (quoting Warren) .
133
protection from intrusion, public display, and commercial
mass-marketing. Mr. Shaw - and the sex industry - to the
contrary notwithstanding, Americans do know the value Of
privacy. And it is a value that commercial pornography
deeply offends.
134
NONVIOLENT, SEXUALLY EXPLICIT MATERIAL
AND SEXUAL VIOLENCE
I. Background
A. The Problem of Definition
B. Evidence and Standard of Proof
II. The Evidence
A. Changes in Rape Rates
B. Correlational Evidence
1. Danish and Other Cross-Cultural Data
2. Sex Magazine Circulation
3. Sex Offenders and Pornography
4. Conclusions from Correlational Evidence
C. Experimental and Clinical Evidence
1. Arousal
2. Effects on Attitudes Toward Rape—
"Disinhibition"
3. Overall Evidence for "causation"
D. Evidence Against Causation
III. Conclusion
Submitted by Father Bruce Ritter
135
I. Background
The alleged relationship of sexually explicit material and
exual violence has long been a subject of acrimonious but com-
pelling debate. The "Effects Panel" of the 1970 Commission,
often accused of denying such a link, instead stated a relatively
moderate view of what was then an almost entirely new area of
inquiry: "On the basis of the available data ... it is not
possible to conclude that erotic material is a significant cause
of sex crime."1 Recognizing the impossibility of ever proving
"conclusively" the existence of such a casual connection, the
1970 Commission nevertheless determined that the evidence did
not, at the time, suggest a "substantial basis" for such a
proposition.2
The findings of our predecessors, though beleagured in this
area by extensive professional criticism,-^ are entitled to
significant deference, especially because the 1970 Commission
took pains to explain the basis of its conclusions. Rape,
however, is among the most violent and damaging of crimes: not
only inflicting deep injury on its victims, but also standing as
a powerful obstacle to the fight for sexual equality in a
democratic society. It is, further, an evil which has increased
at shocking rates over the last fifteen years. We thus have the
1 1970 Commission Report, at 287. See, Fraser Report at
99; Williams Report at 6186.
2 1970 Commission Report at 286-87.
For a review of many of those criticisms seeDonnerstein & Halamuth (1984).
137
grave, and undeniably unpleasant, duty to examine again
possibility that consumption of sexually explicit materials
some rapes are causally linked - and to report, on the basis Of
the evidence available now, whether a "substantial basis" exists
for believing in such a link.
We have with little trouble concluded that circulation of
materials which themselves portray graphic sexual violence is a
probable "cause" of rape - at least in the sense of being one
factor among many (and not necessarily the most important) which
increases the likelihood of rape. With regard to sexually
explicit materials which do not include depictions of violence
our task is more difficult because so many of our witnesses, so
many professionals, and so many of our fellow citizens disagree
vehemently on the issue. Tempting as it is simply to wash our
hands of the question by noting the existence of the dispute and
refusing to "take sides" in it, we cannot avoid sifting through
the evidence and attempting to come to our own conclusions on the
matter. Even if we cannot ultimately agree on the purport of
each piece of evidence, or the meaning of all the data
collectively, our views should be fully, and publicly explained.
A. Problem of Definitions. One serious obstacle to such
explanations, unfortunately, arises immediately in the guise of
defining the material under examination. For purposes of general
discussion about the possible "harms" of sexually explicit
material we have found it useful to divide that material into
three somewhat imprecise, but nonetheless useful categories:
that which is (1) violent; (2) "degrading" but not violent; and
138
(3) neither violent nor "degrading". Unhappily our scheme was
Ot anticipated in advance by researchers, and though a useful
blueprint for future scientific inquiry, has not formed the basis
jor research conducted in the past. The only distinction adhered
to with some consistency in the past research has been that
between those materials which depict violence and those which do
not. Obviously that distinction is a crude one given the wide
range of nonviolent "pornographic" materials, yet it may in some
sense correspond with popular perception: thus public opinion
seems strongly opposed to free circulation of materials "that
depict sexual violence," but sharply divided over the fate of
materials that "show adults having sexual relations," with no
further explanation of whether the materials in question are
"degrading" or not.4
For purposes of examining the evidence regarding sexually
explicit materials and sexual violence, then, it seems useful to
begin, at least, without clearcut distinctions based on the
"degrading" character of particular items. Rather, the case for
linking nonviolent materials and rape should be examined on its
own terms - that is, on the basis of definitions contained in the
relevant research - with attention, ultimately, to those pieces
of evidence which bear on the question of distinctions among
4 1985 Newsweek Poll. Forty-seven percent of respondents
would ban magazinesshowing adults having sexual relations, but
only 21 percent favored such a ban for magazines depicting
^nudity". Because many current popular magazines are clearly
degrading" in their portrayals, the difference in views seems
"ore related to sexual explicitness than to the positive or
negative portrayal of the person depicted.
139
various categories of nonviolent materials. Until we sort
through the evidence on this issue we cannot, after all, be
certain that boundaries useful for distinguishing among materials
on observable attitudinal effects are equally valuable with
regard to behavioral impacts.
B. Evidence and Standard of Proof. The assumption that
consumption of sexually explicit material "causes" sexual
violence is one that some 73 percent of Americans would accept as
true,5 but it is unclear what evidence they would point to as
crucial to their judgment. From our standpoint some forms of
evidence are clearly more persuasive than others, but no one is
useless and none dispositive. Evidence from the social sciences
- correlational, clinical and experimental - seems by a wide
margin the most important tool of analysis in this area, in part,
paradoxically, because its limitations are most apparent. The
results of individual experiments or studies can be rigorously
challenged on terms universally accepted by social scientists,
and can be examined as carefully for what they do not "prove" as
for what they do. Anecdotal evidence, even that presented by
skilled professionals, has an unfortunate tendency to touch on a
wide range of questions without furnishing the basis for
answering any single one of them.
Particularly on an issue as bitterly fought and important
as this one, therefore, reliance primarily on data from the
\
social sciences seems appropriate and quite possibly imperative.
Id.
140
That does not mean, however, that we are bound by the standards
r "proof" which govern the work of social scientists. Our task
after all, is to recommend policy based on existing knowledge in
an area that will always be plagued by uncertainty. Because of
limitations on the capacity of social science to measure events
outside the laboratory, and because of clear ethical boundaries
on what research can be conducted in this area even in the
laboratory,6 it seems wholly unlikely that the extremely high
standards for "scientific proof" can ever be satisfied one way or
the other on this issue.
The standard more appropriate for our purposes is suggested
by the phrase used by the 1970 Commission: is there a
•substantial basis" for believing that nonviolent but sexually
explicit material is causally linked to sexual violence? If so,
what evidence suggests the opposite conclusion - that no such
link exists? Finally, which evidence on balance is more
persuasive? (This standard was used by us as "the totality of
the evidence" in our discussions.) Because rape is so widespread
and so dangerous an evil, government action against
constitutionally unprotected material might be appropriate if a
"substantial basis" for believing in a causal link between such
material and sexual violence exists, and might seem imperative if
the evidence allows a stronger assessment. Just as government
action against cigarette advertising could not await final,
. s e,e' e.g., Linz (1985) (excluding subjects from
experiment if "psychoticism" or "hostility" score exceeded 1.0 onSymptom-checklist 90); Check (1985).
141
irrebuttable "scientific proof" of the causal link between
cigarette smoking (let alone cigarette advertising!) and lung
cancer, so the government may not be able to await scientific
consensus on the pornography/rape connection - even if such
consensus were imaginable.
II. The Evidence
Because direct experimental research on the alleged causal
relationship between sexually explicit materials and sexual
violence is impossible, or at least unthinkable, we are unhappily
left to examine evidence of an indirect nature. That evidence,
when it comes from the work of social scientists, tends to take
one of two forms: correlational studies and laboratory
experiments. The former is a useful launching point for an
overview of the issue, because it measures statistical
relationships between actual sexual violence and actual consump-
tion of sexual materials. Were no significant relationship found
to exist between those two phenomena even on a statistical level,
any causal connections between that be extremely difficult to
demonstrate through work in the "artificial" setting of a
laboratory. Such a setting is useful, however, for exploring
possible causal relationships between statistically correlated
events? and that is the sense in which experimental evidence is
relied on here. Before either correlational or experimental
evidence is examined, however, it is crucial to consider first
whether sexual violence is a problem which might ever be affected
by social change, and whether, in fact, as an aggregate
phenomenon it has increased during the period in which sexually
142
explicit materials have been widely available.
A. Changes in Rape Rates. That first question is easily
answered. Rape rates do seem to be related to social change, for
they have increased alarmingly during the past 25 years. From
i960 to 1970 the rate of reported forcible rape rose by 95
percent, but that increase seems to have been no more than part
Of an explosion of violent crime generally, which rose fully 126
percent during the 1960's.7 since the report of the 1970
Commission, however, the rate of reported rape has risen almost
twice as fast as violent crime generally,-8 from 1970 to 1983
the rape rate virtually doubled, while the rate of reported
homicides, for example, remained constant.9 In 1970 one out
of every 20 violent crimes was a forcible rape; by 1983 the
proportion had become one out of 16.10
Was this extraordinary rise in rape a "real" occurrence, or
merely a product of increased reporting of rape? The possibility
that increased sensitivity to rape - fueled by movements for
women's equality - led to increases in the willingness of
Individuals to report rapes is not one that can lightly be
' Sourcebook of Criminal Justice Statistics 380 (1984)(hereinafter Sourcebook'n
8 Id. The high point of both general violent crime rates
»nd reported forcible rape rates came in 1980, the former having
risen 60 percent and the latter 95 percent from 1970 levels.
Prom 1980 to 1983 the rate of all violent crime fell 9 percent,
vhile reported forcible rape rates dropped by 7.5 percent. Id.
9
10
Id.
Id.
143
dismissed,11 for rape is highly underreported crime.12
Nevertheless at least three pieces of evidence suggest that the
increase of reported rape is not tied to increased
willingness-to-report. The National Crime Survey, to begin with,
which attempts to gauge actual (as opposed to reported) crime
figures through a scientific public survey, showed no significant
change in the percent of rapes reported to police from the period
1973-1977 to that of 1978-1982.13 Yet between those two periods
the average number of estimated actual rapes increased
substantially.14
Second, the 1978 survey by Professor Diana Russell found an
increase in the "true rape rate" throughout most of this
century;15 thus historically no serious misrepresentation of
11 Rapid social change associated with "women's
liberation" may also be viewed, of course, as making rape itself
more likely - through setting up more possibilities of
"acquaintance rape". See Geis & Geis, Rape in Stockholm; Is
Permissiveness Relevant?^ 17 Criminology 311 (1979).Women raped
by"friends"maybeTess willing to involve criminal sanctions
against their attackers. Thus it is at least arguable that
"women's liberation" may in some respects have had a dampening
effect on rape reporting rates.
12 National Crime Survey figures indicate that no better
than half of all rapes are reported. Sourcebook, supra note 6,
at 274-275.
13 Between 1973 and 1977 an average of 46.2 percent of allrapes went unreported according to the Survey; between 1978 and
1982 the average percentage of unreported rapes stood at 48.2.
Id.
14 Between 1973 and 1977 the average estimated number of
actual rapes per year was 152,877; between 1978 and 1982 the
average stood at 173,353, an increase of 13 percent. Id.
15 D. Russell, Sexual Exploitation, 52-57 (1984).
Professor Russell's survey was conductedinT?78, and so is of
little value for determining recent trends in rape reporting.
144
rends in this area is found in police data. Finally, correlat-
•onal data from recent studies of state-by-state rape rates and
easurements of the status of women indicate only a small,
although significant, relationship between the two.
Rape appears, therefore, to be a phenomenon subject toi
fluctuation, and during the period that sexually explicit
materials have come into general circulation it has been a
phenomenon on the rapid increase. That last fact, however, in no
sense "proves" or even substantially "suggests" a relationship
between the two events; only detailed correlational analysis can
begin, to do that.
B. Correlational Evidence. Our predecessors on the 1970
Commission had no sophisticated "correlational" data before them.
Indeed, the only "correlational" data which they considered was
of the sort discussed above - general trends in the sex-crime
rates measured for time periods in which sexual materials were
becoming more available. Unfortunately, for reasons discussed
below, that sort of evidence is far too crude to be of
significant value, and points, in any case, in no particular
direction. Far superior correlational data has in the meantime
does attest, however, to the fact that, historically, upward
trends in police reports of rape have been consistent with actual
incidence of the crime.
16 Baron and Strauss (1984), for example, found that every
change of one standard deviation in the Status of Women Index ina given state is associated with a change in the rape rate of
only 0.43 rapes per 100,000 population. By contrast, such a
nange in the homicide rate would result in a swing of 1.70
apes, and a one-standard-deviation change in the Sex Magazine
of »„ ati°" Index would cause a Swin9 °E 6-99 rapes (the highest°£ any variable studied). Id. at 200.
145
come to the fore, and it shows that a statistical relationshi
does appear to exist between consumption of certain types oj
sexual materials and rape rates. Both types of data invite th
most careful attention.
1. Danish and Other Cross-Cultural Data. The 1975
Commission was impressed, as was the Williams Committee later, by
studies on Denmark conducted by Berl Kutchinsky in which he found
that relaxation of Danish pornography laws coincided with a
decrease in reported sex crimes. Since that time Kutchinsky'8
work has been repeatedly criticized, and he himself has been
forced to concede that, at least with regard to rape, liberali-
zation of pornography laws was followed ultimately by increases
in reports of rape to police. ' Further, Kutchinsky's approach
fails to be even minimally persuasive for two crucial reasons.
First, he does not account in any meaningful way for other social
forces which might have affected Danish sex crime rates
independently of pornography consumption. He fails to note, for
example, that sex crime rates in Denmark might have been
artificially high during the 20 years after the German occupation
of World War II, a conflict described by one historian of
Scandinavia as "shattering physically as well as emotionally."I8
A drop in sex crimes during the late 1960's and after would thus
17 Kutchinsky (1984), at 24-25. Kutchinsky attempts to
limit the damage of this concession by noting that the increase
in rape reports did not substantially begin until 1977, several
years after liberalization. He is not, however, able to rule out
the possibility that Danish consumption of pornography took some
time after legalization to reach substantial proportions.
18 F.D. Scott, Scandanavia 247 (1975).
146
the result simply of recovery from social disintegration
ht by War. Second, and substantially related, Kutchinsky
fails to consider the case of Norway - a country with a similar
ulture and a similar war experience - which has maintained far
stricter laws against pornography,19 and nas apparently enjoyed
even greater success in combatting sex crimes.2° In the end
Kutchinsky's analysis seems shallow and almost completely without
value for analysis of the American experience and American
policy.
A more appealing cross-cultural approach, but one with only
marginally greater usefulness for our purposes, is that taken by
Dr. John Court (1984). His research has examined the temporal
changes in rape rates in a wide variety of countries in periods
o£ greater or lesser legal control of pornography. His
conclusion, presented with considerable cogency, is simply that
greater legal control of pornography appears to hold down rape
rates as well. Yet for all its resourcefulness Court's work
fails, like that of Kutchinsky, to place the changes studied in
19 See, General Civil Penal Code of 22 May, 1902, Para.
211, as amended by Law of 24, May, 1985 (received in translated
form from Jan Farberg, Norwegian Information Service).
20 According to the Public Information Office of Interpol
the rate of reported sexual offenses in Denmark dropped 14.2
percent from 1970 to 1981. In West Germany, another countrywith liberal obscenity laws used by Kutchinsky in support of his
argument, the rate dropped 19.8 percent during that span. In
Norway, however, the drop was 33.7 percent in reported sex
offenses form 1970 to 1981. These figures are not necessarily
computed in the same manner from country to country and should
thus be considered only with extreme caution. Nevertheless theyao suggest the grave problems in Kutchinsky's selective use of
sex-crime figures from one or two locations unembarrassed by
Historical or cross-cultural analysis.
147
careful historical and cultural perspective: thus SingapOre
South Africa, Australia and Hawaii are all compared with litti,
contextual information. An additional, related limitation on th
helpfulness of his findings arises from his inability to show,
like Kutchinsky, whether actual consumption patterns fit neatly
into the patterns of changing legal regulation of sexually
explicit materials. Our experience of American enforcement o{
obscenity laws indicates that such laws are often honored as much
in the breach as in the observance.
2. Sex-Magazine Circulation. Interesting as the work of
Kutchinsky and Court is, we have had the benefit of receiving a
body of correlational evidence of far greater power. The
research of Baron and Strauss (1984, 1985) supplemented by
others, has shown a strong statistical relationship between
state-by-state circulation rates for the most widely read "men's
magazines" and state-by-state reported-rape rates. That
relationship persists even when every other factor theoretically
associated with rape is controlled for: indeed, they found that
the Sex Magazine Circulation Index has a consistently stronger
statistical relationship with rape rates than any other factor
tested.21 Further, in the model developed by Baron and Strauss
other variables theoretically expected to be related to rape
rates in fact met expectations: those factors (e.g., percent
urban, percent poor) together with the Sex Magazine Circulation
Index explain 83 percent of state-to-state variation in rape
21 See note 16, supra.
rates .22 Two independent studies, by Scott (1985) and Jaffee
22 Scott (1985a). In another study Scott (1985b) found
hat no significant statistical relationship existed between rape
tes*
in the states and the number of "adult theatres" per
* ofl goo residents in each state. That finding, however, is of
iraost no value on several grounds: (1) the study did not use
* Itipl6 regression analysis to examine possible interdependence
*f the variables; (2) the number of "adult theatres" is an almost
° mnletely meaningless figure in view of the fact that each such
theatre will sell a different quantity of sexually explicitterials, aruj no account is taken of that variation; and (3)
•adult theatres" are so restricted by zoning, obscenity laws, and
the need for urban or semi-urban locations that they cannot be
assumed to measure exposure to sexually explicit materials among
males who can, if necessary, purchase such materials through the
In their joint statement Commissioners Becker and Levine
attempt to discount the importance of this correlational evidence
by pointing to a letter from one of the researchers involved,
Hurray Strauss, which states (1) the correlational research does
not "demonstrate" that pornography causes rape," and (2) "the
scientific evidence clearly indicates that the problem lies in
the prevalence of violence in the media, not on sex in the
oedia." Id. at 13. Strauss' first statement is uncontestable:
no correlaTion can, by itself, "demonstrate" causation. Strauss'
concern about "misinterpretation" of his research seems somewhat
bizarre in view of his published statement that his "findings
suggest that the combination of a society that is characterized
by a struggle to secure equal rights for women, by a high
readership of sex magazines that depict women in ways that may
legitimate violence, and By" a context in which there is a high
level of nonsexual violence, constitutes a mix of societal
characteristics that precipitates rape." Baron & Strauss (1984),
at 207. He then intimates that research suggests "social
policies directed toward eliminating or mitigating the conditions
that make rape more likely to occur." Id. It is Strauss, not
the Commission, who has made suggestions ~o"f causal linkage based
on correlational data alone. See also text to note 23.
With regard to his second observation, that violence in the
•edla seems to be "the problem" rather than sex, the research is
**ry far from "clearly" indicating any such thing. Thus it has
wen found that with regard to same-sex interactions, nonviolentbut highly arousing erotic material facilitates aggression
•ubstantially more than "violent" material. Donnerstein (1983b).
wo when, angered males are shown a nonviolent, "erotic" film,
b«h" ,allowed a short delay before testing, their aggressive
°ft toward women has been shown to increase dramatically, to
'vi t»iol higher than for 'similarly treated subjects shown
'del.- «r neutral films. Donnerstein & Hallam (1978). The
tova ;» £actor seems crucial, as measurements of aggression
"d women taken immediately after film exposure tend to
149
(r
and Strauss (1986) have not only replicated the Baron"
Strauss results for different years, but have cast doubt
potential "third factors" which would make the sex-magazine/v-' ~
association spurious. Baron and Strauss offered two
factors as possibilities: (1) a cultural pattern emphasizi
"compulsive masculinity"; and (2) the degree of "sexual
openness" within states. The first of those suggestions wa
undercut by Scott's finding that circulation of men's "outdoor
magazines" is not associated with state-by-state rape rates. in
addition, Baron and Strauss found that controlling for the "index
of legitimate violence" and the general violent-crime rate - both
seemingly plausible measures of a culture of "compulsive
masculinity" - in no way lessened the sex-magazine/rape
correlation. Nor did controlling for measures of the status of
women - a plausible inverse measure of the degree of "compulsive
masculinity" within a given state. Finally, the recent work of
Check (1984) and Zillman and Bryant (1984, 1985) indicates that
under experimental conditions, massive exposure to mainstream
pornography may cause male viewers to become more callous and
domineering in their attitudes toward women. Thus pornography
may itself be a causal factor in creating a culture of
suggest that "erotic" material does not increase aggression.
Donnerstein (1983b); Donnerstein & Berkowitz (1981). Thi»
"delayed reaction" effect is similar to that found by Zillman •.« toBryant (1982, 1984, 1985), in which "massive exposure
nonviolent, degrading pornography over six weeks Pro°ucj|(j
dramatic increases in subjects' acceptance of "rape myths
sex callousness." (By contrast Linz (1985) did not find sucn
effects after a substantially shorter exposure perioa-
Obviously this experimental data is still at a primitive stager
but it hardly warrants the interpretation Strauss gives it.
150
,ii«ive masculinity," and even if a correlation could be
between such a culture and the incidence of rape, the
ociation of the latter with sex-magazine circulation would
till not be proved spurious.
As for the other "third factor" suggested - the degree of
• exual openness" - the recent study of Jaffee and Strauss (in
ress) measured the impact of the Sexual Liberalism Index on the
Baron and Strauss formulae. While finding that sexual openness
,nd tolerance is correlated, to a small but significant degree,
wlth increases in reported rape rates, Jaffee and Strauss
discovered that inclusion of the new index had no effect at all
on the sex-magazine/rape association. While continuing to hold
out hope - against all the evidence mentioned in the previous
paragraph - that a relationship between "hypermasculine gender
roles" and rape rates would render the sex-magazine correlation
spurious, they felt compelled to conclude that their research
"suggests that there may be more to the pornography-rape linkage
than originally expected. That is, the type of material found in
•sss circulation sex-magazines may, as claimed by critics of such
•aterial, encourage or legitimate rape."23
3« Sex Offenders and Pornography. Somewhat less sugges-
23 Jaffee & Strauss (in press) at 10. Rodney Stark, in
snonatratinq Sociology (1985), has claimed to disprove the Baron
*"d Strauss correlation, at least with respect to Playboy's
the<Utlon rates- Id- at 29-31. Because Stark's discussion of
i *s °Per|ly informal, and because the Baron and Strauss
not" have been "Pleated formally by others, Stark's view is
•tud»n?SUasive* See' KOSS (1986) (in large sample of college
kotween • re exlsted a statistically significant relationshipconsumPtion o£ pornography and self-reported sexual
151
tive and useful, but nonetheless important, is correlatio
evidence exploring links between the use of sexually expnc,
material by sex offenders and their behavior. Dr. Gene Abel'
(1985) study, in particular, is directly pertinent to the issue
raised by Baron and Strauss: in treatment of 247 outpatient g
offenders (paraphiliacs), well over half admitted to use of adult
men's magazines or similar material, and 56 percent of rapist
stated that such materials "increased their deviant sexual
interests." Comparison of those offenders who use "erotica" and
those who do not produced only one statistically significant
difference of direct relevance: users of "erotica" maintained
their paraphilia far longer than nonusers. Between those whose
deviant arousal was increased by "erotica" and those whose
deviant arousal was not increased two statistically significant
differences emerged: (1) the aroused-by-erotica subjects
maintained their paraphilia longer; and (2) they had leas
"ability to control their behavior." On the whole. Dr. Abel
concluded that M[e]rotica . . .does not appear to affect
signifi-cantly the behavior of sex offenders." 24
Careful review of Dr. Abel's results and of his oral
testimony, however, tends significantly to undercut that
assertion. To begin with, the mean number of sex crin>es
committed by users of erotica was 29 percent higher than the mean
for nonusers. Dr. Abel lists the difference as "not significant
but does not supply a "p value"; we thus cannot gauge what tn
24 Abel (1985) at 5.
152
al probability is that the difference is explained only by
re 25 The finding of no significance is particularlych8n *
,ling because, according to Dr. Abel's other findings, users
i "erotica" commit the same number of sex crimes per monthot
tually 21 percent more, but once again the difference is
listed as "not significant") and maintain their paraphilia for
ie total months. Mathematically this would seem to compel the
onclusion (already suggested by the statistics on "mean number
f sex crimes") that by the end of their paraphilia, the group
using "erotica" will have committed more total sex crimes than
nonusers. That indeed seemed to be the gist of his oral
testimony, where he explained the "price" paid by sex offenders
s ...
vho use "erotica" to reduce their desire to commit sex crimes:
. . . when you use the deviant fantasy in order
to ejaculate, instead of attacking a kid or
raping someone, it does transiently stop you
from carrying out that behavior. In many
cases, that is the case, but it's a transient
phenomena. And in so using that tactic,
the price you pay is maintenance of your
arousal. That is your arousal stays strong
and will get a little stronger. So over time
you are more likely to maintain your arousal
over a longer period of time, that means
25 Dr. Abel has been asked to furnish the exact "p value"fot this and other comparisons in his written testimony. For our
Purposes the appropriate level of "significance" in a matter such
|* this might be substantially different from that typically used
'" the social sciences. There a statistical difference between
|*o groups is normally not described as "significant" unless
nere exists 95 percent probability that it did not occur by
,J?nce- The probability level appropriate for our use - which,
, f?1.?11' is only to determine whether a "substantial basis" forC1nding exists - might be as low as 70 percent.
153
you can commit more acts. 26
In view of these internal tensions. Dr. Abel's results ate
extremely difficult to use in their present form.27 They seen
clearly to indicate, and Dr. Abel said as much, that use of
"erotica" by sex offenders (outside a treatment setting) is not
"helpful."28 On the other hand they do not seem to rule out,
Dr. Abel's protests to the contrary notwithstanding, the
''.'•' .'*.'i • 'possibility of some important statistical relationship between
use of sexually explicit materials and commission of sex crimes
by this population.
The possibility of such a relationship is clearly enhanced
by several other relevant studies. Thus Dr. William Marshall
(1985) found in an outpatient study that a far higher percentage
of sex offenders currently use "hard-core" pornography than do a
group of demographically similar "normals." Professor Diana
Russell found high correlation in her study, of . 930 randomly
selected adult women: a surprisingly high number of women
victimized by wife rape and stranger rape who said pornography
26 Houston Tr. 100. Earlier Dr. Abel has said the use of
erotica by sex offenders "maintains their arousal over time, and
therefore greater opportunities to commit further crimes occur.'
Id. at 88.
27 Because of his limitation of his study to the role of
"hard-core pornography" (not including the typical "adult
magazines" referred to by Dr. Abel in his study) Dr. Marshall's
results are in no sense directly comparable to those of Dr. Abel-
He does, however, find a pattern of pornography being used so
integrally in preparation for and commission of sex offenses a*
to make his evidence highly pertinent.
28 Ici. at 97, 100.
had played a substantial role in the event. A similar survey of,
200 prostitutes by Silbert and; Pines (1982) found that 24 percent
Of the large number who had been raped "mentioned allusions to
pornographic material on the part of the rapist" - this without
any questioning or prompting by the interviewer. Law enforcement
witnesses we have heard have1 also consistently stated that
pornographic materials are routinely found on the person of, or
in the residence of arrested rapists-. While all of this is(
like Dr. -Abel's evidence, "merely" correlational data, it
suggests reason f,0r further inquiry and research on the use of
sexually explicit nonviolent materials by sex offenders.
4. Conclusions from Correlational Evidence. An overview of
"correlational" evidence available to us ultimately leads to only
one firm conclusion. A highly significant, and not obviously
spurious statistical relationship exists in the United States
between state "adult magazine" circulation rates and sexual
violence. Tha.t relationship may be explained by a causal
connection or it may not? only careful attention to other forms
of evidence can indicate which explanation is more plausible.
Because "adult" magazines contain relatively little violence,29
their connection (if one exists) to rape rates makes an excellent
"test case" for considering the possible effects of the broader
class of nonviolent but sexually explicit materials.
No clear statistical relationships exist, on the other
29 Malamuth & Spinner (1979) (sexually violent content in
;ypoy and Penthouse from 1973 and 1977, amounted to less than
percent of total cartoon and pictorial content).
154 155
158-315 Vol. 1, O - 86 - 6
I1
hand, between cross-cultural measures of rape and sexual^
explicit materials, although such measures if anything tend
slightly to support some relationship between the two. Nor i
there undisputed evidence regarding the correlation of "erotica"
use by sex offenders and commission of sex crimes; it is at least
strongly arguable, however, that such a relationship exists.
Other sources of information may prove more informative j.n
evaluating these ambiguities.
C. Experimental and Clinical Evidence. A "causal"
connection between circulation of adult material and sexual
violence may only be inferred if one or more plausible explanat-
ions exist for how such "causation" could exist. Experimental
evidence is particularly important in testing the likelihood of
such causal links; as noted above, however, ethical and practical
constraints insure that such evidence will always be open to
charges of artificiality and obliqueness.30 Simply put, actual
rapes cannot be staged in the laboratory, nor can known rapists
be subjected to testing which might provoke future violence.
Retrospective "clinical" evidence, although it does generally
relate to "real" rapes by "real" offenders, has the even more
30 Thus Gross (1983) has criticized the research of
Zillman and Bryant (1982) because he suspects the subjects "were
giving the researchers what they thought they wanted." Ijj.» ?'
111. This, despite the elaborate efforts of the researchers to
deceive the subjects into believing that they were most
interested in aesthetic qualities of materials viewed, ratne
than their efforts on attitudes. Unfortunately Gross1 criticis™
may be applicable to virtually any experiment in this area, °
indeed in other areas of inquiry. And he is unable to suggest
any way to surmount the artificiality inherent in labor;
experiments.
156
rippling handicap of relying on faulty, and self-serving,
ory« yet experimental and clinical evidence remain in this
area the most effective tools for testing the "validity" of
correlational data.
Searching the evidence for suggestions of a "cause-and-eff-
ect" pornography/rape connection Inevitably leads down two
different paths. The first observes the capacity of pornography
to effect arousal in the viewer, and examines whether such
arousal can be causally linked to sexual violence. The second,
somewhat more indirect approach examines the effects of
pornography consumption on viewer's attitudes, then considers
whether such changes in attitudes could plausibly affect the
incidence of rape.
1. Arousal. One of the few undisputed properties of
sexually explicit materials is their capacity to cause sexual
arousal in many, if not most viewers.3 One strand of experi-
mental research has attempted to determine whether this arousal,
alone or in combination with other factors, increases or
decreases aggressive behavior in laboratory settings.
a. "Normals". With regard to "normal" subjects (usually
college-age male volunteers), the results have been mixed, or at
least highly complex. Thus highly arousing erotic materials,
"hen combined with prior or subsequent anger, seem clearly to
See e.g., Donnerstein (1980); 1970 Commission Report at
157
(
provoke heightened aggression by males against males.32 But
a recent review of the research Professor Donnerstein made
following, more limited, statement about the effects of exposur
to nonviolent pornography on male aggression toward women.:
. . . The question of whether or not nonaggressive
pornography has an influence on aggression against
women is not simple to answer. For one thing,
there is not that much experimental research
on the topic. Also, studies investigating this
issue have differed in many ways .... These studies
indicate that under certain conditions exposure
to pornography can increase subsequent aggression
against women. What seems to be required, however,
is a lowering of aggressive inhibitions. This
change in aggressive predisposition can come about
in a number of ways. First, a higher level of anger,
or frustration, than that exhibited in a laboratory
setting could influence the effects of pornography
on aggression against women. There is no question
that such levels are present in the real world.
Second, as mentioned earlier, drugs, alcohol, and
other aggression disinhibitors very likely increase
aggressive response to pornography. The main mediating
factor, however appears to be the type of material viewed
prior to an aggressive opportunity. 33
While experimental findings are neither conclusive nor absolutely
consistent, the bulk of research to date supports the conclusioni
that where highly arousing nonviolent pornography is viewed in »
context of anger or provocation, aggressive behavior against
women increases. Outside the context of provocation, in
Professor Donnerstein's view, nonviolent material which i«
"either mildly arousing or leads to a positive affectiv*
reaction" does not appear to increase subsequent aggressiv*
behavior, while that which depicts "unequal power relationship*
32 Donnerstein (1984); Donnerstein (1983b); SapolsKy
[1984).
33 Donnerstein (1984) at 62.
158
with women" or "women as sexual objects" may provoke such
behavior. As part of his belief that the issue warrants "much
more investigation" he notes that the effects of nonaggressive
pornography may not occur with only a single exposure,34 which
would explain varying results in experiments based on single
exposure. Growing habituation to standard "pornography" over the
years among likely experimental subjects may substantially
affect the results of research. 35
b. Sex Offenders. Along slightly different lines, a
certain amount of experimental and clinical evidence suggests
that rapists are aroused by nonviolent, sexually explicit
materials, and that some consciously use such materials to
prepare for and execute sexual violence. Thus rapists are
normally as strongly aroused to consensual nonviolent pornography
as nonrapists; they are, moreover, at least as aroused to images
of mutually consenting sex as they are to those of rape. 36
Does this arousal to mutually-consenting imagery cause some of
them to commit sex crimes which they might otherwise avoid?
Evidence from at least Dr. William Marshall suggests that the
answer may be yes: 33 percent of rapists interviewed for his
study "had at least occasionally been incited to commit an
offense by exposure to one or the other type of pornography
dl
34. !!• Compare Check (1985) with Linz (1984). For further
scussion of varying research results see, supra note 22.
(1985)5
Dinner
See' Saplosky (1984) at 92; Wolchik, Braver & Jensen
Marsha11 & Lanthi-er (1978)? Abel, Recker &
159
T
specified in this study."37 of that group 75 percent reported
that they had at least occasionally used 'consenting' pornography
to elicit rape fantasies which in turn led to the commission of a
1 prape (or an attempt at committing a rape)." A large number of
other rapists in his sample used "consenting pornography" to
"evoke rape fantasies" and consequent arousal. Indeed, fully j2
percent of the rapists in his sample (as compared to none of the
"normals") used pornography "always" or "usually" during
masturbation 39
Dr. Abel, while stating the belief that direct incitement
to rape can be traced to sexually explicit depictions only in
"exceedingly rare" cases, also found that a very high proportion
of rapists use consenting "erotica" to elicit and maintain
deviant arousal. Recent research has shown a high correlation
between sexually deviant fantasies and deviant behavior,40
and many treatment programs for rapists have been predicated on
altering their deviant behavior through changing their fantasies
and arousal patterns.41 Dr. Abel and his colleagues at one
point called for recognition of "fantasy as the pivotal process
37 Marshall Statement at 23.
38 id.
39 Id.
40 Marshall (1984); Abel, Roulean and Cunningham-Rathmer
(1985).
4* Abel, Blanchard & Jackson (1974); Marshall (1973);
Marquis (1970); Davidson (1968).
160
leading to deviant behavior."42 To tne extent that nonviolent,
"consensual" pornography contributes to provoke or maintain
deviant fantasy and arousal in rapists, it may be considered a
"cause" of their deviant behavior.
c. General Population. Turning back to the general
population - that is, both sex offenders and "normals" - it is
important to note two significant theories concerning sexually
aggressive behavior which are predicated on the biological forces
of simple arousal. The first, called the "general emotional
arousal theory," is described in one study as predicting that "by
arousing either the sexual or aggressive drives in an individual,
the overall general level of arousal would be increased, thereby
making both sexual and aggressive responses more probable."
The second theory, which is more subtle and more flattering to
the human will, adds an additional cognitive layer to the
general-arousal theory:
While evolutionary forces may have provided
a biological basis for a link between sex and
aggression, it is our contention that learning
variables may accentuate or attenuate this re-
lationship. We hypothesize that in human beings
the biological link plays a relatively minor role
and that to a large extent the relationship
between sexual arousal and aggression is mediated
by learned inhibitory and disinhibitory cues. 44
Both theories associate arousal with aggression; the second
42
43
Saplosky (1984).
44
Abel, Blanchard & Jackson (1974), at 474.
Abel, Becker & Skinner (1980), at 138. See e.c
nnn Malamuth, Feshback & Jaffe (1977); Donnerstein,uonnerstein & Evans (1975).
161
merely adds the additional mediating factor of "leat
inhibitory and disinhibitory cues." If this association j*• 8
ultimately found valid, then a "casual" connection bei-u'-ween
circulation of highly arousing sexually explicit materials an<j
the incidence of rape would be both clear and easy to expiai
more sexual arousal in society (as a consequence of pornography)
inevitably produces more sexual and more aggressive behavior
both of helpful and harmful varieties. If viewing sexually
explicit materials cause Americans to have more sex, then some of
that incremental sexual behavior will be of a sexually aggressive
nature. The "rate" of rape as a percentage of all sexual
intercourse will not change, but the absolute number of rapes,
and the number of people victimized by rape, will increase.4*"
The ability of sexually explicit materials to arouse those
who view them may, therefore, be in itself a "cause" of sexually
aggressive behavior - perhaps simply for rapists, or perhaps in
45 Rape statistics, of course, measure only the number of
such acts, and the "rate" of such acts for a constant population
group. They do not, and cannot, measure rape as a percentage of
all sexual behavior.
46 Some general support for this hypothesis may be found
in the fact that as rape dramatically increased in incidence i"
post-war America, so did sexual activity among the young - the
age group most prone to sexual violence. Thus only about one-
half of males 21 years of younger had engaged in sexual
intercourse at the time of the first Kinsey study. A. Kinsey, •e currently ovetercourse at the time of te rs . .a^., Sexual Behavior in the Human Male 316, while currently
90 percent of boys appear to have begun such activity by age 1
R. Coles & Stokes, Sex and the American Teenager 73 (1985) (~n^
Coles & Stokes sure is somewhat ambiguous on this P°.xn !
ha<)
another table the percent of 18 year olds "having n
intercourse" is listed at 46 percent. Id_. at 73. In any ca^
the trend toward earlier and greater sexual involvement is ci ^
for in Kinsey 's survey only some 31 percent of all 18 yea^j.
males had experienced sexual intercourse. Kinsey, supra, at
162
re general way. This evidence does not distinguish sexual
•al as being more culpable than, say, alcohol as a causal
tor in raPe ~**- does suggest that the more highly
using the material is, the greater will be its ultimate
ffect. Thus highly explicit sexual material will likely have
of an impact than material which is less sexually arousing.
Tne evidence does not indicate, moreover, that "learned" cultural
res and social attitudes have no effect on preventing rape;
rather, those factors may play a significant role in mediating
the negative biological forces that push men toward rape.
2. Effects on Attitudes Toward Rape - "Disinhibition". If
irousal to rape is mediated by learned attitudes, however, a
change in those attitudes may in itself change the likelihood of
rape occurring - may become a "cause" of sexual violence.47
Thus it is crucial to consider what the available experi-
mental evidence shows about the effects of viewing nonviolent
•exually explicit materials on attitudes toward women and toward
rape. Although Professor Neil Malamuth and others have examined
In some depth that question with regard to sexually violent
•aterials, only very recently has substantial evidence emerged
•bout materials which are similar to much of what is contained in
the "adult magazines" examined by Baron and Strauss.
Despite some surface tension in the results, that evidence
•trongly suggests that such materials, when viewed in substantial
"•ntlties over extended periods of time, tend to increase
Sge. generally, Malamuth (1984).
163
r
callousness toward women and acceptance of "rape myths". TkinUs
six hours of viewing "commonly available (nonviolent] pornograp.
hy" over a six-week period caused men in several experiments t
become more accepting of "gender dominance" and "Se
callousness" - to trivialize rape, and to discount the traun\a
suffered by its victims.49 The careful and extensive study Dv
Professor James Check found repeated exposure to the "most
prevalent" form of nonviolent pornography currently available -
that depicting the women subjects in a "dehumanized fashion" -
had even stronger effects on subjects' "reported likelihood of
rape" and "reported likelihood of forced sex acts," than sexually
violent materials.50 Both types of material had particularly
profound effects, it is important to note, on those subjects with
higher tendencies toward psychoticism.51 Exposure to
"nonviolent erotica" - described as being the type of depiction
used in sex education and therapy materials - was found to have
at best an ambivalent effect: likelihood-to-rape scores
increased among those viewers to a level where they were not
significantly different from either those in the "no exposure" or
48 Zillman & Bryant (1985b).
49 Check (1985), Zillman & Bryant (1982, 1984);
Donnerstein (1984).
50 Check (1985), at 49.
51 Id. at 53. Indeed, subjects with "low P" scores were
not signiTTcantly affected by any of the sexually exP1,11gtmaterials, a finding which may call into question ti
conclusions about the effects of pornography independent of *
specific vulnerability of individual subjects, and which supP°
the role of a well-developed moral sense in mediating the effec
of exposure.
164
the "dehumanizing pornography" groups.52
Only one study currently extant seems to cast doubt on the
tendency of viewing nonviolent pornography to increase "rape myth
acceptance." In a recent doctoral dissertation Daniel Linz found
that exposure of university psychology students to either two or
five full-length X-rated nonviolent films over, respectively, a
three- or ten-day period did not affect their attitudes toward a
rapist or his victim in a simulated rape trial shown two days
after exposure was completed.53 such attitudes were dramati-
cally affected, by contrast, in a comparison group observing four
extremely violent R-rated films with far less sexual content.
Unfortunately, Linz' study is not directly comparable with
previous ones in this area. First, Linz limited the time frame
of exposure to less than two weeks.54 Second, his study did not
measure the subjects' scores on "likelihood-to-rape" or "likeli-
hood-of-forced-sex-acts" scales similar to those used by
52 Id. at 49, 53. It is notable that on the three
measures oT~ sexual violence in which no-exposure and "violent
pornography" scores were significantly different, the "erotica"
scores were slightly closer to those of the latter. Professor
Check thus seems to have overstated the importance of his
findings that "erotica" and "no exposure" scores were not
•statistically significant".
53
54
Linz (1985).
Zillman and Bryant (1982, 1984, 1985), by contrast,
used a six-week exposure model. Check (1985) used a time frame
similar to Linz, but tested for prior consumption of pornography
Je In9 that only those viewers with high previous consumption
flnlra££ected bY exposure to new materials. Thus the negative
naings Of Linz may well have to do with low prior exposure to
used rfphy amon9 his subjects - precluding, in the short time
infra t
dei'eloPlnent of the effects of long-term exposure. See,text to note 57.
165
Professor Check but rather studied subjects' reactions vto «
simulated rape trial. Reaction to the plight of a specific ra
victim in a simulation is not as direct - and so at ie
arguably not as useful - a measure as answers to questions about
what the subject himself desires to do. Because his study HI
not include, as did Check's, comparisons based on his subject '
prior viewing habits, Lihz' results must be treated with extreme
caution. It is possible that the strong reaction to R-rated
violent films was simply a function of low prior exposure to
those films - the films may have their effects because of "shock
value."55 (College-age participants in studies of this nature
are known, by contrast, to have previously seen large quantities
of "commercialized erotica" and so would not likely have been as
jarred by seeing more of it.)56 The study did not measure the
effects of X-rated violent films, which would have served to
indicate the role of sexual explicitness in mediating the effects
of viewing violence.
Despite its methodological limitations, the Linz dissertat-
ion does contribute one highly important finding to the data on
non-violent material. In a follow-up study of the participants
in his experiment Linz conducted careful "debriefing" of all
subjects with regard to the specific material each had seen, then
55 see, Zillman, Bryant & Carveth (1981) (viewing
bestialityTrTcreased aggression due to "annoyance summ£"°'J by
The shock value explanation for the Linz data is strengthen
the fact that later "debriefing" treatments over a f ** ™he««
period seemed completely to reverse the effects of viewmy
materials. Linz at 96.
56 wolchik, Beaver & Jensen (1983).
166
T
,,,red their attitudes toward rape after a six-month period.measul
those subjects who had seen, then been "debriefed regarding
rated violent and R-rated nonviolent materials, a dramatic
duction in "rape myth acceptance" occurred - with virtually no
difference between those two groups in their final scores.
• Debriefing" was thus seen as a success for both groups.
Subjects who had seen X-rated nonviolent materials, by contrast,
showed only the most minimal decline in "rape myth acceptance"
after "debriefing" the lapse of six months - so that at the
point of follow-up measurement they showed substantially higher
toleration of rape than either of the R-rated groups.57 The
significance of this finding, not recognized by Linz himself, is
Its tendency to show long-term effects of "X-rated" material even
in the face of positive efforts to "educate" viewers. In the
'real world", as opposed to the laboratory, viewers of sexually
explicit materials normally receive messages - "inhibitory cues"
- contradicting those in the materials they watch. The Linz
study provides tentative evidence that for sexual materials with
« high degree of explicitness, such real-life "debriefing" may be
unsuccessful.
The overall results of work on "long-term" exposure to
'tandard, nonviolent pornography was confirmed and summarized in
• statement by Professor Donnerstein in 1983:
Let me end up talking in the last couple of
minutes, about the long term research. Researchers
like myself and Neil Malamuth at UCLA are looking
at massive long term exposure to this material.
57 Linz (1985), at 96-98.
167
1
Some interesting things occur. If you expose male
subjects to six weeks' worth of standard hard-core
pornography which does not contain overtly physical
violence in it, you find changes in attitudes toward
women. They become more calloused towards women.
You find a trivialization towards rape which means
after six weeks of exposure, male subjects are
less likely to convict for a rape, less likely to
give a harsh^sentence to a rapist if in fact
convicted.58
Professor Donnerstein went on to say:
In our own research we are looking at
the same thing. Let me point out one thing. We
use in our research very normal people. I keep
stressing that because it is very, very important.
What we are doing is exposing hundreds and hundreds
of males and now females to a six-week diet of
sexually violent films, R-rated or X-rated or
explicit X-rated films. We preselect these people
on a number of tests to make sure they are not
hostile, anxious or psychotic.
Let me point out the National Institute of
Mental Health and the National Science Foundation
and our own subjects committee will not allow us
to take hostile males and expose them to this type
of material because of the risk to the community.
They obviously know something some of us do not. 59
Although Professor Donnerstein himself has recently emphasized
most the harmful effects of violent depictions, the research
strongly seems to support the proposition that longer-term,
substantial exposure to "standard" nonviolent, sexually explicit
materials acts as a "disinhibiting cue" for rape.
3. Overall Evidence for "Causation". No experiment has,
for the reasons suggested by Professor Donnerstein, tested the
->8 Public hrgs. on Ordinances to Add Pornography
Discrimination Against Women, Minneapolis City Council, Sess^^i
31 (Dec. 12, 1983).
59 Id. at 32.
168
effects of nonviolent, sexually e.xplicit material on the
Aggressive behavior of known sex offenders or, indeed, those with
even a tendency toward psychoticism. Experiments with "normal"
subjects, however, have suggested two separate, but guite
possibly interdependent means by which such material could
heighten the probability of sexual violence. The simple capacity
of nonviolent material to produce strong arousal in both
offenders and the general population may in and of itself
produce higher levels of sexual violence. Of equal importance,
"standard" commercial pornography may over time and with
significant exposure work to undermine "learned" inhibitions
against sexual violence. While "adult men's magazines" have not
been the normal focus of experimental investigation, the material
they contain is sufficiently arousing, and sufficiently tied to
views of women only as "sexual objects," as to make the
reasonable inference that these findings are applicable to them
as a class. Thus the Badgley Committee in Canada found that in a
group of "adult" magazines essentially the same as those studied
by Baron and Strauss, photographic depictions of sexual bondage
were three times as frequent as oral-genital contact, five times
as frequent as vaginal penetration with penis or finger, and ten
percent more frequent even than any form of kissing. While
6" Badgley Report at 1223. Of course graphic depictions
°f genitalia of nude models in such magazines - often with pubic
f*1. shaved ~ serves as well to reduce those shown to the statusof "sexual objects". This general description of magazinesevaluated by Baron and Strauss and others 'should not be taken as
specific to any one of them. Individual differences in format,ana style and content may be crucial.
169
t r
further research is clearly indicated to determine the effects Of
this extremely common material, at present it may fairly be seen
as falling within the range of materials as to which current
experimental and clinical evidence is highly relevant.
D. Evidence Against Causation. Studies of both arousal
and attitudinal effects of viewing nonviolent materials thus
provide several suggestive "causal" links between such viewing
and sexual violence. What is the evidence against such a
connection? If substantial enough, such data might preclude
forming any opinion about the plausibility of the causal link
suggested by the correlational data, in'combination with indirect
experimental and clinical data.
Unfortunately evidence which contraindicates the existence
of a cause-and-effect relationship between nonviolent materials
and sexual violence is slim. Short-term exposure of normal
subjects to "mild erotica" has been shown to have negligible (and
in some cases positive) effects on aggressive responses toward
women in the laboratory.62 As discussed above, results of
short-term exposure to highly arousing material have been to the
contrary, with enhancement of aggression occurring in cases with
"prior anger."63 Long-term exposure, however, which seems the
condition most likely to resemble actual behavior, seems clearly
61 Thus Abel (1985) focused on such material in his study
of sex offenders. As discussed above, supra text to notes 21-23,
Dr. Abel's findings are ambivalent but troubling.
62 See Donnerstein (1984, 1980A).
63 Donnerstein & Hallam (1978).
170
to disinhibit subjects regarding sexual violence. And of course,
the reaction of paraphiliacs even to brief exposure to "mild
erotica" is far from clearly negligible; if anything, the studies
point toward some use of such material by sex offenders to
initiate and maintain the deviant fantasies which help push them
toward more offending behavior.64
Nor is there substantial evidence showing beneficial
effects of "standard" nonviolent pornography. It is crucial to
note that when asked whether exposure to pornographic materials
can ever reduce commission of sex crimes by paraphiliacs over the
long term, Dr. Abel responded with a flat denial.65 Tne Fraser
Committee found, on a more general level, "there is no research
documenting the beneficial effects of pornography," a proposition
that is somewhat misleading but generally true. In sex therapy
and sex education settings, research by Dr. Abel 66 and others
suggest that such material may be useful, and the work of
Professor Check, discussed above, indicates that materials which
are overtly educational or therapeutic may be substantially
"harmless" even when viewed outside a controlled environment.
Studies for the 1970 Commission found that some sexual materials
helped ease sexual tension and promote "liberal" attitudes
toward sexuality - a result that may be seen as "beneficial"
For a discussion of the evidence on sex offenders
presented by Dr.Abel and Dr. Marshall, see, supra text to notes
21-24, 34-40.
65
66
Houston Tr. 100.
Fraser Report at 98.
171
according to one's basic assumptions regarding sexual morality
Yet with regard to strongly arousing, nonviolent materials, both
Dr. Abel's judgment concerning sex offenders and the Fraser Com-
mittee's findings about the general population seem well founded.
III. Conclusion
Ultimately the empirical evidence suggests the following
conclusions: viewing nonviolent, sexually explicit material
similar to widely circulated "adult magazines" is statistically
related to a higher probability of rape. (Thus, for example,
Wyoming has a "sex-magazine circulation rate" 45 percent higher
than Montana's, with a rape rate 57 percent higher. Baron (.
Strauss (1985).) That relationship is not only highly signific-
ant, and constant from year to year, but it is not "spurious"
when other potential "third factors" are considered. Evidence
from both experimental and clinical studies demonstrates at least
two possible ways in which that correlation might be explained by
"causation": (1) through the simple arousal properties of such
materials, and (2) through their disinhibiting qualities, their
capacity to change attitudes regarding sexual aggression. The
evidence is nonetheless far from conclusive, and points towar
the need for substantially more, and better-focused research. A'
this point, little or no evidence exists which shows any
beneficial effects of such materials.
It is useful to consider the weight of this data again
172
that which supports our previous finding that sexually violent
material is causally related to sexual violence. For that
conclusion we had no correlational evidence demonstrating a
•real-world" statistical relationship between the material and
the behavior. By contrast, the experimental evidence was
somewhat stronger - showing, for example, "negative effects" from
short-term as well as long-term exposure. Sexually violent
material is no more arousing to viewers (even to known rapists)
than is "standard" nonviolent material. (Abel, Barlow, Blanchard
(, Guild (1977) In the one study which directly attempted to
compare the effects on attitudes of sexually violent material
with effects from "dehumanizing" material and "erotica," the
results showed no significant difference in the most crucial
areas.67 only a well-founded intuition that direct depictions
of sexual violence are more likely to produce such violence
allows us to conclude that they are more "harmful" than non-
violent materials; the evidence from social science is at best
ambivalent on the issue.68 our task is not an easy one, because
67 Check (1985). Indeed, Check found that on many
measures sexually violent materials produced less "negative
effects" than "dehumanizing pornography" - although not by
"significant" margins. "Erotica", of course, was also found not
to be "significantly" different in its effects than "no
exposure". See, supra note 52.
68 It is useful, as well, to compare the strength of our
conclusions in this area with those of the Advisory Committee to
the Surgeon General in an area which was at the time similarly
contentious and difficult - the health risks of cigarette
smoking. The evidence relied on for the Committee's conclusion
was overwhelmingly correlational - showing higher death and
Iness rates among smOKers than in non-smokers. The Committee
can?. d fullv that correlational evidence did not show
and looked to animal experiments, clinical data, and
173
with widely different backgrounds and substantially differe
ideas about what constitutes "proof" of a given fact, we are
highly unlikely to reach consensus on highly disputed questions
With regard to the relationship between sexually explicit
materials and sexual violence we will each carry away different
levels of skepticism about the state of currently available
evidence. And we will know, too, that our stated conclusions
may be swept away by new research. Yet that does not relieve us
of the obligation to state, not as scientists proclaiming "fac(.«
but as policymakers confronting risk and probability, that wide
circulation and consumption of materials similar to "adult men's
magazines" must be a matter of concern among those seeking to
combat sexual violence. There is at least a substantial basis,
"population studies" (i.e., retrospective studies of smokers vs.
control groups). Surg. Gen'l of the Pub. Health Serv., U.S.
Dept. of H.E.W. 26-27 (1964). With regard to lung cancer,those
additionalforms of evidence were sufficiently supportive of the
correlational data to allow the Committee to conclude that
" [c]igarette smoking is causally related to lung cancer in men";
with regard to women the data allowed the lesser conclusion that
the data "point in the same direction." Id. at 31. As for heart
diseases, the Committee found that there existed a strong
correlation between coronary disease and smoking, but found that
the current explanations for causation from experimental and
other evidence "do not account well for the observed
association". Id. at 327. Instead of throwing up its hands in
the face of difficult and conflicting evidence the Committee said
simply: "It is...more prudent to assume that the extablished
association between cigarette smoking and coronary disease has
causative meaning than to suspend judgement until no uncertainty
remains." Id.
It would be presumptuous to compare the quantity of
evidence before us with that reviewed by the Surgeon General *
Committee; research on "pornography" is still in its infancy-
But our responsibility to be as prudent as possible is the same,
and the correlational evidence before us combined with at least *
substantial strain of experimental and clinical data make
prudent to advise the public of the risks of the materials f°r
which statistical data do exist.
174
if not a preponderance of the evidence, to believe that such
aterials are a part (if only a small part) of the explanation
for that cruel plague.
Acknowledgement
I am deeply grateful to Dr. Edna Einsiedel, The Commis-
sion's staff social scientist, for her review of, and comments
on, the preliminary versions of this statement. The foregoing
represents, however, only my own views and not necessarily hers.
All references in the text and notes are to studies cited in
the Report on Social Services of the Commission, except where a
full citation is given.
175
Personal Statement of Commissioner Frederick Schauer.
Pornography, in its most explicit and offensive forms
commands our attention in a way that few other things do.is
there, before our eyes, and in our minds thereafter, and its very
thereness makes it hard to ignore it and hard to be dispassionate
about it. Most importantly, the way in which the pornographic
item demands our attention makes it hard to generate that level
of detachment that, however personally difficult, is an essential
prerequisite of open-minded and intellectually honest inquiry.
The eleven of us find ourselves on this Commission for different
reasons. Although I consider myself as moral as the next person,
and more moral than most, I do not deceive myself into thinking
that my appointment to this task was a function either of my own
morality or of my ability to identify, to reflect, or to speak
for the moral values of others. These are important functions,
and I am gratified that they have been represented on this
Commission, but I have seen my own role differently.
As a teacher in a university, as an academic, and as a
scholar, I have been asked to bring to our work some degree of
knowledge about constitutional law in general and the law of free
speech in particular, as well as some knowledge about the law of
obscenity. But to be an academic is not to know about certain
things, or even to have certain talents of intelligence,
analysis, or creativity. Nor is it to hold an appointment in
university, for it is more than that. It is to be willing to
pursue an inquiry in the most intellectually honest way possiblei
176
0 be open to new ideas and to challenges, to follow the inquiry
here it leads regardless of personal views, to be free to reach
conclusions without having to serve an external constituency, to
able to make the best case for the opposing view and then
confront that best case rather than the worst case, and to be
illing to consider today that what one believed yesterday might
be wrong.
This is an ideal, and it is an ideal that none of us reach.
But it is the ideal that I take to have guided my aspirations for
the work of this Commission, and especially to have guided my
aspirations for my own role among the Commissioners. As I look
back on what we have done, I am pleased with the way that our
final product measures up against this standard. We have dealt
with issues that have divided us, and that divide society, yet we
have been able to agree on a great deal, we have been able to
talk even where we have been unable to agree, and we have been
able to put together a final report that explains rather than
suppresses disagreement.
In their own statements the other Commissioners have
concentrated largely on the issue of pornography, and on their
reactions to it. I believe these issues are important, or else I
»ould not have agreed to serve on this Commission, but for me
"hat ig even more important is the nature of the inquiry and the
nature of the product, and what it says about the style and level
Public discourse. It is not a necessary truth that the world
as to be divided into liberals and conservatives, good guys and
bad guys, reactionaries and radicals. Nor is a necessary truth
177
(I
that adjectives must substitute for analysis, that all th.
matters is what can be summarized in a headline or a three minute
news segment, and that one good quote is better than a hundred
pages of careful thought. To me our process and our product is a
rejection of much that is worst about the nature of public
discourse. It trusts the public to understand difficult issues
if the various positions can be explained. It trusts the public
to read and to understand a large amount of factual information.
It records agreement where it exists without exacerbating minor
differences, and it records disagreement where it exists without
feeling compelled to reduce every serious disagreement to who won
and who lost. It is a report that is designed to be read rather
than summarized, to be thought about rather than used as rallying
cry or flag of battle, and to be as much the beginning of serious
discussion and debate rather than the end of it.
None of us can be expected to agree with every word, every
line, every fact, and every recommendation contained in these
pages. Discussion has resolved many of our differences, just as
it has created new ones. Yet we expect to continue thinking
about this issue, just as we expect others to. We deal here with
an issue that involves sex, physical harm, privacy, morals, the
environment of a community, the idea of community itself, tne
status of women, sexual preference, and a host of other issues
that divide this and other societies. Faced with these divi-
sions, we could have yelled at each other, chosen up sides, an°
looked for further reasons to disagree. But the world has n°
shortage of people who are looking to create or to accentuate
178
^visions. It does need people who are willing to try to heal
not by trying to persuade other people to adopt your point
f view, but instead by reaching out and trying to understand
heirs. We have tried to do this, and we have succeeded more
than most. This Report contains a great deal on the issue of
ornography, and there seems little point in adding to that
here. But in thinking about pornography, this Report also says
something about thinking, and I hope that part of our mission and
our product will not be neglected.
179
Statement of Deanne Tilton-Durfee
My entire adult life has been spent in the field of ,
welfare and child protective services. As a result, m
perspectives on the effects of pornography have been primarij
focused on how these materials affect children and thei.t
families. However, in the course of the past year, it has become
necessary to expand the boundaries of my concerns to include
co-related issues such as adult victimization in the production
behavioral effects from the consumption, and crimes related to
the production and consumption of pornography. Moreover, because
a credible analysis must be a balanced one, I have found a
critical need to weigh carefully the impact of any recommendation
that might threaten the integrity of the First Amendment or
unnecessarily limit choices available to the American public.
I have no doubt that there is very real harm resulting fron
the production, distribution and consumption of some pornography.
Quite understandably, the nature and degree of the harm has been
difficult to define. It is possible that establishment of a
cause and effect relationship has and always will be an impos-
sible task, given the human variables involved. In any case, it
is clear that harms or benefits from consumption cannot be
generalized accurately in that reactions to explicit materials
will depend on the basic attitudes, situations, self-concepts,
mental health, support services, and personal and sexua
opportunities available to each individual consumer. Certain V<
mere exposure to pornographic materials does not create crimina
behavior. More than one observer of our Commission's work
180
T
n0ted that such a connection would render each Commissioner a
otential sexual deviant.
It is therefore important to acknowledge that we cannot
scientifically show that exposure to sexually explicit materials
affects the behavior of most consumers. It is also important to
acknowledge that we have no business regulating any expression in
words or pictures without good cause. We do, however, have an
obligation to protect those who are vulnerable to victimization,
to prevent and deter crimes committed in the production or
distribution of pornography, and to provide methods by which
communities can preserve the quality of their neighborhoods.
CHILD VICTIMS
I wish to focus on the victimization of children for several
reasons. First, because this is my area of expertise, second,
because I believe children are often given patronizing support
but little genuine respect as valuable members of our society,
and third, because children are clearly the most vulnerable of
all who may be affected by pornography. This is not only because
of their developmental limitations, but because there is an
assumption that parents or other trusted caretakers can and will
protect them. Moreover, I believe that the roots of so much of
the demand for pornography and the exploitations in the
production and forced consumption of pornography lie in the
childhoods of those involved.
Because children are such defenseless and quiet victims,
*nd because those who exploit them seem rarely to meet the public
stereotype of the "child molester," the very existence of child
181
f r
sexual exploitation has been the very slowest of all offenses
emerge. There is a profound reluctance on the part of th
American public to respond to this tragic dilemma. This relat
to a disbelief that this kind of thing could happen, a lack Of
confidence in resources available within the various social and
legal service systems, and the suppression of painful memories on
the part of adults who themselves suffered as child victims and
who were neither believed nor rescued.
As our social and legal systems have responded to the
emerging revelations regarding sexual exploitation of children, a
common trend has been that the ages of the victims have become
younger and younger. Although we had begun to acknowledge the
reality of the exploitation of adolescents in the production of
pornography, we found that pictures of pre-pubescent children,
toddlers, and even infants in sexually explicit depictions became
increasingly prevalent. This trend toward the inclusion of very
young children in pornography correlates with an identical trend
in the physical abuse and sexual exploitation of children
throughout the country.
Recently, communities throughout the United States have
been shaken by disclosures of major multi-victim and
multi-perpetrator child sexual molestations within preschool
settings. From one end of the Country to the other, children are
coming forward as young as three and four years of age to relate
stories strikingly and frighteningly similar regarding the mos
cruel and perverted sexual abuses imaginable, perpetrated by
182
trosted caretakers and responsible members of the community.i
cach time one of these cases emerges, the local community and its
social and legal systems are so overwhelmingly shocked and
incredulous of what they are hearing from these tiny youngsters,
the process of intervention and prosecution is awkward, and
usually unsuccessful.
One common theme that emerges repeatedly is the statement
by the children that their pictures have been taken in sexually
explicit poses while involved in perverted sexual activities.
Other children have spoken of boxes of pictures being carried
away just prior to police searches. In my opinion, there is
little doubt that there is a connection between the ritualistic
molestation of the children involved in the many alleged
preschool multi-victim, multi-perpetrator molestation cases, and
a child pornography market. However, since we have failed to
discover pictures to substantiate this belief, the existence,
nature, extent and those responsible for this market have not
been determined. The recommendation for a national task force
to study possible relations between these preschool sexual rings
and an organized child pornography market is what I consider one
o£ the most significant recommendations in this report.
Many other recommendations included in the Child
Pornography section are particularly encouraging including those
which strengthen support services for the child victims,
1985.Roland Summit, M.D. Too Terrible to Hear, November 20,
183
sensitize and improve the effectiveness of legal/judi
procedures to accommodate the child victim, and those whlch
provide children with information and skills to prot
themselves against those who might exploit them, whether or no.
the perpetrator is a stranger, trusted adult or a parent
FAMILY LIFE EDUCATION
I truly believe that a significant measure in th
protection of children and subsequent generations against
exploitation lies in the incorporation of family life preparation
programs within school systems. This is a concept which wa«
opposed by some of my fellow Commissioners, and certainly by many
parents in the general public. However, the challenge of raising
healthy children is perhaps the most significant task that will
be faced by the largest number of students in American schools. A
large percentage of children who become involved in pornography
and prostitution have run away from violent or exploitive homes.2
Most reported child molestation is perpetrated by a family
member.3 In other words, if we depend completely on parental
guidance, many children will never receive the benefit of
information regarding their rights and responsibilities in making
personal choices and the requirements of healthy parenting.
Other children's own healthy experiences at home can be enhance
by age appropriate curriculum which clearly must respect the t
1 UCLA Bush Foundation Report. Status °f fon<^furi3i I|L- ^"
Angeles County, Focus on Runaway and Homeless Youth (laeb) •
3 Child Welfare League of America. Too Young to
the Status of Child Abuse in America (1986).
184
oarents in determining life styles, cultural practices, andof P
ious preferences. It seems incredible to me that we are
illing to focus concern and educational resources on
^\na healthy parenting and inter-personal skills at aproi"°tl y
,evel commensurate with our commitment to other curricula which
be of far less importance in the lives of future
generations.
I would hope that educational systems throughout the
country will follow the examples set by many school systems,
including Los Angeles County, in responding to this major
Investment in our Country's future.
EXPOSURE OF CHILDREN TO EXPLICIT AND VIOLENT MATERIALS
The question has arisen regarding the effects of adult
pornography on children. Children at various ages process
Information differently, and the psychological sense that
lonething has an erotic meaning comes biologically and culturally
• 1th age. (Compare the reaction of a 17 year old and the
reaction of his infant brother to the sight of a woman's
breasts.) There are variations in how individual children
<J«velop intellectually and physically, and there are changes in
children's vulnerability at critical stages. Moreover, a
Particular child's reaction to sexually explicit stimuli will
4'pend to a great degree on that child's personal strengths and
'••Uial and social structures.
For obvious ethical reasons, we cannot condone large scale
68 of the effects of exposure to pornography on various age
°f children. However, one can surmise from the
185
availability of information we have regarding developmental age
vulnerabilities of children that those in the early adolescent
age group might be the most susceptible and the least capable Of
managing social and psychological dilemma produced by exposure
to pornography.4
Whatever the actual impact may be on children at any age
and given our inability to be scientifically exact on that issue,
it seems clear that we have a responsibility to protect children
against whatever potential harm may result from such exposure.
For this reason, I strongly support laws which prohibit the sale
of pornographic materials to children and prohibit children's
entry into establishments which specialize in "Adults Only'
materials. I am also pleased with the voluntary actions taken by
many businesses to limit children's access to sexually explicit
materials.
In my opinion, violent materials, sexual or non-sexual, are
cause for the most serious concern regarding potential negative
effects on children's attitudes and behavior. These materials
have become increasingly pervasive in our culture. There is a
critical need to seriously consider how we can effectively
discourage proliferation of these destructive messages which
reach out to children on television, in theatres and even by way
of their toys and comic books.
There are some who believe that restrictions placed upon
4 Michael Durfee, M.D. A Child Developmental Perspectjv..
to Conceptualize Possible Effects of Pornography on
(March 11, 1986).
186
tne adult consumption of pornography should be as strong as
trictions on children's consumption of pornography.
The rationale given is that anything available to adults will
eventually fall into the hands of children. Although there is
little doubt that childhood curiosity will creatively find access
to "forbidden" materials, I do not believe the "equal
restriction" perspective is realistic or an avenue of choice.
The laws of our society currently place many differentiated
restrictions on adults and children. Certainly, the negative
effects of alcohol consumption on children who access their
parent's liquor cabinets is clearly established. We recommend
closer parental supervision and either removal of the alcohol
from the home or locking the doors of the liquor cabinet. When
children become alcoholics, a growing national concern,
recommendations include individual and family counseling, or
Alcoholics Anonymous.
We can develop parallel responses in relation to children
accessing their parent's pornography -- closer parental
supervision, use of lock boxes on televisions with cable
programming, and mental health or other services for children
exhibiting inappropriate or anti-social behavior following the
consumption of pornography. Again, while we should not deny the
Potential harm that pornography may inflict on children who view
»t» it is extremely important to keep sight of other possible
c«uses of what we consider to be negative behavioral effects. If
* child who has been exposed to pornography begins exhibiting
"appropriate sexual behavior, we must be extremely careful not
187
158-315 v°l- 1, O - 86 -
to focus solely on the pornography, denying the possibility th
the child may have been molested or, on the other hand, denied
warm loving relationships within the family unit.
Children who have a well-integrated and reinforced positive
sense of self are less apt to accept violent, callous, impersonal
images of other people as part of their personal concept of life%
Children who have healthy age-appropriate images of affectionate
behaviors are less apt to accept perverse or violent destructive
images as part of their own internal or external self. They <J0
need social support systems to absorb confusion when it is
present and to provide structures that allow them to explore
their own responses to such stimuli.
PRIORITI2ATION OF RESPONSE
The Commission's majority vote to encourage allocation of
obscenity intervention resources in a prioritized manner has
caused some concern on the part of those who believe all
categories of pornography to be equally damaging. It is clear
that current law enforcement resources are inadequate to respond
effectively and appropriately to all types of pornography at all
times. The prioritization should assist in focusing attention on
those violent, degrading and dehumanizing materials that have
gradually emerged, with impunity, as a major market. This does
not preclude pursuing action against other material. However, it
is the violent and degrading materials that reflect the changing
nature of pornography in America, a major impetus for t
creation of our Commission. We saw these materials, we were
shocked by them, and our reactions and concerns about then
188
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be and were reflected in the decision to give them first
iority in the allocation of law enforcement resources.
ABOUT WORDS
It was the majority opinion of the Commission that law
enforcement agencies should not be encouraged to commit resources
to the prosecution of the non-illustrated pornographic written
word, unless the message is directed to children or involves
child pornography. Again, there has been a great deal of concern
regarding the possible proliferation of obscene books which
encourage sexual perversions and other crimes. While I agree
that passages in certain paperback books sold in adult book
stores represent the most vile and offensive messages imaginable,
I do not believe it is realistic or constructive to presume that
obscenity prosecutions can be initiated or will be effective in
protecting the public from any possible negative effects from the
materials. I do, however, believe that the fear of censorship
expressed by librarians and others concerned for the protection
of literature which may contain "explicit" passages, is an
extremely important consideration. Our Commission's respect for
the special place of the written word was more a statement of
support for freedom of speech than an action which was meant to,
or will, change existing practices in the enforcement of
obscenity laws.
TIME AND STRUCTURE
The time and structural constraints placed upon our
^mission's work were extremely problematic, causing concern
regarding compromises made in the final editing process. The
189
'IF
workload has been unmanageable throughout the year. The ultim
task of reviewing over two thousand pages of final draft in thre
days time to meet our print deadline was totally unrealistic,
addition, the critical job of consolidating and clearing all the
Commissioner's last minute corrections was an unreasonabl
expectation of the already exhausted Staff, who have reportedly
worked into every night of the last several weeks. If the
Commission had more resources to pursue additional study, more
opportunity to meet in sub-committees, and more time to review
the final product, I believe a more thoughtful and confident
consensus would have resulted. However, given the Commission's
limitations, the final report is a document which raises issues
that are relevant and worthy of a considerable investment of time
and energy made by each Commissioner and the Staff. There are
two specific recommendations about which I wish to express
concern.
A. RECOMMENDATION NUMBER 8
STATE LEGISLATURES SHOULD AMEND, IF NECESSARY
OBSCENITY STATUTES TO ELIMINATE MISDEMEANOR
STATUS FOR SECOND OFFENSES AND MAKE ANY SECOND
OFFENSE PUNISHABLE AS FELONY.
The arbitrary imposition of a felony status for second
offenders could possibly discourage any actions on some secon
offenses by Prosecutors denied room for negotiation.
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B. RECOMMENDATION NUMBER 88
LEGISLATURES SHOULD CONDUCT HEARINGS AND CON-
SIDER LEGISLATION RECOGNIZING A CIVIL REMEDY
FOR HARMS ATTRIBUTABLE TO PORNOGRAPHY.
While I support the concept of civil rights actions on
behalf of victims, a rewriting of the substantiation for this
recommendation was not available for review by Commissioners at
the time of the deadline for this statement.
It is also of considerable concern that the Commission
members were never able to agree on the types of materials that
fall within the framework for classes I, II, and III materials.
In the absence of such clarity, and without a comprehensive
survey of materials available in bookstores, theatres, video
outlets, and other vendors, it is only conjecture to presume that
the "predominance" of obscene materials portray degradation.
SUMMARY
The issues surrounding pornography defy simplification,
challenge objectivity, and create passionate responses from
opposing extremes of a multitude of political, religious, and
philosophical spectrums.
It is my sincere hope that our focus on these confounding
«nd controversial issues will assist the American people to
evelop a knowledgeable concern regarding the potential impact of
Pornography on their children and their communities, an
191
understanding of the personal choices and public polt
alternatives available to them, and the realization that
pornography is the product of a demand resulting from a host
motivations we have only begun to identify.
It has occurred to me, throughout our Commission's
hearings, that the subject of our inquiry, whether relating to
adult or child pornography, has a very significant and direct
connection to many issues surrounding the abuse and exploitation
of children. I saw the clear characteristics of a helpless child
in each adult victim testifying before us, and this helped me to
understand how and why they tolerated the abuses about which so
many are skeptical. I saw the angry and inadequate adult
reenacting his or her own childhood abuses in much of the
sado-masochistic materials. Perhaps most significantly, I saw
the sad, lonely and desperate search for intimacy denied in
childhood on the faces of those who stood haplessly in the adult
bookstores and those who told us of their addictions to obscene
materials. It occurred to me, over and over again, that the real
issue might be the effects of American family life on the
consumption of pornography, rather than the reverse.
192
statement of Judith Becker, Ellen Levine and Deanne Tilton-Durfee
We are three women who have, in varied ways, devoted our
jives to the welfare of children and families: one as a
specialist in the treatment of those who sexually abuse women and
children, another as a journalist covering the diverse issues
facing contemporary American women and the third as a specialist
in the prevention and treatment of child abuse, neglect and
molestation.
We share a deep concern about the effects of pornography on
American women. Nevertheless, we found these issues trouble-
some because those women who testified before us were so deeply
divided. Many condemned pornography as an ultimate offense
against women, others opposed censorship categorically and
defended women's rights to consume and perform in pornography.
Although each of us has her own very strong negative, personal
reactions to the various pornographic depictions, we believe our
acceptance of service on this Commission carried with it the
responsibility to enter this arena with an open mind, to weigh
fairly the evidence presented to us and to set aside our
personal biases in order to develop credible and balanced
recommendations for the Federal Government regarding this
extremely controversial subject.
We have, throughout the Commission's hearings, witnessed
devastating testimony from women victimized in the production or
°rced consumption of pornography, and we have seen material
hat is offensive to the most permissive bpundaries of our
'Aginations. Much of this material violates the very fabric of
193
our own ethical and moral standards.
We wish to express our strong personal objections to
offensive and totally inaccurate materials that portray women a
eager victims of abuse or as beings of less competence or val
to society than men. We disapprove egually of media depiction,
that discriminate unfairly against men, or against specifi
races, cultures or those with physical or mental disabilities.
After consideration o£ the evidence presented, we conclude that
those who exploit women's vulnerability in the production or
consumption of pornography are inflicting harm that profoundly
violates the rights of women, damages the integrity of the
American family and threatens the quality of life for all men and
women.
We abhor the exploitation of vulnerable people and condemn
those who profit from it. We respect, however, the rights of all
citizens to participate in legal activities if their
participation is truly voluntary. We reject any judgmental and
condescending efforts to speak on women's behalf as though they
were helpless, mindless children.
Our most profound desire is that the women of America be
provided an environment that encourages their sense of
self-worth, self-respect and their ability to make genuine
choices. We consider both the limitation of choices and sexual
exploitation to be degrading attacks on the basic value and
dignity of women.
194
STATEMENT OF DR. JUDITH BECKER AND ELLEN LEVINE
In accepting appointments to the Attorney General's
emission on Pornography, we both believed that stimulation of a
tional dialogue and debate on this very controversial subject
was well within the purview of the government and in the best
interests of the country. To this challenging commitment we
bring very different personal and professional expertise. Dr.
Judith Becker is a behavioral scientist whose career has been
devoted to evaluating and treating victims and perpetrators of
sexual crimes. Mrs. Ellen Levine is a journalist and editor who
has focused on women's news. Although our backgrounds are
different, we have found throughout the hearings and Commission
neetings that we share similar views about the nature of the
testimony presented and alternative ways -in which the issue of
obscenity might be approached. We have, therefore, decided to
submit this joint statement.
I. THE PROCESS
During its public hearings, the Commission has
accomplished much, garnered some press attention, and, as
anticipated, created a certain amount of controversy. Our hope
is that the past year's work will not end with the publication of
'his report, but will begin a process of discovery and
disciplined study of the complicated problems associated with
this subject.
We would be remiss, however, if we did not point out the
mltations inherent in the investigative process we have just
195
finished, because in some serious ways, the Commission's meth
themselves have hindered the adequate pursuit of information.
A. THE LIMITATION OF THE PUBLIC FORUM
All meetings and hearings have been held as
public forums, according to law, and although we do
not suggest that it should have been otherwise, we
must emphasize that such an open forum naturally
inhibits a frank and full discussion of a subject as
personal, private and emotionally volatile as the
consumption of pornography. In collecting the
testimony of victims, it was difficult enough to
find witnesses willing to speak out about their
intimate negative experiences with pornography. To
find people willing to acknowledge their personal
consumption of erotic and pornographic materials
and comment favorably in public about their use
has been nearly impossible. Since such material is
selling to millions of apparently satisfied consumers,
it seems obvious that the data gathered is not well
balanced.
B. THE CONSTRAINTS OF TIME AND MONEY
A number of factors directly affecting the Commission
complicated its work and strained its abilities to work
as thoroughly and effectively as it might have. Both the l
and the money needed to work through these
complications was lacking and hence they were largely
unsolved.
196
1. The very word pornography, with its negative
connotation, imposes impediments to an open-
minded and objective investigation. Every member
of the group brought suitcases full of prior
bias, including previous personal exposure,
religious, ethical, social, and even professional
beliefs. To some a discussion of pornography raises
concerns of sincerely and deeply felt moral im-
peratives; to others it is a feminist issue of
violence against women; and to still others, it is
a lightning rod attracting debates about First
Amendment guarantees with the threat of censorship
seen as the overriding danger. Full airing of the
differences of the members of the Commission and
establishment of a wide and firm common ground
was not possible in the time and with the funds
allotted.
2. The issue of pornography has confounded people
for centuries and has long been a subject of sincere
disagreement among decent people. Pornography
has religious, ethical, social, psychological and
legal ramifications. The idea that eleven in-
dividuals studying in their spare time could
complete a comprehensive report on so complex a
matter in so constricted a time frame is simply
unrealistic. No self-respecting investigator
would accept conclusions based on such a study,
197
and unfortunately the document produced reflects
these inadequacies.
3. The variety of pornography, in its forms,
qualities, and intensities of expression is vast.
The Commission concentrated almost exclusively on
formulating recommendations aimed at law enforce-
ment. While that fulfills the Commission's mandate
we believe that the core issues involving porno-
graphy and its prevalence are more usefully
viewed as health and welfare concerns. As such,
they would properly be matters for research by
committees established by the National Institute
of Mental Health.
Given the varied backgrounds of the commissioners, the
depth and complications of the subject historically, and the
variety of the materials available today, the Commission's most
severe limitation was imposed by a lack of time and money to
complete a thorough study.
Because it has been sixteen years since the last Commission
on this topic met and it is likely to be years before another
government group tangles with these questions, we believe It
would have been reasonable to grant the group, if not more money,
at least more time, as requested.
II. THE MANDATE
A. The first element of the Commission's mandate was
the assessment of the problem's dimensions. While
there is little doubt about the proliferation of
198
pornography since 1970, no serious effort has been
made to quantify the increase, either in general or
specifically as to the various types of pornography
sold. We do not even know whether or not what the
Commission viewed during the course of the year re-
flected the nature of most of the pornographic and
obscene material in the market; nor do we know if
the materials shown us mirror the taste of the majority
of consumers of pornography. The visuals, both print
and video, were skewed to the very violent and ex-
tremely degrading. While one does not deny the
existence of this material, the fact that it dominated
the materials presented at our hearings may have
distorted the Commission's judgment about the pro-
portion of such violent material in relation to the
total pornographic material in distribution.
The Commission's investigations did reveal that
technological innovations have created a new delivery
system for the consumption of pornographic and erotic
material (notably via home video and cable). Since the home
video industry is still young, it is reasonable to assume
that the supply and public demand for pornographic materials
"lay increase. Some recent industry figures actually show
video purchases and rentals of pornography on the increase.
There is, however, a significant corresponding decrease in
b°th the number of adult theaters in this country and the
circulation figures of the so-called skin magazines. This
199
Tr
may indicate that although there is a change in the way in
which pornography is purchased, there is actually a stable
(non-growth) market for it. We simply do not know.
Because of the stunning change in the way in which
people now receive erotic stimuli (a shift from print to
video), we suggest that research be conducted to discover
whether and to what extent video makes a greater or stronger
impression on the vulnerable users, particularly children
and adolescents, than does print.
B. One critical concern of this Commission was to measure
and assess pornography's role in causing anti-social
behavior; but although the Commission struggled mightily to
agree on definitions of such basic terms as pornography and
erotica, it never did so. This failure to establish
definitions acceptable to all members severely limited our
ability to come to grips with the question of impact. Only
the term "obscenity," which has a legal meaning, became a
category we all understood. In fact, the commission failed
to carve out a mutually satisfactory definition of
antisocial behavior. In this statement, it should be
noted, therefore, we use the phrase "antisocial behavior"
to describe forced sexual acts: acts involving coercion of
any kind or lack of consent. We do not include (as certain
commissioners desired) such private sexual practices as
masturbation, homosexuality between consenting adults or
premarital sex, practices that are not the province °
government to regulate.
200
C. The final responsibility of the Commission was to
recommend to the Attorney General specific measures to limit
the spread of pornography. While much of the Commission's
time was spent on these proposals, only the child
pornography recommendations received thorough discussion.
Accordingly we strongly endorse those proposals.
We reiterate our strong belief that the paucity of
certain types of testimony, including dissenting expert
opinion and the haste and absence of significant debate with
which other recommendations and their supporting arguments
were prepared did not leave adequate time for full and fair
discussions of many of the more restrictive and
controversial proposals. Consequently, while we endorse
many of these recommendations, we dissent on some, for
reasons of critical policy differences, lack of clarity and
more importantly, because evidence essential to a considered
evaluation of the proposals was not presented.
For example, the concept of mandatory sentencing
supported in several recommendations is a theory hotly
debated by both law enforcement personnel and experts
specializing in penal reform. Little testimony was heard on
the merits or liabilities of this concept with the
exception of pleas from understandably frustrated
prosecutors discouraged by light sentencing. Without
reasoned assessment of this problem, we cannot support the
Proposal for mandatory sentencing. Other specific
recommendations with which we disagree will follow here.
201
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CONGRESS SHOULD ENACT A FORFEITURE STATUTE TO REACH THE
PROCEEDS AND INSTRUMENTS OF ANY OFFENSE COMMITTED IN
VIOLATION OF THE FEDERAL OBSCENITY LAWS.
CONGRESS SHOULD AMEND THE FEDERAL LAWS TO ELIMINATE THE
NECESSITY OF PROVING TRANSPORTATION IN INTERSTATE COMMERCE.
THE LAWS SHOULD BE ENACTED TO ONLY REQUIRE PROOF THAT THE
DISTRIBUTION OF THE OBSCENE MATERIAL "AFFECTS" INTERSTATE
COMMERCE.
CONGRESS SHOULD ENACT LEGISLATION MAKING IT AN UNFAIR
BUSINESS PRACTICE AND AN UNFAIR LABOR PRACTICE FOR ANY
EMPLOYER TO HIRE INDIVIDUALS TO PARTICIPATE IN COMMERCIAL
SEXUAL PERFORMANCES.
STATE LEGISLATURES SHOULD AMEND, IF NECESSARY,
OBSCENITY STATUTES TO ELIMINATE MISDEMEANOR STATUS FOR
SECOND OFFENSES AND MAKE ANY SECOND OFFENSE PUNISHABLE AS A
FELONY.
STATE LEGISLATURES SHOULD ENACT, IF NECESSAR*'
202
FORFEITURE PROVISIONS AS PART OF THE STATE OBSCENITY LAWS.
THE PRESIDENT'S COMMISSION ON UNIFORM SENTENCING SHOULD
CONSIDER A PROVISION FOR A MINIMUM OF ONE YEAR IMPRISONMENT
FOR ANY SECOND OR SUBSEQUENT VIOLATION OF FEDERAL LAW
INVOLVING OBSCENE MATERIAL THAT DEPICTS ADULTS.
LEGISLATURES SHOULD CONDUCT HEARINGS AND CONSIDER
LEGISLATION RECOGNIZING A CIVIL REMEDY FOR HARMS
ATTRIBUTABLE TO PORNOGRAPHY.
ANY FORM OF INDECENT ACT BY OR AMONG "ADULTS ONLY"
PORNOGRAPHIC OUTLET PATRONS SHOULD BE UNLAWFUL.
III. TESTIMONY ON SOCIAL SCIENCE DATA
We have limited our comments here to the relatively
bias-free testimony and social-science data.
Our interpretation of the material presented is,
consequently, somewhat different from that of other commission
members. It has lead us to a different emphasis in priorities
and recommendations.
The Commission sought to break down pornography into the
various types of sexually explicit material available in our
society. Unfortunately, social science research to date has not
uniformly followed any such categorization (although we certainly
QQest that future researchers consider this option), and the
203
attempt to force the available social science data to fit th
Commission's categories is fruitless. That is why in this
statement the conclusions and interpretations of what the social
science data says and does not say follow the research, not the
Commission, categories.
First, it is essential to state that the social science
research has not been designed to evaluate the relationship
between exposure to pornography and the commission of sexual
crimes; therefore efforts to tease the current data into proof of
a causal link between these acts simply cannot be accepted.
Furthermore, social science does not speak to harm, on which this
Commission report focuses. Social science research speaks of a
relationship among variables or effects that can be positive or
negative.
Research has evaluated adults rather than children, and it
is the latter who are most likely to be influenced by
pornography. Studies have relied almost exclusively on male
college student volunteers, which means that the
"generalizability" of 'this data is extremely limited. The only
other category studied in depth is sex offenders. Information
from the sex-offender population must be interpreted with care
because it may be self-serving. The research conducted to date
has been correlational and experimental. Despite these
limitations, the research data can be interpreted to indicate the
following:
A. In a laboratory setting, exposure to sexually violen
stimuli has a negative effect on research subjects a
204
measured by acceptance of rape myth and aggression and
callousness toward women. We do not know, however, how long
this attitudinal change is sustained without further
stimulation; more importantly, we do not know whether and
why such an attitudinal change might transfer into a
behavioral change. There is reason for concern about these
findings because we do know that experience with sex
offenders indicates they harbor belief systems and attitudes
consistent with deviant sexual practices (e.g. "women enjoy
being raped" or "sexual acts with a child are a way of
showing love and affection to that child"). We know further
that such attitudes appear to be a precursor and maintainer
of actual deviant behavior in an offender population.
Although we believe the potential exists for attitudinal
changes to translate into behavioral changes in some
circumstances, this possibility .needs considerable
additional investigation.
B. Very little social-science research has been conducted
evaluating the impact of non-violent degrading material on
the average adult. Furthermore, there is a problem of
definition about what constitutes "degrading material." We
strongly encourage further research to define and evaluate
the impact of such material.
C. Although research findings are far from conclusive, the
Preponderance of existing data indicates that non-violent
and non-degrading sexually explicit materials does not have
a negative effect on adults.
205
i r Y I\
D. In documents attached to the main report mention h
been made of a possible relationship between circulation
rates of pornographic magazines and sex crime rates. One of
the authors of the study on which the Commission has based
its conclusion, Murray Straus, has written to explain hi
own research, which he suggested was being misinterpreted.
"I do not believe that this research demonstrates that
pornography causes rape .... In general the scientific
evidence clearly indicates that if one is concerned with the
effects of media on rape, the problem lies in the prevalence
of violence in the media, not on sex in the media."
E. To date there is no single comprehensive theory that is
agreed upon to explain the development of paraphilic
behavior. Human behavior is complex and multi-causal. To
say that exposure to pornography in and of itself causes an
individual to commit a sexual crime is simplistic, not
supported by the social science data, and overlooks many of
the other variables that may be contributing causes.
Research must be conducted on the development of sexual
interest patterns if we are to understand and control
paraphilic behavior.
F. Unfortunately, little is known about the impact of
sexually explicit material on children. Ethically and
morally one could not and would not conduct experiments to
examine such a relationship. We do know that adolescents
and young adults are large consumers of these materials, and
• W6
little is yet known about its impact on this population.
206
underscore the statement made in the main body of the
Commission's report regarding social science research: "In
many respects, research is still at a fairly rudimentary
stage, and with few attempts to standardize categories of
analysis, self-reporting questionnaires, types of stimulus
materials, description of stimulus materials, measurement of
effects and related problems. We recommend that moneys be
made available to fund further research on this topic."
207
t
IV. ENFORCEMENT PRIORITIES
We have been encouraged by testimony from federal, state
and local officials that those involved in the heinous crime of
child pornography are being prosecuted vigorously and that thi
effort is a national priority. We applaud that action and
believe that this prosecution should continue to be a number one
priority in law enforcement resource allotments.
On the other hand, we have heard frequently that there ia
virtually no enforcement of adult obscenity laws. Our analysis
of the data leads us to believe that the sexually violent
material that is unquestionably obscene and described in the main
report is of sufficient concern to warrant intensified
prosecution. We are concerned about such material because the
violence and the eroticization of that violence may indeed be a
potentially explosive mix. Even in this category, however,
social science research does not claim a causal link.
The social science data, however, provides even less basis
for the claim of a causal link between non-violent degrading and
humiliating pornography and sexual violence. One might assume
that this material may teach offensive, though not necessarily
criminal, behavior to certain vulnerable consumers.
Accordingly, in communities where standards so dictate,
prosecution of non-violent degrading obscene materials may assume
a lesser priority. It is in this area of non-violent degrading
and humiliating pornographic images that the most controversy
may arise. What is seen as degrading by one viewer may in £ac
not be so seen by another, much in the same way that one person
208
erotica is another's pornography. But this is one of the
categories about which much needs to be learned. Perhaps there
i$ a distinct difference between what men see as degrading to
women and what women consider to be degrading.
As vital as this category of non-violent degrading
material may be to the ultimate understanding of the effects of
pornographic material in society, we caution against an
overinclusive interpretation of it. The Report suggests that
most of the pornographic material in circulation now belongs in
this category. We have not been able to draw this conclusion
based on evidence presented. As stated earlier, attempts to
quantify the materials in circulation and the particular
character of the content of that material remain only
"guesstimates."
V. WHAT OF OUR CHILDREN?
The most disturbing issue facing the panel this year was
the concern about children and their exposure to child and adult
pornography. Adolescents are acknowledged as an enormous market
for pornographic materials, and despite legislative efforts to
restrict access, this material remains easily available to
youngsters.
In fact, from an early age American children are bombarded
bY very stimulating sexual messages, most of which are not
Pornographic but certainly are frightening. This year, for
example, the AIDS epidemic has prompted health officials to
roadcast urgent radio and television warnings against homosexual
209
anal intercourse and group sex and pleas for the use of condoms
Because children may have trouble with these very public
messages, and because too many young people get too much of the'
sex education from pornographic magazines and films, we strongly
support relevant school sex education programs. Appropriate and
accurate information about loving sexual experiences can help
inoculate children against the potential damage from earl
exposure to negative images. Furthermore, we urge parents to
monitor carefully their own children's exposure to these
materials.
There cannot be enough done to protect our children—both
from people who would abuse and seduce them into the abhorrent
world of child pornography and from the unwelcome intrusion of
too many sexual messages. And we urge that child pornography
prosecutions be given priority over all other forms of obscenity
violations.
VI. CONCLUSION
Why does pornography thrive and proliferate today? Is the
demand for pornography a mirror or a beacon? Why do consumers
support a multi-million dollar market for such a variety of
products? Is lack of vigorous law enforcement to blame? Is
society more tolerant of pornography than ever before? Is
society's perception of what constitutes pornography changing
Do the production and increasing sophistication of sexual y
explicit materials in themselves stimulate more interest
pornographic magazines, films and videos? Or vice-versa?
210
are other social forces chiefly to blame?
The most knowledgeable observers suggest that these are
offlplex an<^ difficult questions, ones that cannot be easily
nswered and which in our opinions this Commission did not
adequately address.
Consider what has occurred during the past two decades.
The birth control pill has become widely used, with an associated
Increase in sexual activity. The mobility of the population
continues to increase, with a subsequent breakdown in community
attachments for more and more people. The divorce rate has
skyrocketed. We have a national drug abuse problem. The Vietnam
war has taken its toll on the national psyche. Twenty-five
million additional women have joined the work force. The
so-called Sexual Revolution has come and gone (Time magazine on
April 9, 1984, announced its demise). Has not each of these
factors and others had a role to play in the growth of
pornography?
After a year of forums and deliberations, it is tempting to
join in offering simple solutions to complex problems, in the
form of the Commission's Recommendations. But we are not
persuaded to do so. We believe it would be seriously misleading
to read this report and see a green light for prosecuting all
Pornographers. We still know too little about why many men and
8°me women use and enjoy pornography; if and why women's and
"«n's sexual arousal response patterns to pornography differ. We
have more questions than answers, and we stress the need
or both non-governmental solutions and tolerance for the views
211
of others.
The commission of sexual crimes, the degradation of
and the abuse and mistreatment of children are terrible and
pressing problems that concern us urgently. As we face up to th
extensive public consumption even of certain types of extreme
pornographic materials, a need for massive public re-educatio
about potential problems associated with them seems strongly
indicated. We cannot tolerate messages of sexual humiliation
directed to any group. But to make all pornography the scapegoat
is not constructive. In the absence -of significant social
sanctions against pornography, the possibility of halting its use
seems as slim as was the chance of halting the sales of liquor
during Prohibition. In conclusion we repeat that we face a
complex social and legal problem that requires extensive study
before realistic remedies can be recommended.
PART TVJO
212
213
I /
Chapter 1
Introduction
1.1 The Commission and Its Mandate
The Attorney General's Commission on Pornography (referred
to throughout this Report as "The Commission") was established
ursuant to the Federal Advisory Committee Act on February 22,
1985 by then Attorney General of the United States William French
Smith, at the specific request of President Ronald Reagan.
Notice of the formation of The Commission, as required by Section
9(c) of the Federal Advisory Committee Act, was given to both
Houses of Congress and to the Library of Congress on March 27 and
hatch 28, 1985. On May 20, 1985, Attorney General Edwin Meese
III publicly announced formation of The Commission and the names
of Its eleven members, all of whom served throughout the duration
of The Commission's existence.
The formal mandate of The Commission is contained in its
Charter, which is attached to this Report in Appendix A. In
• ccordance with that Charter, we were asked to "determine the
nature, extent, and impact on society of pornography in the
United States, and to make specific recommendations to the
Attorney General concerning more effective ways in which the
•Pread of pornography could be contained, consistent with
onstitutional guarantees." Our scope was undeniably broad,
ncluding the specific mandate to "study . . . the dimensions
»0 <:f .. 5 U'S'C- App.2, 86 Stat.770(1972) , as amended bybtat.l241, 1247(1976)
215
of the problem of pornography," to "review . . . the avail
empirical evidence on the relationship between exposure
pornographic materials and antisocial behavior," and to
"possible roles and initiatives that the Department of
and agencies of local, State, and federal government could pur
in controlling, consistent with constitutional guarantees, th
production and distribution of pornography."
Because we are a commission appointed by the Attorney
General, whose responsibilities are largely focused on the
enforcement of the law, issues relating to the law and to law
enforcement have occupied a significant part of our hearings, our
deliberations, and the specific recommendations that accompany
this Report. That our mandate from the Attorney General involves
a special concern with enforcement of the law, however, should
not indicate that we have ignored other aspects of the issue.
Although we have tried to concentrate on law enforcement, we felt
that we could not adequately address the issue of pornography,
including the issue of enforcement of laws relating to
pornography, unless we looked in a larger context at the entire
phenomenon of pornography. As a result, we have tried to examine
carefully the nature of the industry, the social, moral.
political, and scientific concerns relating to or purportedly
justifying the regulation of that industry, the relationship
between law enforcement and other methods of social control,
a host of other topics that are inextricably linked with 1»-
enforcement issues. These various topics are hardly congru
216
ith the issue of law enforcement, however, and thus it has been
ssarily the case that issues other than law enforcement in
,ts narrowest sense have been before us. In order that this
rt accurately reflect what we thought about and what we felt
be important, we have included in the Report our findings and
ecommendations with respect to many issues that are related to
but not the same as law enforcement.
For similar reasons, we have been compelled to consider
substantive topics not, strictly speaking, specified exactly in
our charter. A few examples ought to make clear the problems
that surround trying to consider an issue that itself has no
clear boundaries: We have heard testimony and considered the
relationship between the pornography industry and organized
crime, and this has forced us to consider the nature of organized
crime itself; we have examined the evidence regarding the
relationship between pornography and certain forms of anti-social
conduct, and this has necessitated thinking about those other
factors that might also be causally related to anti-social
conduct, and about just what conduct we consider anti-social; we
have thought about child pornography, and this has caused us to
think about child abuse; and we have, in the course of thinking
•bout the relationship between pornography and the family,
thought seriously about the importance of the family in
""temporary America. This list of examples is hardly
austive. We mention them here, however, only to show that our
iry could not be and has not been hermetically sealed. But
217
C ) . IT
thanwe all feel that what we may have lost in focus has more
been compensated for in the richness of our current contextu
understanding of the issue of pornography. 1.2 The Work
the Commission
We have attempted to conduct as thorough an investigation
our severe budgetary and time constraints permitted. TK
budgetary constraints have limited the size of our staff
have prevented us from commissioning independent research. ^e
especially regret the inability to commission independent
research, because in many cases our deliberations have enabled us
to formulate issues, questions, and hypotheses in ways that are
either more novel or more precise than those reflected in the
existing thinking about this subject, yet our budgetary
constraints have kept us from testing these hypotheses or
answering these questions. In numerous places throughout this
report we have urged further research, and we often recommend
that research take place along specific lines. We hope that our
suggestions will be taken up by researchers. Neither this Report
nor any other should be taken as definitive and final, and we
consider our suggestions for further research along particular
lines to be one of the most important parts of this document.
The time constraints have also been significant. We all
wish we could have had much more time for continued discussion
among ourselves, as the process of deliberation among people °
different backgrounds, different points of view, and different
areas of expertise has been perhaps the most fruitful part of °u
yet we have been required to produce a report within a-
of our creation as a Commission, and our ability to meet
ether has been limited by the budgetary constraints just
ferred to, as well as by the fact that all of us have
esponsibilities to our jobs, our careers, and to our families
hat make it impossible to suspend every other activity in which
are engaged for the course of a year.
Despite these limitations, we have attempted to be as
careful and as thorough as humanly possible within the boundaries
of these constraints. We thought it especially important to hear
from as wide a range of perspectives as possible, and as a result
held public hearings and meetings in Washington, D.C., from June
16 to 20, 1985; in Chicago, Illinois, from July 23 to 25, 1985;
in Houston, Texas, from September 10 to 12, 1985; in Los Angeles,
California, from October 15 to 18, 1985; in Miami, Florida, from
November 19 to 22, 1985; and in New York City from January 21 to
H, 1986. With the exception of the initial hearing in
Washington, each of the hearings had a central theme, enabling us
to hear together those people whose testimony related to the same
Issue. Thus the hearings in Chicago focused on the law, law
«nforcement, and the constraints of the First Amendment; in
Houston we concentrated on the behavioral sciences, hearing from
Psychologists, psychiatrists, sociologists, and others who have
°"n clinically or experimentally concerned with examining the
•tionship between pornography and human behavior; in Los
n9«les our primary concern was the production side of the
218 219
1
t
industry, and we heard testimony from those who
knowledgeable about or involved in the process of producing
distributing, and marketing pornographic materials; in Miami mo
of our time was spent dealing with the issue of child
pornography, and we heard from people who in either thei
professional or personal capacities had familiarity with the
creation, consequences, or legal control of child pornography
and in New York we heard about organized crime and its
relationship with the production, distribution, and sale of
pornographic materials.
Although these hearings each had their specific
concentration, we also attempted to hear people throughout the
country who wished to address us on these and many other issues,
and one of the reasons for conducting hearings in different
cities in various parts of the country was precisely to give the
greatest opportunity for the expression of views by members of
the public. Time did not permit us to hear everyone who desired
to speak to us, but we have tried as best we could to allow a
large number of people to provide information and to express
their opinions. The information provided and the opinions
expressed represented a wide range of perspectives and views on
the issues before us. Many of the people appearing before us
were professionals, who because of their training and experiences
could enlighten us on matters that would otherwise have been
beyond our knowledge. Many people represented particular points
of view, and we are glad that varying positions have been so ably
220
resented to us. And many others have been members of the public
ho only wished to represent themselves, relating either points
f view or personal experiences. All of this testimony has been
luable, although we recognize its limitations. These
limitations will be discussed throughout this report, although
there is one that deserves to be highlighted in this introductory
section. That is the distortion that has been the inevitable
consequence of the fact that some pornography is illegal, and
auch pornography is, regardless of legality or illegality, still
considered by many people to be harmful, offensive, or in some
other way objectionable. As a result, legal as well as social
constraints may distort the sample, in that they severely limit
the willingness of many people to speak publicly in favor of
pornography. This phenomenon may have been somewhat
counterbalanced by the financial resources available to many of
those from the publishing and entertainment industries who warned
us of the dangers of any or most forms of censorship. But the
point remains that various dynamics are likely to skew the sample
•vailable to us. In evaluating the oral evidence, we have thus
been mindful of the fact that the proportion of people willing to
«p«ak out on a particular subject, and from a particular point of
"lev, may not be a fully accurate barometer of the extent that
c«rtain views are in fact held by the population at large. •
Many of the limitations that surround oral testimony lessen
°nsiderably when written submissions are used, and we have made
'very effort to solicit written submissions both from those who
221
testified before us and from those who did not. We have reli
heavily on these, in part because they represent the views of
those who could not testify before us, and in part because the
frequently explored issues in much greater depth than would be
possible in a brief period of oral testimony.
The written submissions we received constitute but a
minlscule fraction of all that has been written about
pornography. While it would not be accurate to say that each of
us has read all or even a majority of the available literature,
we have of course felt free to go beyond the written submissions
and consult that which has been published on the subject, and
much of what is contained in this report is a product of the fact
that many thoughtful people have been contemplating the topic of
pornography for a long time. To ignore this body of knowledge
would be folly, and we have instead chosen to rely on more
information rather than less. We could not have responsibly
conducted our inquiry without spending a considerable period of
time examining the materials that constitute the subject of this
entire endeavor. Engaging in this part of our task has been no
more edifying for us than it is for those judges who have the
constitutional duty to review materials found at trial to be
legally obscene. Obviously, however, it was an essential part
2 "[w]e are tied to the 'absurd business of perusing and
viewing the miserable stuff that pours into the Court .
. .' Interstate Circuit, Inc. v. Dallas, 390 U.S., at
707 (separate opinion of Harlan, J.). While the
material may have varying degrees of social importance,
it is hardly a source of edification to the members of
this Court who are compelled to view it before passing
222
of our job, and many witnesses provided to us for examination
during our hearings and deliberations samples of motion pictures,
video tapes, magazines, books, slides, photographs, and other
media containing sexually explicit material in all of its varied
forms. In addition, when in Houston we visited three different
establishments specializing in this material, and in that way
were able to supplement the oral and written testimony with our
own observations of the general environment in which materials of
this variety are frequently sold.
In addition to our public hearings, we have also had public
working sessions devoted to discussing the subject, our views on
it, and possible findings, conclusions, and recommendations.
These working sessions occupied part of our time when we were in
Houston, Los Angeles, Miami, and New York, and in addition we met
solely for these purposes in Scottsdale, Arizona, from February
26 to March 1, 1986, and in Washington, D.C., from April 29 to
May 2, 1986. As we look back on these sessions, there is little
doubt that we have all felt the constraints of deliberating in
public. It can hardly be disputed that the exploration of
tentative ideas is more difficult when public exposure treats the
tentative as final, and the question as a challenge. Still, we
feel that we have explored a wide range of points of view, and an
equally wide range of vantage points from which to look at the
Problem of pornography. As with any inquiry, more could be done
on its obscenity." Paris Adult Theatre I v. Slaton, 413
".S. 49, 92-93(1973) (Brennan, J., dissenting).
223
if there were more time, but we are all satisfied with the depth
and breadth of the inquiries in which we have engaged. when
faced with shortages of time, we have chosen to say here lesa
then we might have been able to say had we had more time for ouc
work, but we are convinced that saying no more than our inquiries
and deliberations justify is vastly preferable to paying for time
shortages in the currency of quality or the currency of accuracy.
Thus, given the many constraints we operated under, we believe
this Report adequately reflects both those constraints and the
thoroughness with which we have attempted to fulfill our mandate.
Finally, we owe thanks to all those who have assisted us in
our work. Although in another part of this Report we express our
gratitude more specifically, we wish here to note our
appreciation to an extraordinarily diligent staff, to numerous
public officials and private citizens who have spent much of
their own time and their own money to provide us with
information, and especially to a large number of witnesses who
appeared before us at great sacrifice and often at the expense of
having to endure great personal anguish. To all of these people
and others, we give our thanks, and we willingly acknowledge that
we could not have completed our mission without them.
1.3 The 1970 Commission on Obscenity and Pornography Our
mission and our product will inevitably be compared with the work
of the President's Commission on Obscenity and Pornography, which
was created in 1967, staffed in 1968, and which reported in 1970.
Some of the differences between the two enterprises relate to
224
structural aspects of the inquiry. The 1970 Commission had a
budget of $2,000,000 and two years to complete its task. We had
otlly one year, and a budget of 5500,000. Taking into account the
changing value of the dollar,3 the 1970 Commission had a
budget nearly sixteen times as large as ours, yet held only two
public hearings. We do not regret having provided the
opportunity for such an extensive expression of opinion, but it
t,as even further depleted the extremely limited resources
available to us. In addition to differences in time,
budget, and staffing, there are of course differences in
perspective. Although the work of the 1970 Commission has
provided much important information for us, all of us have taken
issue with at least some aspects of the earlier Commission's
approach, and all of us have taken issue with at least some of
the earlier Commission's conclusions. We have tried to explain
our differences throughout this Report, but it would be a mistake
to conclude that we saw our mission as reactive to the work of
others sixteen years earlier. In sixteen years the world has
seen enormous technological changes that have affected the
transmission of sounds, words, and images. Few aspects of
contemporary American society have not been affected by cable
television, satellite communication, video tape recording, the
computer, and competition in the telecommunications industry. It
Taking 1967, the date of creation of the 1970
ri, as the base year, the dollar at the end
u^-i. ' five months before this Commission commencedwork, was worth $0.31.
225
would be surprising to discover that these technologiCal
developments have had no effect on the production, distribution
and availability of pornography, and we have not been surprised
These technological developments have themselves caused such
significant changes in the practices relating to th
distribution of pornography that the analysis of sixteen years
ago is starkly obsolete. Nor have the changes been solely
technological. In sixteen years there have been numerous changes
in the social, political, legal, cultural, and religious portrait
of the United States, and many of these changes have undeniably
involved both sexuality and the public portrayal of sexuality.
With reference to the guestion of pornography, therefore, there
can be no doubt that we confront a different world than that
confronted by the 1970 Commission.
Perhaps most significantly, however, studying an issue that
was last studied in the form of a national commission sixteen
years ago seems remarkably sensible even apart from the social
and technological changes that relate in particular to the issue
of pornography. Little in modern life can be held constant, and
it would be strikingly aberrational if the conclusions of one
commission could be taken as having resolved an issue for all
time. The world changes, research about the world changes, and
our views about how we wish to deal with that world change. Only
in a static society would it be unwise to reexamine periodically
the conclusions of sixteen years earlier, and we do not live in a
static society. As we in 1986 reexamine what was done in 1970,
226
too do we expect that in 2002 our work will similarly be
We do not by saying this wish to minimize the fact that we
different people from those who studied this issue sixteen
ars ago, that we have in many cases different views, and that
have in a number of respects reached different conclusions.
whether this Commission would have been created had the 1970
Commission reached different conclusions is not for us to say.
But we are all convinced that the creation of this Commission at
this time is entirely justified by the difference between this
vorld and that of 1970, and we have set about our task with that
in mind. 1.4 Defining Our Central Terms
Questions of terminology and definition have been recurring
problems in our hearings and deliberations. Foremost among these
definitional problems is trying to come up with some definition
for the word "pornography." The range of materials to which
people are likely to affix the designation "pornographic" is so
broad that it is tempting to note that "pornography" seems to
»ean in practice any discussion or depiction of sex to which the
person using the word objects. But this will not do, nor will an
•ttempt to define "pornography" in terms of regulatory goals or
condemnation. The problem with this latter strategy is that it
channels the entire inquiry into a definitional question, when it
*°"ld be preferable first to identify a certain type of material,
•id then decide what, if anything, should be done about it. We
note that this strategy was that adopted by the Williams
227
Committee in Great Britain several years ago,4 which def ine<]
pornography as a description or depiction of sex involving
dual characteristics of (1) sexual explicitness; and (2) int
to arouse sexually. Although definitions of the sort adopt
by the Williams Committee contain an admirable dose of analytt
purity, they unfortunately do not reflect the extent to which th
appellation "pornography" is undoubtedly pejorative. To call
something "pornographic" is plainly, in modern usage, to condemn
it, and thus the dilemma is before us. If we try to define the
primary term of this inquiry at the outset in language that ia
purely descriptive, we will wind up having condemned a wide range
of material that may not deserve condemnation. But if on the
other hand we incorporate some determination of value into our
definition, then the definition of pornography must come at the
end and not the beginning of this report, and at the end and not
at the beginning of our inquiry. Faced with this dilemma, the
best course may be that followed by the Fraser Committee in
Canada,5 which decided that definition was simply futile. We
partially follow this course, and pursuant to that have tried to
minimize the use of the word "pornography" in this Report. VJhere
we do use the term, we do not mean for it to be, for us, »
statement of a conclusion, and thus in this Report a reference to
material as "pornographic" means only that the material >s
4 Report of the Home Office Committee on Obscenity _
and Film Censorship (Bernard Williams. Chairman) (1978)
5 Report of the Special Committee on Pornography
and Prostitution (Paul Fraser. Q.C. , Chairman) (1985)
228
*I
edominantly sexually explicit and intended primarily for the
nose of sexual arousal. Whether some or all of what qualifies
pornographic under this definition should be prohibited, or
en condemned, is not a question that should be answered under
the guise of definition.
If using the term "pornography" is problematic, then so too
ust be the term "hard core pornography." If we were forced to
define the term "hard core pornography," we would probably note
that it refers to the extreme form of what we defined as
pornography, and thus would describe material that is sexually
explicit to the extreme, intended virtually exclusively to
arouse, and devoid of any other apparent content or purpose.
This definition may not be satisfactory, but we all feel after
our work on this Commission that the late Justice Stewart was
•ore correct than he is commonly given credit for having been in
saying of hard core pornography that although he could not define
It, "I know it when I see it."6 But although we are inclined to
agree with Justice Stewart, we regrettably note that the range of
•aterial to which witnesses before us have applied this term is
far broader than we would like, and we therefore conclude that
careful analysis will be served if we use this term less rather
than more.
Trying to define the word "obscenity" is both more and less
difficult. it is more difficult because, unlike the word
(Stew Jacobellis y. Ohio, 378 U.S. 184, 197(1964)art- J., concurring).
229
7
"pornography," the word "obscenity" need not necessarily
anything about sex at all. Those who would condemn a war as
"obscene" are not misusing the English language, nor are tho
who would describe as "obscene" the number of people killed h
intoxicated drivers. Given this usage, the designation Of
certain sexually explicit material as "obscene" involves
judgment of moral condemnation, a judgment that has led for close
to two hundred years to legal condemnation as well. But although
the word "obscene" is both broader than useful here as well as
being undeniably condemnatory, it has taken on a legal usage that
is relevant in many places in this Report. As a result, we will
here use the words "obscene" and "obscenity" in this narrower
sense, to refer to material that has been or would likely be
found to be obscene in the context of a judicial proceeding
employing applicable legal and constitutional standards. Thus,
when we refer to obscene material, we need not necessarily be
condemning that material, or urging prosecution, but we are
drawing on the fact that such material could now be prosecuted
without offending existing authoritative interpretations of the
Constitution. Numerous submissions to us have made
reference to "erotica." It seems clear to us that the term as
actually used is the mirror image of the broadly condemnatory use
of "pornography," being employed to describe sexually explicit
materials of which the user of the term approves. For some the
word "erotica" describes any sexually explicit material tna
contains neither violence nor subordination of women, for other*
230
the term refers to almost all sexually explicit material, and for
till others only material containing generally accepted artistic
value qualifies as erotica. In light of this disagreement, and
in lignt of the tendency to use the term "erotica" as a
conclusion rather than a description, we again choose to avoid
the term wherever possible, preferring to rely on careful
description rather than terms that obscure more than advance
rational consideration of difficult issues.
Various other terms, usually vituperative, have been used at
times, in our proceedings and elsewhere, to describe some or all
sexually explicit materials. Such terms need not be defined
here, for we find it hard to see how our inquiry is advanced by
the use of terms like "smut" and "filth." But we have also
encountered frequent uses of the term "X-rated," and a few words
about that term are appropriate here. As will be discussed in
detail in the section of this Report dealing with the production
of sexually explicit materials, "X" is one of the ratings of the
Notion Picture Association of America (MPAA), a private
organization whose ratings of films are rolled upon by theaters
and others to determine which films are or are not suitable for
people of various ages. But the MPAA" rating system is not a
aeries of legal categories, and does not have the force of law.
Although many films that carry either an "X" rating or no rating
•ight be deemed to be legally obscene, many more would not, and
It is plain that many X-rated films could not conceivably be
onsidered legally obscene. Moreover, there is no plain
231
connection between the words "pornographic" and "X-rated," a
once again it seems clear that common usage would apply the term
"pornography" to a class of films that overlaps with but is no.
identical to the class encompassed by the "X" rating. &s a
result, we avoid the term "X-rated," except insofar as we are
discussing in particular the category of materials so rated in
the context of the purposes behind the MPAA rating system.
232
Chapter 2
The History Of Pornography
2.1 Pornography as Social Phenomenon
Descriptions of sex are as old as sex itself. There can be
little doubt that talking about sex has been around as long as
talking' that writing about sex has been around as long as
writing, and that pictures of sex have been around as long as
pictures. In this sense it is odd that historical treatments of
pornography turn out to be historical treatments of the
regulation, governmental or otherwise, of pornography. To
understand the phenomenon of pornography it is necessary to look
at the history of the phenomenon itself, prior to or at least
distinct from the investigation of the practice of restricting
it. Some works on the history of sexual behavior, eroticism, or
erotic art help to serve this goal, but the history of
pornography still remains to be written. Commissioning\
independent historical research was far beyond our mandate, our
budget, and our time constraints, yet we do not wish to ignore
history entirely. We feel it appropriate to offer the briefest
overview here, but we urge as well that more comprehensive
historical study be undertaken.
The use of comparatively explicit sexual references for the
purposes of entertainment or arousal is hardly a recent
Phenomenon. Greek and Roman drama and poetry was frequently
highly specific, and the works of Aristophanes, Catullus, Horace,
and Ovid, to name just a few, contain references to sexual
233
(£s
\
activity that, by the standards of the time, are highly explicj.
Scenes of intercourse have been found on the walls of the brothel
at Pompeii, and the Roman sculptural representations of the
Priapus are as bawdy as Aubrey Beardsley's most expliC£t
drawings. Obviously the explicitness of the past must be view
in light of the times, and there is no question but that the
works of Aristophanes are less shocking to our contemporary
vision than are some of the materials currently shown in adult
theaters. Yet to ask what the Romans would have thought about
"Deep Throat" is akin to asking what the Romans would have
thought about helicopters. The more useful historical question
is whether highly explicit sexuality for the times was a part of
the literature and discourse of the times, and the answer to that
question is plainly "yes."
Similar observations can be made about later historical
periods and about other cultures. The Thousand and One Nights
and the Kamasutra are but examples of the fact that numerous
eastern cultures also have a long history of comparatively
explicit depictions and descriptions of sexuality. In western
cultures the explicit treatment of sex continued through modern
history. Whether in the form of the medieval bawdy ballads and
poems of Chaucer, Dunbar, and others, or in the form of the
French farces of the fourteenth and fifteenth centuries, or in
the form of the art and poetry of Renaissance Florence, or in tne
form of Elizabethan ballads and poetry, sexuality, and q"1
explicit sexuality at that, was a recurrent theme in drama, i"
234
poetry, in song, and in art.
We can be fairly certain that sexually explicit descriptions
and depictions have been around in one form or another almost
since the beginning of recorded history, and we can also be
fairly certain that its regulation by law in a form resembling
contemporary regulation of sexually explicit materials is a
comparatively recent phenomenon. It is difficult, however, to
draw useful conclusions from this aspect of the history. For one
thing, until the last several hundred years, almost all written,
drawn, or printed material was restricted largely to a small
segment of the population that undoubtedly constituted the social
elite. The drama of the classical age was frequently highly
sexually explicit, or at least suggestive, but its audience
tended to be limited to the wealthiest, best educated, and most
powerful members of society. And of course the historical or
universal presence of a phenomenon need not justify permitting
its continuation. Slavery was a central fixture of much of the
past, and warfare and ethnocentricity are as nearly universal as
sexually explicit depictions, but the sensitivities of most
cultures demand that such practices be discouraged.
In addition, it is a mistake to draw too many conclusions
about social tolerance and social control from the presence or
absence of laws or law enforcement practices. There is little
ndication that sexual conduct was part of classical drama, and
very fact that many sexual references were veiled (howeverthe
thinly)rather than explicit indicates that some sense of taboo
235
1 r
or social stigma has always been in most societies attached t
public discussion of sexuality. Yet although some degree of
inhibition obviously attached to public descriptions and
depictions of sexual acts, it is equally clear that the extent of
these inhibitions has oscillated throughout history. In somewhat
cyclical fashion, social tolerance of various practices has been
at times limited and at times extensive. To conclude that
inhibition, in some form or another, of public discussion and
representations of sexual practices is a totally modern
phenomenon is to overstate the case and to misinterpret the
evidence from earlier times. But to assume that public
discussions and descriptions of sexuality were, prior to 1850,
always as inhibited as they were in English speaking countries
from 1850 to 1950 is equally mistaken.
We have mentioned here the early history of pornography in
large part to encourage thinking about sexually explicit material
as social phenomenon as well as object of governmental
regulation. Although our task is largely to think about laws and
law enforcement, we know that thinking about law requires
thinking as well about the social foundations of the practice
involved. Most historical study to date has not been about the
social practice of pornography, but largely about control of that
social practice by government. If the use of sexually explicit
material is to be understood fully, the scope of thinking about
the issue should be broadened substantially.
2.2 Regulation and the Role of Religion
236
When earlier social inhibitions about public descriptions
and depictions of sexuality and sexual practices came to be
er)forced by law, it was largely in the context of religious
rather than secular concerns. Moreover, the earliest enforcement
efforts were directed not against descriptions or depictions of
sex itself, but only against such depictions when combined with
attacks on religion or religious authorities.
This phenomenon of regulation in defense of religion rather
than in defense of decency can be seen by the tolerance, at least
in European cultures, of secular bawdiness up to the middle of
the seventeenth century. Although many European countries
rigidly controlled written and printed works from medieval times
through the seventeenth century, this control was exercised only
in the name of religion and politics, and not in the name of
decency. In one legal form or another, and in secular as well as
ecclesiastical tribunals, heresy, blasphemy, treason, and
sedition were all severely sanctioned, but sexually explicit
representations alone were rarely treated as a matter justifying
punishment or restraint. Perhaps the best example of this
phenomenon was the action of the Council of Trent in 1573, when
it permitted publication of a version of Boccacio's Decameron in
which the sinning priests and nuns were converted into sinning
"embers of the laity.
If we focus on England, from which our legal system emerged,
lt is commonly acknowledged that sexuality itself was not treated
8 a matter for governmental legal concern until 1663. That year
237
saw the conviction in London of Sir Charles Sedley, but th
activity for which he was convicted hardly looks like a case
involving pornography. 7 instead, Sedley was convicted of the
crime of committing a breach of the peace for getting drunk
removing his clothes, uttering profane remarks, and pouring urine
on the crowd below the tavern balcony on which he was standing at
the time. Although Sedley's profane remarks included words
there seems little doubt that he would have been convicted even
had he remained silent. The significance of this case,
therefore, lies in the fact that mere indecent behavior, absent
any attack on religion, and absent any challenge to secular
authority, was for the first time perceived to be something
deserving of governmental involvement. Prior to Sedley's case,
government stepped in to protect the person and his property, to
protect the authority of the state, and to protect the church.
With Sedley's case came the beginning of a broader range of
governmental concerns, and thus Sedley's case is properly seen as
the precursor of most modern regulation of sexually explicit
materials.
Even after Sedley's case, the common law was hardly eager to
come to the defense of decency. Throughout the seventeenth and
eighteenth centuries, common law courts in England were only
occasionally asked to take action against the kind of material
•that would then have been considered pornographic. Even when
7 King v. Sedley, 1 Keble 620 (K.B.), 83 Eng. Rep.
1146 (1663T7
asked, the courts were often reluctant to respond. In 1708, for
example, James Read was indicted in London for publishing an
extremely explicit book entitled The Fifteen Plagues of a
Maidenhead. The Queen's Bench court, however, dismissed the
indictment, and Lord Justice Powell's statement provides an apt
summary of the general reaction of the law to sexually explicit
materials until very late in the eighteenth century:
"This is for printing bawdy stuff but reflects on
no person, and a libel must be against some
particular person or persons, or against the
Government. It is stuff not fit to be mentioned publicly; if
there should be no remedy in the
Spiritual Court, it does not follow there must be a
remedy here. There is no law to punish it, I wish
there were, but we cannot make law; it indeed tends to the
corruption of good manners, but that is not sufficient for us to
punish."8
Not all of the common law reaction to sexual explicitness
absent religious blasphemy was the same. In 1727 Edmund Curll
was convicted for corrupting public morals on account of his
publication of Venus in the Cloister, or the Nun in Her Smock,^
and the Crown's attack on John Wilkes, largely on the basis of
his activities as political dissident, included prosecution for
publishing his highly explicit Essay on Woman.10 Yet at about
8 Queen v. Read, Fortescue's Reports 98, 92 Eng. Rep.
777 (1708).
9 Dominus Rex v. Curll, 2 Str. 789, 93 Eng. Rep. 849
(1727). Because the religious aspects of this bookwere anti-Catholic, it seems safe to conclude that
protection of religion was no part of the governmental desire
to indict or to convict.
10 The King v. John Wilkes, 2 Wils. K.B. 151, 95 Eng.
-* - ~ -• «« — n -I 1 -^ / -I -I -» A \
*« Tne King v. jonn wiJ.Kes, & nij.». r^.o. j.->j.» ?->
Rep. 737 (1764), 4 Burr.2527, 98 Eng. Rep. 327 (1770).
238
239
the same time, in 1748 to be exact, the publication of jOn
Cleland's Memoirs of a Woman of Pleasure, better known as Fanny
Hill, took place without either public outcry or governmental
intervention.
The history of the English experience with sexually explicit
materials is largely paralleled by the experiences in other
European countries, and in the English colonies, including those
in North America. As the world entered the nineteenth century,
it remained the case that in most of the world there was greater
tolerance for sexually explicit writing, printing, and drawing
than there would be fifty years later, and that governmental
action against spoken, written, or printed materials remained
largely devoted to protecting the authority of the state and to
protecting the integrity and values of religion.
2.3 Obscenity Law - The Modern History
As indicated in the previous section, there were traces of
legal concern with decency itself in the eighteenth century, but
these were little more than traces. If one is searching for the
roots of modern American obscenity law, one must look to the
first half of the nineteenth century in both Great Britain and
the United States. The impetus in Britain came initially fr°m
private organizations such as the Organization for the
Reformation of Manners and its successor the Society for the
Suppression of Vice. As printing became increasingly economical,
printed materials became more and more available to the masses.
Thus, the kinds of sexually explicit material that had circulated
240
relatively freely in England among the elite during the
ighteenth century and earlier now became more readily available
to everyone. With this increased audience came an increase in
demand, and with the increased demand came an increased supply.
A3 a result, the early part of the nineteenth century saw much
greater production and circulation of material as sexually
explicit as had been less widely circulated earlier. And because
the audience was more broad-based, the material itself became not
necessarily more explicit, but certainly briefer, simpler, and
more straightforward.
These developments in England came at about the same time as
general views about sexual morality, and especially about public
sexual morality, were becoming increasingly stern. In an
important sense, Victorianism preceded Victoria, and thus the
initiatives of organizations like the Society for the Suppression
of Vice found a receptive audience in the population at large, in
government, and in the judiciary. Because private prosecution
for criminal offenses was part of the English system of criminal
justice at the time, the Society and others like it were able to
commence their own criminal prosecutions, and their efforts from
the early 1800s through the 1860s resulted in many prosecutions
for obscene libel, as it had by then come to be called. Most of
these prosecutions were successful, and by the 1860s there had
developed a well established practice of prosecuting people for
distributing works perceived as immoral.
The 1800s also saw the development of more effective ways of
241
printing drawings in one form or another for mass circulation
and saw as well the development of photography. Not
surprisingly, printed materials with a sexual orientation came t
include increasingly large amounts of pictorial material. This
development not only increased the impact of the materials, and
therefore the offensiveness of many of the materials, but also
increased their accessibility. With literacy no longer a
requirement for appreciation, the market demand increased, and
so, consequently, did the supply. Legal reactions to the
proliferation of pictorial materials, again largely inspired by
the Society for the Suppression of Vice and similar
organizations, included the Vagrancy Act of 1824, which provided
criminal penalties for the publication of an indecent picture, as
well as legislation enacted in 1853 directed primarily at the
increasing importation into England of so-called "French
postcards."
American developments were similar. Although prior to 1800
there existed colonial statutes and some common law cases
seemingly inclusive of profanity or sexual immorality, again the
plain intent of these laws, as well as their universal
application, was only to that which was blasphemous or in some
other way threatening to religion. Pure sexual explicitness,
while often condemned, was not until after 1800 taken to be a
matter of governmental concern. After 1800, however, trends with
respect to the type of material available and the audience to
whom it was directed were quite similar to the trends in Engl»n •
\!
The reaction was also similar, and in Pennsylvania in 1815 the
ge Of Commonwealth v. Sharpless represented the first
sported conviction in the United States for the common law crime
f obscene libel. Massachusetts followed six years later, in the
case of Commonwealth v. Holmes,12 ana at about the same time
Vermont passed the country's first statute prohibiting the
ublication or distribution of obscene materials. Other states
followed, and by the middle of the nineteenth century the
production and distribution of obscene materials was a crime
throughout most of the United States.
As in England, however, most of the enforcement impetus in
the United States came from private organizations. Most
prominent among these were the Watch and Ward Society, in Boston
and the New York Society for the Suppression of Vice. The New
York Society for the Suppression of Vice, officially created in
1873, was largely the product of the efforts of Anthony Comstock,
who crusaded actively from about that time until his death in
1915 for greater restrictions on indecent materials, and for more
vigorous prosecution of the laws against them. Although he was
also actively opposed to light literature, pool halls, lotteries,
gambling dens, popular magazines, weekly newspapers,
contraception, and abortion, most of his energies were directed
•t sexually explicit magazines, books, and pictures. In large
his most vigorous efforts were directed at magazines like
11
12
2 Serg. & Rawle 91 (1815).
17 Mass. 336 (1821) .
242
243
{ )
The National Police Gazette, and other generally non-arti
works. Although Comstock admitted that artistic or liteer9ty
merit did not concern him if the material dealt with "lust," mo
prosecutions of the time were for comparatively unimport
works, a phenomenon that was to change in the early part of tt)
twentieth century. Comstock was largely responsible for
enactment of the federal laws that still, with only comparatively
minor modifications through the years, constitute the bulk of th
federal laws dealing with obscene materials. And he himself, as
a specially appointed agent of the Post Office Department
enthusiastically and vigorously enforced the law. Shortly before
his death, he announced with pride that he had "convicted persons
enough to fill a passenger train of sixty-one coaches, sixty
coaches containing sixty passengers each and the sixty-first
almost full. I have destroyed 160 tons of obscene literature."
Although Comstock's efforts were the most vigorous, the most
extensive, and the most effective, similar initiatives took plac«
throughout the United States during the latter part of the
nineteenth century and the early part of the twentieth. The
result of this had a profound effect on the nature of the
industry, for throughout the first half of the twentieth century
in the United States the market for sexually explicit materials
was almost exclusively clandestine. During this period
prosecutions and legal developments surrounded the attempted and
-- i~~* oven then)
I
often successful actions against works now (and even
commonly taken to be of plain literary or artistic merit.
Th«
concerned itself not only with comparatively explicit works
as D.H. Lawrence's Lady Chatterley's Lover and James Joyce's
ses, but works containing suggestions of sexual immorality no
re explicit than that in, for example, Theodore Dreiser's An
ripan Tragedy. The Supreme Judicial Court of Massachusetts
d this book to be obscene because "the seller of a book which
tains passages offensive to the statute has no right to assume
that children to whom the book might come would not read the
obscene passages, or having read them, would continue to read on
until the evil effects of the obscene passages were weakened or
dissipated with the tragic denouement of the tale."
With publications such as An American Tragedy and Esguire
•agazine^ constituting the legal skirmishes, it was plain that
truly sexually explicit material could not circulate openly, and
In fact it did not for much of this century. It still existed,
however, despite having been driven rather deeply underground.
We discuss the more recent history of the production,
distribution, and sale of truly explicit material at greater
length in later in this Report dealing with the nature of the
industry in general, but it is important to note here that the
"istence of legal disputes about mainstream literary works did
not mean that these works constituted the extent of what was
•vaiiable. So-called "stag films" were produced and distributed
13
(1930).
14
Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472
Hannegan v. Esquire, 327 U.S. 146 (1946)
244 245
in a highly surreptitious fashion. Sales of pornogranh
pictures, magazines, and eight millimeter films took pia
through the mails as a result of advertisements in heavi
guarded language, or through sales by someone who knew someo
who knew someone else, or in some form or another "under th
counter" in establishments primarily devoted to more accepted
material. Until the 1960s, therefore, the law operated largely
in two quite different roles. On the one hand, and more visible
were the prosecutions of books and films that contained
substantial merit and were directed to and available to a general
audience. But on the other hand were enforcement efforts against
much more explicit material, distributed in much more
surreptitious fashion, as to which serious constitutional or
definitional issues never arose. It was not until the early
1960s, when the Supreme Court began actively to scrutinize the
contents of material found to be obscene, that attempted
prosecutions of unquestionably serious works largely withered,
and that most of the legal battles concerned the kinds of
material more commonly taken to be pornographic.
This active Supreme Court scrutiny had its roots in the 1957
case of Roth v. United States,15 discussed at length in Chapter 3
of this Part, in which the First Amendment was first taken to
limit the particular works that could be found obscene. By the
1960s, cases such as Jacobellis v. Ohiol6 had made this close
15 354 U.S. 476 (1957)
16 378 U.S. 184 (1964) .
246
the
v
utiny a reality, and by 1966 the range of permissible
lation could properly be described as "minimal." In that year
Supreme Court decided the case of Memoirs v. Massachusetts,17
hich held that material could be restricted only if, among other
factors, it was "utterly without redeeming social value." The
stringency of this standard made legal restriction
extraordinarily difficult, and shortly thereafter the Supreme
Court made it even more difficult by embarking on a practice of
reversing obscenity convictions with respect to a wide range of
•aterials, many of which were quite explicit.18 The result,
therefore, was that by the late 1960s obscenity regulation became
•asentially dormant, with a consequent proliferation of the open
availability of quite explicit materials. This trend was
reinforced by the issuance in 1970 of the Report of the
President's Commission on Obscenity and Pornography, which
recommended against any state or federal restrictions on the
material available to consenting adults. Although the Report was
resoundingly rejected by President Nixon and by Congress, it
nevertheless reinforced the tendency to withdraw legal
restrictions in practice, which in turn was one of the factors
contributing to a significant growth from the late 1960s onward
°f the volume and explicitness of materials that were widely
available.
The Supreme Court decisions of 1973, most notably Paris
17
18
383 U.S. 413 (1966).
E.g., Redrup v. New York, 386 U.S. 767 (1967).
247
Adult Theatres I v. Slatonig and Miller v. California,20 b
reversing the "utterly without redeeming social value" standard
and by making clear once again that the First Amendment did not
protect anything and everything that might be sold to or viewed
by a consenting adult, tended to recreate the environment in
which obscenity regulation was a practical possibility. Since
1973, however, the extent of obscenity regulation has varied
widely throughout the country. In some geographic areas
aggressive prosecution has ended the open availability of most
extremely explicit materials, but more commonly prosecution
remains minimal, and highly explicit materials are widely
available. Because the current situation is explored throughout
this Report, and because it is described in detail in a later
part, we will go no further in this Chapter, whose primary
purpose has been to put the present into historical perspective.
19 413 U.S. 49 (1973).
20 413 U.S. 15 (1973).
248
Chapter 3
The Constraints Of The First Amendment
3.1 The Presumptive Relevance of the First Amendment The
subject of pornography is not coextensive with the subject o£
sex. Definitionally, pornography requires a portrayal, whether
spoken, written, printed, photographed, sculpted, or drawn, and
this essential feature of pornography necessarily implicates
constitutional concerns that would not otherwise exist. The
First Amendment to the Constitution of the United States provides
quite simply that "Congress shall make no law . . . abridging
the freedom of speech, or of the press." Longstanding judicial
interpretations make it now clear that this mandate is, because
of the Fourteenth Amendment, applicable to the states as well,
and make it equally clear that the restrictions of the First
Amendment are applicable to any form of governmental action, and
not merely to statutes enacted by a legislative body.22
To the extent, therefore, that regulation of pornography
constitutes an abridgment of the freedom of speech, or an
abridgment of the freedom of the press, it is at least
presumptively unconstitutional. And even if some or all forms of
regulation of pornography are seen ultimately not to constitute
abridgments of the freedom of speech or the freedom of the press,
21
22
Gitlow v. New York, 268 U.S. 652 (1925).
E.g., Bantam Books, Inc. v. Sullivan. 372 U.S. 58.. .g., antam Books, Inc. v. Sullivan, 372
In? ' Organization for a Better Austin v. Keefe,»"Z U.S. 415 (1971).
249
fl
the fact remains that the Constitution treats speaking
printing as special, and thus the regulation of anything spoken
or printed must be examined with extraordinary care. For even
when some forms of regulation of what is spoken or printed are
not abridgments of the freedom of speech, or abridgments of the
freedom of the press, such regulations are closer to constituting
abridgments than other forms of governmental action. If nothing
else, the barriers between permissible restrictions on what is
said or printed and unconstitutional abridgments must be
scrupulously guarded.
Thus, we start with the presumption that the First Amendment
is germane to our inquiry, and we start as well with the
presumption that, both as citizens and as governmental officials
who have sworn an oath to uphold and defend the Constitution, we
have independent responsibilities to consider constitutional
issues in our deliberations and in our conclusions. Although we
are not free to take actions that relevant Supreme Court
interpretations of the Constitution tell us we cannot take, we do
not consider Supreme Court opinions as relieving us of our own
constitutional responsibilities. The view that constitutional
concerns are only for the Supreme Court, or only for courts in
general, is simply fallacious, and we do no service to the
Constitution by adopting the view that the Constitution is
someone else's responsibility. It is our responsibility, and w«
have treated it as such both in this Report and throughout our
deliberations.
250
3 . 2 The First Amendment, The Supreme Court, and the
of Obscenity
Although both speaking and printing are what the First
Amendment is all about, closer examination reveals that the First
Amendment cannot plausibly be taken to protect, or even to be
relevant to, every act of speaking or writing. Government may
plainly sanction the written acts of writing checks backed by
insufficient funds, filing income tax returns that understate
income or overstate deductions, and describing securities or
consumer products in false or misleading terms. In none of these
cases would First Amendment defenses even be taken seriously.
The same can be said about sanctions against spoken acts such as
lying while under oath, or committing most acts of criminal
conspiracy. Although urging the public to rise up and overthrow
the government is protected by the First Amendment, urging your
brother to kill your father so that you can split the insurance
•oney has never been considered the kind of spoken activity with
»hich the First Amendment is concerned. Providing information to
the public about the misdeeds of their political leaders is
wntral to the First Amendment, but providing information to
one's friends about the combination to the vault at the local
b»nk is not a First Amendment matter at all.
The regulation of pornography in light of the constraints of
"• First Amendment must thus be considered against this
•Aground - that not every use of words, pictures, or a printing
Press automatically triggers protection by the First Amendment.
251
158-315 Vol. 1, o - 86 - 9
(I
Indeed, as the examples above demonstrate, many uses of words
pictures, or a printing press do not even raise First Amendment
concerns. As Justice Holmes stated the matter in 1919, "the
First Amendment . . . cannot have been, and obviously was not,
intended to give immunity for every possible use of language."23
As described in Chapter 2 of this part, both the states and the
federal government have long regulated the trade in sexually
explicit materials under the label of "obscenity" regulation.
And until 1957, obscenity regulation was treated as one of those
forms of regulation that was totally unrelated to the concerns or
the constraints of the First Amendment. If the aim of the state
or federal regulation was the control of obscenity, then the
First Amendment did not restrict government action, without
regard to what particular materials might be deemed obscene and
thus prohibited.24 When, throughout the first half of this
century, states would determine to be obscene such works as
Theodore Dreiser's An American Tragedy,25 or D.H. Lawrence's
Lady Chatterley's Lover,26 or Erskine Caldwell's God's Little
Acre,27 or Radclyffe Hall's The Well of Loneliness,28 the First
23 Frohwerk v. United States, 249 U.S. 204 (1919).
24 punlap v. United States, 165 U.S. 486 (1897).
25 commonwealth v. Friede, 271 Mass. 318, 171 N.E.
472 (1930).
26 People v. Dial Press, 182 Misc. 416 (N.Y. Magis.
Ct. 1929).
27 Attorney General v. Book Named "God's Li^le Acre/—
326 Mass. 281, 93 N.E.2d 819 (1950).
252
Amendment was not taken to constitute a significant barrier to
such actions.
In 1957, however, in Roth v. United States,29 the Supreme
Court confronted squarely the tension between the regulation of
what was alleged to be obscene and the constraints of the First
junendment. After Roth, it is not simply the form of regulation
that immunizes a prosecution from the First Amendment. The Court
made clear in Roth, and even clearer in subsequent cases,-30 that
the simple designation of a prosecution as one for obscenity does
not cause the First Amendment considerations to drop out. If the
particular materials prosecuted are themselves protected by the
Pirst Amendment, the prosecution is impermissible. After Roth
•ere labels could not be used to justify restricting the
protected, and mere labels could not justify circumventing the
protections of the First Amendment.
But the Supreme Court also made clear in Roth that some
materials were themselves outside of the coverage of the First
Amendment, and that obscenity, carefully delineated, could be
considered as "utterly without redeeming social importance." As a
result, the Court concluded, obscene materials were not the kind
of speech or press included within the First Amendment, and could
thus be regulated without the kind of overwhelming evidence of
2R,„ People v. Seltzer, 122 Misc. 329, 203 N.V.S. 809
'"•I. Sup. Ct. 1924) .
29 354 U.S. 476 (1957).
253
harm that would be necessary if materials of this variety were
included within the scope of the First Amendment. But to the
Court in Roth, that scope was limited to material containin
ideas. All ideas, even the unorthodox, even the controversial
and even the hateful, were within the scope of the First
Amendment. But if there were no ideas with "even the slightest
redeeming social importance," then such material could be taken
to be not speech in the relevant sense at all, and therefore
outside of the realm of the First Amendment.
The general Roth approach to obscenity regulation has been
adhered to ever since 1957, and remains still today the
foundation of the somewhat more complex but nevertheless
fundamentally similar treatment of obscenity by the Supreme
Court. This treatment involves two major principles. The first,
reiterated repeatedly and explained most thoroughly in Parts
Adult Theatre I v. Slaton, is the principle that legal
obscenity is treated as being either not speech at all, or at
least not the kind of 'speech that is within the purview of any of
the diverse aims and principles of the First Amendment. As a
result, legal obscenity may be regulated by the states and by the
federal government without having to meet the especially
stringent standards of justification, often generalized as a
"clear and present danger," and occasionally as a "compelling
interest," that would be applicable to speech, including a great
deal of sexually oriented or sexually explicit speech, that is
31 413 U.S. 49 (1973).
254
viithin the aims and principles of the First Amendment. Instead,
legal obscenity may constitutionally be regulated as long as
there exists merely a "rational basis" for the regulation, a
standard undoubtedly drastically less stringent than the standard
Of "clear and present danger" or "compelling interest."
That legal obscenity may be regulated by the states and the
federal government pursuant to Roth and Paris does not, of
course, mean that the states must regulate it, or even that they
necessarily should regulate it. It is in the nature of our
constitutional system that most of what the Constitution does is
to establish structures and to set up outer boundaries of
permissible regulation, without in any way addressing what ought
to be done within those outer boundaries. There is no doubt, for
example, that the speed limits on the highways could be
significantly reduced without offending the Constitution, that
states could eliminate all penalties for burglary without
violating the Constitution, and that the highest marginal income
tax rate could be increased from fifty percent to ninety percent
without creating a valid constitutional challenge. None of these
proposals seems a particularly good idea, and that is precisely
the point - that the fact that an action is constitutional does
not mean that it is wise. Thus, although the regulation of
obscenity is, as a result of Roth, Paris, and many other cases,
constitutionally permissible, this does not answer the question
"hether such regulation is desireable. Wisdom or desirability
*r« not primarily constitutional questions.
255
Thus the first major principle is the constitutional
permissibility of the regulation of obscenity. The second major
principle is that the definition of what is obscene, as well
the determination of what in particular cases is obscene, i
itself a matter of constitutional law. If the underpinnings Of
the exclusion of obscenity from the scope of the First Amendment
are that obscenity is not what the First Amendment is all about
then special care must be taken to ensure that materials,
including materials dealing with sex, that are within what the
First Amendment is all about are not subject to restriction.
Although what is on the unprotected side of the line between the
legally obscene and constitutionally protected speech is not
protected by the First Amendment, the location of the line itself
is a constitutional matter. That obscenity may be regulated
consistent with the First Amendment does not mean that anything
that is perceived by people or by legislatures as obscene may be
so regulated.
As a result, the definition of obscenity is largely a
question of constitutional law, and the current constitutionally
permissible definition is found in another 1973 case. Miller v.
California.32 According to Miller, material is obscene if all.
three of the following conditions are met:
32 413 u.S. 15 (1973). Among the most «fln"x«j£ of
aspects of Miller was the fact that " re3ect«J as before
the definitions obscenity the requirement that befor
material could be deemed obscene it had to b* *h°™ ndard,
"utterly without redeeming social value." ™" "W'rinwhich had its roots as part of the test for obscenity
Memoirs v. Massachusetts, 383 U.S. 413.
256
j. The average person, applying contemporary
community standards, would find that the work,
taken as a whole, appeals to the prurient interest
[in sex); and
2, the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state [or
federal] law; and
3. the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
It is not our function in this Report to provide an
exposition of the law of obscenity. In a later part of this
Report we do provide a much more detailed treatment of the
current state of the law that we hope will be useful to those
with a need to consider some of the details of obscenity law.
But we do not wish our avoidance of extensive description of the
law here to imply that the law is simple. Virtually every word
and phrase in the Miller test has been the subject of extensive
litigation and substantial commentary in the legal literature.
The result of this is that there is now a large body of
explanation and clarification of concepts such as "taken as a
whole," "prurient interest," "patently offensive," "serious
value," and "contemporary community standards." Moreover,
there are many constitutionally mandated aspects of obscenity law
that are not derived directly from the definition of obscenity.
For example, no person may be prosecuted for an obscenity offense
unless it can be shown that the person had knowledge of the
general contents, character, and nature of the materials
involved, for if the law were otherwise booksellers and others
would avoid stocking anything even slightly sexually oriented for
'ear of being prosecuted on account of materials the content of
257
( V
which they were unaware.33 The procedures surrounding the
initiation of a prosecution, including search and seizure, are
also limited by constitutional considerations designed to prevent
what would in effect be total suppression prior to a judicial
determination of obscenity.34 And tne entire subject of child
pornography, which we discuss in Chapter 7 of this Part, is
governed by different principles and substantially different
legal standards.
The constitutionally-based definition of obscenity is
enforced not only by requiring that that definition be used in
obscenity trials, but also, and more importantly, by close
judicial scrutiny of materials determined to be obscene. This
scrutiny, at both trial and appellate levels, is designed to
ensure that non-obscene material is not erroneously determined to
be obscene. The leading case here is the 1974 unanimous Supreme
Court decision in Jenkins v. Georgia,35 which involved a
conviction in Georgia of the Hollywood motion picture Carnal
Knowledge. In reversing the conviction, the Supreme Court made
clear that regardless of what the local community standards of
that community may have been, the First Amendment prohibited any
33 smith v. California, 361 U.S. 147 (1959). The
principle was reaffirmed in Hamling v. United States, 418
U.S. 87 (1974), which also made clear that the defendant need
not be shown to have known that the materials were legally
obscene.
34 See, Heller v. New York. 413 U.S. 483 (1973)?
Roaden v. Kentucky, 413 U.S. 496 (1973).
35 418 U.S. 153 (1974).
258
mmunity, regardless of its standards, from finding that a
tion picture such as this appealed to the prurient interest or
was patently offensive.36 Thus, although appeal to the prurient
•nterest and patent offensiveness are to be determined in the
first instance by reference to local standards, it.is clear after
Jenkins that the range of local variation that the Supreme Court
will permit consistent with the First Amendment is in fact quite
limited.
In the final analysis, the effect of Miller, Jenkins, and a
large number of other Supreme Court and lower court cases is to
limit obscenity prosecutions to "hard core"37 material devoid of
jnything except the most explicit and offensive representations
of sex. As we explained in our Introduction to this part, we
believe that the late Justice Stewart was more perceptive than he
has been given credit for having been in saying of hard-core
pornography that he knew it when he saw it.38 Now that we have
36 The third facet of the Miller test, that the work
lack "serious literary, artistic, political, or scientific
»alue," is never in any event to be determined by reference
to local standards. Here the frame of reference must in all
cases be national. Smith v. United States, 431 U.S. 291(1977).
37 The Supreme Court in fact uses the term in Miller.
38 "I have reached the conclusion . . . that under
the First and Fourteenth Amendments criminal laws in this
•tea are constitutionally limited to hard-core pornography.1 shall not today attempt further to define the kinds of
•Uerial I understand to be embraced within that shorthand
?**cription; and perhaps I could never succeed in
"wlligently doing so. But I know it when I'see it, and the
Pictur« involved in this case is not that."
v. Ohio. 378 U.S. 184, 197 (1964) (Stewart, J. ,
259
seen much of it, we are all confident that we too know it when uWQ
see it, but we also know that others have used this and other
terms to encompass a range of materials wider than that which th
Supreme Court permits to be restricted, and wider than that which
most of us think ought to be restricted. But it should be plain
both from the law, and from inspection of the kinds of material
that the law has allowed to be prosecuted, that only the most
thoroughly explicit materials, overwhelmingly devoted to patently
offensive and explicit representations, and unmitigated by any
significant amount of anything else, can be and are in fact
determined to be legally obscene. 3.3 Is the Supreme Court
Right?
We cannot ignore our own obligations not to recommend what
we believe to be unconstitutional. Numerous people, in both oral
and written evidence, have urged upon us the view that the
Supreme Court's approach is a mistaken interpretation of the
First Amendment. They have argued that we should conclude that
3 9any criminal prosecution based on the distribution-" to
consenting adults of sexually explicit material, no matter how
offensive to some, and no matter how hard-core, and no matter how
devoid of literary, artistic, political, or scientific value, is
impermissible under the First Amendment.
39 we do not in this Report discuss
". .constitutionally protected. We do not
because nothing we recommend is inconsistent with be
one has suggested to us that we should urge that Stanley
overruled.
260
We have taken these arguments seriously. In light of the
facts that the Supreme Court did not in Roth or since unanimously
conclude that obscenity ie outside of the coverage of the First
Amendment, and that its 1973 rulings were all decided by a scant
5-4 majority on this issue, there is no doubt that the issue was
debatable within the Supreme Court, and thus could hardly be
without difficulty. Moreover, we recognize that the bulk of
scholarly commentary is of the opinion that the Supreme Court's
resolution of and basic approach to the First Amendment issues is
incorrect.40 with dissent existing even within the Supreme
Court, and with disagreement with the Supreme Court majority's
approach predominant among legal scholars, we could hardly ignore
the possibility that the Supreme Court might be wrong on this
issue, and that we would wish to find protected that which the
Supreme Court found unprotected.
There are both less and more plausible challenges to the
Supreme Court's approach to obscenity. Among the least
plausible, and usually more rhetorical device than serious
argument, is the view that the First Amendment is in some way an
"absolute," protecting, quite simply, all speech. Even Justices
Black and Douglas, commonly taken to be "absolutists," would
hardly have protected all spoken or written acts under the First
40'lu See, e.g., Kalven, The Metaphysics of the Law of
p»cenitj>- T96(TSup. Ct. Rev"; Tl Henkin, Morals and the
tfJ^ituFion; The Sin of Obscenity, 63 Colum. L. Rev. 3~9T
J 86JMRichards,Free Speech and Obscenity Law; Toward a
if?'?!I Thcory of the F*rst Amendment, 123 U. Pa. L. Rev. 45
261
C )
orAmendment, and on closer inspection all those accused
confessing to "absolutism" would at the very least apply ei
absolutism to a range of spoken or written acts smaller than
universe of. all spoken, written, or pictorial acts. This is no.
to deny that under the views of many, including Black a
Douglas, what is now considered obscene should be within the
universe of what is absolutely protected. But "absolutism" in
unadulterated form seems largely a strawman, and we see no need
to use it as a way of avoiding difficult' questions.
Much more plausible is the view not that the First Amendment
protects all spoken, written, or pictorial acts, but that all
spoken, written, or pictorial acts are at least in some way
covered, even if not ultimately protected, by the First
Amendment. That is, even if the government may regulate som«
such acts, it may never do so unless it has a reason
substantially better than the reasons that normally ar«
sufficient to justify governmental action. Whether thU
heightened standard of justification is described as a "clear and
present danger," or "compelling interest," or some standard less
stringent than those, the view is still that regulating any
spoken, written, or pictorial acts requires a particularly good
reason. And when applied to the regulation of obscenity, so th«
argument goes, the reasons supplied and the empirical evident*
offered remain too speculative to meet this especially ni'
burden of justification.
Other views accept the fact that not all spoken, written, °r
262
jctorial acts need meet this especially high burden of
lustification. Only those acts that in some way relate to the
ourposes or principles of the First Amendment are covered, but,
.t is argued, even the hardest-core pornographic item is within
the First Amendment's coverage. To some this is ,because both the
distribution and use of such items are significant aspects of
gelf-expression. And while not all acts of self-expression are
covered by the First Amendment, acts of self-expression that take
the form of books, magazines, and films are, according to the
argument, so covered. These, it is argued, are the traditional
aedia of communication, and when those media are used to express
a different world view, or even merely to achieve sexual
satisfaction, they remain the kinds of things towards which the
First Amendment is directed. As a result, regulation of the
process by which an alternative sexual vision is communicated, or
regulation of the process by which people use the traditional
•edia of communication to experience and to understand a
different sexual vision, is as much a part of the First Amendment
«« communicating and experiencing different visions about, for
•xample, politics or morals. A variant on this last
•rgument, which takes obscenity to be within a range of First
*««ndment coverage admittedly smaller than the universe of
communicative acts, looks not so much to the act or to the
c°»nunicat ion but instead to the government's reasons for
r*9ulating. if, so the argument goes, government's action in
r"tricting is based on its reaction to a particular point of
263
view, then the action is impermissible. Because it is th
purpose of the First Amendment to allow all points of view to be
expressed, an attempt by government to treat one point of vie
less favorably than another is unconstitutional for that reason
alone, no matter how dangerous, offensive, or otherwis
reprehensible the disfavored point of view may be.
We have heard witnesses articulate these various views
intelligently and forcefully, and we have read more extensive
versions of these arguments. They are not implausible by any
means, but in the final analysis we remain unpersuaded that the
fundamental direction of Roth and Paris is misguided. Indeed, we
are confident that it is correct. Although we do not subscribe
to the view that only political speech is covered by the First
Amendment, we do not believe that a totally expansive approach is
reasonable for society or conducive to preserving the particular
values embodied in the First Amendment. The special power of the
First Amendment ought, in our opinion, to be reserved for the
conveying of arguments and information in a way that surpasses
some admittedly low threshold of cognitive appeal, whether that
appeal be emotive, intellectual, aesthetic, or informational. "•
have no doubt that this low threshold will be surpassed by a wide
range of sexually explicit material conveying unpopular ideas
about sex in a manner that is offensive to most people, and «•
accept that this is properly part of a vision of the Firs
Amendment that is designed substantially to protect unpopul»r
ways of saying unpopular things. But we also have little doubt
264
that most of what we have seen that to us qualifies as hard-core
material falls below this minimal threshold of cognitive or
similar appeal. Lines are of course not always easy to draw, but
we find it difficult to understand how much of the material we
have seen can be considered to be even remotely related to an
exchange of views in the marketplace of ideas, to an attempt to
articulate a point of view, to an attempt to persuade, or to an
attempt seriously to convey through literary or artistic means a
different vision of humanity or of the world. We do not deny
that in a different context and presented in a different way,
material as explicit as that which we have seen could be said to
contain at least some of all of these characteristics. But we
also have no doubt that these goals are remote from the goals of
virtually all distributors or users of this material, and we also
have no doubt that these values are present in most standard
pornographic items to an extraordinarily limited degree.
In light of this, we are of the opinion that not only
society at large but the First Amendment itself suffers if the
essential appeal of the First Amendment is dissipated on
arguments related to material so tenuously associated with any of
the purposes or principles of the First Amendment. We believe
It necessary that the plausibility of the First Amendment be
protected, and we believe it equally necessary for this society
to ensure that the First Amendment retains the strength it must
h»ve when it is most needed. This strength cannot reside
Delusively in the courts, but must reside as well in widespread
265
acceptance of the importance o£ the First Amendment. We
that this acceptance is jeopardized when the First Amendment too
often becomes the rhetorical device by which the commercial trad
in materials directed virtually exclusively at sexual arousal is
defended. There is a risk that in that process public
willingness to defend and to accept the First Amendment will be
lost, and the likely losers will be those who would speak out
harshly, provocatively, and often offensively against the
prevailing order, including the prevailing order with respect to
sex. The manner of presentation and distribution of most
standard pornography confirms the view that at bottom the
predominant use of such material is as a masturbatory aid. Vie do
not say that there is anything necessarily wrong with that for
that reason. But once the predominant use, and the appeal to
that predominant use, becomes apparent, what emerges is that much
of what this material involves is not so much portrayal of sex,
or discussion of sex, but simply sex itself. As sex itself, the
arguments for or against restriction are serious, but they are
arguments properly removed from the First Amendment questions
that surround primarily materials whose overwhelming use is not
as a short-term masturbatory aid. Whether the state should, for
example, prohibit masturbation in certain establishments that are
open to the public is a question that some would wish to debate,
but it is certainly not a First Amendment question. similarly'
the extent to which sex itself is and under what circumstances
constitutionally protected is again an interesting and importan
266
constitutional question, but it is not usefully seen as a First
Amendment question.41
We recognize, of course, that using a picture of sex as a
masturbatory aid is different from the simple act of
masturbation, or any other form of sex. The very fact that
pictures and words are used compels us to take First Amendment
arguments more seriously than would be the case if the debate
were about prostitution. Still, when we look at the standard
pornographic item in its standard context of distribution and
use, we find it difficult to avoid the conclusion that this
material is so far removed from any of the central purposes of
the First Amendment, and so close to so much of the rest of the
sex industry, that including such material within the coverage of
the First Amendment seems highly attenuated.
Like any other act, the act of making, distributing, and
using pornographic items contains and sends messages. For
government to act against some of these items on account of the
41 As this report is being written, the Supreme Court
has under advisement after oral argument the case of Bowers
v. Hardwick, 760 F.2d 1202 (llth Cir. 1985), Sup. Ct. Docket
No. 85-140, challenging the constitutionality of the Georgia
sodomy statute as applied to the private and consensual acts
of two male homosexuals. The arguments rely primarily on
constitutional claims of liberty, privacy, and freedom of
association. If the Supreme Court strikes down the statute
as unconstitutional, arguments other than the First Amendment
night be available to challenge certain laws against certainuses of even legally obscene materials. Without such an
Action, however, such privacy or liberty arguments, which theSuPreme Court rejected with respect to exhibition of obscene
"aterial to consenting adults in a theater in Paris, would be
unlikely to succeed. Doe v. Commonwealth's Attorney, 403 F.
aupp. 1199 (E.D. Va. 1975), ait'd without opinion, 425 U.S.901 (1976). c
267
(I
messages involved may appear as problematic under the First
Amendment, but to hold that such governmental action violates the
First Amendment is to preclude government from taking action in
every case in which government fears that the restricted action
will be copied, or proliferate because of its acceptance.
Government may prosecute scofflaws because it fears the message
that laws ought to be violated, and it may restrict the use of
certain products in part because it does not wish the message
that the product is desirable to be widely disseminated in
perhaps its most effective form. So too with reference to the
kind of material with which we deal here. If we are correct in
our conclusion that this material is far removed from the
cognitive, emotive, aesthetic, informational, persuasive, or
intellectual core of the First Amendment, we are satisfied that a
governmental desire to restrict the material for the messages its
use sends out does not bring the material any closer to the
center.
We thus conclude not that obscenity regulation creates no
First Amendment concerns, nor even that the Supreme Court's
approach is necessarily correct. But we do believe the Supreme
Court's approach is most likely correct, and we believe as well
that arguments against the Supreme Court's approach are becoming
increasingly attenuated as we focus on the kind of material
commonly sold in "adults only" establishments in this country'
We may be wrong, but most of us can see no good reason at
moment for substituting a less persuasive approach for the
268
Supreme Court's more persuasive one.
3.4 The Risks of Abuse
Although we are satisfied that there is a category of
material so overwhelmingly preoccupied with sexual explicitness,
and so overwhelmingly devoid of anything else, that its
regulation does no violence to the principles underlying the
First Amendment, we recognize that this cannot be the end of the
First Amendment analysis. We must evaluate the possibility that
in practice materials other than these will be restricted, and
that the effect therefore will be the restriction of materials
that are substantially closer to what the First Amendment ought
to protect than the items in fact aimed at by the Miller
definition of obscenity. We must also evaluate what is commonly
referred to as the "chilling effect," the possibility that, even
absent actual restriction, creators of material that is not in
fact legally obscene will refrain from those creative activities,
or will steer further to the safe side of the line, for fear that
their protected works will mistakenly be deemed obscene. And
finally we must evaluate whether the fact of restriction of
obscene material will act, symbolically, to foster a "censorship
mentality" that will in less immediate ways encourage or lead to
various restrictions, in other contexts, of material which ought
not in a free society be restricted. We have heard in one form
or another from numerous organizations of publishers,
booksellers, actors, and librarians, as well as from a number of
individual book and magazine publishers. Although most have
269
I
urged general anti-censorship sentiments upon us, their oral and
written submissions have failed to provide us with evidence to
support claims of excess suppression in the name of the obscenit
laws, and indeed the evidence is to the contrary. The president
of the Association of American Publishers testified that to his
knowledge none of his members had even been threatened with
enforcement of the criminal law against obscenity, and the
American Library Association could find no record of any
prosecution of a librarian on obscenity charges. Other groups
of people involved in publishing, bookselling, or theatrical
organizations relied exclusively on examples of excess censorship
from periods of time no more recent than the 1940s. And still
others were even less helpful, telling us, for example, that
censorship was impermissible because "This is the United States,
not the Soviet Union." We know that, but we know as well that
difficult issues do not become easy by the use of inflammatory
rhetoric. We wish that many of these people or groups had been
able to provide concrete examples to support their fears of
excess censorship.
Throughout recent and not so recent history, excess
censorship, although not necessarily prevalent, can hardly be
said not to have occurred. As a result we have not been content
to rest on the hollowness of the assertions of many of those who
have reminded us of this theme. If there is a problem, we have
our own obligations to identify it, even if witnesses before us
have been unable to do so. Yet when we do our own researches, we
270
discover that, with few exceptions, the period from 1974 42 to
the present is marked by strikingly few actual or threatened
prosecutions of material that is plainly not legally obscene. We
do not say that there have been none. Attempted and unsuccessful
actions against the film Caligula by the United States Customs
Service, against Playboy magazine in Atlanta and several other
places, and against some other plainly non-obscene publications
indicate that mistakes can be made. But since 1974 such mistakes
have been extremely rare, and the mistakes have all been remedied
at some point in the process. While we wish there would be no
mistakes, we are confident that application of Miller has been
overwhelmingly limited to materials that would satisfy anyone's
definition of "hard core."
Even absent successful or seriously threatened prosecutions,
it still may be the case that the very possibility of such an
action deters filmmakers, photographers, and writers from
exercising their creative abilities to the fullest. Once it
appears that the likelihood of actual or seriously threatened
prosecutions is almost completely illusory, however, we are in a
quandary about how to respond to these claims of "chilling." We
are in no position to deny the reality of someone's fears, but in
almost every case those fears are unfounded. Where, as here, the
fears seem to be fears of phantom dangers, we are hard pressed to
1974 seems the most relevant date because that was
the year in which the Supreme Court, in Jenkins v. Georgia,
*IB U.S. 153 (1974), made it clear that determinations of
°t>scenity were not primarily a matter of local discretion.
271
say that the law is mistaken. It is those who are afraid who are
mistaken. At least for the past ten years, no even remotely
serious author, photographer, or filmmaker has had anything real
to fear from the obscenity laws. The line between what is
legally obscene and what is not is now so far away from their
work that even substantially mistaken applications of current law
would leave these individuals untouched. In light of that, we do
not see their fears, however real to them, as a sufficient reason
now to reconsider our views about the extent of First Amendment
protection.
Much more serious, much more real, and much less in our
control, is the extent to which non-governmental or governmental
but non-prohibitory actions may substantially influence what is
published and what is not. What television scriptwriters write
is in reality controlled by what television producers will buy,
which is in turn controlled by what sponsors will sponsor and
what viewers will view. Screenwriters may be effectively
censored by the extent to which producers or studios desire to
gain an "R" rating rather than an "X," or a "PG" rather than an
"R," or an "R" rather than a "PG." Book and magazine writers and
publishers are restricted by what stores are willing to sell, and
stores are restricted by what people are willing to buy. Writers
of textbooks are in a sense censored by what school districts are
willing to buy, authors are censored by what both bookstores an
librarians are willing to offer, and librarians are censored by
what boards of trustees are willing to tolerate.
272
In all of these settings there have been excesses. But
every one of these settings involves some inevitable choice based
on content. We think it unfortunate when Catcher in the Rye is
unavailable in a high school library, but none of us would
criticize the decision to keep Lady Chatterley's Lover, plainly
protected by the First Amendment, out of the junior high schools.
We regret that legitimate bookstores have been pressured to
remove from their shelves legitimate and serious discussions of
sexuality, but none of us would presume to tell a Catholic
bookseller that in choosing books he should not discriminate
against books favoring abortion. Motion picture studios are
unable to support an infinite number of screenwriters, and
their choice to support those who write about families rather
than about homosexuality, for example, is not only permissible,
but is indeed itself protected by the First Amendment.
Where there have been excesses, and we do not ignore the
extent to which the number of those excesses seems to be
increasing, they seem often attributable to the plainly mistaken
notion that the idea of "community standards" is a carte blanche
to communities to determine entirely for themselves what is
obscene. AS we have tried once again to make clear in this
report, nothing could be further from the truth. Apart from
this, however, the excesses that have been reported to us are
excesses that can only remotely be attributed to the obscenity
laws, in a world of choice and of scarce resources, every one of
these excesses could take place even were there no obscenity laws
273
at all. In a world without obscenity law, television producers
motion picture studios, public library trustees, boards of
education, convenience stores, and bookstores could still all
choose to avoid any mention or discussion of sex entirely. And
in a world without obscenity laws, all of these institutions and
others could and would still make censorious choices based on
their own views about politics, morals, religion, or science.
Thus, the link between obscenity law and the excess narrowness,
at times, of the choices made by private industry as well as
government is far from direct.
Although the link is not direct, we are in no position to
deny that there may be some psychological connection between
obscenity laws and their enforcement and a general perception
that non-governmental restriction of anything dealing with sex is
justifiable. We find the connection unjustifiable, but that is
not to say that it may not exist in the world. But just as
vigorous and vocal enforcement of robbery laws may create the
environment in which vigilantes feel justified in punishing
offenders outside of legal processes, so too may obscenity law
create an environment in which discussions of sexuality are
effectively stifled. But we cannot ignore the extent to which
much of this stifling, to the extent it exists, is no more than
the exercise by citizens of their First Amendment rights to buy
what they want to buy, and the exercise by others of First
Amendment rights to sell or make what they wish. Choices are not
always exercised wisely, but the leap from some unwise choices to
the unconstitutionally of criminal laws only remotely related to
those unwise choices is too big a leap for us to make.
274 275
Chapter 4
The Market And The Industry
4.1 The Market for Sexual Explicitness
More than in 1957, when the law of obscenity became
inextricably a part of constitutional law, more than in 1970,
when the President's Commission on Obscenity and Pornography
issued its report, and indeed more than just a year ago in 1985,
we live in a .society unquestionably pervaded by sexual
explicitness. In virtually every medium, from books to magazines
to newspapers to music to radio to network television to cable
television, matters relating to sex are discussed, described, and
depicted with a frankness and an explicitness of detail that has
accelerated dramatically within a comparatively short period of
time. To attempt to isolate the causes of this phenomenon is
inevitably to embark on a futile enterprise, for the sexual
openness of contemporary America is unquestionably a product of
that immense interplay of factors that makes contemporary America
what it is in numerous aspects apart from sexual explicitness.
We have spent much of our time investigating the nature of
the industry that produces, distributes, and sells sexually
explicit materials, for we do not believe we could responsibly
have drawn conclusions relating to that industry unless we became
familiar with it. The results of this investigation are set out
comprehensively and in detail in a later Part of this Report, but
"e feel nevertheless that a .general overview of the market and
the industry is necessary here.
277
71
The pervasiveness of sexual explicitness in the society in
which we live underscores the importance of distinguishing what
might plausibly be characterized as "pornographic" from the
entire range of descriptions, depictions, and discussions that
are more sexually explicit than would have been the case in
earlier times, and that, for that reason, engender some or
substantial objection from various people within the society. We
find it useful in this Report to describe some particularly
salient aspects of the pornography industry, but any such
discussion must be preceded by a brief survey of some other forms
of sexually explicit material that are usefully contrasted with
the more unquestionably pornographic.
4.1.1 The Motion Picture Industry
With few exceptions, what might be called the "mainstream"
or "legitimate" or "Hollywood" motion picture industry does not
produce the kinds of films that would commonly be made available
in "adults only" outlets. The films shown in such
establishments, the ones containing little if any plot, unalloyed
explicitness, and little other than an intent to arouse, are not
the products of the motion picture industry with which most
people are familiar. Nevertheless, sexuality, in varying degrees
of explicitness or, to many, offensiveness, is a significant part
of many mainstream motion pictures. One result of this
phenomenon has been the rating system of the MPAA. Because those
ratings are so frequently used as shorthand, and frequently
erroneous shorthand, for certain forms of content, a brief
278
description of the rating system may be in order.
The rating system, established in 1968, has no legal force,
but is designed to provide information for distributors,
exhibitors, and viewers of motion pictures. At the present time
there are five different categories within the rating system.
Motion pictures rated "G" are considered suitable for everyone,
and people of all ages are admitted when such films are shown.
The "PG" rating, which stands for "parental guidance suggested,"
still allows all to be admitted, but warns parents that some
material may not be suitable for children. Films receive a PG
rating if there is more than minimal violence, if there is brief
nudity, or if there are non-explicit scenes involving sex. A
"PG-13" rating is used where more parental caution is suggested,
especially with respect to children under the age of thirteen.
Most germane to this Report are the ratings of "R" and "X."
An "R" rating indicates a restricted film, and those under the
age of seventeen are admitted only if accompanied by a parent or
guardian. Motion pictures with this rating may be somewhat,
substantially, or exclusively devoted to themes of sex or
violence. They may contain harsh language, sexual activity, and
nudity. Films with this rating, however, do not contain explicit
sexual activity. If a film contains explicit sexual activity, or
Iff in some cases, it contains particularly extreme quantities
and varieties of violence, it is rated "X," and no one under the
age of seventeen may be admitted.
Only in rare cases will anything resembling standard
279
pornographic fare be submitted to the HPAA for a rating. More
often such material will have a self-rated "X" designation, Or
will have no rating, or will have some unofficial promotional
rating such as "XXX." It is important to recognize, however, that
although no motion picture not submitted to the MPAA can have any
rating other than "X," and that although standard pornographic
items would unquestionably receive an "X" rating if submitted,
not all, and indeed, not many officially "X" rated motion
pictures would commonly be considered to be pornographic.
Although the nature of what kind of content will get what rating
will change with the times, it remains the case that the "x"
rating, especially when applied to the small number of mainstream
films that officially receive that rating after submission to the
MPAA, is not in every case synonymous with what most people would
consider pornography.
4.1.2 Sexually Explicit Magazines
Although the sexual content of large numbers of magazines
has increased in recent years, particular attention is often
focused on so called "men's" magazines, commonly referred to
within the trade as "male sophisticate" magazines. In recent
years variations aimed at a female audience have also appeared,
but the genre remains largely directed to men.
Magazines of this variety tend to be produced and
distributed in a manner not dissimilar to the production and
distribution methods for most mass-circulation magazines. It
almost misleading to consider them as one category, however,
280
such magazines vary enormously in content and expllcitness. A
very few magazines of this variety combine their sexual content
with a substantial amount of non-sexually oriented, a"nd
frequently quite serious, textual or photographic matter. Some
magazines have for their photographs little more than suggestive
nudity, while a number of others feature significant amounts of
simulated or actual sexual activity. From the perspective we
adopt and explain in Chapter 5 of this Part, all of the magazines
in this category contain at least some material that we would
consider "degrading." Some contain a large amount of such
degrading material, and some also contain sexually violent
material.
With respect to the category of the legally obscene, some of
the magazines in this category could not plausibly be considered
legally obscene, while others have occasionally been determined
to be legally obscene by particular courts. As a purely
empirical matter, such determinations of obscenity for even the
most explicit and offensive of these magazines seem aberrational,
and by and large most of these magazines circulate widely
throughout the country without significant legal attack.
4.1.3 Television
Television has become technologically more diverse than in
*arlier years, and it is no longer possible even to think of
television as one medium. Broadcast television, whether network
or local, has a frequent explicit or implicit sexual orientation
ut« with only the rarest exceptions, sexual activity of any
281
r
explicitness at all, or even frontal nudity, has been largely
absent from broadcast television. In part this is explained by
rules and regulatory practices of the Federal Communications
Commission, and in part this is explained by the practices of
stations, networks, and, sponsors. But whatever the cause, the
amount of nudity, sexual innuendo, and sex itself on broadcast
television has traditionally been a far cry from even moderate
levels of sexual explicitness, although it is plainly the case
that the degree of sexual explicitness in depiction, in theme,
and in language on broadcast television has been increasing
substantially in recent years.
Cable television, however, by which we include satellite as
well, is quite different. Under current law, cable is not
subject to the same range of Federal Communications Commission
content regulation, and as a result is often substantially more
sexually explicit than anything that would be available on
broadcast television. This increased explicitness may take the
form of talk shows or call-in shows specializing in sexual
advice, music videos featuring strong sexual and violent themes,
cable channels that specialize in sexual fare, and more general
purpose cable channels may offer mainstream motion pictures that
would not in uncut form be shown on broadcast television.
Although some motion pictures available on cable might be deemed
legally obscene in some areas, and although much of this material
is highly explicit and offensive to many, by and large the
sexually explicit material available on cable would not be of the
282
type likely to be determined to be legally obscene. More often,
what is available, and it does vary from area to area and channel
to channel, is a degree of sexuality somewhat closer to what is
available in a mainstream motion picture theater, but would not
be available on broadcast television.
In some sense the video tape cassette ought to be considered
a form of television, since the television is the device by which
such cassettes are viewed. But the cassettes themselves are so
variable in content that generalization is difficult. Much of
what people rent or, less frequently, buy to watch at home is
standard motion picture theater fare, and therefore can encompass
anything from the kinds of films that are rated "G" to the kinds
of films that are rated "R," and occasionally the kinds of films
that are officially rated "X" by the MPAA. In many video
outlets, however, a range of even more sexually explicit material
Is available, not dissimilar to what might be shown in an "adults
only" theater. Although much of this material would commonly be
considered pornographic, and although much of it might in some
areas be found to be legally obscene, it has in the past tended
to be more on the conventional end of such material, obviously
reflecting the desires of patrons of an establishment offering a
full range of video material. More recently, however, some less
conventional material has become available in some full range
vi<leo outlets. Finally, there is the material available either
" "adults only" establishments offering many types of materials,
°r in "adults only" outlets offering only video tapes. This
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158-315 Vol. 1, o - 86 - 10
n
material, although viewed at home, is for all practical purpos
the same as that which would be shown in "adults only" theaters
or peep shows, and the same range of sexual themes and practice
is commonly available.
4.2 The Pornography Industry
In terms of methods of production, methods of distribution
and methods of ultimate sale to consumers, the pornography
industry itself must be distinguished from the outlets for some
degree of sexual explicitness discussed in the previous section.
The true pornography industry is quite simply different from and
separate from the industry that publishes "men's" magazines, the
industry that offers some degree of sexually oriented material on
broadcast and cable television, and the mainstream motion picture
industry. In some rare instances there may be some linkages
between the two, but in general little more than confusion is
served by concentrating on the these linkages rather than on the
major differences.
4.2.1 The Production of Films, Video Tapes, and Magazines
There can be little doubt that there has within the last ten
to twenty years been a dramatic increase in the size of the
industry producing the kinds of sexually explicit materials that
would generally be conceded to be pornographic. One consequence
of this is that the industry is not as clandestine as it was in
earlier years. Nevertheless, when this industry is compared to
the kinds of industries that produce more mainstream materials,
it is still the case that the production of pornograph
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aterials is a practice and a business that remains substantially
•underground."
Approximately eighty percent of the American production of
this type of motion picture and video tape takes place in and
around Los Angeles, California. In part this is a consequence of
the location there of technical personnel, such as camera
operators, who either are, have been, or wish to be employed in
the mainstream motion picture industry. Indeed, this description
applies as well to many of the performers in these films,
although, unlike technical personnel, the likelihood of a
performer who is involved in pornographic materials
simultaneously or eventually working in the mainstream motion
picture industry is minuscule.
Production of these materials tends to be done on a rather
limited budget, usually in temporary locations such as motel
rooms or rented houses, and usually in quite a short period of
time. Often not only the premises, but the photographic
equipment as well, is rented for only the limited time necessary
to make the film. It is not uncommon for producer, director, and
scriptwriter to be the same person. In many cases the performers
are secured through one of a number of agents who specialize in
securing performers for highly sexually explicit films. Although
there is virtually no overlap between this industry and the
•ainstream film industry, the method of securing performers for
films is largely similar, with agents providing producers with
ooks describing various performers, and with producers often
285
interviewing a number of possible performers before selecting the
ones to be used.
As this Report is being written, the technological nature of
the industry is in the midst of transition from photographic
motion pictures to video tape. The proliferation of the home
video tape recorder is in many respects transforming the
industry, and in addition the process of producing a video tape
tends to be more efficient and less expensive than the process of
producing a photographic motion picture. With respect to aspects
of production that are not technical, however, this technological
development has had little effect on the production side of the
industry.
The production of the standard variety of pornographic
magazine, the kind likely to be sold in an "adults only"
establishment for a rather high price, is in many respects
similar to the production of pornographic motion pictures and
video tapes. The process again operates in a partially
clandestine manner, although it is much more likely here that the
production and distribution processes will be combined. When
this is the case, taking the photographs, assembling them with
some amount of textual material, and physically manufacturing the
magazine will all take place at the same location.
With respect to the business of producing pornographic
paperback books containing nothing but text, the writingr
production, and distribution processes are again likely to
combined. Although independent authors are occasionally use
286
more common is the use of a full-time staff of authors, employed
by the producer to write this kind of book at a rapid rate.
4.2.2 Channels of Distribution
The process of distribution of films is rapidly in the
process of becoming history. The photographic motion picture
film typically shown in "adults only" theaters is rapidly
decreasing in popularity, along with the theaters themselves, as
the video tape cassette becomes the dominant mode of presentation
of non-still material. Many of these video tapes are sold or
rented for home consumption, and many are shown in "peep show"
establishments. The effect of this is that the "adults only"
theater, in any event an expensive operation, and one that is
more visible than many patrons would like, is becoming an
increasing rarity. Similar trends are apparent with respect to
mainstream motion pictures and the theaters in which they are
shown as well, although the effect of video tape on the
pornographic film industry is much more dramatic, probably owing
In large part to the fact that a night out at the movies remains
substantially more socially acceptable in contemporary America
than a night out at the peep show.
The films that are shown in "adults only" theaters, or that
*re shown by use of traditional projection equipment in peep
shows, tend to be distributed nationally by use of complex and
sophisticated distribution networks concentrating exclusively on
highly sexually explicit material There are exceptions to this
9eneralization and one reason for the attention that focused in
287
r
the early 1970s on films such as "Deep Throat," "The Devil i
Miss Jones," and "Behind the Green Door" was that the standard
methods of distribution and exhibition were changed so that fiim
such as these were shown in theaters usually showing more
mainstream films. But apart from exceptions such as these, most
of the chain of distribution involves producers who deal only in
this kind of material, distributors and wholesalers whose entire
business is devoted to highly sexually explicit materials, and
theaters or peep shows catering exclusively to adults desiring
access to very sexually explicit material.
With respect to video tapes, most of the distribution is on
a national scale, and most of that national distribution is
controlled by a relatively limited number of enterprises. These
distributors duplicate in large quantities the tapes they have
purchased from producers, and then sell them to wholesalers,
frequently with some promotional materials, who in turn sell them
to retailers specializing in this type of material, or to more
generally oriented video retailers who will include some of this
material along with their more mainstream offerings. Based on
the evidence provided to us, it appears as if perhaps as many as
half of all of the general video retailers in the country include
within their offerings at least some material that, by itself,
would commonly be conceded to be pornographic.
Magazines are also distributed nationally, and again are
likely first to be sold to wholesalers wKo will then sell to
retailers. This process, however, likely culminating in a sa e
288
at an "adults only" outlet, does not account for as high a
proportion of the total sales as it does for films or video
tapes. Moreso than for films or tapes, many of the magazines are
sold by mail, usually as a result of advertisements placed in
similar magazines, in pornographic books containing text, and
even in more mainstream but sexually oriented publications.
There is some indication that the video tape has hurt the
pornographic magazine industry as well as the pornographic motion
picture industry. The retail prices for such magazines, within
the recent past commonly in the range of from ten to twenty-five
dollars per magazine, are in some geographical areas likely to be
substantially discounted, and adult establishments appear to be
offering an increasing percentage of video tapes and a decreasing
percentage of books and magazines.
4.2.3 The Retail Level
Apart from mail order, and apart from the rental of
pornographic video tapes in general use video retail outlets,
most pornographic material reaches the consumer through retail
establishments specializing in this material. These outlets,
which we refer to as "adults only" outlets or establishments,
usually limit entry to those eighteen years of age or older, but
the strictness of the enforcement of the limitation to adults
varies considerably from outlet to outlet. At times these retail
outlets will take the form of theaters in which only material of
this variety is shown, and at times they will be "adults only"
°utlets specializing in books and magazines. Increasingly,
289
however, the peep show, often combined with an outlet for the
sale of pornographic books and magazines, is a major form of
meeting consumer demand.
The typical peep show is located on the premises of an
"adults only" establishment selling large numbers of pornographic
magazines, along with some other items, such as pornographic
text-only books, sexual paraphernalia, sexually oriented
newspapers, and video tapes. The peep show is often separated by
a doorway or screen from the rest of the establishment, and
consists of a number of booths in which a film, or, more likely
now, a video tape, can be viewed. The patron inserts tokens into
a slot for a certain amount of viewing time, and the patron is
usually alone or with one other person within the particular
booth. The peep show serves the purpose of allowing patrons to
masturbate or to engage in sexual activity with others in some
degree of privacy, at least compared to an adult theater, while
watching the pornographic material. In a later of our report
describing these establishments we note in detail the generally
unsanitary conditions in such establishments. The booths seem
rarely to be cleaned, and the evidence of frequent sexual
activity is apparent. Peep shows are a particularly common
location for male homosexual activity within and between the
booths, and the material available for viewing in some of the
booths is frequently oriented towards the male homosexual.
There are, of course, establishments offering adult
material that do not contain peep shows. Although video tapes
290
an(j various items of sexual paraphernalia are likely to be sold,
the bulk of the stock of these establishments consists of
pornographic magazines, frequently arranged by sexual preference,
fhere can be little doubt that the range of sexual preferences
catered to by magazines is wider than that of any other form of
pornography. As the listing of titles later in this report makes
clear, virtually any conceivable, and quite a few inconceivable,
sexual preferences are featured in the various specialty
magazines, and materials featuring sado-masochism, bestiality,
urination and defecation in a sexual context, and substantially
tore unusual practices even than those are a significant portion
of what is available.
4.3 The Role of Organized Crime
We have spent a considerable amount of our time attempting
to determine whether there is a connection between the
pornography industry and what is commonly taken to be "organized
crime." After hearing from a large number of witnesses, mostly
law enforcement personnel, after reading a number of reports
prepared by various law enforcement agencies, and after
consulting sources such as trial transcripts, published
descriptions, and the like, we believe that such a connection
does exist.
We recognize that the statement that there is a connection
"•tween the pornography industry and organized crime is contrary
to the conclusion reached by the President's Commission on
Obscenity and Pornography in 1970. That Commission concluded
291
that:
Although many persons have alleged that organized
crime works hand-in-glove with the distributors of
adult materials, there is at present no concrete
evidence to support these statements. The hypothesis that
organized criminal elements either control or are "movin
in" on the distribution of sexually oriented materials wiif
doubtless continue to be speculatedupon. The panel findc
that there is insufficient evidence at present to warrant
any conclusion in this regard.
Caution about jumping too easily to conclusions about
organized crime involvement in the pornography industry was
further induced by the evidence offered to us by Director William
H. Webster of the Federal Bureau of Investigation. Director
Webster surveyed the FBI field offices throughout the country,
and reported to us that "about three quarters of those
[fifty-nine] offices indicated that they have no verifiable
information that organized crime was involved either directly or
through extortion in the manufacture of pornography. Several
offices, did, however, report some involvement by members and
associates of organized crime."43 We reach our conclusions
in the face of a negative conclusion by the 1970 Commission, and
in the face of the evidence provided by the FBI, not so much
because we disagree, but because we feel that more careful
analysis will reveal that the discrepancies are less than they
may at first appear.
One leading cause of conflicting views about organized crime
43 We note, however, that a report prepared by the FBI
in 1978, which is included in a later portion of this report,
contains detailed information regarding various links between
organized crime and the pornography industry.
292
involvement in pornography is that there are conflicting views
bout what organized crime is. To many people organized crime
consists of that organization or network of related organizations
commonly referred to by law enforcement personnel and others as
La cosa Nostra. This organization, which we describe in much
S0re detail later in our Report specifically addressing on
organized crime, is a highly structured and elaborately
subdivided organization in some way involved in an enormous range
Of criminal activities. It has its own hierarchy, its own
formalized system of ranks and methods of advancement, and its
ovn procedures for settling disputes. Commonly, although in our
view erroneously. La Cosa Nostra and "organized crime" are
synonymous.
To other people organized crime consists of any large and
organized enterprise engaged in criminal activity, regardless of
any connection with La Cosa Nostra. To the extent that
«nterprises have continuity and a defined membership and engage
In crime, then this is considered to be organized crime.
Finally, to still others the "best" definition of organized
crime lies somewhere in between. For them organized crime
consists of a large and organized enterprise engaged in criminal
•ctivity, with a continuity, a structure, and a defined
•«»bership, and that is likely to use other crimes and methods of
corruption, such as extortion, assault, murder, or bribery, in
the service of its primary criminal enterprise.
These differences in definition are especially important
293
with respect to identifying the connection between the
pornography industry and organized crime, because much of the
evidence supports the conclusion that major parts of the industry
are controlled by organizations that fit the second or third but
not the first of the foregoing definitions. In particular, there
is strong evidence that a great deal of the pornographic film and
video tape distribution, and some of the pornographic magazine
distribution, is controlled by one Reuben Sturman, operating out
of the Cleveland area, but with operations and controlled
organizations throughout the country. Although we inevitably
must rely on secondary evidence, it appears to us that Sturman's
enterprise is highly organized and predominantly devoted to the
vertically integrated production, distribution, and sale of
materials that would most likely be determined to be legally
obscene in most parts of the country. Of this we are certain,
and to that extent we could say that significant parts of the
pornography industry are controlled by organized crime. We also
have some but less clear evidence that organizations like
Sturman's, but not quite as large, play similar roles, and that
all of these various organizations at times have employed other
activities that themselves violate the law in order to further
the production, distribution, and sale of pornographic materials.
In this sense these organizations would fit the third as well as
the second definition of organized crime.
We also have strong reason to believe, however, that neither
Sturman's organization, nor some substantially smaller ones,
294
themselves part of La Cosa Nostra. In that sense this part of
the industry would not fit the first of the above definitions of
organized crime. We do not say that there are no connections
with La Cosa Nostra. On the contrary, there seems to be
evidence, frequently quite strong evidence, of working
arrangements, accommodations, assistance, some sharing of funds,
and the like, as well as evidence of control by La Cosa Nostra,
but nothing that would justify saying that these organizations
are La Cosa Nostra or are a part of La Cosa Nostra.
Much the same could be said about the relationship between
smaller pornography operators and La Cosa Nostra. Again there
seems little evidence of direct ownership, operation, or control,
but there does seem to be a significant amount of evidence that
"protection" of these smaller operators by La Cosa Nostra is both
available and required. This applies in some areas to
distribution, in some to production, and in some to retail
outlets themselves, in much the s.ame way that it applies
frequently to many more legitimate businesses. But we are not
reluctant to conclude that in many aspects of the pornography
business that La Cosa Nostra is getting a piece of the action.
This is not to say that La Cosa Nostra is not itself engaged
In pornography. There also seems strong evidence that
significant portions of the pornographic magazine industry, the
peep show industry, and the pornographic film industry are either
directly operated or closely controlled by La Cosa Nostra members
°r very close associates. Major portions of these industries
295
(
seem to be as much a part of La Cosa Nostra as any other of their
activities. At times there is direct involvement by La Cosa
Nostra even with the day-to-day workings of business, and in many
cases there is clear control even when the everyday management is
left to others. In many of the reports and other documents we
have received there has been evidence to the effect that members
of the Columbo, DeCavalcante, Gambino, and Luchese "families"
have been actively in as well as merely associated with the
production, distribution, and sale, of unquestionably
pornographic materials. There is much evidence that alleged La
Cosa Nostra members such as Robert DiBernardo and others are or
have in the recent past been major figures in the national
distribution of such materials. Although we cannot say that
every piece of evidence we have received to this effect is true,
the possibility that none of this cumulative evidence is true is
so remote that we do not take it seriously.
As was the case with many other topics within our mandate,
our lack of investigative resources has made it impossible to
investigate these matters directly. Moreover, the matters to be
investigated with respect to organized crime are, as has been
well known for decades, so clandestine that thorough
investigation without conflicting information is virtually
impossible to accomplish. Nevertheless, there has been much
investigation by federal and state authorities, and we have found
it important to rely on those investigations. We include as an
appendix to the later specific discussion of organized crime
296
number of those reports prepared by other law enforcement
agencies. We are indebted to all of those who have worked on
these reports, for without them our investigation would have been
much less complete. At times there is information in these
reports that we are unsure of, but we have little doubt as to the
general truth of the big picture painted by these reports, and we
have little hesitancy in relying on them to the extent either of
agreeing with the big picture, or of agreeing with specific facts
where those facts recur in consistent form in information from a
number of different sources. The general picture seems clear,
and we invite recourse to those specific reports to fill out this
general conclusion that seems most appropriate as a statement
from us.
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I o
Chapter 5
The Question Of Harm
5.1 Matters of Method
5.1.1 Harm and Regulation - The Scope of Our Inquiry A
central part of our mission has been to examine the question
whether pornography is harmful. In attempting to answer this
question, we have made a conscious decision not to allow our
examination of the harm question to be constricted by the
existing legal/constitutional definition -of the legally obscene.
As explained in Chapter 3 of this Part, we agree with that
definition in principle, and we believe that in most cases it
allows criminal prosecution of what ought to be prosecuted and
prohibits criminal prosecution of what most of us believe is
material properly protected by the First Amendment. In light of
this, our decision to look at the potential for harm in a range
of material substantially broader than the legally obscene
requires some explanation. One reason for this approach was the
fact that in some respects existing constitutional decisions
permit non-prohibitory restrictions of material other than the
legally obscene. With respect to zoning, broadcast regulation,
and liquor licensing, existing Supreme Court case law permits
some control, short of total prohibition, of the time, place, and
manner in which sexually explicit materials that are short of
being legally obscene may be distributed. When these
non-prohibitory techniques are used, the form of regulation is
8till constrained by constitutional considerations, but the
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/
regulation need not be limited only to that which has been or
would be found legally obscene. To address fully the question of
government regulation, therefore, requires that an examination of
possible harm encompass a range of materials broader than the
legally obscene.
Moreover, the range of techniques of social control is
itself broader than the scope of any form of permissible or
desirable governmental regulation. We discuss in Chapter 8 of
this Part many of these techniques, including pervasive social
condemnation, public protest, picketing, and boycotts. It is
appropriate here, however, to emphasize that we do not see any
necessary connection between what is protected by law (and
therefore protected from law), on the one hand, and what citizens
may justifiably object to and take non-governmental action
against, on the other. And if it is appropriate for citizens
justifiably to protest against some sexually explicit materials
despite the fact that those materials are constitutionally
protected, then it is appropriate for us to broaden the realm of
our inquiry accordingly.
44 with respect to the general issue of condemnation,
and especially with respect to the condemnation of specific
materials by name, our role as a government commission is
somewhat more problematic. At some point governmental
condemnation may act effectively as governmental restraint
(see, Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), and
we aretherefore morecautiousin condemning specific
publications by name than citizens need be. This caution,
however, does not mean that we feel that governmental
agencies may not properly condemn even that which they cannot
control. We feel that we have both the right and the duty to
condemn, in some cases, that which is properly
constitutionally protected, but we do so with more caution
300
Most importantly, however, we categorically reject the idea
that material cannot be constitutionally protected, and properly
so, while still being harmful. All of us, for example, feel that
the inflammatory utterances of Nazis, the Ku Klux Klan, and
racists of other varieties are harmful both to the individuals to
whom their epithets are directed as well as to society as a
whole. Yet all of us acknowledge and most of us support the fact
that the harmful speeches of these people are nevertheless
constitutionally protected. That the same may hold true with
respect to some sexually explicit materials was at least our
working assumption in deciding to look at a range of materials
broader than the legally obscene. There is no reason whatsoever
to suppose that such material is necessarily harmless just
because it is and should remain protected by the First
Amendment. As a result, we reject the notion that an
investigation of the question of harm must be restricted to
material unprotected by the Constitution.
The converse of this is equally true. Just as there is no
necessary connection between the constitutionally protected and
the harmless, so too is there no necessary connection between the
constitutionally unprotected and the harmful. We examine the
harm question with respect to material that is legally obscene
because even if material is legally obscene, and even if material
is therefore unprotected by the First Amendment, it does not
than is necessary when the condemnation comes from thecitizenry and not the government.
301
follow that it is harmful. That some sexually explicit material
is constitutionally regulable does not answer the question of
whether anything justifies its regulation. Accordingly, we do
not take our acceptance of the current constitutional approach to
obscenity as diminishing the need to examine the harms
purportedly associated with the distribution or use of such
material.
We thus take as substantially dissimilar the question of
constitutional protection and the question of harm. Even apart
from constitutional issues, we also take to be separate the
question of the advisability of governmental regulation, all
things considered, and the question of the harmfulness of some or
all sexually explicit materials. The upshot of all of this is
that we feel it entirely proper to identify harms that may
accompany certain sexually explicit material before and
independent of an inquiry into the desirability and
constitutionality of regulating even that sexually explicit
material that may be harmful. As a result, our inquiry into harm
encompasses much material that may not be legally obscene, and
also encompasses much material that would not generally be
considered "pornographic" as we use that term here.
5.1.2 What Counts as a Harm?
What is a harm? And why focus on harm at all? .We do not wish
in referring repeatedly to "harm" to burden ourselves with a"
unduly narrow conception of harm. To emphasize in different
words what we said in the previous section, the scope o
302
identifiable harms is broader than the scope of that with which
government can or should deal. We refuse to truncate our
consideration of the question of harm by defining harms in terms
of possible government regulation. And we certainly reject the
view that the only noticeable harm is one that -causes physical or
financial harm to identifiable individuals. An environment,
physical, cultural, moral, or aesthetic, can be harmed, and so
can a community, organization, or group be harmed independent of
identifiable harms to members of that community.
Most importantly, although we have emphasized in our
discussion of harms the kinds of harms that can most easily be
observed and measured, the idea of harm is broader than that. To
a number of us, the most important harms must be seen in moral
terms, and the act of moral condemnation of that which is immoral
is not merely important but essential. From this perspective
there are acts that need be seen not only as causes of immorality
but as manifestations of it. Issues of human dignity and human
decency, no less real for their lack of scientific measurability,
are for many of us central to thinking about the question of
harm. And when we think about harm in this way, there are acts
that must be condemned not because the evils of the world will
thereby be eliminated, but because conscience demands it.
We believe it useful in thinking about harms to note the
distinction between harm and offense. Although the line between
the two is hardly clear, most people can nevertheless imagine
things that offend them, or offend others, that still would be
303
1
hard to describe as harms. In Chapter 4 of this Part
discussion of laws and their enforcement will address the
question of the place of governmental regulation in restricting
things that some or many people may find offensive, but which are
less plainly harmful, but at this point it should be sufficient
to point out that we take the offensive to be well within the
scope of our concerns.
In thinking about harms, it is useful to draw a rough
distinction between primary and secondary harms. Primary harms
are those in which the alleged harm is commonly taken to be
intrinsically harmful, even though the precise way in which the
harm is harmful might yet be further explored. Nevertheless,
murder, rape, assault, and discrimination on the basis of race
and gender are all examples of primary harms in this sense. We
treat these acts as harms not because of where they will lead,
but simply because of what they are.
In other instances, however, the alleged harm is secondary,
not in the sense that it is in any way less important, but in the
sense that the concern is not with what the act i£, but where it
will lead. Curfews are occasionally imposed not because there is
anything wrong with people being out at night, but because in
some circumstances it is though't that being out at night in large
groups may cause people to commit other crimes. Possession of
"burglar tools" is often prohibited because of what those tools
may be used for. Thus, when it is urged that pornography i8
harmful because it causes some people to commit acts of sexual
304
violence, because it causes promiscuity, because it encourages
sexual relations outside of marriage, because it promotes
so-called "unnatural" sexual practices, or because it leads men
to treat women as existing solely for the sexual satisfaction of
men, the alleged harms are secondary, again not in any sense
suggesting that the harms are less important. The harms are
secondary here because the allegation of harm presupposes a
causal link between the act and the harm, a causal link that is
superfluous if, as in the case of primary harms, the act quite
simply is the harm.
Thus we think it important, with respect to every area of
possible harm, to focus on whether the allegation relates to a
harm that comes from the sexually explicit material itself, or
whether it occurs as a result of something the material does. If
it is the former, then the inquiry can focus directly on the
nature of the alleged harm. But if it is the latter, then there
must be a two—step inquiry. First it is necessary to determine
if some hypothesized result is in fact harmful. In some cases,
where the asserted' consequent harm is unquestionably a harm, this
step of the analysis is easy. With respect to claims that
certain sexually explicit material increases the incidence of
rape or other sexual violence, for example, no one could
Plausibly claim that such consequences were not harmful, and the
inquiry can then turn to whether the causal link exists. In
other cases, however, the harmfulness of the alleged harm is
°ften debated. With respect to claims, for example, that some
305
sexually explicit material causes promiscuity, encourageg
homosexuality, or legitimizes sexual practices other than vaginal
intercourse, there is serious societal debate about whether the
consequences themselves are harmful.
Thus, the analysis of the hypothesis that pornography causes
harm must start with the identification of hypothesized harms,
proceed to the determination of whether those hypothesized harms
are indeed harmful, and then conclude with the examination of
whether a causal link exists between the material and the harm.
When the consequences of exposure to sexually explicit material
are not harmful, or when there is no causal relationship between
exposure to sexually explicit material and some harmful
consequence, then we cannot say that the sexually explicit
material is harmful. But if sexually explicit material of some
variety is causally related to, or increases the incidence of,
some behavior that is harmful, then it is safe to conclude that
the material is harmful.
5.1.3 The Standard of Proof
In dealing with these questions, the standard of proof is a
recurrent problem. How much evidence is needed, or how convinced
should we be, before reaching the conclusion that certain
sexually explicit material causes harm? The extremes of this
question are easy. Whenever a causal question is even worth
asking, there will never be conclusive proof that such a causal
connection exists, if " c'onclus i ve" means that no other
possibility exists. We note that frequently, and all too often,
306
the claim that there is no "conclusive" proof is a claim made by
oineone who disagrees with the implications of the conclusion.
Few if any judgments of causality or danger are ever
conclusive, and a requirement of conclusiveness is much more
rhetorical device than analytical method. We therefore reject
the suggestion that a causal link must be proved "conclusively"
before we can identify a harm.
The opposite extreme is also easily dismissed. The fact
that someone makes an assertion of fact to us is not necessarily
sufficient proof of that fact, even if the assertion remains
uncontradicted. We do not operate as a judge sitting in a court
of law, and we require more evidence to reach an affirmative
conclusion than does a judge whose sole function might in some
circumstances be to determine if there is sufficient evidence to
send the case to the jury. That there is a bit of evidence for a
proposition is not the same as saying that the proposition has
been established, and we do not reach causal conclusions in every
instance in which there has been some evidence of that
proposition.
Between these extremes the issues are more difficult. The
reason for this is that how much proof is required is largely a
function of what is to be done with an affirmative finding, and
"hat the consequences are of proceeding on the basis of an
affirmative finding. As we deal with causal assertions short of
conclusive but more than merely some trifle of evidence, we have
•It free to rely on less proof merely to make assertions about
307
harm then we have required to recommend legal restrictions,
similarly we have required greater confidence in our assertions
if the result was to recommend criminal penalties for a give
form of behavior than we did to recommend other forms of legal
restriction. Were we to have recommended criminal sanction
against material now covered by the First Amendment, we would
have required proof sufficient to satisfy some variant of the
"clear and present danger" standard that serves to protect the
communication lying at the center of the First Amendment's
guarantees from government action resting on a less certain
basis.
No government could survive, however, if all of its actions
were required to satisfy a "clear and present danger" standard,
and we openly acknowledge that in many areas we have reached
conclusions that satisfy us for the purposes for which we draw
them, but which would not satisfy us if they were to be used for
other purposes. That we are satisfied that the vast majority of
depictions of violence in a sexually explicit manner are likely
to increase the incidence of sexual violence in this country, for
example, does not mean that we have concluded that the evidence
is sufficient to justify governmental prohibition of materials
that both meet that description and are not legally obscene.
It would be ideal if we could put our evidentiary standards
into simple formulas, but that has not been possible. T
standards of proof applicable to the legal process preponderanc
of the evidence, clear and convincing evidence, and proof beyo
308
a reasonable doubt - are not easily transferred into a
on_judicial context. And the standards of justification of
constitutional law - rational basis, compelling interest, and
clear and present danger, for example - relate only to the
constitutionality of governmental action, not to its
advisability, nor to the standards necessary for mere warnings
about harm. Thus we have felt it best to rely on the language
that people ordinarily use, words like "convinced," "satisfied,"
and "concluded," but those words should be interpreted in light
of the discussion in this section.
5.1.4 The Problem of Multiple Causation
The world is complex, and most consequences are "caused" by
numerous factors. Are highway deaths caused by failure to wear
seat belts, failure of the automobile companies to install
airbags, failure of the government to require automobile
companies to install airbags, alcohol, judicial leniency towards
drunk drivers, speeding, and so on and on? Is heart disease
caused by cigarette smoking, obesity, stress, or excess animal
fat in our diets? As with most other questions of this type, the
answers can only be "all of the above," and so too with the
problem of pornography. We have concluded, for example, that
«ome forms of sexually explicit material bear a causal
relationship both to sexual violence and to sex discrimination,
"t we are hardly so naive as to suppose that were these forms of
Pornography to disappear the problems of sex discrimination and
•«xual violence would come to an end.
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If this is so, then what does it mean to identify a causal
relationship? It means that the evidence supports the conclusion
that if there were none of the material being tested, then the
incidence of the consequences would be less. We live in a world
of multiple causation, and to identify a factor as a cause in
such a world means only that if this factor were eliminated while
everything else stayed the same then the problem would at least
be lessened. In most cases it is impossible to say any more than
this, although to say this is to say quite a great deal. But
when we identify something as a cause, we do not deny that there
are other causes, and we do not deny that some of these other
causes might bear an even greater causal connection than does
some form of pornography. That is, it may be, for example, and
there is some evidence that points in this direction, that
certain magazines focusing on guns, martial arts, and related
topics bear a closer causal relationship to sexual violence than
do some magazines that are, in a term we will explain shortly,
"degrading." If this is true, then the amount of sexual violence
would be reduced more by eliminating the weaponry magazines and
keeping the degrading magazines than it would be reduced by
eliminating the degrading magazines and keeping the weaponry
magazines.
Why, then, do we concentrate on pornography? For one thing,
that is our mission, and we have been asked to look at this
problem rather than every problem in the world. We do not thin
that there is something less important in what we do mere 1
310
because some of the consequences that concern us here are caused
a3 well, and perhaps to a greater extent, by other stimuli. If
tne stark implications of the problem of multiple causation were
followed to the ultimate conclusion of casting doubt on efforts
relating to anything other than the "largest" cause of the
largest problem, few of us could justify doing anything in our
lives that was not directly related to feeding the hungry. But
the world does not operate this way, and we are comfortable with
the fact that we have been asked to look at some problems while
others look at other problems. And we are equally comfortable
with the knowledge that to say that something is one of many
causes is not to say that it is not a cause. Nor is it to say
that the world would not be better off if even this one cause
were eliminated.
When faced with the phenomenon of multiple causation, cause
is likely to be attributed to those factors that are within our
power to change. Often we ignore larger causes precisely because
of their size. When a cause is pervasive and intractable, we
look elsewhere for remedies, and this is quite often the rational
course. A careful look at the available evidence can give us
some idea of where the problems are, what different factors are
causing them, which remedies directed at which causes are
feasible, and which remedies directed at which causes are futile,
unconstitutional, or beyond available means. We acknowledge that
al* of the harms we identified have causes in addition to the
ones we identify. But if we are correct with respect to the
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T
causes we have identified, then we can take confidence in th
fact that lessening those causes will help alleviate the problem
even if lessening other causes might very well alleviate the
problem to a greater extent.
5.1.5 The Varieties of Evidence
We have looked at a wide range of types of evidence. Some
has come from personal experience of witnesses, some from
professionals whose orientation is primarily clinical, some from
experimental social scientists, and some from other forms of
empirical science. We have not categorically refused to consider
any type of evidence, choosing instead to hear it all, consider
it all, and give it the weight we believe in the final analysis
it deserves. No form of evidence has been useless to us, and no
form is without flaws. A few words about the advantages and
disadvantages of various types of evidence may help to put into
perspective the conclusions we reach and the basis on which we
reach them.
Most controversial has been the evidence we have received
from numerous people claiming to be victims of pornography, and
reporting in some way on personal experiences relating to
pornography. In later portions of this Report concerned with
victimization and with the performers in pornographic material we
discuss this evidence in more detail. We have considered this
first-hand testimony, much of it provided at great personal
sacrifice, quite useful, but it is important to note that not a
of the first-hand testimony has been of the same type.
312
Some of the first-hand testimony has come from users of
ornography, and a number of witnesses have told us how they
became "addicted" to pornography, or how they were led to commit
sex crimes as a result of exposure to pornographic materials.
Although we have not totally disregarded the evidence that has
come from offenders, in many respects it was less valuable than
other victim evidence and other evidence in general. Much
research supports the tendency of people to externalize their own
problems by looking too easily for some external source beyond
their own control. As with more extensive studies based on
self-reports of sex offenders, evidence relying on what an
offender thought caused his problem is likely to so overstate the
external and so understate the internal as to be of less value to
us than other evidence.
Most of the people who have testified about personal
experiences, however, have no't been at any point offenders, but
rather have been women reporting on what men in their lives have
done to them or to their children as a result of exposure to
certain sexually explicit materials. As we explained in the
Introduction, we do not deceive ourselves into thinking that the
sample before us is an accurate statistical reflection of the
«tate of the world. Too many factors tended to place before us
testimony that was by and large in the same direction and
concentrated on those who testified about the presence rather
"*n the absence of consequences. Nevertheless, as long as one
oes not draw statistical or percentage conclusions from this
313
evidence, and we have not, it can still be important with respect
to identification and description of a phenomenon. Plainly some
of these witnesses were less credible or less helpful than
others, but many of the stories these witnesses told were highly
believable and extremely informative, leading us to think about
possible harms of which some of us had previously been unaware.
Many witnesses have urged us to draw conclusions about prevalence
\
exclusively from anecdotal evidence of this variety, but we have
refused to do so. But that we have refused to make invalid
statistical generalizations does not mean that we cannot learn
from the stories of those with personal experiences. Many of
their statements are summarized in the victimization section of
this Report, and we urge people to consider those statements as
carefully as we did. We can and we have learned from many of
these witnesses, and their testimony has provided part of the
basis for our conclusions. As in many other areas of human
behavior, the most complete understanding emerges when a
phenomenon is viewed from multiple perspectives. One important
perspective is the subjective meaning that individuals attribute
to their own experiences. This perspective and the unique
experiences of individuals are less amenable to objective or
statistical inquiry than certain other perspectives, and thus can
be valuably examined through the kinds of witnesses whose
statements we summarize later in this Report.
The evidence provided by clinical professionals carries with
it some of the same problems. Although filtering the evidence
314
through a trained professional, especially one who described to
us the experience of numerous cases, eliminates some of the
credibility problems, the problem of statistical generalization
remains. Because people without problems are not the focus of
the clinician's efforts, evidence from clinical professionals
focuses on the aberrational. Consequently, clinical evidence
does not help very much in answering questions about the overall
extent of a phenomenon, because it too is anecdotal, albeit in a
more sophisticated way and based on a larger sample. Still,
clinical evidence should not be faulted for not being what it
does not purport to be. What it does purport to be is sensitive
professional evaluation of how some people behave, what causes
them to behave in that manner, and what, if anything, might
change their behavior. Clinical evidence helps' us to identify
whether a problem exists, although it does not address the
prevalence of the problem. We have looked at the clinical
evidence in this light, and have frequently found it useful.
The problems of statistical generalization diminish
drastically when we look to the findings of empirical social
science. Here the attempt is to identify factors across a larger
population, and thus many of the difficulties associated with any
form of anecdotal, evidence drop out when the field of inquiry is
either an entire population, some large but relevant subset of a
Population, or an experimental group selected under some reliable
sampling method.
Some of the evidence of this variety is correlational. If
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there is some positive statistical correlation between the
prevalence of some type of material and some harmful act, then it
is at least established that the two occur together more than one
would expect merely from random intersection of totally
independent variables. Some of the correlational evidence is
less "scientific" than others, but we refuse to discount evidence
merely because the researcher did not have some set of academic
qualifications. For example, we have heard much evidence from
law enforcement personnel that a disproportionate number of sex
offenders were found to have large quantities of pornographic
material in their residences. Pornographic material was found on
the premises more, in the opinion of the witnesses, than one
would expect to find it in the residences of a random sample of
the population as a whole, in the residences of a random sample
of non-offenders of the same sex, age, and socioeconomic status,
or in the residences of a random sample of offenders whose
offenses were not sex offenses. To the extent that we believe
these witnesses, then there is a correlation between pornographic
material and sex offenses. We have also read and heard evidence
that is more scientific. Some of this evidence has related to
entire countries, where researchers have looked for correlations
between sex offenses and changes in a country's laws controlling
pornography or changes in the actual prevalence of pornographic
materials. Other evidence of this variety has been conducted
with respect to states or regions of the United States, with
attempts again being made to demonstrate correlations between use
316
or non-use of certain sexually explicit materials and the
incidence of sex crimes or other anti-social acts.
Correlational evidence suffers from its inability to
establish a causal connection between the correlated phenomena.
It is frequently the case that two phenomena are positively
correlated precisely because they are both caused by some third
phenomena.
We recognize, therefore, that a positive correlation between
pornography and sex offenses does not itself establish a causal
connection between the two. It may be that some other factor,
some sexual or emotional imbalance, for example, might produce
both excess use of pornographic materials as well as a tendency
to commit sex offenses. But the fact that correlational evidence
cannot definitively establish causality does not mean that it may
not be some evidence of causality, and we have treated it as
such. The plausibility of hypothesized independent variables
causing both use of pornography and sex offenses is one factor in
determining the extent to which causation can be suggested by
correlational evidence. So too is the extent to which research
design has attempted to exclude exactly these possible
Independent variables. The more this has been done, the safer it
Is to infer causation from correlation, but in no area has this
inference been strong enough to justify reliance on correlational
evidence standing alone.
The problem of the independent variable drops out when
8xPeriments are conducted under control group conditions. If a
317
(V
group of people are divided into two subgroups randomly, if Ori
group is then exposed to a stimulus while the other is not, then
a difference in result between the stimulus group and the control
group will itself establish causation. As long as the two groups
are divided randomly, and as long as the samples are large enough
that randomness can be established, then any variable that might
be hypothesized other than the one being tested will be present
in both the stimulus group and the control group. As a result,
the stimulus being tested is completely isolated, and positive
results are very strong evidence of causation.
The difficulty with experimental evidence of this variety,
however, is that it is virtually impossible to conduct control
group experiments outside of a laboratory setting. As a result,
most of the experiments are conducted on those who can be induced
to be subjects in such experiments, usually college age males
taking psychology courses. Even a positive result, therefore, is
a positive result only, in the narrowest sense, for a population
like the experimental group. Extrapolating from the experimental
group to the population at large involves many of the same
problems as medical researchers encounter in extrapolating from
tests on laboratory animals to conclusions about human beings.
The extrapolation is frequently justified, but some caution here
must be exercised in at least noting that the extrapolation
requires assumptions of relevant similarity between college age
males and larger populations, as well as, in some cases,
assumptions of causality between the effects measured in the
318
experiment and the effects with which people are ultimately
concerned.
Perhaps more significantly, enormous ethical problems
surround control group experiments involving actual anti-social
conduct. If the hypothesis is that exposure to certain materials
has a causal relationship with rape, for example, then the
"ideal" experiment would start with a relatively large group of
men as subjects, would then divide the large group randomly into
two groups, and would then expose one of the two groups to the
pornographic materials and the other to control materials. Then
the experimenter would see if the stimulus groups committed more
rapes than the control group. Of course such an experiment is
inconceivable, and as a result most experiments of this variety
have had to find a substitute for counting sexual offenses. Some
have used scientific measures of aggression or sexual arousal,
some have used questionnaires reflecting self-reported tendency
to commit rape or other sex offenses, some have used experiments
measuring people's willingness to punish rapists, and some have
used other substitutes. With respect to any experiment of this
variety, drawing conclusions requires making assumptions between,
for example, measured aggression and an actual increased
likelihood of committing offenses. Sometimes these assumptions
are justified, and sometimes they are not, but it is always an
issue to be examined carefully.
One final point about the experimental evidence presented to
us is in order. Even with control group experiments, the
319
ultimate conclusions will depend on the ability of the researcher
to isolate single variables. For example, where there ia
evidence showing a causal relationship between exposure to
violent pornography and aggressive behavior, the stimulus as just
described contains two elements, the violence and the sex. n-
may be that the cause is attributable solely to the violence, or
it may be that the cause is attributable solely to the sex. Good
research attempts to examine these possibilities, and we have
been conscious of it as we evaluated the research presented to
us.
5.1.6 The Need to Subdivide
Taking into account all of the foregoing methodological
factors, it has become clear to all of us that excessively broad
terms like "pornography" or "sexually explicit materials" are
just too encompassing to reflect the results of our inquiry.
That should come as no surprise. There are different varieties
of sexually explicit materials, and it is hardly astonishing that
some varieties may cause conseguences different from those caused
by other varieties.
Our views about subdivision as a process, if not about the
actual divisions themselves, reflect much of the scientific
evidence, and we consider the willingness of scientists to
subdivide to be an important methodological advance over the
efforts of earlier eras. So too with our own subdivision. We
have unanimously agreed that looking at all sexually expli-cl
materials, or even all pornographic materials, as one
320
undifferentiated whole is unjustified by common sense,
unwarranted on the evidence, and an altogether oversimplifying
tfay of looking at a complex phenomenon. In many respects we
consider this one of our most important conclusions. Our
subdivisions are not intended to be definitive, and particularly
with respect to the subdivision between non-violent but degrading
materials and materials that are neither violent nor degrading,
ve recognize that some researchers and others have usually
employed broader or different groupings. Further research or
thinking, or just changes in the world, may suggest finer or
different divisions. To us it is embarking on the process of
subdivision that is most important, and we strongly urge that
further research and thinking about the question of pornography
recognize initially the way in which different varieties of
material may produce different consequences.
We cannot stress strongly enough that our conclusions
regarding the consequences of material within a given subdivision
is not a statement about all of the material within a
subdivision. We are talking about classes, or categories, and
our statements about categories are general statements designed
to cover most but not all of what might be within a given
category. Some items within a category might produce no effects,
°r even the opposite effects from those identified. Were we
drafting laws or legal distinctions, this might be a problem, but
ve are not engaged in such a process here. We are identifying
characteristics of classes, and looking for harms by classes.
321
I T
without saying that everything that is harmful should b
regulated, and without saying that everything that is harmful ma
be regulated consistent with the Constitution.
5.2 Our Conclusions About Harm
We present in the following sections our conclusions
regarding the harms we have investigated with respect to the
various subdividing categories we have found most useful. To the
extent that these conclusions rest on findings from the social
sciences, as they do to a significant extent, we do not in this
Part of the Report describe and analyze the individual studies or
deal in specifics with their methodologies. For that we rely on
our analysis of the social science research which is included
later in this Report. Each of us has relied on different
evidence from among the different categories of evidence, and
specific studies that some of us have found persuasive have been
less persuasive to others of us. Similarly, some of us have
found evidence of a certain type particularly valuable, while
others of us have found other varieties of evidence more
enlightening. And in many instances we have relied on certain
evidence despite some flaws it may have contained, for it is the
case that all of us have reached our conclusions about harms by
assimilating and amalgamating a large amount of evidence. Many
studies and statements of witnesses have both advantages and
disadvantages, and often the disadvantages of one study or piece
of testimony has been remedied by another. Thus, the conclusions
we reach cannot be identified with complete acceptance or
322
complete rejection by all of us of any particular item of
evidence. As a result, we consider the social science analysis,
which is much more specific than what we say in this section, to
t,e an integral part of this Report, and we urge that it be read
as such. We have not relied totally on that analysis, as all of
us have gone beyond it in our reading. And we cannot say that
each of us agrees with every sentence and word in it.
Nevertheless, it seems to us a sensitive, balanced,
comprehensive, accurate, and current report on the state of the
research. We have relied on it extensively, and we are proud
to include it here.
5.2.1 Sexually Violent Material
The category of material on which most of the evidence has
focused is the category of material featuring actual or
unmistakably simulated or unmistakably threatened violence
presented in sexually explicit fashion with a predominant focus
on the sexually explicit violence. Increasingly, the most
prevalent forms of pornography, as well as an increasingly
prevalent body of less sexually explicit material, fit this
description. Some of this material involves sado-masochistic
themes, with the standard accoutrements of the genre, including
whips, chains, devices of torture, and so on. But another theme
of some of this material is not sado-masochistic,, but involves
instead the recurrent theme of a man making some sort of sexual
advance to a woman, being rebuffed, and then raping the woman or
ll> some other way violently forcing himself on the woman. In
323
almost all of this material, whether in magazine or moti
picture form, the woman eventually becomes aroused and ecstati
about the initially forced sexual activity, and usually <
portrayed as begging for more. There is also a large body oe
material, more "mainstream" in its availability, that portray
sexual activity or sexually suggestive nudity coupled with
extreme violence, such as disfigurement or murder. The so-called
"slasher" films fit this description, as does some material, both
in films and in magazines, that is less or more sexually explicit
than the prototypical "slasher" film.
It is with respect to material of this variety that the
scientific findings and ultimate conclusions of the 1970
Commission are least reliable for today, precisely because
material of this variety was largely absent from that
Commission's inquiries. It is not, however, absent from the
contemporary world, and it is hardly surprising that conclusions
about this material differ from conclusions about material not
including violent themes.
When clinical and experimental research has focused
particularly on sexually violent material, the conclusions have
been virtually unanimous. In both clinical and experimental
settings, exposure to sexually violent materials has indicated an
increase in the likelihood of aggression. More specifically, the
research, which is described in much detail later in this Report,
shows a causal relationship between exposure to material of this
type and aggressive behavior towards women.
324
Finding a link between aggressive behavior towards women and
violence, whether lawful or unlawful, requires assumptions
n0t found exclusively in the experimental evidence. We see no
reason, however, not to make these assumptions. The assumption
that increased aggressive behavior towards women is causally
related, for an aggregate population, to increased sexual
violence is significantly supported by the clinical evidence, as
well as by much of the less scientific evidence. ' They are
also to all of us assumptions that are plainly justified by our
own common sense. This is not to say that all people with
heightened levels of aggression will commit acts of sexual
violence. But it is to say that over a sufficiently large number
of cases we are confident in asserting that an increase in
aggressive behavior directed at women will cause an increase in
the level of sexual violence directed at women.
Thus we reach our conclusions by combining the results of
the research with highly justifiable assumptions about the
generalizability of more limited research results. Since the
clinical and experimental evidence supports the conclusion that
there is a causal relationship between exposure to sexually
violent materials and an increase in aggressive behavior directed
" For example, the evidence from formal or informal
studies of self-reports of offenders themselves supports the
conclusion that the causal connection we identify relates to
Actual sexual offenses rather than merely to aggressive
behavior. For reasons we have explained in Section 5.1.5,the tendency to externalize leads us to give evidence of this
variety rather little weight. But at the very least it does
ot point in the opposite direction from the conclusionshere.
325
towards women, and since we believe that an increase in
aggressive behavior towards women will in a population increase
the incidence of sexual violence in that population, we have
reached the conclusion, unanimously and confidently, that the
available evidence strongly supports the hypothesis that
substantial exposure to sexually violent materials as described
here bears a causal relationship to antisocial acts of sexual
violence and, for some subgroups, possibly to unlawful acts o£
sexual violence.
Although we rely for this conclusion on significant
scientific empirical evidence, we feel it worthwhile to note the
underlying logic of the conclusion. The evidence says simply
that the images that people are exposed to bears a causal
relationship to their behavior. This is hardly surprising. What
would be surprising would be to find otherwise, and we have not
so found. We have not, of course, found that the images people
are exposed to are a greater cause of sexual violence than all or
even many other possible causes the investigation of which has
been beyond our mandate. Nevertheless, it would be strange
indeed if graphic representations of a form of behavior,
especially in a form that almost exclusively portrays such
behavior as desirable, did not have at least some effect on
patterns of behavior.
Sexual violence is not the only negative effect reporte
the research to result from substantial exposure to sexua
violent materials. The evidence is also strongly supportive
326
gignificant attitudinal changes on the part of those with
substantial exposure to violent pornography. These attitudinal
changes are numerous. Victims of rape and other forms of sexual
violence are likely to be perceived by people so exposed as more
responsible for the assault, as having suffered less injury, and
as having been less degraded as a result of the experience.
Similarly, people with a substantial exposure to violent
pornography are likely to see the rapist or other sexual offender
as less responsible for the act and as deserving of less
stringent punishment.
These attitudinal changes have been shown experimentally
to include a larger range of attitudes than those just discussed.
The evidence also strongly supports the conclusion that
substantial exposure to violent sexually explicit material leads
to a greater acceptance of the "rape myth" in its broader sense -
that women enjoy being coerced into sexual activity, that they
enjoy being physically hurt in sexual context, and that as a
result a man who forces himself on a woman sexually is in fact
merely acceding to the "real" wishes of the woman, regardless of
the extent to which she seems to be resisting. The myth is that
a woman who says "no" really means "yes," and that men are
Justified in acting on the assumption that the "no" answer is
indeed the "yes" answer. We have little trouble concluding that
this attitude is both pervasive and profoundly harmful, and that
a"y stimulus reinforcing or increasing the incidence of this
1tude is for that reason alone properly designated as harmful.
327
t r
Two vitally important features of the evidence supportin
the above conclusions must be mentioned here. The first is that
all of the harms discussed here, including acceptance of the
legitimacy of sexual violence against women but not limited to
it, are more pronounced when the sexually violent materials
depict the woman as experiencing arousal, orgasm, or other form
of enjoyment as the ultimate result of the sexual assault. This
theme, unfortunately very common in the materials we have
examined, is likely to be the major, albeit not the only,
component of what it is in the materials in this category that
causes the consequences that have been identified.
The second important clarification of all of the above is
that the evidence lends some support to the conclusion that the
consequences we have identified here do not vary with the extent
of sexual explicitness so long as the violence is presented in an
undeniably sexual context. Once a threshold is passed at which
sex and violence are plainly linked, increasing the sexual
explicitness of the material, or the bizarreness of the sexual
activity, seems to bear little relationship to the extent of the
consequences discussed here. Although it is unclear whether
sexually violent material makes a substantially greater causal
contribution to sexual violence itself than does material
containing violence alone, it appears that increasing the amount
of violence after the threshold of connecting sex with violence
is more related to increase in the incidence or severity of
harmful consequences than is increasing the amount of sex. AS a
328
result, the so-called "slasher" films, which depict a great deal
Of violence connected with an undeniably sexual theme but less
sexual explicitness than materials that are truly pornographic,
are likely to produce the consequences discussed here to a
greater extent than most of the materials available in "adults
only" pornographic outlets.
Although we have based our findings about material in this
category primarily on evidence presented by professionals in the
behavioral sciences, we are confident that it is supported by the
less scientific evidence we have consulted, and we are each
personally confident on the basis of our own knowledge and
experiences that the conclusions are justified. None of us has
the least doubt that sexual violence is harmful, and that general
acceptance of the view that "no" means "yes" is a consequence of
the most serious proportions. We have found a causal
relationship between sexually explicit materials featuring
violence and these consequences, and thus conclude that the class
of such materials, although not necessarily every individual
member of that class, is on the whole harmful to society.
5.2.2 Nonviolent Materials Depicting Degradation,
Domination, Subordination, or Humiliation
Current research has rather consistently separated out
violent pornography, the class of materials we have just
discussed, from other sexually explicit materials. With respect
to further subdivision the process has been less consistent. A
few researchers have made further distinctions, while most have
329
merely classed everything else as "non-violent." We have
concluded that more subdivision than that is necessary. our
examination of the variety of sexually explicit materials
convinces us that once again the category of "non-violent"
ignores significant distinctions within this category, and thus
combines classes of material that are in fact substantially
different.
The subdivision we adopt is one that has surfaced in some of
the research. And it is also one that might explain a
significant amount of what would otherwise seem to be conflicting
research results. Some researchers have found negative effects
from non-violent material, while others report no such negative
effects. But when the stimulus material these researchers have
used is considered, there is some suggestion that the presence or
absence of negative effects from non-violent material might turn
on the non-violent material being considered "degrading," a term
we shall explain shortly.46 It appears that effects similar to
although not as extensive as that involved with violent material
can be identified with respect to such degrading material, but
that these effects are likely absent when neither degradation nor
4*> For example, the studies of Dr. Zillmann regarding
non-violent material, studies that have been particularly
influential for some of us, use material that contain the
following themes: "He is ready to take. She is. ready to be
taken. This active/passive differentiation that coincides
with gender is stated on purpose." Women are portrayed as
"masochistic, subservient, socially nondiscriminating
nymphomaniacs." Dr. Zillmann goes on to characterize this
material as involving mutual consent and no coercion, but
also describes the films as ones in which "women tend to
overrespond in serving the male interest."
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violence is present.
An enormous amount of the most sexually explicit material
available as well as much of the material that is somewhat less
sexually explicit, is material that we would characterize as
"degrading," the term we use to encompass the undeniably linked
characteristics of degradation, domination, subordination, and
humiliation. The degradation we refer to is degradation of
people, most often women, and here we are referring to material
that, although not violent, depicts4' people, usually women, as
existing solely for the sexual satisfaction of others, usually
men, or that depicts people, usually women, in decidedly
subordinate roles in their sexual relations with others, or that
depicts people engaged in sexual practices that would to most
people be considered humiliating. Indeed, forms of degradation
represent the largely predominant proportion of commercially
^7 We restrict our analysis in large part to
degradation that is in fact depicted in the material. It may
very well be that degradation led to a woman being willing to
pose for a picture of a certain variety, or to engage in what
appears to be a non-degrading sexual act. It may be that
coercion caused the picture to exist. And it may very well
be that the existing disparity in the economic status of men
and women is such that any sexually explicit depiction of a
woman is at least suspect on account of the possibility that
the economic desparity is what caused the woman to pose for a
Picture that most people in this society would find
•nbarrassing. We do not deny any of these possibilities, and
*e do not deny the importance of considering as pervasively
J8 possible the status of women in contemporary America,
"eluding the effects of their current status and what might°? done to change some of the detrimental consequences of
b"at status. But without engaging in an inquiry of that
^eadth, we must generally, absent more specific evidence to
d*. Contrary, assume that a picture represents what it
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()
available pornography.
With respect to material of this variety, our conclusions
are substantially similar to those with respect to violent
material, although we make them with somewhat less confidence and
our making of them requires more in the way of assumption than
was the case with respect to violent material. The evidence
scientific and otherwise, is more tentative, but supports the
conclusion that the material we describe as degrading bears some
causal relationship to the attitudinal changes we have previously
identified. That is, substantial exposure to material of this
variety is likely to increase the extent to which those exposed
will view rape or other forms of sexual violence as less serious
than they otherwise would have, will view the victims of rape and
other forms of sexual violence as significantly more responsible,
and will view the offenders as significantly less responsible.
We also conclude that the evidence supports the conclusion that
substantial exposure to material of this type will increase
acceptance of the proposition that women like to be forced into
sexual practices, and, once again, that the woman who says "no"
really means "yes."
With respect to material of this type, there is less
evidence causally linking the material with sexual aggression,
but this may be because this is a category that has been isolated
in only a few studies, albeit an increasing number. The absence
of evidence should by no means be taken to deny the existence of
the causal link. But because the causal link is less the subjec
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of experimental studies, we have been required to think more
carefully here about the assumptions necessary to causally
connect increased acceptance of rape myths and other attitudinal
changes with increased sexual aggression and sexual violence.
And on the basis of all the evidence we have considered, from all
sources, and on the basis of our own insights and experiences, we
believe we are justified in drawing the following conclusion:
Over a large enough sample a population that believes that many
women like to be raped, that believes that sexual violence or
sexual coercion is often desired or appropriate, and that
believes that sex offenders are less responsible for their acts,
will commit more acts of sexual violence or sexual coercion than '
would a population holding these beliefs to a lesser extent.
We should make clear what we have concluded here. We are
not saying that everyone exposed to material of this type has his
attitude about sexual violence changed. We are saying only that
the evidence supports the conclusion that substantial exposure to
degrading material increases the likelihood for an individual and
the incidence over a large population that these attitudinal
changes will occur. And we are not saying that everyone with
these attitudes will commit an act of sexual violence or sexual
coercion. We are saying that such attitudes will increase the
Hkelihood for an individual and the incidence for a population
that acts of sexual violence, sexual coercion, or unwanted sexual
Egression will occur. Thus, we conclude that substantial
sxposure to materials of this type bears some causal relationship
333
to the level of sexual violence, sexual coercion, or unwanted
sexual aggression in the population so exposed.
We need mention as well that our focus on these more violent
or more coercive forms of actual subordination of women should
not diminish what we take to be a necessarily incorporated
conclusion: Substantial exposure to materials of this type bears
some causal relationship to the incidence of various non-violent
forms of discrimination against or subordination of women in our
society. To the extent that these materials create or reinforce
the view that women's function is disproportionately to satisfy
the sexual needs of men, then the materials will have pervasive
effects on the treatment of women in society far beyond the
incidence of identifiable acts of rape or other sexual violence.
We obviously cannot here explore fully all of the forms in which
women are discriminated against in contemporary society. Nor can
we explore all of the causes of that discrimination against
,women. But we feel confident in concluding that the view of
women as available for sexual domination is one cause of that
discrimination, and we feel confident as well in concluding that
degrading material bears a causal relationship to the view that
women ought to subordinate their own desires and beings to the
sexual satisfaction of men.
Although the category of the degrading is one that has only
recently been isolated in some research, in the literature
generally, and in public discussion of the issue, it is not a
small category. If anything, it constitutes somewhere between
the predominant and the overwhelming portion of what is currently
standard fare heterosexual pornography, and is a significant
theme in a broader range of materials not commonly taken to be
sexually explicit enough to be pornographic. But as with
sexually violent materials, the extent of the effect of these
degrading materials may not turn substantially on the amount of
sexual explicitness once a threshold of undeniable sexual content
is surpassed. The category therefore includes a great deal of
what would now be considered to be pornographic, and includes a
great deal of what would now be held to be legally obscene, but
it includes much more than that. Since we are here identifying
harms for a class, rather than identifying harms caused by every
member of that class, and since we are here talking about the
identification of harm rather than making recommendations for
legal control, we are not reluctant to identify harms for a class
of material considerably wider than what is or even should be
regulated by law.
5.2.3 Non-Violent and Non-Degrading Materials
Our most controversial category has been the category of
sexually explicit materials that are not violent and are not
degrading as we have used that term. They are materials in which
the participants appear to be fully willing participants
occupying substantially equal roles in a setting devoid of actual
or apparent violence or pain. This category is in fact quite
small in terms of currently available materials. There is some,
to be sure, and the amount may increase as the division between
334 335
7
the degrading and the non-degrading becomes more accepted, but u
are convinced that only a small amount of currently available
highly sexually explicit material is neither violent no
degrading. We thus talk about a small category, but one that
should not be ignored.
We have disagreed substantially about the effects of such
materials, and that should come as no surprise. We are dealing
in this category with "pure" sex, as to which there are widely
divergent views in this society. That we have disagreed among
ourselves does little more than reflect the extent to which we
are representative of the population as a whole. In light of
that disagreement, it is perhaps more appropriate to explain the
various views rather than indicate a unanimity that does not
exist, within this Commission or within society, or attempt the
preposterous task of saying that some fundamental view about the
role of sexuality and portrayals of sexuality was accepted or
defeated by such-and-such vote. We do not wish to give easy
answers to hard questions, and thus feel better with describing
the diversity of opinion rather than suppressing part of it.
In examining the material in this category, we have not had
the benefit of extensive evidence. Research has only recently
begun to distinguish the non-violent but degrading from material
that is neither violent nor degrading, and we have all relied on
a combination of interpretation of existing studies that may not
have drawn the same divisions, studies that did draw these
distinctions, clinical evidence, interpretation of victim
336
testimony, and our own perceptions of the effect of images on
human behavior. Although the social science evidence is far from
conclusive, we are on the current state of the evidence persuaded
that material of this type does not bear a causal relationship to
rape and other acts of sexual violence. We rely once again not
only on scientific studies outlined later in the Report, and
examined by each of us, but on the fact that the conclusions of
these studies seem to most of us fully consistent with common
sense. Just as materials depicting sexual violence seem
intuitively likely to bear a causal relationship to sexual
violence, materials containing no depictions or suggestions of
sexual violence or sexual dominance seem to most of us
intuitively unlikely to bear a causal relationship to sexual
violence. The studies and clinical evidence to date are less
persuasive on this lack of negative effect than they are
persuasive for the presence of negative effect for the sexually
violent material, but they seem to us of egual persuasive power
as the studies and clinical evidence showing negative effects for
the degrading materials. The fairest conclusion from the social
science evidence is that there is no persuasive evidence to date
supporting the connection between non-violent and non-degrading
"aterials and acts of sexual violence, and that there is some,
but very limited evidence, indicating that the connection does
n°t exist. The totality of the social science evidence,
therefore, is slightly against the hypothesis that non-violent
a"d non-degrading materials bear a causal relationship to acts of
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T
sexual violence.
That there does not appear from the social science evideric
to be a causal link with sexual violence, however, does not
answer the question of whether such materials might not
themselves simply for some other reason constitute a harm in
themselves, or bear a causal link to consequences other than
sexual violence but still taken to be harmful. And it is here
that we and society at large have the greatest differences of
opinion.
One issue relates to materials that, although undoubtedly
consensual and equal, depict sexual practices frequently
condemned in this and other societies. In addition, level of
societal condemnation varies for different activities; some
activities are condemned by some people, but not by others. We
have discovered that to some significant extent the assessment of
the harmfulness of materials depicting such activities correlates
directly with the assessment of the harmfulness of the activities
themselves. Intuitively and not experimentally, we can
hypothesize that materials portraying such an activity will
either help to legitimize or will bear some causal relationship
to that activity itself. With respect to these materials,
therefore, it appears that a conclusion about the harmfulness of
these materials turns on a conclusion about the harmfulness o
the activity itself. As to this, we are unable to agree with
respect to many of these activities. Our differences reflec
differences now extant in society at large, and actively debated,
338
0 We can hardly resolve them here.
ft larger issue is the very question of promiscuity. Even to
the extent that the behavior depicted is not inherently condemned
some or any of us, the manner of presentation almost
necessarily suggests that the activities are taking place outside
Of the context of marriage, love, commitment, or even affection.
Again, it is far from implausible to hypothesize that materials
depicting sexual activity without marriage, love, commitment, or
affection bear some causal relationship to sexual activity
without marriage, love, commitment, or affection. There are
undoubtedly many causes for what used to be called the "sexual
revolution," but it is absurd to suppose that depictions or
descriptions of uncommitted sexuality were not among them.48
Thus, once again our disagreements reflect disagreements in
society at large, although not to as great an extent. Although
there are many members of this society who can and have made
affirmative cases for uncommitted sexuality, none of us believes
It to be a good thing. A number of us, however, believe that the
level of commitment in sexuality is a matter of choice among
those who voluntarily engage in the activity. Others of us
believe that uncommitted sexual activity is wrong for the
individuals involved and harmful to society to the extent of its
Prevalence. Our view of the ultimate harmfulness of much of this
48 Nor, of course, do we deny the extent that the
Phenomenon, in part, also goes the other way. Sexually
PUcit materials in most cases seem both to reflect and todemand.
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T r
material, therefore, is reflective of our individual views ab
the extent to whether sexual commitment is purely a matter of
individual choice.
Even insofar as sexually explicit material of the varirl6ty
being discussed here is not perceived as harmful for the messages
it carries or the symbols it represents, the very publicness Of
what is commonly taken to be private is cause for concern.*'
Even if we hypothesize a sexually explicit notion picture of
loving married couple engaged in mutually pleasurable and
procreative vaginal intercourse, the depiction of that act on a
screen or in a magazine may constitute a harm in its own right (a
"primary harm" in the terminology introduced earlier in this
Chapter) solely by virtue of being shown. Here the concern is
with the preservation of sex as an essentially private act, in
conformity with the basic privateness of sex long recognized by
this and all other societies. The alleged harm here, therefore,
is that as soon as sex is put on a screen or put in a magazine it
changes its character, regardless of what variety of sex is
portrayed. And to the extent that the character of sex as public
rather than private is the consequence here, then that to many
would constitute a harm.
In considering the way in which making sex public may
fundamentally transform the character of sex in all settings, it
seems important to emphasize that the act of making sex public
49 The concerns summarized here are articulated more
fully in a statement that expresses the views of a number of
individual members of this Commission.
340
•9 as an empirical matter almost always coincident with the act
f making sex a commercial enterprise. Whether the act of making
sex public if done by a charitable institution would be harmful
•s an interesting academic exercise, but it is little more than
that. For *•" tne context we are discussing, taking the act of
sex out of a private setting and making it public is invariably
done for someone's commercial gain. To many of us, this fact of
commercialization is vital to understanding the concern about sex
and privacy.
We are again, along with the rest of society, unable to
agree as to the extent to which making sex public and commercial
should constitute a harm. We all agree for ourselves on the
fundamental privateness of sex, but we disagree about the extent
to which the privateness of sex is more than a matter of
Individual choice. And although we all to some extent think that
sexuality may have in today's society become a bit too public,
nany of us are concerned that in the past it has been somewhat
too private, being a subject that could not be talked about,
could not constitute part of the discourse of society, and was
treated in some way as "dirty." To the extent that making sex
more public has, while not without costs, alleviated some of
these problems of the past, some of us would not take the
'"creased publicness of sexuality as necessarily harmful, but
"ere again we are quite understandably unable to agree.
The discussion of publicness in the previous paragraph was
ll"ited to the necessary publicness consequent in making a
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picture of a sexual act, regardless of whether the picture i
made public in the broader sense. But to the extent that this
occurs, we are once again in agreement. While some might argue
that it is desirable for sexual explicitness to be publicly
displayed to both willing and unwilling viewers, and while some
might argue that this is either a positive advantage for the
terrain of society or of no effect, we unanimously reject that
conclusion. We all agree that some large part of the privateness
of sex is essential, and we would, for example, unanimously take
to be harmful to society a proliferation of billboards displaying
even the hypothesized highly explicit photograph of a loving
married couple engaged in mutually pleasurable and procreative
vaginal intercourse. Thus, to the extent that materials in this
category are displayed truly publicly, we unanimously would take
such a consequence to be harmful to society in addition to being
harmful to individuals. Even if unwilling viewers are offended
rather than harmed in any stronger sense, we take the large scale
offending of the legitimate sensibilities of a large portion of
the population to be harmful to society.
A number of witnesses have testified about the effects on
their own sexual relations, usually with their spouses, of the
depiction on the screen and in magazines of sexual practices in
which they had not previously engaged. A number of these
witnesses, all women, have testified that men in their lives have
used such material to strongly encourage, or coerce, them in
engaging in sexual practices in which they do not choose to
342
engage. To the extent that such implicit or explicit coercion
takes place as a result of these materials, we all agree that it
jS a harm. There has been other evidence, however, about the
extent to which such material might for some be a way of
revitalizing their sex lives, or, more commonly, simply
constituting a part of a mutually pleasurable sexual experience
for both partners. On this we could not agree. For reasons
relating largely to the question of publicness in the first sense
discussed above, some saw this kind of use as primarily harmful.
Others saw it as harmless and possibly beneficial in contexts
such as this. Some professional testimony supported this latter
view, but we have little doubt that professional opinion is also
divided on the issue.
Perhaps the most significant potential harm in this category
exists with respect to children. We all agree that at least
much, probably most, and maybe even all material in this
category, regardless of whether it is harmful when used by adults
only, is harmful when it falls into the hands of children.
Exposure to sexuality is commonly taken, and properly so, to be
primarily the responsibility of the family. Even those who would
disagree with this statement would still prefer to have early
exposure to sexuality be in the hands of a responsible
Professional in a controlled and guided setting. We have no
hesitancy in concluding that learning about sexuality from most
of the material in this category is not the best way for children
0 learn about the subject. There are harms both to the children
343
themselves and to notions of family control over a chil<j>s
introduction to sexuality if children learn about sex from the
kinds of sexually explicit materials that constitute the bulk of
this category of materials.
We have little doubt that much of this material does find
its way into the hands of children, and to the extent that it
does we all agree that it is harmful. We may disagree about the
extent to which people should, as adults, be tolerated in
engaging in sexual practices that differ from the norm, but we
all agree about the question of the desirability of exposing
children to most of this material, and on that our unanimous
agreement is that it is undesirable. For children to be taught
by these materials that sex is public, that sex is commercial,
and that sex can be divorced from any degree of affection, love,
commitment, or marriage is for us the wrong message at the wrong
time. We may disagree among ourselves about the extent to which
the effect on children should justify large scale restrictions
for that reason alone, but again we all agree that if the
question is simply harm, and not the question of regulation by
law, that material in this category is, with few exceptions,
generally harmful to the extent it finds its way into the hands
of children. Even those in society who would be least
restrictive of sexually explicit materials tend, by and large, to
limit their views to adults. The near unanimity in society about
the effects on children and on all of society in exposing
children to explicit sexuality in the form of even non-violent
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,nd non-degrading pornographic materials makes a strong statement
bout the potential harms of this material, and we confidently
agree with that longstanding societal judgment.
perhaps the largest question, and for that reason the
question we can hardly touch here, is the question of harm as it
relates to the moral environment of a society. There is no doubt
that numerous laws, taboos, and other social practices all serve
to enforce some forms of shared moral assessment. The extent to
which this enforcement should be enlarged, the extent to which
sexual morality is a necessary component of a society's moral
environment, and the appropriate balance between recognition of
individual choice and the necessity of maintaining some sense of
community in a society are questions that have been debated for
generations. The debates in the nineteenth century between John
Stuart Mill and James FitzJames Stephen, and in the twentieth
century between Patrick Devlin and H.L.A. Hart, are merely among
the more prominent examples of profound differences in opinion
that can scarcely be the subject of a vote by this Commission.
We all agree that some degree of individual choice is necessary
in any free society, and we all agree that a society with no
shared values, including moral values, is no society at all. We
have numerous different views about the way in which these
undeniably competing values should best be accommodated in this
'ociety at this time, or in any society at any time. We also
have numerous different views about the extent to which, if at
sll> sexual morality is an essential part of the social glue of
345
n o
this or any other society. We have talked about these igs
but we have not even attempted to resolve our differences
because these differences are reflective of differences that
both fundamental and widespread in all societies. That we hav
been able to talk about them has been important to us, and the
is no doubt that our views on these issues bear heavily on the
views we hold about many of the more specific issues that have
been within the scope of our mission.
Thus, with respect to the materials in this category, there
are areas of agreement and areas of disagreement. We unanimously
agree that the material in this category in some settings and
when used for some purposes can be harmful. None of us think
that the material in this category, individually or as a class,
is in every instance harmless. And to the extent that some of
the materials in this category are largely educational or
undeniably artistic, we unanimously agree that they are little
cause for concern if not made available to children are foisted
on unwilling viewers. But most of the materials in this category
would not now be taken to be explicitly educational or artistic,
and as to this balance of materials our disagreements are
substantial. Some of us think that some of the material at some
times will be harmful, that some of the material at some times
will be harmless, and that some of the material at times will be
beneficial, especially when used for professional °r
nonprofessional therapeutic purposes. And some of us, while
recognizing the occasional possibility of a harmless
346
neficial use, nevertheless, for reasons stated in this section,
el that on balance it is appropriate to identify the class as
harmful as a whole, if not in every instance. We have recorded
tnis disagreement, and stated the various concerns. We can do
little more except hope that the issues will continue to be
discussed. But as it is discussed, we hope it will be recognized
that the class of materials that are neither violent nor
degrading is at it stands a small class, and many of these
disagreements are more theoretical than real. Still, this class
is not empty, and may at some point increase in size, and thus
the theoretical disagreements may yet become germane to a larger
class of materials actually available.
5.2.4 Nudity
We pause only briefly to mention the problem of mere nudity.
None of us think that the human body or its portrayal is harmful.
But we all agree that this statement is somewhat of an
oversimplification. There may be instances in which portrayals
of nudity in an undeniably sexual context, even if there is no
suggestion of sexual activity, will generate many of the same
issues discussed in the previous section. There are legitimate
questions about when and how children should be exposed to
nudity, legitimate questions about public portrayals of nudity,
and legitimate questions about when "mere" nudity stops being
mere" nudity and has such clear connotations of sexual activity
that it ought at least to be analyzed according to the same
factors that we discuss with respect to sexually explicit
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I
materials containing neither violence nor degradation.
In this respect nudity without force, coercion, sexUal
activity, violence, or degradation, but with a definj^
provocative element, represents a wide category of materials. ^
the least explicit end of the spectrum, we could envisiOn
aesthetically posed, air brushed photographs of beautiful men or
women in a provocative context. The provocation derives from the
power of sex to attract the attentions and stir the passions of
all of us. Such materials may have,, in most uses, little
negative effect on individuals, families, or society. But at the
other end of the continuum, we see materials specifically
designed to maximize the sexual impact by the nature of the pose,
the caption, the seductive appearance, and the setting in which
the model is placed. For example, consider a woman shown in a
reclining position with genitals displayed, wearing only red
feathers and high heeled shoes, holding a gun and accompanied by
a caption offering a direct invitation to sexual activity. With
respect to such more explicit materials, we were unable to reach
complete agreement. We are all concerned about the impact of
such material on children, on attitudes towards women, on the
relationship between the sexes, and on attitudes towards sex in
general, but the extent of the harms was the subject of some
difference of opinion.
None of us, of course, finds harmful the use of nudity 1"
art and for plainly educational purposes. Similarly, we
believe that in some circumstances the portrayal of nudity may
348
undesirable. It is therefore impossible to draw universal
conclusions about all depictions of nudity under all conditions.
But by and large we do not find the nudity that does not fit
within any of the previous categories to be much cause for
concern.
5.3 The Need for Further Research
Although we have mentioned it throughout this report, it is
appropriate here to emphasize specially the importance of further
research by professionals into the potential and actual harms we
have discussed in this Chapter. We are confident that the
quality and quantity of research far surpasses that available in
1970, but we also believe that the research remains in many
respects unsystematic and unfocused. There is still a great deal
to be done. In many respects research is still at a fairly
rudimentary stage, with few attempts to standardize categories of
analysis, self-reporting questionnaires, types of stimulus
materials, description of stimulus materials, measurement of
effects, and related problems.
We recognize that the ethical problems discussed above will
inevitably place some cap on the conclusions that can be drawn
from the research in this area. But apart from this inherent and
incurable limitation, much can still be done. The research that
"»s led to further subdivision of the large category of sexually
•xpliclt materials has perhaps been the most important
development in recent years, and we strongly encourage research
that will deal more precisely with different varieties of
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materials. We also believe that many other specific questio
are in need of further research. There needs to be more
research, for example, about the effect of pornography on th
marriage relationship, about the nature of appetites fOr
pornographic material and how those appetites are developed
about the effect of depictions of particular sexual practices on
the sexual preferences of those who view them, and about the
effects of exposure to pornographic material on children. This
list could be much longer, but the point is only to show that
much more needs to be done.
Some of the professionals who have provided evidence to us
have been quite outspoken in their views about what the
government in general or the legal system in particular ought to
do about pornography. This phenomenon has been about equally
fiivided between those researchers who have advocated fewer legal
controls and those who have advocated more. While we do not deny
to citizens the right to speak out on matters of public concern,
we ought to note that we have tended to rely most on evidence
provided by those who seem less committed to a particular point
of view beyond their scientific expertise. We deal in an area in
which a great deal must be taken on faith, including description
of stimulus materials, description of experimental environments,
questionnaire design, and description of what may or may not have
been told to subjects. At no time have we suspected any
scientist of deliberately or even negligently designing an
experiment or reporting its results, but it remains nevertheles
350
(.(,6 case that there, is room for judgment and room for discretion.
Khere a researcher has taken on the role as active crusader, one
way or another, on the issue of governmental control of
pornography, we are forced to question more than we would
otherwise have done the way in which this judgment and discretion
has been exercised. We will not suggest how any researcher
should balance the issue of his or her own credibility against
his or her own strong feelings about an issue of importance. But
we will note that the more that is expected to be taken on trust,
the more likely it is that active involvement with respect to
what is to be done with the results of the research will decrease
the amount of trust.
351
I )'
Chapter 6
Laws And Their Enforcement
6.1 An Overview of the Problem
In Chapter 5 of this Part we explored the various harms
to be caused by certain kinds of sexually explicit
materials. We also indicated our conclusions with respect to
questions of harm. But as we insisted throughout Chapter 5 of
this Part, the fact that a certain kind of material causes a
certain kind of harm, although generally a factor in making
decisions about law and law enforcement, does not by itself
entail the conclusion that the material causing the harm should
be controlled by the law. In some cases private action may be
more appropriate than governmental action. In some cases
governmental action, even if ideally appropriate, may be
inadvisable as a matter of policy or unworkable as a matter of
practice. And in some cases governmental action may be
unconstitutional. Still, the prevention and redress of harms to
individuals and harms to society have long been among the central
functions of government in general and law in particular.
Although we are sensitive to the space between what is harmful
and what harms the government ought to address, at least we start
with the assumption that where there is an identified harm, then
governmental action ought seriously to be considered. In some
cases the result of that consideration will be the conclusion
that governmental action is inappropriate,, unworkable, or
""constitutional. But so long as we have identified harms, we
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must consider carefully the possible legal remedies for each harm
we have identified.
We have tried to consider as broadly as possible the kinds
of legal remedies that might be appropriate to deal with various
harms. Although enforcement of the criminal law has long been
considered the primary legal tool for dealing with harmful
sexually explicit material, it has not been the only such tool
and ought not to be considered the only possible one. We have
tried to be as open as we could be to various options in addition
to or instead of enforcement of the criminal law. Thus in this
Chapter we will consider the appropriateness, as exclusive or
supplemental remedies, of zoning, administrative regulation,
civil remedies for damages in the form of a civil rights action,
civil remedies to obtain an injunction, and other possible legal
responses to the harms that have been identified. We do not
claim to be exhaustive in our consideration of regulatory
options. Some options that have been suggested to us simply do
not warrant discussion. And others that we mention briefly could
and should be explored more thoroughly by others. But it is
important to us to emphasize that approaches other than the
traditional criminal law sanctions do exist, and are an integral
part of thinking carefully about the issue of pornography.
6.2 Should Pornography Be Regulated By Law?
6.2.1 The Question is Deregulation
Numerous witnesses at our public hearings, as well as many
others in written evidence or in various publications, have urge
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upon us the view that pornography should not be regulated by law.
Because such arguments have been around for some time, and
because such arguments were substantially accepted by the 1970
Commission, we have very seriously considered them. To a
significant extent, however, the arguments remain unpersuasive.
Many of the arguments against regulation, both those made
currently and those made earlier, rest on claims of harmlessness
that, as we have explained in Chapter 5 of this Part, are simply
erroneous with respect to much of this material. Some, of these
claims of harmlessness tend either to ignore much of the
evidence, or to extrapolate from plausible conclusions about the
most innocuous material to conclusions about an entire class.
Others start with the assumption that no finding of harm can be
accepted unless it meets some extraordinarily high burden of
proof, a burden of proof whose rigor often seems premised on an a_
priori assertion that the material being discussed ought not to
be regulated.
In addition to erroneous or skewed claims of harmlessness,
many of the arguments against regulation depend on claims of
unconstitutionality that would require for their acceptance a
view of the law strikingly different from that long accepted by
the Supreme Court in its rulings on obscenity. As we discuss in
Chapter 3 of this Part, we accept the Supreme Court's basic
approach to the constitutional question. To the extent that
claims for non-regulation thus rest on constitutional arguments
fch which neither we nor the Supreme Court accept, we reject
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those arguments for non-regulation.
To the extent that arguments for non-regulation do not
depend on implausible claims of harmlessness or rejected claims
of unconstitutionally, however, they deserve to be taken even
more seriously. As questions of policy in particular areas or
the appropriateness of governmental action in general, serious
arguments have been made that go to the most fundamental
questions of what governmental action is designed to achieve.
We have thought carefully about these issues explicitly,
and in doing so we have found it necessary to recast the
question. The question as often presented'to us in effect asks
whether, if we had no laws dealing with pornography, we would
want them. This question is not the same as the question
whether, given 180 years of pornography regulation in the United
States, we should repeal it. Although virtually every argument
for deregulation presented to us has been in the former tone, it
is the latter that represents reality. We certainly do not take
everything that is to be inevitable, and we deem it important to
treat even that which has been assumed for generations as open
for serious and foundational reconsideration. Nevertheless, it
remains the case that there are vast real and symbolic
differences between not doing what has not before been done and
undoing what is currently in place. To undo makes a statement
much stronger than that made by not doing. In many cases it may
be fully appropriate to make this stronger statement, but "e
presuppose here that the evidence and our convictions must be
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stronger to urge dismantling what is now in place than it would
have to be to refuse to put in place what did not now exist.
Moreover, we recognize that this is an area marked by serious
debate, involving plausible arguments both for and against
regulation. Where the issues are not all on one side, we have
given some weight to the considered judgment of the past. In
some sense, therefore, the burden of proof is on those who would
urge adoption of a variety of governmental regulation that does
not now exist. In a nation founded on principles of limited
government, those who would make it less limited have the
obligation to persuade. But where there exists a present
practice and long history of regulation of a certain variety, the
burden is on those who would have government make the necessarily
much stronger statement implied by an affirmative act of
deregulation.
In light of this, we take the question of the governmental
regulation of the legally obscene not to be whether if we did not
have obscenity laws would we want them, but whether given that we
have obscenity laws do we want to abandon them. In many areas
the issues before us are not close, and how the question is put
does not determine the outcome. But in many other areas the
questions are indeed difficult, and how the questions are cast,
and where the burden of proof lies, do make a difference. With
reference to criminal sanctions against the legally obscene, for
example, the burden must be on those who would have us or society
make the specially strong statement implicit in the act of
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repeal. But with reference to certain forms of regulation that
do not now exist, the burden is similarly on those who would have
us or society make the specially strong statement implicit in
urging the totally new.
6.2.2 Law Enforcement, Priority, and Multiple CausaH»n
As we have discussed in Chapter 5 in this Part, most of the
harms that we have identified are not caused exclusively or even
predominantly by pornography. In Chapter 5 in this Part we
discussed this problem of multiple causation in terms of
relatively abstract questions of harm. But when the phenomenon
of multiple causation is applied to actual problems of laws and
their enforcement, the issue gets more difficult. Even if it is
the case that a certain form of sexually explicit material bears
a causal relationship to harm, the question remains whether some
other stimulus has an even greater causal relationship. Except
peripherally, we could not be expected to delve deeply into all
possible other causes of sexual violence, sex discrimination, and
excess sexual aggression. To the extent that we make
recommendations about law enforcement, we make them from a
presupposition that others from a larger perspective must make
the ultimate determinations about allocation of scarce financial
and other societal resources. This task includes not only the
allocation of resources among various causes of the harms we have
identified, but also involves the even more difficult question of
allocating resources among these harms and others. These are
difficult questions, and we do not claim that either simpl6
358
formulas or easy platitudes can answer questions about, for
example, apportioning money among countermeasures against
poverty, racism, terrorism, and sexual violence. None of us
would say that any of these is unimportant, but we recognize
that in a world of scarce resources the long term commitment of
resources to combat one evil inevitably draws resources away from
those available to combat another evil. Even if one assumes that
there are currently underutilized resources that could be
allocated to the harms we discuss here, such an allocation still
involves a decision to allocate the currently underutilized
resources to combat these harms rather than some others. We have
no solutions to these intractable problems of priority in a world
in which there is more to do than there are resources with which
to do it. Nevertheless, we feel it important to note here that
we have not ignored these problems, and we urge that everything
we say be considered in light of these considerations.
Although we are sensitive to the difficulty of problems of
priority, we still feel confident in concluding that, at the very
least, the problems of sexual violence, sexual aggression short
of actual violence, and sex discrimination are serious societal
problems that have traditionally received a disproportionately
small allocation of societal resources. To the extent that we
would be asked the question whether resources should be expended
°n alleviating these problems rather than dealing with others, we
assert strongly that these problems have received less resources
than we think desirable, and that remedying that imbalance by a
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possibly disproportionate allocation in the opposite direction is
appropriate.
The conclusion in the previous paragraph does not address
the question of priorities of approach once we have decided to
treat these problems as high priority matters. With respect to
priorities in dealing with the problems of sexual violence,
sexual aggression not involving violence, and sex discrimination,
people disagree about the optimal priority that dealing in some
way with sexually violent pornography and sexually degrading
pornography ought to have. But images are significant
determinants of attitudes, and attitudes are significant
determinants of human behavior. To the extent constitutionally
permissible, dealing with the messages all around us seems an
important way of dealing with the behavior. We have concluded
that the images we deal with here seem to be at the least a
substantial cause of the harms we have identified. But common
sense leads us to go further, and to suppose that the images are
a significant cause even when compared with all of the other
likely causes of these same harms. To the extent that this
substantial causal relationship has not been reflected in the
realities of law enforcement, we have little hesitation in making
recommendations about increased priority.
6.2.3 The Problem of Underinclusiveness
The problem of multiple causation is addressed to those
causes of certain harms other than some varieties of pornographic
materials. The problem has another aspect, best referred to as
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the problem of underinclusiveness. For even if we restrict our
consideration to sexually oriented images, to the various kinds
of sexually explicit materials discussed in Chapter 5 of this
part, it is certainly the case that many of those materials are
constitutionally immune from governmental regulation. And to the
extent that the material involved becomes less explicit, the
immunity from regulation, as a matter of current law, increases,
ft great deal of sexual violence, for example, is part of less
sexually explicit and generally available films and magazines,
and because it is presented in less explicit fashion in the
context of some plot or theme it remains beyond the realm of
governmental control, although non-governmental self-restraint or
citizen action seems highly appropriate. And when we include
various other sources of sexually oriented messages and images in
contemporary society, from prime time television to the lyrics of
contemporary music to advertisements for blue jeans, it is even
more apparent that much of what people are concerned with in
terms of truly pornographic materials might also be a concern
with respect to an immense range and quantity of materials that
are unquestionably protected by the First Amendment. Many of
these materials may present the message in a more diluted form,
but certainly their prevalence more than compensates for any
possible dilution. As a result, even the most stringent legal
strategies within current or even in any way plausible
constitutional limitations would likely address little more than
the tip of the iceberg.
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We thus confront a society in which the Constitution
properly requires 'governments to err on the side of
underregulation rather than overregulation, and in which the
First Amendment leaves most of the rejection of unacceptable and
dangerous ideas to citizens rather than to government. Faced
with this reality, it would be easy to note the irremediable
futility of being limited only to a thin slice of the full
problem, and as a consequence recommend deregulation even as to
the material we deem harmful and constitutionally unprotected.
But this would be too easy. First, it ignores the extent to
which the materials that can be regulated consistent with the
Constitution may, because they present their messages in a form
undiluted by any appeal to the intellect, bear a causal
relationship to the harms we have identified to a
disproportionate degree. And with respect to sexual violence,
these materials may disproportionately be aimed at and influence
people more predisposed to this form of behavior. For both of
these reasons, most of us believe that in many cases the
harm-causing capacities of some sexually explicit material may be
more concentrated in that which is constitutionally regulable and
legally obscene than in that which is plainly protected by the
Constitution. This factor of concentration of harm may itself
justify maintaining a strategy of law enforcement in the face of
massive underinclusiveness.
More significantly, however, law serves an important
symbolic function, and in many areas of life that which the law
362
condemns serves as a model for the condemnatory attitudes and
actions of private citizens. Obviously this symbolic function,
the way in which the law teaches as well as controls, is premised
on a general assumption of legitimacy with respect to the law in
general that generates to many people a presumption that the
law's judgments are morally, politically, and scientifically
correct in addition to being merely authoritative. In making
recommendations about what the law should do, we are cognizant of
the responsibilities that accompany law's symbolic function. We
are aware as well of its opportunities, and of the symbolic
function that may be served by even strikingly underinclusive
regulation. Conversely, we are aware of the message conveyed by
repeal or non-enforcement of existing laws with respect to
certain kinds of materials. To the extent that we believe, as we
do, that in a number of cases the message that is or would be
conveyed by repeal or non-enforcement is exactly the opposite
message from what we have concluded and what the evidence
supports, we are unwilling to have the law send out the wrong
signal. Especially on an issue as publicly noted and debated as
this, the law will inevitably send out a signal. We would prefer
that it be the signal consistent with the evidence and consistent
with our conclusions.
6.3 The Criminal Law
In light of our conclusions regarding harm, and in light of
the factors discussed above in Section 6.2, we reject the
argument that all distribution of legally obscene pornography
363
should be decriminalized. Even with that conclusion, however
many issues remain, and it is to these that we now turn.
6.3.1 The Sufficiency of Existing Criminal Laws
The laws of the United States and of almost every state make
criminal the sale, distribution, or exhibition of material
defined as obscene pursuant to the definition set forth by the
Supreme Court in Miller v. California." The enormous
differences among states and among other geographic areas in
obscenity law enforcement are due not to differences in the laws
as written,51 DUt to differences in how, how vigorously, and how
often these laws are enforced.
Some witnesses have urged us to recommend changes in the
criminal law resulting in laws that are significantly different
in scope or in method of operation from those now in force. We
have, for example, been urged to recommend a "per se" approach to
obscenity law that would make the display of certain activities
automatically obscene and we have been urged to recommend a
definition of the legally obscene that is broader than that of
Miller. We have thought carefully about these and similar
suggestions, but we have rejected them. We have rejected these
suggestions for a number of reasons, the most important of which
50 413 u.s. 15 (1973). We discuss Miller and other
applicable cases in detail in Chapter 3 of this Part.
51 There are exceptions to this, however. For
example, California has until recently employed as a
definition of obscenity not the test in Miller, but the
"utterly without redeeming social value" test from Memoirs v.
Massachusetts, 383 U.S. 413 (1966). ~
364
js that it has not been shown that the basic definitions or broad
methods of operation of existing laws are in any way insufficient
legal tools for those who care to use them. Some witnesses have
complained about the uncertainty of the existing legal definition
Of obscenity, but it has appeared to us that these uncertainty
claims have usually been the scapegoat for relatively low
prosecutorial initiatives. A substantially larger number of
witnesses involved in law enforcement have testified that they do
not find excess uncertainty in the Miller standard as applied and
interpreted, and consequently believe that the existing laws are
sufficient for their needs. The success of prosecutorial efforts
in Atlanta, Cincinnati, and several other localities, in which
vigorous investigation, vigorous prosecution, and stringent
sentencing have substantially diminished the availability of
almost all legally obscene materials, plainly indicates that the
laws are there for those areas that choose the course of vigorous
enforcement. We recognize that not all localities will wish to
make the commitments of resources that Atlanta and Cincinnati
have, but the experiences in such localities persuades us that
the desire to have new or more laws, while always appealing as
political strategy, is in fact unjustified on the record.
Moreover, a new law incorporating a definition of its
coverage different from that in Miller would be sure to be
challenged in the courts on constitutional grounds. At the
moment, the conclusion must be that these proposals are
constitutionally dubious in light of Miller, that they would
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remain so until there was a Supreme Court decision validating
them and in effect overruling Miller, and that there is no
indication at the present time that the Supreme Court is inclined
in this direction. Even assuming a desire to restrict materials
not currently subject to restriction under Miller, a desire that
most of us do not share, we find a strategy of embarking on years
of constitutional litigation with little likelihood of success to
be highly counterproductive unless the current state of the law
is distinctly unsatisfactory in light of the desire to pursue
legitimate goals. Because we do not find the existing state of
the law unsatisfactory to pursue the goals we have urged, we
reject the view that laws incorporating a different and
constitutionally suspect definition of coverage are needed or are
in any way desirable.
6.3.2 The Problems of Law Enforcement
If the laws on the books are sufficient, then what explains
the lack of effective enforcement of obscenity laws throughout
most parts of the country? The evidence is unquestionable that
with few exceptions the obscenity laws that are on the books go
unenforced. As of the dates when the testimony was presented to
us, cities as large as Miami, Florida, and Buffalo, New York, had
but one police officer assigned to enforcement of the obscenity
laws. Chicago, Illinois, had two. Los Angeles,. California, had
fewer than ten. The City of New York will not take action
against establishments violating the New York obscenity laws
unless there is a specific complaint, and even then prosecution
366
is virtually non-existent. Federal law enforcement is limited
almost exclusively to child pornography and to a few major
operations against large pornography production and distribution
networks linked to organized crime. From January 1, 1978, to
February 27, 1986, a total of only one hundred individuals were
indicted for violation of the federal obscenity laws, and of the
one hundred indicted seventy-one were convicted.52
From this and much more evidence just like it, the
conclusion is unmistakable that with respect to the criminal laws
relating to obscenity, there is a striking underenforcement, and
that this underenforcement consists of undercomplaining,
underinvestigation, underprosecution, and undersentencing. The
reasons for this are complex, and we regret that we have not been
able to explore nearly as much as we would have liked the reasons
for this complex phenomenon. We offer here only a few
hypotheses, and hope that further research by criminologists and
others will continue where we leave off.
With respect to sentencing, the evidence was almost
unanimous that small fines and unsupervised probation are the
norm, with large fines or sentences of incarceration quite rare
throughout the country. In examining this phenomenon, we can
speculate on a number of problems. When the prosecution involves
as defendants those with significant control over the enterprise,
the defendant is likely to appear as very much like the typical
52 Of the remaining twenty-nine cases, only three
resulted in acquittals.
367
(
"white collar" criminal nicely dressed, well-spoken, and
residence in the suburbs. A person fitting this description is
least likely in contemporary America to receive jail time
regardless of the crime. In this respect we suspect that the
problem of undersentencing is traceable to the same causes that
have produced the same phenomenon with regard to other crimes.
People who have control over the sale of illegally obscene
materials do not go to jail for many of the same reasons that
price fixers, odometer adjusters, and securities manipulators
do not go to jail, and if they do it is still less often and for
less time than do people committing other crimes that allow
equivalent statutory sentences. Moreover, like these and other
crimes, obscenity offenses often appear to both judges and
probation officers as less serious than violent crimes, and often
as even less serious than various crimes against property. To a
significant extent, those involved in the sentencing process tend
not to perceive obscenity violations as serious crimes. Whether
these judgments of seriousness made by judges and probation
officers are or are not correct is of course debatable, but the
point remains that there seems to be a substantial interposition
of judgment of seriousness between the legislative determination
and the actual sentence. As a result, sentencing usually
involves only a fine and unsupervised probation, and is often
treated by the defendant as little more than a cost of doing
368
business.53
With respect to those without ownership or managerial
control, usually ticket takers or clerks, many judges and
probation officers seem understandably reluctant to impose
periods of incarceration on people who are likely to be
relatively short term employees earning little more than the
minimum wage. Although in some cases ticket takers or clerks are
involved with the business itself, more often they are not. With
some justification in fact, therefore, some judges perceive that
people who would but for fortune be clerks in candy stores rather
than clerks in pornography outlets should not receive jail time
for having taken the only job that may have been available to
them.
Whatever the causes of undersentencing, it is apparent that
with the current state of sentencing the criminal laws have very
little deterrent effect on the sale or distribution of legally
obscene materials. Although we have recommended mandatory
minimum sentences for second and further offenses, some of us are
not convinced that this will actually serve as a solution, for in
many areas mandatory sentencing may result in plea bargains for
$3 in this connection, we should note our support (and
our specific recommendation in that section of this Report)
for use of the Racketeer Influenced and Corrupt Organizations
(RICO) Act as a method of requiring many of those convicted
o£ multiple and substantial obscenity violations to disgorge
the profits from their enterprises. Whether in this form or
another, methods of attacking profits, or the assets
purchased with those profits, seem likely to be more
effective financial deterrents than substantially smallerfines.
369
lesser charges, or prosecu'torial reluctance to proceed against
someone the prosecutor is unwilling to see go to jail. None of
us are certain about the effects of mandatory sentencing, and
mandatory sentencing may be appropriate if it comports with
practices for crimes of equivalent seriousness within a
jurisdiction. But we fear that the problem of undersentencing is
more complex than simple, and to the extent that mandatory
minimum sentencing may in practice be only cosmetic, it should
not blunt efforts to look further for the roots of the problem of
undersentencing.
The problem of undersentencing is likely to affect the level
of prosecution. When the end result of even a successful
prosecution is a fine that is insignificant compared to the
profits of the operation, or at most a period of incarceration
that is so minimal as to have insignificant deterrent effect, the
incentive to prosecute diminishes on the part of both prosecutors
and law enforcement personnel. The potentially light sentence
magnifies the fact that obscenity prosecutions are likely to be
properly perceived as necessitating a high expenditure of time
and resources as well as being, in terms of the likelihood of
securing a conviction, high risk enterprises. The defendants
will usually be represented by sophisticated lawyers with a
mandate to engage in a vigorous and extensive defense. It would
be a rare prosecutor who did not understand the difference
between prosecuting a mugger represented by a young public
defender with too many cases and too little time and resources.
370
on the one hand, and, on the other, prosecuting a pornography
distributor who has a team of senior trial lawyers at his
disposal and who will probably receive only a minimal sentence
even if convicted.
In addition to the fact that obscenity prosecutions are seen
as high risk and low reward ventures for prosecutors and law
enforcement personnel, it is also the case that being involved in
obscenity investigation or obscenity prosecution is likely to be
lower in the hierarchy of esteemed activities within a
prosecutorial office or within a police department. This may
stem in part from the extent to which the personal views of many
people within those departments are such as to treat these
matters as not especially serious. The extent to which this is
so, and the extent to which there are other factors we have been
unable to isolate, we cannot at this time determine. But we are
confident that the phenomenon exists.
The upshot of all of the above is that we are forced to
conclude that the problem of underprosecution cannot be remedied
simply by saying that enforcement of the obscenity laws ought to
have a higher priority, or simply by providing more money for
enforcement, or simply by increasing the amount of community and
political pressure on all those involved in the law enforcement
effort. We do not discount any of these approaches, as all have
proved effective at times when used in conjunction with other
techniques of changing law enforcement practices, but it is clear
that the dynamics are sufficiently complex that no one remedy for
371
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the problem will suffice. There is a multiplicity of factor
explaining the lack of enforcement, and changing that situatiOn
will require a multiplicity of remedies. We urge that many of
the specific recommendations we suggest be taken seriously.
6.3.3 Federalism
We operate in a nation with dual systems of criminal law
The laws of most states make the sale, exhibition, or
distribution of obscene material a crime, but federal law also
makes it a crime to use the mails or the facilities of interstate
commerce for such purposes. In thinking about law enforcement a
recurring issue is the proper sphere of operation for federal law
and the proper sphere of operation for state law.
Putting aside the enforcement of federal laws against
child pornography, which we discuss in Chapter 7 of this Part,54
federal law enforcement efforts are now directed almost
exclusively against large nationwide obscenity distribution
networks with known connections with organized crime. With few
exceptions, there is little enforcement of federal obscenity laws
54 in addition to trying to achieve some degree of
analytic clarity, we put aside child pornography in this
context because we note the extent to which prosecutors and
other law enforcement officials have frequently relied on the
number of child pornography prosecutions to give a general
impression of vigorous enforcement of the obscenity laws in
their jurisdiction. On closer examination, it has usually
appeared that there was a great deal of activity with respect
to child pornography, and virtually none with respect to the
obscenity laws. We do not of course deny the importance of
allocating large amounts of resources to child pornography.
We do not believe, however, that any purpose is served by
clouding the existing state of affairs with respect to the
enforcement of the obscenity laws.
372
in cases not involving some strong suspicion of organized crime
involvement. For example, despite reasonably clear evidence that
sophisticated multi-state operations dealing in large quantities
of legally obscene material have substantial contacts with
localities such as Los Angeles and New York City, there has been
essentially no federal prosecution of the obscenity laws in the
Central District of California and the Southern District of New
York. We mention these particular districts only because they
are large and have within them particular concentrations of
either production or distribution of legally obscene materials.
But the pattern of federal non-involvement is not limited to
these districts. The nationwide pattern of little federal
prosecution seems to have changed somewhat within the past
months, most likely as a result of the publicity associated
with this Commission, but it remains a safe conclusion that
enforcement of federal law has been minimal.
We note the extent to which it has become common to assume
that whenever there is a large problem the solution ought to be a
federal one. Witness after witness representing some branch of
state law enforcement complained that the real problem was the
lack of federal support. Although we sympathize with these
witnesses in their attempts to get more support for their
'fforts, we are dismayed at the unwillingness of the states to
assume the bulk of the responsibility for enforcement of the
criminal law. Although we do not deny the extent of federal
fesponslbility, and although we do not deny that some states have
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7 IT
budgetary crises that approach in seriousness if not in
that of the federal government, there comes a point at which the
ready solution of more federal money for even the most worth
endeavors can no longer be the strategy of first resort. We are
aware of our responsibilities, now a matter of law as well as
good sense, to look for alternatives other than major additional
expenditures of federal funds with respect to our own rather than
someone else's agenda, and we urge that states consider their law
enforcement responsibilities mindful of these considerations. vje
also note that in our federal system primary responsibility for
law enforcement has always been with the states. The police
power of the states has commonly been taken to include primary
responsibility for dealing with the very types of harms at which
the obscenity laws are addressed. And the constitutional
commitment to a federal system assumes that state involvement is
preferable to federal in areas, such as most of the criminal law,
in which local decisions may vary. We see no reason not to make,
in general, the same assumptions with respect to the enforcement
of obscenity laws.
Despite our view that primary law enforcement
responsibilities rest with the states, federal law and federal
law enforcement have an essential role to play in the enforcement
of the obscenity laws. Most of the material that we find most
harmful is distributed throughout the country by means of large
and sophisticated distribution networks. It is precisely «ith
respect to this kind of massive and complex interstate
314
international) operation that the special skills and resources of
federal investigative agencies are most needed, and to which the
nature of federal criminal prosecution is most suited,
prosecutions can, as with the MIPORN prosecutions in Miami, join
in a single prosecution people from different states who are
integral and controlling parts of the same enterprise. And the
federal judicial apparatus is often more suited than that of the
states where evidence and witnesses must be secured from
throughout the country.
Thus, we do not see the scope of federal prosecution as
being limited to cases involving demonstrable connections with
organized crime. In any case in which the evidence indicates a
multi-state operation of substantial size and sophistication,
federal rather than or in addition to state law enforcement is
most appropriate. By concentrating vigorously on such
operations, federal prosecutorial and investigative resources
will be reserved for the cases in which federal involvement has
the greatest comparative advantage, while still reserving to the
states that primary role in more local law enforcement that is at
the core of our system of federalism.
6.3.4 What Should Be Prosecuted?
In Chapter 5 of this Part we discussed at length the
Increasing trend in the scientific research and in general
discussions of this subject to recognize that not all
pornographic items are identical. There are substantial
Differences in the content of such materials, and we have tried
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in the rough categorization of Chapter 5 of this Part to express
our sympathy with these efforts to advance the clarity o£
thinking about the issue of pornography. Indeed, we hope that we
have contributed to those efforts. As the natural consequence Of
these efforts to recognize the differences among pornographic
materials, we urge that thinking in terms of these or analogous
categories be a part of the analysis of the total law enforcement
effort.
The categories we discussed in Chapter 5 of this Part
encompass a range of materials far broader than the legally
obscene, and thus, in the context of this discussion of the
criminal law, a range of materials far broader than what we know
can be prosecuted consistent with the Constitution.
Nevertheless, these categories, with the exception of nudity not
involving the lewd exhibition of the genitals, exist within as
well as around the legally obscene, material that has been or
could be criminally prosecuted consistent with the Miller
standard, there exist materials that are sexually violent,
materials that are non-violent but degrading, and materials that,
although highly sexually explicit and offensive to many, contain
neither violence nor degradation. In light of our
conclusions in Chapter 5 of this Part, we would urge that
prosecution of obscene materials that portray sexual violence be
treated as a matter of special urgency. With respect to sexually
violent materials the evidence is strongest, societal consensus
is greatest, and the consequent harms of rape and other forms
376
sexual violence are hardly ones that this or any other society
can take lightly. In light of this, we would urge that the
prosecution of legally obscene material that contains violence be
placed at the top of both state and federal priorities in
enforcing the obscenity laws.55
With respect to materials that are non-violent yet
degrading, the evidence supporting our findings is not as strong
as it is with respect to violent materials. And on the available
evidence we have required more in the way of assumption to draw
the connection between these materials and sexual violence,
sexual aggression, and sex discrimination.
Nevertheless, these assumptions have significant support on
the evidence and in our own logic and experiences, and the causal
evidence remains for us strong enough to support our conclusions.
None of us hesitate to recommend prosecution of those materials
that are both degrading and legally obscene.
If choices must be made, however, prosecution of these
materials might have to receive slightly lower priority than
sexually violent materials, but this is not to say that we view
action against degrading materials as unimportant.
55 In discussing priorities here, we exclude from
consideration child pornography. As we explain in Chapter 7
°f this Part, child pornography involves a different range of
materials, a different kind of "industry," a different kind
°E offender, and consequently different approach to the
Problems of law enforcement. We treat it separately because
it is go different. We do not in so doing wish to suggest
that the problems are any less. if anything they are
Beater, but they remain different, and little purpose is
served by dealing with child pornography as part of the
*arger category of pornography.
377
With respect to materials in the third category we ha
identified, materials that are neither violent nor degrading, ^
issues are more difficult. There seems to be no evidence in th
social science data of a causal relationship with sexual
violence, sexual aggression, or sex discrimination. These three
harms do not exhaust the possible harms, however, and our
disagreements regarding this category reflect disagreements that
abound in this society at this time. Many people believe that
making sex into an essentially public act is a harm of major
proportions, a harm that is compounded by its commercialization.
To others legitimizing through this material either a wide range
of traditionally prohibited sexual practices, or legitimizing sex
without love, marriage, commitment, or even affection is the
primary harm with which people should be concerned. Some people
have recognized the extent to which material of this variety is
likely to wind up in the hands of children, and thus to frighten
children or to encourage children to model their behavior on what
they have seen, and would take this to be a sufficient condition
for serious concern. And some people note the importance to any
society of some set of shared moral values, including values
relating to sexuality, and look upon the proliferation of the
material even in this category as an attack on something that is
a precondition for a community. On the other hand, many people
see these concerns as less problematic, or matters appropriate
for individual choice and nothing more, or see in some of the use
of these materials beneficial effects which ought also to °e
378
taken into account. We cannot resolve these disagreements
among ourselves or for society, but the fact of disagreement
remains a fact. Regardless of who is right and who is wrong
these issues, and we do not purport to have clear,
definitive, or easy answers, the substantially lower level of
societal consensus about these matters is an empirical fact.
TO some of us, this substantially lower level of societal
consensus, when combined with the absence for these materials of
scientific evidence showing a causal connection with sexual
violence, sexual aggression, or sex discrimination, leaves a
category as to which this society is less certain and as to which
one array of concerns, present with the two previous
categories, is absent. More than this is necessary to recommend
deregulation or even to support a recommendation not to prosecute
what has long been taken to be regulable. And we will not so
easily discount the substantial arguments that can be made for
regulation by recommending a drastic change in what has been
general practice for most of the history of this nation.
Nevertheless, the factors of lower societal consensus and absence
of causal connection with sexual violence, aggression, or
discrimination are to some of us germane to the question of
priority. with respect, therefore, to legally obscene material
within this category it seems entirely appropriate to some of us,
^ Indeed, all of the survey evidence supports the
view that there are substantial disparities between societal
views .regarding restrictions on materials depicting sexualVlolence and materials depicting sex alone.
379
158-315 Vol. 1, O - 86 - 13
r
at least in terms of long-term commitment of resources' for
prosecutors and law enforcement personnel to treat such materi
differently from material containing sexual violence
degradation of women. Should a community wish to allocat
sufficient resources to obscenity enforcement that material i
this category is prosecuted as vigorously as that in the
previously discussed category, we find that an entirel
legitimate decision for a community to make. But if a community
does not wish to devote resources to that extent, or if a
community believes that the material in this category, even if
legally obscene, is not cause for the stringent sanctions of the
criminal law, then it would seem to some of us appropriate for
that community to concentrate its efforts on material that is
either violent or degrading.
On this issue we are, as would be expected given our
differences with respect to the harms associated with this
category, deeply divided. Some of us would strongly urge that
all legally obscene material be prosecuted with equal vigor, and
would not only urge the communities of which we are part to take
this course, but would condemn those that did not. Others of us
see the prosecution of material within this category as something
that should quite consciously be treated as a lower priority
matter, and still others of us see the questions with respect to
this category as being primarily for the community to make, with
community decisions to prosecute vigorously, or not at all, °r
somewhere in between, as entitled to equal respect.
380
Although we are divided on this question, the division is
likely on tne current state of the law to be more philosophical
than real. Pursuant to Miller, material is obscene only if,
among numerous other factors, it offends the community in which
it is made available. As a result, in those communities in which
material within this category is riot considered especially
problematic, the material will not be considered legally obscene.
And in those communities in which material within this category
is condemned, it will offend community standards and thus, if the
other requirements of Miller are met, will be legally obscene.57
As a result, therefore, the existing legal approach incorporates
within the definition of obscenity the views of a particular
community. The question whether to prosecute material in this
category, therefore, assuming that the decision to prosecute is
in effect a community decision, will turn into the question,
under current law, whether the material is obscene at all.
6.3.5 The Special Prominence of the Printed Word
In oral testimony before us, in written submissions, and in
numerous published discussions of the question of pornography,
fears have been expressed about the dangers of excess censorship.
As we have explained in Chapter 3 of this Part, we are sensitive
to the risks of excess censorship beyond the bounds of what the
First Amendment or good sense should allow, but we have found
community as a whole.
381
(
many of these claims to be little more than hyperbole, warnlnq
against censorship in the abstract but providing little in the
way of real evidence that the possibility exists.
That the evidence presented has been weak, however, does not
mean that we should ignore the possibility that in some areas
prosecutions might be attempted of works of undoubted merit in
the name of obscenity law, or that obscenity prosecution might be
threatened as a way of exercising impermissible control over
works that are not even close to being legally obscene. We heard
testimony, for example, about a local prosecutor who, presented
with a citizen complaint about a not even plausibly obscene book
in the local library, sought out a written statement of a
literary justification for the book instead of telling the
complainant that the book quite simply was not obscene. And as
we have investigated similar incidents, and listened to claims
about excess censorship, it has become apparent to us that the
vast majority of these concerns have surrounded books consisting
entirely of the printed word text only, without photographs or
even drawings.
In thinking about these concerns, we note that material
consisting entirely of the printed word can be legally obscene,
as the Supreme Court held in 1973 in Kaplan v. California.58
And we have seen in the course of our inquiries books that would
meet this standard - books consisting of nothing other than
descriptions of sexual activity in the most explicit terms,
58 413 U.S. 115 (1973).
382
plainly patently offensive to the vast majority of people, and
plainly devoid of anything that could be considered literary,
artistic, political, or scientific value.
Although many such books exist, and although they constitute
part of all the categories of material we have identified, they
seem to be the least harmful materials within the various
categories. Because they involve no photographs, there need be
no concerns with those who are actually used in the process of
production. And the absence of photographs necessarily produces
a message that seems to necessitate for its assimilation more
real thought and less almost reflexive reaction than does the
more typical pornographic item. There remains a difference
between reading a book and looking at pictures, even pictures
printed on a page.
All of us would strongly urge prosecution of legally
obscene material containing only text when the material is either
targeted at an audience of children or when its content involves
child molestation or any form of sexual activity with children.
Because of the effect of the child pornography laws, photographic
material involving children is becoming less available, and this
material, which is likely to encourage acts of child molestation,
occupies a significant portion of textual obscenity. There is
little prosecution of this material now, and we hope that that
situation will change.
Some of us, however, except for material plainly describing
sexual activity with minors or targeted to minors, would urge
383
r 1 f
that materials consisting entirely of the printing word simply
not be prosecuted at all, regardless of content. There is for
all practical purposes no prosecution of such materials now, So
such an approach would create little if any change in what
actually occurs. But by converting this empirical fact into a
plain statement even the possibility of prosecuting a book win
be eliminated. If this is eliminated even as a possibility,
those of us who take this position believe that the vast majority
of potential abuses can be quelled and the vast majority of fears
alleviated with what will be at most a negligible reduction in
law enforcement effectiveness. Most likely there will be no
effect at all on law enforcement, although those who take this
position nevertheless deplore many of the books, a substantial
proportion of which involve violence or degradation. Bo-t from
this perspective, what is lost in the ability to prosecute this
material is more than compensated for by the symbolic and real
benefits accompanying the statement that the written word has had
and continues to have a special place in this and any other
civilization.
Others of us, however, while sharing this special concern
for the written word, would not adopt such a rigid rule, and
would retain both in theory and in practice the ability to
prosecute obscene material regardless of the form in which the
obscenity is conveyed. Especially in light of the fact that we
have seen many books that are devoted to sexual violence and
sexual degradation, some of us fear that giving carte blanche to
384
such material, regardless of current prosecutorial practices, is
to send out exactly the wrong signal. Those of us who take this
position share the concern for the written word, but believe that
that concern can best be reflected in ways other than providing a
license for material that, although presented in verbal form,
seems substantially similar to the forms of pictorial obscenity
that concern us.
Although we are deeply divided on the question of a clear
rule prohibiting prosecution (except in cases involving or
directed at children), we share each others concerns. Those of
us who would adopt a clear rule nevertheless regret some of its
consequences, and deplore much of the textual obscenity we have
seen. And those of us who reject the idea of a clear rule
understand the concerns for purely verbal communication, and urge
that prosecution of entirely textual material be undertaken only
with extraordinary caution.
6.4 Regulation By Zoning
For many people the harms caused by pornography relate in
part to the effects on communities and neighborhoods of the
establishments in which such materials are commonly sold.
Whether it be a peep show, an "adults only" pornographic theatre,
or a so-called "adult bookstore," there seems widespread
agreement that virtually all such establishments are largely
detrimental to the neighborhoods in which they are located. Some
of the negative consequences arise from the style of the
establishments themselves, which usually have garish lights and
385
signs advertising the nature of what is to be found within in no
uncertain terms. Other consequences flow from the clientele, who
are often people that many citizens would just as soon be
somewhere else. And such establishments are likely to exist in
close proximity to areas in which prostitution exists, and in
close proximity to establishments such as bars featuring live
sexually oriented entertainment. As a result, most people would
consider such establishments environmentally detrimental, and
there is some evidence indicating a correlation between crime
rates and the particular neighborhoods in which such
establishments exist.
Although some communities have attempted to deal with
pornography outlets through criminal prosecution, others have
attempted zoning regulation more narrowly tailored to alleviating
the consequences discussed in the previous paragraph. These
regulations generally take two forms. One is a dispersal
regulation, in which zoning ordinances prohibit location of such
an establishment within a specified distance of another such
establishment. The principle behind dispersal ordinances is that
of scattering these establishments throughout a large geographic
area, so that no concentration of them can have a major
deleterious effect on any one neighborhood. Alternatively, some
communities have endeavored to concentrate these establishments,
attempting through zoning to limit them to one or just a few
parts of the community, usually remote from residential areas,
and frequently remote as well from certain business districts.
386
In order for such ordinances to be effective, they must be
able to describe the establishments they regulate in terms at
least slightly broader than the Miller definition of obscenity.
Were the Miller standard to be used, the administrative
enforcement mechanism commonly in force with respect to zoning
would become bogged down in the more cumbersome procedures
characteristic of full trials. Most such ordinances, therefore,
regulate establishments that specialize in sexually explicit
material, and usually the ordinance contains a definition of
sexually explicit material that is more precise but more
expansive than Miller.59 Although such ordinances include more
than could criminally be prosecuted under Miller, the Supreme
Court has approved zoning regulation of this variety, first in
1976 in Young v. American Mini Theatres, Inc.,60 and then again
in February 1986 in City of Renton v. Playtime Theatres, Inc.61
59 For example, the Detroit ordinance that was before
the Supreme Court in the Young case defined as an "adult
establishment" any establishment concentrating on offering
material emphasizing "specified sexual activities" or
"specified anatomical areas." "Specified sexual activities"
were defined to include, for example, "Human Genitals in a
state of sexual stimulation or arousal," "Acts of human
masturbation, sexual intercourse or sodomy," and "Fondling or
other erotic touching of human genitals, public region,
buttock or female breast." The definition of "Specified
anatomical areas" was similarly broader than would be
permitted by Miller if the aim were total prohibition. To
the extent that zon i ng approaches concentrate on
establishments specializing in this material, we note that
such approaches may have the effect of providing incentives
for attempts to introduce more plainly pornographic material
into more mainstream outlets.
60
61
427 U.S. 50 (1976).
54 U.S.L.W. 4160 (Feb. 25, 1986).
387
The most significant qualification imposed by the Court is the
requirement that the zoning regulation not have the effect of a
total prohibition.62 The result, therefore, is that if
communities wish to restrict the location of such "adults only"
establishments, they may do so, but they may not under the guise
of zoning banish them altogether.
Witnesses who have testified before us about zoning
approaches in their localities have by and large not endorsed
these approaches. Most of these witnesses, however, have been
law enforcement personnel who would prefer prohibition to
relocation. The zoning approach, which is not aimed at
prohibition, is not surprisingly a poor tool if prohibition is
the desired result.
Moreover, in most localities these ordinances contain
"grandfather" clauses, eliminating from the restrictions those
establishments already in place on the date of enactment of the
ordinance.63 Thus the result has often been to prevent the
problem from growing, but has done little to diminish the extent
of an existing problem.
It has been suggested that zoning may be the ideal solution
to the problem of pornography, because it allows people who wish
access to this material to have such access without having its
62 On this point, see, Schad v. Ht. Ephraim, 452 U.S.
61 (1981).
63 Although such clauses may be required by state law,
we note that nothing in the First Amendment, or in federal
constitutional law generally, would require such an approach.
388
sale intrude on the lives and sensibilities of the majority of
the population who wish to have nothing to do with it. This
solution is ideal, however, only under the presupposition that
the material is not indeed harmful except insofar as it causes
offense to non-users. With respect to sexually violent material
and degrading material, we have found that the evidence does not
support such a modest view of the likely consequences, and thus
we reject an equivalently modest remedy for what we take to be
harmful material, even when its access is restricted to willing
buyers. If indeed the material in these categories is harmful,
as we have found it to be, we cannot consistent with that finding
urge a remedy of moving it to another part of town.
With respect to materials that are neither violent nor
degrading, however, both the evidence of harms and the level of
societal consensus are less, and zoning might possibly be more
appropriate for establishments restricting their stock to
materials in this category. As suggested above in Section 6.3.4,
the absence of evidence for this material of a causal connection
with sexual violence, sexual aggression, or sex discrimination
may suggest lower prosecutorial priority within a system of
enforcement of the criminal laws. But even for localities that
may choose this course, the offensiveness of these materials and
the deleterious effects on the neighborhoods in which they are
made available may still be seen to justify some restriction. If
this is the case, then zoning may be the appropriate way to deal
with materials of this variety, although many of us are concerned
389
that in practice such an approach will concentrate such
establishments in or near the most economically disadvantaged
segments of a locality. Some of us fear that zoning may be a way
for those with political power to shunt the establishments they
do not want in their own neighborhoods into the neighborhoods of
those with less wealth and less political power.
Restrictions on public display, whether through the criminal
law or zoning ordinances/ are in effect another form of zoning.
The concept here is that there may be many materials that,
regardless of their alleged harmlessness, and regardless of the
fact that they are not legally obscene, ought not to be displayed
in a manner that offends unwilling viewers. Moreover, the public
display does not differentiate between passersby who are adults
and tl:ose who are children, and taking into account the
likelihood that children will be exposed to this material at
inappropriate ages justifies restrictions that might seem harsh
in settings involving only adults. Even those most likely to
oppose obscenity regulation would, we suspect, have little
difficulty in principle with restricting sexually explicit
material from billboards. None of us has difficulty with this
either, even when extended somewhat beyond the legally obscene.
We believe that public display regulations, including but not
limited to the control of advertising materials displayed on the
exterior of adult establishments, and including but not limited
to the display ordinances requiring shielding of the covers of
sexually explicit magazines, are fully justifiable measures in a
390
society that has long restricted indecent exposure. If
copulating in a public park may be restricted, we are not
troubled by regulations prohibiting billboards depicting
copulation.
We ought finally to mention in this section the attempts in
a number of communities to restrict "adults only" pornographic
establishments through the use of nuisance laws and related legal
remedies. Nuisance laws, when applied to sexually explicit
materials, are attempts to serve many of the interests that
generated the zoning approach, but here the aim is prohibition
rather than relocation. The desired result in most such legal
actions is an injunction against further operation of the
establishment. For that reason, all effective uses of this
approach have thus far been found unconstitutional. Even where
an establishment has been found guilty of a criminal obscenity
violation, the law as of this moment does not permit the finding
of obscenity with respect to one magazine, or one film, to
justify what is in fact a restriction on other films and other
magazines not yet determined to be legally obscene, and
therefore presumptively protected by the First Amendment. Total
prohibition, therefore, on the state of the law right now, seems
much more likely to stem from substantial criminal penalties for
those involved with such establishments than from civil remedies
directed in some way directed against the establishment and not
the person.
6.5 The Civil Rights Approach to Pornography
391
Within the last several years a substantial amount of the
public discussion of pornography has centered around a proposed
anti-pornography ordinance drafted by two scholars, Andrea
Dworkin and Catherine MacKinnon, and proposed in one form or
another in a number of localities, most notably Minneapolis
Minnesota; Los Angeles, California; Cambridge, Massachusetts; and
Indianapolis, Indiana. The only community actually to adopt such
an ordinance was Indianapolis, which on June 11, 1984, drafted an
ordinance providing civil remedies against pornography. The
ordinance defined pornography as:
[T]he graphic sexually explicit subordination of
women, whether in pictures or in words, that also
includes one or more of the following: (1) Women
are presented as sexual objects who enjoy pain or
humiliation; or (2) Women are presented as sexual
objects who experience sexual pleasure in being raped; o r
(3) Women are presented as sexual objects tied up or cut up or
mutilated or bruised or physically hurt,
or as dismembered or truncated or fragmented or
severed into body parts; or (4) Women are presented being
penetrated by objects or animals; or (5)
Women are presented in scenarios of degradation,
injury, abasement, torture, shown as filthy or
inferior, bleeding, bruised, or hurt in a context
that makes these conditions sexual; [or] (6) Women
are presented as sexual objects for domination,
conquest, violation, exploitation, possession, or
use, or through postures or positions of servility
or submission or display.
The ordinance has subsequently been held unconstitutional by
the United States District Court for the Southern District of
Indiana,64 and tnat decision has been affirmed by the United
64 American Booksellers Ass'n v. Hudnut, 598 F. Supp.
1316 (S.D. Ind.1984).
392
States Court of Appeals for the Seventh Circuit.65 Recently the
Seventh Circuit's decision has been affirmed, on the merits but
without opinion, by the Supreme Court of the United States.66
The basis for the finding of unconstitutionality was the way in
which the definition set forth above was substantially more
inclusive than that in Miller. To the extent that legislation
restricts material beyond the legally obscene, that legislation
must confront an array of First Amendment-inspired barriers that
few if any statutes could meet. This statute could not surmount
those obstacles, for much the same reason, according to the
courts, that attempted restrictions on members of the American
Nazi Party and the Ku Klux Klan could not surmount those
obstacles. Once the comparatively narrow realm of Miller-tested
legal obscenity is left, virtually no restrictions on
communication based on the point of view expressed, no matter how
wrong or harmful it may be, are permitted by the First Amendment.
That this ordinance with this definition was properly held
unconstitutional, however, should not deflect attention from
three other features of the ordinance and of the support it
engendered. First, we are in substantial agreement with the
motivations behind the ordinance, and with the goals it
represents. The harms at which the ordinance is aimed are real
and the need for a remedy for those harms is pressing. That we
65 American Booksellers Ass'n v. Hudnut, 771 F.2d 323
(7th Cir. 1985).
66 Hudnut v. American Booksellers Ass'n, 54 U.S.L.W.
3560 (Feb. 24, 1986).
393
understand both the harms and the urgent need to remedy these
harms should be apparent from the discussion in Chapter 5 of this
Part. Moreover, although we feel that the safer and better
course is to proceed within existing constitutional
boundaries, our recommendations regarding criminal prosecution
for legally obscene material containing sexual violence or
degradation are largely consistent with what this ordinance
attempts to do, although the approach we recommend clearly will
reach less material. In effect, this ordinance reaches material
containing sexually violent or sexually degrading material when
it is sexually explicit. The only constitutionally
permissible approach, however, is to reach material containing
sexually violent or sexually degrading material when it is
legally obscene, and that in effect is what we have strongly
urged here.
In addition, the ordinance proposed a civil remedy, rather
than a criminal one. We have thought about the issue of a civil
remedy, because the question whether there should be a civil or a
criminal remedy is analytically distinct from the question of
what material will be reached by that remedy. A civil remedy
could be combined with all or part of the category of material
reached by Miller, and we have thought about the possibility of
civil rather than criminal sanctions with respect to
Miller-tested obscenity. Although we recognize that details
would remain to be worked out, in large part relating to who
would have the ability to bring an action against whom,
394
endorse the concept of a civil remedy so long as it takes place
within existing constitutional limitations. Although we do
endorse the concept of a civil remedy, and although we do
recognize that much of the material we have seen directly
implicates in a harmful way the civil rights of women, we do not
ignore the deterrent effect on publishers of being forced to
defend a wide range of suits that might raise claims that are
totally without merit, but which would still require at least a
preliminary defense. Although we recognize that occasionally
prosecutors might be overzealous, we have no doubt that the
average prosecutor is substantially less likely to be overzealous
than the most zealous potential plaintiff. We have heard from a
wide range of people in the course of our work, and some have
employed definitions of pornography or have expressed views about
what ought to be restricted that are far beyond what any of us
would conceivably tolerate. We are unwilling to have each of
these people as potential plaintiffs. We are not willing to put
a publisher to a defense in every case in which someone thinks
that material is obscene or pornographic. If a procedure could
be devised that provided for some preliminary determination by a
judge or magistrate that the suit was plausible before the
complaint was allowed to be filed, our fears would evaporate, and
with such a procedure we believe that civil remedies available to
a wide range of people ought seriously to be contemplated. And
in any event, civil remedies that restricted the right of action
to» for example, people who were compelled to perform in obscene
395
material or people who were compelled to view obscene material
would not have the problems associated with a potentially
enormous class of plaintiffs, and ought to be considered even
more seriously.
Finally, the ordinance and the support for it properly
focused attention on the people who are frequently coerced into
performing in sexually explicit films, or into posing for
sexually explicit pictures. And even where coercion in the
contemporary legal sense is absent, the conditions of employment
unquestionably deserve close attention. We agree with these
concerns for the participants, and we agree that legal concern
for participants need not be limited to the question of child
pornography. We believe that civil and other remedies ought to
be available to those who have been in some way injured in the
process of producing these materials. But we are confident that
the remedies of restricting the material itself, at least beyond
the category of the legally obscene, permissible in the case of
child pornography, remain constitutionally impermissible with
respect to adults. We believe, therefore, that the appropriate
remedy in the case of. adults is that which is directed at the
conduct itself, and we include in a later Chapter of this Report
a special report directed exclusively to harms to performers, and
possible remedies for those harms.
6.6 Obscenity and the Electronic Media
Where legally obscene material is transmitted by radio,
television, telephone, or cable, the same legal sanctions are or
396
should be available as are available for any other form of
distributio- or exhibition. Although federal law has long
prohibited the transmission of legally obscene materials by
radio, television, and telephone, the advent of cable television
left a gap in the law. The Cable Communications Policy Act of
1984 attempts to provide criminal penalties for anyone
transmitting over any cable system "any matter which is obscene
or otherwise unprotected by the Constitution." A number of states
have or are on the verge of adopting similar changes in their
obscenity laws to include cable transmission, and we support
those legislative efforts to ensure that the law keeps up with
technological changes. To the extent that obscene material
appears on cable television, we urge prosecution to the same
extent and with the same vigor as we do with respect to any other
form of distribution of obscene material. We note that this has
not always been the case, and we urge that enforcement efforts
directed to legally obscene material, in whatever regulatory form
those enforcement efforts might take, be as aggressive with
respect to cable transmission of the legally obscene as with
other forms of distribution of the legally obscene.
Under existing law, however, the Federal Communications
Commission has the power to impose some sanctions against certain
broadcasting of sexually explicit language or pictures over
radio and television even where the material is not legally
obscene. In FCC v. Pacifica Foundation,67 tne Supreme Court
67 438 U.S. 726 (1978).
397
upheld the constitutionality of this form of regulation, in the
context of sanctions against a radio station for a daytime
broadcast of George Carlin's "Seven Dirty Words" monologue, which
is in fact about the FCC regulations, and which uses repeatedly
the words the FCC prohibits.
As we have explained in Chapter 4 of this Part and in a
later Part, there is a great deal available on cable television
today that is sexually explicit but which is not legally obscene.
Some of this material contains sexual violence, some of it is
degrading as we have used that term here, and some of it is,
although rather explicit, neither violent nor degrading. In
almost all of these cases the films shown have simulated rather
than actual sexual activity, most have a rather sustained story
line, and many are mainstream and highly acclaimed Hollywood
productions.
With respect to these materials that are not legally
obscene, they are beyond the reach of the law as it stands today.
Nevertheless, we have been urged to recommend changes in the law
so that material which is "indecent" as well as legally obscene
might be kept from cable television to the same (or greater)
extent as it has been kept from broadcast non-subscriber radio
and television. We have not adopted these suggestions, however,
although it is an issue on which we are deeply divided, some of
us believe that enforcement of obscenity laws with respect to
such material, when combined with vigorous enforcement of the
"lockbox" requirements so that children may be prevented by their
398
parents from seeing such material, are all that is appropriate at
this time. Some of us are persuaded by the fact that the
suggestions made to us are all, on the existing state of the law,
unconstitutional, with all of the courts that have confronted the
issue deciding that cable cannot be controlled by the standards
68applicable to broadcast non-subscriber television. Some of us
are skeptical about Pacifica itself, and do not wish to extend to
new areas a principle that we find dubious even with respect to
broadcast media. In light of the existence of, for example,
serious and non-pictorial sexual advice programs as well as
serious mainstream motion pictures containing more explicit
sexuality than would be available on broadcast television,
extension of the limitations of broadcast television to cable
seems highly likely to restrict that which simply ought not to be
restricted. Some of us question the current state of the law,
but would urge change in the direction of permitting restriction
of pure violence rather than indecency. Some of us are also
uncomfortable once again about taking on any doubtful causes and
courses of constitutional adjudication when existing law seems
sufficient for the more extreme cases. And some of us reject all
of the above, and feel that cable television, even with
lockboxes, is so similar to broadcast television that regulation
of more than the legally obscene should be permitted with respect
68 Cruz v. Ferre, 755 F.2d 1415 (llth Cir. 1985);
Community Television of 'Utah v. Roy City. 555 F. Supp. 1164
(P. Utah 1982); HBO v. Wilkinson, 531 F. Supp. 987 (D. Utah
1982). The Supreme Court has yet to be faced with thequestion.
399
o
to cable just as it is when the airwaves rather than wires are
the medium of transmission. Some of us who hold this view would
prefer somewhat broader definitions of what can permissibly be
regulated in many areas. And others of us who take this position
are comfortable with the existing definition of obscenity, but
feel that television is a medium with a special power and a
special intrusiveness in contemporary society.
These are difficult questions, going not only to the roots
of First Amendment doctrine and theory, but also to the nature of
television in American life. As with other fundamental issues,
we are unable to agree here, and as a result there is no
consensus among us that would justify urging that regulation of
cable encompass more than the legally obscene.
Many of the same considerations apply to the regulation of
those telephone services, commonly referred to as Dial-a-Porn,
that provide sexually explicit messages. As we discuss at length
in a later Part, there is no doubt that the number and variety of
these services is increasing, and that they have generated
substantial citizen concern. Some of the concerns relate to the
way in which these services are advertised, and some relate to
the messages themselves regardless of who uses the service. Most
of the concerns, however, relate to the frequent use of these
services by minors, a concern that seems accentuated by the
extent to which many of the services seem designed to cater to
the particular asexual perceptions of teenagers rather than
adults. We have heard a number of these messages, and we have
400
( I
little doubt that the bulk of them could be considered to he
f\ Qlegally obscene under existing law. Although they use words
rather than pictures, even those of us who would refuse to apply
obscenity law to materials containing only the printed word would
not apply that principle to these materials. Apart from the fact
that many seem implicitly if not explicitly directed at minors,
the nature of the spoken voice, especially in this context,
contains enough of the characteristics of the visual image that
we have no difficulty in saying that such material should be
dealt with consistent with our recommendations concerning films,
tapes, and pictorial magazines.
Although once again we have been urged to recommend new laws
that are substantially more encompassing than the existing
definition of the legally obscene, we find such approaches both
unnecessary and undesirable. The vast bulk of this material
seems to us well within the Miller definition, and thus could be
proseci'iad in accordance with the concerns and the priorities we
have urged here. In light of that, we see few advantages and
substantial risks in going further. But we also urge that there
be laws allowing the prosecution of such legally obscene
material, and we urge as well that such laws be enforced. There
seems now to be little enforcement, and in light of the frequency
69 we believe this to be the case even when the
messages are directed at and available only to adults. To
the extent that they are directed at and available to minors,
the application of the test for obscenity may properly take
^o* into account. Ginsberg v. New York, 390 U.S. 629\1968).
401
with this material is used by minors, we deplore the failure to
have and to enforce obscenity laws with respect to material o£
this type.
6.7 Enforcing Both Sides of the Law
Both in Chapter 3 of this Part and in this Chapter we have
emphasized our belief that conscientious enforcement of existing
obscenity laws and the dictates of the First Amendment are not
inconsistent. But our confidence in this conclusion will be
increased if all of those with law enforcement responsibilities
would recognize their responsibilities to enforce the existing
principles of the First Amendment as conscientiously and as
vigorously as they enforce the obscenity laws. The Constitution
is a law too, and we expect that anyone who has taken an oath to
uphold the law will recognize that they must uphold the First
Amendment as well.
We make these general observations because we acknowledge
that many citizens, sincerely and for very good reasons, would
want the law to do more than it is now constitutionally able to
do, and more than we feel it ought constitutionally be able to
do. Many of these citizens will find an outlet for their views
in the fully legitimate and appropriate private actions that we
discuss in Chapter 8 of this Part. But many others will make
requests or demands on law enforcement personnel, sometimes out
of ignorance about the constitutional constraints but often out
of an understandable frustration that the Constitution, in the
name of long run values, often prevents us from doing what
402
seems quite justifiable in the short run.
When faced with such requests or demands, we hope that law
enforcement personnel will recognize their responsibilities to
interpose their legal responsibilities at that time. They must
refuse to take any action that would in any way be governmentally
threatening to those who are exercising their constitutional
rights, and they must be willing to explain to their angry
constituents why they have and must do so. We recognize that
this may not always be easy in a world in which the citizens
properly expect their elected and appointed officials to be
responsive to the desires of the citizenry. But we should point
out as well that most of our recommendations about increased or
at least maintained law enforcement presuppose this attitude, and
presuppose an environment in which the limitations of the First
Amendment are enforced by all public officials at the point at
which they first matter. To assume that enforcement of the
obscenity laws is for law enforcement personnel while enforcement
of the Constitution is for the courts is to misunderstand the
nature of the system. It may also, ultimately, be to threaten
the constitutional underpinnings of what we have urged in this
Report. In the long run, the enforcement of the obscenity laws
depends on the willingness of those who do the enforcing to
respect the appropriate constitutional limitations. If that
respect does not take place in practice and at the first
instance, neither courts nor commissions such as this one will be
able to be as confident of the current accommodation between
conflicting goals as we now are.
403
Chapter 7
Child Pornography
7«1 The Special Horror of Child Pornography
What is commonly referred to as "child pornography" is not
so much a form of pornography as it is a form of sexual
exploitation of children. The distinguishing characteristic of
child pornography, as generally understood, is that actual
children are photographed while engaged in some form of sexual
activity, either with adults or with other children. To
understand the very idea of child pornography requires
understanding the way in which real children, whether actually
identified or not, are photographed, and understanding the way in
which the use of real children in photographs creates a special
harm largely independent of the kinds of concerns often expressed
with respect to sexually explicit materials involving only
adults.
Thus, the necessary focus of an inquiry into child
pornography must be on the process by which children, from as
young as one week up to the age of majority,70 are inauced to
engage in sexual activity of one sort or another, end the process
by which children are photographed while engaging in that
70 A significant amount of sexually explicit material
includes children over the applicable age of majority who
look somewhat younger. Because people who are actually
minors are not used in this type of publication, it would not
qualify as child pornography, although it might still be
legally obscene. In general, this variety of material does
not cater to the pedophile, but instead to those who prefer
"laterial with young-looking models.
405
activity. The inevitably permanent record of that sexual
activity created by a photograph is rather plainly a harm to the
children photographed. But even if the photograph were never
again seen, the very activity involved in creating the photograph
is itself an act of sexual exploitation of children, and thus the
issues related to the sexual abuse of children end those related
to child pornography are inextricably linked. Child pornography
necessarily includes the sexual abuse of a real child, and there
can be no understanding of the special problem of child
pornography until there is understanding of the special way in
which child pornography is child abuse.
7.2 Child Pornography as Cottage Industry
In addition to understanding the way in which child
pornography is defined by its use of real children engaged in
real sexual activity, it is important to understand the way in
which the "industry" of child pornography is largely distinct
from any aspect of the industry of producing and making available
sexually explicit materials involving only adults.
A significant aspect of the trade in child pornography, and
the way in which it is unique, is that a great deal of this trade
involves photographs taken by child abusers themselves, and then
either kept or informally distributed to other child abusers. As
we discuss in more detail in a later Part, some of these child
abusers are situational, abusing children on occasion but not
restricting their sexual preferences to children. others are
preferential, not only preferring children as a means f°r
406
achieving sexual satisfaction, but seeking out children in order
to satisfy this desire. We have heard substantial evidence that
both situational and preferential child molesters frequently take
photographs of children in some sexual context. Usually with
non-professional equipment, but sometimes in a much more
sophisticated manner, child abusers will frequently take
photographs of children in sexual poses or engaged in sexual
activity, without having any desire to make commercial use of
these photographs. At times the child abuser will merely keep
the photograph as a memento, or as a way of recreating for
himself the past experience. Frequently, however, the photograph
will be given to another child abuser, end there is substantial
evidence that a great deal of "trading" of pictures takes place
in this manner.71 The desire to have collections of a large
number of photographs of children seems to be a common, although
not universal, characteristic of many pedophiles. Some of this
exchange of photographs takes place in person, a great deal takes
place through the mails, and recently a significant amount of the
exchange has taken place by the use of computer networks through
which users of child pornography let each other know about
materials they desire or have available.
'1 There is also evidence that commercially produced
pictures of children in erotic settings, or in non-erotic
settings that are perceived by some adults as erotic, are
collected and used by pedophiles. There is little that can
be done about the extent to which, for example,
advertisements for underwear might be used for vastly
different purposes than those intended by the photographer or
Publisher, but we feel it nevertheless important to identifythe practice.
407
7
In addition to the primarily non-commercial trade in
pornography, there appears to be a commercial network for chii<j
pornography, consisting to a significant extent of foreign
magazines that receive the very kinds of pictures described ln
the previous paragraph, end then sell in magazine form
collections of these non-commercially produced photographs.
These magazines will frequently contain advertisements for
private exchange of pictures in addition to publishing pictures
themselves.72 Although the publication of the magazines, almost
exclusively abroad, is itself a commercial enterprise, it does
not appear as if most of the contributors contribute for the
purpose of commercial gain. And although the publication of
these magazines is largely foreign, there is substantial evidence
that the predominant portion of the recipients of end
contributors to these magazines are American.
Prior to the late 1970s, when awareness end concern about
child 'pornography escalated dramatically, commercially produced
and distributed child pornography was more prevalent than it is
now. It was in the late 1970,s that this awareness and concern
started to be reflected in major law enforcement initiatives,
state and federal, against child pornography. When the Supreme
Court in 1982 approved of child pornography laws whose coverage
was not restricted to the legally obscene, these enforcement
72 Some of this private exchange is quite informal,
but there is evidence that more formal and elaborate
underground networks for the exchange of these pictures
exist.
408
efforts accelerated, and the sum total of these enforcement
efforts has been to curtail substantially the domestic commercial
production of child pornography. This is not to say that it does
not exist. There is a domestic commercial child pornography
industry, but it is quite clandestine, and not nearly as large as
the non-commercial use of and trade in non-commercially produced
sexually explicit pictures of children.
Although there now appears to be comparatively little
domestic commercial production of>child pornography, there
remains a significant foreign commercial industry, and much of
this material is available in the United States. Some of this
material is in magazine form, some are photographic motion
picture films, but increasingly, as with much of the adult
material, video tapes are dominating the market. None of this
material is available openly, however. We received some
testimony that commercially produced child pornography was
available "under the counter" in some establishments selling
adult sexually explicit material. A number of experienced police
officers testified to having no actual knowledge that material is
available in this way, but others indicated that they had either
heard of its availability or had themselves seen its availability
in rare circumstances. We have also heard evidence about more
surreptitious networks for the distribution of this material, and
we have heard some evidence about the way that this material is
sold through the mails. We have little doubt that there is some
distribution in the United States of commercially produced
409
material, although the extremely clandestine nature of th
distribution networks makes it difficult to assess the size of
this trade.
Although we note, therefore, that there is some commercially
produced material, efforts to deal with the problem of child
pornography will fail if they overestimate the extent of the
commercial side of the practice, and underestimate the
non-commercial side. The greatest bulk of child pornography is
produced by child abusers themselves in largely "cottage
industry" fashion, and thus child pornography must be considered
as substantially inseparable from the problem of sexual abuse of
children. That does not make the problem of child pornography
unimportant. On the contrary, to the extent that it is an aid to
and a part of a problem that is unfortunately prevalent and
plainly outrageous, child pornography, in both its creation and
its distribution, is of unquestioned seriousness. But it is
different, in virtually every aspect of its definition, creation,
distribution, and use. Serious consideration of the issue of
child pornography must begin with this fact.
7.3 Child Pornography, the Law, and the First Amendment
Because the problem of child pornography is so inherently
different from the problems relating to the distribution of
legally obscene material, it should be no surprise to discover
that tools designed to deal with the latter are largely
ineffective in dealing with the former. The problems to which
child pornography regulation is addressed are numerous, but four
410
stand out most prominently.
The first problem is that of the permanent record of the
sexual practices in which children may be induced to engage. To
the extent that pictures exist of this inherently nonconsensual
act, those pictures follow the child up to and through adulthood,
and the consequent embarrassment and humiliation are harms caused
by the pictures themselves, independent of the harms attendant to
the circumstances in which the photographs were originally
made.73
Second, there, is substantial evidence that photographs of
children engaged in sexual activity are used as tools for further
molestation of other children. Children are shown pictures of
other children engaged in sexual activity, with the aim of
persuading especially a quite young child that if it is in a
picture, and if other children are doing it, then it must be all
right for this child to do it.74 AS with the problem of the
I
73 We refer in this regard to our specific
recommendation regarding possession of child pornography. We
do not believe that a photograph of a child engaged in sexual
activity should be part of someone else's "collection," even
if that collection remains in the home.
74 We note that there seems to be significant use of
adult sexually explicit material for the same purpose. Child
molesters will frequently show sexually explicit pictures of
adults to children for the purpose of convincing a child that
certain practices are perfectly acceptable because adults
engage in them with some frequency. We are greatly disturbed
by this practice, although we do not take the phenomenon as
sufficient to justify restrictions we would not otherwise
endorse. Many of the materials used for this purpose are not
even close to being legally obscene, and, in the words of
Justice Felix Frankfurter, we do not want to "burn the house
to roast the pig." Butler v. Michigan, 353 U.S. 380, 383
(1957). Nevertheless, we have no doubt that the practice
411
158-315 Vol. 1, O - 86 - 14
(I
permanent record, we see here a danger that is the direct
consequence of the photographs themselves, a danger that ia
distinct from the harms related to the original making of the
picture.
Third, photographs of children engaged in sexual practices
with adults often constitute an important form of evidence
against those adults in prosecutions for child molestation.
Given the inherent difficulties of using children as witnesses,
making it possible for the photographs to be evidence of the
offense, or making the photographs the offense itself, provides
an additional weapon in the arsenal against sexual abuse of
children.
Finally, an argument related to the last is the unquestioned
special harm to the children involved in both the commercial and
the noncommercial distribution of child pornography. Although
harms to performers involved would not otherwise be taken to be a
sufficient condition for restriction of the photographs rather
than the underlying conduct, the situation with children is of a
different order of magnitude. The harm is virtually unanimously
considered to be extraordinarily serious, and the possibility of
consent is something that the law has long considered, and
properly so, to be an impossibility. As a result, forms of
exists, and we have no doubt that it is dangerous insofar as
it helps break down the resistance of children to sexual
advances by adults. At the very least, we strongly urge that
children be warned about the practice in the course of
whatever warnings about sexual advances by adults are being
employed.
412
deterrence of the underlying conduct that might not otherwise be
considered advisable may be considered so with respect to
photographs of children. If the sale or distribution of such
pictures is stringently sanctioned, and if those sanctions are
equally stringently enforced, the market may decrease, and this
may in turn decrease the incentive to produce those pictures.
As part of the previous justification, it ought to be
obvious that virtually all child pornography is produced
surreptitiously, and thus, even with vigorous enforcement
efforts, enforcement will be difficult. Enforcement efforts
against the more accessible product of the process rather than or
in addition to the less accessible process itself may enable the
realities of enforcement to track the magnitude of the
problem. '-*
For all of these, as well as other, reasons, a number of
states, including New York, enacted around 1980 laws directed at
"child pornography" itself. These laws defined child pornography
not in terms of the legally obscene, but rather in terms of any
portrayal of sexual conduct by a child, or in terms that were
somewhat similar to this. Under these statutes, the sale or
distribution of any photographic depiction of a real child
75 As much as we urge the most vigorous enforcement of
child pornography laws with respect both to commercial and
noncommercial production, possession, and distribution, we
recognize that the problem of child abuse is larger than the
problem of child pornography. We urge vigorous enforcement
of child pornography laws as an important way of fighting
child abuse, but if it is treated as the only weapon, or the
major weapon, a great deal 'that needs doing will remainundone.
413
o
engaged in sexual activity was made unlawful, regardless of
whether the photograph, or magazine, or film was or could be
determined to be legally obscene pursuant to Miller v.
California.76
Because these new child pornography statutes encompassed
material not legally obscene pursuant to Miller, and therefore
encompassed material presumptively protected by the First
Amendment, a constitutional challenge ensued. But in New York v.
Fe_r_be_r, 7 7 the Supreme Court unanimously rejected the
constitutional challenges for reasons substantially similar to
those discussed just above. The Court noted the undeniably
"compelling" and "surpassing" interests involved in protecting
children against this variety of exploitation, and also rested
its conclusion on the fact that "[t]he value of permitting live
performances and photographic reproductions of children engaged
in lewd sexual conduct is exceedingly modest, if not de minimus.
We consider it unlikely that visual depictions of children
performing sexual acts or lewdly exhibiting their genitals would
often constitute an important and necessary part of a literary
performance or scientific or educational work." Given this
minuscule amount of First Amendment protection, therefore, the
Court determined that "[w]hen a definable class of material, such
as that covered [by the New York statute], bears so heavily and
76 413 o.S. 15 (1973). Miller is discussed
extensively above in Chapter 4 of this Part.
77 458 U.S. 747 (1982).
414
pervasively on the welfare of children engaged in its production,
we think the balance of competing interests is clearly struck and
that it is permissible to consider these materials as without
the protection of the First Amendment."
As a result of Ferber, virtually every state, as well as the
United States, now prohibits by its criminal law the production,
promotion, sale, exhibition, or distribution of photographs of
children engaged in any sexual activity regardless of whether the
material is legally obscene under the Miller standards. After
Ferber these laws are clearly constitutionally sound, and none of
us has any quarrel with the constitutionality of these statutes.
7.4 Enforcement of the Child Pornography Laws
In Chapter 4 of this Part we discussed the enforcement of
state and federal obscenity laws, and described what we see as a
rather consistent pattern of underenforcement of these laws. We
do not reach the same conclusion with respect to the child
pornography laws. It is plain to us that every unenforced
violation of the child pornography laws is an underenforcement
that ought to be remedied. We believe that many cases remain
uninvestigated, and we believe that state and federal prosecution
of child pornography, commercial and noncommercial, needs to be
even more vigorous. Nevertheless, it remains the case that the
child pornography laws seem now to be the subject of a
substantial amount enforcement efforts on both the state and
local levels. The federal statistics are illustrative. From
January 1, 1978, to February 27, 1986, one hundred individuals
415
T>
were indicted in the federal system for violation of the federal
obscenity laws, and of those indicted seventy-one were
convicted.78 During that same time period, 255 individuals were
indicted in the federal system for violation of federal child
pornography laws, and of those 215 were convicted. Although
these statistics themselves are highly suggestive of a
substantial disparity, we believe that, if anything, the
statistics understate the disparity. For one thing it is highly
likely that in absolute terms there are more violations of the
federal obscenity laws than there are violations of the child
pornography laws. In addition, it was not until final adoption
of the Child Protection Act of 1984 on May 21, 1984, that federal
law, following Ferber, finally eliminated the requirement of
"obscenity," and of the 255 indictments in fact 183 were secured
in the period from May 21, 1984, through February 27, 1986.
This comparatively aggressive approach to enforcement of the
federal child pornography laws has been matched by equally
vigorous efforts in the vast majority of states. Although we
urge even more aggressive enforcement of the child pornography
laws at both state and federal levels, we see less systematic
underinvestigation, underprosecution, and undersentencing than
seems to exist with respect to enforcement of the obscenity
laws.79 Child pornography seems to be a matter that judges,
78 See, supra note 52.
79 There are, however, impediments to investigation
and prosecution that are specially related to any prosecution
involving sexual abuse of children. One is the difficulty we
416
prosecutors, and law enforcement personnel have, with few
exceptions, taken seriously. We are glad that they do, and we
urge them to take it even more seriously.
In terms of taking these matters even more seriously, we
note again the inseparable relationship between child pornography
and child abuse. To take child pornography more seriously is to
take sexual abuse of children more seriously, and vice versa. It
is apparent that as of the date of this Report the sexual abuse
of children is being taken increasingly seriously in this
country, and we applaud that increased concern for a problem that
has long been both largely unspoken and largely avoided. That
situation is changing rapidly, and the increased attention to
child pornography is part of the increased attention being given
to all forms of sexual abuse of children, whether photographs are
part of the act or not. We do not hesitate to support further
efforts, in public education, in the education of children, and
in law enforcement, to continue to attempt to diminish the sexual
abuse of children, regardless of the form it takes.
None of us doubt that child pornography is extraordinarily
harmful both to the children involved and to society, that
dealing with child pornography in all of its forms ought to be
address in our specific recommendations. Another is the fact
that on occasion parents have themselves been involved in the
illegal activity. And there seems still to be some
reluctance to impose stiff sentences upon people who look and
act otherwise "normal." To that extent a significant problem
in dealing with sexual abusers of children is the mistaken
and dangerous assumption that all or most of those people are
self-evidently "weird."
417
treated as a governmental priority of the greatest urgency, and
that an aggressive law enforcement effort is an essential part of
this urgent governmental priority. Our unanimity of vigor about
child pornography does not surprise us, and we expect that it
will not surprise others. We hope that society will respond
accordingly.
418
Chapter 8
The Role Of Private Action
8.1 The Right to Condemn and the Right to Speak
We are a government commission, and thus, most of what we
have to say is addressed to government. Yet it is simply
mistaken to assume that citizen concerns need be exclusively or
even largely channeled into governmental action. We feel it
appropriate, therefore, to spend some time in this Report
addressing the issue of how citizens might appropriately and
lawfully put into practice their own concerns.
At the outset, it should be clear that citizens have every
right to condemn a wide variety of material that is protected,
and properly so, by the First Amendment. That governmental
action against a certain variety of communication is unwise and
unconstitutional does not mean that the communication is
valuable, and does not mean that society is better off for having
it. Earlier in this Report we used the examples of the Nazis and
the Ku Klux Klan to illustrate this point, and we could add many
more examples to this list. That the Communist Party is a lawful
organization does not prevent most Americans from finding its
tenets abhorrent, and the same holds true for a wide variety of
sexually oriented material. Much of that material is, as we have
explained, protected by the First Amendment, but it does not
follow that the material is harmless, or that its proliferation
is good for society.
The act of condemnation, of course, is itself central to
419
(f
what the First Amendment is all about. Just as speaking Out
against government has long been part of what citizens are both
entitled and indeed encouraged to do, so too is speaking out on
matters of concern not directly related to the functioning Of
government. Expressing a point of view about sexually explicit
materials in general, or about particular sexually explicit
materials, is plainly the very kind of activity that First
Amendment properly protects. To the extent that citizens have
concerns about the kinds of sexually explicit material that are
available in contemporary America, they should not only recognize
that the First Amendment protects and encourages their right to
express these concerns loudly and often, but should as well
appreciate the fact that in many aspects of our lives to keep
quiet is to approve. Moreover, communities are made by what
people say and do, by what people approve and what people
disapprove, and by what people tolerate and what people reject.
For communities, and for the sense of community, community
acceptance and community condemnation are central to what a
community is.
Although we are concerned here primarily with protest or
related action against materials that citizens find harmful,
immoral, or objectionable, we do not wish to discount the value
of protest directed at government when citizens wish government
to do something it is not currently doing. Protest and related
activities are entirely appropriate if citizens are dissatisfied
with the work of their law enforcement officials, their
420
prosecutors, their administrators and executives, their
legislators and their judges. It is certainly appropriate for
citizens to protest the work of this Commission. We encourage
citizens to be actively involved in what their government is
doing, and if they feel that the government is not doing enough,
or is doing too much, with respect to prosecution of prosecutable
materials, then they should make their wishes known to those who
have the power to make changes.
8.2 The Methods of Protest
It should be apparent from the foregoing that citizens need
not feel hesitant in condemning that which they feel is worthy of
condemnation. Moreover, they need feel no hesitation in taking
advantage of the rights they have under the First Amendment to
protest in more visible or organized form. They may, of course,
form or join organizations designed expressly for the purposes of
articulating a particular point of view. They may protest or
picket or march or demonstrate in places where they are likely to
attract attention, and where they will have the opportunity to
persuade others of their views. The right of citizens to protest
is of course coextensive with the right of publishers to publish,
and we do not suggest that citizens not exercise their First
Amendment rights as vigorously and as frequently as do those who
publish their views in print, on film or tape, or over the
airwaves.
Of some special relevance in this context is the practice of
protesting near the premises of establishments offering material
421
that some citizens may find dangerous or offensive or immoral.
We recognize that such forms of protest may at times
discourage patrons who would otherwise enter such establishments
from proceeding, but that, we believe, is part of the way in
which free speech operates in the United states. In the context
of a labor dispute, picket lines frequently have this very kind
of discouraging effect, and the Supreme Court, even outside of
the labor context, has recognized the free speech rights of those
people who would protest on public streets or sidewalks but in
close proximity to business establishments whose business
practices they find objectionable.80 por citizens to protest in
the vicinity of a pornography outlet is fully within the free
speech traditions of this country, and so too is protest in the
vicinity of an establishment only some of whose wares the
protesters would find objectionable. If people feel that
businesses, whether a local store or a multinational corporation,
are behaving improperly, it is their right and their obligation
to make those views known.
Somewhat related to on-site or near-site protesting, in
terms of coercive force, is the boycott, in which a group of
citizens may refuse to patronize an establishment offering
certain kinds of magazines, or tapes, or other material, and may
also urge others to take similar action. At times the boycott
80 in fact, in Organization 'for a Better Austin v.
Keefe, 402 U.S. 415(1971), the Court prohibited an injunction
directed against people who were passing out leaflets in the
neighborhood of the residence of a person whose business
practices they found objectionable.
422
may take the form of action against an advertiser, where people
may express their views about corporate responsibility by
refusing to buy certain products as long as the producer of those
products advertises in certain magazines, or on certain
television shows. Boycotts attempt to take advantage in
organized fashion of the needs for business establishments to
have customers. They are thus attempts to mobilize consumer
power towards controlling the products and services made
available in the market.
In a number of purely business contexts, an organized
boycott would violate the antitrust laws, whose aim, in part, is
to encourage competition by discouraging some forms of organized
economic pressure. But consumer boycotts for social and
political aims have been determined by the Supreme Court to be
protected by the First Amendment, * and thus we do not hesitate
to note that a consumer boycott, premised on the view that
corporations can often do as much, for good or for evil, as
government, is well within the First Amendment-protected methods
of protesting business activities that citizens may find
objectionable.
8.3 The Risks of Excess
In pointing out the citizen's undoubted right to protest
written, printed, or photographic material that he or she finds
harmful, objectionable, immoral, or offensive, we are not so
81 NAACP v. Claiborne Hardware Co., 458 U.S. 886
(1982).
423
naive as to ignore that this right to protest may often be
carried to excess. Citizens who protest, or boycott, or picket,
or distribute leaflets, or march, or demonstrate are
unquestionably exercising their First Amendment rights. But just
like the First Amendment rights of some of those who deal in
sexually explicit materials, these rights may be exercised
harmfully or unwisely.
Thus, we have no doubt that a citizen has the right to
refuse to shop at a store that sells the National Review or The
New Republic because the citizen disagrees with the political
point of view of one of those magazines. And we have no doubt
that a citizen who urges his friends and others to do the same is
still well within what the First Amendment does and ought to
protect. But we also have no doubt that the citizen who
exercises his First Amendment rights in this manner could be
criticized by most people, and most of us would strongly support
that criticism. Apart from the question of governmental
interference, there are positive values associated with the free
flow of ideas and information, and society is the loser when that
process is unduly stifled. Just as with the free speech rights
of those who trade in sexually explicit materials, the free
speech rights to protest objectionable material may be exercised
in a lawful but societally harmful manner.
Thus we have little doubt that in exercising their First
Amendment rights to protest material that they find
objectionable, some people will protest material that quite
424
simply ought to be encouraged freely to circulate in this
society. We also have little doubt that protest activity may
very well inhibit this process of circulation. If large numbers
of people refused to patronize bookstores that sold Sinclair
Lewis' Elmer Gantry because it dealt with sexual immorality by a
minister, or if people picketed the residences of booksellers who
sold James Joyce's Ulysses because of its sexual themes and
language, this society would, quite simply, be the worse for it.
These examples are of course extreme, but the fears that many
arguably valuable but sexually frank works of fiction and
non-fiction will be stifled not by governmental action but by
Asocial pressure is real.
We have no solutions to this dilemma. We believe it fully
appropriate for citizens to protest against material they find
objectionable, and we know that at times this protest activity
will go too far, to the detriment of all of us. This society is
a free society not only because of the First Amendment, but also
because of generally held attitudes of tolerance. We encourage
people to object to the objectionable, but we think it even more
important that they tolerate the tolerable.
•8.4 The Importance of Education and Discussion
By focusing on protests, boycotts, and related activities,
we have here emphasized conduct that is largely negative and
reactive. Although we see a central place for communicative
activities that are negative and reactive, we do not wish to
suggest that this is all that can or should be done. In
425"
r
particular, we note the extent to which education is ultimately
central to much that we have been discussing. In the broadest
sense, not just with respect to the education that takes place in
the schools, and with respect to values and awareness as well as
to facts, education is the real solution to the problem of
pornography.
We have identified harms that seem to be caused by certain
sexually explicit material, but many of those harms are the
result of how images affect attitudes, and of how images affect
behavior. But the ability of an image to affect behavior is not
only a function of what that image is saying or doing, but of
what other images are part of the array of stimuli received by an
individual. We recognize the extent to which an attraction to
one sexual stimulus rather than another may significantly be
caused by individual characteristics formed at a relatively early
age, in many cases before exposure to any highly sexually
explicit material. But we recognize as well that if images can
cause certain forms of behavior, as we believe they can and as
the evidence shows, then images ought as well to be able to
prevent behavior, or cause different behavior.
The images that might cause different behavior can, of
course, come from numerous sources. So can the messages that
would lead people in even greater numbers to reject the view that
sexual violence is sometimes appropriate, to reject the view that
women enjoy being physically coerced into sex, to reject the view
that women's primary sexual role is to satisfy the desires of
426
men, to reject the view that sex ought to be an essentially
public act, and to reject the view that sex outside of love,
marriage, commitment, or affection is something to be sought.
These positive messages might address all of these underlying
attitudes. They might also address pornography more explicitly,
discussing its dangers to individuals and to society. The
messages might come from family members, or teachers, or
religious leaders, or political figures, or the messages might
come, perhaps especially, from the mass media.
Ultimately, a significant part of- the concern with
pornography is a concern about negative messages. One way to
deal with negative messages is to prevent them from being sent,
or to prevent them from being reinforced once they are sent.
Action against harmful pornography, whether by law or by social
action or by individual condemnation, is in the final analysis a
negative approach. It is an attempt to eliminate a harmful
message, and such attempts are freguently appropriate. But they
cannot succeed by themselves. These essentially negative and
reactive efforts must be accompanied by positive efforts. If
there are certain attitudes that people ought not to have, then
what attitudes ought people to have, and how can those attitudes
best be inculcated? What will be taught in the schools? What
forms of behavior will be publicly admired? What will the mass
media encourage? What will we expect of each other in
interpersonal behavior? The list goes on and on.
We commenced this Report by noting that we were a Commission
427
appointed by the Attorney General of the United States, and
therefore felt a special responsibility to concentrate our
efforts towards law and law enforcement. It is appropriate to
conclude, however, with this recognition of. the limits of law and
the limits of law enforcement. A wide range of behaviors, from
telling the truth to our friends to eating with knives and forks
rather than fingers, is channeled quite effectively without
significant legal involvement. And another wide range of
behaviors, from jaywalking to income tax evasion, persists even
in the face of attempts by law to restrict it. To know what the
law can do, we must appreciate what the law cannot do. We
believe that in many respects the law can serve important
controlling and symbolic purposes in restricting the
proliferation of certain sexually explicit material that we
believe harmful to individuals and to society. But we know as
well that to rely entirely or excessively on law is simply a
mistake. Law may influence belief, but it also operates in the
shadow of belief. And beliefs, of course, are often a product of
deeply held moral, ethical, and spiritual commitments. That
foundation of values is the glue that holds a democracy, which
functions according to the will of the majority, together.
Government can and must protect the interests of the minority, to
be sure. But law enforcement cannot entirely compensate for or
regulate the consequences of bad decisions if the majority
consistently chooses evil or error. If there are attitudes that
need changing and behaviors that need restricting, then law has a
*
! I
role to play. But if we expect law to do too much, we will
discover only too late that few of our problems have been solved.
428 429
PART THREE
431
o
Chapter 1
Introduction
Based upon their collective observations, and the
information provided through testimony, the following
recommendations are advanced by this Commission.
I. RECOMMENDATIONS FOR THE JUSTICE SYSTEM AND LAW
ENFORCEMENT AGENCIES
A. RECOMMENDATIONS FOR CHANGES IN FEDERAL LAV!
1. CONGRESS SHOULD ENACT A FORFEITURE
STATUTE TO REACH THE PROCEEDS AND
INSTRUMENTS OF ANY OFFENSE COMMITTED
IN VIOLATION OF THE FEDERAL OBSCENITY
LAWS.
2. CONGRESS SHOULD AMEND THE FEDERAL
OBSCENITY LAWS TO ELIMINATE THE
NECESSITY OF PROVING TRANSPORTATION
IN INTERSTATE COMMERCE. A STATUTE
SHOULD BE ENACTED TO ONLY REQUIRE
PROOF THAT THE DISTRIBUTION OF THE
OBSCENE MATERIAL "AFFECTS" INTERSTATE
COMMERCE.
3- CONGRESS SHOULD ENACT LEGISLATION
433
MAKING IT AN UNFAIR BUSINESS PRACTICE
AND AN UNFAIR LABOR PRACTICE FOR ANY
EMPLOYER TO HIRE INDIVIDUALS TO
PARTICIPATE IN COMMERCIAL SEXUAL
PERFORMANCES.
4. CONGRESS SHOULD AMEND THE MANN
ACT TO MAKE ITS PROVISIONS GENDER
NEUTRAL.
5. CONGRESS SHOULD AMEND TITLE 18
OF THE UNITED STATES CODE TO SPECIFICALLY
PROSCRIBE OBSCENE CABLE TELEVISION
PROGRAMMING.
6. CONGRESS SHOULD ENACT LEGISLATION
TO PROHIBIT THE TRANSMISSION OF
OBSCENE MATERIAL THROUGH THE TELEPHONE
OR SIMILAR COMMON CARRIER.
B. RECOMMENDATIONS FOR CHANGES IN STATE LAW
7. STATE LEGISLATURES SHOULD AMEND,
IF NECESSARY, OBSCENITY STATUTES CONTAINING
THE DEFINITIONAL REQUIREMENT THAT
MATERIAL BE "UTTERLY WITHOUT REDEEMING
SOCIAL VALUE" IN ORDER TO BE OBSCENE
TO CONFORM WITH THE CURRENT STANDARD
ENUNCIATED BY THE UNITED STATES
SUPREME COURT IN MILLER V CALIFORNIA.
8. STATE LEGISLATURES SHOULD AMEND,
IF NECESSARY, OBSCENITY STATUTES TO
ELIMINATE MISDEMEANOR STATUS FOR
SECOND OFFENSES AND MAKE ANY SECOND
OFFENSE PUNISHABLE AS A FELONY.
9. STATE LEGISLATURES SHOULD ENACT,
IF NECESSARY, FORFEITURE PROVISIONS
AS PART OF THE STATE OBSCENITY LAWS.
10. STATE LEGISLATURES SHOULD ENACT
A RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS(RICO) STATUTE WHICH
HAS OBSCENITY AS A PREDICATE ACT.
C. RECOMMENDATIONS FOR THE UNITED STATES DEPARTMENT OF JUSTICE
11. THE ATTORNEY GENERAL SHOULD
DIRECT THE UNITED STATES ATTORNEYS
TO EXAMINE THE OBSCENITY PROBLEM
IN THEIR RESPECTIVE DISTRICTS,
434 435
IDENTIFY OFFENDERS, INITIATE
INVESTIGATIONS, AND COMMENCE
PROSECUTION WITHOUT FURTHER DELAY.
12. THE ATTORNEY GENERAL SHOULD APPOINT
A HIGH RANKING OFFICIAL FROM THE
DEPARTMENT OF JUSTICE TO OVERSEE THE
CREATION AND OPERATION OF AN OBSCENITY
TASK FORCE. THE TASK FORCE SHOULD
CONSIST OF SPECIAL ASSISTANT UNITED
STATES ATTORNEYS AND FEDERAL AGENTS
WHO WILL ASSIST UNITED STATES ATTORNEYS
IN THE PROSECUTION AND INVESTIGATION
OF OBSCENITY CASES.
13. THE DEPARTMENT OF JUSTICE SHOULD
INITIATE THE CREATION OF AN OBSCENITY
LAW ENFORCEMENT DATA BASE WHICH WOULD
SERVE AS A RESOURCE NETWORK FOR
FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT
AGENCIES.
14. THE UNITED STATES ATTORNEYS SHOULD
USE LAW ENFORCEMENT COORDINATING
COMMITTEES TO COORDINATE ENFORCEMENT
OF THE OBSCENITY LAWS AND TO MAINTAIN
436
SURVEILLANCE OF THE NATURE AND EXTENT
OF THE OBSCENITY PROBLEM WITHIN EACH
DISTRICT.
15. THE DEPARTMENT OF JUSTICE AND
UNITED STATES ATTORNEYS SHOULD USE
THE RACKETEER INFLUENCED CORRUPT
ORGANIZATION ACT (RICO) AS A MEANS
OF PROSECUTING MAJOR PRODUCERS AND
DISTRIBUTORS OF OBSCENE MATERIAL.
16. THE DEPARTMENT OF JUSTICE SHOULD
CONTINUE TO PROVIDE THE UNITED STATES
ATTORNEYS WITH TRAINING PROGRAMS ON LEGAL
AND PROCEDURAL MATTERS RELATED TO
OBSCENITY CASES AND ALSO SHOULD MAKE
SUCH TRAINING AVAILABLE TO STATE AND
LOCAL PROSECUTORS.
17. THE UNITED STATES ATTORNEYS SHOULD
USE ALL AVAILABLE FEDERAL STATUTES
TO PROSECUTE OBSCENITY LAW VIOLATIONS
INVOLVING CABLE AND SATELLITE TELEVISION.
"• RECOMMENDATIONS FOR STATE AND LOCAL PROSECUTORS
437
18. STATE AND LOCAL PROSECUTORS SHOULD
PROSECUTE PRODUCERS OF OBSCENE MATERIAL
UNDER EXISTING LAWS INCLUDING THOSE
PROHIBITING PANDERING AND OTHER
UNDERLYING SEXUAL OFFENSES.
19. STATE AND LOCAL PROSECUTORS
SHOULD EXAMINE THE OBSCENITY PROBLEM
IN THEIR JURISDICTION, IDENTIFY
OFFENDERS, INITIATE INVESTIGATIONS,
AND COMMENCE PROSECUTION WITHOUT
FURTHER DELAY.
20. STATE AND LOCAL PROSECUTORS
SHOULD ALLOCATE SUFFICIENT RESOURCES
TO PROSECUTE OBSCENITY CASES.
21. STATE AND LOCAL PROSECUTORS
SHOULD USE THE BANKRUPTCY LAWS TO
COLLECT UNPAID FINES.
22. STATE AND LOCAL PROSECUTORS SHOULD
USE ALL AVAILABLE STATUTES TO PROSECUTE
OBSCENITY VIOLATIONS INVOLVING CABLE
AND SATELLITE TELEVISION.
23. STATE AND LOCAL PROSECUTORS
SHOULD ENFORCE EXISTING CORPORATE
LAWS TO PREVENT THE FORMATION, USE
AND ABUSE OF SHELL CORPORATIONS
WHICH SERVE AS A SHELTER FOR
PRODUCERS AND DISTRIBUTORS OF OBSCENE
MATERIAL.
24. STATE AND LOCAL PROSECUTORS
SHOULD ENFORCE THE ALCOHOLIC BEVERAGE
CONTROL LAWS THAT PROHIBIT OBSCENITY
ON LICENSED PREMISES.
25. GOVERNMENT ATTORNEYS, INCLUDING
STATE AND LOCAL PROSECUTORS, SHOULD
ENFORCE ALL J.EGAL REMEDIES AUTHORIZED
BY STATUTE.
E. RECOMMENDATIONS FOR FEDERAL LAW ENFORCEMENT AGENCIES
26. FEDERAL LAW ENFORCEMENT AGENCIES
SHOULD CONDUCT ACTIVE AND THOROUGH
INVESTIGATIONS OF ALL SIGNIFICANT
VIOLATIONS OF THE OBSCENITY LAWS
WITH INTERSTATE DIMENSIONS.
438 439
27. THE INTERNAL REVENUE SERVICE
SHOULD AGGRESSIVELY INVESTIGATE
VIOLATIONS OF THE TAX LAWS COMMITTED
BY PRODUCERS AND DISTRIBUTORS OF
OBSCENE MATERIAL.
F. RECOMMENDATIONS FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES
28. STATE AND LOCAL LAW ENFORCEMENT
AGENCIES SHOULD PROVIDE THE MOST
THOROUGH AND UP-TO-DATE TRAINING FOR
INVESTIGATORS INVOLVED IN ENFORCING
THE OBSCENITY LAWS.
29. STATE AND LOCAL LAW ENFORCEMENT
AGENCIES SHOULD ALLOCATE SUFFICIENT
PERSONNEL TO CONDUCT INTENSIVE AND
THOROUGH INVESTIGATIONS OF ANY
VIOLATIONS OF THE OBSCENITY LAWS.
30. STATE AND LOCAL LAW ENFORCEMENT
OFFICERS SHOULD TAKE AN ACTIVE ROLE
IN THE LAW ENFORCEMENT COORDINATING
COMMITTEES.
31. STATE AND LOCAL REVENUE AUTHORITIES
MUST INSURE TAXES ARE COLLECTED FROM
BUSINESSES DEALING IN OBSCENE
MATERIALS.
32. STATE AND LOCAL PUBLIC HEALTH
AUTHORITIES SHOULD INVESTIGATE
CONDITIONS WITHIN "ADULTS ONLY"
PORNOGRAPHIC OUTLETS AND ARCADES
AND ENFORCE THE LAWS AGAINST ANY
HEALTH VIOLATIONS FOUND ON THOSE
PREMISES.
G. RECOMMENDATION FOR THE JUDICIARY
33. JUDGES SHOULD IMPOSE SUBSTANTIAL
PERIODS OF INCARCERATION FOR PERSONS
WHO ARE REPEATEDLY CONVICTED OF OBSCENITY
LAW VIOLATIONS AND WHEN APPROPRIATE
SHOULD ORDER PAYMENT OF RESTITUTION
TO IDENTIFIED VICTIMS AS PART OF THE
SENTENCE.
H. RECOMMENDATIONS FOR THE FEDERAL COMMUNICATIONS COMMISSION
440 441
34. THE FEDERAL COMMUNICATIONS
COMMISSION SHOULD USE ITS FULL
REGULATORY POWERS AND IMPOSE APPROPRIATE
SANCTIONS AGAINST PROVIDERS OF
OBSCENE DIAL-A-PORN TELEPHONE
SERVICES.
35. THE FEDERAL COMMUNICATIONS
COMMISSION SHOULD USE ITS FULL
REGULATORY POWERS AND IMPOSE
APPROPRIATE SANCTIONS AGAINST
CABLE AND SATELLITE TELEVISION PROGRAMMERS
WHO TRANSMIT OBSCENE PROGRAMS.
I. RECOMMENDATION FOR OTHER FEDERAL ORGANIZATIONS
36. THE PRESIDENT'S COMMISSION ON
UNIFORM SENTENCING SHOULD CONSIDER
A PROVISION FOR A MINIMUM OF ONE
YEAR IMPRISONMENT FOR ANY SECOND OR
SUBSEQUENT VIOLATION OF FEDERAL
LAW INVOLVING OBSCENE MATERIAL THAT
DEPICTS ADULTS.
II. RECOMMENDATIONS FOR THE REGULATION OF CHILD PORNOGRAPHY
37. CONGRESS SHOULD ENACT LEGISLATION
REQUIRING PRODUCERS, RETAILERS, OR
DISTRIBUTORS OF SEXUALLY EXPLICIT
VISUAL DEPICTIONS TO MAINTAIN RECORDS
CONTAINING CONSENT FORMS AND PROOF OF
PERFORMERS' AGES.
38. CONGRESS SHOULD ENACT LEGISLATION
PROHIBITING PRODUCERS OF CERTAIN
SEXUALLY EXPLICIT VISUAL DEPICTIONS
FROM USING PERFORMERS UNDER THE
AGE OF TWENTY-ONE.
39. CONGRESS SHOULD ENACT LEGISLATION
TO PROHIBIT THE EXCHANGE OF INFORMATION
CONCERNING, CHILD PORNOGRAPHY OR
CHILDREN TO BE USED IN .CHILD PORNOGRAPHY
THROUGH COMPUTER NETWORKS.
40. CONGRESS SHOULD AMEND THE CHILD
PROTECTION ACT FORFEITURE SECTION TO
INCLUDE A PROVISIOn WHICH AUTHORIZES
THE POSTAL INSPECTION SERVICE TO
CONDUCT FORFEITURE ACTIONS.
41. CONGRESS SHOULD AMEND 18 U.S.C.
442 443
158-315 Vol. 1, O - 86 - 15
S2255 TO DEFINE THE TERM "VISUAL
DEPICTION" AND INCLUDE UNDEVELOPED
FILM IN THAT DEFINITION.
42. CONGRESS SHOULD ENACT LEGISLATION
PROVIDING FINANCIAL INCENTIVES
FOR THE STATES TO INITIATE TASK
FORCES ON CHILD PORNOGRAPHY AND RELATED
CASES.
43. CONGRESS SHOULD ENACT LEGISLATION
TO MAKE THE ACTS OF CHILD SELLING OR
CHILD PURCHASING, FOR THE PRODUCTION
OF SEXUALLY EXPLICIT VISUAL DEPICTIONS,
A FELONY.
B. RECOMMENDATIONS FOR STATE LEGISLATION
44. STATE LEGISLATURES SHOULD
AMEND, IF NECESSARY, CHILD PORNOGRAPHY
STATUTES TO INCLUDE FORFEITURE
PROVISIONS.
45. STATE LEGISLATURES SHOULD AMEND
LAWS; WHERE NECESSARY, TO MAKE THE
KNOWING POSSESSION OF CHILD PORNOGRAPHY
A FELONY.
46. STATE LEGISLATURES SHOULD AMEND,
IF NECESSARY, LAWS MAKING THE
SEXUAL ABUSE OF CHILDREN THROUGH
THE PRODUCTION OF SEXUALLY EXPLICIT
VISUAL DEPICTIONS, A FELONY.
47. STATE LEGISLATURES SHOULD ENACT
LEGISLATION, IF NECESSARY, TO MAKE
THE CONSPIRACY TO PRODUCE, DISTRIBUTE,
GIVE AWAY OR EXHIBIT ANY SEXUALLY EXPLICIT
VISUAL DEPICTIONS OF CHILDREN OR
EXCHANGE OR DELIVER CHILDREN FOR SUCH
PURPOSE A FELONY.
48. STATE LEGISLATURES SHOULD AMEND,
IF NECESSARY, CHILD PORNOGRAPHY
LAWS TO CREATE AN OFFENSE FOR ADVERTISING,
SELLING, PURCHASING, BARTERING,
EXCHANGING, GIVING OR RECEIVING
INFORMATION AS TO WHERE SEXUALLY
EXPLICIT MATERIALS DEPICTING CHILDREN
CAN BE FOUND.
49. STATE LEGISLATURES SHOULD ENACT
444 445
OR AMEND LEGISLATION, WHERE NECESSARY,
TO MAKE CHILD SELLING OR CHILD PURCHASING
FOR THE PRODUCTION OF SEXUALLY
EXPLICIT VISUAL DEPICTIONS, A
FELONY.
50. STATE LEGISLATURES SHOULD AMEND
LAWS, WHERE NECESSARY, TO MAKE
CHILD PORNOGRAPHY IN THE POSSESSION
OF AN ALLEGED CHILD SEXUAL ABUSER
WHICH DEPICTS THAT PERSON ENGAGED IN
SEXUAL ACTS WITH A MINOR SUFFICIENT
EVIDENCE OF CHILD MOLESTATION FOR
USE IN PROSECUTING THAT INDIVIDUAL
WHETHER OR NOT THE CHILD INVOLVED
IS FOUND OR IS ABLE TO TESTIFY.
51. STATE LEGISLATURES SHOULD AMEND
LAWS, IF NECESSARY, TO ELIMINATE THE
REQUIREMENT THAT THE PROSECUTION
IDENTIFY OR PRODUCE TESTIMONY FROM
THE CHILD WHO IS DEPICTED IF PROOF
OF AGE CAN OTHERWISE BE ESTABLISHED.
52. STATE LEGISLATURES SHOULD ENACT
OR AMEND LEGISLATION, IF NECESSARY,
WHICH REQUIRES PHOTO FINISHING
LABORATORIES TO REPORT SUSPECTED
CHILD PORNOGRAPHY.
53. STATE LEGISLATURES SHOULD
AMEND OR ENACT LEGISLATION, IF NECESSARY,
TO PERMIT JUDGES TO IMPOSE A SENTENCE
OF LIFETIME PROBATION FOR CONVICTED
CHILD PORNOGRAPHERS AND RELATED
OFFENDERS.
C. RECOMMENDATIONS FOR FEDERAL LAW ENFORCEMENT AGENCIES
54. THE STATE DEPARTMENT, THE UNITED
STATES DEPARTMENT OF JUSTICE, THE
UNITED STATES CUSTOMS SERVICE, THE
UNITED STATES POSTAL INSPECTION
SERVICE, THE FEDERAL BUREAU OF
INVESTIGATION AND OTHER FEDERAL
AGENCIES SHOULD CONTINUE TO WORK WITH
OTHER NATIONS TO DETECT AND INTERCEPT
CHILD PORNOGRAPHY.
55. THE UNITED STATES DEPARTMENT OF
JUSTICE SHOULD DIRECT THE LAW
ENFORCEMENT COORDINATING COMMITTEES
446 447
TO FORM TASK FORCES OF DEDICATED
AND EXPERIENCED INVESTIGATORS AND
PROSECUTORS IN MAJOR REGIONS TO
COMBAT CHILD PORNOGRAPHY.
56. THE DEPARTMENT OF JUSTICE OR
OTHER APPROPRIATE FEDERAL AGENCY
SHOULD INITIATE THE CREATION OF A
DATA BASE WHICH WOULD SERVE AS A
RESOURCE NETWORK FOR FEDERAL, STATE
AND LOCAL LAW ENFORCEMENT AGENCIES
TO SEND AND OBTAIN INFORMATION
REGARDING CHILD PORNOGRAPHY
TRAFFICKING.
57. FEDERAL LAW ENFORCEMENT AGENCIES
SHOULD DEVELOP AND MAINTAIN CONTINUOUS
TRAINING PROGRAMS FOR AGENTS IN
TECHNIQUES OF CHILD PORNOGRAPHY
INVESTIGATIONS.
58. FEDERAL LAW ENFORCEMENT AGENCIES
SHOULD HAVE PERSONNEL TRAINED IN
CHILD PORNOGRAPHY INVESTIGATION AND
WHEN POSSIBLE THEY SHOULD FORM
SPECIALIZED UNITS FOR CHILD SEXUAL
ABUSE AND CHILD PORNOGRAPHY INVESTIGATION.
59. FEDERAL LAW ENFORCEMENT AGENCIES
SHOULD USE SEARCH WARRANTS IN CHILD
PORNOGRAPHY AND RELATED CASES EXPEDITIOUSLY
AS A MEANS OF GATHERING EVIDENCE AND
FURTHERING OVERALL INVESTIGATION
EFFORTS IN THE CHILD PORNOGRAPHY AREA.
60. FEDERAL LAW ENFORCEMENT AGENTS
SHOULD ASK THE CHILD VICTIM IN
REPORTED CHILD SEXUAL ABUSE CASES
IF PHOTOGRAPHS OR FILMS WERE MADE OF
HIM OR HER DURING THE COURSE OF SEXUAL
ABUSE.
61. THE DEPARTMENT OF JUSTICE SHOULD
APPOINT A NATIONAL TASK FORCE TO CONDUCT
A STUDY OF CASES THROUGHOUT THE
UNITED STATES REFLECTING APPARENT
PATTERNS OF MULTI-VICTIM, MULTI-PERPETRATOR
CHILD SEXUAL EXPLOITATION.
D. RECOMMENDATIONS FOR STATE AND LOCAL LAVJ ENFORCEMENT AGENCIES
62. LOCAL LAW ENFORCEMENT AGENCIES
448
449
(V O
SHOULD PARTICIPATE IN THE LAW ENFORCEMENT
COORDINATING COMMITTEES TO FORM REGIONAL
TASK FORCES OF DEDICATED AND EXPERIENCED
INVESTIGATORS AND PROSECUTORS TO COMBAT
CHILD PORNOGRAPHY.
63. STATE AND LOCAL LAW ENFORCEMENT
AGENCIES SHOULD DEVELOP AND MAINTAIN
CONTINUOUS TRAINING PROGRAMS FOR
OFFICERS IN IDENTIFICATION, APPREHENSION,
AND UNDERCOVER TECHNIQUES OF CHILD
PORNOGRAPHY INVESTIGATIONS.
64. STATE AND LOCAL LAW ENFORCEMENT
AGENCIES SHOULD PARTICIPATE IN A
NATIONAL DATA BASE ESTABLISHED TO
SERVE AS A CENTER FOR STATE AND LOCAL
LAW ENFORCEMENT AGENCIES TO SUBMIT
AND RECEIVE INFORMATION REGARDING
CHILD PORNOGRAPHY TRAFFICKING.
65. STATE AND LOCAL LAW ENFORCEMENT
AGENCIES SHOULD HAVE PERSONNEL
TRAINED IN CHILD PORNOGRAPHY
INVESTIGATION AND WHEN POSSIBLE THEY
SHOULD FORM SPECIALIZED UNITS FOR
CHILD SEXUAL ABUSE AND CHILD PORNOGRAPHY
INVESTIGATIONS.
66. STATE AND LOCAL LAW ENFORCEMENT
AGENCIES SHOULD USE SEARCH WARRANTS
IN CHILD SEXUAL EXPLOITATION CASES
EXPEDITIOUSLY AS A MEANS OF GATHERING EVIDENCE
AND FURTHERING OVERALL INVESTIGATION
EFFORT IN THE CHILD PORNOGRAPHY AREA.
67. STATE AND LOCAL LAW ENFORCEMENT
OFFICERS SHOULD ASK THE CHILD VICTIM
IN REPORTED CHILD SEXUAL ABUSE CASES
IF PHOTOGRAPHS OR FILMS WERE MADE OF
HIM OR HER DURING THE COURSE OF SEXUAL
ABUSE.
E. RECOMMENDATIONS FOR PROSECUTORS
68. THE UNITED STATES DEPARTMENT OF
JUSTICE SHOULD DIRECT UNITED STATES
ATTORNEYS TO PARTICIPATE IN LAW
ENFORCEMENT COORDINATING COMMITTEE
TASK FORCES TO COMBAT CHILD
PORNOGRAPHY.
450 451
69. FEDERAL, STATE, AND LOCAL
PROSECUTORS SHOULD PARTICIPATE IN
A TASK FORCE OF MULTI-DISCIPLINARY
PRACTITIONERS AND DEVELOP A PROTOCOL
FOR COURTROOM PROCEDURES FOR CHILD
WITNESSES THAT WOULD MEET CONSTITUTIONAL
STANDARDS.
70. PROSECUTORS SHOULD ASSIST STATE,
LOCAL, AND FEDERAL LAV} ENFORCEMENT
AGENCIES TO USE SEARCH WARRANTS IN
POTENTIAL CHILD PORNOGRAPHY AND
RELATED CHILD SEXUAL ABUSE CASES.
71. STATE, LOCAL, AND FEDERAL PROSECUTORS
SHOULD ASK THE CHILD VICTIM IN REPORTED
CHILD SEXUAL ABUSE CASES IF PHOTOGRAPHS
OR FILMS WERE MADE OF HIM OR HER
DURING THE COURSE OF SEXUAL ABUSE.
72. STATE AND LOCAL PROSECUTORS
SHOULD USE THE VERTICAL PROSECUTION
MODEL IN CHILD PORNOGRAPHY AND RELATED
CASES.
F. RECOMMENDATIONS FOR THE JUDICIARY AND CORRECTIONAL FACILITIES
73. JUDGES AND PROBATION OFFICERS
SHOULD RECEIVE SPECIFIC EDUCATION
SO THEY MAY INVESTIGATE, EVALUATE,
SENTENCE AND SUPERVISE PERSONS
CONVICTED OF CHILD PORNOGRAPHY
AND RELATED CASES APPROPRIATELY.
74. JUDGES SHOULD IMPOSE APPROPRIATE
PERIODS OF INCARCERATION FOR CONVICTED
CHILD PORNOGRAPHERS AND RELATED
OFFENDERS.
75. JUDGES SHOULD USE, WHEN APPROPRIATE, A
SENTENCE OF LIFETIME PROBATION FOR
CONVICTED CHILD PORNOGRAPHERS.
76. PRE-SENTENCE REPORTS CONCERNING
INDIVIDUALS FOUND GUILTY OF VIOLATIONS
OF CHILD PORNOGRAPHY OR RELATED
LAWS SHOULD BE BASED ON SOURCES,
OF INFORMATION IN ADDITION TO THE
OFFENDER HIMSELF OR HERSELF.
77. STATE AND FEDERAL CORRECTIONAL
FACILITIES SHOULD RECOGNIZE THE
452 453
UNIQUE PROBLEMS OF CHILD PORNOGRAPHERS
AND RELATED OFFENDERS AND DESIGNATE
APPROPRIATE PROGRAMS REGARDING
THEIR INCARCERATION.
78. FEDERAL, STATE, AND LOCAL
JUDGES SHOULD PARTICIPATE IN A
TASK FORCE OF MULTI-DISCIPLINARY
PRACTITIONERS AND DEVELOP A PROTOCOL
FOR COURTROOM PROCEDURES FOR CHILD
WITNESSES THAT WOULD MEET CONSTITUTIONAL
STANDARDS.
G. RECOMMENDATIONS FOR PUBLIC AND PRIVATE SOCIAL SERVICE
AGENCIES
79. PUBLIC AND PRIVATE SOCIAL SERVICE
AGENCIES SHOULD PARTICIPATE IN A
TASK FORCE OF MULTI-DISCIPLINARY
PRACTITIONERS AND DEVELOP A PROTOCOL
FOR COURTROOM PROCEDURES FOR CHILD
WITNESSES THAT WOULD MEET CONSTITUTIONAL
STANDARDS.
80. SOCIAL, MENTAL HEALTH AND MEDICAL
SERVICES SHOULD BE PROVIDED FOR CHILD
PORNOGRAPHY VICTIMS.
81. LOCAL AGENCIES SHOULD ALLOCATE
VICTIMS OF CRIMES FUNDS TO PROVIDE
MONIES FOR PSYCHIATRIC EVALUATION AND
TREATMENT AND MEDICAL TREATMENT OF CHILD
PORNOGRAPHY VICTIMS AND THEIR FAMILIES.
82. CLINICAL EVALUATORS SHOULD BE
TRAINED TO ASSIST CHILDREN VICTIMIZED
THROUGH THE PRODUCTION AND USE OF
CHILD PORNOGRAPHY MORE EFFECTIVELY
AND TO BETTER UNDERSTAND ADULT
PSYCHOSEXUAL DISORDERS.
83. BEHAVIORAL SCIENTISTS SHOULD
CONDUCT RESEARCH TO DETERMINE THE
EFFECTS OF THE PRODUCTION OF CHILD
PORNOGRAPHY AND THE RELATED VICTIMIZATION
ON CHILDREN.
84. STATES SHOULD SUPPORT AGE
APPROPRIATE EDUCATION AND PREVENTION
PROGRAMS FOR PARENTS, TEACHERS AND
CHILDREN WITHIN PUBLIC AND PRIVATE
SCHOOL SYSTEMS TO PROTECT CHILDREN
454 455
FROM VICTIMIZATION BY CHILD PORNOGRAPHERS
AND CHILD SEXUAL ABUSERS.
85. A MULTI-MEDIA EDUCATIONAL
CAMPAIGN SHOULD BE DEVELOPED WHICH
INCREASES FAMILY AND COMMUNITY
AWARENESS REGARDING CHILD SEXUAL
EXPLOITATION THROUGH THE PRODUCTION
AND USE OF CHILD PORNOGRAPHY.
III. VICTIMIZATION
86. STATE, COUNTY AND MUNICIPAL
GOVERNMENTS SHOULD FACILITATE THE
DEVELOPMENT OF PUBLIC AND PRIVATE
RESOURCES FOR PERSONS WHO ARE CURRENTLY
INVOLVED IN THE PRODUCTION OR CONSUMPTION
OF PORNOGRAPHY AND WISH TO DISCONTINUE
THIS INVOLVEMENT AND FOR THOSE WHO
SUFFER MENTAL, PHYSICAL, EDUCATIONAL,
OR EMPLOYMENT DISABILITIES AS A
RESULT OF EXPOSURE OR PARTICIPATION IN
THE PRODUCTION OF PORNOGRAPHY.
IV. CIVIL RIGHTS
456
87. LEGISLATURES SHOULD CONDUCT HEARINGS
AND CONSIDER LEGISLATION RECOGNIZING
A CIVIL REMEDY FOR HARMS ATTRIBUTABLE
TO PORNOGRAPHY.
V. "ADULTS ONLY" PORNOGRAPHIC OUTLETS
88. "ADULTS ONLY" PORNOGRAPHIC
OUTLET PEEP SHOW FACILITIES
WHICH PROVIDE INDIVIDUAL BOOTHS
FOR VIEWING SHOULD NOT BE
EQUIPPED WITH DOORS. THE OCCUPANT
OF THE BOOTH SHOULD BE CLEARLY
VISIBLE TO ELIMINATE A HAVEN FOR
SEXUAL ACTIVITY.
89. HOLES ENABLING INTERBOOTH
SEXUAL CONTACT BETWEEN PATRONS
SHOULD BE PROHIBITED IN THE PEEP
SHOW BOOTHS.
90. BECAUSE OF THE APPARENT HEALTH
HAZARDS POSED BY THE OUTLET ENVIRONMENT
GENERALLY, AND THE PEEP SHOW BOOTH
IN PARTICULAR, SUCH FACILITIES SHOULD
BE SUBJECT TO PERIODIC INSPECTION
457
AND LICENSING BY APPROPRIATE
GOVERNMENTAL AGENTS.
91. ANY FORM OF INDECENT ACT BY OR
AMONG "ADULTS ONLY" PORNOGRAPHIC
OUTLET PATRONS SHOULD BE UNLAWFUL.
92. ACCESS TO "ADULTS ONLY" PORNOGRAPHIC
OUTLETS SHOULD BE LIMITED TO PERSONS
OVER THE AGE OF EIGHTEEN.
Chapter 2
Recommendations For The Justice System And
Law Enforcement Agencies
Introduction
The effective enforcement of obscenity laws necessarily
involves a concerted and responsive effort on the part of
each facet of the criminal justice system. Personnel
involved in each of these components must exhibit some
concern and appreciation for its effect of obscene materials
on a community. It is unrealistic to expect law enforcement
agencies to devote the same attention to obscenity law
violations that violent crimes command. This does not imply,
however, that obscenity violations should be accorded the
lowest priority, as it appears they are in many jurisdictions
today. In order to control the flow of materials falling
within the legal definition of obscenity, law enforcement
officials must develop a reputation for initiating
prosecution when violations are detected. Absent such
enforcement policy, there is little incentive to observe
existing obscenity laws. The consequences of a policy of
inaction are compounded by the lucrative nature of obscenity
trafficking.
The product of a successful investigation and vigorous
prosecution is rendered virtually worthless if courts fail to
appreciate the community significance of obscenity erases.
458 459
Deterrence should be a significant factor in fashioning an
appropriate sentence in these types of cases. Only public
awareness of firm but fair sentencing practices in obscenity
cases can foster an environment conducive to controlling the
flow of these materials.
An observation common to much of the testimony heard by
the Commission is that there has a gradual relaxation over
the last twenty years in the enforcement of obscenity laws.
This trend is undoubtedly attributable to a number of
factors, but its most conspicuous symptom was a dramatic loss
of prosecutor interest in these cases. This dampened
enthusiasm appears not to have been occasioned by any change
in principle or philosophy, but instead was spawned by the
judicial creation of insurmountable legal obstacles. In
Memoirs v. Massachusetts,82 the United States Supreme Court
enunciated the requirement that material must be "utterly
without redeeming social value to be obscene."3 This
additional element of proof marked a significant departure
from the pre-existing standard of proof. Prosecutors almost
uniformly found this burden to be virtually impossible to
satisfy84 an(j as a consequence de-emphasized the regulation
of obscene material.
82
83
.383 U.S. 413(1966).
Id. at 419.
84 Chicago Hearing, Vol. I, Paul McGeady, p. 81; See
also. Miller v. California, 413 U.S., 15,22(1973).
460
Seven years later, in Miller v. California,85 the
Supreme Cout'c refashioned the "social value" element of the
obscenity standard and considerably eased the prosecution's
burden of proof. However, according to a 1977 survey of
prosecutors, the Miller standard neither increased the number
of obscenity prosecutions nor the conviction rate
nationally.8" The number of jurisdictions actually
prosecuting obscenity violations declined while obscene
materials became more readily available.87 it is therefore
reasonable to conclude that Memoirs v. Massachusetts was only
one of a number of factors contributing to the decrease in
obscenity prosecutions.
Since 1973, however, the nature and extent of
pornography in the United States has changed dramatically.
The materials that are available today are more sexually
explicit and portray more violence than those available
before 1970. The production, distribution and sale of
pornography has become a large, well-organized and highly
profitable industry.88 The growth of the pornography
industry has been facilitated in large measure by inadequate
85 413 U.S. 15(1973).
86 An Empirical Inquiry Into the Effects of Miller v.
California on the Control of Obscenity, 52 N.Y.U. ~. Rev.
810, 928(1977).
87 Id.
88 See, the discussions of Production, Distribution
and Technology of Sexually Explicit Materials found in Part
Pour of this Report.
461
law enforcement and prosecutorial resources in this area,
and the meting out of minimal punishment to those who have
been convicted of violating the obscenity laws. This
relaxation of public policy has been further ingrained by
the absence of any firm expression of citizen concern.
All individuals and agencies responsible for vice
enforcement must be committed to giving obscenity violations
adequate priority. As with any law enforcement objective,
the agencies must use various criteria in determining the
degree of attention the problem merits. This process
requires an evaluation of the scope of the problem, the cost
to the locality both in safety and economic terms and the
public demand for increased enforcement efforts. The
enforcement of obscenity laws must obviously be balanced
against other law enforcement priorities. In some
instances, this evaluation may result in a temporary
realignment in enforcement attention, but most agencies will
be able to effectively increase obscenity enforcement
without substantially detracting from other areas of
responsibility for significant periods of time.89 Once a
reputation for community intolerance is developed, official
need only perform periodic inspections.
"9 One witness before the Commission acknowledged the
possibility of a decrease in enforcement efforts in certain
areas of obscenity enforcement was given greater emphasis.
"I think there is a great deal of time spent on thefts, minor
thefts; and yes, they are important. But I think that
obscenity has more far-reaching effects on our culture and is
important." Miami Hearing, Vol. II, Barbara Hattemer, p. 96.
462
The law enforcement community should recognize fully
the magnitude of this multi-faceted problem and bring into
focus the means necessary to curtail it. Law enforcement
agencies must examine the nature of the pornography industry
within their respective jurisdictions and take steps to
address the situation. Federal, state and local agencies
need adequate manpower and the expertise of qualified
investigators to conduct thorough investigations of
obscenity law violations, especially those involving large
scale pornography operations. The use of forfeiture laws to
disgorge illicit profits is a potent prosecutorial tool.
The United States Department of Justice should provide
the leadership for a coordinated law enforcement effort
through the mandate of its highest ranking officials and its
ninety-four United States Attorneys. The Justice Department
is able to provide valuable training and assistance to state
and local prosecutors and law enforcement officials. The
policies and practices of the Department of Justice should
lend impetus to a national reassessment of the
prioritization of obscenity enforcement.
Congress and the state legislatures must examine
existing laws and enact the necessary changes to create an
effective and precise means of addressing the expansive
scope of the obscenity and pornography problem today.
Finally, when an individual is convicted of an
obscenity violation the sentencing judge must have accurate
463
c \
and comprehensive information about the defendant and the
underlying offense. Courts must impose sentences which are
appropriate to the dimensions and community impact of
obscenity violations. Courts should be mindful of the
deterrent effect that a sentence must serve to
counterbalance the financial incentive to continue the
distribution of these materials.
The recommendations that follow attempt to accomplish
the foregoing objectives.
Once an individual is charged with an obscenity
violation, a United States Attorney or local district
attorney should prosecute aggressively if the investigation
and bringing of charges are to have any effect. This
includes enforcing the existing laws and fully using other
remedies particularly those laws providing forfeitures that
could literally put. many pornographers out of business.
The United States Department of Justice must provide the
leadership for the overall law enforcement effort through the
work of its highest ranking officials and its ninety-four
United States Attorneys. The Justice Department is able to
provide valuable training and assistance to state and local
prosecutors and local police departments. Moreover it can
provide some of the impetus for legislative changes.
Congress and the state legislatures must examine
existing laws and enact the necessary changes to create an
effective and precise means of addressing the expansive
scope of the obscenity and pornography problem today.
Finally, when an individual is brought before the court
and is convicted, the sentencing judge must have accurate
and comprehensive information about the offender and the
offense. The courts must impose sentences -with the maximum
deterrent effect and cease imposing sentences which merely
increase the pornographer's cost of doing business.
The recommendations which follow attempt to accomplish
these objectives.
A. RECOMMENDATIONS FOR CHANGES IN FEDERAL LAW
RECOMMENDATION 1:
CONGRESS SHOULD ENACT A FORFEITURE STATUTE TO REACH THE
PROCEEDS AND INSTRUMENTS OF ANY OFFENSE COMMITTED UNDER THE
FEDERAL OBSCENITY LAWS.
The addition of civil and criminal forfeiture provisions
to the existing federal obscenity laws90 would greatly
enhance their deterrent effect. In addition to the penalties
already prescribed by statute, a defendant would be subject
to forfeiture of any profits derived from or property used in
committing the offense. The Child Protection Act of 198491
presently contains such forfeiture provisions pertaining to
90 See, 18 U.S.C. SS1461-1465 (1985).
91 18 U.S.C.A. S2251 (West Supp. 1982).
464
465
offenses involving child pornography.92
The addition of forfeiture provisions in the federal
obscenity statutes would have a profound effect on some of
the most egregious offenders, especially those who are
members of, associated with, or are influenced or controlled
by, organized crime families. The forfeiture provision
would affect those who profit by their illegal activity and
who have created criminal enterprises large enough to own or
lease real estate, fleets of motor vehicles, or other
valuable assets. The loss of such valuable property would
have a more significant deterrent effect than the mere
imposition of a fine or modest period of incarceration which
the offender may see as merely another "cost of doing
business."93 Forfeiture provisions would also aid law
enforcement efforts by providing the government with property
to be used in future undercover operations and perhaps even
provide sufficient assets to reimburse a significant portion
of investigative and prosecution costs.
According to the federal prosecutor in a series of
Miami, Florida, obscenity cases commonly known as MIPORN
where many of the defendants had tremendous assets scattered
throughout the United States, forfeitures would have made a
92 See, Recommendations for the Regulation of Child
Pornography, infra.
93 The precise items subject to forfeiture should be
determined by Congress with any Constitutional limitations
clearly recognized.
466
tremendous contribution toward underwriting the costs of the
government investigation.
Under current law even large scale and well-organized
distributors of obscene material that have been repeatedly
convicted retain their massive profits which they often use
to finance other unlawful activity.95 It is estimated that
the film "Deep Throat" cost $25,000 to produce and has made
profits of 550,000,000,96 and few or none of these proceeds
were paid to the "star" of the film, Linda Lovelace (now
Marchiano) or others involved in the actual production. 97
The film's profits were used allegedly by the Perainos,
reported members of the Columbo organized crime family,98 to
develop Bryanston Films of Hollywood, which distributed the
horror film, "The Texas Chainsaw Massacre,"99 to purchase
yachts, airplanes, islands and property in the Bahamas, and
94 "MIPORN was a two and a half year undercover
investigation into organized crime's influence in the
pornography industry." New York Hearing, Vol. II, Marcella
Cohen, p. 41; MIPORN is further discussed in Appendix One to
the Organized Crime Chapter.
95 New York Hearing, Vol. I, Christopher J. Mega, pp.
166-67.
96 New York Hearing, Vol. I, William Kelly, p. 71.
97 New York Hearing, Vol. I, Linda Marchiano, p. 63.
98 Louis, Joseph and Anthony Peraino are. reported
members or associates of the Columbo organized crime family,
See, The discussion of Organized Crime for further information.
99 New York Hearing, Vol. I, William Kelly, p. 74.
467
o
as seed money for drug smuggling activities.IQO
In recognition of the need to seize substantial profits
gained through unlawful activity and to prevent their use in
other crimes, Congress has authorized forfeiture for other
crimes.101 Any new legislation should be drafted and
100 New Hearing, Vol. I, Christopher J. Mega, p. 162;
See also, Cong Rec. S433 (daily ed. Jan. 30, 1984) (Statement
of Sen. Jesse Helms).
101 See e.g., 21 O.S.C. S881(a)(l).
((a) The following shall be subject to forfeiture to
the United States and no property right shall exist in
them! ;
(1) All controlled substances which have been
manufactured, distributed, dispensed, or acquired in
violation of this subchapter.
(2) All raw materials, products and equipment of
any kind which are used, or intended for use, in
manufacturing, compounding, processing, delivering,
importing, or exporting any controlled substance in
violation of this subchapter.
(3) All property which is used, or intended for
use, as a container for property described in paragraph
(1) or (2).
(4) All conveyances, including aircraft,
vehicles, or vessels, which are used, or are intended
for use, to transport, or in any manner to facilitate
the transportation, sale, receipt, possession, or
concealment of property described in paragraph (1) or
(2).(5) All books, records and research, including
formulas, microfilm, tapes, and data which are used, or
intended for use, in violation of this subchapter.
(6) All moneys, negotiable instruments,
securities, or other things of value furnished or
intended to be furnished by any person in exchange for a
controlled substance in violation of this subchapter,
all proceeds traceable to such an exchange, and all
money, negotiable instruments, and securities used or
intended to be used to facilitate any violation of this
subchapter, except that no property shall be forfeited
under this paragraph, to the extent of the interest of
an owner, by reason of any act or omission established
by that owner to have been committed or omitted without
the knowledge or consent of that owner.(7) All real property, including *ny right, title
and interest in the whole of any lot or tract of land
and any appurtenances or improvements, which is used, or
intended to be used, in any manner or part, to commit,
or to facilitate the commission of, a violation of this
title punishable by more than one year's imprisonment,
except that no property shall be forfeited under this
paragraph, to the extent of an interest of an owner, by
reason of any act or omission established by that owner
to have been committed or omitted without the knowledge
or consent of that owner.
(8) All controlled substances which have been
possessed in violation of this subchapter.);
18 U.S.C. S492. (All counterfeits of any coins or
obligations or other securities of the United States or
of any foreign government, or any articles, devices, and
other things made, possessed, or used in violation of
this chapter or of sections 331-333, 335, 336, 642 or
1720, of this title, or any material or apparatus used
or fitted or intended to be used, in the making of such
counterfeits, articles, devices or things, found in the
possession of any person without authority from the
Secretary of the Treasury or other proper officer, shall
be forfeited to the United States);
18 U.S.C. S924 ((d) Any firearms or ammunition involved
in or used or intended to be used in, any violation of
the provisions of this chapter or any rule or regulation
promulaged thereunder, or any violation of any other
criminal law of the United States, shall be subject to
seizure and forfeiture and all provision of the Internal
Revenue Code of 1954 relation to the seizure,
forfeiture, and disposition of firearms, as defined in
section 5845(a) of that Code, shall so far as
applicable, extend to seizures and forfeiture under the
provision of this chapter);
18 U.S.C. S1955. (illegal gambling businesses; (d) Any
property, including money, used in violation of the
provisions of this section may be seized and forfeitedto the United States. All provisions of law relation to
the seizure, summary, and judicial forfeiture
procedures, and condemnation of vessels, vehicles,
merchandise, and baggage for violation of the customs
laws; the disposition of such vessels, vehicles,
merchandise, and baggage or the proceeds from such sale;
the remission or mitigation of such forfeitures; and the
compromise of claims and the award of compensation to
informers in respect of such forfeitures shall apply
468
469
o o
seizures and forfeitures incurred or alleged to have
been incurred under the provisions of his section,
insofar as applicable and not inconsistent with such
provisions. Such duties as are imposed upon the
collector of customs or any other person in respect to
the seizure and forfeiture of vessels, vehicles,
merchandise, and baggage under the customs laws shall be
performed with respect to seizures and forfeitures of
property used or intended for use in violation of this
section by such officers, agents, or other persons as
may be designated for that purpose by the Attorney
General).
18 U.S.C.A. S1963 (West Supp. 1985). ((a) Whoever
violates any provision of section 1962 of this chapter
shall be fined not more than $25,000 or imprisoned not
more than twenty years or both, and shall forfeit to the
United States, irrespective of any provision of State
law ~
(1) any interest the person has acquired or
maintained in violation of Section 1962;
(2) any —
(A) interest in;
(B) security of;
(C) claim against; or
(D) property or contractual right of any kind
affording a source of influence over; any
enterprise which the person has established,
operated, controlled, conducted, or
participated in the conduct of, in violation
of section 1962; and
(3) any property constituting, or derived from,
any proceeds which the person obtained, directly or
indirectly, r'rom racketeering activity or unlawful
debt collection in violation of section 1962.
The court, in imposing sentence on such person shall
order, in addition to any other sentence imposed
pursuant to this section, that the person forfeit to the
United States all property described in this subsection.
In lieu of a fine otherwise authorized by this section,
a defendant who derives profits or other proceeds from
an offense may be fined not more than twice the qross
profit or other proceeds.
(b) Property subject to criminal forfeiture under
this section includes —
(1) real property including things growing
on, affixed to, and found in land, and
(2) tangible and intangible personal
property, including rights, privileges,
interests, claims and securities.
(c) All right, title, and interest in property
described in subsection (a) vests in the United States
upon the commission of the act giving rise to forfeiture
under this section. Any such property that is
subsequently transferred to a person other than the
defendant may be the subject of a special verdict of
forfeiture to the United States, unless the transferee
establishes in a hearing pursuant to subsection (m) that
he is a bona fide purchaser for value of such property
who at the time of purchase was reasonably without cause
to believe that the property was subject to forfeiture
under this section);
18 U.S.C. S2318. (counterfeit labels; (d) When any
person is convicted of any violation of subsection (a),
the court in its judgment of conviction shall in
addition to the penalty therein prescribed, order the
forfeiture and destruction or other disposition of all
counterfeit labels and all articles to which counterfeit
labels have been affixed or which were intended to have
had such labels affixed);
18 U.S.C. S2344. (c) Any contraband cigarettes
involved in any violation of the provision of this
chapter shall be subject to seizure and forfeiture, and
all provisions of the Internal Revenue Code of 1954
relating of the seizure, forfeiture, and disposition of
firearms, and defined in- section 5845(a) of such Code,
shall , so far as applicable, extend to seizures and
forfeitures, under the provisions of this chapter); and
18 U.S.C. S2513. (Any electronic, mechanical, or other
device used, sent, carried, manufactured, assembled,
possessed, sold, or advertised in violation of section
2511 of section 2512 of this chapter may be seized and
forfeited to the United States. All provisions of law
relating to (1) at the seizure, summary and judicial
forfeiture, and condemnation of vessels, vehicles,
merchandise, and baggage for violations of the customs
laws contained in title 19 of the United States Code,
(2) the disposition of such vessels, vehicles,
merchandise, and baggage or the proceeding from the sale
thereof, (3) the remission or mitigation of such
forfeiture, (4) the compromise of claims, and (5) the
award of compensation top informers in respect of such
forfeitures, shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under the
provisions of this section, insofar as applicable and
470 471
o o
implemented in a manner similar to other present federal laws
to insure due process of law to all parties in interest.
The only present authority to permit the forfeiture of
profits and instruments derived from the distribution of
obscene materials is RICO. Through 1985 no federal RICO
cases have been brought to forfeit profits or instruments
used in or derived from obscenity law violations.103 The
RICO statute is currently is inadequate to reach the profits
and instruments without establishing and relying on proof of
two or more of predicate offenses. The proposed legislation
would allow forfeiture in the many cases where RICO cannot
appropriately be used.
RECOMMENDATION 2:
CONGRESS SHOULD AMEND THE FEDERAL OBSCENITY LAWS TO ELIMINATE
THE NECESSITY OF PROVING TRANSPORTATION IN INTERSTATE
COMMERCE. A STATUTE SHOULD BE ENACTED TO ONLY REQUIRE PROOF
not inconsistent with the provision of this section;
except that such duties as are imposed upon the
collector of customs or any other person with respect to
the seizure and forfeiture of vessels, vehicles,
merchandise, and baggage under the provisions of the
customs law contained in title 19 of the United States
Code shall be performed with respect to seizure and
forfeiture of electronic, mechanical, or other
intercepting devices under this section by such
officers, agents or other persons as may be authorized
or designated for that purpose by the Attorney General.)
102 See also, The discussion in this Chapter of
Recommendations for Changes in State Law, infra.
103 see, Recommendations For State and Local Law
Enforcement Agencies, infra, for further discussion.
THAT THE DISTRIBUTION OF THE OBSCENE MATERIAL "AFFECTS"
INTERSTATE COMMERCE.
DISCUSSION
Pursuant to provisions of 18 U.S.C. S1462 and 18 U.S.C.
S1465 the United States is required to prove that the
particular obscene material in question actually was
transported in interstate commerce at a particular specified
time and to and from particular and specified locations.104
104 18 U.S.C. S1462 (1982) provides, in part:
"Whoever brings into the United States, or any
place subject to the jurisdiction thereof, or
knowingly uses an express company or other common
carrier, for carriage in interstate or foreign
commerce -
(a) any obscene, lewd, lascivious, or filthy
book, pamphlet, picture, motion-picture film,
paper, letter, writing, print, or other matter of
indecent character; or
(b) any obscene, lewd, lascivious, or filthy
phonograph recording, electrical transcription, or
other article or thing capable of producing sound;
(c) any drug, medicine, article, or thing
designed, adapted, or intended for producing
abortion, or for any indecent or immoral use; or
any written or printed card, letter, circular,
book, pamphlet, advertisement, or notice of any
kind giving information, directly or indirectly,
where, how, or of whom, or by what means any of
such mentioned articles, matters, or things may be
obtained or made; * * *;"
18 U.S.C. S1465 provides, in part:
"Whoever knowingly transports in interstate or
foreign commerce for the purpose of sale or
distribution any obscene, lewd, lascivious, or
472 473
This has become an increasingly insurmountable burden
for federal prosecutors to meet in obscenity cases.
Distributors of obscenity, especially those associated with
or members of organized crime families, frequently avoid the'
mails and common carriers when they ship their wares. With
the assistance of their attorneys such persons and
organizations have developed intricate schemes of operation
to prevent proof of this necessary element of the present
statute.105 Tney use their own trucks and sometimes make
several stops or simulated deliveries or pickups along the
way.106 This process thwarts extremely expensive and time
consuming surveillance by law enforcement officers and makes
it virtually impossible to detect which items in a particular
shipment actually crossed state lines.
The proposed amendment should take the form of an
additional section of Title 18. Such sections should
supplement existing sections 1462 and 1465 and include
language which prohibits activities that "affect" commerce.
The addition of such a statute would facilitate prosecutions
filthy book, pamphlet, picture, film, paper,
letter, writing, print, silhouette, drawing,
figure, image, cast, phonograph recording,
electrical transcription or other articles capable
of producing sound or any other matter of indecent
or immoral character, shall be fined not more than
$5,000 or imprisoned not more than five years, or
both.
1°5 Los Angeles Hearing, Vol. I, Kenneth Gillinqham, p.
114-6.
106 Id.
(V
;
(i
while maintaining the integrity of the present statutory
structure. In a multiple count indictment, charges could be
brought against individuals under both sections, subject to
constitutional limitations which exist in any such case.
Legislation which creates a separate violation would prevent
the effects of the inevitable and lengthy initial
constitutional challenges to such new legislation from
crippling or stopping all federal prosecutions.
A requirement that the prosecution prove the transaction
"affects" commerce is a more realistic burden of proof which
would close the technical loopholes these criminals have so
successfully exploited. This requirement would be consistent
with other federal statutes such as the Hobbs Act and the
firearms laws.107 An examination of the constitutional
ramifications discloses no barrier to this proposed
amendment.1Q8
Article I, Section 8 of the United States Constitution
empowers Congress to regulate commerce 109 The
interpretation and application of the constitutional limits
on Congress' power to regulate has been the issue in many
cases whose factual bases are widely divergent. The subject
107 gee, e.g., 18 U.S.C. SS844, 1951 and 1202.
108 See, Wickard v. Filburn. 317 U.S. 111(1942).
109 "Section 8. [1) [The Congress shall have Power]
[3] to regulate the Commerce with foreign Nations,
and among the several States, and with the Indian
Tribes." U.S. Const, art. I, S8, cl.3.
474 475
158-315 Vol. 1, O - 86 - 16
o
of regulation, whether it is production, distribution or
consumption, is constitutionally immaterial so long as the
activity in question is within the sphere of Congress'
regulatory powers. The underlying principles, however,
have been applied consistently to a variety of factual
situations. The particular subject matter of the statute
should not present a barrier to a constitutionally valid
amendment.
The distinction between regulating activities "in
commerce" and regulating those which "affect commerce" is a
valid one and has been maintained. The standards, however,
have been recognized by the courts as being within the total
ambit of Congress" constitutional regulatory powers.Ill The
decision as to the scope of regulatory jurisdiction lies with
Congress and is generally made as a matter of public policy
rather than a decision dependent purely on legal
110 See , United States v. Wrightwood Dairy Co. , 315
U.S. 110 ( 1942) . More recent cases indicate the validity of
the Court's earlier decisions and the ultimate expanse of
Congress' power to regulate. These cases represent a variety
of legal and factual issues, but each one affirms the
underlying principals of the preceding cases. See, e.g. ,
Gulf Oil Corp. v. Copp Paving Co., Inc., 419 U.S. UTS" ( 1974) ;
United States v. American Building Maintenance Industries,
422 U.S. 271 ( 1975) ; HcLain v. Real Estate Board of New
Orleans, 444 U.S. 232(1978); Turf Paradise, Inc. v. Arizona
Downs, 670 F.2d. 813 (9th Cir. 1982).
See, McLain v. Real Estate Board of New Orleans,
444 U.S. 232, 241(1979) . "The broad authority of Congress
unde-r the Commerce Clause has, of course, long been
interpreted to extend beyond activities in interstate
commerce to reach other activities that, while wholly local
in nature, nevertheless substantially affect interstate
commerce." (emphasis added).
considerations.
If the activity is other than purely local in nature it
is subject to federal commerce power regulation. It is
within this constitutional grant that Congress may exercise
discretion in setting the limits of jurisdiction. Since
Congress has already Constitutionally chosen to regulate the
activity through 18 U.S.C. SS1462 and S1465, it may, if it
chooses, expand the regulatory jurisdiction to include
activities which "affect" commerce as well as those "in"
commerce.
This Commission finds that virtually all distribution of
obscene material substantially affects interstate commerce.
Department of Justice Guidelines now in effect for the
United States Attorneys preclude federal prosecution of.
obscenity cases that properly belong in state courts.112
112 The guidelines provide, "The Federal role in
prosecuting obscenity cases is to focus upon the major
producers and interstate distributors of pornography while
leaving to local jurisdiction the responsibility of dealing
with local exhibitions and sales. This role has not met with
complete acceptance and understanding by citizens of
communities confronted with offensive matters who find their
local prosecutor ineffectual in this area. Even so, local
prosecutors have been regarded as having the primary
obligation to deal with such material on a local level.* * *
Local prosecutors, however willing to prosecute, freguently
experience difficulty because of several factors, notably a
lack of expertise in the field, lack of support by the
community and/or its officials, and lack of necessary funds.
In these circumstances the United States may provide
assistance through prosecutive efforts not falling precisely
within the above guidelines. Conversely, local authorities
dealing with obscene material being distributed within their
area may develop evidence of interstate distribution useful
to a Federal prosecution. Communications between Federal and
476 477
o
Existing guidelines require the United States Attorneys to
give higher priority to cases involving large scale
distributors who realize substantial income from multi-state
operations and cases in which there is evidence of
involvement by known organized crime figures.113 These are
the types of cases that reguire the operational resources of
the Department of Justice and federal law enforcement
agencies and are accordingly beyond the scope of local law
enforcement capabilities.114 The new section would be a
substantial aid to federal prosecutors' efforts, but properly
applied it would not result in any more federal encroachment
on state prosecutors' prerogatives than present federal law
permits.
RECOMMENDATION 3:
CONGRESS SHOULD ENACT LEGISLATION MAKING IT AN UNFAIR
BUSINESS PRACTICE AND AN UNFAIR LABOR PRACTICE FOR ANY
EMPLOYER TO HIRE INDIVIDUALS TO PARTICIPATE IN COMMERCIAL
SEXUAL PERFORMANCES.
DISCUSSION
local prosecutors, and coordination of efforts in such
instances, can be highly productive in both Federal and local
efforts." United States Department of Justice, United States
Attorneys' Manual, Ch. 75, p. 9a (June 18, 1981).
113 Chicago Hearing, Vol. II, James S. Reynolds, p. 263.
114 New York Hearing, Vol. II; William Johnson, p. 82.
478
This Commission does not advocate nor does it condone
the use of individuals in commercial sexual practices. The
Commission strongly supports enforcement of existing criminal
laws against those who violate them by using individuals in
commercial sexual performances or in the production of
obscene materials. The Commission does, however, recommend
imposing fair labor standards on those businesses which
engage individuals to perform sexual acts for commercial
purposes. This recommendation is made only out of an abiding
concern for those persons used in these sexual performances.
The production of obscene material, like many forms of
criminal activity, is an enterprise patterned after other
legitimate business structures.115 Producers of obscene
material make capital investments, hire employees, and earn
sizeable profits. Unlike other businesses, the regulations
governing the production of obscenity are largely
self-imposed or non-existent. This industry has been called
the "last vestige of true laissez-faire capitalism" in the
United States.116 Unlike more conventional businesses and
115 Chicago Hearing, Vol. II, Duncan McDonald, p. 59.
116 Id- at 61; The value of society's goods always
derives from the values of its people. A democratic society
that is unwilling to bar Hustler on public newsstands or ban
billboards from beautifulviews cannot justly blame
capitalism for these offenses. It is up to the political,
judicial, and religious institutions of the society, not
other businesses, to eliminate such opportunities for ugly
profit. Capitalists perform a vital role in determining what
goods and services are initially offered to the public. But
the people and their government determine the limits of what
can be marketed. Markets provide the ultimate democracy;
479
industries, profits from obscene materials go largely untaxed
and their employees often suffer varying degrees of mental
and physical injury.117 Seldom, if ever, do employees
maintain insurance, pay benefits or provide pension plans to
performers or others who work for them.
Congress should enact legislation, as necessary, that
would specifically subject the production of obscene
materials to the same types of laws and regulations as other
businesses. This would not necessarily involve criminal
statutes or penalties, but rather it could take the form of
civil regulatory statutes. These are not recommended as
exclusive remedies, but as a form of regulation that
parallels other existing forms of criminal and civil relief.
The basis for these statutes is the government's broad powers}
to regulate commerce.
Legislation also should be enacted that would make it
an unfair business practice and an unfair labor practice to
hire individuals to participate in certain sexual
performances for purposes of producing sexually explicit
materials. Included in the prohibited activities should be
sexual performances involving children violence
sado-masochism, or anything which would meet the description
of unlawful sexually explicit depictions developed in such
democracy, though, defines the marketplace. G. Gilder, The
Spirit of Enterprise, 91(1984).
117 see, The discussion of performers in the
pornography industry for further information.
480
federal law.
Congress should prohibit the sale and distribution of
any product made as a result of those unfair practices and
provide a civil cause of action for any party injured as a
118result of these practices. l The law should also provide
protection for individuals who 'are used as actors or models
in obscene material. Such legislation should make any
contracts for prohibited performances void, and provide a
formula for the determination of damages and payment of
attorneys fees. Existing laws and regulations prohibit an
employer from imposing dangerous, unhealthy,or unfair
conditions of employment on an employee. Employees have a
remedy if they are harmed in the course of their
employment. None of these requirements have been applied to
the pornography industry where these risks are truly
pervasive. It is essential that the commercial laws and
regulations be applied in a fair and even-handed manner.
Business enterprises should be prevented from operating in a
manner which jeopardizes the welfare of its employees.
RECOMMENDATION 4:
CONGRESS SHOULD AMEND THE MANN ACT TO MAKE ITS PROVISIONS
GENDER NEUTRAL.
DISCUSSION
1 1 fl
approach could be in tne form of a civil rights type
481
o
The Mann Actll9 makes it a federal offense to transport "any
woman or girl" in interstate or foreign commerce for the
purpose of "prostitution or debauchery, or for any other
immoral purpose, or with intent and purpose to induce,
entice, or compel such woman or girl to become a prostitute,
or to give herself up to immoral practice debauchery or to
engage in any other immoral practice."120 ^en and boys who
are used in prostitution and in the production of obscene
materials are often transported in commerce for the very
purposes proscribed in the present statute. 2^ Those who
exploit men and boys for illegal and immoral purposes should
be subject to the same punishment as those who exploit
females.
The proposed amendment would simply afford protection
to a class of persons who are without adequate legal redress.
While women and girls may continue to comprise the majority
of such cases of exploitation these statistics should provide
no excuse to exclude men and boys from egual protection
purely on the basis of the smaller number of reported
119 18 U.S.C. S2421 (1985) .
120 id.
- v 121 see, Comm.Richard Kind, C-19168; Comm.
Theodore Dufresne, C-19608; and Comm. v. Alfredo Martin,
C-19568 Circuit Court of Arlington County, Virginia.
cases.122
Further, the Act should be amended to prohibit illegal
acts rather than the current prohibition against immoral
acts. This amendment would address and alleviate the
concerns of those who suggest an overzealous prosecutor may
use the Act to harass individuals engaged in lawful
consensual sexual activity. This amendment would not expand
the scope of enforcement or prosecution and it should set
clear guidelines for the types of activities that are
proscribed.
RECOMMENDATION 5:
CONGRESS SHOULD AMEND TITLE 18 OF THE UNITED STATES CODE TO
SPECIFICALLY PROSCRIBE OBSCENE CABLE AND SATELLITE
TELEVISION PROGRAMMING.
DISCUSSION
The United States Code proscribes the utterance of "any
obscene, indecent or profane language by means of radio
communication."123 Because cable and satellite television
programming is not conveyed by any means interpreted by the
122 "... statistically there appears to be no
particular preference on the part of the child molesters for
victim. It's about 50 percent of the time boys and 50
percent of the time they are girls. So clearly boys ought to
be included under the Mann Act." Washington, D.C., Hearing,
Vol. i, senator Mitch McConnell, p. 56.
123 18 U.S.C. S1464.
482 483
f )
courts to be a radio communication, any obscene programming
is not covered by the prohibitions of the present statute.
The Cable Communications Policy Act of 1984 attempts to
provide another avenue for the prosecution of obscenity shown
over cable television.124 The Act, provides:
Whoever transmits over any cable system any matter
which is obscene- or otherwise unprotected by the
Constitution of the United States shall be fined
not more than $10,000 or imprisoned not more than
2 years, or both.-1-25
The provisions of this section may be in conflict with
two other sections of the act governing editorial control of
programming by cable operators. Section 531(e) of Title 47
provides that:
Subject to Section 544(d) of this title, a cable
operator shall not exercise any editorial control
over any public,educational or governmental use of
channel capacity provided pursuant to this section.
In addition, section 544(d) provides, in part:
(1) Nothing in this subchapter shall be
construed as prohibiting a franchising authority
and a cable operator from specifying, in a
franchise or renewal thereof, that certain cable
services shall not be provided or shall be provided
subject to conditions, if such cable services are
obscene or are otherwise unprotected by the
Constitution of the United States.
(2) (A) In order to restrict the viewing of
programming which is obscene or indecent, upon the
request of a subscriber, a cable operator shall
provide (by sale or lease) a device by which the
subscriber can prohibit viewing of a particular
cable service during period selected by. that
subscriber.
124 47 u.S.C. S559.
125 Id.
484
Section 544 (d) seems to contemplate allowing the
operator to provide obscene programming while Section 559
makes it a crime to do so. The apparent conflict should be
resolved and legislation should provide clear guidance for
cable operations, federal prosecutors and law enforcement
officers.126
RECOMMENDATION 6s
CONGRESS SHOULD ENACT LEGISLATION TO PROHIBIT THE
126 senate Bill 1090 sponsored by Senator Jesse Helms
(R-NC) would place a specific prohibition against
obscene cable programming by amending Section 1464
of Title 18 of the United States Code. The Helms
Bill provides in part:
1464. Distributing obscene material by radio or
television.
"(a) Whoever utters any obscene, indecent, or
profane language, or distributes any obscene,
indecent, or profane material, by means of radio or
television, including cable television, shall be
fined not more than $50,000 or imprisoned not more
than two years, or both."
"(b) As used in this section, the term
"distributes" means to send, transmit, retransmit,
telecast, broadcast, or cable-cast, including by
wire or satellite, or produce or provide such
material for distribution." ,
The standard language of Title 18 provides
several synonyms for the word "obscene". 18 U.S.C.
S1461 provides, "Every obscene, lewd, lascivious,
indecent, filthy or vile ..."
Enactment of legislation of this type would
enable United States Attorneys to prosecute
violators under the criminal code and alleviate the
possible conflict under the Cable Communications
Policy Act.
485
TRANSMISSION OF OBSCENE MATERIAL THROUGH THE TELEPHONE OR
SIMILAR COMMON CARRIER.
DISCUSSION:
This Commission has received substantial evidence of the use
127of the telephone to transmit obscene material. Dial-A-
Porn services offer the caller the opportunity to participate
in obscene telephone conversations or to receive obscene
100messages. '
Two years ago, the Congress enacted legislation amending
section 223 of the Communications Act of 1934.I29 This
enactment prohibited the use of the telephone to make obscene
or indecent communications for commercial purposes to anyone
under eighteen years of age except where in compliance with
regulations issued by the Federal Communications
Commission.130 ^he p^ promulgated regulations making it an
exception for the provider of a recorded message if the
message was made available only between the hours of 9:00
p.m. and 8:00 a.m. eastern standard time or if the caller
127 See, Los Angeles Hearing, Vol. I, William A.
Dunkle, p. 248; Los Angeles Hearing, Vol. I, Judith F.
Trevillian, p. 263; Los Angeles Hearing, Vol. I, Brent D.
Ward, p. 225. The most commercially prolific form of
dissemination of pornographic material is through services
commonly referred to as "Dial-A-Porn."
128 See, The discussion of the Dial-A-Porn services
available for further information.
129 See, 47 U.S.C. S223(b)(l).
130 I.
486
made prepayment by credit card in the case of a "live"
message. Carlin Communications challenged the FCC
regulation.
On review, the United States Court of Appeals for the
Second Circuit found the regulations were invalid. 2 The
court found that the government had a compelling interest in
protecting minors from salacious material, but that the FCC
regulations were not well tailored to meet their objectives,
which could be achieved by less restrictive alternatives.133
In dicta, the. court said the FCC should have given more
serious consideration to other options such as "blocking" and
access codes. Through "blocking" a subscriber can have
access to all "976" numbers blocked from his telephone.
Access codes could be issued to subscribers over eighteen who
would have to dial the code in order to receive the sexually
explicit message.1^4
On October 16, 1985, the FCC announced new regulations
governing Dial-A-Porn.135 Under the new regulations,
Dial-A-Porn services must reguire either an authorized access
or identification code or they must obtain prepayment by
131 49 Fed. Reg. 24, 996(June 4, 1984).
132 Carlin Communications, Inc. v. FCC. 749 F.2d 113
(2d Cir. 1984) .
133 id. at 121.
134
135
I£. at 122-23.
50 Fed.Reg. 42699. (October 22, 1985).
487
< »r
credit card before transmission of a sexually explicit
message. 136
Carlin challenged the new FCC regulations, and on April
11, 1986, the Court of Appeals granted their petition and set
aside the regulations as applied to Carlin.137 The Court of
Appeals relied on statements from New York Telephone that
access or identification codes are not technologically
feasible in NYT's network,138 and found that "the record
does not support the FCC's conclusion that the access code
requirement is the least restrictive means to regulate
Dial-A-Porn . . . ."139 Tne court again referred to
"blocking" as a less restrictive means of regulating Dial-A-
Porn.140 Blocking devices installed on the telephone
customer's own terminal equipment could be used to block
access to one or more pre-selected telephone numbers.141 The
Court also suggested that the FCC should have considered the
feasibility of passing along the cost of customer premises
136 Id.
137 Carlin Communications, Inc. v. FCC, No. 85-4158
(2nd Cir. 1986).The Court noted that "[t]he stay, however,
is granted only at the behest of the petitioners here . . .
and applies only to Dial-A-Porn service providers on the New
York Telephone (NYT) system. (Slip opinion, p. 3).
138 i<j. siip op. at 11 and 19. The Court noted that
the access codes are probably technologically possible in
most other parts of the country. See, slip op. at 4.
139 Id. at 23.
140 Id. at 23-24.
141 Id. at 6-7.
blocking equipment to the providers of Dial-A-Porn and/or the
telephone companies. 42
The latest decision by the Second Circuit leaves the
state of the law regarding Dial-A-Porn even more uncertain.
The two attempts by the FCC to promulgate regulations in
accordance with the federal statute have failed. The Court
of Appeals found earlier that limitations on the hours that
Dial-A-Porn messages may be offered were not well tailored
enough to regulate the problem.143 Now the Court has ruled
that access codes are unduly restrictive as applied to Carlin
in New York, but may be permissible elsewhere.144 The
"blocking" option advanced by the Court has serious practical
limitations. Blocking may not be available to all telephone
145customers. Those who obtain the service would either
lose access to all "976" numbers,146 or have to pre-select
which numbers they wanted blocked.147 Few parents would have
sufficient knowledge of the multitude of Dial-A-Porn numbers
to be able to pre-select them and prevent their children from
142 Id. at 23.
143 749 F.2d at 121.
144 Carlin Communications, Inc. v FCC, supra, slip op.
at 3-4.
145 See, Los Angeles Hearing, Vol. I, William Dunkle,
p. 254.
146 Id.
147
at 6.
Carlin Communications, Inc. v. FCC, supra, slip op.
488 489
calling them by use of a blocking device, and minors would
still be free to make the calls from telephones not equipped
with blocking devices.
The provision of the federal statute permitting
Dial-A-Porn messages to be provided in accordance with FCC
regulationsl48 nas proven unworkable in addition to providing
a "safe harbor" provision for Dial-A-Porn merchants.
Congress should enact legislation that simply prohibits the
transmission of obscene material through the telephone or
similar common carrier.149
148 47 U.S.C. S223(8)(2).
149 In an attempt to address the Dial-A-Porn issue,
Senate Bill 1090 has been introduced by Senators Jesse Helms,
(R-NC), John East (R-NC) and Jeremiah Denton (R-Ala) to amend
Section 223 of. the Communications Act of. 1934.
The Bill provides!
Whoever - "(A) in the District of Columbia orin interstate or foreign communications, by means
of telephone, makes (directly or by recording
device) any comment, request, suggestion, or
proposal which is obscene, lewd, lascivious,
filthy, or indecent, regardless of whether the
maker of such comments placed the call or" (B)
knowingly permits any telephone facility under such
person's control to be used by any purpose
prohibited by subparagraph (A). Shall be fined not
more than $50,000 or imprisoned not more than six
months, or both."
Additionally, ,Rep. Thomas J. Bliley (R-Va) has
introduced H.R.4439 which would amend section 223 of the
Communications Act and eliminate the provision requiring the
FCC to issue regulations.
H.R. 4439
A bill to amend the Communications Act of 1934 to
restrict the making of obscene and indecentcommunications by telephone. Be it enacted by the
B. RECOMMENDATIONS FOR CHANGES IN STATE LAW.
RECOMMENDATION 7:
STATE LEGISLATURES SHOULD AMEND, IF NE.CESSARY, OBSCENITY
STATUTES CONTAINING THE DEFINITIONAL REQUIREMENT THAT
MATERIAL BE "UTTERLY WITHOUT REDEEMING SOCIAL VALUE" IN ORDER
TO BE OBSCENE TO CONFORM WITH THE CURRENT STANDARD ENUNCIATED
BY THE UNITED STATES SUPREME COURT IN MILLER V.
CALIFORNIA.150
DISCUSSION
A minority of jurisdictions, including the State of
Senate and House of Representatives of the United
States of America in Congress assembled.
SECTION 1. SHORT TITLE.
This Act may be cited as the "Telephone Decency Act
of 1986."
SECTION 2. AMENDMENTS.
Section 223(b) of the Communications Act of 1934 is
amended-
(1) in paragraph (1)(A), by striking out "under
eighteen years of age or to any person without that
person's consent";
(2) by striking out paragraph (2);
(3) in paragraph (4), by striking out "paragraphs
(1) and (3)" and inserting in lieu thereof
"paragraph (1) and (2)"; and
(4) by redesignating paragraphs (3), (4), and (5)
as paragraphs (2), (3), and (4), respectively.
150 413 U.S. 15 (1973).
490 491
California,151 retain the requirement that material must be
"utterly without redeeming social value" in order to be found
obscene.152
This standard emanates from the case of Roth v. United
States, and the later case of Memoirs v. Massachusetts'153 in
which a plurality of the Supreme Court held that a book
alleged to be obscene cannot be proscribed unless it is found
to be utterly without redeeming social value.154 The court
reversed an obscenity conviction involving John Cleland's
book Memoirs of a Woman of Pleasure because the work
possessed a "modicum" of social value.155 The Memoirs test
151 On April 14, 1986, the Governor of California
signed into law Senate Bill 139 which amends the California
obscenity law. The new law goes into effect in January of
1987, and defines obscene matter as material which
taken as a whole, the predominant appeal of which
to the average person applying contemporary
statewide standards, to a prurient interest,
meaning a shameful or morbid interest in nudity,
sex, or excretion and is matter which taken as a
whole goes substantially beyond customary limits of
candor in the description or representation of such
matters; and is matter which, taken as a whole
lacks significant literary, artistic, political,
educational, or scientific value"(emphasis added)
The new law still does not contain the exact language of
Miller and thus its constitutionality may be uncertain until
any appeals through the individual system are completed.
152 354 U.S. 476 (1957).
153 383 U.S. 413 (1966) .
154 383 U.S. 413 (1966).
155 Id. at 418-20.
492
made it almost impossible to convict in obscenity cases.156
When the Supreme Court decided Miller v. California,157 a new
obscenity test resulted.158 Although the Court remained
divided on basic philosophical grounds, not a single member
of the Court voted to retain the Memoirs standard, (emphasis
added). Writing for the Court in Miller Chief Justice Warren
E. Burger said the standard formulated in Memoirs required
proof of a negative, "a burden virtually impossible to
discharge under our criminal standards of proof." (emphasis
added).159
The Court also noted that the standard had even been
abandoned by Justice William Brennan who authored the Court's
opinion in Memoirs. To the extent that the Memoirs standard
exists today, it makes prosecution of obscenity cases
extremely difficult. To win acquittal on an obscenity
charge, a defendant need only demonstrate some miniscule
social value as opposed to the serious literary, artistic,
political or scientific value required under Miller. The
Memoirs standard is still the law in California160 and has
posed a major obstacle to successful obscenity prosecutions.
156 See, Miller v. California, 314 U.S. 15 (1973).
157
158
Id.
Paul McGeady, p. 81.413 U.S. at 22(1973); See, Chicago Hearing, Vol. I,
159
160
413 U.S. at 22.
See, supra note 151.
493
r
Consequently, the legal problems attendant to prosecution may
contribute to factors which the wholesale pornography
industry is centered in the Los Angeles area, and produces
most of the materials sold in the entire United States. The
pornography industry in the area of Los Angeles earns at
least $550 million a year and produces eighty percent of
the sexually explicit videotapes, eight millimeter films and
novelties are produced there.162
The principle of federalism protects the constitutional
prerogative of the states to enact obscenity laws which
embody standards less stringent than those approved by the
United States Supreme Court in Miller. As Chief Justice
Burger wrote in Paris Adult Theatre I v. Slaton163
The States, of course, may follow such a "laissez
faire" policy and drop all controls on commer-
cialized obscenity, if that is what they prefer,
just as they can ignore consumer protection in the
marketplace, but nothing in the Constitution
compels the States to do so with regard to matters
falling within state jurisdiction. See, United
States v. Reidel, 402 U.S., at 357, 28 L. Ed. 2d
813; Memoirs v. Massachusetts, 383 U.S., at 462.
16 L. Ed. 2d KWhite, J., dissenting). "We do not
sit as a super-legislature to determine the wisdom,
need, and propriety of laws that touch economic
problems, business affairs, or social conditions,"
Griswold v. Connecticut, 381 U.S. 479, 482, 14 L.
Ed. 2d 510, 85 S. Ct. 1678(1965). See, Ferguson v.
Skrupa, 372 U.S., at 731, 10 L. Ed. 2d 93, 95 ALR
2d 1347(1963); Day-Brite Lighting Inc. v. Missouri,
342 U.S. 421, 423, 96 L. Ed. 469, 72 S. Ct.
405(1952).164
Law enforcement officers in California blame the
existing law for severely hampering their effectiveness in
eliminating this activity.165 A Los Angeleg Police
Department Captain testified, "We have pleaded with the state
legislature ever since Miller came into being to adopt
it."166
If states sincerely wish to provide an effective basis
for law enforcement this change in standards is essential.
RECOMMENDATION 8:
STATE LEGISLATURES SHOULD AMEND, IF NECESSARY, OBSCENITY
STATUTES TO ELIMINATE MISDEMEANOR STATUS FOR SECOND OFFENSES
AND MAKE ANY SECOND OFFENSE PUNISHABLE AS A FELONY.
DISCUSSION
State obscenity statutes frequently classify a first
conviction as a misdemeanor. In some jurisdictions an
obscenity violation becomes a felony when the specific
offender is convicted a second time. In other jurisdictions
*61 Chicago Hearing, Vol. I, Donald Smith, p. 31.
162 IcJ. at 30.
163 413 U.S. 49 (1973).
164 Id. at 64.
65 Id. at 46; Los Angeles Hearing, Vol. I, JamesDocherty, p. 15.
66 Los Angeles Hearing, Vol. I, James Docherty, p. 15.
494 49S
an obscenity violation will remain a misdemeanor regardless
of the number of prior convictions. This system results in
minimal penalties for many offenders and is no deterrent to
large-scale criminal enterprise.
State obscenity laws which provide misdemeanor
penalties for recidivist offenders produce results which have
a minimal deterrent effect. Fines in the amount of thirty to
ninety dollars are a common disposition for a first offense
in Chicago.167 Three hundred to five hundred dollar fines
•» r pare standard in Houston, Texas.100 in Miami, Florida, a
corporation with twenty-five prior obscenity convictions was
fined $1,600.169 In Los Angeles, where the industry earns
$550 million a year,170 a major distributor is often fined no
more than $10,000.171 The amounts of these fines are
inconsequential when compared to the profits earned by many
produces or sellers of obscene material.172
An amendment to state statutes enhancing the penalties
for subsequent convictions for obscenity violations would
recognize the recidivist nature of the crime and should be
167 Chicago Hearing, Vol. I, Thomas Bohling, p. 16.
168 Houston Hearing, Vol. II, W.D. Brown, p. 50.
169 Miami Hearing, Vol. I, Mike Berish, p. 66.
170 Los Angeles Hearing, Vol. I, Donald Smith, p. 30.
171 Id_. at 46.
172 See, The discussion of the Production, Distribution
and Technology of Sexual Explicit Materials for
further information.
496
directed to management personnel of the wholesale or retail
operation. Classifying the crime as a felony would allow
judges to impose substantial fines and periods of
incarceration for a repeat offender. A conviction for a
felony would substantially reduce the incidence of
inappropriate sentencing for recidivists.
RECOMMENDATION 9:
STATE LEGISLATURES SHOULD ENACT, IF NECESSARY, FORFEITURE
PROVISIONS AS PART OF THEIR OBSCENITY LAWS.
DISCUSSION
The addition of forfeiture provisions to the state obscenity
statutes would greatly enhance their deterrent effect and
would be an effective tool for law enforcement officers to
use against the most egregious offenders. These forfeiture
provisions may mirror such provisions found in several
federal statutes. The precise scope of the forfeitures
should be the decision of each state legislature and subject
to judicial interpretation.
Some states already have taken the initiative in
implementing forfeiture provisions in their obscenity laws.
The Metropolitan Bureau of Investigation (M.B.I.) in Orlando,
Florida, provides an excellent example of the effectiveness
497
of forfeiture provisions under state law. Using the
forfeiture provisions of the Florida RICO Act, the M.B.I,
obtained forfeitures of $80,000 to $100,000 worth of property
in a single investigation and prosecution. The forfeited
property included two computer systems, two projection screen
televisions and a large assortment of films, magazines, and
novelties. Forfeiture should be used to uproot the
capital of pornography producers and distributors. Used
effectively, forfeiture can substantially handicap these
businesses.
RECOMMENDATION 10:
\
STATE LEGISLATURES SHOULD ENACT A RACKETEER INFLUENCED
CORRUPT ORGANIZATIONS (RICO) STATUTE WHICH HAS OBSCENITY AS A
PREDICATE ACT.
States which do not have obscenity as a predicate offense for
a racketeer influenced corrupt organizations (RICO) violation
should consider enacting such legislation. RICO provides an
effective means to substantially eliminate obscenity
businesses.
173 New York Hearing, Vol. II, Larry Schuchman, p. 52.
174 Id. } See, Recommendations for Changes in Federal
Law in this Chapter.
498
( r
SEE, RECOMMENDATIONS FOR THE UNITED STATES DEPARTMENT OF
JUSTICE, INFRA.
C. RECOMMENDATIONS FOR THE UNITED STATES DEPARTMENT OF
JUSTICE
RECOMMENDATION 11:
THE ATTORNEY GENERAL SHOULD DIRECT THE UNITED STATES
ATTORNEYS TO EXAMINE THE OBSCENITY PROBLEM IN THEIR
RESPECTIVE DISTRICTS, IDENTIFY OFFENDERS, INITIATE
INVESTIGATIONS, AND BEGIN PROSECUTING THEM WITHOUT DELAY.
If the flow of obscene material is going to be resolved
through criminal prosecution, the Attorney General of the
United States must take a significant, ongoing and personal
role in directing a combined federal, state and local effort.
The Attorney General should direct the United States
Attorneys to identify the major sources of obscene material
within their districts and commence prosecutions without
further delay. The United States Attorneys should contact
their state and local counterparts and identify persons and
organizations responsible for manufacturing and distributing
obscene material in their districts. The Attorney General
must also follow up on his directives and ensure compliance
by the United States Attorneys.
499
The United States Department of Justice, through
guidelines contained in the United States Attorneys' Manual,
places a priority on the prosecution o£ three types of
obscenity cases: those involving large scale distributors
who realize substantial incomes from multi-state operations;
those where there is evidence of involvement by known
organized crime figures; and those involving child
pornography.175 united States Attorneys may also increase
the priority for cases involving highly offensive material or
cases where obscenity is found to be a particular problem in
the jurisdiction. '"
Former Attorney General William French Smith and
Assistant Attorney General Stephen S. Trott have urged the
United States Attorneys to follow existing departmental
guidelines and to prosecute obscenity cases aggressively. On
October 4, 1982, Attorney General Smith sent a memorandum to
all United States Attorneys calling attention to the
guidelines and encouraging aggressive and proactive
prosecution of obscenity cases.177 Attorney General Smith
175 Department of Justice, United States Attorney
Manual (1977).
id. (This Commission does not believe these are
inappropriate. )
177 Memorandum of Attorney General William French
Smith, October 4, 1982. "Proactive prosecution" is
a term used to suggest affirmative action taken by
law enforcement officers and prosecutors. This
term should be contrasted with "reactive
prosecution" in which law enforcement officers
respond to specific complaints of recently
also suggested using the Law Enforcement Coordinating
Committees to determine the nature and extent of the
obscenity problem in the individual districts.178 Despite
this directive from the Attorney General not a single
indictment alleging a violation of federal obscenity laws was
returned in 1983 in any district in the United States.179
Assistant Attorney General Trott sent an additional
memorandum to the United States Attorneys on August 24, 1983,
calling on them to "step up our level of enforcement" of
obscenity violations.18" Assistant Attorney General Trott
again called attention to the guidelines and asked the United
States Attorneys to set up a meeting with the United States
Postal Inspection Service and Federal Bureau of Investigation
in their districts to evaluate the need for additional
enforcement.181 He also offered assistance from the Criminal
Division of the Department of Justice if an individual United
States Attorney needed help in structuring an enforcement
discovered crimes. Obscenity cases generally
cannot be developed without proactive investigative
efforts.
178 id.
179 See, infra note 180.
180 Memorandum of from Stephen S. Trott, Assistant
Attorney General, Criminal Division to all United
States Attorneys (Aug. 24, 1983) (discussing
enforcement of Obscenity Laws).
181 Id.
500 501
o r
program.182
This directive has had little effect on most federal
prosecutors. The Departmental guidelines have been used as
"excuses" to decline prosecution of obscenity cases involving
adult material. The guidelines have been perceived as
establishing exclusive categories for prosecution rather than
minimum criteria.
The Department's guidelines are clear and the United
States Attorneys have been instructed by both the Attorney
General and the head of the Criminal Division to use these
guidelines to prosecute obscenity cases. A Justice
Department official told the Commission in Chicago, "These
are not declination guidelines, they are priority
guidelines."183
Since the time of these directives fewer than ten
federal districts184 have brought obscenity prosecutions
despite the presence of large scale distributors and
organized crime involvement in their jurisdiction^*^
182 id.
183 Chicago Hearing, Vol. II, James S. Reynolds, p. 267.
1S« Id.
185 The Criminal Division of the United States
Department of Justice has compiled and provided the
following statistics with respect to recent and
current obscenity law prosecutions.
1978
Adult Pornography
Indicted" n
There is widespread evidence that the stated policy of
the Department of Justice and the established guidelines are
not being implemented by the United States Attorneys. 186
Very few obscenity cases have been brought by the United
1979
1980
1981
1982
1983
1984
1985
1986
*1 Includes
2 Includes
1 „
54 *1
2
7
0
6
19
45 MIPORN defendants.
5 MIPORN defendants.
two other MIPORN defendants in
reversed
*3 Includes
*4 Includes
*5 Includes
*6 Both are
on appeal.
1 MIPORN defendant.
6 MIPORN defendants.
2 MIPORN defendants.
MIPORN defendants.
2
1 «
15 12
4 3
2
11 *4
14 *5
2 *6
Convictions of
1981 were
Districts Which Have Prosecuted Adult
Pornography Cases Since January 1, 1978
Northern District of Alabama
Southern District of Alabama
Central District of Cali-
fornia
Middle District of Florida
Southern District of Florida
District of Kansas
Eastern District of Kentucky
Western District of Kentucky
District of Massachusetts
District of Nebraska
New York
New York
North
Eastern District of
Western District of
Western District of
Carolina
Western District of Penn
sylvania
Eastern District of
Western District of
Western District of
District of Utah
Eastern District of Virginia
Tennessee
Tennessee
Texas
Convicted
2T5
Districts In Which Adult Pornography Cases
Are Presently Pending
Southern District of FloridaDistrict of Utah ,
Statistics have been obtained from several sources.
While they are essentially complete, it is possible a few
cases may have been omitted. Letter from Donald B. Nicholson
to Alan E. Sears (Feb. 28, 1986).
186 Chicago Hearing, Vol. I, Paul McGeady, p. 82-3.
502 503
r
States Attorneys. In addition, the Department of Justice and
the United States Attorneys have cited the rigorous pursuit
of child pornography cases as compliance with the Attorney
General's mandate and as a rationale for neglecting obscenity
prosecutions.
From May 1, 1984, through July 1985, there were
obscenity prosecutions in only seven of the ninety-four
federal districts.187
There were no obscenity prosecutions in the districts
encompassing the Southern District of New York (Manhattan) or
the Central District of California (Los Angeles)188 where the
majority of obscene materials are now and were then being
produced or distributed.189
One witness testified before the Commission that he
contacted the office of the United States Attorney for the
Central District of California in Los Angeles and reguested
information regarding the number of obscenity prosecutions
brought by that office during the period from 1979 to 1982
along with the number of defendants involved and the number
187 Chicago Hearing, Vol. II, James S. Reynolds, p.
267. In addition it is noted that this Commission invited
United States Attorneys from several major districts to
attend and testify at its hearings. No United States
Attorney whose office does not prosecute obscenity cases
accepted the invitation to appear before the Commission to
explain their policy.
188 Id_. at 267, 271.
189 Chicago Hearing, Vol. 1, Donald Smith, p. 30-31.
of convictions which resulted.190 The United States Attorney
responded that during that period there was only one
prosecution and it involved child pornography.191 jn a
letter dated February 22, 1984, the United States Attorney
for the Central District of California in Los Angeles, said
that it would be a "misuse of the limited resources of this
office to prosecute so-called adult films" and added that he
and his predecessor had concluded that films of this variety
could not be prosecuted successfully in that district.192
The perception is pervasive among federal law
enforcement agents that most United States Attorneys will not
prosecute cases involving obscene matter. According to an
Assistant Chief Postal Inspector, the Postal Inspection
Service presents very few obscenity cases to the United
States Attorneys because federal prosecutors will not
190 Chicago Hearing, Vol. I, Paul McGeady, p. 82-83.
151 ia. at 83.
192 Chicago Hearing, Vol. I, Paul McGeady, p. 83-85;
During the same period the Los Angeles Police Department was
actively involved in the investigation of major obscenity
distributors; Chicago Hearing, Vol. I, Donald Smith, p. 33;
Since 1973 the Los Angeles Police Department vice division
successfully convicted offenders in over three hundred
obscenity cases. In addition, it is noted that the Los
Angeles Police Department cases were prosecuted in California
state courts which use the Memoirs-Roth test, a much more
difficult legal standard than in the federal courts which
apply Miller. Los Angeles Hearing, Vol. I, James Docherty,
P- 6; See also. The discussion of the History of Regulation
ana First Amendment Considerations for further information.
504 505
authorize prosecution.193 Experiences of Postal Inspectors
in which federal prosecutors have declined prosecution of
cases have dissuaded them from fully using their existing
resources to investigate obscenity cases.
An agent of the United States Customs Service testified
that his office had made countless thousands of seizures of
adult materials over the last two years, but had presented
none of them to the United States Attorneys' offices.195 The
agent said it was his understanding from the Assistant United
States Attorneys that the Department of Justice policy was
not in favor of prosecuting obscenity cases and presentation
would be pointless.196 Similar statements have been received
from federal agents in Minnesota and New York. 9' The same
Customs agent testified that he had presented fifty different
child pornography seizures to the United States Attorneys for
prosecution of which approximately forty-seven were accepted
for prosecution.I98
While the Departmental guidelines make both child
pornography and enumerated types of adult material of equal
193 Washington, D.C., Hearing, Vol. I, Jack Swagerty,
p. 138.
194 Id. at 70-71.
195 Id.; Chicago Hearing, Vol. I, Jack O'Malley, p.
117-18.
"« Id.
197 Chicago Hearing, Vol. I., Paul McGeady, p. 85-86.
198 Chicago Hearing, Vol. I., Jack O'Malley, p. 119.
r
prior i ty_,' there is a practice of prosecuting child
pornography ahead of all else and to the virtual exclusion of
obscenity cases. A Department of Justice official testified
that all child pornography cases "merit priority" while the
Department seeks obscenity cases which would have
"significant deterrent effect."199
Despite stated departmental objectives, in practice,
emphasis on child pornography to the exclusion of adult
obscenity cases is apparent 200 While aggressive
prosecution of child pornography cases is laudable, it should
not be a justification for the failure to prosecute
appropriate cases involving obscene material. The small
number of obscenity prosecutions is not a product of the
Department's existing guidelines. The lack of obscenity
prosecutions is a result of the way in which the guidelines
have been interpreted and not implemented by United States
Attorneys. The reverse of the Department's stated policy
appears to be the actual practice. The guidelines are used
as a basis for declination, i.e.: a reason to "get rid of a
case presented", and are not used to establish prosecution
priorities. This practice has created the perception among
federal law enforcement agents that the work necessary to
Chicago Hearing, Vol. II, James S. Reynolds, p 266.
200"" From 1978 through February, 1986, 255 persons were
indicted and 215 individuals convicted of child pornography
- 5ions* This sh°ul<J be contrasted with one hundred6" Jand seventy-one convictions for obscenity lawns during the same period.
506 507
V01. 1, O - 86 - 17
present an obscenity case to the United States Attorney's
office is a wasted effort.201
The United States Attorneys should make, as the
Assistant Attorney General requested in his memorandum, a
realistic appraisal of the obscenity problem in their
respective jurisdictions. They should identify existing
violations of obscenity laws, use Departmental guidelines to
create priorities and begin to prosecute offenders
aggressively and without further delay.
In implementing the priorities under the Department of
Justice Guidelines, the United States Attorneys may consider
examining the nature of the obscene materials. This may be
done in accordance with this Commission's findings of harm
with respect to each class of material.2"2
Only the Attorney General by direct and continuous
action and personal supervision can ultimately ensure that
these federal officers fulfill their responsibility in this
neglected area. This attention and supervision should result
in immediate positive results in law enforcement and
prosecution efforts. The effects of this action will have
long term consequences and will serve as the foundation for a
continuing prosecution and enforcement program.
,201 See, Chicago Hearing, Vol. I, Jack O'Malley;
Washington, D.C., Hearing, Vol. I, Jack Swagerty.
202 see, The discussion of the harms and benefits
attributable to each type of material in Part Two.
508
<
RECOMMENDATION 12:
THE ATTORNEY GENERAL SHOULD APPOINT A HIGH RANKING OFFICIAL
FROM THE DEPARTMENT OF JUSTICE TO OVERSEE THE CREATION AND
OPERATION OF AN OBSCENITY TASK FORCE. THE TASK FORCE SHOULD
CONSIST OF SPECIAL ASSISTANT UNITED STATES ATTORNEYS AND
FEDERAL AGENTS WHO WILL ASSIST UNITED STATES ATTORNEYS IN THE
PROSECUTION AND INVESTIGATION OF OBSCENITY CASES.
DISCUSSION
The Attorney General should create a task force under the
direction of a high ranking official, of no less stature than
a Deputy Assistant Attorney General, to investigate and
prosecute obscenity law violations. The director of the task
force should be included in all pertinent policy and budget
decisions. The individual appointed must have a high degree
of personal commitment to the objective of this task force
which will requires countless hours of personal supervision.
This task force should attack the obscenity problem in a
concerted and organized manner.
The director of the task force should enlist aggressive
and well trained prosecutors and investigators. Experienced
prosecutors could be detailed from the Department of Justice
or the United States Attorneys' offices on a full-time and/or
Part-time basis. The Federal Bureau of Investigation, the
509
United States Customs Service and the United States Postal
Service should all contribute investigators to the task
force. All prosecutors should be seasoned trial attorneys
familiar with complex obscenity law issues and defense
tactics.
The task force members should be brought together by
the Department of Justice for intensive training and then
begin immediate service. A selected number of prosecutors
from each United States Attorney's office including selected
United States Attorneys should also participate in this
training to enable them to understand and deal with the
problem in each and every federal district where violations
occur.
The task force should be used to address two major
concerns. First, the task, force prosecutors would be
particularly helpful in jurisdictions in which the United
States Attorneys are burdened with heavy caseloads and
believe they cannot allocate manpower to prosecute such
crimes or where the Assistant United States Attorneys lack
expertise in obscenity prosecutions.203 The task force would
play a support role for the United States Attorneys and
federal investigators by assisting them with their cases and
by serving as a national resource for legal and technical
advice as well as a source of information. Second, the task
203 Chicago Hearing, Vol. II, James S. Reynolds, p.
272-73; Chicago Hearing, Vol. I, Paul McGeady, p. 85? Chicago
Hearing, Vol. II, Larry Parrish, p. 216-17.
510
force could be used to assist, or at their request, relieve
United States Attorneys of these responsibilities during
major investigations of a national scope.
The task force would complement the permanent staff of
United States Attorneys as needed or when requested
completely take over investigation and prosecution in a
particular district.
RECOMMENDATION 13:
THE DEPARTMENT OP JUSTICE SHOULD INITIATE AN OBSCENITY LAW
ENFORCEMENT DATA BASE WHICH WOULD SERVE AS A RESOURCE FOR
FEDERAL, STATE AND LOCAL LAW ENFORCEMENT AGENCIES.
There is no government department or agency which
presently serves as a centralized source of complete
information for prosecutors and investigators involved with
obscenity cases.204 Federal prosecutors and investigators
must currently "recreate the wheel" in almost every new case
developed. Many cases involve the same corporations and
individuals and a duplication of efforts is a substantial
waste of precious investigative time and resources. The
Obscenity Task Force discussed in the Department of Justice
204
n. . Currently the Department of Justice, CriminalDivision, General Litigation and Legal Advice Section has one
person to assist prosecutors with information and advice in
nro= afea of law' It: is impossible for one person, with thePresent mandate, to fulfill the need as described herein.
511
r
Recommendation should be complemented by the creation of such
1 a data base within the Department of Justice.
The data base should consist of profiles of cases
prosecuted, case histories, corporate records, real estate
records, a brief bank, information concerning known
offenders, individuals associated with organized crime
families and any other information pertinent to the
investigation and prosecution of obscenity cases. The data
base would enable federal, state, and local law enforcement
personnel to draw on information and expertise gathered
nationwide. This data base should also cross-reference the
information contained in the data base created for child
pornography.205
Two experienced Department of Justice Attorneys with
adequate support staff could easily administer this project
which would result in a substantial reduction of
investigative expenses. The information should be readily
available to law enforcement agencies in the legitimate
investigation of criminal activity, but safeguards should be
enacted to avoid and potential abuse of individual civili
liberties.
RECOMMENDATION 14:
205 See, The discussion in Child Pornography for
further information.
512
THE UNITED STATES ATTORNEYS SHOULD USE THE LAW ENFORCEMENT
COORDINATING COMMITTEES TO COORDINATE ENFORCEMENT OF THE
OBSCENITY LAWS AND TO MAINTAIN SURVEILLANCE OF THE NATURE AND
EXTENT OF THE OBSCENITY PROBLEM IN THE LOCALITIES WITHIN
THEIR DISTRICTS.
The Law Enforcement Coordinating Committees ( LECCs )
developed under the direction of former Attorney General
William French Smith are comprised of the United States
Attorney and representatives of federal, state, and local law
enforcement agencies within the particular judicial district.
The LECC's objective is to improve cooperation and
coordination among participating agencies. In addition the
LECCs develop law enforcement priorities for the district,
target the most serious crime problems and provide a forum
for an exchange of information and intelligence.
The United States Attorney for the Northern District of
New York arranged a LECC conference on child pornography in
his district. 206 The two hundred law enforcement personnel
in attendance were addressed by Federal Bureau of Investi-
gation Agents, United States Postal Inspectors, state police,
and state and local prosecutors.207 The New York conference
greatly increased awareness of the child pornography problem
6 Chicago Hearing, Vol. II, Frederick J. Scullin, p.39 •
207 Id.
513
and contributed to the almost immediate initiation of at
208least three child pornography prosecutions. uo
In July 1984, the United States Attorney for the Eastern
District of North Carolina established an LECC subcommittee
to investigate obscenity, organized crime and cttild abuse.209
At that time the North Carolina obscenity law was considered
one of the weakest in the United States and the state had the
highest number of "adults only" pornographic outlets per
capita of any state in the nation.210 The North Carolina
LECC subcommittee was comprised of federal, state and local
law enforcement officials and spent a year developing a law
enforcement blueprint.211 The subcommittee discovered
involvement of organized crime members and their associates
in the obscenity business in North Carolina.212 AS a result
of its investigation the LECC subcommittee drafted and
recommended a more effective state obscenity law which was
subsequently enacted by the North Carolina legislature.213
They also recommended continued cooperation between federal
and state authorities, and the creation of a statewide
208 Id_. at p. 39-40.
209 New York Hearing, Vol. II, Robert Showers, p. 60.
210 Id. at 59.
211 New York Hearing, Vol. II, Sam Currin, p. 90.
212 New York Hearing, Vol. II, Robert Showers, p. 61.
213 Id. at 63.
r
"pornography task force."214 As a result of these efforts by
the LECC subcommittee, the distribution of obscenity in North
Carolina can now be more effectively controlled.215 These
two examples illustrate the effectiveness of the LECCs when
utilized by United States Attorneys who are committed to
fighting obscenity and its related organized crime elements.
The Department of Justice guidelines allow United States
Attorneys to prioritize obscenity cases where a particular
problem has been identified in the district. The LECCs are a
means for the United States Attorney to maintain surveillance
of the nature and extent of obscenity trafficking in his or
her particular jurisdiction and they should be used
specifically for that purpose.
RECOMMENDATION 15:
THE DEPARTMENT OF JUSTICE AND UNITED STATES ATTORNEYS SHOULD
USE THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT
(RICO) AS A MEANS OF PROSECUTING MAJOR PRODUCERS AND
DISTRIBUTORS OF OBSCENE MATERIAL.
Recent amendments to the Racketeer Influenced and Corrupt
Organizations Act (RICO) made obscenity offenses predicate
214
P. 90.
215
Id., at 65; New York Hearing, Vol. II, Sam Currin,
New York Hearing, Vol. II, Robert Showers, p. 64.
514 515
°r
crimes under the statute.216 To date, no prosecutions
216 18 U.S.C. SS1961-1968 (West Supp. 1985). Section
1961 (5) defines a "pattern of racketeering activity as at
least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and the
last of which occurred within ten years (excluding any period
of imprisonment) after the commission of a prior act of
racketeering activity. Section 1961 (1) defines
"racketeering activity" as (A) any act or threat involving
murder, kidnaping, gambling, arson, robbery, briberv,
extortion, dealing in obscene matter, or dealing in narcotic
or other dangerous drugs, which is chargeable under State law
and punishable by imprisonment for more than one year; (B)
any act which is indictable under any of the following
provisions of title 18, United States Code: Section 201
(relating to bribery), section 224 (relating to sports
bribery), sections 471, 172, and 473 (relating to
counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under section 659
is felonious, section 664 (relating to embezzlement from
pension and welfare funds), sections 891-894 (relating to
extortionate credit transactions), section 1084 (relating to
the transmission of gambling information), section 1341
relating to mail fraud), section 1343 (relating to wire
fraud), sections 1461-1465 (relating to obscene matter),
section 1503 (relating to obstruction of justice), section
1510 (relating to obstruction of criminal investigations),
section 1511 (relating to the obstruction of state or local
law enforcement), section 1951 (relating to interference with
commerce, robbery, or extortion), section 1952 (relating to
racketeering), section 1953 (relating to interstate
transportation of wagering paraphernalia), section 1954
(relating to unlawful welfare fund payments), section 1955
(relating to the prohibition of illegal gambling businesses),
sections 2312 and 2313 (relating to interstate transportation
of stolen motor vehicles), sections 2320 (relating to
trafficking in certain motor vehicles or motor vehicle
parts), sections 2341-2346 (relating to trafficking in
contraband cigarettes), sections 2421-24 (relating to white
slave traffic), (C) any act which is indictable under title
29, United States Code, section 186 (dealing with
restrictions of payments and loans to labor organizations) or
section 501(c) (relating to embezzlement from union funds),
(p) any offense involving fraud connected with a case under
title 11, fraud in the importation, receiving, concealment,
buying, selling, or otherwise dealing in narcotic or other
dangerous drugs, punishable under any law of the United
States, or (E) any act which is indictable under the Currency
and Foreign Transactions Reporting Act; Any of those acts or
offenses constitute a predicate act under RICO.
against producers or distributors of obscene material have
been brought under RICO in any of the ninety-four federal
districts. RICO was enacted as part of the Organized Crime
Control Act of 1970.217 Prosecution under RICO arises when
an individual demonstrates an established pattern of
racketeering activity. Section 1961(5) requires that at
least two of the federal or state predicate crimes enumerated
in section 1961(1) must have been committed by the individual
within a ten year period.218 Offenses relating to obscenity
are included among the predicate offenses.219 The activities
proscribed under RICO are listed in section 1962 as follows:
(a) investing proceeds of a pattern of
racketeering in an enterprise.
(b) acquiring or maintaining an interest in
an enterprise through a pattern of
racketeering.
(c) conducting affairs of an enterprise
through a pattern a racketeering.
(d) conspiring to violate (a), (b), or
(c).220
The penalty provisions of 18 U.S.C. C1963 provide for a
217
218
18 U.S.C. SS1961-1968 (West Supp. 1985).
Ld; A predicated crime is one upon which an actionunder RICO can be based.
219 18 U.S.C. S1961(1)(B).
220 18 U.S.C. S1962 (West Supp. 1985).
516 517
o
fine of not more than $25,000 or imprisonment for not more
than twenty years or both.221 The statute also provides for
mandatory forfeiture of:
(a) a defendant's interest in any enterprise
acquired with racketeering income.
(b) interests, securities, claims or
contractual rights of an illegally
controlled enterprise.
(c) proceeds or property derived from such
proceeds.
Department of Justice guidelines regarding RICO
prosecutions appropriately prohibit a United States Attorney
from bringing an indictment for a violation of section
1962(c) based upon a pattern of racketeering activity growing
out of a single criminal episode or transaction.222 Thus an
individual could not be indicted under RICO based on
violations of 18 U.S.C. S1461 (mailing obscene matter) and 18
U.S.C. S1463 (mailing indecent matter on envelope or wrapper)
if both arise out of the same mailing. This is a situation
which may occur frequently in obscenity cases and thus
preclude the United States Attorney from prosecuting under
221 18 U.S.C. S1963 (West Supp. 1985).
222 United States Department of Justice, United States
Attorney's Manual, Title 9, Chapter 110., p. f~. (June IB,
1981) .
RICO.223 it should be obvious that the stringent forfeiture
provisions under RICO would be one of the strongest weapons
in the prosecution arsenal and could, in appropriate cases,
virtually eliminate a large scale pornography operation.
RECOMMENDATION 16:
THE DEPARTMENT OF JUSTICE SHOULD CONTINUE TO PROVIDE THE
UNITED STATES ATTORNEYS WITH TRAINING PROGRAMS ON LEGAL AND
PROCEDURAL MATTERS RELATED TO OBSCENITY CASES AND ALSO SHOULD
HAKE SUCH TRAINING AVAILABLE TO STATE AND LOCAL PROSECUTORS.
The preparation for trial of an obscenity case involves
complex legal and procedural issues. An inexperienced
prosecutor may often encounter an experienced defense counsel
who specializes in obscenity law and travels throughout the
country defending these cases. Defenses and issues which are
raised in each case are likely to be similar in prosecutions
throughout the country. Trial and appellate case law
developed in state and federal cases are very similar.
Poorly developed case law developed on the state level can
have adverse effects on federal prosecutions and vice versa.
Training programs offered by the Department of Justice
that prepare attorneys to address these issues will enable
223
this Chaptlf^' Recommendations for Changes in Federal Law in
518 519
federal prosecutors to be more knowledgeable and effective.
They would be of similar value to state and local prosecutors
if made available to them. These programs should include a
familiarization with defense tactics which may include
personal attacks on harassment or law suits against
prosecutors and investigators.
RECOMMENDATION 17:
UNITED STATES ATTORNEYS SHOULD USE ALL AVAILABLE FEDERAL
STATUTES TO PROSECUTE OBSCENITY VIOLATIONS INVOLVING CABLE
AND SATELLITE TELEVISION.
The contents of some programs shown on cable and
satellite television channels have become a matter of
increasing public concern.224 Sorae Of the feature films
shown depict sexual themes, sexual acts and materials which
may be obscene under Miller.
The obscenity standard enunciated by the Supreme Court
in Miller v. California can be applied to material
transmitted over cable television. When the United States
Supreme Court declared that obscenity is not protected speech
under The First Amendment, no distinction was made as to the
medium of expression.225 Ag the United States District Court
in Utah found in Community Television of Utah v. Roy City,226
The Miller standard is applicable. It is a
national standard with a core of uniformity which
allows for a degree of flexibility at a community
level. It may be uniformly applied to'almost all
forms of publicly available communication. Books,
magazines, cassettes, periodicals, movies, and
cable television are all treated essentially in the
samefashionregardless of numbers, (emphasis
added)227
The court went on to explain, "The Court finds great
difficulty in distinguishing (other than the popcorn) between
going to the movies at a theatre and having the movies come
to me in my home through electronic transmission over wire.
The choice is mine. The location is different. The content
is the same."228
An individual may possess and view obscene materials in
the privacy of his own home.229 Despite popular arguments to
the contrary, it is well established in decisions by the
United States Supreme Court that there is no correlative
right' to rece ive, import, or distribute the obscene
225 Kaplan v. California, 413 U.S. 115, 118-19(1973).
226
227
228
229
Id. at 116.
555 F. Supp. at 1164 (D. Utah 1982).
Id. at 1170.
—' Stanley v. Georgia. 394 U.S. 557, 568(1969).
224 See, The discussion of Child Pornography Regulation
for furtherinformation.
520 521
o
materials, (emphasis added)230 An argument that in the cable
area the obscene materials are exhibited to consenting adults
only is not a defense to an obscenity prosecution.231
The Court in Paris Adult Theatres I v. Slaton,
stated,
Finally, petitioners argue that conduct which
directly involves "consenting adults" only
has, for that sole reason, a special claim to
constitutional protection. Our Constitution
establishes a broad range of conditions on the
exercise of power by the States, but for us to
say that our Constitution incorporates the
proposition that conduct involving consenting
adults only is always beyond state regulation,
is a step we are unable to take.233
In addition to the federal obscenity laws codified in 18
U.S.C. S1461, the Cable Communication Policy Act of 1984
provides another avenue for the prosecution of obscenity
shown over cable television.234
The Act, provides:
Whoever transmits over any cable system any
matter which is obscene or otherwise
230 See, United States v. Reidel, 402 U.S. 351(1971);
United States v. 37 Photographs, 402 U.S. 363, 376(1971).
231 See, Paris Adult Theatre I v. Slaton, 413 U.S. 49,
57(1973). ~~~
232 413 U.S. 49(1972).
233 Id. at 68.
234 47 U.S.C.A. S559 (West Supp. 1985).
522
unprotected by the Constitution of the United
States shall be fined not more than $10,000 or
imprisoned not more than 2 years, or both.235
This section should be used by federal prosecutors if
potential conflicts within such Chapter are resolved,
prosecutors should also vigorously enforce any new
legislation enacted in the area.
The inability of law enforcement officials to control
obscene cable programming is compounded by the inaction of
the Federal Communications Commission in this entire area and
makes enforcement efforts by United States Attorneys in each
district essential.
D. RECOMMENDATIONS FOR STATE AND LOCAL PROSECUTORS
RECOMMENDATION 18:
STATE AND LOCAL PROSECUTORS SHOULD PROSECUTE PRODUCERS OF
OBSCENE MATERIAL UNDER THE EXISTING LAWS INCLUDING THOSE
PROHIBITING PANDERING AND OTHER UNDERLYING SEXUAL OFFENSES.
Existing state laws provide penalties for pandering.
Pandering or "pimping" generally involves the procuring of an
individual to commit an act of prostitution for some form of
u The disc"ssion of the difficultieswith ^nlorcement of this statute.
523
consideration..
The production of obscene material almost always
involves acts of prostitution. Performers are recruited and
paid or otherwise induced (voluntarily or involuntarily) by
producers to perform or have performed upon them various
sexual acts including intercourse, fellatio, cunnilingus,
sodomy and bestiality. These acts are filmed or otherwise
recorded for reproduction and commercial distribution. By
procuring an individual to commit an act of prostitution the
producer of obscene material is acting in the same capacity
as a pimp.23** Like any other pimp he reaps his financial
reward from these acts of prostitution.
Pandering laws are an effective law enforcement tool
since they present a separate and distinct crime and do not
require proof of obscenity.237 Law enforcement officers
should view the pandering which takes place through the
production of obscene materials the same as pandering in any
other prostitution case. This Commission has heard
236 See, People v. Fixler, 56 Cal. App. 31 321, 128
Cal. Rptr. 363 (1976); United States v. Roeder, 526 F.2d 736,
739(10th Cir. 1975), cert.""denied 462 U.S. 905.
237 An investigator who testified before the Commission
recounted the following experience, "Another area that we are
presently using for enforcement is in the area of pandering. In
one of our recent cases we charged a hard-core film producer with
pandering.
It was our contention that this individual by the name of Hal
Freemen, who runs a company by the name of Hollywood Video in Los
Angeles, was hiring these girls to commit sex acts for money,
which is prostitution, this he was a pimp." Chicago Hearing,
Vol. I, Donald Smith, p. 36.
substantial testimony regarding coercion used in the
production of sexually explicit materials. We accordingly
suggest that law enforcement officers should use considered
judgement and avoid unnecessary charges of prostitution
against the performers.
State and local prosecutors should also scrutinize
obscene material for evidence of any other underlying
criminal offenses such as physical sexual abuse and bring
appropriate charges against the persons responsible for the
commission of such crimes.
Persons who appear in pornographic materials often may
be doing so under threat of force or coercion.238 Law
enforcement officers should be sensitive to claims of sexual
assault, sexual imposition, rape or related crimes of
violence against performers. While some performers are
willing to engage in the sexual activities required during
the production of pornographic materials, law enforcement
officers should remain aware of the significant possibility
that performers who are forced to engage in certain sexual
acts are victims of these underlying crimes.
RECOMMENDATION 19:
STATE AND LOCAL PROSECUTORS MUST MAKE A CAREFUL ASSESSMENT OF
238
Regulation.discussion of Child Pornography
524
525
THE OBSCENITY PROBLEM IN THEIR JURISDICTIONS, IDENTIFY
OFFENDERS INVOLVING BOTH ADULT AND CHILD MATERIAL AND
COMMENCE PROSECUTION WITHOUT FURTHER DELAY.
There is no substitute for an aggressive prosecutor who
will vigorously enforce the existing obscenity laws.
Prosecutors in Orlando; Florida; Atlanta; Georgia; and
Cincinnati, Ohio, have compiled impressive records in
enforcing the laws of those states.
For sixteen years239 tne solicitor for Fulton County,
Georgia, aggressively prosecuted any obscenity violation
brought to the attention of that office. As a result Atlanta
now has no theatres or bookstores which show or sell
materials that would be found obscene under Miller.240
Consistent enforcement efforts have had a substantial
deterrent effect.241
In Cincinnati, there are no bookstores, movies or cable,
television programs which are sexually explicit and would be
found obscene under Miller.242 The chief of the Cincinnati
vice sguad attributed this result to "a strong prosecutor and
a prosecutor willing to accept the cases and go ahead and
239 Chicago Hearing, Vol. II, Hinson McAuliffe, p. 177.
240 Id. at 185.
24* Id. at 185-86.
242 Chicago Hearing, Vol. I, Harold Mills, p. 93.
526
( i
prosecute."243
In Houston, prosecution of pornography cases has been a
high priority and the prosecutor has maintained a conviction
rate of ninety-two percent while handling over two hundred
cases per year.244
For the past fifteen years, only one detective on the
Miami, Florida, police department has been assigned to
investigate obscenity violations.245 During that time, this
investigator has brought over one thousand cases for
prosecution and a conviction was obtained in every case.246
The number of "adults only" pornographic outlets in Miami has
decreased during this same period from twenty-three to
eight.247
Local law enforcement agents should also seek assistance
from federal agencies to effectively combat organized crime
involvement in pornography when identified. According to a
local law enforcement officer, "Without the mutual exchange
of information of the joint task force, local law enforcement
cannot and will not be able to cope with the situation of
organized crime and the delivery and dissemination of
243
244
245
246
247
Id.
Houston Hearing, Vol. I, W.D. Brown, p. 49.
Miami Hearing, Vol. I, Mike Berish, p. 63.
Id. at 64.
Id at 63.
527
pornography . . ."248
State and local prosecutors must accept the challenge
and enforce the existing laws stringently and consistently so
that purveyors of obscene material will find no haven in
their jurisdictions. These efforts should be based upon an
evaluation of the relative harmful effects of materials
available.249 This evaluation should include particular
consideration of explicitly violent materials and materials
which are humiliating or degrading.
RECOMMENDATION 20:
STATE AND LOCAL PROSECUTORS SHOULD ALLOCATE SUFFICIENT
RESOURCES TO PROSECUTE OBSCENITY CASES.
See, Recommendation 19 for further discussion of resources
devoted to obscenity investigation and prosecution.
RECOMMENDATION 21:
STATE AND LOCAL PROSECUTORS SHOULD USE THE BANKRUPTCY LAWS TO
COLLECT UNPAID FINES.
Courts frequently impose a monetary fine after a conviction
for an obscenity violation. In a number of cases, especially
those involving corporate defendants, these fines may go
unpaid. Once conventional means of collecting of such fines
have been exhausted these outstanding judgments can be
satisfied by the use of bankruptcy laws.250 when a defendant
accumulates two or more outstanding debts the prosecutor can
file an involuntary bankruptcy petition and the court can
ultimately take custody of any assets and liquidate them to
satisfy those debts including unpaid fines. The liquidation
should include items of value such as real property,
structures and fixtures. The liquidation would not include
the sale or distribution of obscene material which may be a
part of the inventory. All such material would be disposed
o£ in the manner provided by law.
The prosecutor in Atlanta, Georgia, successfully used
the bankruptcy laws to collect fines and made it unprofitable
for manv dealers in obscene material to stay in business.251
The bankruptcy proceedings are also useful in
determining the true ownership of the businesses who deal in
obscene materials. This is particularly helpful when "sham"
or "shell" corporations are used to conceal ownership. The
results may also assist prosecutors to target the culpable
individuals for subsequent criminal prosecution.
248
249
New York Hearing, Vol. II, William Johnson, p. 82.
See, The discussion of Harms, supra.
250
251
84.
11 U.S.C. S302 (Supp. II 1984).
Chicago Hearing, Vol. II, Hinson McAuliffe, p. 183-
528 529
State and local prosecutors also may enlist the
assistance of federal investigators and prosecutors when
dealing with a major obscenity distributor with substantial
resources. These federal agents and prosecutors could assist
in identifying the resources and their location for inclusion
in the bankruptcy action.
RECOMMENDATION 22:
STATE AND LOCAL PROSECUTORS SHOULD USE ALL AVAILABLE STATUTES
TO PROSECUTE OBSCENITY VIOLATIONS INVOLVING CABLE AND
SATELLITE TELEVISION.
State and local prosecutors should prosecute cable and
satellite television programmers or operators under existing
state statutes for exhibiting any program that is obscene
under the Miller test. The Commonwealth's Attorney for the
city of Virginia Beach, Virginia, monitored and videotaped
fifty hours of programming on a local cable channel, shown in
his jurisdiction. Thirteen and one half hours of the
videotaped programming were submitted to a grand jury, which
returned seven indictments against the cable operator for
distributing obscene material. As a result of those
indictments, the cable operator eliminated the channel in
I 1
530
question from its program offerings.252
See, Department of Justice Recommendations and
Recommendations for Law Enforcement Officers in this Chapter.
RECOMMENDATION 23:
STATE AND LOCAL PROSECUTORS SHOULD ENFORCE EXISTING CORPORATE
LAWS TO PREVENT THE FORMATION, USE AND ABUSE OF SHELL
CORPORATIONS WHICH SERVE AS SHELTERS FOR PRODUCERS AND
DISTRIBUTORS OF OBSCENE MATERIAL.
Producers and distributors of obscene material often use
multiple corporate entities as a means of concealing the true
ownership or nature of their businesses.253 They typically
create layers of corporations to insulate their identities
from a claim of actual ownership. Separate corporations may
be formed to perform the different operations of a single
bookstore. Separate corporations may be formed to control
the sale of magazines, operate the bookstore, construct peep
show booths, collect coins from peep show booths, and to
repair the same booths.254
(May
2 e o
National Decency Reporter, Vol. 22, No. 3, p. 1
-.1llr,« 1985) .
New York Hearing, Vol. II, William Johnson, p. 82.253
254 Id.
531
r
The articles of incorporation and other documents may
list as incorporators, shareholders or officers the names of
mere employees or even strangers. The names may be on the
documents without the named person's knowledge or consent. "
Some producers and distributors may rely on law enforcement
knowledge of such practices to argue they are not the true
owners even though listed as such.
Law enforcement officers face difficult burdens in
identifying and bringing charges against or collecting taxes
from the true owners who hide behind these shell
corporations. Often they can locate only low level employees
who may be unfamiliar with the identity of the persons who
actually own or control the operation of the business.256
State laws governing the formation of corporations
should be enforced fully to permit the identification of
those persons managing and financing the obscenity industry.
Corporate charters should be revoked when fraud is proven and
the assets seized when permitted.
RECOMMENDATION 24:
STATE AND LOCAL PROSECUTORS SHOULD ENFORCE THE ALCOHOLIC
BEVERAGE CONTROL LAWS THAT PROHIBIT OBSCENITY ON LICENSED
PREMISES.
blishments that display or sell obscene materials may
be licensed by the state or locality to sell alcoholic
beverages. State and local alcoholic beverage control laws
ften prohibit obscene material and obscene performances on
the licensed premises. Enforcement of these laws or
rdinances in the courts or through administrative procedures
la another tool at the disposal of law enforcement agents to
remove pornography from theatres, restaurants and other
establishments.
These enforcement measures should be implemented with
recognition of the current social and behavioral science
conclusions with respect to various types of materials. Law
enforcement officers may consider the potential harm which
may be attributable to certain types of materials when
establishing criteria for enforcement of this aspect of
alcoholic beverage laws.
A finding of guilt under the alcoholic beverage control
laws could bring' suspension or revocation of an
establishment's liquor license. The potential of such a loss
of revenue to an individual or business would have a
significant deterrent effect.
RECOMMENDATION 25:
255 id.
256 Id.
GOVERNMENT ATTORNEYS, INCLUDING STATE AND LOCAL PROSECUTORS,
532 533
f * IFT
SHOULD ENFORCE ALL LEGAL REMEDIES AUTHORIZED BY STATUTE.
See, Discussions of nuisance laws, zoning, anti-display
statutes, alcoholic beverage control laws.
E. RECOMMENDATION FOR FEDERAL LAW ENFORCEMENT AGENCIES
RECOMMENDATION 26:
FEDERAL LAW ENFORCEMENT AGENCIES SHOULD CONDUCT ACTIVE AND
THOROUGH INVESTIGATIONS OF ALL SIGNIFICANT VIOLATIONS OF THE
OBSCENITY LAWS WITH INTERSTATE DIMENSIONS.
As recommended elsewhere in this report, the United
States Attorneys should begin prosecuting appropriate
violations of the federal obscenity laws without further
delay.257 Tne efforts of federal prosecutors must be based
upon and complemented by active and thorough investigations
of all violations of the obscenity laws by the federal law
enforcement agencies.
The Federal Bureau of Investigation (FBI) derives its
investigative jurisdiction in this area from the federal
257 See, United States Department of Ju.•tice
RecommendatToTT 1; "Investigation Authority" is the statutory
power granted to an agency to initiate and pursue inquir
into criminal activity.
534
statutes covering obscenity and child pornography.258 From
the beginning of fiscal year 1978 through the second quarter
of Fiscal Year 1985, the FBI has conducted 2,484
investigations involving interstate transportation of obscene
materials and violations involving child pornography.259
These investigations have resulted in 137 indictments and 118
convictions. Of these figures forty-five indictments and
fourteen convictions were the result of the single
investigation known as MIPORN.260 the FBI has given its
highest priority to cases involving organized crime."1 The
Federal Bureau of Investigation recently conducted a two year
investigation which resulted in the case United States v.
Guqlielimi.262 This case grew out of an approximately
two-year investigation by the Federal Bureau of Investigation
regarding obscene materials, particularly bestiality films
shipped in interstate commerce into the Western District of
North Carolina. The investigation, which first centered
around undercover purchases from a relatively small
street-corner outlet for "sexual aids" and pornographic
magazines, films and pockets books, expanded after a
258 18 U.S.C. SS1462 & 1465; 18 U.S.C. SS2251 - 2255}Washington, D.C., Hearing, Vol. II, William Webster, p. 76.
259 Washington, D.C., Hearing, Vol. II, WilliamWebster, p. 76.
260
261
262
Id.
Jd. at 77.
C-CR-85-59(W.D.N.C. 1986).
535
successful search of those premises and interview of the
personnel, to a cautious undercover investigation involving
telephone calls to, and meetings with, the defendant himself.
The introduction to the defendant was made by a former
"adult" bookstore operator, and various orders of bestiality
films and other materials were followed by a successful
search of Central Sales, the defendant's multistory Baltimore
warehouse for the shipment of obscene materials. The Grande
Jury's eleven-count indictment for violations of Title 18,
U.S. Code, Sections 2, 371, 1462 and 1465, followed on June
12, 1985.
The trial lasted approximately four days, during which a
number of bestiality films were displayed, in titles of which
indicated the animals portrayed. The defense called a number
of "experts" who were experienced defense specialists in
pornography cases, several of whom were affiliated with the
Institute for the Advanced Study of Human Sexuality, a San
Francisco, California, group that includes among its classes
a course on testifying for the defense in pornography cases.
Information provided by other prosecutors made possible the
effective cross-examination of these witnesses. The defense
"experts" testified that the materials did not appeal to the
prurient interest of the average citizen in the Western
District of North Carolina, since the average person does not
have such an interest.
The trial in general was characterized by numerous voir
536
r
dire examinations and arguments on a number of points of law
and fact. Pre-trial motions had also been lengthy and had
included a Motion of Recuse, by which the defendant sought to
have the trial judge, the Honorable Robert D. Potter, to
disqualify himself. This motion was denied, and defendant
filed a petition for writ of mandamus to the Fourth Circuit,
which was also denied.
The jury was similarly unpersuaded by defense arguments
and found the defendant guilty of all eleven counts in the
indictment. Judge Potter sentenced the defendant to a total
of twenty-five years incarceration and a $35,000 fine. The
case is now under appeal.
The Director of the FBI told this Commission that while
the Bureau does not "downgrade" the seriousness of the
problem of obscenity violations involving adult material.
'[i]t is simply the implication of our resources.,263 He
added that "[i]t will probably mean that there will be less
pro-active initiatives on our part" in adult cases that do
not involve organized crime.
This Commission received evidence that two of the FBI
field offices in one of the nation's most active obscenity
distribution centers, New York City, will not investigate
cases involving obscene material.265
263
264
265
Id. at 90.
Id.
New York Hearing, Vol. IV, Paul McGeady, p. 126.
537
The Federal Bureau of Investigation is encouraged to
seriously set up its investigative efforts relating to
obscenity law violations.
The jurisdiction of the United States Customs Services
extends to all materials entering the United States by land,
sea or air.266 Prior to the signing of the Child Protection
Act of 1984 (18 U.S.C. SS2251-2255) , the United States
Customs Service had received direction from Commissioner
William Von Raab to step up efforts to intercept obscene
material. Special emphasis was placed on material depicting
children in sexual explicit conduct. The Customs Service was
responsible for six successful child pornography prosecutions
in fiscal year 1983. Five of the convictions were violations
various state laws and the sixth was a violation Federal Law,
18 U.S.C. S1462. With the signing of the Child Protection
Act, the figures changed to fourteen federal convictions and
twenty state convictions in 1984, and nineteen federal and
ten state convictions as of August 1985.
Until the early part of 1985, the Customs Service's
method for initiating child pornography investigations was
fairly static. A mail parcel would be examined at one of the
twenty-two customs foreign mail facilities. The package,
once discovered to contain child pornography, would be
forwarded to the Office of Investigations in the District
concerned. The case agent would then match the name and/or
266 Chicago Hearing, Vol. I, Jack O'Malley, p. 105.
538
address of the addressee with other seizures. A background
'nvestigation on the addressee would be conducted in order to
show other criteria as outlined in the United States
Attorneys Manual. Based on the results of the investigation
and a controlled delivery of the seized parcel, a search
warrant would be obtained and executed on the address in
question. In the majority of the search warrants executed,
the suspect would be found to have a large collection of
imported and home-made child pornography. Additionally, more
and more evidence was found to link child molestation to the
importers of the child pornography.267
By February 1985, compilations of seizure lists were
being made and disseminated throughout the service. Most
field offices had assigned at least one, and sometimes
several agents to investigate child pornography cases on an
exclusive or collateral basis. Foreign mail facilities were
targeting the traditional "source" countries of child
pornography: Denmark, the Netherlands, and Sweden.
In January 1985, a special delegation representing the
United States Customs Service, the United States Postal
Inspection Service and the Federal Bureau of Investigation
travelled to Europe. Their purpose was to address the issue
°E foreign cooperative efforts in fighting the child
Pornography industry.
267
"olestan^ • at least one instance, an agent discovered ato an ?nf xn.Progress. (The case resulted in a guilty plea
information followed by a probationary sentence.)
539
"8-315 vol. i,°-86 18
As a result of these crItical.contacts, interagency
cooperation is expanding. Investigators are beginning to
look for the major distributors, producers, and consumers.
Increased cooperation with foreign governments had led to two
successful undercover operations in 1985. As a result of the
increased foreign cooperation, new methods of smuggling, as
well as additional source countries and distributors are
being identified. Examples include: Transshipment routes
through England, France, East Germany, and Southeast Asia
countries heretofore not considered source countries, such as
France, Italy, Japan, Thailand and the Philippines; and more
sophisticated packaging techniques and profiles.
New methods of conducting child pornography
investigations are being developed and attempted. These
include the adaptation of methods used in narcotics and
currency investigations, as well as methods used in the
investigation of criminal sex offenses. Some bold and
innovative undercover operations have been suggested and
implemented.
The Customs Service is actively pursuing the enhancement
of existing resources and the development of programs to meet
the changing needs of the enforcement effort. It is only by
such a process of enhancement and development that the
customs service or any other agency can hope to compete with
the ingenuity of those who sexually exploit children.
Future efforts in pornography enforcement will center
540
around the activities of the Child Pornography and Protection
it (CPPU)- Criminal investigations that focus on sexual
exploitations which involve other customs violations and
other forms of obscene material have and are being developed,
guch investigations involve customs fraud, unreported
currency transactions, and general smuggling. Currently, all
obscene material encountered by the customs foreign mail
facilities are processed for forfeiture under civil statute.
If at some future time the Customs Service becomes involved
in criminal investigation of obscene violations, the data
already available through this procedure will provide
Invaluable investigative leads.
Customs examines all parcels which are suspected of
containing contraband.268 With respect to obscenity law
cases particular attention is given to parcels from Denmark,
Sweden and the Netherlands. These countries have
traditionally been the source of child pornography entering
the united States.269 In 1984, Customs seized forty-three
hundred parcels which contained suspected obscene
materials.270 child pornography was found in 50 percent of
those.271 The other items seized were largely adult
materials including some depicting bestiality, urination and
268
269
270
271
Id.
Id. at 106.
Id.
Id.
541
I I
defecation.272
When a Customs agent seizes obscene material, a notice
is sent to the intended recipient of the material. The
notice permits the individual to sign a release and forfeit
the material to the government. The material is subsequently
destroyed and generally no one is prosecuted for an obscenity
violation. '•* If the material is child pornography, a
controlled delivery is made to the recipient and a search
warrant is subsequently executed on the recipient's premises,
often leading to the arrest of that individual.2'4 According
to one Customs agent assigned to Chicago, "countless
thousands" of obscenity cases involving obscene materials
have not been presented to the United States Attorney because
based upon their experience, agents perceive that these cases
will not be prosecuted.^75
The United States Postal Inspection Service has
investigative responsibility over all federal criminal
violations involving the mails including the use of the mails
to distribute obscenity.276 Investigations are initiated
based on citizen complaints, advertisements in sexually
272 id.
273 i£. at 107.
274 id_. at 107-08.
275 id. at 118.
276 Washington, D.C.. Hearing, Vol. I. Charles Clauson,
p. 135.
r
iented publications and correspondence initiated by a
costal inspector. Postal inspectors are responsible for
protecting the mails and postal facilities from criminal
attack? f°r protecting the American public from being
victimized by fraudulent schemes where use of the mails is an
essential part of the scheme; and for keeping postal
management informed of the conditions and needs of the Postal
Service.
Postal crimes fall within two broad categories: Criminal
acts against the Postal Service, such as, armed robberies,
burglaries or theft of mail and misuse of the Postal System
such as the mailing bombs, use of the mails to defraud the
public and the use of the mails to distribute pornography.
The Inspection Service is also responsible for the internal
audit of Postal Service operations and for the security of
postal facilities and employees. In addition, the Inspection
Service is responsible for investigating violations of a
number of civil statutes relating to the use of the mails
including the Postal False Representations Statute.
Title 18, United States Code, Section 1461, enacted in
1865, is the statute by which the Postal Inspection Service
restricts use of the mails to distribute obscene matter. The
statute provides for criminal penalties of up to five years
lr> prison, a $5,000 fine, or both, for using the mails to
transmit any "obscene lewd lascivious indecent filthy or vile
277 Id. at 136.
542
543
article, matter, thing, device or substance."
Title 18, United States Code, Sections 2251-2255, the
Protection of Children Against Sexual Exploitation Act of
1977 and the Child Protection Act of. 1984 are the statutes by
which the Postal Inspection Service investigates trafficking
in child pornography through the mails. The statute provides
for criminal penalties of up to ten years in prison and/or a
$100,000 fine. The offender's property used in or derived
from the crime is subject to criminal and civil forfeiture
under this section. Most states have laws dealing with the
sale, distribution and/or possession of obscenity. When dual
jurisdiction is involved, Inspectors assist local authorities
in the enforcement of their laws. On the international
level, the Inspection Service cooperates with the Department
of State, the United States Customs Service, Interpol and
certain foreign postal authorities to stem the flow of
obscene material and child pornography into or from the
domestic sources.
Congress has also enacted three civil statutes designed
to curb the mailing of sexually oriented material. Title 39,
United States Code, Section 3006, allowed the Postal Service
to refuse to deliver mail in response to advertising which
sought to obtain money through the mailing of obscene matter.
Sections 3008-3011, allows postal customers- to obtain
an order prohibiting any future mailings by anyone who mails
them an advertisement which the addressee considers sexually
provocative. Title 39 United States Code, authorizes the
postal Service to maintain a list of persons who do not wish
to receive sexually oriented advertising and prohibits the
-ailing of such advertising to persons who have asked to have
their names listed. Companion criminal statutes, 18 U.S.C.
SS1735-1737, authorize the courts to penalize persons who
mail sexually oriented advertising ar/1 prohibits the mailing
of such advertising the persons whose names are on the list.
The Department of Justice has established enforcement
priorities with respect to the obscenity statutes and the
Postal Inspection Service's investigative activities are
determined accordingly. The Inspection Service has currently
established the following priorities:
1. Policy
All investigations involving the use of the mail to
transmit child pornography are given priority
attention. Major domestic and foreign dealers in
obscene material also receive prompt investigative
attention.
2. Child Pornography
The objective in child pornography cases is to
identify and investigate mail order activity. If
other offenses such as child abuse are discovered
incident to an investigation, this activity is
immediately referred to local police or other
544 545
appropriate authorities.
3. Obscene Material
The objective in the obscenity area is to
investigate cases consistent with Department of
Justice priorities. These priorities are:
A. Large scale commercial obscenity distributors
involved in multi-state operations.
B. Cases in which there is evidence of infiltra-
tion by known organized crime figures.
C. Relatively small dealers are occasionally
investigated and/or prosecuted, particularly
when the material is especially offensive or
when numerous customer complaints are present.
This provision is maintained to dispel any
notion that pornography distributors can
insulate themselves from prosecution if their
operations fail to exceed a pre-determined
size or if they are fragmented into small
scale components.
These priorities, supplemented by guidelines Inspectors
receive from the Department of Justice in individual cases,
form the basis of the Postal Service investigative program.
In 1985 the Postal Inspection Service reported activity in
the following areas:
NATIONWIDE
15,766 criminal investigations completed.
546
A total of 5,570 convictions.
Convictions obtained in 98% of all cases brought to
trial.
Recoveries, restitutions made and fines imposed - $34.2
million.
PROHIBITED MAILINGS
Obscenity and Child Pornography (18 U.S.C. 1461, 2251,
2252) 183 investigations completed; of these 176
involved "child pornography"
141 convictions for "child pornography" were obtained.
Like other federal agents, postal inspectors present
evidence of violations of the law to the appropriate United
States Attorney.278 In fiscai year 1985 the Postal Inspec-
tion Service conducted 183 pornography-related investigations
which resulted in 179 arrests and 143 convictions.279 These
7 fi ninvestigations were principally child pornography case's.
The Postal Inspection Service presents very few cases
involving obscene material for prosecution because they have
been told by employees of the Justice Department that these
cases are "not prosecutable."281 The Chief Postal Inspector
has confirmed that " [i] nvestigations in adult pornography
278 Id.
279 United States Postal Inspection Service Statistics\'986)»
280
281
Id.
Jd. at 70.
547
r o
cases have declined in recent years. . . ."282
These three law enforcement agencies are capable of
making significant contributions to the investigation and
prosecution of violations of the federal obscenity laws. The
FBI's efforts in the MIPORN investigation of organized crime
figures involved in obscenity distribution resulted in
fourteen convictions as of February 1986.283 The FBI should
also include obscenity and related crimes among its Uniform
Crime Statistics report. Similarly the Customs Service and
the Postal Inspection Service have had much success in their
child pornography investigations.284
Working with dedicated prosecutors committed to
enforcing the obscenity laws, these agencies can have an even
greater impact on the reduction of pornography in the United
States. They must commit the manpower and resources
necessary to fulfill the task and conduct active and thorough
investigations of all violations of the federal obscenity
laws.
RECOMMENDATION 27:
282 Washington, D.C., Hearing, Vol. I, Charles Clauson,
p. 138.
283 Washington, D.C., Hearing, Vol II, William Webster,
p. 77; Letter from Donald B. Nicholson to Alan E. Sears (Feb.
28, 1986).
284 See, Washington, D.C., Hearing, Vol. I, Daniel
Mihalko, p. 155-161; Chicago Hearing, Vol. I, Jack O'Malley,
p. 110-16; Chicago Hearing, Vol. II, John Ruberti, p. 62-68.
548
THE INTERNAL REVENUE SERVICE SHOULD AGGRESSIVELY INVESTIGATE
VIOLATIONS OF THE TAX LAWS COMMITTED BY PRODUCERS AND
DISTRIBUTORS OF OBSCENE MATERIAL.
The Chief of the Internal Revenue Service criminal
Division has compared the production and distribution of
obscene material to drug trafficking since both generate
staggering profits on an international scale but with only
minimal tax reporting.285 Authorities also project that
millions of dollars in profits from obscenity may be escaping
taxation through use of international banking channels.286
Allen I. Goelman, a Los Angeles associate of Reuben
Sturman, pleaded guilty to tax evasion charges in November of
1985. Goelman concealed personal earnings of more than
$270,000 over a four year period when he served as head of
•retail operations" for obscenity distribution. The IRS has
recently obtained confidential records from these banks in
Switzerland and Holland in an attempt to locate more hidden
obscenity-derived profits.287
The freguent use of "cash only" transactions in the
pornography industry provides other opportunities for tax
285 IRS Probing Alleged. Money Laundering Abroad by Far
Plunq Pornography Ring, L.A. Times, Mar. 16, 1985, p. 33.
286
287
further
Sl-
id. > See, The discussion of Organized Crime for
549
(
evasion.288 Adult bookstores often fail to report lucrative
income earned from cash operated peep shows.^89
In March of 1986, an IRS official said the current
immoral investigation involving obscenity distributors "are"
not an isolated incident" and that more income tax
prosecutions may be forthcoming. '^ The same official added,
"With the unsettled nature of laws defining obscenity, often
times the government is forced to deal with people of this
type through the tax laws, and in a business this lucrative,
if there's a viable tax interest we're going after them."291
The Commission strongly encourages the IRS to aggressively
investigate violations of the tax laws committed by producers
and distributors of obscene material.
F. RECOMMENDATIONS FOR STATE AND LOCAL LAW ENFORCEMENT
AGENCIES
RECOMMENDATION 28
STATE AND LOCAL LAW ENFORCEMENT AGENCIES SHOULD PROVIDE THE
MOST THOROUGH AND UP-TO-DATE TRAINING FOR INVESTIGATORS
288
74.
New York Hearing, Vol. II, William Johnson, p. 73-
289 id.
290 L.A. Times, supra note 285.
291 id.
550
INVOLVED IN ENFORCING THE OBSCENITY LAWS.
T0 ensure that officers assigned to enforce these laws
possess the requisite skill, comprehensive training programs
should be established in all jurisdictions. This training
should include instruction on investigative techniques,
prosecution, victim trauma and the particular stress officers
must deal with in obscenity law investigations.
Law enforcement officers involved in the investigation
of obscenity violations must be thoroughly acquainted with
constitutional law including First and Fourth Amendment
implications. The legal and procedural aspects are complex
and always subject to change. Included ih this training
should be a working familiarity with the local community
standards. This knowledge should serve as the basis for
evaluating cases for prosecution. State and local law
enforcement officers should be advised continually of
judicial interpretations in the obscenity law area.
Law enforcement officers should receive comprehensive
training to avoid errors in judgment which can result in
civil rights violations as well as potential civil liability
for governmental entities and employees. This training
should enable the law enforcement officers to perform their
within constitutional bounds.
Law enforcement officers should be trained to use
onal and national information sources in their
551
investigations. The training should emphasize the need to
exercise basic investigative techniques and focus on the
similarities and patterns in investigation of obscenity law
violations and other investigations.
Investigators will often encounter victims who have been
abused or traumatized. A component of the training program
should focus on methods to deal with these individuals
compassionately and to direct them to the appropriate support
services. Training in all areas should be provided by
experienced investigators to members of their own department
and supplemented with participation by prosecutors and
investigators from other law enforcement authorities who
specialize in this area.
The training should address the inordinate amount of
stress these investigators must endure. The psychological
and emotional pressure the officers face often results from
prolonged undercover investigations dealing with the material
on a long term basis and a lack of peer support. One police
officer told the Commission:
. those people who seem to have
involved themselves in investigations of
these matters generally get ostracized by
their own peers. Most police officers
make a fool out of those investigators
that are charged with investigations of
these matters. Macho — I don't know
what to say.
I found most of them (obscenity
investigators) to be extremely
professional, dedicated policemen with a
lot of integrity. It's unfortunate that
they are characterized as such in their
peer group, because they have a lot of
552
integrity. You investigate other types
of crimes, gambling and narcotics, you
find the seedier aspects of law
enforcement in terms of corruption, but
for the most part these people have a lot
of personal integrity, and surprisingly
they have a lot of regard for first
amendments rights. That would be a
surprise to many people, but they respect
it.292
It is as important to train officers in methods to deal with
stress and peer support as it is in basic investigative
techniques.
RECOMMENDATION 29:
STATE AND LOCAL LAW ENFORCEMENT AGENCIES SHOULD ALLOCATE
SUFFICIENT PERSONNEL TO CONDUCT INTENSIVE AND THOROUGH
INVESTIGATIONS OF ANY VIOLATIONS OF THE OBSCENITY LAWS.
State and local law enforcement agencies in many regions have
devoted insufficient manpower to investigation and
enforcement of the obscenity laws. This has led to reactive
law enforcement where police may respond to citizen
complaints made about obscene materials but do not otherwise
initiate investigations.293
The Los Angeles Police Department has sixty-seven
hundred officers, but only eight are assigned to the
292
293
New York Hearing, Vol. I, Carl Shoffler, p. 227-28.
-r*active olr^' g"Pra. note 174 £or discussion of proactive andLtive enforcement and prosecution.
553
pornography unit.294 Los Angeles is the center of production
of obscene material in the United States."5 ^,ne cnicagO
Police Department has twelve thousand officers, but only two
are assigned to their obscene matter unit.296 The Buffalo,
New York, police department has one thousand officers with
one officer assigned to obscenity law violations.297 jn
Chicago, the unit investigating obscenity violations has
requested additional manpower but such requests have been
denied by higher authorities within their police
departments.298
Intensive and thorough investigations of possible
obscenity violations cannot be conducted unless sufficient
manpower is devoted to the task. The need for additional
manpower is even more critical in those jurisdictions with
large scale pornography operations where investigations are
more complex and time consuming.
Chiefs of police and supervisory personnel must also be
responsive to requests for additional manpower should the
obscenity problem warrant more intensive investigation.
These responses may take the form of additional investigative
29* Chicago Hearing, Vol. II, Donald Smith, p. 46.
•y n c:"J Los Angeles Hearing, Vol I, James Docherty, p. 6.
296 Chicago Hearing, Vol. I, Thomas Bohling, p. 13.
297 Chicago Hearing, Vol. II, John Dugan, p. 193.
298 Chicago Hearing, Vol. II, Officer Tom Bohling, p.
14; Miami Hearing, Vol. I, Sergeant Mike Berish, p. 85-86.
554
(
personnel on a temporary or permanent basis.299 Supervisory
299 m Cincinnati, Ohio, the focus on obscenity law
violations is reported to have resulted in a significant
decrease of reported crimes. Statistics of Reporting Area-
14 - 800 & 900 Block of Vine Street, which had (1) Massage
(2) X-Rated Bookstores and (1) "Soft Core" Movie
in 1974, all closed by 1979.
1974
PART II ARRESTS (MINOR)
14 - Assaults
2 - Forgeries
3 - Frauds
1 - Embezzlement
2 - Vandalism-
7 - Weapons Violations
52 - Prostitution Offenses
4 - Other Sex Offenses
5T - TOTAL
1979
PART II ARRESTS
1 - Sex Ottense
10 - Drug Abuse
1 - Gambling Offense
31 - Disorderly Conduct
1 - Vagrancy
5 - Other Offenses
4"9~ - TOTAL
The above statistics represent an 83% decrease in Part I
offenses, 42.35% decrease in Part II arrests. Letter from
Lieutenant Harold Mills to Alan E. Sears (July 29, 1985).
The Phoenix Ordinance was based on two hypotheses:
first, that there are direct impacts which uniquely relate to
this class of land usej and second, that there are indirect,
but equally potent, attitudinal concerns which result from
proximity to an adult business. Examples of the former are
possible traffic congestion, unusual hours of operations,
litter, noise, and criminal activity. Illustrating the
latter is substantial testimony that has indicated that many
neighborhood residents dislike living near an area containing
an adult business. Also, financial institutions take nearby
adult businesses into account when financing residential
properties. Finally, people's perceptions of criminal
in AK y is relnforced by a great incidence of sexual crimesareas or commercial districts containing adult businesses.
This study specifically shows that there is a higher
I OFFENSES (MAJOR)
2 - Rapes
29 - Robberies
7 - Agg. Assaults
24 - Breaking/Enterings
63 - Larcenies
24 - Thefts
17 - Non-Agg. Offense
fir - TOTAL
PART I OFFENSES
8 - Robberies
4 - Agg. Assaults
1 - Breaking/Entering
15 - Larcenies
TIT - TOTAL
555
f
amount of sex offenses committed in neighborhoods in Phoenix
containing adult businesses as opposed to neighborhoods
without them. In this project three study areas were chosen
— neighborhoods with adult businesses, a*nd three control
areas -- neighborhoods without adult businesses which were
paired to certain population and land use characteristics.
The amount of property crimes, violent crimes, and sex
offenses from the year 1978 are compared in each study and
control area.THE STUDY AND CONTROL AREAS
Three different studyareascontaining adult businesses
were selected to collect crime data. The east side of
Central Avenue was chosen for the location of two study
areas, while the west side has the third study area.
A control area has no adult business, but generally
speaking, has similar population characteristics of a matched
study area in terms of:1. Number of residents
2. Median family income3. Percentage of non-white population
4. Median age of the population5. Percentage of dwelling units built since 1950
6. Percentage of acreage used residentially and
non-residentially
Adult business locations are based on information furnished
by the Department and verified by the Planning Department.
CONCLUSIONS
Table V Property, Violent, and Sex Crimes in Selected
Study Areas — 1978 (was derived from information provided by
the City of Phoenix Police Departments Crime Analysis synit
and Planning and Research Bureau. The data from these two
sections was compiled by adding the number by type of crimes
committed in police grids, which are quarter mile
neighborhoods. Crimes are based on arrest records and do not
reflect ultimate convictions. It has been assumed that
conviction rates will be proportional to arrest rates.) is a
tabulation of the number of crimes committed and the rate of
those crimes per 1,000 people living in each area. This
table is on the following page.There appears to be a significantly greater difference
between the study and control areas for sex crimes than for
either property or violent crimes. The following table
illustrates a comparison of the ratio of the crime rate of
the study area to the control area:TABLE VI
CRIME RATES AS A PERCENTAGE OF STUDY AREA TO CONTROL AREA
StudyPropertyViolentSexSex Crimes(Less
Area Crimes Crimes Crimes Indecent Exposure)- -~
sonnel also should recognize the complexity of this
a 1 be receptive to requests for frequent
•n_service training programs. Once the obscenity problem has
effectively addressed law enforcement agencies should
need only minimal manpower to maintain control.
RECOMMENDATION 30:
STATE AND LOCAL LAW ENFORCEMENT OFFICERS SHOULD TAKE AN
II
III
173
108
83
86
277
405
160
178
Average;143%104%606%232%
It is observed that there are about 40% more property
crimes and about the same rate of violent crimes per 1,000
persons in the Study Areas as compared to the Control Area.
On the other hand there is an average of six times the
sex crime rate in the Study Areas as compared with the
Control Areas. Although the majority of sex crimes are
Indecent Exposure, the fourth column illustrates that the
remainder of the sex crimes also exhibit a significantly
higher rate in the study areas. A detective from the police
department stated that most indecent exposure crimes were
committed on adult business premises. An example of this
finding is in Study Area I. In that location, 89% of the
reported indecent exposure crimes were committed at the
addresses of adult businesses.
Where there is a concentration of adult businesses, such
as in Study Area I, the difference in sex offense rates is
most significant. As stated earlier in the report this
location has four adult. businesses which are less than 1000
feet away from each other and less than 500 feet away from a
residential district. There is also a higher number of sex
offenses committed — 84 more crimes than in Study Area II,
and 56 more crimes than in Study Area III. Similarly, when
compared to its Control Area, the sex crime rate, per 1,000
residences is over 11 times as great in Study Area I. In the
buVi ln<3 studv areas, which each contain a single adult
great*588' their rates are ^our and almost three times as
556 557
ACTIVE ROLE IN THE LAW ENFORCEMENT COORDINATING COMMITTEES.
See, The discussion in the Recommendations for the United
States Department of Justice in this Chapter.
RECOMMENDATION 31:
STATE AND LOCAL REVENUE AUTHORITIES MUST INSURE TAXES ARE
COLLECTED FROM BUSINESSES DEALING IN OBSCENE MATERIALS.
"Adults Only" pornographic outlets often maintain separate
business systems for accounting purposes. These operations
may be in the form of a "front room" and a "back room. "300
The front room is usually where books, magazines, films,
videos, and sexual devices are sold. The individual running
the business usually keeps fairly accurate financial records
for this part of the operation because revenues from it are
used to pay rent, utilities, and employees' wages as well as
purchase merchandise.301
The "back room" usually contains peep show booths or
video machines which earn substantial profits—often twice
that which the "front room" earns. These "back room"
earnings are typically excluded from any financial records of
73.
300 New York Hearing, Vol. II, William Johnson, p. 72-
301 id. at 72.
558
the business and can easily go untaxed.302 while this
Commission does not condone the operation of pornography
businesses it urges state and local revenue authorities to
strictly scrutinize the reporting methods of these businesses
and insure that the proper income is reported and subject to
taxation.
RECOMMENDATION 32:
STATE AND LOCAL PUBLIC HEALTH AUTHORITIES SHOULD INVESTIGATE
CONDITIONS WITHIN "ADULTS ONLY" PORNOGRAPHIC OUTLETS AND
ARCADES AND ENFORCE THE LAWS AGAINST ANY HEALTH VIOLATIONS
FOUND ON THOSE PREMISES.
DISCUSSION
Testimony before the Commission has revealed that sexual acts
often occur in the peep booths located in many "Adults Only"
pornographic outlets and arcades.303 Acts such as fellatio,
sodomy, and masturbation are common.^04 Some of these
establishments have "glory holes" drilled through the walls
302
303
Id. at 73.
See, The discussion of the Production, Distribution
and Technology of Sexually Explicit Materials in Part Four.
Houston Hearing, Vol. I, W.D. Brown, p. 39; Chicago Hearing,
v°l- II, Hinson McAuliffe, p. 181.
304 Id.
559
r
of the peep booths to permit individuals to engage in
anonymous sex with the occupant of the adjoining booth.305
Upon examination of the interior of these booths, police
often find evidence of urine, human feces and semen.
The public health risks posed by this anonymous sexual
activity are quite obvious. The public health department in
Houston, Texas, reported 214 cases of syphilis and gonorrhea
during three months of 1985.307 Of those infected
individuals, 10.7 percent reported they had performed sexual
acts in "adult only" pornographic outlets.308 Because of the
anonymous nature of these sexual encounters, public health
officials find it impossible to trace the origin of the
disease.309 Concern about the spread of Acquired Immune
Deficiency Syndrome (AIDS) has made this situation even more
significant. Similar risks to public health are posed by
massage parlors, brothels, and establishments promoting
"piercing"310 and other sado-masochistic sexual activities.
While this Commission does not condone or support the
existence of these businesses dealing in obscene materials,
305 Houston Hearing, Vol. I, W.D. Brown, p. 41.
306 id. at 42.
307 id.
308 id.
309 id.
310 "piercing" is a form of sado-masochistic sexual
activity involving the piercing of the skin or genitals with
pins, needles, or other sharp instruments.
560
it urges state and local public health official to inspect
the premises of adult bookstores and arcades in their
jurisdictions and vigorously enforce the law against all
public health violations found on those premises.
G. RECOMMENDATIONS FOR THE JUDICIARY
RECOMMENDATION 33:
JUDGES SHOULD IMPOSE SUBSTANTIAL PERIODS OF INCARCERATION FOR
PERSONS WHO ARE REPEATEDLY CONVICTED OF OBSCENITY LAW
VIOLATIONS AND WHEN APPROPRIATE SHOULD ORDER PAYMENT OF
RESTITUTION TO IDENTIFIED VICTIMS AS PART OF THE SENTENCE.
The Commission has been apprised repeatedly of the minimal
periods of incarceration and fines which have been imposed on
person v-ho frequently violate obscenity laws.311 in cases
involving significant violations of the obscenity laws or
repeat offenders, only a substantial period of incarceration
will provide a deterrent effect.312
Judges can also enhance basic law enforcement efforts
There were several defendants sentenced in a
Federal Bureau of Investigation in a Spectra Photo. Even in
cases involving severe sexual or physical abuse minimalsentences were imposed.
pacilitie ^^-' Recommendation for Judicial and Correctional
goals of m^H1" this CnaPter' for a further discussion of the* is ot modern penology.
561
o
when they impose substantial periods of incarceration for
these offenses. Law enforcement officers, prosecutors and
society in general view the sentences imposed as a statement
of the community attitude toward the crime. When minimal
sentences are given, the significance of the crime is
diminished.
Recidivist obscenity law violators should be viewed the
same as recidivist violators of other criminal laws. Judges
also should be apprised of the nature of the materials
involved and the offender's affiliation with organized crime,
if any. These factors must be considered before a judge can
appropriately sentence an offender.
H. RECOMMENDATIONS FOR THE FEDERAL COMMUNICATIONS COMMISSION
Modern technology pervades virtually every aspect of daily
life and it should come as no surprise that these advances
are used in the dissemination of pornography. Two of these
technological advances, bial-A-Porn and cable television,
have brought with them some very complex questions of law and
public policy. In some instances, the course in resolving
the issues remains largely uncharted. A complete discussion
of pornography in the United States today cannot be addressed
without a careful examination of these technologies
particularly with reference to the role of the Federal
Communications Commission in regulating them.
562
r
RECOMMENDATION 34:
THE FEDERAL COMMUNICATIONS COMMISSION SHOULD USE ITS FULL
REGULATORY POWERS AND IMPOSE APPROPRIATE SANCTIONS AGAINST
PROVIDERS OF OBSCENE DIAL-A-PORN TELEPHONE SERVICES.
DISCUSSION
The term "Dial-A-Porn" has been applied to describe two types
of obscene statements made over the telephone as a part of a
commercial transaction. In the first instance, the caller
dials a number and talks to an individual who makes sexual
remarks in response to the stated desires of the particular
caller.^13 The caller pays a per minute rate and is billed
on his or her credit card.314 The conversation can last up
to forty-five minutes.
The second type of transaction involves placing a call
to a number with the "976" prefix. These numbers are part of
the Mass Announcement Network Service (MANS) and provide the
caller with a pre-recorded message similar to those giving
the time of day or weather.315 Tne message is sexually
explicit and the caller is charged on his monthly telephone
313
314
315
Los Angeles Hearing, Vol. I, Brent Ward, p. 227.
W.
Id. at 228.
563
o
statement.316 xhe provider of the message receives a payment
from telephone company revenues calculated according to the
local tariff. The telephone company receives the
remainder.3^7 In some cities, for example, the cost to the
caller is two dollars with $1.45 going to the provider of the
message and fifty-five cents to the telephone company.318
These Dial-A-Porn recordings include graphic descrip-
tions, complete with sound effects, of lesbian and homosexual
acts, sodomy, rape, incest, excretion, bestiality, sado-
masochism, and other unlawful, violent or dangerous sexual
acts involving adults and children.319 In May of 1983,
800,000 calls a day were placed to Dial-A-Porn numbers in New
Yor.k.320 Approximately 180,000,000 calls were made to the
same numbers in the year ending in February 1984.321
Carlin Communications, a leading provider of Dial-A-Porn
services, earned $3,600,000 in 1984.322 Pacific Bell reports
that sexually explicit messages represent twenty-seven
316 id_. at 229-30.
317 Id. at 229.
318 id.
319 id_. at 231.
320 jcK at 228.
321 id.
322 id. at 229.
564
percent of all "976" calls so far in 1985.323 Telephone
oanies explain the existence of "976" service as an
portunity to provide subscribers with a wide range of
• formation as well as a source of revenue to keep telephone
rates low.324 Tne content of the telephone messages is
solely within the control of the provider. New Jersey Bell,
however, has reserved the right to review program content
under their contract with providers.325 The easy
accessability to Dial-A-Porn message has given rise to a
number of problems. Initially it should be noted that the
telephone companies have issued numbers, upon the reguest of
the providers, such as 976-FOXX, 976-4LUV, and 976-LUST.326
Dial-A-Porn advertising is often misleading in that it refers
to "free phone sex" when, in fact, the caller is billed
either on his or her credit card or is charged as part of
their monthly telephone statement.327
Since Dial-A-Porn numbers are openly advertised in
pornographic magazines, newsstand racks, in convenience
grocery stores, on public billboards and other readily
251.
323 Los Angeles Hearing, Vol. I, William Dunkle, p.
324
325
Id. at 150.
Contract between New Jersey Bell and SundialProductions. IC115185-2, (Dec. 21, 1982).
326
327
Hollywood Press, Aug. 9, 1985.
264. Los An9eles Hearing, Vol. I, Judith Trevillian, p.
565
available publications they are often discovered and used by
minors unbeknownst to their parents. The telephone company
may elect to disconnect the customer's service if they do not
3 2 8pay the toll charges. " Finally, there is concern over the
long-term effects of Dial-A-Porn recordings on children who
listen to them and may attempt to model their behavior after
them. This is especially worrisome when descriptions of
unlawful, violent and incestuous acts are associated with
sexual arousal as in many of the Dial-A-Porn messages.
Two years ago, the Congress enacted legislation amending
section 223 of the Communications Act of 1934.329 This
enactment prohibited the use of the telephone to make obscene
or indecent communications for commercial purposes to anyone
under eighteen years of age except where in compliance with
regulations issued by the Federal Communications Commission.
The FCC promulgated regulations making it an exception for
the provider of a recorded message if the message was made
available only between the hours of 9:00 p.m. and 8:00 a.m.
eastern standard time or if the caller made prepayment by
credit card in the case of a "live" message.33" Carlin
Communications challenged the FCC regulations.
On review, the United States Court of Appeals for the
328
329 gee, 47 u.S.C. S223(b) < 1) et. sec[.
330 49 Fed. Reg. 24, 996 (June 4, 1984).
566
r
ond Circuit found the regulations were invalid.331
urt found that the government had a compelling interest in
rotecting minors from salacious material, but that the FCC
lations were not well tailored to meet their objectives,
which could be achieved by less restrictive.alternatives.332
in dicta, the court said the FCC should have given more
serious consideration to two other options such as "blocking"
and access codes. Through "blocking" a subscriber can have
access to all "976" numbers blocked from his telephone.
Access codes could be issued to subscribers over eighteen who
would have to dial the code in order to receive the sexually
explicit message.333
On October 16, 1985, the FCC announced new regulations
governing Dial-A-Porn.33* Under the new regulations,
Dial-A-Porn services must require either an authorized access
or identification code or they must obtain prepayment by
credit card before transmission of a sexually explicit
message.335
Carlin challenged the new regulations, and on April 11,
1986, the Court of Appeals granted their petition and set
331
<2<J Cir. 19TTTCarlin Communications, Inc. v. FCC, 749 F.2d 113
332
333
334
335
Id.
Id.
50 Fed. Reg. 42699(Oct. 22, 1985).
Id.
567
aside the regulations as applied to Carlin.336 xhe PCC now
finds itself in a dilemma, since the latest set of
regulations have been found unduly restrictive as applied to
Carlin in New York, but possibly sustainable elsewhere.
The Court of Appeals relied on statements from New York
Telephone that access or identification codes are not
technologically feasible in NYTS network,338 and found that
"the record does not support the FCC's conclusion that the
access code requirement is the least restrictive means to
regulate dial-a-porn. . . ."339 The court again referred
to "blocking" as a less restrictive means of regulating
Dial-A-Porn.340 Blocking devices installed on the telephone
customers' own terminal equipment could be used to block
access to one or more pre-selected telephone numbers.341 The
court also suggested that the FCC should have considered the
feasibility of passing along the cost of customer premises
blocking equipment to the providers of Dial-A-Porn and/or the
336 Carlin Communications, Inc. v. FCC, No. 85-4158(2d
Cir. Apr. 11, 1986).
337 at 3_4
338 id. at 11, 19. The Court noted that the access
codes are probably technologically feasible in most other
parts of the country. See, Id. at 4.
339 id. at 3.
340 Id_. at 23-24.
341 Id. at 6-7.
568
telephone companies.342
The latest decision by the Second Circuit leaves the
tate of the law regarding dial-a-porn even more uncertain.
The two attempts by the FCC to promulgate regulations in
accordance with the federal statute have failed. The Court
of Appeals found earlier that limitations on the hours that
Dial-A-Porn messages may be offered were not tailored enough
to regulate the problem.343 NOW the court has ruled that
access codes are unduly restrictive as applied to Carlin in
New York, but may be permissible else.where. 344 The
"blocking" option advanced by the court has serious practical
limitations. Blocking may not be available to all telephone
customers.34-* Those who obtain the service would either lose
access to all "976" numbers346 or have to pre-select which
numbers they wanted blocked.34' Few parents would have
sufficient knowledge of the multitude of Dial-A-Porn numbers
to be able to pre-select them and prevent their children from
calling them by use of a blocking device. And minors would
342 Id. at 23.
343 749 F.2d at 121.
344 Carlin Communications, Inc. v. FCC, supra, slip op.at 3-4. —
5 See, Los Angeles Hearing, Vol. I, William Dunkle,P- 2b4.
346 Id.
347
»t 6.Carlin Communications, .Inc.FCC, supra, slip op.
569
o
still be free to make the calls from telephones not equipped
with blocking devices.
The provision of the federal statute permitting
dial-a-porn messages to be provided in accordance with FCC
regulations348 has proven unworkable in addition to providing
a "safe harbor" provision for Dial-A-Porn merchants.
Congress should enact legislation that simply prohibits the
transmission of obscene material through the telephone or
similar common carrier.349
348 47 U.S.C. S223(f)(2).
349 In an attempt to address the Dial-A-Porn issue,
Senate Bill 1090 has been introduced by Senators Jesse Helms,
(R-NC), John East (R-NC) and Jeremiah Denton (R-Ala) to amend
Section 223 of the Communications Act of 1934. The bill
provides:Whoever - "(A) in the District of Columbia or in
interstate or foreign communications, by means of
telephone, makes (directly or by recording device) any
comment, request, suggestion, or proposal which is
obscene, lewd, lascivious, filthy, or ihcjecent,
regardless of whether the maker of such comments placed
the call or "(B) knowingly permits any telephone
facility under such person's control to be used by any
purpose prohibited by subparagraph (A). Shall be fined
not more than $50,000 or imprisoned not more than six
months, or both."
Additionally, Rep. Thomas J. Bliley (R-Va.) has introducedH.R. 4439 which would amend Section 223 of the Communications
Act and eliminate the provision requiring the FCC to issue
regulations:H.R. 4439
A bill to amend the Communications Act of 1934 to
restrict the making of obscene and indecent
communications by telephone."Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembles,
Section I, Short title.This Act may be cited as the "Telephone Decency Act of
570
The regulations that have been invalidated by the Second
circuit were based on the faulty premise that obscene
telephone communications are entitled to some measure of
protection so long as they occur between or among "consenting
adults". The United States Supreme Court rejected this basic
argument in Paris Adult Theatre I v. Slaton.350 In Slaton, a
motion picture theatre was convicted for showing obscene
films.3*1
Its defense was that no one under twenty-one years of
age was admitted, and that showing the films to consenting
adults was protected under the right to privacy.352 The
Court affirmed the conviction, with Chief Justice Burger
writing for the majority.
We categorically disapprove the theory, apparentlyadopted by the trial judge, that obscene,
pornographic films acquire constitutional immunity
from state regulation simply because they are
exhibited for consenting adults only. This holding
1986".
Section II, Amendments.
Section 223(B) of the Communications Act of 1934 is
amended -
(1) in paragraph (1}(A), by striking out "under
eighteen years of age or to any person without that
person's consent";
(2) by striking out paragraph (2);
(3) in paragraph (4), by striking out "paragraphs
(1) and (3)" and inserting in lieu thereof "paragraphs
(1) and (2)"; and
(4) by redesignating paragraphs (3), (4), and (5)
as paragraphs (2), (3), and (4), respectively.
350 413 U.S. 49 (1973).
351
352
Id.
Id.
571
158-315 Vol. 1, O - 86 - 19
was properly rejected by the Georgia supreme court.
Although we have often pointedly recognized the
high importance of the state interest in regulating
the exposure of obscene materials to juveniles and
unconsenting adults, see Miller v. California,
ante, at 18-20, Stanley v. Georgia, 394 U.S. at
567, Redrup v. New York, 386 U.S. 767, 769(1967),
this Court has never declared these to be the only
legitimate state interests permitting regulation of
obscene material.353
The Chief Justice went on to cite other legitimate
interests which permitted the regulation of obscene material
including maintenance of the "quality of life and the total
community environment."354 Tne court also cited the
statement of former Chief Justice Earl Warren in Jacobellijs
v. Ohio,35S that, "there is a right of the Nation and the
States to maintain a decent society."356
The telephone is also uniquely accessible to children.
Children have easy and often unsupervised access to
telephones in their homes and learn to use the telephone at
an astonishingly early age. A child need only dial seven
numbers to reach a recorded message. Additionally,
Dial-A-Porn numbers are openly published and advertised in
publications which are sold in racks on the public streets
and available to purchasers of any age group. Dial-A-Porn
numbers may also be passed along from one child to another.
353 id. at 57.
354 id. at 58.
355 378 U.S. 184(1964).
356 Id. at 199.
572
As a final consideration, the telephone industry, like
broadcasting industry, is closely regulated. As a condition
f its continued existence a carrier must act in the public
interest. The FCC, whose entire regulatory scheme is based
on serving the public interest could act to protect these
same interests against obscene communications over the
telephone if it chose to do so. The time is long overdue for
the FCC to exercise its full regulatory powers with respect
to this lucrative brand of obscenity.
RECOMMENDATION 35:
THE FEDERAL COMMUNICATIONS COMMISSION SHOULD USE ITS FULL
REGULATORY POWERS AND IMPOSE APPROPRIATE SANCTIONS AGAINST
CABLE AND SATELLITE TELEVISION PROGRAMMERS WHO TRANSMIT
OBSCENE PROGRAMS.
The growth of the cable television industry over the
last few years has been remarkable. Approximately forty
percent of all homes in the country now have access to cable
or satellite television, and 250,000 homes are being
connected with the services every month.357 Tnere are
currently 6,500 cable television systems serving forty
1985). ci-tizens for Decency through Law, Memorandum (Jan.,
573
w
\
million households.358
The concerns over the content of some of cable
television programming have increased as the cable industry
has grown. Feature film presentations have been one of
cable's strongest drawing cards and an increasing number of
those films shown on cable fall under the MPAA rating "R".359
These films depict nudity, sexual themes, simulated sex,
graphic violence, or offensive language.360 While a minor
under the age of seventeen cannot be admitted into a theatre
to view an "R" rated film without an accompanying parent or
guardian, the same films are available to a viewer of any age
over cable. Some of the premium channels offer movies that
are unrated by the MPAA and go far beyond those in the "R"
category and would be generally considered as "X-rated".
These films are sometimes the same films shown in
pornography movie theatres and include films which federal
and state courts have found to be obscene.361 For example,
the movie, "The Opening of Misty Beethoven" appeared over
satellite television in Phoenix, Arizona, in 1981.362 This
358 Los Angeles Hearing, Vol. I, Brenda Fox, p. 284?
Letter from James P. Mooney to Henry E. Hudson (May 2, 1986).
359 seet Cable Pornography; Problems and Solutions,
Citizens for Decency Through Law, 2(Jan. 1985).
360 Los Angeles Hearing, Vol. II, Jack Valenti, p. 55k.
361 LOS Angeles Hearing, Vol. II, James J. Clancy, p.
309; Citizens for Decency Through Law, Memorandum, p. 2-3
(Jan. 1985).
362 Los Angeles Hearing, Vol. II, James Clancy, p. 310.
574
film was previously found to be legally obscene by the
Supreme Court of Alabama.363
These more sexually explicit movies earn a much larger
profit for the cable channel.364 it is less expensive for
cable channel to offer these films than it is for them to
acquire and show better known but non-sexually explicit
feature films.
The cable industry minimizes any problems associated
with sexually explicit cable programs. Brenda Fox of the
National Cable Television Association (NCTA) testified in Los
Angeles that there are only 700,000 subscribers to the
"adult" programming offered on cable.365 MS „ pox also
testified that the industry has taken what it regards as
adequate steps to protect minors from viewing sexually
explicit programs. These precautions include lockboxes so
parents can control channel selection, program guides and
notices, transmission of "adult" programs through scrambled
signals and the restriction of this programming to later
evening hours.366 The number of hours of sexually explicit
programming, however/ continues to escalate. There is no
reason that a cable television programmer or operator could
Trans-Lux Theatre v. People ex rel. Sweeton, 366
So. 2d 710 (Ala. 1979).
4 Citizens for Decency Through Law, Memorandum, p. 2-3 (Jan. 1985).
365 Los Angeles Hearing, Vol. I, Brenda Fox, p. 295.
366 Id. at 287-88.
575
not be prosecuted under existing federal and state obscenity
laws by the United States Attorneys and State or local
prosecutors for transmitting a program that meets the Miller
test for obscenity.
As the Supreme Court held in Kaplan v. California,
"[W]hen the Court declared that obscenity is not a form of
expression protected by the First Amendment, no distinction
was made as to the medium of the expression."
In HBO, Inc. v. Wilkinson, the United States District
Court in Utah found the Miller standard applicable to Cable
television. While a Miami, Florida, ordinance prohibiting
indecent cable telecasts was found to be unconstitutional,
the portion of the ordinance that proscribed obscene
*5 C Qprogramming was not challenged. °
The Cable Communications Policy Act of 1984 369 attempts
to provide another avenue for the prosecution of obscenity
shown over cable television. The Act provides, in part,
that, "Whoever transmits over any cable system any matter
which is obscene or otherwise unprotected by the Constitution
of the United States shall be fined not more than $10,000 or
imprisoned not more than 2 years, or both."370
367 413 u.S. 115, 118-19.
368 cruz v. Ferre, 755 F.2d 1415, 1418 (llth Cir.
1985).
369 47 u.S.C. S559.
370 Id.
576
This portion of the section may be in conflict with two
sections of the Act governing editorial control of»
amming by cable operators. Sections 531(e) of Title 47
provides that:
Subject to section 544(d) of this title, a cable
operator shall not exercise any editorial' control
over any public, educational, or governmental use
of channel capacity provided pursuant to this
section.
Section 544(d) provides in part:
(1) Nothing in this subchapter shall be construed
as prohibiting a franchising authority and a cable
operator from specifying, in a franchise or renewal
thereof, that certain cable services shall not be
provided or shall be provided subject to
conditions, if such cable services are obscene or
are otherwise unprotected by the Constitution of
the United States.
(2)(A) In order to restrict the viewing of
programming which is obscene or indecent, upon the
request of a subscriber, a cable operator shall
provide (by sale or lease) a device by which the
subscriber can prohibit viewing of a particular
cable service during periods selected by that
subscriber. (emphasis added)
Section 544(d) seems to contemplate the operator providing
obscene programming while Section 559 makes it a crime to do
so.371
371 Senate Bill 1090 sponsored by Senator Jesse Helms
(R-NC) would place a specific prohibition against obscene
cable programming in section 1464 of Title 18 of the United
States Code. The Helms bill provides in part:
S1464. Distributing obscene material by radio or
television "(a) Whoever utters any obscene,
indecent, or profane material by means of radio or
television, including cable television, shall be
fined not more than $50,000 or imprisoned not more
than two years, or both.
577
Proposed legislation should be drafted to enable United
States Attorneys to prosecute violators under the criminal
code and alleviate the possible conflict under the Cable
Communications Policy Act.
The FCC has shown no interest in taking action regarding
the contents of cable programming. Thomas Herwitz, legal
assistant to FCC Chairman Mark Fowler, stated the
Commission's views at the Los Angeles hearing regarding cable
programming. The position the FCC has taken has been to
advocate regulation for cable similar to that for the print
medium.372
The FCC maintains that the cable subscription services
can be controlled adequately within the home to assure that
minors do not have access. The FCC position is that since
the individual can act as his or her own gatekeeper and
preclude those signals not desired to be watched, the
government has no compelling interest in further
intrusion.373
The posture adopted by the FCC has enabled cable tele-
vision to occupy a status afforded no other medium. The
347.
"(b) As used in this section, the term
'distributes1 means to send, transmit, retransmit,
telecast, broadcast, or cablecast, including by
wire or satellite, or produce or provide such
material for distribution.
372 Los Angeles Hearing, Vol. I, Thomas Herwitz, p.
373 Id. at 348.
578
i • ev considerations that support government regulation of
adcasting to serve the public interest also apply to
Overnment regulation of cable television. As the United
States Court of Appeals for the District of Columbia has
ruled,
[We] do reguire that at a minimum the [FCC] , in
developing its cable television regulations,
demonstrate that the objectives to be achieved of
regulating cable television are also objectives for
which the commission could legitimately regulate
the broadcast media.374
When 250,000 homes are being connected with cable every
month, it is readily apparent that cable television's
presence is, in fact, as pervasive as that of the broadcast
media.
Parents may make the initial decision to subscribe to a
cable service with a variety of program choices. The fact
that a parent makes a conscious choice to engage the cable
service does not impair the accessibility of the selections
to minors in the home. Once cable enters the home it becomes
the same in this regard as over the air broadcasts. It comes
through the same television set and is usually accessed by
the same controls. The FCC has recognized that,
While particular stations or programs are oriented
to specific audiences, the fact is that by its very
nature, thousands of others not within this
'intended1 audience may also see and hear portions
of the broadcast.375
374
375
HBO v. FCC» 567 F.2d 9, 34(D.C. Cir. 1977).
In Re, WUHY-PM. 24 FCC 2d 408(1970).
579
This rationale is equally applicable to cable and satellite
television programs. In many homes, particularly single
parent homes or homes where both parents work, close
supervision and screening of the selection of television
programs in reality may be either minimal or non-existent.
The cable television industry advocates lockboxes as a
means of parental control over the programs viewed by
children.376 jn their brief before the Supreme Court in FCC
v. Pacifica, the Pacifica Foundation specifically raised the
issue of lockbox controls. They contended that,
. . . the material to which children are exposed on
radio and television may be assumed to be subject
to parental supervision to a far greater extent
than much of the material to which children are
likely to be exposed in other media. And,
according to Broadcasting magazine, technology is
now prepared to provide parents with a device which
will permit them to "program" their home television
set in advance so that it will only receive
material selected by the parent, even in the
parent's absence. Broadcasting, February 27, 1978,
at 83.377
The addendum to the Pacifica Foundation's brief included a
description and photograph of a lockbox device called a
"Video Proctor" which is capable of being programmed by a
parent to block out any VHP, UHF, cable, or pay television
376 Los Angeles Hearing, Vol. I, Brenda Fox, p. 287-88.
377 Brief Appellee, prr v. Pacitica Foundation, 438
U.S. 726(1978)
580
stations.378 The Supreme Court was obviously unimpressed by
the "lockbox" argument and upheld the FCC's authority to
regulate broadcast content. Therefore, the availability of
ckboxes does not prevent the FCC from regulating obscenity
on radio and broadcast television. A lockbox performs the
game function whether used to block out a broadcast or cable
station. There is no reason why the availability of
lockboxes should justify the FCC's failure to regulate
obscene cable or satellite programming.
The availability of program guides is also advanced as a
means of parental control. However, program guides are also
readily available for broadcast television programs in
publications ranging from TV Guide to the daily newspaper.
Programs guides offer no more protection in the context of
cable and satellite television than they do in the realm of
broadcast television.
While sexually explicit material may be transmitted by
scrambled signals, this method is far from foolproof.
For two weeks in November of 1985, Tampa, Florida,
residents received all of the "adult" channels whether they
subscribed or not. This phenomenon apparently occurred
because of a technological anomaly that was triggered by
certain weather conditions.379
378 Addendum to Brief Appelle, FCC v. Pacifica
L2Hndation, 438 U.S. 726(1978).
379 Tampa Tribune. Nov. 8, 1985.
581
In Colorado Springs, Colorado, the Playboy Channel
"slipped through an electronic loophole" and supplemented a
"Rin Tin Tin" movie on the Disney Channel.380 According to a
Naples, Florida, resident, "adult" channels, even though
scrambled, can still be heard and sometimes seen clearly
enough to be watched.381
Finally, controls such as lockboxes, program guides, and
scrambling are all based on the premise that consenting
adults are entitled to observe what they want to. In Paris
Adult Theatre I v. Slaton,382 the United States Supreme Court
held that obscene materials do not acquire constitutional
immunity from state regulation simply because they are
exhibited to consenting adults only.383
The time is long overdue for the FCC to take an active
role in enforcing the laws and regulations against obscene
cable programming.
380 The Daily Sentinel, Aug. 13, 1984.
381 statement by Rachel Sturdivant, Naples, Florida,
submitted by Florida Coalition for Clean Cable.
382 413 u.S. 49 (1973).
383 Id. at 57.
582
RECOMMENDATION FOR OTHER FEDERAL ORGANIZATIONS
THE PRESIDENT'S COMMISSION ON UNIFORM SENTENCING SHOULD
CONSIDER A PROVISION FOR A MINIMUM OF ONE YEAR IMPRISONMENT
FOR ANY SECOND OR SUBSEQUENT VIOLATION OF FEDERAL LAW
INVOLVING OBSCENE MATERIAL THAT DEPICTS ADULTS.
The Commission has received considerable evidence with
regard to the disparity in sentences obscenity law violators
receive. 384 Congress has enacted the Sentencing Reform Act
384
DEFENDANTS SENTENCED IN UNITED STATES DISTRICT COURTS
BY MAJOR OFFENSES FOR THE TWELVE MONTH
PERIOD ENDED JUNE 30, 1981
MAJOR OFFENSE
TITLE/SECTION
AND LEVEL
18 1461
18 1461
18 1461
[8 1461
18 1462
18 1462
IB 1462
18 1462
18 1465
18 1465
L8 1465
FELONY
FELONY
FELONY
9810
FELONY
9820
FELONY
9910
FELONY
FELONY
9820
IMPRISONMENT
DEFEND- PRISON
ANTS MONTHS
2 60
1 120
1 180
1 12
1 18
1 24
PROBATION FINE
MONTHS
60 15,000
60 20,000
60 5,000
15,000
583
I
T
MAJOR OFFENSE
TITLE/SECTION
AND LEVEL
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
DEFEND-
ANTS
1
1
1
1
PROBATION
MONTHS
24
36
48
60
F1NU
5,000
18
18
18
18
18
18
1462
1462
1464
1464
1465
1465
FELONY 2
9820
FELONY
9910
FELONY 3
FELONY 2
24 SOU
24
18 1465 9820
MAJOR OFFENSE srmj. ou»o..^,.
TITLE/SECTION DEFEND- PRISON PROBATION FINE
AND LEVEL ANTS MONTHS MONTHS
18
18
18
18
18
iti
18
18
18
18
18
1461
1461
1461
1461
1461
1462
1462
1462
1462
1465
1465
FELONY
FELONY
FELONY
FELONY
9810
9820
FELONY
9910
FELONY
FELONY
584
18 1465 9820
MAJOR OFFENSE
fiTLE/Sb'CTiON
AND LEVEL
DEFEND-
ANTS
FINE ONLY
AMOUNT OTHER
SENTENCES
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
IS 9810
18 14<>2 FELOt
18 1462 9820
18 1462 9910
18 1465 FELONY
18 1465 FELONY
18 1465 9820
15,000
200,000
DEFENDANTS SENTENCED IN UNITED STATES DISTRICT COURTS
BY MAJOR OFFENSES FOR THE TWELVE MONTH
PERIOD ENDED JUNE 30, 1982
TITLE/SECTION
_AND LEVRf.DEFEND-
IMPRISONMENT
PRISONPROBATION FINE
18 1461
18 1461
18 1461
FELONY 1
FELONY 1
9810
60
108 60
18 1462
'8 1462 FELONY
FELONY 48
60 60 12,500
585
18 1462 9820
18 1464 FELONY
18 1462 9910
18 1465 FELONY
18 1465 9820
18 60 5,000
MAJOR OFFENSE PROBATION
TITLE/SECTION
AND LEVEL
DEFEND-
ANTS
PROBATION
MONTHS
FINE
18 1461 FELONY 1
18 1461 FELONY 1
18 1461 9810
36
60
18 1462
18 1462
FELONY
FELONY
1
2
12
12 1,000
18 1462 9820
18 1464
18 1464
FELONY
9910
18 1465
18 1465
FELONY
9820
-IT
MAJOR OFFENSE SPLIT SENTENCES
TITLE/SECTION
AND LEVEL
DEFEND-
ANTS
PRISON
MONTHS
PROBATION
MONTHS
FINE
18 1461 FELONY
18 1461 FELONY
18 1461 9810
36 1,000
18 1462
18 1462
FELONY
FELONY
586
18 1462 9820
FELONY
18 1462 9910
-6TT
171465
18 1465
FELONY
FELONY
18 1465 9820
FINE ONLYTITLE/'SECTION
AND LEVEL
DEFEND-
ANTS AMOUNT
OTHER
SENTENCES
18 1461
18 1461
18 1461
FELONY
FELONY
9810
18 1462
18 1462
FELONY
9820
18 1462
FELONY
9910
18 1465
18 1465
FELONY
9820
20,000
DEFENDANTS SENTENCED IN UNITED STATES DISTRICT COURTS
BY MAJOR OFFENSES FOR THE TWELVE MONTH
PERIOD ENDED JUNE 30, 1983
IAJOR OFFENSE
ITLE/SECTION
__AND LEVEL
8 1461 FELONY8 1461 FELONY8 1461 FELONY8 1461 FELONY
DEFEND-
ANTS
1
1
IMPRI
PRISON
MONTHS
60
108
SONMENT
PROBATION
MONTHS
60
FINE
5,000
587
( r
18 1461 FELONY
MAJOR OFFENSE
TITLE/SECTION
AND LEVEL
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
DEFEND-
ANTS
1
2
1
1
2
PROBATION
MONTHS
24
36
36
36
48
FINE
1,000
1,500
2,000
TITLE/SECTION DEFEND-
AND LEVEL ANTS
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
PRISON PROBATION FINE
MONTHS MONTHS
Fit
TITLE/SECTION DEFEND-
ANTS AMOUNT SENTENCES
18 1461
18 1461
18 1461
18 1461
18 1461
FELONY
FELONY
FELONY
FELONY
FELONY
5,000
DEFENDANTS SENTENCED IN UNITED STATES DISTRICT COURTS
BY MAJOR OFFENSES FOR THE TWELVE MONTH
PERIOD ENDED JUNE 30, 1984
LJOR OFFENSE IMFRISONMENT
588
TITLE/SECTION
ANDLEVEL_
18
18 1461
18 1461
18 1461
FELONY
FELONY
FELONY
FELONY
1TT462 FELONY
DEFEND-
ANTS
PRISON
MONTHS
PROBATION
MONTHS
FINE
36
60
18' 1465 FELONY
18 1465 FELONY 1
18 1465 FELONY 1
24
36
HAJ6R OFFENSE
TITLE/SECTION DEFEND—
AND LEVEL ANTS
18 1461
18 1461
18 1461
18 1461
18 1462
18 1462
18 1465
18 1465
FELONY 1
FELONY 1
FELONY 4
FELONY
FELONY
9820
FELONY 1
FELONY
PROBATION
PROBATION FINE
MONTHS
24
36
60
12
18 1465 9820
KAJOR OFFENSE SPLIT SENTENCES
TITLE/SECTION
_AND LEVEL DEFEND-
ANTS
PRISON
MONTHS
PROBATION
MONTHS
FINE
18 1461 FELONY
18 1461 FELONY
'8 1461 FELONY
18 1461 FELONY
589
18 1462 FELONY
18 1462 9820
1 6 24
18 1462 FELONY
18 1462 9910
18 1465 FELONY
18 1465 FELONY
18 1465 9820
MAJOR OFFENSE
TITLE/SECTION
AND LEVEL
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
18 1461 FELONY
FINE ONLY
DEFEND- OTHER
ANTS AMOUNT SENTENCES
1 15,000
18 1461 9810
18 1462 FELONY
18 1462 9820
18 1462 FELONY
18 1462 9910
18 1465 FELONY
18 1465 FELONY
18 1465 9820
3 15,000
1 200,000
DEFENDANTS SENTENCED IN UNITED STATES DISTRICT COURTS
BY MAJOR OFFENSES FOR THE TWELVE MONTH
PERIOD ENDED JUNE 30, 1985
MAJOR OFFENSE IMPRISONMENT
590
TTTT E/SECTION DEFEND- PRISON PROBATION FINE
fliJp LEVEL ANTS MONTHS MONTHS
,81461 FELONY 1 6
|g 1461 FELONY
18 1461 FELONY
Jg 1461 FELONY
It 1461 9810
18-1462 FELONY
18 1462 9820
ft 1464 FELONY
18 1464 9910
ft 14*5 FELONY
18 1465 FELONY
18 1465 9820
MAJOR OFFENSE PROBATION
TITLE/SECTION DEFEND- PROBATION FINE ,
AND LEVEL ANTS MONTHS
18 1461 FELONY 2 24
IB 1461 FELONY 3 36
18 1461 FELONY 3 48
18 1461 FELONY 4 60
18 1461 9810
18 1462 FELONY 1 36
18 1462 9820 3 60
14 14*4 FELONY
18 1464 9910
IB UbS FELONY ~" ~~ ~~
18 1465 FELONY
18 1465 9820
591
MAJOR OFFENSE SPLIT SENTENCES
TITLE/SECTION DEFEND- PR±SON PROBATION FINE
Aiqn T.RVRI. ANTS MONTHS MONTHS
18
18
18
18
18
18
18
18
18
18
18
1461
1461
1461
1461
1461
1462
1462
1462
1462
1465
1465
FELONY 5
FELONY
FELONY
FELONY
9810
FELONY
9820
FELONY
9910
FELONY 1
FELONY
18 1465 9820
MAJOR OFFENSE FINE ONLY
TITLE/SECTION DEFEND- OTHER
ANn LEVEL ANTS AMOUNT SENTENCES
18
18
18
18
18
18
18
18
18
1461
1461
1461
1461
1461
1462
1462
1462
1462
FELONY
FELONY
FELONY
FELONY
9810
FELONY
9820
FELONY
9910
592
of 1984.
The President's Commission on uniform Sentencing is a
385 According to the Department ofresult of this Act,
justice,
'The principal goal of the Sentencing Reform Act is
to establish a uniform, determinate federal
sentencing system that will accomplish the purpose
of just punishment, deterrence, incapacitation, and
rehabilitation. This goal is to be achieved
primarily through the use of sentencing guidelines
established by a Presidentia 1ly appointed
Sentencing Commission, which will be composed of
seven full time members and a staff. At least
three members must be active federal judges who
will not be required to resign from the bench to
serve on the Commission. The initial set of
guidelines is to be completed in eighteen months.
In the course of its work, the Commission will
examine the offense and offender characteristics
that judges now consider in making sentencing
determinations, and will determine which of those
should be reflected in the guidelines, which ones
occur so infrequently that they should not be
considered in the guidelines but might justify a
departure from the guidelines, and which ones
should not affect the sentence at all.386
In addition, thetPresident's Commission on Uniform
Sentencing should specifically consider the problems
associated with sentencing obscenity law violations.
18 1465
18 1465
FELONY
FELONY
18 1465 9820
SOURCE: ADMINISTRATIVE OFFICES OF THE UNITED STATES COURTS.
7 Q C
th United States Department of Justice, Handbook on
kJie Comprehensive Crime Control Act of 1984 and other
-Ejnunalstatutes Enacted by the 98th Congress 31 (1984).
386 T/1Id.
593