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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 ( r 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 60 61 204 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. 63 206 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 I ) 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 (IT / 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 ( F ( FT 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 rr 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 91 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 r 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. 190 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 r 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 283 158-315 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 284 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. 297 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 299 / 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. 309 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 311 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 315 158-315 Vol. 1, 0 - 86 - 11 (V 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." 330 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 331 () 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 332 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 337 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. 339 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 341 (TT 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 344 ,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 347 158-315 Vol. 1, O - 86 - 12 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 349 I } 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 353 c r 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 354 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 355 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 356 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 357 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 359 T f 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 360 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. 361 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 365 1 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 r 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 373 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 375 I 1 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