HomeMy WebLinkAbout2005-06-28; City Council; 18187 v3 22 Pt 2; Exhibit - AG Commission report on pornographyr
Chapter 3
Child Pornography
No clearer measure exists of the radical shift in the
sues confronted by the Commission on Crsj'nity and Pornography
1970 and those facing this one than the problem of child
pornography. In its description of "the industries" producing
sexually explicit material the 1970 Commission nowhere mentioned
or alluded to child pornography, 387 and its Traffic and
Distribution Panel reported that "(tjhe taboo against pedophilia
. . . has remained almost inviolate" even in the hardest of
•hard-core" materials.388 The recommendations of the 1970
Commission included repeal of all laws restraining distribution
of sexually explicit materials to children; no exception was
stated for materials depicting children engaged in sexual
conduct.389
This Commission, by contrast, has devoted a very
•ubstantial proportion of its time and energy to examining the
««tent and nature of child pornography. Indeed, one set of the
Commission's hearings was devoted almost entirely to the problem,
"hiie extensive oral and written testimony on the subject was
3877_j, I iii i..[teport °^ tne Commi-ssio" on Obscenity and Pornography•* \ i y / \j )
388
389
11- at 139.
Id. at 57-67.
595
1
received throughout the year. No aspect of the pornograph
industry has more occupied the attention of Congress and the
general public during the past decade, and this Commission ha
made a wide range of recommendations for further legislative and
public action. The very novelty of child pornography as a matter
for public concern, however, requires at least a general overview
of the rise of the "kiddie porn" industry, the nature of and the
rationale for the governmental response to it, the effects on
the children involved, and the contours of the industry's
surviving components. That overview must begin with attention to
what "child pornography" by definition is and what it is not.
Drawings of children engaged in sexual intercourse with
adults date at least from ancient Greece,390 an(j a graphic
written description of child sexual abuse was to be found in
seventeenth century France.391 vet although these portrayals or
accounts might be deemed "obscene," and although they deeply
offend modern sensibilities regarding the rearing and protection
of children, they are not "child pornography" in the specific
legal and clinical sense that term has acquired over the past
fifteen years. As defined by the United States Supreme Court in
the 1982 decision, New York v. Ferber, the category of "child
pornography" is "limited to works that visually depict sexual
39° See, Photographic vase drawings in K. J. Dover, Grf__
Homosexuality (1978).
391 see, description of P. Aries, Centuries of C
100-102 (19TT) (diary of Heroard, physician to Henri iv, ,.
down graphic details of sexual "play" with the child LOUI
596
conduct by children below a specified age."392 It is clear
the Court's language, and in all statutory and scholarly
Definitions of the term, that "child pornography" is only
appropr iate as a description of material depicting real
393children.
The basis for these limitations is evident from the very
ature of the outrage child pornography engenders - anger over
the sexual abuse of children used in its production. While
concern over "pornography" generally has centered on the impact
of sexually explicit materials on the audience, "child
pornography" has been defined, and attacked, in terms of its
effects on the children who appear in it. Thus, as the Court
found in Ferber, the category of "child pornography" is both
broader and narrower than that of "obscenity." Broader in that
it Includes materials which are not "patently offensive," which
do not appeal to the "prurient interest of the average
Individual, "and which show children in sexual conduct even as an
392 458 U.S. 474, 746 (1982). The Court also required that
the "category of 'sexual conduct' proscribed must also be
• ultable limited and described," id. , and must not include mere"nudity." id. at 765 n. 18. The New York statutes in question,
Penal Law 26T.15, was found to fit these requirements even though
It included "lewd exhibition of the genitals" in its definition
of proscribed sexual conduct. Id_. at 773.
391J The Ferber Court began its analysis of "child
" by notin9 the Judgment of legislators and cliniciansUSe of chil<3ren as subjects of pornographic materials
« ciH • ° the Physiological, emotional, and mental health of
under /h f ^Ud9ment the Court found "easily passes muster
•quarelv, Fi^st Amendment." Id. at 758. Ferber thus rests
Malted t h assumPtion thatThe materials in question are
used? e in th« production of which actual children have
597
lith«
incidental part of the work (rather than "taken as a whole"1.394
Narrower, however, in that written materials are wholly excluded,
as are visual materials which do not show actual children engage,j
in sexual conduct. Thus a rewrite of Lolita which included
graphic descriptions of sexual activity with a young girl couid
never be "child pornography," nor could a fully explicit film of
the novel which starred an adult actress playing the part of the
young girl. Such a film which used a minor actress, however,
could be "child pornography" even if not "patently offensive" by
prevailing community standards, and (although this is less clear)
even if it possessed serious artistic, literary, scientific or
educational value.395 in the context of "child pornography,*
alone among all the issues considered by the Commission, the
defninition of "obscenity" proclaimed in Miller v. California396
and its progeny is wholly irrelevant. Indeed, the advent of
"kiddie porn" in the years after Miller provides vivid
illustration of the inadequacy of the concept of "obscenity" for
protecting the interests of performers in sexually explicit
394 id. at 764.
395 Thus the Court found that "a work which, taken as «
whole, contains serious literary, artistic, political,
scientific value may nevertheless embody the hardest core ot
child pornography." Compare, id at 774-775 (O'Connor, •<••
concurring) (no defense based on "serious value" shoula
allowed) with id. , at 775-777 (Brennan, J., concurring m
judgement) (such a defense required by First Amendment).
396 413 U.S. 15 (1973).
598
Aerial. 397
The irrelevance of Miller to child pornography is loaded
ith some historic ironies, for it was later in the very year of
hat decision, 1973, that the first child pornography ring -
involving some fourteen adults using boys under age thirteen for
and production of pornographic materials - was brought to
public view.398 in the four years that followed police and
reporters uncovered a wide range of activities involving the
sexual exploitation of children, much of it involving child
pornography.399 Early in 1976 two employees of a large Los
Angeles corporation publishing sexually explicit magazines were
convicted of pandering for hiring a fourteen-year-old girl to
engage in numerous acts of photographed sexual intercourse for
publication in the company's magazines.400 Later in that year
the Los Angeles Police Department established a special Sexually
Exploited Child Unit to combat child pornography and
397 For the full discussion of the problem of the use of
t performers iii commercial pornography, See, Chapter 2 inP»rt Five. —~~
398 S. O'Brien, Child pornography 60 (1983) (arrests by Los
«ng«les police). in August of 1973 the sexually sadistic murder
••« inty~aeven V0un9 boys by Dean Corll was uncovered, while
"veral other call-boy rings were also exposed that year.
399
AMI-I,.. /ill^ Rt Llovd' For Honey or Love; Boy Prostitution in«2Il£» (19TT); C. Linedecker, Children in Chains 212-242 (1981).
321 (2d
P' Fix1Pr> 128 Cal' RPtr' 363' 56 Cal- APP- 3d
599
prostitution,401 and in the spring of 1977 a string
investigative articles in the Chicago Tribune, Time and other
major publications helped prompt a full Congressional
investigation of the problem.402
What Congress discovered in its hearings - which involved
one Senate and two House subcommittees over ten dates and fout
cities from May to September of 1977403 - was summarized by the
Senate Judiciary Committee in its report:
[Clhild pornography and child prostitution have become
highly organized, multi-million dollar industries that
operate on a nationwide scale. . . .404
According to evidence at the hearings, those industries were
producing some 264 different commercial magazines each month
401 sexual Exploitation of Children, Hrqs. Before the
Subcomm. on the Judiciary. U.S. House, 95th Cong., 1st Sess. »
( 1977) (statement of Investigator Lloyd Martin, Los Angeles
Police Dep't) (hearings hereinafter referred to as "Subcommittee
on Crime Hearings").
402 For a reprint of the most influential articles See,
Subcommittee on Crime Hearings, supra note 401, at 422-443.
403 subcommittee on Crime Hearings, supra note 401; .SexujSi
Exploitation of Children, Hrqs. Before the Subcomm. on select
Education. Comm. on Education and Labor, U.S. House, y*t.n Cong^
1st Sess. (1977) (hereinafter "Select Education SuPconimiti
Hearings"); Protection of Children Against Sexual Exploitaj^
Hrgs. Before the Subcomm. to Investigate Juvenile Delinque"~^4
Comm.' on the Judiciary, U.S. Senate. 95th Cong., 1st Sess^ d
Thereinafter "1977 Senate Hearings").
404 S. Rep. No. 438, 95th Cong., 1st Sess. 5 (1977)
600
howing children nude or engaged in sexual conduct,405 an(j the
founder of the Los Angeles Sexually Exploited Child Unit reported
that "We have 30,000 sexually exploited children in that
city-"406 One Producer and distributor was reported to have made
f ve to seven million dollars in his own child-pornography
business,407 while other witnesses before Congress described the
kidnapping of small children by pornographers,408 and even their
sale by parents.409
Child pornography had, in short, become a part of the
commercial mainstream of pornography by 1977, sold "over the
counter" and in considerable quantities. While a substantial
amount of such material was of foreign origin,410 much of it was
405 subcommittee on Crime Hearings, supra note 402, at 43
(testimony oT Dr. Jud ianne Denses-Gerber, Presl, Odyssey
Institute).
406 Id. at 59 (testimony of Lloyd Martin).
407 Id. at 117 (statement of Michael Sneed, reporter,
Chicago TriEune).
4"" Select Education Subcommittee Hearings, supra note 403,
•t 116. (statement of Robin Lloyd).
409
410
Ici at 42-43 (testimony of Lloyd Martin).
For an excellent overview of the production of child
pornography in the Netherlands, Denmark, and other northern
European countries - as well as the repackageing for shipment to
United States of material originally produced in America-
r^r.'.. j po5norlraPhv and Pedophilia. Hrqs. Before the Perm.
>vernmental AffairsT
(1984)(especially
Subconi Lttee on Investiaat
Tvlur ?X Renneth J. Herrmann, Jr., and Michael Jupp. and Toby_r«r, id. at 322-37); and Child Pornography and Pedophilia, Hrg.
_tnePerm. Comm. on Investinations Vomm on f-nvornmenfcaJ
(19H5)
federal \ * testira°ny of Elliott Abrams, et al., members of
mteragency group which travelled~to~Denmark, The
601
n
made using American children. This wholly unanticipated K
product of the "pornography boom" prompted an angry legislatiVe
response from Congress and nearly all state legislatures 3
response that in itself seems to have reshaped completely the
nature of the child-pornography industry.
The governmental battle against sexual exploitation Of
children has been an ongoing, evolutionary one, marked by a
extraordinary degree of consensus among legislators on both the
federal and state levels. Detailed analysis of the wide array Of
statutes which have resulted from this shared concern is beyond
the scope of this report. Nevertheless, a general review of
applicable federal statutes, long with attention to significant
features of current states, is a crucial backdrop to the
Commission's recommendations, and, more importantly to under-
standing the substantial changes in the child-pornography
industry since 1977.
Federal Statutes. Comparison of the two major Congres-
sional acts designed to fight sexual exploitation, approved six
years apart, provides perhaps the best evidence of how a changing
child pornography industry has taxed legislative ingenuity:411
1. The Protection of Children from Sexual Exploitation
Netherlands, and Sweden to discuss problem
with government officials) (hearing hereinafter
"1985 Hearings" ) .
411 For a more complete discussion and comParison
L.J. (19H).
602 ;
|>r> of 1977 (the "1977 Act").412 The immediate response of
ess to the evidence gathered in its 1977 investigations was
tnis law, approved February 6, 1978.
It categorically prohibited the production of any "sexually
licit" material using a child under age sixteen, if such
terial is destined for, or has already travelled in interstate
commerce.413 The definition of the phrase "sexually explicit"
Included any conduct involving sexual intercourse of any variety,
bestiality, masturbation, sado-masochistic abuse, or "lewd
exhibition of the genitals or pubic area."414 Stern penalties
(10 years imprisonment and/or $10,000 fine) were imposed for
violating these provisions,415 an<j were made applicable, as well,
to parents or other custodians who knowingly permit a child to
participate in such production.416
With regard to the traffic in child pornography already
produced, the 1977 Act took a somewhat different approach. With
the evidence gathered at the hearings centering overwhelmingly on
the commercial character of such traffic, Congress understandably
directed its prohibitions against the transportation, shipping,
•ailing, or receipt of child pornography in interstate commerce
412 P.L. 95-225, 92 Stat. 7 (1978), codified at 18 U.S.C.S.
SS2251-2253 (1979).
413 18 U.S.C.S. S2251(a) (1979).
414 18 U.S.C.S. S 2253 (1979).
415
416
18 U.S.C.S. S2251(c) (1979).
18 U.S.C.S. S2251(b) (1979).
603
1,0-86-20
1 T
"for the purpose of sale or distribution for sale. "417
- -bartering or simply giving away child pornography was
prohibited even if conducted through the mail. Further,
tutional concerns led Congress to restrict the application
these provisions to material depicting children engaged i
"sexually explicit" activity, which was also "obscene" under
Miller test.418 As under the production provisions, the a
limit for children protected was set at sixteen, and th
penalties imposed were identical.419
2. The Child Protection Act of 1984 (the "1984 Act"). 430
Strong as it appeared to be on its face, the 1977 Act was soon
found by federal law enforcement officials to be of only limited
practical value. The production of child pornography is to
clandestine in character that from 1978 to 1984 only one person
had been convicted under that portion of the 1977 Act. 421 ^g fot
distribution of the material, the traffic in child pornography
went underground after 1978, and commercial magazines such ai
those shown to Congress in 1977 were no longer available "over-
the-counter" in pornography outlets. Rather, as a Postal
417 18 U.S.C.S. S2252 (1979).
Id.
Id.
420 p.L. 98-292, 98 Stat. 204 (1984), codified at jj
U.S.C.S. SS 2251-2255 (1985 Supp.). The constitutionality °t
act has recently been sustained by two different federaiQS?')r
United States v. Tolczeki, 614 F. Supp. 1424 (N.D. Ohio 19B3"
421 1985 Hearing, supra note 410, at 104 (statement «
Victoria Toensing, Dep'y Asst. Attorney General).
604
ial told Congress in 1982, the "bulk of child pornography
ffic is noncommercial."422 This meant, as an Federal Bureau
estigation witness told the same hearing, that federal
cement of the 1977 Act was "seriously impaired" by its "for
" requirements.423 Further, the limitation of the
afficking provision of the 1977 Act to "obscene" child
ography placed substantial obstacles in the path of
prosecutors.424
Confronted by this evidence, and reinforced by the Ferber
decision removing any doubt about the necessity of "obscenity"
limitations, Congress in May, 1984, approved a broad revision of
the 1977 Act. The Child Protection Act of 1984 removed the
requirement that interstate trafficking, receipt, or mailing of
child pornography be for the purpose of "sale" to be criminal.
Further, it wholly eliminated the "obscenity" restrictions of the
1977 Act,426 and raised the age limit of protection to
eighteen.427 Provisions raising the amount of potential fines
422 Exploited and Hissing Children, Hrq. Before the
Subcomm. on Juvenile Justice, Comm. on the Judiciary, 97th Cong.,
JTnd Sess. 47 (statement of Charles P. Nelson).
423 Id. at 39 (statement of Dana E. Caro).
424 Child Pornography, Hrg. Before the Subcomm. 'on Juvenile
n*?.t\Ce/' Senate Comm. on the Judiciary, 97th Cong., 2nd Sess./ . , .
(statement of Robert Pitler, Bureau Chief, Appeals Bureau,
District Attorney's Office for New York County).
425
426
427
18 U.S.C.S S2252(a) (1979).
Id.
18 U.S.C.S. S2255 (1) (1979).
60S
were included,428 along with new sections authorizing crlmin
and civil forfeiture actions against violators.* 29 The
definition of "sexually explicit" material was adjusted slightiv
the first word in "lewd exhibition of the genitals or pubic are •
was changed to "lascivious," and "sadistic or masochistic abuse'
was substituted for "sado-masochistic abuse."430 Writv
materials, finally, were clearly excluded from the law's reach ln
this area: only "visual depictions" of children are criminally
actionable.431
The result of these revisions was a dramatic increase in
federal prosecutions. In the first nine months after passage of
the 1984 Act virtually the same number of people were indicted
for federal child pornography offenses as had been indicted
during the previous six years.432 The production provisions,
however, continued to produce few indictments, in part because of
the extraordinary difficulties of investigation and proof, and in
part, perhaps, because the more easily used trafficking pro-
visions often may be invoked against suspected producers instead.
428 18 U.S.C.'s. SS2251, 2252 (1979).
429 18 U.S.C.S. SS2253, 2254 (1979).
430 18 U.S.C.S. S2255 (1979).
431 18 U.S.C.S. SS2251, 2252 (1979).
432 1985 Hearing, supra note 410, at 104 (Victoria
Toensing). Statistics provided to the Commission by th«Department of Justice indicate that 183 of the 255 indictmen"
under federal child pornography laws from 1978 to February 2j,
1986, were obtained after passage of the 1984 Act on May il>
1984.
606
..-a in any case, that the 1977 Act effectively halted theIt «PPear '
of the commercial child pornography industry, while the 1984
ions have enabled federal officials to move against the
mmercial, clandestine mutation of that industry.
state Laws. The federal interest in protecting children, of
urse, is secondary to that of the states, which act as
Incipal guardians against the abuse or neglect of the young.
was indeed a state law substantially broader than the 1977 Act
which prompted the landmark decision in New York v. Ferber.433
States are not limited, as is the federal government, to
regulation of child pornography in or affecting interstate
commerce; they have the power to prohibit all production and
trafficking in such materials.
To a substantial extent the states have exercised that
power. Nearly all ban the production of child pornography, and
an overwhelming majority prohibit distribution as well.434 Most
prohibit as well parental consent or accession to use of children
in sexually explicit materials, and many outlaw facilitation of
sexual exploitation through financing, developing, duplication,
or promoting child pornography.435 Some have prohibited as well
the possession of child pornography, an extremely effective
433
434
The law in question was N.Y. Penal Law S263.15.
Nat'l Legal Resources Center for Child Advocacy and
T[?te.ctlon' A.B.A.", Child Sexual ^Exploitation; Background and
(1984 )
Analysis
''"teccion, A.B.A., Child Sexual Exploitation; Background ana
Legal Analysis 35 ( 1984 ) TTS states as of"November 1984)
'hereinafter "A.B.A. Analysis").
435 Id. at 36.
607
weapon against child molesters.436
Yet it is clear, too, that much remains to be accompliane.
on the state level. Not all states ban trafficking in chii<j
pornography, so that it remains possible in some parts of this
country to distribute such materials intrastate without fear of
criminal penalty. Further, only about half of the states protect
children from use in pornography until their eighteenth birthday)
in other states the age limit is set at sixteen or seventeen.437
(This Commission has determined, indeed, that such protections
should, on a somewhat more limited basis, be extended to age
twenty-one.)^38 Finally, few states appear to have taken action
to provide substantial assistance to victims of child pornography
- either through direct aid or through encouraging private civil
remedies.439 The primary role of states in caring for children
would seem to argue for their assumption of the principal share
of the burden of providing such assistance.
The legislative assault on child pornography drastically
curtailed its public presence; it has not, however, ended the
436 Tnus special Agent Kenneth Lanning of the F.B.I, noted
in his testimony before the Commission that "pedophiliacs" almost
always collect child pornography and/or child erotica." Miami
Hearing, Vol. I., Kenneth Lanning, p. 232.
437 A.B.A. Anaylsis, supra note 434, at 37.
438 See, The discussion in this Chapter for Recommendations
for Federal Legislation, infra.
439 As an example of the difficulty of obtaining .for
children victimized in sexually explicit material see, Paloona v>
Hustler Magazine, 607 R. Supp. 1341 (D.C. Tex.~T985), apj^i
docketed, No. 85^1359 (5th Cir. 1985).
608
._, m Sexual exploitation of children has retreated to theproblem.
, « hut no evidence before the Commission suggests thatshadows, o"1-
•Idren are any less at risk than before. The characteristics
both perpetrators and victims, combined with the extremely
ited state of professional understanding, make it unlikely
hat child pornography is a passing phenomenon. •
Those who sexually exploit children do so for a wide range
f reasons, and come from an extremely broad array of back-
grounds, and occupations,440 but it seems helpful to group them
into two categories: " situational" and "preferential"
molesters.441 The former are people who act out of some serious
sexual or psychological, need, but choose children as victims
only when they are readily and safely accessible. "Preferential"
nolesters, on the other hand, are those with a clear sexual
preference for children ("pedophiles" in common usage) who can
only satisfy the demands of that preference through child
victims. "Preferential" abusers collect child pornography and/or
erotica almost as a matter of course. It is unclear how large
each of these respective categories is, but it does seem apparent
that "preferential" child molesters over the long term victimize
far more children than do "situational" abusers.
440 Washington Hearing, Vol. I, Daniel Mihalko, p. 149;
"langer, et aj.., Typology of Sex Rings Exploiting Children, in
tJaUd Pornography and Sex Rings 74 T&.Burgess ed. T984)ffSexRingsin
the» the cornm- • Calre9ories and the analysis that follow from
inning,%C°Tlsslon ls grateful to Special Agent, Kenneth
609:
The approaches adopted by various perpetrators also var
widely. The most recent research on "child sex rings" indicates
that they range in structure from highly organized, "syndicated"
operations involving several perpetrators and many children with
production of child pornography for sale or barter, to "solo«
operations in which children are abused and photographed by only
one perpetrator for his pleasure.442 child pornography, whiu
serving primarily the perpetrator's own needs, is also useful tor
lowering the inhibitions of other children being recruited by the
perpetrator.443 Wholly commercial operations appear to be
extremely unusual, but are still not unknown.444
The normal absence of commercial motives, and the strong
sexual and/or psychological needs which push both situational and
preferential molesters toward sexual abuse of children in
pornography, suggest that the demand for such material may be
somewhat inflexible. While situational abusers may be steered
away from children as victims, preferential abusers may not - and
they are prone, moreover, to far more frequent abuse. However
strong the criminal law, sexual exploitation of children seems
likely to remain an irresistable temptation for some.
What is worse, the supply of potential victims seems inex-
442 Belanger, supra note 441, at 51.
443 Lanning, Collectors, in Sex Rings, supra note 440,
86.
444 See, Sex Rings, supra note 440 at 67-73,
of fity-four child sex rings studied were "syn/Hr
which sold child pornography and used children i
610
^seventeen
a as well. Children used in pornography seem to come
every class, religion, and family background; a majority are
loited by someone who knows them by virtue of his or her
cupation,445 or through a neighborhood, community or family
tionship. Many are too young as to know what has happened;
thers are powerless to refuse the demand of an authority figure;
e seem to engage in the conduct "voluntarily," usually in
rder to obtain desperately needed adult affeet ion.446
Adolescents used in pornography are often runaways, homeless
youth or juvenile prostitutes who may feel with some justice that
they have little choice but to participate. Thus it seems
clear that a large class of children and teenagers vunerable to
use in pornography will continue to exist. Even redoubled
efforts to teach children to protect themselves from such
Involvement will not wholly blunt the strong social, family, and
economic forces creating that vulnerability.
The rise of the child pornography "problem" took medical,
social services and legal communities as much by surprise as it
445 Id. at 74-75 (38.2 percent of offenders studied had
access to cKlldren through occupation; 27.3 percent through their
'living situation" ).
446 U. Schoettle, Report to the United States' Attorney
General's Comm'n on Pornography 11 (Miami Hearing).
447 See, Rabun , Combatting Child Pornography and
Prostitution; One County's Approach, in Child Sex Rings, supra
"ote *«l. at 187-200 (fifteen percent of runaway acknowledged
involvement in pornography. James Scanlon & Price, Youth
Ef?8tut"ti."rif in Cnild Sex Rings at 139 (seventy-five percent of
ie hustlers aged fourteen to twenty-five had participated inPornography). v v
611
did Congress and the general public. It is only fair to
therefore, that what one witness dubbed "conceptual .chaos"
serious obstacle to progress against sexual exploitatl
note
on
A A ft "children in pornography; at present only a tiny quantity
serious scholarship on the subject has found its way int
print. 449 There are indications, moreover, that researchers ad
clinicians attempting to specialize in the field have faced
serious resistance from their peers. 450
No profession is more open to the charge of ignorance in
this area than the law itself. 451 court procedures are par-
ticularly intimidating for children asked to relate extremely
intimate sexual details that they know will be reacted to with
horror by family and friends. 4^2 ^ criminal proceeding, more-
over, creates a double bind for the child: if he is believed, i
448 Miami Hearing, Vol. I, Roland Summit, p. 210A19.
449 The leading studies seem to be those contained in Child
Sex Rings, supra note 440, and U. Schoettle, Child Exploitation!
A Study of Child Pornography, 19 J. Am. Acad~ Child Psych. 28$
(1980) (cited by the Court in New York y. Ferber, 458 U.S. at 75«
n. 9) [hereinafter "Child Exploitation"] .
450 Statement of Roland Summit, supra note 448, at 8-15.
451 The most scathing indictment of the legal system'*
capacity to bring child pornography cases to justice was suppliel!
to the Commission by Dr. Roland Summit, who said, in part: "SeJ
crimes, more that 'legitimate' crimes, seem to require criminal
conviction to justify public validation. That standard in ,
represents another Catch 22 in favor of traditional denial. "n
insistence of proof beyond reasonable doubt for an invisible '".
illogical crime almost guarantees suppression and repudiation-
Id. at 5-6.
452 See generally , Summit & Kryso, Sexual
Children; A Clinical Perspective, in Children and Sex 111» J
124 (L. Constantine & F. Martinson eds. 1981).
612
mer "friend" will go to jail? if h'e is not, he must endure
ional gUnt from thoughts that perhaps he did not tell
enough. 453 The study of novel investigative and courtroom
edures to address these problems is only in its infancy:
here the child pornography itself is not sufficient, without use
f the victim as a witness, to establish the prosecutor's case,
parents are likely to face an excruciating dilemma. Lawyers and
doctors and mental health professionals, remain1 ud s
largely ignorant of how to respond to child pornography victims.
That ignorance is deeply unfortunate because the pain
Buffered by children used in pornography is often devastating,
and always significant. In the short term the affects of such
involvement include depression, suicidal thoughts, feelings of
shame, guilt, alienation from family and peers, and massive acute
anxiety. 454 Victims in the longer term may successfully
•integrate" the event, particularly with psychiatric help, "
but many will likely suffer a repetition of the abuse cycle (this
time as the abuser), chronic low self esteem, depression, anxiety
regarding sexuality, role confusion, a fragmented sense of the
self, and possible entry into delinquency or prostitution.4^^
AH, of course, will suffer the agony of knowing the record of
Child Exploitation, supra note 449, at 297.
Schoettle Statement, supra note 446, at 10.
.<_„ Burgess, et al., Impact of Child Pornography and Sex
gJQas on Child v^rr^s and^Thelr Families in Child Sex Rings,™£ra note 440, at 115-117. --
Schoettle Statement, supra note 446, at 10.
613
their sexual abuse is in circulation, its effects on their £utur
lives unknowable and beyond their control. That may well K
their most unhealable wound.
Because the trauma inflicted on children by sexu
exploitation is so great, it has seemed to the Commission
particularly important to examine every possible approach t
improving the state of the law and services to victims. While
limitations of time and resources placed significant constraint*
on that effort, it was nonetheless possible to discuss the
problem of child pornography from a number of different perspec-
tives, and to develop recommendations where the evidence called
for them. The recommendations so conceived follow, along with
explanations of the reasons for each.
457 see New York v. Ferber, supra note 392, 458 U.S. at
759, and studies cited therein.
614
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TABLE 3
CYCLE
One of the most common questions asked from a public that knows
very little about child pornography is: "How does child pornography
begin?" This diagram explains one of the most common ways a child
is introduced to pornographic activity:
(1) Pornography is shown to
the child for "sex educa-
tion."
(2) Attempt to convince child
explicit sex is acceptable,
even desirable.
(6) Photographs or movies are
taken of the sexual ac-
tivity.
Cycle of Pornography
(3) Child porn used to con-
vince child that other chil-
dren are sexually active -
it's ok.
(5) Some of these sessions
progress to sexual activity.
(4) Child pornography desensi-
tizes — lowers child's inhi-
bitions.
S- O'Brien, Child Pornography, 89,
(1983) .
T
RECOMMENDATION 37:
CONGRESS SHOULD ENACT A STATUTE REQUIRING THE PRODUCERS
RETAILERS OR DISTRIBUTORS OF SEXUALLY EXPLICIT VISUAL DEPICTIONS
TO MAINTAIN RECORDS CONTAINING CONSENT FORMS AND PROOF Op
PERFORMERS' AGES.
Pornographers use minors as performers in films and other
visual depictions.458 The consumer demand for youthful per-
formers has also created a class of pornography referred to as
pseudo child pornography.459 The growth of pseudo child
pornography has made it increasingly difficult for law
enforcement officers to ascertain whether an individual in a film
or other visual depiction is a minor.
Minors deserve special protection from the risks inherent
458 see, The discussion of performers in Part Four.
459 pseudo child pornography or "teasers" involve women
allegedly over the age of eighteen who are "presented in such a
way as to make them appear to be children or youths. Models used
in such publications are chosen for their youthful appearence
(e.g., in females, slim build and small breasts); and are
presented with various accoutrements designed to enhance the
illusion of immaturity (e.g., hair in ponytails or ringlets,
toys, teddy bears, etc.).'Pseudo child pornography' is of concern since it may
appeal to the same tastes and may evoke responses similar or
identical to those elicited by true child pornography. However,
it is distinct from, and is not 'genuine1 child pornography i"
the sense that it is older adolescents or adults who are
displayed in these sexually explicit depictions. It is no
individual children who have been directly exploited in tne
making of such materials. Committee on Sexual Offences Agains
Children and Youth, 2 Sexual Offences Against Children, H92
(1984). [hereinafter cited as Sexual Offences Against Children]-
618
in the production of pornographic materials.460 The performers
ay be subjected to threats and coercion, provided with
controlled substances or exposed to a variety of sexually
transmitted diseases.461 The Child Protection Act of 1984462 is
designed to prohibit employing, using, persuading, inducing,
enticing, or coercing any minor to engage in any sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct. 463
This proposed legislation should afford protection to
minors through every level of the pornography industry. The
recordkeeping obligation should be imposed on wholesalers,
retailers, distributors, producers and any one engaged in the
sale or trade of sexually explicit material as described by the
Child Protection Act.
The concern to be addressed through this legislation is the
safety and well-being of children. The current law contains gaps
which allows the exploitation of minors to continue. Legislation
should be drafted to close the gaps and afford children full
protection in every phase of the production and distribution of
sexually explicit materials.
Producers would be required to obtain proof of the age of
the performer and record the same on a signed release form if the
460
461
See, New York v. Ferber, 458 U.S. 758 (1982).
See, The discussion of performers, infra.
462 18 U.S.C. SS 2251-2252 (1985).
463 Id.
619
performer engages in any sexual act which would be in violati
of The Child Protection Act. 464
Despite the umbrella protection provided by the Chii<j
Protection Act of 1984, loopholes remain that permit the
continued exploitation of children. For example, experts and law
enforcement officers have found it difficult to extend this
protection because in many instances, ascertaining the real ages
of adolescent performers is impossible. By viewing a visual
depiction, how does one decide if the performer is fourteen or
eighteen, seventeen or twenty-one? The growth of the category of
pseudo child pornography has further confused the issue.
The above legislation will assist officials in assuring the
safety and well being of children.
The recomended legislation would require producers to
obtain release forms from each performer with proof of age.465
The forms would be filed at a specified location listed in the
opening or closing footage of a film, the inside cover of the
magazine or standard locations in or on other material containing
visual depictions.466
464 Producers may fullfill the proof of age requirement
through obtaining a driver's license, birth certificate or other
verifiable and acceptable form of age documentation.
465 The release forms should also include the stage names
of the performers as well as any other aliases the performer may
use, fingerprints to avoid forgery or fraudulent certification
and the last known address and telephone number for the purpose
of verification.
466 •• j; think consent is a very important part of
freedom ... we all want to increase volunteerism and decrease
lack of consent whether that be by models or purchasers of
620
The name, oCfical title and location of the responsible
n or corporate agent supervising such records would also be
ted to avoid use of corporate shields. The release forms
Id be available for inspection by any duly authorized law
nforcement officer upon demand as a regulatory function for the
limited purposes of determining consent and proof of age. The
Information contained in these records should not be used as
evidence of obscenity or related offenses in a grand jury
proceeding or by a petit jury or trier of fact, but should only
be used for prosecution of this offense. This exception from use
In evidence is necessary to secure compliance by the largest
number of persons and avoid Fifth Amendment problems.
A producer should be required to maintain these records for
a minimum period of five years.468 Failure to comply with any of
these requirements would be punishable as a felony. This
legislation would not only protect minors from abuse, but it
would also place the burden of ensuring this protection was
implemented squarely on the producers of the materials. The
proposed legislation would serve a record keeping purpose
magazines." New York Hearing, Vol. II, Alan Dershowitz, p. 312.
This inspection requirement would be
Inspection provision included in section 3007 of the
Conaervation Recovery Act of 1976, as amended in that•arrant would not be necessary for routine examination
records.
468 The five year requirement would commence the date the
film was released or the magazine was distributed.
621
comparable to that found in environmental and simii»f
469statutes.46 Performers in pornography face more risks than juat
Examples of similar recordkeeping legislation and th
penalties are: The Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) which provides, "The Administrator mav
prescribe regulations requiring producers to maintain such
records with respect to their operations and the pesticides and
devices produced as he determines are necessary for the effective
enforcement of this Act." 7 O.S.C. S1361 (3) FIFRA also gives
the administrator of the Environmental Protection Agency the
authority to inspect the premises to ensure compliance. "(t>)
Inspection. - For the purposes of enforcing the provision of this
Act, any producer, distributor, carrier, dealer, or any other
person who sells or offers for sale, delivers or offers for
delivery any pesticide or device subject to this Act, shall, upon
request of any officer or employee of the Environmental
Protection Agency or of any State or political subdivision, duly
designated bghy the Administrator, furnish or permit such person
at all reasonable times to have access to, and to copy; (1) all
records showing the delivery, movement, or holding of such
pesticide or device, including the quantity, the date of shipment
and receipt, and the name of the consignor and consignee? or (2)
in the event of the inability of any person to produce records
containing such information, all other records and information
relaing to such delivery, movement, or holding of the pesticide
or device." 7 U.S.C. S 1361; Failure to comply with the
provision may result in civil or criminal penalties. "Any
registrant, commercial applicator, wholesaler, dealer, retailer,
or other distributor who knowingly violates any provision of this
Act shall be guilty of a misdemeanor and shall on conviction b«
fined not more than $25,000, or imprisoned for not more than one
year, or both." 7 U.S.C. Sl36n. The Resource Conservation and
Recovery Act of 1976 requires hazardous waste generators,
transporters and owners and operators of treatment, storage and
disposal facilities to maintain adequate business records. See,
42 U.S.C. SS3002, 3003, 3004. If the records are not maintained,
the owner, operator, generator or transporter of hazardous waste
may be subject to civil and criminal penalties. "Any person who-
" (3) knowingly omits material information or makes any false
material statement or representation in any application, label,
manifest, record, report, permit or other document filed,
maintained, or used for purposes of compliance with regulations
promulgated by the Administrator under this subtitle: snaHf,
upon conviction, be subject ot a fine of not more than $50, OO"
for each day of violation, or imprisonment not to exceed two
years (five years in the case of a violation of paragraph (1) °r
(2), or both. if the conviction is for a violation committed
after a first conviction of such person under this paragraP"
shall be doubled with respect to both fine and imprisonment." 42
622
gexual abuse. A dscision by young performer to appear in
pornographic materials has serious implications for his or her
future personal life and career prospects. The existence of the
material and its intermittent resurfacing may destroy employment
prospects and threaten family stability.470
RECOMMENDATION 38
CONGRESS SHOULD ENACT LEGISLATION PROHIBITING PRODUCERS OF
CERTAIN SEXUALLY EXPLICIT VISUAL DEPICTIONS FROM USING PERFORMERS
UNDER THE AGE OF TWENTY-ONE.
Producers are currently proscribed through the Child
Protection Act from using performers under the age of eighteen to
engage in various sexually explicit materials. The proscribed
acts include actual or simulated:
(A) sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
<E) lascivious exhibition of the genitals or pubic area of
any person.471
U-S.C. S3008.
470
"•»"ington D r°e»e8 ,Hearini3' Vo1- "• "iki Garcia, p. 118-20;<Jton, D.C., Hearing, Vol. II, Tom, p. 50.
18 U.S.C. S2255 (1985).
623
I
w
The Act should be amended to protect performers under th
age of twenty-one. The amendment should prohibit producers from
using persons between the ages of eighteen and twenty-one i
visual depictions of certain sexually explicit activities. Tj,e
proscribed activities should includes actual:
(A) Sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex;
(B) Bestiality;
(C) Masturbation;
(D) Sadistic or masochistic abuse; or
(E) Lascivious exhibition of the gentials or pubic area of
any person.
Persons between the ages of eighteen and twenty-one while
physically mature still face problems associated with sexually
explicit performances. These risks include: pregnancy,472
sexually transmitted diseases,473 physical abuse474 an(j damage to
Enablers, Inc., Juvenile Prostitution in Minnesota 86
(1978) (over one-half of juvenilefemale prostituteshadbeen
pregnant at least once; thirty percent had been pregnant two or
more times).
473 See> e.g., Enablers, Inc., supra note 472,
(half of the female prostitutes interviewed indicated t
venereal disease); O.K. Weisberg, Children in the *"
(1985) [hereinafter cited as Children in tne NightJ .
disease "plagues" juvenile prostitutes;andisthel5
prevelant health concern"); 2 Sexual Offences &"=<"=•• Ch
at 85.had167
^
prevean ;
1024 (1984) (majority of juvenile prostitutes studied in
had contracted a sexually transmitted disease, and almost
do not seek regular medical attention).
624
elf esteem and mental health.475
Perhaps because of the inner conflicts common among this
e group, adolescents are notoriously poor in making sexual
hoices well into their late teens and twenties. Thus adolescent
se of contraceptives "approaches an almost random pattern, "
with only a third of sexually active teenagers using contra-
ception consistently.47' Likewise women aged sixteen to nine-
teen were eighty-eight percent more likely than women age twenty-
five to twenty-nine to seek an abortion after twelve weeks of
gestation - with women aged twenty to twenty-four fully twenty-
five percent more likely to wait than the older group.478
Partially because of poor maturity, and partially because of
economic and social factors, the health risks of teenage sex are
significant. Both infant and maternal mortality are higher for
474 Silbert & A. Pines, Occupational Hazards of Street
Prostitutes, 8 Crim. Just. & Behavior 395 ( 1981) (sixty-five
percent of sample of prostitutes had been victims of violence, an
average of 9.2 times each; seventy-five percent victimized by
•forced perversion"); Children in the Night, supra note 473, at
162 (violence also an occupational problem for juvenile maleprostitutes).
475 Washington, D.C., Hearing, Vol. I, David, p. 47;
Washington, D.C., Hearing, Vol. I, Jeff, p. 167; Washington,
D.C., Hearing, Vol. I, Lisa, p. 61.
476
0, .. F- Bolton, The Pregnant Adolescent; Problems ofPremature Parenthood 35 (1980). - ~~~~~ -
__ Alan Guttmacher Institute, Teenage Pregnancy; The
hat Hasn<t Gone AwaV 11 (1981). [hereinafter cited Alanr .
•exuaM r Inst'' Teenage Pregnancy] The vast majority of
nineteen ac'ive adolescents, of course, are aged eighteen,"ineteen, and twenty. Id. at 7.
478 Centers for Disease Control, Abortion Surveillance 37[hereinafter cited as CDC, Abortion surveillancej
625
women aged fifteen to nineteen.479 More precisely, the rate
low birth weight among babies born to nineteen year-old white
mothers is twenty-five percent higher than that for babies bom
to white mothers aged twenty to twenty-four. Abortions, too
are riskier for white women in late adolescence than for older
women because they tend to seek them at a much more advanced
gestational stage.481
Teenagers participating in pornography face all the risks
attendant upon adolescent sexual activity but face as well one
certainty that other teenagers do not. Their sexual activity,
played out before a camera and live audience, is "a graphic form
of exhibitionism . . . [which] literally makes the child's body
'available' for anyone willing to pay the price anywhere in the
world."482 without reciting all the adverse consequences which
young "models" suffer, it is sufficient to note that they can be
severe 483 and, even more importantly, irreversible. Unlike the
young prostitute who may be able to leave his or her past behind,
479 Id. at 10, 37.
480 Alan Guttmacher Inst., Teenage Pregnancy, supra note
477, at 29.
481 CDC, Abortion Surveillance, supra note 478, at 37.
482 Schoettle, Child Exploitation; A Study of ChUd
Pornography, J. Am. Acad. Child Psych. 289, 296 (1980).
483 See, e.g., Wood v. Hustler Magazine. Inc., 736 F. 2d
1084, 1086 (5th Cir. 1984) (description of anguish and harassment
suffered by woman whose nude photo was stolen and published
Hustler) ; Lederer, Then and Now - An Interview w<«-h a Formgl.
Pornography Model in Take Back the Night; Women on PnrnoqrapM
57 (1980); Testimony of George (Los Angeles).
626
adolescent "porn star" must always live in fear that the film
graph wm surface, once again wreaking havoc in his or
her personal and professional life.
Because of the economic and social realities of late
dolescence, moreover, it is highly unlikely that a decision to
accept these consequences has been made in an atmosphere free of
pressure or coercion. Youths aged eighteen to twenty-one as a
oup gu£fer extraordinary levels of unemployment and homeless-
ness.4^4 Tne rate °f poverty among the sixteen to twenty-one age
group is almost half again as high as that among older adults.485
It is hardly surprising that desperate youths are attracted by
the quick money to be made in pornography. In describing why as
» young man he made a "skin flick", Sylvester Stallone said that
ho was literally starving, and "It was either do that movie or
rob someone."486 yet it is equally clear that it offers them no
future as a career in itself, and may in fact further worsen
their prospects for stable, long-term employment. 487
484 Youths aged sixteen to nineteen are 160 percent more
likely to be unemployed than older workers. Those aged twenty to
twenty-four are still ninety-three percent more likely to be
unemployed than older workers. Stastical Abstract at 394. At
Covenant House 's New York program alone last year over 5,500
youths aged eighteen to twenty-one — virtually all of them
homeless — sought crisis shelter. Only a small minority could
o« placed in independent living arrangements, job training orinstitutional shelters.
485
486
487
Statistical Abstract at 456.
Playqirj. 39 (Oct. 1985).
**« questtf^'-u0' HiX' Male "odel 1985-86 (1979). (In answer to
ltePPinqstonp i i1 y°,U advise anyone to do nude modelling as aystone into a legitimate career?" porn star Jack Wagner
627
Much participation in pornography, of course, occurs as part
of the "career" of juvenile prostitution,488 and it is worth
noting that a significant percentage of youths involved in
prostitution have been coerced into "the life."489
Many of the difficulties discussed could be eliminated
through a prohibition on the use of persons under the age of
eighteen in any sexually explicit depiction as desented in the
Child Protection Act. Persons between the ages of eighteen and
twenty-one would receive the necessary protection through a
prohibition against participation in certain scenes of actual
sexual activity.
RECOMMENDATION 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.
Many pedophile offenders and child pornographers have
said, "Absolutely not. There are a lot of companies, film
companies as well, that won't hire you if you have done nude
modelling whether it was for Playgirl or Playboy or whatever."
Ld. at 186.)
488 Sexual Offences Against Children, supra note 473, at
1198-99 (1984); Children of the Night s"upra note 473, at 68-69
(1985) (fourteen of fifty-four juvenile prostitutes for whom
information was available had been photographed for commercial
photography) .
489 Huckleberry Study at 34; Sexual Offences
Children, supra note 473, at 992-93. These studies indicate that
about one in six female prostitutes under age twenty-one had been
physically coerced into their roles.
628
ditionally used the mails as a mainstay of their psychological
s well as tne source of information regarding potential
victims.490 Recently however, pedophile offenders and child
rnographers have begun to use personal computers for
communications.491 A person may now subscribe to an information
gervice whereby he or she can contact other subscribers.49^ The
ervices are private commercial enterprises which sell access
codes to subscribing members. These services offer everything
from "private" communications accessed through individual code
words to conference calls. 493 The communication may also take
the form of a "bulletin board" message to which any other
subscriber may respond. 494
Personal computers have instant communication capabilities
and have afforded subscribers the opportunity to establish
extensive networks.495 Within these networks one or two
pedophile offenders or child pornographers will often assume
leadership roles.496 These individuals will coordinate the con-
490 Miami Hearing, Vol. I, Paul Hartman, p. 105.
491 Id. at 106.
492 Id. at 106-07.
493
494
Id. at 108-10.
stimony before the Commii
bullet) " h"" "aiumaii stated, "...I accessed a computerized
procl.i • oard and found a message rather casually displayed
«nd nt ?lng anotner subscriber's interest in photographs of teenpreteen children." id. at 108.
inQr*. .. D"ring his testimony before the Commission, Postal
bimt,H0r ?aui Hartman stated, "...I accessed a computerized
495
496
id. at 109.
!£. at ill.
629
(
versations and activities with other members of the networks.49,
Subscribers may identify themselves using a first name and
will identify the children with whom they are currently sexual!
involved.*98 The vast network which may develop enables
pedophile offenders who live hundreds of miles apart to com-
municate about contact with a child known to both.499 During
these computerized conversations the offender may describe his
actual and imagined sexual exploits with children.
Investigators have discovered that pedophile offenders use
personal computer communications to establish contacts and as
sources for the exchange or sale of child pornography. °° The
computer user, after establishing a secure relationship with
another subscriber, will arrange for materials to be sent through
the mail.-^1 The subscribers will identify and describe the
types of materials they seek. Respondents will then transmit the
materials to the designated address.
Pedophile offenders and child pornographers may also use
personal computer services to identify particular children who
can be used in making child pornography.^02 The subscribers may
describe the child physically and give a location where the child
497
498
Id.
Id.
499 Id. at 111-12.
500 id. at 111.
501 Id. at 108-09.
502 Id. at 111.
630
-ay found. 503
The technologically complex computer systems and networks
oerated by pedophile offenders and their multi jurisdictional
nature should prompt federal interest and substantiate
jurisdiction.504 Each of these systems uses an interstate common
503 id.
504 Hearings before the Senate Judiciary Committee,
Subcommittee on Juvenile Justice, Oct. 1, 1985, p. 4; Senator
Paul S. Trible, Jr. (R-Va.), and Senator Jeremiah Denton (R-Ala.)
have introduced Senate Bill 1305 to amend 18 U.S.C. sections 1462
and 2252 to prohibit the use of computers for the interstate or
foreign dissemination of obscene material, child pornography and
advertisements for the same and information about minors which
can be used for facilitating, encouraging, offering or soliciting
•exually explicit conduct with a minor. The legislationprovides:
BILL
"To amend title 18, United States Code, to establish
criminal penalties for the transmission by computer of
obscene matter, or by computer or other means, of matter
pertaining to the sexual exploitation of children, and forother purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled. That
this Act may be cited as the "Computer Pornography and ChildExploitation Prevention Act of 1985".
Sec. 2 Section 1462 of Title 18, United States Code isamended by -
(1) Inserting after subsection (c) the following:
"(d) any obscene, lewd, lascivious, or filthy writing,
description, picture, or other matter entered, stored,
or transmitted by or in a computer; or "Whoever
knowingly owns, offers, provides, or operates any
computer program or service is being used to transmit
in interstate or foreign commerce any matter thecarriage of which is herein made unlawful; or" and
(2) inserting at the end thereof the following:
631
1
"For purposes of this section —
(1) the term 'computer1 means an electronic magnetic
optical, electrochemical, or other high-speed flat'
processing device performing logical, arithmetic, o*
storage functions, and includes any data storane
facility or communications facility directly related to
or operating in conjunction with such device;
"(2) the term 'computer program' means an instruction
or statement or a series of instructions or statements
in a form acceptable to a computer which permits the
functioning of a computer system in a manner designed
to provide appropriate products from such computer
system:
"(3) the term 'computer service1 includes computer
time, data processing, and storage function; and
"(4) the term 'computer system' means a set of related
connected, or unconnected computers, computer
equipment, devices, and software."
"(c) Any person who knowingly enters into or transmits
by means of computer, or makes, prints, publishes, or
reproduces by other means, or knowingly causes or
allows to be entered into or transmitted by means of
compute, or made, printed, published, or reproduced by
other means —
"(1) any notice, statement or advertisement, or
(2) any minor's name telephone number, place of
residence, physical characteristics, or other
descriptive or identifying information.
For purposes of facilitating, encouraging, offering, or
soliciting sexually explicit conduct of or with any minor,
or the visual depiction of such conduct, shall by punished
as provided in subsection (d) of this section, if such
persons knows or has reason to know that such notice,
statement, advertisement, or descriptive or identifying
information will be transported in interstate or foreign
commerce or mailed, or if such information has actually been
transported in interstate or foreign commerce or mailed."
Sec. 4, Section 2252 of Title 18, United States Code,
is amended —
632
carrier, the telephone, as its communication medium. The
information about these minors is routinely conveyed between or
among various states.
A recent example occurred in Raleigh, North Carolina, where
(1) in subsection (a) by striking out "subsection (b)"and inserting in lieu thereof "subsection (c)"
(2) by redesignating subsection (b) as subsection (c);
(3) by inserting after subsection (a) the following newsubsection:
"(b) Any person who knowingly enters into or
transmits by means of computer, or makes, prints,
publishes, or reproduces by other means, or
knowingly causes or allows to be entered into or
transmitted by means of computer, or made,
printed, published, or reproduced by other means
any notice, statement, or advertisement to buy,
sell, receive, exchange, or disseminate any visualdepiction, if —
"(1) the producing of such visual depiction
involves the use of a minor engaging in sexuallyexplicit conduct; and
(2) such visual depiction is of such conduct;
shall be punished as provided under subsection
(c), of this section, if such person knows or has
reason to know that such notice, statement, or
advertisement will be transported in interstate or
foreign commerce or mailed, or if such notice,
statement, or advertisement has actually been
transported in interstate or foreign commerce ormailed."
Sec. 5, Section 2255 of Title 18, United States Code is
amended by adding at the end thereof the following newparagraph:
"(5) 'computer' means an electronic, magnetic,
optical, electrochemical, or other high-speed data
processing device performing logical, arithmetic, or
storage function, and includes any data storage
facility directly related to or operating inconjunction with such device."
633
f ).
authorities discovered a computer network known as the "Gay Te i
Conference" which was operated by a local man. The network could
be reached by any computer operator who obtained a special
password and it contained descriptions and depictions of various
homosexual acts. The operator of "Gay Teen Conference" also
operated a religious computer bulletin board known as "Ministry
Bulletin Board." A computer operator was able to obtain the
password for "Gay Teen Conference" by contacting the "Ministry
Bulletin Board."505 Tne proposed legislation would provide a
useful law enforcement tool in this area of serious concern.
RECOMMENDATION 40:
CONGRESS SHOULD AMEND THE CHILD PROTECTION ACT FORFEITURE SECTION
TO INCLUDE A PROVISION WHICH AUTHORIZES THE POSTAL INSPECTION
SERVICE TO CONDUCT FORFEITURE ACTIONS.
The United States Postal Inspection Service is the investi-
gative arm of the United States Postal Service.506 it has
investigative responsibilities over all criminal violations of
federal law relating to the Postal Service including the child
pornography laws.507
5°5 Seminary Graduate Charged in Porno Computer Network,'
The Fayetteville (N.C.) Times, Feb. 7, 1986, p. 14B.
506 Washington, D.C., Hearing, Vol. I, Charles Clauson, P-
135.
507 Postal Crimes fall within two broad categories:
Criminal Acts (1) against the postal service or its employees,
such as armed robberies, burglaries or theft of mail, and (*{
misuse of the postal system such as the mailing of bombs, use
634
The most common method of circulating child pornography has
traditionally been through the mail.508 The mail provides a
clandestine and anonymous form of communication for both
parties.509
The efforts of the Postal Inspection Service in the
investigation of child pornography would be greatly enhanced
through an amendment to the Child Protection Act permitting the
Postal Inspection Service to engage in forfeitures 510
the mails to distribute pornography, id.
508 Washington, D.C., Hearing, Vol. I, Daniel Mihalko, p.
145-46.
509
510
Id_. at 146.
The amendment should be as follows:
To amend the Child Protection Act of 1984 to authorize
the Postal Service to conduct civil administrative seizures
and forfeitures under the Act, and for other purposes.
Sec. 1. Subsection (b) of section 2254 of title 18
United States Code, is amended by inserting "or the Postal
Service" after "the Attorney General.':
Sec. 2. Section 2003(b) of title 39, United States
Code, is amended —
(1) in paragraph (b) (5) by striking out "and";
(2) in paragraph (b) (6) by striking out the period at
the end and inserting in lieu thereof a semicolon and
"and";
(3) by inserting at the end of subsection (b) the
following new paragraph: "(7) amounts from any civil
administrative forfeiture conducted by the Postal
Service"; and
(4) by inserting in the first sentence of paragraph (e)
(1), immediately following the word "title" the first
time it appears, the following: "including expenses
incurred in the conduct of seizures, forfeitures and
635
158-315 Vol. 1, O - 86 - 21
r
Since 1984 there has been an increased enforcement ef£o
against child pornography. From January 1, 1978, to May 21
1984, only sixty-nine defendants were indicted for chii
pornography violations. From May 21, 1984, to June 1995
there were 103 defendants indicted for child pornograph
violations.512
In 1984 the Postal Inspection Service spent 50,000 hours and
completed 168 pornography investigations which resulted in sixty-
nine arrests.513 During the first eight months of 1985 the
Service spent 36,000 hours and completed ninety-nine investi-
gations.514 These efforts resulted in 114 arrests.515 in june
1985 there were over two hundred open Postal Service investi-
gations of potential child pornography violations.516
Under current federal law the Postal Inspection Service Is
excluded from participation in forfeiture actions. The for-
feiture provision would enable inspectors the opportunity to
recover items of value which were used in or derived from illegal
activities. This provision should be structured to assist in
140.
disposal of forfeited property pursuant to title 18.
511 Chicago Hearing, Vol. II, James S. Reynolds, p. 268.
512 jd.
513 Washington, D.C., Hearing, Vol.1, Jack Swagerty, P-
514 Id.
515 id.
516 id.
636
king the Postal Inspection Service investigations self-
orting an(j assist in defraying the cost of subsequent
rosecutions as well as removing resources from the hands of
offenders.
RECOMMENDATION 41s
CONGRESS SHOULD AMEND 18 U.S.C. S2255 TO DEFINE THE TERM "VISUAL
DEPICTION" AND INCLUDE UNDEVELOPED FILM IN THAT DEFINITION.
The Child Protection Act prohibits the transportation of
certain sexually explicit visual depictions. The predecessor to
the present Act specifically defined visual depictions. The
language of the current Act has been used successfully by defense
attorneys to exclude undeveloped film that has been legally
seized.5i7 In an effort to curb the continued exploitation of
children, it is necessary to define the term "visual depictions"
to include images contained on rolls of undeveloped film, video
tape and sketches, drawings or paintings of actual persons.518
This amendment will afford United States Attorneys the oppor-
tunity to bring an iridictment under the Child Protection Act for
offenses depicted on film undeveloped while under the control of
an offender.
The current statute creates a dilemma for law enforcement
agents and prosecutors in the case of undeveloped film. If the
517
(Dec. 20, 198T)'.
518
See, Letter from Joyce A. Karlin to Henry E. Hudson
98T
Id.
637
o
indictment is brought while film if yet to be developed t-u
depictions contained on the undeveloped film are not subject t
prosecution. If the film is allowed to remain in the hands
the offender until developed it is virtually impossible t
prevent the pictures from entering circulation which is the ver
harm sought to be eliminated. This amendment would end the
dilemma and enable the prosecution of child pornography contained
on undeveloped film possessed by the offender.
RECOMMENDATION 42:
CONGRESS SHOULD ENACT LEGISLATION PROVIDING FINANCIAL INCENTIVES
FOR THE STATES TO INITIATE TASK FORCES ON CHILD PORNOGRAPHY AND
RELATED CASES.
The responsibility for financial assistance for a task force
program does not lie solely with the federal government, but the
program should be the product of a coordinated financial effort
C 1 Q
between federal and state governments. Federal programs and
funding should reward state governments which assume their proper
role in creating the task forces described below.
The task forces would consist of experts from different
fields including the judiciary, law enforcement agents, and
health professionals who would be charged with recommending and
519 This Commission does not encourage or promote the
concept of federal funding of programs which are properly within?
the responsibility of state and local governments. The
importance of this program, however, calls for a coordinat
effort and an initial incentive plan.
638
lamenting changes in the court system and methods to more
ctively handle cases of child abuse and exploitation which
suit from the production and use of child pornography. Upon
plementation of such task forces, federal funds would be
rovided to a state. Federal assistance of this nature would
enable states to the task force approach more effectively and
economically.
Enabling legislation should provide grants to state
governments to establish, develop, implement or operate programs
directed toward the treatment and prevention of child sexual
520abuse related to child pornography. The programs should
520 senator Paula Hawkins (R-Fla.) has introduced the
Children's Justice Act w*hich attempts to facilitate
investigations and prevention of child sexual abuse. The billprovides:
SHORT TITLE
SECTION 1. This Act may be cited as the "Children'sJustice Act".
CHILDREN'S JUSTICE GRANT
SEC. 2, Section 4 of the Child Abuse Prevention andTreatment Act is amended by -
(1) redesignating subsection (d), (e), (f), the first
time such subsection appears, and (f), the second time such
subsection appears, as subsection (e), (f), (g), and (h),respectively; and
(2) inserting after subsection (c) the following:
"(d) (1) in addition to grants made to States under
subsection (b), the Secretary is authorized to make grants
to States for the purpose of assisting States in the
developing, establishing, operating, or implementingprograms or procedures for -
"(A) handling child abuse cases, especially child
639
sexual abuse cases, in a manner which reduces
trauma to child victims;the
"(B) improving the chances of successful prosecution
legal action against individuals who abuse children^
especially individuals who sexually abuse children; o '
"(C) improving procedures for protecting children from
abuse,
in accordance with the eligibility requirements of this
subsection. Grants under this subsection may be made to the
State agency which administers funds received under
subsection (a) or to an appropriate statewide law
enforcement agency which has developed a child abuse program
which meets the requirements of paragraph (2). The
determination as to which agency of a State may apply for a
grant pursuant to the preceding sentence shall be made by
the chief executive officer of such State.
"(2) (A) In order for a State to qualify for assistance
under this subsection, such State shall, except as provided
in subparagraphs (B) and (C) -
"(i) establish a multidisciplinary task force as
provided in paragraph (3); and
"(ii) adopt reforms recommended by the
multidisciplinary task force in each of the three
categories provided in subparagraphs (B), (C), and (D
of paragraph (3).
For purposes of clause (ii), reforms may include proof that
the State has made substantial improvement in implementing
or enforcing State laws or administrative practices in
effect on the date of enactment of the Children's Justice
Act as recommended by the task force of such State under
paragraph ( 3) .
"(B) If the Secretary determines, at the request of any
State on the basis of information submitted by the State
that such State -
"(i) has established a multidisciplinary task
force within the 3 years prior to the enactment of tne
Children's Justice Act with substantially the same
functions as the multidisciplinary task force provide
for under this subsection; and
640
"(ii) is making satisfactory progress toward
developing, establishing, operating, or implementing
the programs or procedures in each of the three
categories provided in subparagraphs (B), (C), and (D)
of paragraph (I) and will continue to do so,
then such State shall not be required to meet the
requirements of Subparagraph (A).
"(C) A State may adopt reformed recommended by the task
force of such State in less than all three of the categories
provided in subparagraphs (B), (C), and (D) of paragraph
(3), but in the event that a State fails to adopt any
recommendation in a category the State shall submit to the
Secretary a detailed explanation of the reasons for the
State not planning to carry out any such omittedrecommendation.
"(3) (A) Each State desiring to receive a grant under
this subsection shall establish a multidisciplinary task
force on children's justice composed of professionals
experienced in the criminal justice system and its operation
relating to issues of child abuse. The task force shall
include representatives of the law enforcement community,
judicial and legal officers including representatives of the
prosecution and the defense, child protective services,
child advocates, health and mental health professionals, and
parents. Each State task force shall, for fiscal year 1987,
review, analyze, and make recommendations for reforms needed
to improve the response of such State to child abuse cases
in each of the categories described in subparagraphs (B),(C), and (D).
"(B) A State shall provide for the handling of child
abuse cases, especially child sexual abuse cases, in a
manner which reduces the trauma to the child victim.
Administrative procedures consistent with the reduction oftrauma may include -
"(i) the establishment of interdisciplinary teams of
child abuse professionals such as law enforcement
officers, child protective service workers,
prosecutors, child's advocates, mental health
professionals, and medical personnel for handling childabuse cases;
"(ii) coordinated court proceedings for handlingintrafamily child abuse; or
641
"(iii) providing for specialized training of iaw
enforcement, legal, judicial, and child welfare
personnel to deal with child abuse victims and thei
families. lr
"(C) A State shall establish reforms designed to
improve the chances of successful prosecution or legal
action against individuals who abuse children, especially
individuals who sexually abuse children. Such reforms may
include -
"(i) strengthening the State definition of child sexual
abuse;
"(ii) modifications of certain evidentiary restrictions
such as the corroboration requirement and the
qualification of child abuse victims as witnesses to
allow for the age of child abuse victims; or
"(iii) establishing procedures for the closed-circuit
televising or videotaping of victim's testimony under
circumstances which ensure procedural fairness while
minimizing the trauma to the child abuse victim,
especially child sexual abuse victim.
"(D) In order to improve procedures to protect children
from abuse, especially sexual abuse, a State shall establish
administrative reforms by law or, if possible, pursuant to
law by administrative action, such as -
"(i) providing a guardian ad litem who is assigned to
make an independent investigation and report to the
court on recommendations regarding what action should
be taken that would be in the best interests of the
child;
"(ii) granting courts authority to grant civil
protection orders to protect children from further
abuse, or
"(iii) providing treatment programs for the individual
who abuses children, especially the individual who
sexually abuses children, and the abused child.
"(4) A grant authorized by this subsection may be made
by the Secretary upon application which is made at such time
or times and contains or is accompanied by such information
as the Secretary may prescribe. Each such application
642
shall-
"(A) contain such assurances as may be necessary
to evidence compliance with paragraphs (2) and (3);
"(B) contain assurances that the State will comply
with the requirements of paragraph (2)(A)(ii) during
the fiscal year for which the grant is made; and
"(C) provide for making such reports, in such form
and containing such information as the Secretary may
require to carry out his functions under this
subsection, and for keeping such records and for
affording such access thereto as the Secretary may find
necessary to assure the correctness and verification ofsuch reports.
"(5) (A) In order to assist the States in developing
effective approaches to achieve the objectives set forth in
paragraph (1), the Secretary, through the National Center on
Child Abuse and Neglect established pursuant to section2(a), shall -
"(i) compile, analyze, publish, and disseminate to each
State a summary, including an evaluation of the
effectiveness or lack thereof, of approaches being
utilized, developed, or proposed with respect to
improving the investigation and prosecution of child
sexual abuse cases in a manner which reduces the trauma
to the child victim along with such other materials or
information as may be helpful to the States in
developing or implementing programs or procedures to
satisfy the requirements of this subsection;
"(ii) develop and disseminate to appropriate State and
officials model training materials and procedures to
help ensure that all law enforcement, legal, judicial,
and child welfare personnel are adequately trained to
deal with child sexual abuse victims; and
"(iii) provide for the support of research projects to
assist in identifying effective approaches to achieving
the objectives of this subsection.
"(B) Not later than two years after the date funds are
obligated under section 5(b) for the first fiscal year, theSecretary shall -
"(i) review and evaluate the effectiveness of the
activities carried out with such funds in achieving the
643
objectives of this subsection? and
"(ii) report to the appropriate committees of «.(.
Congress on the results of such review and evaluat)and on the steps taken by the Secretary, through t"
National Center on Child Abuse and Neglect Center
assist the States in achieving such objectives.to
The summary, information, and materials requi
jbparagraph (A) shall be made available ^"(C)under suu^"1-°y *•<•*"• »«», -- „,_ tappropriate State officials not later than 180 days aft
the date of the enactment of the Children's Justice Act." *r
AUTHORIZATION
SEC. 3. Section 5 of the Child Abuse Prevention
Treatment Act is amended by -
(1) inserting "(a)" after "Sec. 5"; and
(2) inserting at the end thereof the following:
"(b) There are authorized to be appropriated
$12,000,000 for each of the fiscal years 1987 and 198!
for the purposes of making grants under subsection (d|
of section 4."
COORDINATION OF FEDERAL PROGRAMS INVOLVING CHILD ABUSE
SEC. 4. Section 7 of the Child Abuse Prevention and
Treatment Act is amended by -
(1) inserting "(a)" after "Sec. 7."; and
(2) inserting at the end thereof the following:
"(b) (1) Within 180 days of the date of enactment of
the Children's Justice Act and every 6 month"
thereafter, the Attorney General, the Secretary of
Health and Human Services, Secretary of Education, »"»
the head of any other agency or department designate
by the President, or their designees, responsible t^
programs involving child abuse prevention and treatm* ^
shall meet for the purpose of coordinating su
programs in order to -
"(A) prevent the overlap of such programs and
resulting waste of resources; and
644
"(B) assure that such programs effectively address allaspects of eh child abuse problem.
"(2) Within one year of the date of the enactment of
the Children's Justice Act and annually thereafter, the
Secretary of Health and Human Services shall report to
Congress with respect to the actions carried out by agencies
and departments of the United States for the purpose of
coordinating programs involving child abuse prevention and
treatment as provided in paragraph (1)."
MODIFICATION OF FBI OFFENSE CLASSIFICATION SYSTEM
Sec. 5. The Attorney General shall modify the
classification system used by the National Crime Information
Center in its Interstate Identification Index, and by the
Identification Division of the Federal Bureau of
Investigation in its Criminal File, and its Uniform Crime
Reporting System with respect to offenses involving sexualexploitation of children by -
(1) including in the description of such offenses by
the age of the victim and the relationship of thevictim to the offenders; and
(2) classifying such offenses by using a uniformdefinition of a child.
AMENDMENT TO PUBLIC HEALTH SERVICE ACT
Sec. 6 (a) Section 523 of the Public Health Service Act
(42 U.S.C. 290dd-3) is amended -
(1) by striking out "subsection (e)" in subsection (a)
and inserting in lieu thereof "subsections (e) and
UP; and
(2) by adding at the end the following new subsection:
"(i) Nothing in this section shall be construed to
supersede the application of State and local
requirements for the reporting of incidents of
suspected child abuse to the appropriate State orlocal authorities."
(b) Section 527 of such Act (42 U.S.C. 290cc-3) isamended -
(1) by striking out "subsection (e) in subsection(a)
645
handle child sexual abuse cases resulting from the production
child pornography in a manner which reduces the trauma for th
victims and the programs should implement procedures which lead
to an increase in successful prosecutions against pornographers
who sexually abuse children. The program should also present
methods of protecting children from the sexual abuse associated
with children pornography and related offenses. Many states
undoubtedly will recognize the merit of this program and will
take the initiative in implementing these procedures.
Congressional action should also address the need for an
effective information network which is essential to law
enforcement and social service agencies. The information should
be assembled for immediate access to assist law enforcement
officers as they proceed with a child pornography or related
case. This information network should have specific connections
with the Uniform Crime Reporting System operated by the Federal
Bureau of Investigation. This type of legislation would
facitilate the investigation of child sexual abuse and child
and inserting in lieu thereof "subsections (e) and
(i)"; and
(2) by adding at the end the following new subsection!
Amend the title so as to read "A bill to amend th«
Child Abuse Prevention and Treatment Act to
establish a program to encourage States to enact
child protection reforms which are designed to
improve legal and administrative proceeding'
regarding the investigation and prosecution of tn«
child abuse cases, especially child sexual abus
pornography cases and would lead to effective methods to curb the
flow of child pornography and the continued sexual abuse of
children.521
RECOMMENDATION 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.
Federal prosecutors have been frustrated in their attempts
to convict child buyers under the existing laws because
purchasing or selling a child is not presently a crime.522 in
one case involving the sale of children for use in the production
of pornography the only resort was for the Assistant United
States Attorney to prosecute the offender for an immigration
violation.523
Specific legislation would provide additional protection for
children and curb the production and distribution of child porno-
graphy. Federal prosecutors would have an additional tool
available to further the goal of child protection.
'"formation IvsLnf313 b3S^ ,fhould be coordinated with thetion system recommended to law enforcement agencies.
522
523
Miami Hearing, Vol. II, Joyce Karlin, p. 170.
Id.
646 647
B. RECOMMENDATIONS FOR STATE LEGISLATION
RECOMMENDATION 44:
STATE LEGISLATURES SHOULD AMEND, IF NECESSARY, CHILD PORNOGRAp
STATUTES TO INCLUDE FORFEITURE PROVISIONS.
For a general discussions of the use of forfeitu
provisions, see, Chapter 2 of this Part.
RECOMMENDATION 45:
STATE LEGISLATURES SHOULD AMEND LAWS, WHERE NECESSARY, TO MAKE
THE KNOWING POSSESSION OF CHILD PORNOGRAPHY, A FELONY.
The United States Supreme Court has called child pornography
"a serious national problem."524 In New York v. Ferber, the
Court said that child pornography constitutes a permanent record
of the children's participation in sexual activity, and th«
circulation of the pornography exacerbates the harm to th«
children. If the sexual abuse of children in pornography is to
be curtailed the production and distribution network must b»
eliminated.525
Investigators have identified several uses of child
pornography. The first use by pedophiles is for sexual arou«»
524 New York v. Ferber, 458 U.S. 747, 749(1982).
525 Id. at 759-60.
648
d gratif ication.526 while some pedophiles only collect child
~h« and fantasize through it, many have used it as apornogjrapny
to aid in the production of their own child pornography.
rhild pornography is often used as part of a method of
geducing child victims. 527 A child who is reluctant to engage in
al activity with an adult or to pose for sexually explicit
photos can sometimes be convinced by viewing other children
having "fun" participating in the activity.528 From a very earl>
oe children are taught to respect and believe material contained
In books and will thus have the same beliefs about child
COOpornography.3'1'
A pedophile offender will use child pornography in which the
children appear to be having a good time.5-'0 The offender uses
this material to lower the inhibitions of the child and entice
him or her into a desired activity. Children who view this
wterial are also subject to a certain amount of peer pressure as
they see other children engaged in the activity.
Child pornography is also used to illustrate the activities
526 K. Lanning, Collectors, in Child Pornography and Sex86(A. Wolbert Burgess ed. 1984).
527
Justice, Federal Bureau of
A Behavorial Analysis for Law
649
such
in which the pedophile wishes a child to engage.53^
instances a pedophile offender shows the child the pornogranh
and asks the child to imitate the pictures.
Pornographic depictions of a child may be used to blackmail
the child.532 The pedophile offender will use the pictures t
intimidate the child. The pedophile offender will threaten the
child with showing the pictures to others if the child does not
cooperate.
Child pornography is also seen as a valuable commodity among
pedophiles. Visual depictions may be traded or sold between
collectors.533 This subjects a child to repeated victimization
by countless numbers of pedophiles and makes the child the object
of the pedophile's sexual fantasies.534 child pornography which
may have orginated as a homemade item may eventually be sold to a
commercial child pornography publication.535
Child pornography has a life of its own. It is a permanent
record of the victimization and sexual abuse of the child.536
Child pornography magazines frequently include
pictures of children viewing child pornography and replicating
the poses or scenes depicted therein. Miami Hearing, Vol. Ii
R.P. "Toby" Tyler, p. 176A4.
532 Miami Hearing, Vol. II, Paul Der Ohannesian II, ?• 51i
See also, K. Lanning, Collectors, in Child Pornography and Se»
Rings 86(A. Wolbert Burgess ed. 1984).
533 K. Lanning, Collectors, in Child Pornography and Se»
Rings 86(A. Wolbert Burgess ed. 1984).
534
535
536
Id.
Miami Hearing, Vol. I, William Dworin, p. 30.
650
depictions are timeless and may be distributed and circulated
ughout the world for years after th-ey are initially created,
ch time the pornography is exchanged the children involved are
victimized again.537
The harms to children from child pornography which the
preme Court outlined in New York y. Ferber occur as a result of
the existence of the material itself.538 The enactment of
criminal penalties for the possession of child pornography is
essential if these harms are to be effectively curtailed.
Several states have recently recognized the inherent harm in
child pornography and have enacted legislation prohibiting the
possession of such material.539 Only recently has this type of
537 Washington, D.C., Vol. II, John, p. 47-48.
558 458 U.S. 747(1982).
539 see, e.g. , "Sexual exploitation of a minor; classi-
fication A. A person commits sexual exploitation of a minor byknowingly:
1. Recording, filming, photographing, developing orduplicating any visual or print medium in which minors areengaged in sexual conduct.
2. Distributing, transporting, exhibiting, receiving,
selling, purchasing, possessing or exchanging any visual or
print medium in which minors are engaged in sexual conduct.
B. Sexual exploitation of a minor is a class 2
felony." Ariz. Rev. Stat. Ann. 513-3553(1984);
"A person who has in possession a photographic
representation of sexual conduct which involves a minor,
Knowing or with reasons to know its content and character
ana that an actor or photographic subject in it, is guilty
°£ a gross misdemeanor." Minn. Stat. 3617.247(1984);
"A. Person who knowingly and willfully has in his
possession any film, photograph or other visual presentation
651
i
legislation met any constitutional challenge.540 Tnis challen
has been premised on the Supreme Court's ruling in Stanley^,
Georgia.541
In Stanley, police executed a search warrant on the
defendant's residence seeking evidence of a suspected bookmakinq
operation.542 They located three reels of eight millimeter fiim
in a desk drawer and upon viewing the films, they charged the
defendant with possession of obscene matter.543 He was convicted
before a jury.544 The Supreme Court reversed the conviction and
held that "the mere private possession of obscene matter cannot
constitutionally be made a crime."545
The first constitutional challenge to a state statute
prohibiting the possession of child pornography came on December
depicting minors engaging in or simulating, or assisting
others to engage in or simulate sexual conduct is guilty of
a misdemeanor." Nev. Rev. Stat. 3200.730(1984);
"(A) No person, with knowledge of the character of the
material or performance involved, shall do any of the
following:
(5) Possess or control any obscene material, that has a
minor as one of its participants. With purpose to
violate division (A)(2) or (4) of this section." Ohio
Rev. Code Ann. 32907.321(1984).
540 Ohio v. Meadows, No. 84 CRB 25585, Slip op. (1st Dist.
Dec. 18, 1985) cert, granted (Ohio Apr. 9, 1986) (No. 86-233).
652
1985. The first appellate district in Ohio found the state
546law prohibiting possession of child pornography to be
Constitutional.547 The analysis used in invalidating the
c AQtatute was based upon the rationale of Stanley v. Georgia .
The Ohio statute was declared unconstitutional because the state
could not punish the mere private possession of magazines "which
depicted minors . . . engaging in sexual activity."549 New York
v. Ferber550 was distinguished on the grounds that it dealt with
distribution and not mere posssession of child pornography.551
In finding the statute unconstitutional the Ohio court placed
great significance on the language in Stanley where the Supreme
Court rejected the contention by the state of Georgia that to
eliminate the traffic in obscenity, it is necessary to bar mere
private possession by an individual.55^
In United States v. Miller,553 the United States Court of
546 R.C. 2907.321(a)(5) (1985).
547 Ohio v. Meadows. No. 84 CRB 25585, Sip op. (1st Dist.
°«c. 18, 1985), cert, granted, (Ohio Apr. 9, 1986) ^(No 86-233).
548 395 U.S. 557(1969).
549 Ohio v. Meadows, No. 84 CRB 25585, Slip. op. (1st
Dist. Dec. IB, 1985); ce~t. granted, (Ohio Apr. 9, 1986) No.'6-233). —— m
550 458 U.S. 747(1982).
N°- 84 CRB 25585' Slip.ranted (ohio Apr<
at 9
653
o
Appeals for the Eleventh Circuit recently upheld the convict!
of a defendant who received child pornography from Europe through
the mail.554 Tne defendant contended that 18 U.S.C. S2252 (a)(
violated-'" his right to privacy and relied on Stanley for hi
claim that the statute was unconstitutional.556 The court
rejected the defendant's argument that the statute only applieg
to individuals who intend to distribute child pornography.557
However, in considering the privacy issue, the court said "prior
decisions on the issue of the right to possess obscene materials
are controlling in our analysis of this case.558
The court relied on several obscenity decisions in which the
Supreme Court rejected the argument that Stanley created a right
to import or receive obscene materials for private use.559 the
court concluded that Stanley cannot be expanded to create a right
to receive child pornography through the mail.560
Any reliance on the rationale of Stanley or other obscenity
554 Id.
555 This provision of the Child Protection Act provides
penalties for any person who "knowingly receives or distributes
any visual depiction . . . ."
556 776 F.2d at 980.
557 Id. at 979.
558 Id. at 980 n. 4.
559 Id. The court of appeals relied on United States VL
Reidel, 402 U.S. 351(1971); United v. 12 200 Ft. Reels, 4i-* ",:
123(1973); United States v. 37 Photographs, 402 U.S. 363(19'i;'
United States v. Onto, 413 U.S. 139(1973).
560 Id. at 981.
654
cases with respect to a prohibition against the possession of
hild pornography is misplaced. Stanley upheld an individual's
right to privately possess obscene material.561 Tne prevailing
obscenity standard at the time of the Stanley decision was
contained in Roth v. United States.562 Roth has since been
modified in most jurisdictions by Miller v. California.563
In New York v. Ferber,564 the Supreme Court upheld a New
York law prohibiting the promotion of sexually explicit
depictions of children that were not obscene under Miller.565 in
Ferber, the Court reasoned that the Miller standard, like all
general definitions of what may be banned as obscene, does not
reflect the state's particular and more compelling interest in
prosecuting those who promote the sexual exploitation of
children. The question under the Miller test,of whether a work,
taken as a whole, appeals to the prurient interest of the average
person bears no connection to the issue of whether a child has
been physically or psychologically harmed in the production of
the work. Similarly, a sexually explicit depiction need not be
"patently offensive" in order to have sexually exploited a child
through its production. In addition, a work which, taken as a
whole, contains serious literary, artistic, political or
561
562
563
564
565
394 U.S. at 559.
354 U.S. 476(1957).
413 U.S. 15(1973).
458 U.S. 747(1982).
Id. at 760-61.
655
scientific value may nevertheless embody the most grevioua
of child pornography. The Supreme Court reasoned in Ferber, »It
is irrelevant to the child [who has been abused] whether or not
the material . . . has a literary, artistic, political or social
value. Memorandum of Assemblyman Lasher in Support of S263.l$.
We therefore cannot conclude that the Miller standard is a
satisfactory solution to the child pornography problem."
Any analysis concerning the constitutionality of laws
prohibiting the possession of child pornography should not be
made as a parallel to obscenity statutes. The Supreme Court has
clearly distinguished the standards to be applied to child
pornography laws and adult obscenity statutes.567
The Supreme Court stated in Ferber that "the nature of the
harm to be combatted requires that the state offense be limited
to works that visually depict sexual conduct by children below a
specified age."568 The Court went on to clarify its statement by
noting that "the distribution of descriptions or other depictions
of sexual conduct, not otherwise obscene, which do not involve
live performance or photographic or other visual reproduction of
live performances, retains First Amendment protection."569
The obscenity precedent is clearly inapplicable to »
challenge against a statute in which the offense described
566 id. at 761.
567 458 U.S. 747(1982).
568 id. at 764.
569 id. at 764-65.
6S6
clearly involved visual depictions of children engaged in sexual
activities.570
The rationale underlying the Supreme Court's ruling in
Stanley is vastly different from that in Ferber. In Stanley, the
Court upheld the defendant's right to "read or observe what he
pleases - the right to satisfy his intellectual and emotional
needs in the privacy of his own home . . . free from state
inquiry into the contents of his library."571 Tne Court also
found, at that time, "little empirical basis" for the assertion
made by the state of Georgia that "exposure to obscene materials
may lead to deviant sexual behavior or crimes of sexual
violence. "572 However, the Court added in a footnote:
What we have said in no way infringes upon the power of
the State or Federal Government to make possession of
other items, such as narcotics, firearms, or stolen
goods, a crime. Our holding in the present case turns
upon the Georgia statute's infringement of fundamental
liberties protected by the First and Fourteenth
Amendments. No First Amendment rights are involved in
most statutes making mere possession criminal.
Nor do we mean to express any opinion on statutes
making criminal possession of other types of printeoT
filmed, or recorded materials. See, e.g., 18 U.S.C.
S793(d), which makes criminal the otherwise lawful
possession of materials which "the possessor has reason
to believe could be used to the injury of the United
States or to the advantage of any foreign nation ..."
In such cases, compelling reasons may exist for over-
570
(a)(
571
572
V' Meadow3' supra note 540, at 24; 18 U.S.C.
394 U.S. at 565.
Id. at 566. This Commission has found evidence of harm
from exposure to pornography based upon ecidence produced since
the Stanley decision, See, Textual discussion of harms in PartTw°» supra. -
657
riding the right of the individual to possess those
materials.573
While Ferber admittedly dealt with a statute prohibiting the
distribution of child pornography, the decision recognized
compelling reasons for overriding the right of an individual to
possess child pornogfaphy.574 The Court found that "it is
evident beyond the need for elaboration that a state's interest
in safeguarding the physical and psychological well-being of a
minor is "compelling'. 575 While the Court in Stanley found
little evidence then existing that exposure to obscene materials
may lead to deviant sexual behavior or crimes of violence,576 the
Court clearly states in Ferber that "the legislative judgment, as
well as the judgment found in the relevant literature, is that
the use of children as subjects of pornographic materials is
harmful to the physiological, emotional, and mental health of the
child."577 Child pornography constitutes a permanent record of
the sexual abuse of the child and the harm to the child is
exacerbated by the circulation of the material.578 The very
existence of child pornography harms the children who are
573
574
575
576
577
!!•
Id.
Id.
394
458
at
at
at
U.
U.
568, n. 11.
568.
756-57.
S. at 566.
S. at 758.
578 Id. at 759.
658
depicted. According to one child psychiatrist quoted in Ferber,
,tne victim's knowledge of publication of the visual material
creases the emotional and psychic harm suffered by the
child-"579 With respect to obscene materials in Stanley, the
Court found the privacy rights of the individual to be the over-
riding concern. In Ferber, however, the Court clearly found the
harm suffered by minors to be of paramount importance. The focus
of the protection constitutes a major distinction between these
two landmark decisions. The Ferber Court's concern for minors
included the consideration that when child pornography is
produced and distributed, the child's privacy interests are
violated.580
The Court in Stanley rejected the argument that prohibition
of the possession of obscene materials is a necessary incident to
statutory schemes prohibiting distribution. * In Ferber, the
Court recognized that it may be difficult, if not impossible, to
stop the sexual exploitation of children by pursuing only those
who produce child pornography.58^ Citing the clandestine nature
of the child pornography trade, the Court noted that "the only
practical method of law enforcement may be to dry up the market
for this material . . . ."583 Tne prohibition of the mere
579
580
581
582
583
!£. at n. 10.
Id. at 758, n. 9.
394 U.S. at 567.
458 U.S. at 760.
Id.
659
nt topossession of child pornography is a necessary incide
"drying up the market" for a product the Supreme Court has found
to be extremely harmful to the youth of the nation. Such 1
are also entirely consistent with the objectives sought to b
attained by the Court in Ferber and should not be confused with
other considerations relevant in the obscenity law context.
RECOMMENDATION 46:
STATE LEGISLATURES SHOULD AMEND, IF NECESSARY, LAWS MAKING THE
SEXUAL ABUSE OF CHILDREN, THROUGH THE PRODUCTION OF SEXUALLY
EXPLICIT VISUAL DEPICTIONS, A FELONY.
The sexual exploitation of children is the basis for the
production and distribution of child pornography.594 ~h
production and distribution of child pornography is done in a
largely clandestine fashion which makes law enforcement efforts
to curb the dissemination more difficult.58->
The classification of an offense of the sexual abuse of
children in connection with child pornography as a felony gives
notice to child pornographers and child sexual abusers who
produce child pornography that they will be dealt with in a
serious manner. An offense classified as a felony receives more
attention within the prosecutor's office than the same offense
classified as a misdemeanor. The enhanced priority wi.l
584 Miami Hearing, Vol. I, William Dworin, p. 30.
585 Washington, D.C., Hearing, Vol. I, Daniel Mihalko, P-
145.
660
doubtedly lead to more effective enforcement and prosecution.
RECOMMENDATION 47:
STATE LEGISLATURES SHOULD ENACT LEGISLATION, IF NECESSARY, TO
E THE CONSPIRACY TO PRODUCE, DISTRIBUTE, GIVE AWAY, OR EXHIBIT
»SY SEXUALLY EXPLICIT VISUAL DEPICTIONS OF CHILDREN OR EXCHANGE
OR DELIVER CHILDREN FOR SUCH PURPOSES A FELONY.
Individuals involved in the child pornography trade may
often form networks with local, national and international
connections.586 A clergyman who operated a farm for wayward boys
used the boys who lived on the farm to engage in sexual acts with
sponsors of the farm. The sexual activities episodes were filmed
C Q "7and sold as souvenirs to the sponsors.
In another circumstance, a Boy Scout troop of forty boys was
created to provide sexual services to the adult men who
accompanied them on outings. The troop leaders also filmed the
activities.588
Pedophile offenders and child pornographers use such
networks as a means to trade, exchange, and traffic in child
pornography.589 They may also use the contacts they make through
e p c
. 30° Miami Hearing, Vol. II, Seth Goldstein, p. 285X6;
Curing an investigation in- Los Angeles California, police found a
list of 5'000 customers of child pornography distributor
Wilson. Miami Hearing, Vol. II, Joyce Karlin, p. 149.
587 Id.
588
589
II- at 285X18.
Id.
661
o
this network to locate potential child victims.590
The existence of these networks of pedophile offenders and
child pornographers along with the magnitude of the harm they m
inflict makes it imperative that state legislatures act, wher
existing laws are deficient, to make the consipiracy to produce
distribute, give away or exhibit any sexually explicit visuai
depictions of children or to exchange or deliver children f0
such purpose a felony.
RECOMMENDATION 48:
STATE LEGISLATURES SHOULD AMEND, IF NECESSARY, CHILD PORNOGRAPHY
LAWS, TO CREATE A FELONY OFFENSE FOR ADVERTISING, SELLING,
PURCHASING, BARTERING, EXCHANGING, GIVING OR RECEIVING
INFORMATION AS TO WHERE SEXUALLY EXPLICIT MATERIALS DEPICTING
CHILDREN CAN BE FOUND.
Many people who produce and exchange child pornography have
created intricate networks of information. They may join
together for the purpose of trading children or trading
information about the children. Some pedophiles and child
pornographers have formed associations which have national
membership.592
590 ^
591 Washington, D.C. Hearing, Vol. I, Daniel Mihalko, P-
147-48.
592 The North American Man-Love Boy Association is conmonlj
referred to as NAMBLA. NAMBLA publishes the Bulletin *
supports laws that would abolish the minimum age for consens
662
Since child pornography is primarily a covert cottage
dustry, pedophiles who are child sexual abusers may use various
underground publications or child pornography publication^ to
place advertisements for children or child pornography.593
Advertisements often are presented in coded Ianguage594 or they
may be explicit and direct.595 The ability to easily obtain
information regarding the location of children and child
pornography allows pedophiles and child pornographers who collect
child pornography to continue the exploitation of children.
Legislation is needed to prohibit the advertising, selling,
purchasing, bartering, exchanging, giving or receiving of
information as to where children or child pornography may be
found. The penalty for a violation of the new legislation should
sexual acts. This group is recognized as an association of andfor pedophiles. The Rene Guyon Society of which Tim O'Hara isfounder and president, has the motto of "Sex before eight [yearsof age], or it's too late." PIEs Pedophile InformationExchange, has a worldwide newsletter which serves as a contactagency for pedophiles.
593 Miami Hearing, Vol. I, R.P. "Toby" Tyler, p. 176A5.
59* Coded advertisements may provide:
"Family man seeks other with similar interest."Swing. Issue 45, p. 18. Dawn Media, San Diego, CATT9T52);
"Pretty mother with pretty young daughters invitesinquiries from gentlemen anywhere, who are interested
in meeting us or in photography." Lolita. Issue 48;Id. -
59S
"Love them young and innocentl Will buy photos,
(Display•«gazin»» <V young ana innocent! Will tadvertis " taPes of young girls or boys . . . ."""""' Wonderland; News!' No. 6:6(1984).Idl
advertisVm ", caPes o£ young girls or boys . . . ." (Display
CoUectpi-s n.l^L W-Pnderland; Newsletter of the Lewis Carroll
663
be a felony. Legislation directed at curbing the £low of
pornography and information related to its production
distribution will enable law enforcement agents to attack th
methods of child sexual abusers.
It is well recognized that the advertisement of material
which is illegal constitutionally may be prohibited.596 Sine
child pornography is illegal, states may enact statutes to
prohibit the advertising of such material. States may enact
legislation which would regulate the exchange of this information
and would assist in impeding the flow of child pornogiaphy. The
Congress addressed this issue on an interstate level in the Child
Protection Act of 1984.597
RECOMMENDATION 49:
STATE LEGISLATURES SHOULD AMEND, IF NECESSARY, LAWS TO MAKE THE
ACTS OF CHILD SELLING OR CHILD PURCHASING, FOR THE PRODUCTION OF
SEXUALLY EXPLICIT VISUAL DEPICTIONS, A FELONY.
596 see, Central Hudson Gas & Electric Corp. v. Public
Utility Service^Commission of New York, 447 U.S. 557(1980). In
addressingtheissueofregulatingcommercial speech, the Court
formulated a four-part test:
At the outset, we must determine whether the expression 1»
protected by the First Amendment. For commercial speech to com
within that provision, it at least must concern lawful activity
and not be misleading. Next, we ask whether the assert*
governmental interest is substantial. If both inquiries yi«l
positive answers, we must determine whether the re9u^a
herdirectly advanced the governmental interest asserted and wne ^,t
it is not more extensive than is necessary to serve
interest. 447 U.S. at 466.
597 18 U.S.C. 332251-2252(1985).
664
Participants in international and local child sex tours
provide children for pornography and prostitution.598 Some of
these sex rings use child members to recruit new members*99 an°d
involve adults using many different children.600 Children are
purchased or exchanged in the same way the resulting pornography
is sold or traded.601
Children have been purchased from Mexico and the Dominican
Republic.602 Yakusa, an organized crime entity in Japan, is
actively involved in the trading of children.603 When these
children are brought into this country they may be traded
further, used in child pornography or tortured for sexual
pleasure.604 For example, a teacher in Los Angeles imported
young boys from Guatemala and El Salvador for sexual activity.60-"
RECOMMENDATION 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
598
599
600
601
602
603
604
605
Miami Hearing, Vol. I, Kenneth Hermann, p. 119.
Id.-
Id.
Id-
Id, at 124-25.
Id. at 131.
Id. at 121.
Id. at 132.
665
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.
Law enforcement officers and prosecutors often are unable t
successfully obtain a conviction against an individual on a
charge of child molestation because they are unable to locate the
child.606 An amendment to state statutes which recognizes visual
depictions of the molestation as sufficient evidence of the
molestation, if all other elements of the crime can be proven,
will make current law enforcement efforts more effective.
Such visual depictions are nothing more than records of
actual child molestation. Law enforcement efforts should not
be barred because the children cannot be identified or located.
In New York, law enforcement authorities located photographs
of an adult male engaging in numerous sexual acts with
children.608 Tne identity of the adult is' known to the
authorities, but they can take no action against him for those
sexual offenses because the child depicted in the photographs
cannot be identified.609
Police in Columbus, Ohio, seized photographs of an adult
male engaged in sexual acts with two young girls aged nine and
606 Miami Hearing, Vol. II, William Cassidy, p. 201-02.
607 see, New York v. Ferber, 458 U.S. 747(1982).
608 Miami Hearing, Vol. II, Paul Der Ohannesian, p. 64.
Id.
666
ten.610 They could bring no charges for the child sexual abuse
offense until the girls could be located.611
RECOMMENDATION 51:
STATE LEGISLATURES SHOULD AMEND LAWS, IF NECESSARY, TO ELIMINATE
REQUIREMENTS THAT THE PROSECUTION IDENTIFY OR PRODUCE TESTIMONY
FROM THE CHILD WHO IS DEPICTED IF PROOF OF AGE CAN OTHERWISE BE
ESTABLISHED.
Prosecutors are often unable to produce the victim of child
pornography to testify at trial as to his or her age. The
amendment would allow testimony from a third party as to the age
of the child depicted. The testimony may come from relatives or
friends of the child if the child is identified but he or she is
hot located. In addition the prosecution may use an expert
witnes^ to testify as to the age of ..he child based upon
physiological characteristics.
The testimony based upon the depictions should be used only
for proof of age. The depictions, when entered into evidence,
should serve as the basis for this testimony from an expert or
other qualified person as to the age of the child shown.
Prior to 1985 a child pornography prosecution in Maryland
c°uld not go forward unless the child depicted in the material
610 Miami Hearing, Vol. II, William Cassidy, p. 201-02.
"1 Id.
612 Id. at 204.
1
66?
158-315 Vol. 1, o - 86 - 22
was present to testify that he or she was under the anoyc of
613sixteen at the time the pornography was produced. Many ca
were not prosecuted because this element of proof could not K
met when the child victims could not be located,614 TV,The Maryiand
legislature enacted a law providing that of a child's age may
proved by:
1. personal inspection of the child.
2. oral testimony of age.
3. expert medical testimony.
4. observation of the child as depicted in the
material.
5. any other method authorized by applicable law
or rules of evidence.61->
States may find the approach taken by the Maryland
legislature an effective method to overcome the barriers
associated with determining the age of a child pornography
victim. This approach allows the use of several alternate forms
of reliable evidence.
RECOMMENDATION 52:
STATE LEGISLATURES SHOULD ENACT OR AMEND LEGISLATION, I'
NECESSARY, WHICH REQUIRE PHOTO FINISHING LABORATORIES TO REPOK
SUSPECTED CHILD PORNOGRAPHY.
613 Miami Hearing, Vol. II, Alfred Danna, p. 283.
614 Id.
615 Miami Hearing, Vol. II, Alfred Danna, p. 284J.
668 !
pedophile offenders privately produce a great quantity of
th. child pornography. 616 gome child pornographers mgy have
in their homes to develop the photographs, but
any producers most must use commercial photo finishing
laboratories.617
Effective law enforcement practices should include efforts
to reach the photo finishing process. One Federal prosecutor
told this Commission,". . . there can be little doubt that photo
finishers provide a key link in the chain of distribution of
child pornography. "618 The phOto finishers should be told
clearly by law enforcement agencies the type of materials which
are sought. The description may mirror the definition found in
the Child Protection Act or their respective state laws.619
Photo finishers also should be clearly told what responsibilities
they have as well as the sanctions they may face for neglect of
duty.
In an attempt to address this problem the California
legislature amended the Child Abuse Reporting Law.620 The
MS.
616
617
618
619
620
Washington, D.C., Hearing, Vol. I, Daniel Mihalko, p.
!!•
Chicago Hearing, Vol. II, Frederick Scullin, p. 44.
18 U.S.C. 52252(1985).
The statute provides in part,
Any person who depicts a child in, or who knowingly
develops, duplicates, prints, or exchanges, any film,
photograph, videotape, negative, or slide in which a
child is engaged in an act of obscene sexual conduct,
669
California law has resulted in an increased effectiveness in x
enforcement efforts without a noticable incidence of spurious
reporting.
Although state and local law enforcement officials must b
aware of the special problems associated with automated photo
finishers these establishments should not be excused fro
compliance.
RECOMMENDATION 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.
Many people convicted of child pornography and related
offenses present unique problems for the judicial and penal
systems. The recidivist rate for pedophile offenders who act on
their sexual desires is second only to exhibitionists.^^
An effective method of balancing the needs of the offender
and the need to protect society may be the use of a sentence of
lifetime probation. The state legislatures may amend their
sentencing statutes to provide for supervised as well as
except for those activities by law enforcement and
prosecution agencies and other persons described in
subdivisions (c) and (e) of Section 311.3. Cal. Penal
Code. S11165 (West 1985).
621 American Psychiatric Association, Diagnostic
Statistical Manual of Mental Disorders 271(3d ed. 0.
i 670
unsupervised probation.
This amendment would give judges and probation officers a
tool to moniter convicted child pornographers who pose a specific
threat to society. The availability of unsupervised probation
may become an important tool in the event the offender repeats
the crime or a similar offense. Although unsupervised, the
probation still holds the threat of future incarceration and
allows the state to retain jurisdiction over the person.
C. RECOMMENDATIONS FOR FEDERAL LAW ENFORCEMENT AGENCIES
RECOMMENDATION 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.
Child pornography and the sexual abuse of children has
overwhelming international aspects. While some child pornography
originates in Europe many of the children depicted are American
citizens.gop A pedophile offender will put together a collection
01 Phot°s either for his personal use, or in direct response to
622 Miami Hearing, Vol. I, R.P. "Toby" Tyler, p. 156-57.
671
solicitations by one or more pornography distributors. ^h
photos are then sent to a commercial distributor where they ate
compiled into a commercial-type publications.623
The pedophile offender may reside anywhere in the world
The countries where consumers have been identified include th
United States, Canada, United Kingdom, France, Italy, Federal
Republic of Germany, Belgium, Sweden, Denmark, the Netherlands
Czechoslovakia, Poland, Saudi Arabia, Egypt, Thailand, the
Philiphines, Hong Kong, Singapore, Australia and Japan.
A commercial publication is distributed by mail thoughout
the world, in addition, photos sets are sold to individual
consumers. In one instance, photos were sold in sets of twelve
photographs for $100, forty photographs for $300, or six hundred
negatives for $5,000.
In another instance, positive photographic images (slides)
were sent to a consumer by COQ International. The positives were
used to make negatives and the negatives used to print photo
sets. The sets were then sold, along with photos of models
recruited by the United States producers for fifteen to thirty-
five dollars for a set of six to ten. The same producer also
offered special photo sets, custom ordered by the consumer, f°r
two hundred to four hundred dollars per set. He called the
service "sponsor a model."
In one case, two special agents from the United State*
623 These commercial publications include Lolitot.'
Lolita.
and
672
toms Service corresponded with a distributor of child
aphy photos from Bangkok. Evidence was purchased by the
ents with the intent to forward it to the customs attache in
akok, Thailand, and to refer to the case to the Thai
thories. The Thais, however, preferred that the agents travel
Bangkok in the undercover capacities established in the
orrespondence. The agents would then purchase child pornography
leading to an arrest.
While arrangments were being made for the agents to travel
to Bangkok, it was discovered that the offender had been indicted
in Detroit, Michigan, in 1981 for the distribution of child
pornography.
A procedure for establishing undercover identities for
agents to travel abroad was non-existent. After much difficulty
appropriate identities were established with Justice Department
and State Department assistance.
The offender had been selling sets of photographs to his
customers, packaged discretely in letter class mail. In his
final lettes to the agents before their departure for Bangkok, he
offered to sell six hundred negatives for of $5,000. The agents
•nd the Thais decided to pursue this purchase. One agent posed
•• a distributor of child pornography and the other as a
pedophile.
Upon meeting the offender, the agents were led through
angkok to avoid surveillance, the offender checked the agents'
"Ports to ascertain their identities, and to ensure that they
673
lawfully entered Thailand. He turned over the final instaHraen.
of the last photo set purchased by one of the agents, and
arrangements were discussed for the purchase of the negatives
use of the children he had promised in his correspondence, and
the availability of heroin and marijuana. A meeting was arranged
for the following day.
The offender was subsequently arrested based on the evidence
contained in the correspondence to the customs agent prior to the
arrest. Agents discovered several volumes of photographs
hundreds of photos and negatives and paperback books, all
depicting explicit sexual activity between adults and children in
his apartment. In addition, address books/ sexual paraphernalia,
travel diaries, and a copy of his 1981 indictment in Detroit were
also discovered.
The defendant has plead guilty to all counts, and la
scheduled to be sentenced in Thailand.
Child pornography magazine publishers and filmmakers obtain
photographs and movies of children from offenders and reprint
them for commercial sale.624 xhe United States is also the
largest consumer of internationally produced child
pornography.625
To break this circle of distribution, agencies empowered to
interact with foreign countries should exercise their powers to
curb the sexual exploitation of children.
624
625
Id.
Id.
674
These agencies face an initial hurdle caused by cultural
rences and views of child sexuality. In contrast to the
ws protecting children under the age of eighteen in the United
tes the age of majority in Northern Europe is generally
sixteen.626 in 1985 a bill was introduced before the Dutch
rliament would lower the age of sexual consent to twelve.
The State Department, the United States Department of
justice and the United States Customs Service should continue
efforts to negotiate with foreign countries to curb the flow of
child pornography. In the past, these efforts have taken the
torn of suggesting legislative reforms. Although legislation
which would effectively combat child pornography is still pending
in Denmark, a Danish judge recently found child pornography to be
offensive to public decency.627
To supplement the broad diplomatic efforts of the State
Department specific federal agencies should continue their
efforts to control the distribution of child pornography.628
Because most of the commercial pornography is imported from
European sources, much of the burden of intercepting these
626
278.
627
P- 142.
628
Washington, D.C., Hearing, Vol. II, John Forbes, p.
Washington, D.C., Hearing, Vol. I, Daniel Harrington,
The United States Custom Service should take a
r«8ourc 6 in these efforts. The Customs Service has
">• Cus?Lanf exPertise to conduct international investigations.u"Ued st rvice should take advantage of the resources of the
P«rticula fte.s Postal Service and the Department of Justicenuarly m domestic matters.
675
material falls on the United States Customs Service. The Cust
Service has the authority to search persons and items at th
borders629 an<3 Customs officers may detain and search any per
and property entering the United States without the necessity
a search warrant.630
The Customs Service has detected a wide variety of obsce
and child pornography materials in the mails including materials
which depict such acts as sado-masochism, urination, defecatio
and bestiality.631
In January 1985 an inter-agency task force of agents fron
the United States Postal Inspection Service, the United States
Customs Service, Department of State and the Federal Bureau of
Investigation visited several European source countries of chili)
pornography. These nations included Denmark, Sweden and th«
Netherlands. The agencies sought the assistance of the foreign
governments to prevent the distribution of child pornography.
The Commission applauds the efforts of these departments and
agencies but encourages enhanced cooperation and detection
efforts. A united effort is the only means to an effective and
lasting remedy for the overwhelming child pornography problem-
The agencies must continually increase their efforts to comb"
the flow of child pornography.
267.
629 Washington, D.C., Hearing, Vol. II, Richard Miller, t-
630
631
Id.
Id.
676
RECOMMENNDATION 55:
UNITED STATES DEPARTMENT OF JUSTICE SHOULD DIRECT THE LAW
RCEMENT COORDINATING COMMITTEES TO FORM TASK FORCES OF
DEDICATED AND EXPERIENCED INVESTIGATORS AND PROSECUTORS IN MAJOR
REGIONS TO COMBAT CHILD PORNOGRAPHY.
The Law Enforcement Coordinating Committees (LECCs), as
f lly discussed in the Recommendations to Law Enforcement
Agencies, provide the basis for effective law enforcement
efforts. In the area of child pornography violations, LECCs
should use information and assistance available from drug and
alcohol abuse programs and other social service agencies. The
expertise available through the various social service agencies
should be tapped to provide law enforcement agencies with a
completely effective enforcement effort.
RECOMMENDATION 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
MRNOGRAPHY TRAFFICKING.
The United States Department of Justice or other appropriate
•<Jeral agency should create a data base as a source of central
accessible information regarding child pornography. This
base should be integrated into the data base recommended in
677
c
the Law Enforcement Chapter of this report.g32
The data base should include photographs obtained
searches, photographs of missing or abandoned children, the nan
of defendants and their contacts. It should also include recotj.
of the declination of prosecution of any case and the reason
therefor. The data base will allow federal, state and local lav
enforcement officials to draw on information gathered nationwide
The data base should allow an agency to submit as well at
retrieve information.
RECOMMENDATION 57:
FEDERAL LAW ENFORCEMENT AGENCIES SHOULD DEVELOP AND MAINTAIN
CONTINUOUS TRAINING PROGRAMS FOR AGENTS IN TECHNIQUES OF CHILD
PORNOGRAPHY INVESTIGATIONS.
The most important factor in the effective enforcement of
child pornography and related child sexual abuse laws is well-
trained law enforcement personnel. Each law enforcement agency
should have at least one member of its staff who is specifically
trained to investigate and apprehend individuals involved in
child pornography and related cases. At least one officer should
be trained and possess the expertise necessary to conduct «
thorough child sexual exploitation investigation. This train
632 This data base also should use the resources of ^
Child Pornography and Protection Unit (CPPU) establisnea »*^^
United States Customs Service. This CPPU data base nas^ ^
designed to serve as a resource network for federal, s ,on>
local law enforcement agencies to store and receive informa
678
be conducted through the Federal Law Enforcement TrainingiBfty
Center.
Law enforcement officers who 'are assigned to a child
oqraphy or related unit face additional emotional pressures
because of the insidious nature of child pornography. Officers
be required to view significant quantities of child porno-
graphy or deal with young victims during the course of their
Investigations. Training programs should emphasize the special
psychological needs of law enforcement officers and they should
offer assistance to alleviate the emotional stress.
A second area which training programs should address is the
alienation an officer may encounter from other law enforcement
officers. 633 these officers often receive minimal assistance and
virtually no emotional support from their peers. The training
programs should be used to educate officers assigned to a child
pornography or related unit as to the types of behavior they may
• ncounter. In addition, all officers within a department or
agency should be trained with an awareness toward the diffi-
culties encountered by officers who are assigned to child
pornography or related cases.
Designated personnel should be required to participate in
continuous training programs. These continuing education
Programs may be conducted through the LECC.634 These programs
generally resulted in an increased awareness of the problem
633
New York Hearing, Vol. I, Carl Shoffler, p. 277-28.
Miami Hearing, Vol. II, Paul Der Ohannesian, p. 61-62.
679
of child pornography and its relationship to sexual abuse.535
RECOMMENDATION 58:
FEDERAL LAW ENFORCEMENT AGENCIES SHOULD HAVE PERSONNEL TRAINED
CHILD PORNOGRAPHY INVESTIGATION AND WHEN POSSIBLE THEY SHOULD
FORM SPECIALIZED UNITS FOR CHILD SEXUAL ABUSE AND CHlLn
PORNOGRAPHY INVESTIGATION.
Agencies with large enough field offices in communities with
adequate resources should include a specialized unit within the
law enforcement agency to specifically investigate and related
child pornography and related child sexual abuse cases. These
trained agents in field offices will be able to actively
investigate child pornography cases with an understanding of the
particular local or regional problems. The specialized unit
allows an officer to acquire and implement expertise in the area
and enhance overall law enforcement efforts.
While this approach should not require additional personnel
or expense, it will allow the agency to use its existing
personnel more efficiently. Trained officers will be able to
devote their time to these investigations. Other investigators
should reassign the case to an expert within the unit to maintain
efficiency and expertise.
The Commission believes that effective and efficient 1«"
enforcement is achieved through education, training an
635 Id.
680
rience. These programs would enable law enforcement agencies
..,-art the maximum expertise from the personnel within their
to extra*.>.
^apartment.
RECOMMENDATION 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.
One of the most powerful investigative tools available to
law enforcement agents is a search warrant. When used in child
pornography and related child sexual abuse cases, a search
warrant is unique in its ability to "make or break" an
Investigation.
Pedophile offenders are "collectors" and will retain
photographs, magazines, movies, video tapes and correspondence
relating to children for many years. Many of the items collected
•ay not be child pornography. Collections often include "child
•rotica" which will include "innocent" depictions of children.636
The discovery of these collections has often unlocked the door to
• wealth of information by providing a record of the life and
activities of an offender.
In a child pornography investigation executing a search
•arrant on the suspect's residence may yield photos of the
636 Miami Hearing, Vol. I, Kenneth Lanning, p. 238.
681
individual engaged in sex with children thus supporti
additional charges for child sexual abuse. Pedophii
offenders often maintain diaries recording their sexual
encounters with children.638 nnen a suspect uses a computer t
store information regarding communications with other offender
or as a personal diary the search should also include access t
computer equipment and records.639
In New York, police executed a search warrant on the
residence of a suspected child molester and found he kept a
complete folder on each of his victims including photographs and
records of the dates the victim was in his home.64" ^n
experienced proscecutor has reported that in one half of child
sexual abuse cases, proper searches recover photos of the
defendant engaged in sexual acts with children.64^
A collection of "child erotica" may help to identify the
individual as an offender, 4^ and may strengthen the prosecution
case. This is especially true when proving intent is critical.
A wrestling coach accused of fondling a juvenile who claims he
was merely demonstrating a wrestling hold or technique would
receive closer attention if a search of his residence yields
637 Miami Hearing, Vol. I, William Dworin, p. 44.
638
639
640
641
642
Id. at 33.
Miami Hearing, Vol. I, Paul Hartman, p. 106.
Miami Hearing, Vol. II, Paul Der Ohannesian, P- 52>
Id. at 77.
Id. at 232, 235.
682
1 Id erotica in the form of writings about such acts and the
leasure he derived from them.
Law enforcement officers located child pornography consumers
many states as a result of the seizure of Catherine "Black
Cathy" Wilson's mailing list.643 one person on the list was an
Episcopal priest living in Baltimore, Maryland.6 4 Baltimore
police were able to execute a search warrant on his home and
seize the individual's album of sexually explicit photos of young
boys based upon this information.645 They found "love letters"
from the victims and additional pornography.646 Police
subsequently were able to locate one of the boys who was molested
by the priest.647
The United States Customs office, in Ft. Lauderdale,
Florida, and United States Postal Inspectors were conducting a
Joint child pornography investigation in the Ft. Lauderdale area.
During the course of the investigation, a business named "Sun
Images" was identified as a producer and distributor of child
pornography in the United States. Sun Images was located in Ft.
Lauderdale, Florida. The owner and operator of Sun Images was
Identified. Further investigation revealed that Sun Images was
643
221-22.
644
645
646
647
Id- at 240; Miami Hearing, Vol. I, Robert Northrup, p.
Miami Hearing, Vol. I, Robert Northrup, p. 212-13.
Miami Hearing, Vol. II, Kenneth Elsesser, p. 147.
Miami Hearing, Vol. II, Alfred Danna, p. 272-73.
!£. at 275.
683
also known as "Teens Unlimited" and "Young Stuff."
The investigators made an undercover buy of child porno-
graphy from the owner of the business. The child pornography was
being sold in sets of six to ten photos for fifteen to thirty-
five dollars a set. The owner was also selling "sponsorships" or
custom ordered sets. These photos were available from two
hundred to four hundred dollars per set, and would be taken of
thirteen to eighten year old males, "posing" in any manner
directed by the customer.
Based on the undercover purchase and other evidence, a
search warrant was executed on the owner's residence. The
investigators discovered a large quantity of child pornography at
the residence and were able to obtain a second warrant for a
storage facility in which the defendant kept the releases and
applications from his models. He had two sets of applications
and releases, one set with the actual dates of birth and one set
showing the models to be over eighteen.
Also discovered during the search warrants was the
defendant's method for printing and distributing the photographs,
as well as his foreign source. COQ International of Denmark was
selling the defendant's magazines and slides.
In February, 1985, the Contraband Enforcement Team, of the
United States Customs Service, intercepted one magazine entitled
Dream Boy No. 6 sent to Bradenton, Florida, address. The
magazine had been sent from the Netherlands.
The Contraband Enforcement Team forwarded the magazine
he Special Agent in Charge, Tampa, Florida, for investigation.
Special Agent supervised an investigation which showed that
the addressee had two previous seizures of child pornography.
first was a ma<3az^ne entitled Lust Boys and the second was
rhild Pornography Advertisements.
Based on the previous seizures and other investigation, a
controlled delivery of the Dream Boy magazine was made. Based on
the controlled delivery, a search warrant was obtained for the
addressee's residence.
United States Customs agents and United States Postal
Inspectors surveilled the residence after the delivery of the
magazine, while waiting for the warrant to be issued and
delivered. While the surveillance was being conducted, the
addressee arrived at his residence. Shortly afterward, a
thirteen year old boy arrived at the residence on a bicycle and
went inside the house. The warrant was delivered about five
minutes later, at which time the agents went into the house.
Upon entering the house, the agents discovered the offender on
the couch with the boy. Although both the defendant and the boy
were clothed, it was obvious that the boy had an erection. It
appeared the agents had prevented further molestation from taking
Place.
Although the offender was arrested, he was granted bond with
the provision that the had no contact with anyone under eighteen
or age. He was suspended from his place of employment as a
counselor at a middle school.
684
685
TT
f
During subsequent investigation, three other children we
identified, through seized photographs of them, and that
information was turned overd to the local sheriff's department
The parents of the children refused to cooperate in the inves-
tigation because they did not want their children to testifiy i
court.
In August, 1985, the offender was sentenced to five years ln
the Middle District of Florida. Four and one half years of the
sentence were suspended.
When making a request for a search warrant investigators
should seek to expand the scope of their search beyond child
pornography. In one investigator's experience over ninety-five
percent of the child pornography cases in which he used search
warrants, both adult and child pornography were found in the
possession of the child sexual abusers or child pornographers.
Sexually explicit, "adult" material is often used to lower
the inhibitions of child victims and should be an item sought. "
The scope of the search should include not only the suspect's
home but also his or her office, car and any other known place of
habitation or storage. Pedophiles who are are involved in child
sexual abuse are rarely without some portion of their child
pornography in close proximity and often keep materials in
several different places. Warrants should be drafted to include
wide range of materials under the suspect's control in a variety
648 Miami Hearing, Vol. I, William Dworin, p. 32.
649 Miami Hearing, Vol. I, Kenneth Lanning, p. 225.
686
1
Of locations. 650
RECOMMENDATION 60:
FEDERAL LAW ENFORCEMENT AGENTS SHOULD ASK THE CHILD VICTIM IN
REPORTED CHILD SEXUAL ABUSE CASES IF PHOTOGRAPHS OR FILMS WERE
OF HIM OR HER DURING THE COURSE OF SEXUAL ABUSE.
As part of expanding a law enforcement agency's investi-
gation into child sexual abuse and child pornography all
investigators should determine if children alleging sexual abuse
were ever photographed in sexually explicit poses.
The most obvious way to find such information is to
uniformly ask the child victim if photographs were taken. This
technique should be employed for effective investigation and will
undoubtedly highlight the interwoven connections between child
sexual abuse and child pornography. An investigation of one
offense should not eliminate an examination of related
offenses. 5 Law enforcement officers should acknowledge that
child sexual abuse is the basis for the production of child
pornography.
RECOMMENDATION 61:
THE DEPARTMENT OF JUSTICE SHOULD APPOINT A NATIONAL TASK FORCE TO
650 Miami Hearing, Vol. I, Kenneth Lanning, p. 233-34.
the ch-i "In 9°* of the child sexual exploitation causes . . .Photon admit that at one time or another they were
"graphed." Miami Hearing, Vol. II, Dennis Shaw, p. 117.
687
o 1 F
CONDUCT A STUDY Of CASES THROUGHOUT THE UNITED STATES REFLECTlM
APPARENT PATTERNS OF MULTI-VICTIM, MULTI-PERPETRATOR CHILD SEXUAL
EXPLOITATION.
The Commission has heard testimony regarding alleged multi
victim, multi-perpetrator child sexual molestation rings
throughout the country. Few of the investigations of these rings
have resulted in successful prosecutions. Multitudes of children
have related experiences of being photographed by the alleged
molesters, and others have commented on the "quick removal" of
volumes of photographs prior to law enforcement searches, in the
estimated twenty-five investigations throughout the country
involving alleged ritualistic molestation of pre-school children
not one photograph has been discovered to substantiate the
children's stories.
Even in the face of clear medical evidence of sexual
molestation of many of these children, the young ages of the
children and the procedures in the criminal courts have combined
to undermine and destroy effective prosecution. Given the
striking similarities in the nature of the alleged sex crimes
committed against children in these rings and the consistent
inability of the local law enforcement and child protective
services systems to effectively investigate and prosecute, it
appears likely that future cases could result in similar
unsuccessful efforts within the justice system.
A national task force should pursue extensive study for the
purpose of establishing or discarding:
a. possible links between multi-victim, multi-perpe-
trator child sex rings and pornography;
b. possible linkages among multi-victim, multi-perpe-
trator child sex rings throughout the United
States;
c. Production and distribution of child pornography
through these orgainzed sex rings;
d. Possible links between sex rings, child porno-
graphy and organized crime.
The task force should then develop a report including recom-
mendations for more effective investigation of child sexual
exploitation cases reflecting these patterns of conspiracy. The
task force would include among others, federal agency
headquarters representatives. The task force should have the
necessary budgetary and personnel resources to allow ongoing
investigations in the field.
The task force should include interdisciplinary represen-
tatives and investigators with demonstrated skills and experience
In multi-victim, multi-perpetrator child sexual exploitation
688
. RECOMMENDATIONS FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES
RECOMMENDATION 62:
689
LOCAL LAW ENFORCEMENT AGENCIES SHOULD PARTICIPATE IN THE LAW
ENFORCEMENT COORDINATING COMMITTEES TO FORM REGIONAL TASK FORCES
OF DEDICATED AND EXPERIENCED INVESTIGATORS AND PROSECUTORS To
COMBAT CHILD PORNOGRAPHY.
In recent years, the United States Attorneys have
established Law Enforcement Coordinating Committees (LECCs)
within each of the ninety-four districts.652 The LECC i
comprised of federal, state and local law enforcement agencies*'-'-'
and is designed to improve coordination and cooperation among
agencies. The LECC has proved to be an invaluable tool in
effective law enforcement efforts. By coordinating the various
agencies' efforts, a successful attack can be launched against
any form of criminal activity from all sides. Customs can
quickly determine a suspect's past involvement with foreign child
pornography; the Postal Inspectors and local law enforcement
officers can determine whether the suspect has been corresponding
with other identified pedophile offenders and whether he is on
any known mailing lists; and the FBI can identify the suspect's
arrest history, employment history and lifestyle.655
New York has provided an example of the effective use of the
652 Chicago Hearing, Vol. II, Frederick Scullin, p. 37;
See also, Recommendations for Law Enforcement Agencies in Chapter
2 of this Part.
653 Chicago Hearing, Vol. II, Frederick Scullin, p. 37.
654 id.
655 Miami Hearing, Vol. II, Joyce Karlin, p. 177B-C.
690
ECC t°r the >-nvesti-9ation and prosecution of child pornography
„- 656 This example can also be used as a model for the LECCcases* •
bcommittee specifically designed to address the problem of
hild pornography. In addition to general enforcement efforts
LECC may serve to make suggestions for regional or statewide
programs.
RECOMMENDATION 63:
STATE AND LOCAL LAW ENFORCEMENT AGENCIES SHOULD DEVELOP AND
HAINTAIN CONTINOUS TRAINING PROGRAMS FOR OFFICERS IN IDENTIFI-
CATION, APPREHENSION, AND UNDERCOVER TECHNIQUES OF CHILD
PORNOGRAPHY INVESTIGATIONS.
State and local agencies may participate in LECC sponsored
training programs and should also participate in programs
conducted through the Federal Law Enforcement Training Center.
These agencies should also develop regional or local training
programs. These localized programs should address general law
enforcement techniques needed in child pornography cases as well
as concerns peculiar to the region. These programs will enhance
law enforcement efforts through a more coordinated base of
communication among agencies within a geographic area.657
RECOMMENDATION 64:
656 Chicago Hearing, Vol. II, Frederick Scullin, p. 38-41.
See also. The discussion, Recommendations for Federal
Enforcement Agencies, in this Chapter.
691
STATE AND LOCAL LAW ENFORCEMENT AGENCIES SHOULD PARTICIPATE IN
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.
See , The discussion in Recommendations for Federal L
Enforcement Agencies in this Chapter.
RECOMMENDATION 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.
See, The discussion in Recommendation for Federal Law Enforcement
Agencies in this Chapter.
RECOMMENDATION 66:
STATE AND LOCAL LAW ENFORCEMENT AGENCIES SHOULD USE SEARCH
WARRANTS IN CHILD EXPLOITATION CASES EXPEDITIOUSLY AS A MEANS OF
GATHERING EVIDENCE AND FURTHERING THE OVERALL INVESTIGATION
EFFORTS IN THE CHILD PORNOGRAPHY AREA.
See, The discussion in Recommendation for Federal Law Enforcement
Agencies in this Chapter.
RECOMMENDATION 67:
STATE AND LOCAL LAW ENFORCEMENT OFFICERS SHOULD ASK THE
692
M IN REPORTED CHILD SEXUAL ABUSE CASES IF PHOTOGRAPHS OR
,MS WERE MADE OF HIM OR HER DURING THE COURSE OF SEXUAL ABUSE.
e The discussion in Recommendation for Federal Law Enforcement
Agencies in this Chapter.
E RECOMMENDATIONS FOR PROSECUTORS
RECOMMENDATION 68s
THE UNITED STATES DEPARTMENT OF JUSTICE SHOULD DIRECT UNITED
STATES ATTORNEYS TO PARTICIPATE IN LAW ENFORCEMENT COOORDINATING
COMMITTEE TASK FORCES TO COMBAT CHILD PORNOGRAPHY.
Set, The discussion in Recommendation for Federal Law Enforcement
Agencies in this Chapter.
RECOMMENDATION 69:
FEDERAL, STATE AND LOCAL PROSECUTORS SHOULD PARTICIPATE IN A TASK
TORCE OF MULTI-DISCIPLINARY PRACTITIONERS AND DEVELOP A PROTOCOL
FOR COURTROOM PROCEDURES FOR CHILD WITNESSES THAT WOULD MEET
CONSTITUTIONAL STANDARDS.
Prosecutors must be aware of the special considerations
n»olving a child victim-witness. In many states children of a
ages are presumed incompetent to testify, when the child
only witness to a crime, such as child pornography and
693
o
related crimes, prosecutors face special problems.
Prosecutors should work with other professionals inclu<Hn
law enforcement agents, medical and mental health professional
and social service personnel, involved in child pornography cases
to develop a courtroom protocol which maintains the integrity a
emotional well-being of the child as well as preserving the
constitutional rights of the defendant.
The task force should specifically address a number o£
issues. First, the number of repetitive questions asked of a
child witness during the trial should be limited. A child may
become easily frightened when repeatedly asked questions during
the trial. This lengthy process increases the trauma and sense
of guilt in victims associated with these crimes. The task force
should develop methods of support for the child through this
period while insuring the defendant's right to confrontation.
The prosecutor specifically may reduce this trauma by
objecting to repetitive questioning on the grounds of
harrassment.f'58 The prosecutor should emphasize the special
emotional frailty of the child in making the objection.
Prosecutors should develop guidelines to qualify a child as
a competent witness. While very young children may be incapable
658 Fed. R. Ev. 611 provides:
(a) Control By Court. The court s.^a.1
n
1 o
reasonable control over the mode and order if inte
witnesses and presenting evidence so as to ( 11 * er-
interrogation and presentation effective for_ the ot
tainment of the truth, (2) avoid needless conflunpt ^^
time, and (3) protect witnesses from harassment o
embarrassment.
694
« communication, those who are articulate should be presumed
tent until the testimony demonstrates otherwise. In
tioning a child witness prosecutors should be permitted to
age appropriate language and allow the child to respond in
terms with which they feel comfortable. Children should be
rmitted to use anatomically correct dolls, if necessary, to
demonstrate the manner in which they were posed or molested. The
determination of credibility should be left to the jury as it is
with any other witness.
Prosecutors should attempt to avoid delays in preliminary
hearings and trials. Repeated delays add to the confusion and
trauma of a child witness. Prosecutors may develop a priority
calender for child pornography and related cases. These guide-
lines should be used to preserve the credibility of the child
witness as well as eliminate the extent of the trauma caused by
extensive delays in judicial procedures.
Prosecutors may also consider the use of closed circuit
television to present the child's testimony. This would
eliminate many of the distractions a child witness faces. A
child is normally apprehensive in a new environment and will be
r«luctant to testify forthrightly. The closed circuit television
could enable a child to testify and be subjected to cross-
•xanination without being intimidated by the courtroom
proceedings or the presence of the defendant.
The task force should also consider developing guidelines to
coordinate criminal, civil and family law proceedings. In
695
addition, the protocol should consider the use of grand juries •
place of preliminary hearings. These guidelines would maintai
the integrity of the judicial proceeding while eliminating a
unnecessary trauma for the victims. All task force
recommendations should clearly safeguard the constitutional
protections afforded the accused.
RECOMMENDATION 70:
PROSECUTORS SHOULD ASSIST STATE, LOCAL AND FEDERAL LAI)
ENFORCEMENT AGENCIES TO USE SEARCH WARRANTS IN POTENTIAL CHILD
PORNOGRAPHY CASES AND RELATED CHILD SEXUAL ABUSE CASES.
See , The discussion in Recommendations for Federal Law
Enforcement Agencies in this Chapter.
RECOMMENDATION 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.
See, The discussion in Recommendations for Federal L»*
Enforcement Agencies in this Chapter.
RECOMMENDATION 72:
STATE AND LOCAL PROSECUTORS SHOULD USE THE VERTICAL PROSECUTIO*
MODEL FOR CHILD PORNOGRAPHY AND RELATED CASES.
The vertical prosecution system involves a single prosecu
696
ndling a particular criminal case from its inception to its
elusion. In cases involving sexually abused or exploited
hildren the young victims are often very frightened at the
soect of going into court. Sometimes the procedures that the
victim must go through such as meeting new people and
ontinuously repeating his or her story add to the trauma. When
the same prosecutor handles the case it enables him or her to
W0rk with the victim on a continuing basis, gain the child's
confidence, and help prepare the child for trial.
The vertical prosecution model also ensures that the case is
not passed on to another prosecutor who may be unfamiliar with
the facts or law involved in the prosecution. In California
Governor George Deukmejian has established a grant program
through the Office of Criminal Justice Planning to implement the
vertical prosecution in model programs involving child sexual
abuse and child pornography case.
P. RECOMMENDATIONS FOR THE JUDICIARY AND CORRECTIONAL FACILITIES
RECOMMENDATION 73:
JUDGES AND PROBATION OFFICERS SHOULD RECEIVE SPECIFIC EDUCATION
SO THEY MAY INVESTIGATE, EVALUATE, SENTENCE AND SUPERVISE PERSONS
CONVICTED IN CHILD PORNOGRAPHY AND RELATED CHILD SEXUAL ABUSE
CASES APPROPRIATELY.
Cognizing that pedophile offenders and child pornographers
697
pose unique problems in the judicial and penal systems judges a
probation officers must be adequately educated. A judge Ot
probation officer can have a significant and positive impact
the offender only if he or she is fully knowledgeable about the
situation.
Offenders in child porngraphy cases rarely go to trial.559
He or she generally enters a plea and proceeds to sentencing.660
The judge does not have the benefit of the evidence obtained
through trial before considering an appropriate sentence.
The judge must bear the burden of thoroughly assessing the
defendant and the offense. The judge must actually view the
child pornography to make this evaluation. The judge should not
only be made aware of the nature of the pornography and related
sexual abuse, but he or she must be fully aware of the quantity
and type of material a defendant may possess. Many judges hold
the mistaken belief that child pornography offenders are less
insidious because they are professional people within the
community.661 A judge should examine the child pornography and
be aware of the abuses attributable to its production in order to
fully evaluate the offender before sentencing.
The judges and probation officers should be fully informed
about the latest social science and medical information regarding
pedophile offenders and child sexual abusers and the
659 Miami Hearing, Vol. II, Joyce Karlin, p. 153.
660 jd.
661 Miami Hearing, Vol. I, Kenneth Lanning, p. 251.
698
eptibility to treatment or behavior modification. Therapists
ther professionals who have studied pedophile offenders
rrently express a great deal of doubt as to the viability of
rehabilitation of pedophiles.662 Judges and probation officers
hould focus their attention toward the need to protect society
and potential victims in addition to theraputic efforts for
pedophile offenders.663
662 The Commission has heard testimony from several lawenforcement officers, prosecutors and therapists discussing the
recidivist pattern of pedophile offenders. See, e.g. , Miami
Hearing, Vol. I, William Dworin, p. 22.
663 The following is excerpts from a telephone conver-
sation between a pedophile offender and a child victim. Law
enforcement agents have stated that discovering and recording an
actual conversation between an alleged pedophile and a victim is
rarely discovered.
Subject. Oh, okay. Tell us when you're going to be nine.
Victim. May 12.
S. That's pretty soon Angel.
S. It's remarkable and I'm wondering if she's in her bluejeans?
V. No.
S. You're not in your blue jeans?
v- No, I'm in something like blue jeans.
Sl Oh, i see, okay (Pause) blue jeans are falling out of
fashion aren't they baby.
v- Yes.
S.
V.
They don't wear them too much anymore.
Nope I don't even have any that fit. All I have is pants.
699
158-
315 *>!• 1, O - 86 - 23
S. In other words you're going out of your blue jeans baby?
V. Uh, hum, I only have two pairs that still fit me.
S. That's amazing she is getting to be so curvy that she
doesn't fit her blue jeans anymore. (Pause). I can tell
she's grinning.
V. Laughs.
S. You're so sweet. You're just a precious little Angel. Ar
you still standing on your head baby?
V. No.
S. i You know what I'm interested in, right? I'm interested in
playing, right?
V. Right.
S. Is it alright if we have all three?
V. Uh, hum.
S. Okay.
V. Uh hum.
S. Honestly.
V. Yeah.
S. That's great we'll all three play then okay?
V. Okay.
S. In other words we'll tickle ours and you'll tickle yours
right.
V. Right.
S. Okay, that's my girl.
V. You know what would be good?
S. What.
V. If you gave me your phone number because then sometimes
700
could call you if my Mom's not off on Tuesday or Thursday
sometimes she's at work on Tuesday or Thursday.
Oh, I see, yes, I understand however sweetheart for a little
while would you do me a favor and just bear with me, be
patient with me, okay, for a little while?
Okay.
It'll be a good idea as a matter of fact sometimes if she's
not off on Tuesday and Thursdays I could call and say let me
speak to Sam and all you have to do is say you have the
wrong number right.
Right.
And that would protect us. Can you take your panties off.
What?
Can you take your panties off while we're playing.
No.
Please, pretty please.
No.
She'll tell you it's alright.
Okay, I'm back.
Ask her if she thinks its alright.
You ask her.
Oh, okay, alright ah, sweetheart we were discussing the
possibility of playing while you were gone from the phone
and I wanted you to know all three of us to tickle ourselves
while we were talking okay, alright, do you understand?
v- Uh, huh.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
s.
V.
Let me put it this way, it would make me very happy if you
took your panties off, okay.
guess what.
701
o
S. What.
V. I can't.
S. You're so sweet, thank you so much Angel. Why?
V. Because.
S. Because of what.
V. Well, I'm downstairs and my brother and sister will be
coming home. My sister always runs into my room.
S. Hold it now, you're downstairs.
V. Urn,hmm.
S. And won't they see you when they first come in?
V. Yeah.
S. So what you need to do is hang up this phone and go
upstairs.
V. Okay.
S. Okay, do me a favor go upstairs first and then come back
down and hang this phone up.
V. Okay.
S. Or if you want me to hang this phone up and I'll call you
back and you can answer upstairs.
V. Okay.
S. Alright, okay.
V. Okay.
S. Why don't we do that you hang up this phone up and I'll
you back and you can answer upstairs.
V. Okay.
S. Alright okay.
V. Okay.
702
Okay, you're going to hang up now . . .
Vi (Hangs up).
* * *
,Phone rings)
V- Hello.
s. Now it's safe, isn't it?
V. Right, except for one thing.
S. Except for what.
V. My blinds are open.
S. Your what.
V. Blinds.
S. Oh, we'll hold on while you close them.
V. Okay.
S. Isn't she precious Angel.
S. She is just adorable and think about how thoughtful she is
how intelligent she is. I mean didn't you think that was
remarkable that she would say my blinds are open.
S. You betcha she's a very intelligent young lady. It's just
delights me I'm so proud of her.
v- I'm back.
And I'll betcha that you've taken your panties off now.
Hmm, okay.
s- Did she take them off.
Urn, Humm.
703
T
S. You're completely unclothed from the waist down you still
have your blouse on though.
V. Right.
S. Okay, so when you hear your brother and sister come home
can put your clothes back on real quick, right. u
V. Right.
S. That's good, isn't fun to do something sweetheart and know
that you can get away with it that it's perfectly safe.
V. Yes.
S. It is fun isn't?
V. Urn, hmm.
S. Have you ever, have you ever wanted to play with someone
like this in person?
V. Dm, hmm.
S. Tell us about it.
V. Well urn you gave me the idea so I tried it.
S. With who?
V. I just called someone I don't know who they were.
S. Oh, you did?
V. But I looked it up in the phone book, I didn't look for any
certain name. I just looked for the number.
S. Oh, I see in other words you got numbers out of the phone
book.
V. Right.
S. Well, it's not I'll teach you how to make up numbers one of
these days Sweetheart, it's really not necessary to go to
the phone book. And, however, I want to find out you talkeo
to someone?
V. Urn, hmm.
704
S.
V.
S.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
s.
V.
s.
V.
And how old a person was it? Could you tell?
No.
Was it a man or a woman?
Man.
Did you tell him that you were tickling yours?
What?
Did you tell him that you were tickling yours?
No.
Did you get him to tickle his?
No.
Well, what did you all do Sweetheart?
Talked.
Talked about what.
Something.
Tell me about what, come on. About sex?
No.
What did you all talk about, tell me now.
Well, we just talked.
I see.
* * *
I see, but ah, you didn't talk about sex.
No.
And he didn't talk about wanting to be with you or to see
you or meet you or something.
Well, he would like to come over to our house.
705
r
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
V.
s.
He did, he said that.
Um t hmm •
He did.
But I said he couldn't.
. . . Angel, you didn't give him your address. I hope.
No.
Okay, golly that worried that kind of thing worries me.
Well, sweetheart its alright for you to talk to anyone on
the phone anyone but don't give them your phone number and
don't tell them your address. And certainly don't tell them
your last name, okay.
Okay.
Because that way you'll be perfectly safe as long as you
don't give them your phone number as long as you don't give
them your address and as long as you don't give them your
last name. Okay?
Okay.
That way you'll be perfectly safe. That way you can talk to
anyone on the phone you want to as long as you don't tell
them your phone number, your name, your address, okay.
Okay.
Those things ah, are if you gave them anyone of those things
it could be dangerous to you sweetheart. It could be I m
not saying it would be normally, it probably wouldn't be but
it could be see.
Um, hmm.
I don't want to make you unnecessarily afraid, I want you to
makeup numbers and talk to people that's fine but protect
yourself in the process and as long as you don't give the
your phone number your address or your name you're safe.
You can tell them your first name that's alright. (Pause).
706
Until an effective treatment method is widely accepted and
lamented judges and probation officers must evaluate and
ervise pedophile offenders carefully. Pedophile offenders who
incarcerated after an offense simply may use their time of
onfinement to plan their life and future offenses upon release.
one pedophile offender wrote from his prison cell.
I plan to get into photography in a bigger way when I
get out. While I am in here I am studying photography
and plan to set up a part-time business. I plan to be
very discreet too. I was getting a little careless and
look what it got me. This is one area where discretion
V.
S.
V.
S.
V.
S.
V.
s.
V.
s.
V.
s.
Anyway, since you've talked to me, have you tickled yourself
when you went to sleep?
Um, hmm, yeah.
Good. That's alot of fun isn't it. Sweetheart?
Um f hmm.
It is. Has it gotten to where it feels real good yet.
No.
Well, it will you just keep tickling it and it will, and
when you go to sleep sometimes when you're tickling it does
it get real juicy?
Does it get what.
Does it get real wet, real juicy?
No.
Well, it will. And do you know what it means, when it gets
teal wet and real juicy.
No.
*t means that you're learning how to do it better.
707
o
and caution are absolutely essential.664
There are several problems which have prevented this ptogra
from being implemented. First, there is a lack of effect!
treatment plans. An effective treatment plan should be developed
which results in a long term behavior modification with
significant reduction in recidivism rates.
A second problem associated with an incarceration and
treatment program is a concern of its coercive nature. if a
program is structured to make early release contingent upon
cooperative participation in a treatment program, a correctional
facility may be subject to allegations of coercion and violations
of the offender's constitutional rights.
In the absence of an effective treatment program, a judge
and a probation officer should be aware of the perpetual threat a
pedophile offender poses to society. The only viable alternative
in the absence of an effective treatment program is a substantial
period of incarceration. The incarceration should effectively
remove the offender from society and protect the community for »
significant period of time.
Incarceration serves several different purposes. It *»?
serve to deter potential offenders, to protect society from this
individual and to provide retribution against the offender. E»c
of these factors need not be the basis for sentencing in eve
case.
664 Miami Hearing, Vol. I, William Dworin, p. 15.
708
The judges roust examine each of these goals and determine
h is the appropriate basis for sentencing. As previously
discussed there are very few medical facilities that attempt to
treat pedophile offenders. 65 In addition, incarceration often
, -= nnt serve as a deterrent either to the specific offender orQQGS iiw*-
to other potential offenders.
Xhe remaining goals of incarceration are the protection of
ciety and retribution against the offender. Child sexual abuse
or child pornography is one of the most insidious offenses known
and the goal of retribution generally serves to reassure society
of its values. Punishment also serves as an emotional support
for the victim. This is particularly important in child porno-
graphy cases where the victim is left to feel guilty and ashamed.
The primary goal in sentencing should be to remove the
pedophile offender so he or she does not present a threat to
society. He or she must be removed for a substantial period of
time. The Commission fully acknowledges these needs and
recommends that a mandatory minimum sentence of two years be
Imposed on first time offenders. The sentences for recidivists
•hould be substantially increased.
The welfare of the victim should remain the primary focus of
the judge during the sentencing process. The sentence must also
b« sufficient to protect potential victims. The pedophile
fender may continue to communicate with other pedophile
665
In ^uewac., „ facility is the Massachusetts Treatment Center
rd Prentke' *; See' Washington, D.C.., Hearing, Vol. II,
709
o rr
offenders. One such communication was sent to an underco
police officer.
"Now I was arrested and all my photographs, books,
magazines, slides, flims, were confiscated. Since July
19, 1 have been here in a state hospital that treats
men with sex offenses. I was first sent here for
observation and committed here on November 3 for an
indefinite period. That is why I was so happy to hear
from you, as I no longer have the contacts with young
girls I used to. I still have the same interests, but
I am temporarily at a standstill. I was into
photography guite a bit and managed to take some shots
of Lisa and several of my students.666
The correctional facility must be kept apprised of these types of
communiques and they should be considered during parole hearings
or evaluations for release.
RECOMMENDATION 75:
JUDGES SHOULD USE, WHEN APPROPRIATE, A SENTENCE OF LIFETIME
PROBATION FOR CONVICTED CHILD PORNOGRAPHERS.
Pedophile offenders present a continuing threat to society
since there presently is no universally accepted course o£
treatment for a pedophile offender. In the absence of effective
treatment a convicted pedophile offender must be continually
monitored subsequent to his or her release. The most effective
method of monitoring a pedophile offender is through the
imposition of lifetime probation as a part of the initi*1
666 Miami Hearing, Vol. I, William Dworin, p. 14-15.
710'
sentence.
Lifetime probation gives probation personnel the ability to
tinually monitor the pedophile offender while he or she is
bie to attempt to rejoin society as a productive member. The
bation should be conditioned upon special factors including
inhibition of unsupervised contact with children as contact well
s any contacts with other pedophile offenders.
A lifetime supervised probation term will require the
dedicated efforts of federal and state probation officers. The
officers must devote substantial periods of time to these indi-
viduals to ensure compliance with the terms of the probation.
In some situations the judge may impose a term of
unsupervised lifetime probation. This would eliminate the
enormous burden on the probation officers while maintaining legal
control over the offender. The judge should carefully evaluate
the offender and select the terms of probation which would be
most effective and least burdensome on the penal and judicial
systems.
RECOMMENDATION 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.
Probation officers, psychiatrists and psychologists have
"ttensive contact with defendants and their counsel in the course
711
r
of preparing presentence reports. Defendants and their counsel
often provide court personnel with most of the information used
in compiling these reports.
Information supplied by the defendant about himself Of
herself and the offense may be inaccurate or incomplete and it
usually overlooks the victim's perspective. Sources of
information other than the defendant must be tapped to give the
sentencing judge the most accurate information. Such information
should include but need not be limited to: investigative
reports, victims' statements and interviews, interviews of
witnesses and persons familiar with the offender's habits, a
report of any guardian ad 1i tern representing the victim;
examination of physical evidence such as pornography created or
possessed by the offender; a review of diaries, audiotapes, or
videotapes created by the offender? and the offender's criminal,
correctional, mental health, educational, military, and work
records.667
Child sexual abusers often move to another city or state
after public exposure or when they come under suspicion. The
667 On January 20, 1984 a federal grand jury in the
northern district of New York handed down a twelve-count
indictment against a child pornographer. He eventually ple°
guilty to five counts of mailing child pornography and on May «•
1984, was sentenced to ten years in prison on each of the fiv*
counts, to run concurrently, and ordered to undergo three montn
of psychiatric examination at a federal facility, due to ni»
suicidal tendencies. The judge in this case later reduced tn
sentence to two years in prison followed by five years probati°
as a result of the psychiatric findings that were conducted i
the United States Bureau of Prisons. Washington, D.C., Hearing-
Vol. I, Daniel Mihalko, p. 156-57.
712
sentencing judge then should obtain records from jurisdictions in
which an offender has previously resided. Victims, prosecutors
and investigators should provide information at their disposal to
those conducting presentence evaluations.
RECOMMENDATION 77:
STATE AND FEDERAL CORRECTIONAL FACILITIES SHOULD RECOGNIZE THE
UNIQUE PROBLEMS OF CHILD PORNOGRAPHERS AND RELATED OFFENDERS AND
DESIGNATE APPROPRIATE PROGRAMS REGARDING THEIR INCARCERATION.
In the Southern District of California, a defendant was
convicted of transporting material involving the sexual
exploitation of children and importing obscene merchandise.
The trial court sentenced the offender to the maximum punishment
and requested a study by the Bureau of Prisons regarding what
* „
treatment he might receive.669 Tne study was conducted by a
Bureau of Prisons psychologist who had never previously treated a
pedophile offender.670 The psychologist found the defendant
amenable to treatment, yet could not recommend a federal
Institution that was capable of providing the treatment.671 A
community treatment proposal was recommended, which in the
prosecutor's view, failed to take into account the danger the
668 Chicago Hearing, Vol. I, Joan Webber, p. 192.
669
670
671
!<!• at 193.
i£L- at 195.
713
defendant posed to the community if released.672 x^e p
Bureau of Prisons has acted to prevent a recurrence of thi
problem. To avoid any misinterpretation by the courts in th
future, the Bureau of Prisons has instructed their mental health
staff members to go beyond the specific mental health issues ana
to consider making recommendations for confinement based on
factors other than treatment goals in cases where such a sanctio
is indicated.
Pedophile offenders and child pornographers present a unique
and difficult problem in correction facilities. The nature of
the offenses for which they have been convicted make pedophile
offenders and child pornographers the lowest class within the
prison social system. They may be subjected to verbal and
physical abuse by other inmates but this factor should not cause
judges to avoid incarceration when necessary. «
To provide humane incarceration pedophile offenders and
child pornographers should receive specialized attention from
correctional officials. Correctional departments may need to
provide areas within a designated facility for convicted child
sexual offenders to eliminate the threats of harm from other
inmates. The facility should also attempt to develop specific
therapy programs as they may become known for pedophiles in a"
attempt to prepare them for their reemergence into society.
The programs will be an attempt to recognize the sped*
problems a pedophile offender or child pornographer encounter'
196.
714
• ng his or ner period of incarceration and should focus on
safety and prevention problems.
RECOMMENDATION 78:
FEDERAL, STATE AND LOCAL JUDGES SHOULD PARTICIPATE IN A TASK
FORCE OF MULTI-DISCIPLINARY PRACTIONERS AND DEVELOP A PROTOCOL
FOR COURTROOM PROCEDURES FOR CHILD WITNESSES THAT WOULD MEET
CONSTITUTIONAL STANDARDS.
see, The discussion in Recommendations for Prosecutors in this
Chapter.
G. RECOMMENDATIONS FOR PUBLIC AND PRIVATE SOCIAL SERVICE
AGENCIES
RECOMMENDATION 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.
Public and private social service agencies should lend their
expertise to help develop appropriate courtroom procedures. Many
°f these guidelines should focus on the development of therapy
Programs for child victims.
In California, a group of preschool children were allegedly
•°lested and photographed by teachers at the Children's Path
715
preschool.673 physicians found conclusive medical evidence that
fifteen of the children were sexually abused.674 A two year olrt
reported to her parents instances of controlled substance abuse
sodomy, and oral copulation. She also stated that photographs
were taken.675 Since the time the child told her parents of this
situation, she has been receiving psychotherapy on a weekly
basis. Her parents have also sought therapy.676 None of the
offenders were brought to trial because their victims were too
young to be competent witnesses in court.677
Social services agencies should develop guidelines to assist
child witnesses in the courtroom.678 xhe programs which result
may take the form of an advocate to assist the child through the
judicial process. This person would be assigned to the child and
would be concerned only with the welfare of the child rather than
a particular judicial outcome.
RECOMMENDATION 80:
SOCIAL MENTAL HEALTH, AND MEDICAL SERVICES SHOULD BE PROVIDED FOR
CHILD PORNOGRAPHY VICTIMS.
673 Miami Hearing, Vol. I, Laura Brennan, p. 93.
674 id. at 95.
675 id_. at 93-94.
676 id. at 94.
677 id. at 95.
678 For a more complete discussion see, Recommendations
for Prosecutors in this Chapter.
716
In many cases, the official intervention into child
oqraphy cases involves only legal and prosecutorial action
inst the perpetrator. Often, the identities of children
earing in pornographic photographs seized from the homes of
edophile offenders or child pornographers are never established.
It the child pornographer is not a member of the family, the case
ill not be referred to a child welfare agency for protective
social services. Child victims of pornography are frequently
used as witnesses for the prosecution and subsequently abandoned
by the social, medical and mental health services systems.
Child victims of pornography and their families should
receive a full range of supportive services including competent
medical evaluations and treatment, access to family therapy and
peer support groups, legal counsel and guardians ad 1Itern.
Because child pornography and child sexual abuse are so
intrinsically related, certain treatment models for victims of
child sexual abuse can be applied to victims of child porno-
graphy. Children who are involved in treatment for child sexual
abuse often reveal that pornography was used by the perpetrator
as a threat to prevent the child from disclosing the sexual
relationship.
Model child sexual abuse crisis centers have been developed
to integrate social, medical and mental health services for
suspected child sexual abuse victims. Child sexual abuse centers
can provide medical assessment, psychological, psychosocial
uation and crisis intervention services to suspected victims
717
o i
of child sexual abuse and their families.679 Evaluation t
may consist of a physician, nurse practitioner, psychologist,
social worker, and children's services worker. the
multidisciplinary team approach can be used in the initial
evaluation activities of the center and in the development of
follow-up plans, including referrals for law enforcement and
children's protective services, court action, and psychological
treatment.
In addition, many runaway and homeless children are enticed
into pornography or prostitution, or resort to theft in order to
survive.680 Early intervention into their lives can provide a
viable deterrent against other crimes. Without intervention,
679 Model Crisis Center Programs include the San Diego
Center for Child Protection and the Lost Angeles Child Sexual
Abuse Family Crisis Center.
Los Angeles County also completed a study on runaway and homeless
youths. Under the auspices of the Los Angeles County Board of
Supervisors with participation of the Department of Children's
Services, the Dependency Courts, law enforcement, and in
conjunction with the private sector, a project has been proposed
consisting of the following components designed to assist these
children to develop meaningful lives:
Identification of child
Establish network of referral resources
Intake of child into system, including emergency
shelter placement
Expedited court handling
Development of more suitable placement alternatives^
treatment and handling resources, including a ne
shelter.
680 See, The discussion of Victimization.
718
these children may go on to more serious crimes when they are no
longer desireable to pimps and pornographers.681
681 "Runaway and homeless youth come from highly
disorganized families, and, in many cases, their behavior may be
?f,e result of past physical or sexual abuse. Fifty percent of
tne young people have not voluntarily left home but have been
shed out or encouraged to leave by parents. Fewer than half of
these youngsters have a realistic prospect of ever returning to
their families. Out on the street, these children are exploited
KV pimps, drug pushers and peddlers of pornography. Their health
and emotional problems are severe. Runaways and homeless youth
are unable to care for themselves adequately. Published research
indicates that they exhibit stress and other psychological
difficulties in excess of those experienced by non-runaways.
Although child abuse is generally perceived as a problem of early
childhood, this study has uncovered another largely unrecognized
abused population - adolescents. They need the community's care
and concern just as much as their younger counterparts.
The community survey of experts reveals the lack of appropriate
community resources. Agency staff themselves estimate that they
are not coping with the situation adequately. The resource
deficit is critically hindering a reasonable level of service
provision. What scarce resources are available are not being
utilized effectively because there is little rational planning,
inadequate communication among agencies, and minimal coordination
of effort. Each agency and service goes its own way, doing its
best, but without reference to others serving the same
population. The public and private sectors appear to operate as
two separate subsystems, each in its own encapsulated orbit, withonly sporadic interaction.
Our studies demonstrate that the runaway and homeless population
Is made up of different subpopulations with different
characteristics, needs and service requirements. For example,
there are multiple reasons for self-initiated breaking away from
home, and also a variety, of forces within the family that push
the young person out involuntarily and prematurely. Planning for
runaway and homeless youth requires differential diagnosis and
specifically targeted patterns of service delivery. The analysis
t existing research on program evaluation suggests that there
re panaceas, no universally recognized and accepted program
and h? t0 solve the problem, although there are useful lessons
othe ideas to be gleaned from studying the experiences of
loe»i °onuBunities across the country. Program development on ther«sea h needs to be carefully coordinated, and adequately
719
( > (W
RECOMMENDATION 81s
LOCAL AGENCIES SHOULD ALLOCATE VICTIMS OF CRIMES FUNDS TO PROVIDE
MONIES FOR PSYCHIATRIC EVALUATION AND TREATMENT AND MEDIAL
TREATMENT OF VICTIMS AND THEIR FAMILIES.682
The family plays a central, but ambiguous role, according to our
studies. Extant research indicates that family intervention is a
highly effective strategy for many young people, a-nd indeed might
be the strategy of first choice in most situations. When
reconciliation is possible, it should be given priority.
However, research also shows that many families are so
destructive, abusive and rejecting that children cannot wisely be
returned to them. Almost fifty percent of the runaways need
other options, including alternative residential care (such as
group homes and foster care) for some, transitional services for
those ready for emancipation, and basic survival services to
nomadic youngsters committed to life in the streets.
This study has uncovered the intensive nature of this problem.
We have not been able to ascertainthe extensive nature of the
problem, i.e., its numerical dimens ions .The panel of
approximation of the number of runaway and homeless youth in Los
Angeles County. Knowing the dimension of the problem is
essential to designing a solution. When society acknowledges a
problem and determines to acquire accurate statistics, the
numbers become available. This is the time to learn how many
troubled youth must be provided for, and to undertake pilot and
demonstration projects designed to develop effective programmatic
responses." J. Rothman & T. David, Status Offenders in Los
Angeles County, Focus on Runaway and Homeless Youth; A Study and
Policy Recommendations,3-4(unpublished study).
682 Senator Arlen Specter has introduced the Pornography
Victims Protection Act. This act would allow an injured child
the opportunity to recover damages from producers and
distributors. This legislation would expand judicial remedies
available to a victimized child and his or her family-
Counselors and therapists must be qualified to assist the child
and the family. This legislation would permit victims of child
pornography and adults who are coerced, intimidated, or
fraudulently induced into posing or performing in pornography to
institute federal civil actions against the producers and
distributors. A victim could recover treble damages and the
costs of the action, as well as seek an injunction to preven
further dissemination of the pornography.
The legislation provides:
720
it enacted by the Senate and House of Representatives of theBe. d gtated of America in Congress assembled. That this ActU"v be cited as the "Pornography Victims Protection Act of 1985".
Sec. 2 Section 2251 of title 18, United States Code, is
amended -
(1) in subsection (a), by striking out "subsection (c)"
and inserting in lieu thereof "subsection (d)" and by
inserting before the period at the end thereof the
following: "or if such person knows or has reason to know
that the minor was transported in interstate or foreign
commerce for the purpose of producing any such visualdepiction of such conduct":
(2) in subsection (b), by striking out "subsection (c)"
and inserting in lieu thereof "subsection (d)" and by
inserting before the period at the end thereof thefollowing: "or if such person knows or has reason to know
that the minor was transported in interstate or foreign
commerce for the purpose of producing any such visual
depiction of such conduct":
(3) by inserting immediately after subsection (b) thefollowing:
" (c ) (1) Any person who coerces, intimidates, or
fraudulently induces an individual, 18 years or older to engage
In any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct shall be punished as provided
under subsection (d), if such person knows or has reason to know
that such visual depiction will be transported in interstate or
foreign commerce or.mailed, if such visual depiction has actually
been transported in interstate or foreign commerce or mailed, or
if such person knows or has reason to know that the individual 18
years or older was transported in interstate or foreign commerce
for the purpose of producing any such visual depiction of suchconduct.
"(2) Proof of one or more of the following facts or
conditions shall not, without more, negate a finding of coercionunder this subsections
"(A) that the person is or has been a prostitute;
(B) that the person is connected by blood or marriage
to anyone involved in or related to the making of thepornography;
721
(W
"(C) that the person has previously had, or been
thought to have had, sexual relations with anyone, including
anyone involved in or related to the making of the
pornography;
"(D) that the person has previously posed for sexually
explicit pictures for or with anyone, including anyone
involved in or related to the making of the pornography at
issue;
"(E) that anyone else, including a spouse or other
relative, has given permission on the person's behalf;
"(F) that the person actually consented to a use of the
performance that is changed into pornography;
"(G) that the person knew that the purpose of the acts
or events in question was to make pornography;
"(H) that the person signed a contract to produce
pornography; or
"(I) that the person was paid or otherwise
compensated";
(4) in subsection (c), by striking out "(c)" and
inserting in lieu thereof "(d)"; and
(5) by amending the heading to read as follows:
S2251. Sexual exploitation".
Sec. 3 (a) Section 2252 (a) (1) of title 18, United States
Code, is amended by adding at the end thereof the following:
"(C) the producing of such visual depiction involved
the use of an adult who was coerced, intimidated, or
fraudulently induced to engage in sexually explicit conduct
and the person knows or has reason to know that the adult
was coerced, intimidated, or fraudulently induced; and
"(D) such visual depiction depicts such conduct; or",
(b) Section 2252 (a) (2) is amended by
(1) striking out "and" and the semicolon in clause (A) a"d
inserting in lieu thereof "or the production of visual depiction
involved the use of an adult who was coerced, intimidated, °r
722
fraudulently induced to engage in sexually explicit conduct and
he person knows or has reason to know that the adult was
coerced, intimidated, or fraudulently induced; and
(c) the heading for section 2252 is amended to read as
follows:
S2252. "CERTAIN ACTIVITIES RELATING TO MATERIAL INVOLVING SEXUAL
EXPLOITATION."
Sec. 4. (a) Chapter 110 of part 1 of Title 18. United States
Code, is amended by redesignating section 2252 as section 2261.
(b) Chapter 110 of part J of title 18, United States Code,
is amended by inserting after section 2254 the following:
S2255. CIVIL REMEDIES.
"(a) The district courts of the United States shall have
jurisdiction to prevent and restrain violations of section 2251
or 2252 by issuing appropriate orders, including
"(1) ordering any person to divest himself of any
interest, direct or indirect, in any legal or business
entity;
"(2) imposing reasonable restrictions on the future
activities or investments of any person including
prohibiting such person from engaging in the same type of
legal or business endeavor; or
"(3) ordering dissolution or reorganization of any
legal or business entity after making due provision for the
rights of innocent persons.
"(b) The Attorney General or any person threatened with loss
or damage by reason of a violation of section 2251 or 2252 may
institute proceedings under section (a) and, in the event that
the party bringing suit prevails, such party shall recover the
cost of the suit, including a reasonable attorney's fee. Pending
final determination, the court may at any time enter such
restraining orders or prohibitions, or take such other actions,
Including the acceptance of satisfactory performance bonds, as it
•hall deem proper. For purposes of this section, a violation of
section 2251 or 2252 shall be determined by a preponderance ofthe evidence.
suffer'0' K^ vlctim of a violation of section 2251 or 2252 whoers physical injury, emotional distress, or property damage
723
o
as a result of such violation may sue to recover damages in any
appropriate United States district court and shall recover
threefold the damages such person sustains as a result of such
violation and the cost of the suit, including a reasonable
attorney's fee. For purposes of this section, a violation of
section 2251 or 2252 shall be determined by a preponderance of
the evidence.
"(d) A final judgment or decree rendered in favor of the
United States in any criminal proceeding brought by the United
States under this chapter shall estop the defendant from denying
the essential allegations of the criminal offense in any
subsequent civil proceeding.
"(e) Nothing in this section shall be construed to authorize
any order restraining the exhibition, distribution or
dissemination of any visual material without a full adversary
proceeding and a final judicial determination that such material
contains a visual depiction of sexually explicit conduct, as
defined by section 2262 of this chapter, engaged in by a minor or
by a person who was coerced, intimidated, or fraudulently induced
to engage in such sexually explicit conduct.
52256. CIVIL PENALTIES.
"(a) Any person found to violate section 2252 or 2252 by
preponderance of the evidence shall be liable to the United
States Government for a civil penalty of $100,000 and the
forfeiture of any interest in property described in section 2254.
The Attorney General may bring an action for recovery of any such
civil penalty or forfeiture against any such person. If the
Attorney General prevails he may also recover the cost of the
suit, including a reasonable attorney's fee.
"(b) If the identity of any victim of an offense provided in
section 2251 or 2252 is established prior to an award of a civil
penalty made to the United States under this section, the victim
shall be entitled to the award. If there is more than one
victim, the court shall apportion the award among the victims on
an equitable basis after considering the harm suffered by each
such victim.
52257. VENUE AND PROCESS.
"(a) Any civil action or proceeding brought under th^
chapter may be instituted in the district court of the United
States for an district in which the defendant resides, is found,
has an agent, or transacts his affairs.
724
"(b) In any action under section 2252 or 2256 of this
hapter in any district court of the United States in which it is
shown that the ends of justice require that other parties
resid*n9 in any other district be brought before the court, the
court may cause such parties to be summoned, and process for that
Durpose may t,e served in any judicial district of the united
States by the marshall of such judicial district.
"(c) In any civil or criminal action or proceeding under
this chapter in the district court of the United States for any
judicial district, a subpoena issued by such court to compel the
attendance of witnesses may be served in any other judicial
district except that no subpoena shall be issued for service upon
any individual who resides in another district at the place more
than one hundred miles from the place at which such court is held
without approval given by a judge of such court upon a showing ofgood cause.
"(d) All other process in any action or proceeding under
this chapter may be served on any person in any judicial district
in which such person resides, is found, has an agent, ortransacts his affairs.
S2258. EXPEDITION OF ACTIONS.
"In any civil action instituted under this chapter by the
United States in any district court of the United States, the
Attorney General may file with the clerk of such court a
certificate stating that in his opinion the case is of general
public importance. A copy of that certificate shall be furnished
immediately by such clerk to the chief judge or in his absence to
the presiding district judge of the district in which such action
Is pending. Upon receipt of such copy, such judge shall
designate immediately a judge of that district to hear and
determine the action. The judge designated to hear and determine
the action shall assign the action for hearing as soon as
practicable and hold hearings and make a determination asexpeditiously as possible.
52259. EVIDENCE.
"In any proceeding ancillary to or in any civil action
instituted under this chapter the proceedings may be opened or
closed to the public at the discretion of the court after
consideration of the rights of affected persons.
52260. LIMITATIONS.
"A civil action under section 2255 or 2256 of this chapter
725
( r
Sexual exploitation through the production of chii<j
pornography leaves a tremendous cost in its wake. This cost is
in economic terms as well as human emotional devastation. Many
children suffer physical and emotional damage as well as the
effects of sexually transmitted diseases.
must be brought within sex years from the date the violation is
committed. In any such action brought by or on behalf of a
person who was a minor at the date the violation was committed
the running of such six-year period shall be deemed to have been
tolled during the period of such person's minority."
Sec. 5 (a) The section analysis for chapter 110 of part 1 of
Title 18, United States Code, is amended to read as follows:
"CHAPTER 110 - SEXUAL EXPLOITATION
"See:
"2251. Sexual Exploitation.
"2252. Certain activities relating to material sexual
exploitation.
"2253. Criminal forfeiture.
"2254. Civil forfeiture.
"2255. Civil remedies.
"2256. Civil penalties.
"2257. Expedition of actions.
"2259. Evidence.
"2260. Limitations
"2261. Definitions for chapter.
"2262. Severability.
(b) The chapter analysis for part 1 of title 18, United
States Code, is amended by striking the item relating to chapter
110 and inserting in lieu thereof the following:
.2251'"110. Sexual Exploitation
Sec. 6 Chapter 110 of title 18, United States Code, is
amended by inserting after section 2261 the following:
"If the provisions of any part of this Act or the amendments
made by this Act, or the application thereof, to any person or
circumstances is held invalid, the provisions of the other parts
of this Act or the amendments made by this Act and tne*
applications to other persons or circumstances shall not oe
affected."
726
An effective response to cases of suspected child sexual
loitation requires a sensitive and comprehensive medical
examination of the child that will:
1. Accurately diagnose physical evidence of recent or
past sexual assualt, and
2. provide substantial documentation for protective
or prosecutorial action.
Evidence of child sexual abuse is more difficult to obtain
than evidence of other types of physical abuse which results in
external bruising, lacerations, scarring or severe malnutrition.
Obtaining any medical evidence of sexual abuse which results from
the production of child pornography requires special expertise
and special sensitivity to the needs of the child. Such evidence
Is only a component of the evaluation and interpretation of
findings which must be used with caution and understanding.
Sexually exploited children often must also undergo exten-
sive psychotherapy to restore their mental health. Therapy is
costly and may often be outside the limits of ordinary medical
Insurance. Monies available in the state victims of crimes funds
should be used to defray the cost of this evaluation and
treatment. The distribution of monies from these funds also
recognizes the real injury which these children have suffered.
RECOMMENDATION 82:
CLINICAL EVALUATORS SHOULD BE TRAINED TO ASSIST CHILDREN
TIMIZED THROUGH THE PRODUCTION AND USE OF CHILD PORNOGRAPHY
727
MORE EFFECTIVELY AND BETTER UNDERSTAND ADULT PHYCHOSEXUAi
DISORDERS.
Clinicians should be trained in the types of problems that
may be associted with child sexual exploitation which results
from the production of child pornography.683 Problems
683 In addition to requiring certain individuals tn
report known and suspected cases of child maltreatment
California law now requires mental health professionals t'
complete coursework or training related to child abuse and
neglect.
The Bill provides:
ASSEMBLY BILL NO. 141
ADDITION TO BUSINESS AND PROFESSIONS CODE, SECTION 28
The Legislature finds that there is a need to ensure that
professionals of the healing arts who have demonstrable contact
with child abuse victims, potential child abuse victims, and
child abusers and potential child abusers are provided with
adequate and appropriate training regarding the assessment and
reporting of child abuse which will ameliorate, reduce, and
eliminate the trauma of child abuse and neglect and ensure that
reporting of child abuse in a timely manner to prevent additional
occurrences.
The Psychology Examining Committee and the Board of
Behavioral Science Examiners shall establish required training in
the area of child abuse assessment and reporting for all persons
applying for initial licensure and renewal of a license as a
psychologist, clinical social worker, or marriage, family, and
child counselor on or after January 1, 1987. This training shall
be required on time for all persons applying for initial
licensure or for licensure renewal on or after January 1, 1987.
All persons applying for initial licensure and renewal of •
license a psychologist, clinic social worker, or marriage, fami y
and child counselor on or after January 1, 1987, shall* »n
additional to all other requirements for licensure or renew;>i.
have completed coursework or training in child abuse assessmen
and detailed knowledge of Section 11165 of the Penal Code. i"
training shall:
(a) Be completed after January 1, 1983.
728
(b) Be obtained from one of the following sources:
(1) An accredited or approved educational institution,
as defined in Section 2902,, including extension
courses offered by those institutions.
(2) An educational institution .approved by the
Department of Education pursuant to Section 94310 of
the Education Code.
(3) A continuing education provider approved by the
responsible board or examining committee.
(4) A course sponsored or offered by a professional
association or a local, county, or state department of
health or mental health for continuing education and
approved by the responsible board.
(c) Have a minimum of 7 contact hours.
(d) Include the study of the assessment and method of
reporting of sexual assault, neglect, severe neglect, general
neglect, willful cruelty or unjustifiable punishment, corporal
punishment or injury, and abuse in out-of-home care. The
training shall also include physical and behavioral indicators of
abuse, crisis counseling techniques, community resources, rights
and responsibilities of reporting, consequences of failure to
report, caring for a child's needs after a report is made,
sensitivity to previously abused children and adults, and
implications and methods of treatment for children and adults.
(e) All applicants shall provide the appropriate board with
documentation of completion of the required child abuse training.
The Psychology Examining Committee and the Board of
Behavioral Science Examiners shall exempt any applicant who
applies for an exemption from the requirements of this section
and who shows to the satisfaction of the committee or board that
there would be no need for the training in his or her practice
because of the nature of that practice.
It is the intent of the Legislature that a person licensed
•nrt" .p.sychol°9ist, clinical social worker, or marriage, family,
^na child counselor have minimal but appropriate training in the
IntVrf °f child abuse assessment and reporting. It is not
lectt fc by solelV complying with the requirements of this
treatm«nV % Petitioner is fully trained in the subject of"atment of child abuse victims and abusers.
729
children may include generalized withdrawal or assaultive
behavior. Child victims may also display specific inappropriate
sexual behavior or specific target sources o£ anxiety (e.g., roen
with beards).
Counselors treating these children must also be trained to
work effectively with families and other caretakers of victims
(e.g., foster parents, extneded family child card, profes-
sionals). Child caretakers need help to understand possible
future behaviors of child victims, alleviate anxiety and avoid
creating unnecessary abnormal behaviors as a result of adult
inappropriate over-reactive expectations. Parents of five year
old victims might be more understanding of and more effective in
dealing with recurrent bedwetting or secual behavior if they are
prepared.684
Clinicians evaluating child pornogrpahy victims also need
training inlegal and judicial procedures to assure that the
evaluation and counseling process does not conflict with the
proper disposition of the criminal case.
RECOMMENDATION 83:
BEHAVIORAL SCIENTISTS SHOULD CONDUCT RESEARCH TO DETERMINE THE
EFFECTS OF THE PRODUCTION OF CHILD PORNOGRAPHY AND THE RELATED
VICTIMIZATION ON CHILDREN.
^ Anticipatory guidance as Designed by
Academy of Pediatrics (AAP) Health Care Service
model.
730
It is important that victim research examine the short and
ng-term effects of the sexual victimization of children. Dr.
land summit, a leading medical authority, expressed the need
C Q C
for additional research critical to this Commission. An
nderstanding of the behavioral pattersn of child victims is
especially lacking. The child may be disbelieved upon
ft fl fi
disclosure, during investigation, or as a witness in court,
parents or other child advocates may also be attacked for
supporting their child's version of the offense.687
Behavioral scientists also should learn more of the
characteristics of the child pornographer and the pedophile
offender. These conclusions will be valuable to law enforcement
agents, prosecutors, judges, parents, and therapists. This
research will form the basis for a sound program to curb the
sexual exploitation of children.688
Such research should include a systematic observation of the
pornographic component of an experience separate from other
criminal acts in cases that include pornography and other forms
of child abuse. Research should also examine the effects of
adult pornography on children.
685
686
687
688
Miami Hearing, Vol. I, Roland Summit, p. 209.
Id_. at 199, 216A1.
Id. at 200.
ooo UCLA hag recentiy received a federal grant to study
long-term effects of exploitation on the McMartin Pre-Schoolch*l victims.
731
vol. i. o - 86 -24
RECOMMENDATION 84:
STATES SHOULD SUPPORT AGE-APPROPRIATE EDUCATION AND PREVENTlQ
PROGRAMS FOR PARENTS, TEACHERS AND CHILDREN WITHIN PUBLIC AND
PRIVATE SCHOOL SYSTEMS TO PROTECT CHILDREN FROM VICTIMIZATION BY
CHILD PORNOGRAPHERS AND CHILD SEXUAL ABUSERS.
The educational programs must inform children while at the
same time preserving a child's innocence and basic trust. The
program should avoid instilling any unhealthy fear or mistrust in
children. It may focus on the difference between positive
healthy affection and touching or contact which is harmful to the
child. Training for parents and school personnel should center
on how to identify cases and how to report the information to the
proper agencies.689
689 California has developed the educational program,
Child Abuse; Recognize and Eliminate (CARE). A description of
the program follows for purposes of rT"n ••-«--=><- i
c V \*m\i-t I . *["lustration.
CARE PROGRAM
Student Workshop Description
Over eighty percent of child molestations are perpetuated by
adults known to the child. The majority of incidents of sexualabuse take place in the home of the abuser or the child. Boys
are equally as vulnerable as girls. Child molesters cannot t>*
identified easily; they come from all races, religions,
professions, and socio-economic classes. Children can be taughtto protect themselves from unwanted, uncomfortable ana
potentially abusive situations.
C.A.R.E. (Child Abuse: Recognize and Eliminate) is the LOS
Angeles Unified School District's extensive school-bas
educational program on child abuse prevention. The stu ?|,rcomponent of CARE is an exemplary model of instruction t
children in pre-kindergarten through grade six. Based on t gconcepts of self-esteem and self-protection, this instruction
732
ted in small groups at the school by S.C.A.N. (School Childconduc Negiect) Team members. A SCAN Team is a group of on-
Abuse a oo^ personnel who have received intensive training in
slte buse prevention and intervention. Student instruction is
omponent of this extensive school-based child abuse
educational program.
Team's role in presenting the student lesson is
Since all instruction is delivered by the same
als there is a strong assurance that consistency in the
!T™ation' presented is maintained and, that all the children
eive this information. (The SCAN Team presents the student
riculum to all students every year). In addition, because
SCAN Team Members are full-time, on-site certificated staff, any^ _ -...-__, „
niiiu ...the Initial presentation, a trained person known' to the child is
one or all of the team is available on a daily^basis to attend to
a child'needs"assistance one week, six weeks or six months aftertheneeds, problems and/or concerns of any child at any time. If
there to help. SCAN Team members return to the classrooms
periodically to reintroduce themselves and remind, children of
their availability and willingness to meet and talk with the
child at any time and for any reason.
The initial basic program includes a directed lesson, film,
discussion and question/answer period, and an opportunity for
Immediate private counseling. The follow-up lesson which takes
place approximately six weeks later, focuses on reinforcing thecentral concepts in a discussion and presenting a different film.
The primary message of the instruction emphasizes the value of
the child as a human being. The concepts are introduced and
developed using a self-esteem approach:
you are valuable
you are the best person to protect yourself
you have rights
you can communicate
you have power
you can get help
Specific strategies — say "no", get away and tell someone — are
presented in both the lesson and the film, "Better Safe than»^ry, ii." Tne film pregents real-life situations in a what-if
Dot"*'! students react with the children in the film to
•nd .« y abusive situations involving strangers, a neighbor
•ho t °ne in the family. They learn to say "no" to an adult
Ttlliifn 7°thering tnem and that not all secrets should be kept.
•"other y°U feel is the best rule to follow even when ifc is
Children Pae-rS<ln,making vou feel funny, bad or uncomfortable.ate told who to tell and specifically introduced to
733
RECOMMENDATION 85s
A MULTI-MEDIA EDUCATIONAL CAMPAIGN SHOULD BE DEVELOPED WHICH
INCREASES FAMILY AND COMMUNITY AWARENESS REGARDING CHILD SEXUAL
EXPLOITATION THOUGH THE PRODUCTION AND USE OF CHILD PORNOGRAPHY.
A multi-media program should inform families and communities
of the materials and seduction techniques used by child
pornographers and pedophile offenders. The child pornographer or
pedophile offender may befriend a potential victim, buy him or
her gifts, or take the child on trips. Pedophile offenders or
those at the school site who are available for help. Students
are instructed to keep telling until believed. Children learn
they have a right to body privacy and that some parts of the
body, "private parts," need special protection. After they
practice various ways to say "no," they learn ways to remove
themselves from uncomfortable situations. The concepts "It's
not your fault" and "It's right to tell" are emphasized
throughout.
After the lesson and film, children have an opportunity to ask
questions. Strategies for protection are reinforced and private
crisis counseling is immediately available. Four to six weeks
later, the SCAN Team members review the concepts using a.nother
film, "Now I Can Tell You My Secret." At this time strategies
are re-taught, and who and how to tell is re-emphasized. If a
child discloses or is identified as needing intervention or
referral, the SCAN Team members will report to the appropriate
agency and coordinate needed services.
The CARE student instruction stresses safety not fear. It
maintains a balance between addressing past and current victims,
and not scaring other children. I teaches children that tneV
have rights. I emphasizes the child's self-worth and value. The
information provides children the skills necessary for sell-
protection in potentially abusive situations and gain the
confidence to apply these skills. The goal of the instruction «
that children learn how to respond to any type of threatening
situation. A secure child who knows he is valuable and trus
his feelings is better prepared to recognize potential^
dangerous situations, react appropriately, and keep himself sat
734
hild pornographers may also volunteer their services to be near
hildren in activities such as sports, daycare centers, schools
r camps. Because of this seduction process, a child victim's
xual encounters with a pedophilic molester may never seem
traumatic.690 The subtle manner in which they abuse their
victims necessitates a heightened awareness on the part of
children and their parents. While parents or other adult care-
takers may be uncomfortable in posing questions about sexuality
to their children, parents may be more receptive to a trained
professional who candidly answers such questions. Each of
these programs should list individuals or services in the
community where parents or children may seek information or
assistance. These facilities should incorporate a variety of
social services as well as the availability of legal advice.
They should also assemble information as to agencies which
provide particular types of assistance.692
690
691
Miami Hearing, Vol. II, Ulrich Schoettle, p. 225-S.
Id. at 239.
692 This list should include information about the
following agencies and services:
Child protective service agencies
Law enforcement agencies (particularly special
juvenile or sex crimes unit)
Child abuse treatment referral systems
Rape crisis treatment systems
Specific child sex abuse treatment programs
735
Jl
Chapter 4
Victimization
RECOMMENDATION 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 AND PHYSICAL DISABILITIES AS A RESULT OF
EXPOSURE OR PARTICIPATION IN THE PRODUCTION OF PORNOGRAPHY.
As described later in Chapters 1 and 2 of Part Five, victims
of pornography may suffer a variety of physical and mental
damages. The victimization may include coercion, intimidation,
negative effects of forced consumption, physical assault and
sexual harassment.
Resources currently exist for victims of sexual abuse and
other crimes through victims compensation programs, mental health
and medical treatment programs. However, if no crime is
reported, as is often the case with pornography, the damages
cannot be compensated by victims of crime funds. Furthermore, if
"ental health or medical staff are not aware of the special
n«ture of pornography victimization, treatment may not be
ective in rehabilitating the victim. Those currently
737
ii
(I
involved in the production or forced into consumption Of
pornography are not aware of alternatives available to them, and
they may never believe they can escape the victimization.
Resources for victims of pornography should include:
(A) emergency "safe houses" where persons needing short
term refuge from production or forced consumption of
pornography, (B) financial assistance for persons
damaged by pornography who do not qualify for public
assistance or victims of crimes funds, (C) developmentof public information materials to assist persons
escape victimization through awareness of alternatives,(D) provision of job training and educational
opportunities who have been denied such opportunities
to victims who have been denied such opportunities
because of financial losses, physical or mental damages
incurred through production or forced consumption of
pornography, (E) provision of specialized training for
counselors and therapists to sensitize them to a
special nature of pornography and related sexual
victimization.
This training should include particular recognition of the
correlated problems of substance abuse, and the allocation of
resources to study short- and long-term effects of pornography on
those who participate in its production and those who are
forcibly exposed to it.
738
APPENDIX A
The following questionnaire now used in New York and other
• r cities may serve as an example of the types of issues to be
discussed.
"pornography," as referred to in the question below,
eludes "men's entertainment" magazines such as Playboy,
Penthouse, and Hustler, as well as hard-core publications showing
,xplicit sex between men and women, between two women, between
two men, and between adults and children. Such publications may
show women or children tied up or hurt, women or children being
penetrated by penises, fists, or objects, and women or children
having sex with animals. "Pornography" also includes books,
dins, cable television programs, and video tapes showing these
scenarios.
If THE ASSAILANT LIVED WITH OR WAS KNOWN TO THE VICTIM
'• Did/do you live with the man who assaulted you?
2- If so, what was/is your relationship?
'• If not, how do you know him?
<• Did/does your assailant use or collect pornography?
** If a°> what kind?
m»Y.OU kn°W the specific names or titles of the magazines,urns, programs or video tapes? If so, what are they?
/does he use pornography for masturbation?
does he use it to get aroused before sexual relations?
739
9. Did he ever ask you to view pornography with him?
10. Did he ever pressure you to view pornography with him?
11. Did he ever force you to view pornography with him?
12. Was pornography used as part of your normal sexual
encounters?
13. If so, how was it used?
14. Did he ever ask you to act out scenes from pornography?
15. Did he ever pressure you to act out scenes from pornography?
16. Did he ever force you to act out scenes from pornography?
17. Did he ever mention pornography in your sexual encounters?
18. did he ever ask you to pose for nude or pornographic photos
or films?
19. Did he ever, pressure you to pose for nude or pornographic
photos or films?
20. Did he ever force you to pose for nude or pornographic
photos or films?
21. Did he ever send nude photographs of you to a magazine or
"wife-swapping" club newsletter?
22. Did you ever show nude photographs of you to his friends?
23. Did he ever sell nude photographs of you?
24. Did he refer to pornography when he assaulted you? For
example, did he say anything like, "This is what women ask
for in the magazines I read," or "This is what the woman did
in the movie, and she loved it"?
25. During the assault, did he force you to act out scenes fron
pornography?
26. Did he, or anyone involved in the assault, take nude or
pornographic pictures of you before, during, or after
assault?
27. Did he show you pornographic pictures or films prior to, °
after the assault?
28. Did/does he use pornography to learn or teach you sexu
techniques? To teach you how to dress in a way that turns
him on? To learn how to tie you up?
-, Does he use pornography to justify sex acts that you don't
want to participate in? For example, does he show you
pictures and say, "A lot of couples do this," or "Look how
much she likes doing it."
,n Did/does he use "dial-a-porn" services? Frequent X-rated
movie theatres? Frequent establishments that have live sex
shows and X-rated film loops or topless and/or bottomless
bars and clubs?
31. If so, has he ever asked, pressured, or forced you to attend
these establishments with him?
32. Did/does he go to massage parlors, use "escort services," or
use prostitutes?
IF THE VICTIM DID NOT KNOW HER ASSAILANT(S)
1. Did your assailant refer to pornography when he assaulted
you? For example, did he say anything like, "This is what
women ask for in the movie, and she loved it"?
2. Did the assailant show you pornography or,use pornography
during the assault? If so, what kind?
3. Did the assailant(s) take pictures or films of you during
the assault?
<• During the assault were you forced to act out scenes that
were from pornography described or displayed by the
assailant?
5. Did your assault take place in an area in which there are a
lot of pornographic establishments, such as X-rated movie
theatres, bookstores, etc.?
Was there pornography in the place in which you wereassaulted?
WOMEN' GIRLS, AND BOYS WHO HAVE BEEN USED IN
740 741
o O
6.
7.
10,
11.
12,
13,
Were you a runaway? If so, when did you leave home?
Had you been sexually abused before you left home? if so
by whom? How? How old were you when the abuse took place?
How old was the person who abused you? Was that person a
family member or friend?
If you were abused before you left home, was pornoqraph
part of the abuse? How was it used? y
Were you involved in prostitution? Did you have a pimp?
Was there an older man who told you what to do, made you
have sex for money, and collected the money afterwards?
How did you first become involved in pornography? What were
the circumstances of your life? How old were you?
What kind of pornography were you used in?
Were forced into the making of pornography by:
a. Threats? d. Trickery?
b. Violence? e.
c. Poverty?
Pressure by a relative,
friend, or lover?
Explain.
Were you shown magazines such as Playboy, Penthouse,
Hustler, Screw, or others or were you snowri £iims Eo
convince you to pose for pornography?
Do you know other people who have been forced or pressured
into posing for pornography?
Were you ever beaten, whipped, spanked, or physically hurt
in the making of pornography? Were you ever tied up? Did
you have to act out violent scenes? Was the sex physically
painful?
Do you know people who were physically hurt in the making of
pornography?
Do you know who produced or profited from the pornography
you were used in? Do you know if they were involved
organized crime?
Do you know about or have you heard about people bein<3
murdered in the making of pornography?
742
j4. Were you in prostitution while you were being used to make
pornography? Were other women, girls, or boys you know in
pornography also in prostitution?
15. How has your experience in pornography affected how you feel
about yourself? How has it affected your relationships with
others? Your schooling and/or job performance?
16. Do vou ever have flashbacks or nightmares about your
experience in pornography?
17. Do you suffer from phobias?
18. How do you feel now when you see pornography?
19. Have you had upsetting experiences with pornography outside
your experiences in the sex industry?
20. What would you like to see done to help women, girls or boys
who have been used/abused in pornography?
21. Would you like to be able to take legal action against the
people who abused you? Would you like to be able to sue
them? Would you like to be able to stop the pornography
used against you from being shown?
QUESTIONS ABOUT SEXUAL HARASSMENT AND PORNOGRAPHY
I. Victims of sexual harassment through pornography in publicplaces
1.
2.
3.
Is pornography displayed in public places in your
community?
If so, where is it and what kinds of materials?
How does this material make you feel about yourself?
How does it make you feel about your relationships withothers?
Have any people you know been upset by pornographic
materials they've seen?
Have you ever been sexually harassed by men in porno-
graphy districts, in front of pornography theatres or
bookstores, in front of the pornography sections of a
newsstand, grocery store, or drugstore?
743
6.
7.
8.
9.
f
If so, how did this make you feel?
Does the pervasiveness of pornography upset you or
frighten you?
Does pornography make you frightened to perform yOudaily activities such as traveling to and from your
job? , .
Have you ever been sexually harassed by men who
referred to pornography or made comments to you that
seemed to come from pornography?
II. Victims of sexual harassment involving pornography on the
job
1. Is pornography displayed or used at your place of
employment?
2. If so, what kind? Where do you see it? Who uses it?
3. Have you ever been sexually harassed on the job? if
so, was pornography involved in harassment, i.e., did
your boss, co-worker, or customer show you pornography,
display pornography, or make verbal references to
pornography?
4. Have your co-workers, bosses, or customers ever
compared you to models in pornography?
5. How has the presence or use of pornography in your
place of work made you feel about yourself and your
ability to perform your job?
6. Have you ever complained to anyone about sexual
harassment on the job involving pornography? If so, to
whom? If not, why not?
7. Were any steps taken about the harassment?
8. Have you ever been forced to leave your job or have you
ever considered leaving your job because of sexual
harassment involving or related to pornography?
9. Do you think that pornography has contributed to the
way your boss, co-workers, employers view you ana
relate to you?
744
ill. Victims of sexual harassment through pornography in schools
and other institutions
1. Is pornography displayed or used in your school?
2. If so, what kind? Were do you see it? Who uses it?
3. Has pornography ever been used in your classroom, i.e.,
in a course on human sexuality? Have any of your
teachers or professors ever used pornographic slides or
made references to pornography?
4. Have you ever complained about the presence or use of
pornography at your school? If so, to whom? Was any
action taken? If not, why not?
5. Have your teachers or fellow students ever used porno-
graphy to sexually harass you? Have they ever made
verbal references to pornography that have made you
feel uncomfortable?
6. Have your ever had pornography imposed on you in social
situations at school, such as in fraternity parties or
during fraternity or sorority initiations?
IV. Victims of sexual harassment through pornography at home
1. Is there pornography in your home?
2. Do any of your relatives or friends use pornography or
make verbal references to it?
3. If so, how does it make you feel?
4. Have you ever attempted to remove the pornography from
your home? Were you successful?
5. Do your children see or know about pornography that is
kept in your home? If so, has it influenced the way
they think about women and sexuality?
745
Chapter 5
Civil Rights
RECOMMENDATION 87:
LEGISLATURES SHOULD CONDUCT HEARINGS AND CONSIDER LEGISLATION
RECOGNIZING A CIVIL REMEDY FOR HARM ATTRIBUTABLE TO PORNOGRAPHY.
The Commission heard substantial testimony regarding a civil
rights approach as a remedy for harms attributable to
pornography.693 An ordinance encompassing the civil rights
approach was originally proposed in Minneapolis, Minnesota, and a
similar ordinance was enacted in Indianapolis, Indiana.694 in
1984, the Indianapolis-Marion County City-County Council found,
in essence, that pornography lowers the social standard of
treatment of women as a class. The Council found the status of
women and the opportunity for equality are undermined by the
pornography industry's use of some women to target all women for
abuse through making acts of violation into acts of sexual
f n -\
See, Chicago Hearing, Vol. II, Catherine MacKinnon,
P- 133; Chicago Hearing, Vol. II, Terese Stanton, p. 168; Houston
"earing, vol. I, Diana Russell, p. 302; New York Hearing, Vol II,
Andrea Dworkin, p. 129; Washington, D.C., Hearing, Vol. I,Dorchen Leidholt, p. 197.
694,-K i, , See' Indianapolis-Marion County, Ind., Ordinance 35,c". 16 (June 15, 1984).
747
( V
entertainment.695 The harm of pornography is thus conceived to
be a form of discrimination on the basis of sex.**9**
Pornography, in effect, exemplifies inequality in its
violation of human rights. It has been defined in the proposed
ordinances as sexually explicit pictures or words that
subordinate on the basis of sex when those presented are also
shown being sexually exploited or brutalized — for example,
women presented as sexual objects enjoying rape, pain or
humiliation, being penetrated by objects or animals, in postures
of servility, submission or display, or in scenarios of
degradation or torture in a context that makes these conditions
sexual.697 Men, children of both sexes, and transsexuals could
£ no
sue for similar violations under the ordinance.
Victims and trained professionals described the harms
associated with and attributable to pornography, as including
rape, battery, sexual harassment, sexual abuse of children, and
forced prostitution.^" Women have been coerced into
pornographic performances by abduction, threats, drugs, and
696 See generally, MacKinnon, Pornography/ fivil Rights^—-a .'_••• j_ — • ,, * r t-i_.. i ~r i a Q ^ \
695 id. at S16-l(a)(2).
696 See generally, MacKinnon, Pornoqr.
and Speech, 20 Harv.C.R.-C.L. L. Rev. 1(1985).
697 Indianapolis-Marion County, Ind. , Ordinance 35, ch.
16 (June 15, 1984).
698 Id.
699 see, Houston Hearing, Vol. I, Diana Russell, p. 2*|5'
Miami Hearfng", Vol. II, Garrett, p. 19? Washington, D;c*'
Hearing, Vol. I, Dorchen Leidholt, Vol. I, p. 205; Washingto .
D.C., Hearing, Vol. I, Sarah Wynter, p. 183.
748
constant surveillance. Pornography has been forced on unwilling
viewers, typically children or women, in homes, in employment,
and in public places. Some assaults have been found to be caused
by specific pornographic materials providing instigation as well
as instruction and legitimization for the acts. Many experiences
of pornography-related humiliation, sexual degradation, enforced
servility, and physical and mental abuse were substantiated. On
the basis of this evidence, civil claims were created for four
specified activities: (1) coercion into pornography, (2) forcing
pornography on a person, (3) assault directly caused by specific
pornography, and (4) trafficking in pornography (production,
sale, exhibition, or distribution).700 Injunctions and damages
would be provided under narrowly specified conditions.701
The civil rights approach, although controversia!702, is the
only legal tool suggested to the Commission which is specifically
designed to provide direct relief to the victims of the injuries
so exhaustively documented in our hearings throughout the
country. Most of the evidence that establishes the fact that
pornography subordinates women and undermines their status and
opportunities for eguality comes from extra-judicial sources,
700 See, Indianapolis-Marion County, Ind., Ordinance 35,S16-3(g) (4>qrT)(June 15, 1984).
701 Id. S16-27.
702
Chicago HearT^n « , 9T Hearing, Vol. II, Nan Hunter, p. 101;Vo1 II, John M ",'. Burton Joseph, p. 4; Houston Hearing,B8rry Lynn ™<?' P' ' Wasnln9ton' D-C-, Hearing, Vol. "II
749
T
studies and individual accounts.703
The United States Supreme Court has recognized and relied
upon social and behavioral science findings in several decisions.
In Huller v. Oregon,704 tne Supreme Court upheld the constitu-
tionality of an Oregon law limiting women to a ten hour
workday.705 In support of the law, Louis D. Brandeis filed a
brief containing what the Court called "a very copious
collection" of "expressions of opinion from other than judicial
sources. "70<> Brandeis' brief contained evidence about women's
reactions to contemporary work conditions gathered from surveys,
government statistics, factory reports, and opinions of
employers, employees, and physicians.™' The Court relied on
this evidence to sustain the Oregon law providing special
protection for women in the workplace. 708 This method of
presenting an argument became known as a "Brandeis Brief."709
Almost half a century later, the Supreme Court relied on
703 See, MacKinnon, Pornography, Civil Rights, and Speech,
20 Harv.C.R.-C.L. L. Rev. 1(1985).
>e, School Desegregation L.XU.SICIV.J..^.. ... _
of Social Science Evidence - An Annotate~ ~"~—" » - T ~ ^."k- _ — I* i t-aSeventies and the UseSeventies ano tne use m. amjioj. jy-j.c.iv-»- ...Guide, 39 Law & contemp. Probs. 50, 51 (1975)[hereinafter cite
UU-LU*?, -* -• ~v- " — r _as Levin & Moise, School Desegregation].
708 208 U.S. at 419-21.
at 51.
709 Levin & Moise, School Desegregation, supra, note
750
social science evidence in the landmark school desegregation
decision of Brown v. Board of Education.710 in declaring
"separate but equal" schools unconstitutional, the Court found
that segregated facilities have a detrimental effect on
children.711 The Court agreed that,
segregation with the sanction of law . . . has a
tendency to [retard] the educational and mental
developments of negro children and to deprive them of
some of the benefits they would receive in a
racial[ly] integrated school system.712
The Court added that "this finding is amply supported by modern
authority,"713 and cited, among others, Kenneth Clark and Gunnar
Myrdal.714 The Court's reliance on this material as a basis for
finding discrimination was subject to some criticism.715 on one
later occasion, the Court heard "a great deal of medical and
sociological"716 evidence about alcoholism, but rejected it as
710
711
712
713
714
715
347 U.S. 483(1954).
Id. at 494.
Id.
Id.
Id_. at 494-95, n. 11.
See, Cahn, Jurisprudence, 30 N.Y.U. L. Rev. 150(1955);
,.BS> The Jurisprudence of Busing, 39 Law & Contemp. Probs. 194
716
incurring)7°WeU V' TeX3S> 392 U'S' 514' 537(1968) (Black, J,
751
C or
going "too far on too little knowledge"?!? and declined to find
criminal sanctions against public drunkenness to be cruel and
unusual punishment.718 However, the Court has relied upon extra-
judicial proof in cases dealing with issues as diverse as the
death penalty719 and the constitutionality of six member
juries.720 The late Judge J. Braxton Craven of the United States
Court of Appeals for the Fourth Circuit noted that "Brandeis
briefs" are now standard operating procedure in equal employment,
ecology, and school desegregation cases.72^ Judge Craven wrote,
To give a simplistic answer to a difficult question,
the role that the social sciences ought to play in the
judicial decision making process is of course the same
as the role of any other science whether medical,
electronic, or atomic.
In short, all sources of human information and
knowledge properly contribute to the determination of
the facts.722
717 Id. at 521.
718 Id_. at 521-23.
719 Furman v. Georgia, 408 U.S. 238, 250-51 n.15(1972)
(Douglas, J., concurring)(citing studies that conclude the death
penalty is disproportionately applied in cases involving poor or
black defendants); at 307 n.7 (Stewart, J., concurring) (citing
studies comparing crime rates in jurisdictions with death penalty
provisions).
720 Williams v. Florida, 399 U.S. 78, 101-02 n. 49(1970)
(citing psychological evidence that twelve member juries are no
more advantageous to criminal defendants than six member panels).
721 craven, The Impact of Social Service Evidence on the
Judge - A Personal Comment" T5 Law & Contemp. Probs. 157, 63
(1975) .
722 Id.
752
judge Craven concluded with respect to the extra judicial proof
in Hrown v. Board of Education,
Although startling at the time, the decision now rests
upon a bedrock of public opinion that school
assignments and legal distinctions based on race are
unfair and that enforced separation of a minority group
stigmatizes them.723
James B. McMillan, United States District Judge in the
Western District of North Carolina, wrote, "The study of people
and their problems is a natural prerequisite of the legal
decision of problems among people."724 it is this very type of
evidence that the Commission has found to be persuasive. While
the United States Court of Appeals for the Seventh Circuit found
the Indianapolis ordinance unconstitutional because of its
definition of "pornography,"725 the court accepted the premise of
the legislation and said,
Depictions of subordination tend to perpetuatesubordination. The subordinate status of women in
turn leads to affront and lower pay at work, insult and
injury at home, battery and rape on the streets. In
the language of the legislature, "[p]ornography is
central in creating and maintaining sex as a basis of
discrimination. Pornography is a systematic practice
of exploitation and subordination based on sex which
differentially harms women. The bigotry and contempt
it produces, with the acts of aggression it fosters,
harm women's opportunities for equality and rights [of
723 Id. at 153.
•J J A J«B. McMillan, Social Science and the District Court
lie Observations of a Journeyman Trial Judge. 39 Law & Contemp.
''lobs, is?, 163(1975). *~
725325(1985) American Booksellers Ass'n v. Hudnut, 771 F.2d 323,
753
(
all kinds]." Indianapolis Code S16-l(a)(2).726
The court of appeals recognized that pornography harms women
just as the United States Supreme Court found excessive working
hours harmful to women in Muller v. Oregon and segregated schools
harmful to minority students in Brown v. Board of Education. AS
a result of the United States Supreme Court's summary affirmance
of the court of appeals in Hudnut v. American Booksellers
Association,727 proponents of the civil rights ordinance approach
to pornography must attempt to fashion a definition of
pornography which will pass constitutional muster.
The Commission recommends that any civil rights approach
used to address harms attributable to pornography should include
an affirmative defense of a knowing and voluntary consent to the
acts. This defense would prevent performers who choose to engage
in the production of pornographic materials from seeking
recovery.
726 id. at 329, In footnote 2, the court added,
In saying that we accept the finding that
pornography as the ordinance defines it leads
to unhappy consequences, we mean only that
there is evidence to this effect, that this
evidence is consistent with much human
experience, and that as judges we must accept
the legislative resolution of such disputed
empirical questions.
See Gregg v. Georgia, 428 U.S. 153, 184-87,
96 S.Ct 2909, 2930-31, 49 L.Ed.2d 859 (1976)
(opinion of Stewart, Powell, and Stevens,
J.).
727 54 U.S.L.W. 3548(Feb. 25, 1986).
754
The pattern of harm documented before the Commission, taken
a a whole, supports the conclusion that the pornography industry
systematically violates human rights with apparent impunity. The
ost powerless citizens in society are singled out on the basis
Of their gender -- often aggravated by their age, race,
disability, or other vulnerability — for deprivations of
liberty, property, labor, bodily and psychic security and
Integrity, privacy, reputation, and even life.
So that pornography can be made, victims have been exploited
under conditions providing them a lack of choice and have been
coerced to perform sex acts against their will. Public figures
and private individuals alike are defamed in pornography with
Increasing frequency. It is also foreseeable, on the basis of
our evidence, that unwilling individuals have been forced to
consume pornography, in order to pressure or induce or humiliate
or browbeat them into performing the acts depicted. Individuals
have also been deprived of equal access to services, employment
or education as a result of acts relating to pornography. Acts
of physical aggression more and more appear tied to the targeting
of women and children for sexual abuse in these materials.728
Through these means, the pornographers1 abuse of individual
"embers of protected groups both victimizes them and notifies all
728In Ch ^e' Recommendations for Regulating Child Pornography
3 of this Part and the complete discussion ofin Chapter 1 of Part Five.
755
( V
of society that such abuses of them is permitted. This in turn
serves to terrorize others in their group and contributes to a
general atmosphere of bigotry and contempt for their rights and
human dignity, in an impact reminiscent of the Ku Klux Klan.
Respect for law is undermined when such flagrant violations go
unchecked — even more so when they are celebrated as liberties
protected by government.
We therefore conclude that pornography, when it leads to
coerced viewing, contributes to an assault, is defamatory, or is
actively trafficked, constitutes a practice of discrimination on
the basis of sex. Any legal protections which currently exist
for such practices are inconsistent with contemporary notions of
individual equality.
The Commission accordingly recommends that the legislature
should conduct public hearings and consider legislation affording
protection to those individuals whose civil rights have been
violated by the production or distribution of pornography. The
legislation should define pornography realistically and encompass
all those materials, and only those materials, which actively
deprive citizens of such rights. At a minimum, claims could be
provided against trafficking, coercion, forced viewing,
defamation, and assault, reaching the industry as necessary to
remedy these abuses, consistent with the First and Fourteenth
Amendments.
756
Chapter 6
Nuisance
The exhibition of obscene materials constitutes "a crime
involving the welfare of the public at large, since it is
contrary to the standards of decency and propriety of the
729community as a whole." Thus the exhibition of obscene
materials may be enjoined as a public nuisance under applicable
state law or local ordinance.730
Nuisance abatement suits have successfully been brought to
enjoin the exhibition or dissemination of specific books,
magazines, or movies.731 However, the constitutional provisions
against prior restraint of presumptively protected speech is an
important limitation on the use of nuisance actions.732
Plaintiffs in civil nuisance actions should use procedures
which include procedural safeguards against invalid prior
180 S.E.2d 712, 715-
, 413 U.S. 49, 54-
fl6.- Trans-Lux Corp
. ., .„. «.u OP.MN.U. 1981), app. dism. 102
eople ex rel. Busch v. Projection Room Theatre, 550757T
757
o
restraints.733 xhe United States Supreme Court rejected the
application of nuisance statutes to enjoin the future exhibition
of unnamed films in an "adults only" pornographic theater.734
Courts have also been unwilling to enjoin the future
operation of "adults only" pornographic outlets or theatres that
have exhibited obscene publications or films in the past because
of First Amendment concerns regarding prior restraints.735 other
courts have upheld injunctions closing the offending
establishments for a period of one year.736
To avoid First Amendment challenges, nuisance actions may
also be brought based upon lewd activity, assignation, or
prostitution occurring on the premises where the obscene material
is sold or exhibited."737
see, Southeastern Promotions, Ltd, v. Conrad, 420 U.S.
734 ....... v- universal amusement Co..., 445 0.8. 308(1980).
People ex rel. Busch v. Projection Room Theater, 550
" - u~4.i^CT virt-ure Entitled "The Bet*, 541e eX TBJL. ouav... ...___.
State v. A Motion Picture Entitle
7f>U(K.an. i .
"*229 N.«.2d 389(Mich. App. ) , ... M V '"
Store, No. 10038(0hio App. Summit County, Oct. t ,
£. r. 1 .rr. „ o QOTMQFm.
Store, MW • AWWJ«\« -T
denied 459 U.S. 997(1982).
737 rrnp1rrnpr .. ..
166 Cal. RptrT 519(1980); Pfople v.
287 N.E.2d 177(111. 1972).
«nrld Bookstore, 108 Cal. App. |d
Pole v. uUmJn, 7 111. App
758
(i
Chapter 7
Anti-Display Laws
Anti-display laws regulate the method by which pornographic
materials can be publicly displayed. Statutes or ordinances may
be enacted to restrict the display of sexually explicit materials
to minors. In order to withstand constitutional challenges, such
laws should apply only to materials that are obscene as to
minors.'38 The regulations also should contain reasonable time,
place, and manner restrictions.739
In M.S. News Co. v. Casado,740 tne United States Court of
Appeals for the Tenth Circuit upheld a Wichita, Kansas, ordinance
which restricted the display of material "harmful to minors."741
The Wichita ordinance defined "harmful to minors" as any
description, exhibition, presentation or
representation, in whatever form, of nudity, sexual
conduct, sexual excitement, or sado-masochistic abuse
when the material or performance, taken as a whole, has
the following characteristics:
(a) The average adult person applying
contemporary community standards would find
that the material or performance has a
predominant tendency to appeal to a prurient
interest in sex to minors; and
738 —' Gi"sberq v. New York. 390 U.S. 629, 645-47(1968).
739
*3(1976) ^-' Younq v. American Mini-Theatres, 427 U.S. 50,
740
741
721 F.2d 1281(10th Cir. 1983).
Wichita, Kan., Ordinance no. 36-172, S5.68 156(1985).
759
(I a
(b)
(c)
The average adult person applying
contemporary community standards would find
that the material or performance depicts or
describes nudity, sexual conduct, sexual
excitement or sado-masochistic abuse in a
manner that is"patently offensive to
prevailing standards in the adult community
with respect to what is suitable for minors;
and
The material or performance lacks serious
literary, scientific, educational, artistic,
or political value for minors.742
The ordinance also provided criminal penalties.
The penalties may be imposed when any person having
custody, control or supervision of any commercial
establishment shall knowingly:
(a) display material which is harmful to minors
in such a way that minors, as a part of the
invited general public, will be exposed to
view such material provided, however, a
person shall be deemed not to have
"displayed" material harmful to minors if
the material is kept behind devices commonly
known as "blinder racks" so that the lower
two-thirds of the material is not exposed to
view.743
The court of appeals found that the definition of "harmful
to minors" properly tracked the standards enunciated in Ginsberg
v. New York744, and Miller v. California.745 The requirement
that the lower two-thirds of the material be covered was neither
742
743
Id.
Id.
744 390 U.S. 629, 645-47(1968).
745 413 U.S. 15, 24(1973).
760
overbroad nor vague.746 while the ordinance did restrict an
dult's opportunity to view the materials, it did not prevent an
adult from purchasing them.747 The Court found the ordinance to
be a reasonable time, place, and manner restriction justified by
the government's interest in protecting minors.748
A Minneapolis, Minnesota, ordit^ance74^ which was more
restrictive than the one enacted in Wichita withstood a
constitutional challenge in Upper Midwest Booksellers v. City of
Minneapolis.7^ The Minneapolis Ordinance provided,
It is unlawful for any person commercially and
knowingly to exhibit, display, sell, offer to sell,
give away, circulate, distribute, or attempt to
distribute any material which is harmful to minors in
its content in any place where minors are or may be
present or allowed to be present and where minors are
able to view such material unless each item of such
material is at all times kept in a sealed wrapper.
(a) It is also unlawful for any person
commercially and knowingly to exhibit,
display, sell, offer to sell, give away,
circulate, distribute, or attempt to
distribute any material whose cover,
covers, or packaging, standing alone, is
harmful to minors, in any place where minors
are able to view such material unless each
item of such material is blacked from view by
an opaque cover. The requirement of an
opaque cover shall be deemed satisfied
concerning such material if those portions of
the cover, covers, or packaging containing
such material harmful to minors are
746
747
748
749
750
721 F.2d 1281, 1287(10th Cir.1983).
I£. at 1288-89
Id.
Minneapolis, Minn., Ordinances 3385.131(1985)
602 F. Supp. 1361(0. Minn. 1985).
761
rr
blocked iron-, view by an opaque cover.751
The Booksellers maintained that the requirement of a sealed
wrapper was unduly restrictive as to an adult's right to peruse
the materials which were harmful to minors but not to adults.752
The Court concluded that any inconvenience suffered by adult
patrons was not sufficient to render the restrictions
unconstitutional.753 if adults wanted to peruse the materials
covered by the ordinance, the Court reasoned that they would be
able to do so in one of several ways: 1) ask a clerk to remove
the wrapper; 2) view an "inspection copy" kept behind the store
counter, or 3) view the material in an "adults only" pornography
outlet that excludes minors.754
Display laws which define "harmful to minors" with language
other than the Ginsberg standard have been found
unconstitutional.755
751 Minneapolis, Minn., Ordinances S385.131(6) (a)(1985).
752 602 F. Supp. at 1370.
753 Id_. at 1372.
754 Id.
755 See, Hillaboro News Co. v. City of Tampa, 451 F. Supp.
952(M.D. Fla. 1978) (ordinance restricted display of "of:
sexual material" found unconstitutionally vague);
Booksellers Ass'n v. McAulifte, 533 F. Supp. 50 (N.D.
(statute prohibiting display or sale to minors of «•--. t ,oncontaining nude figures held overbroad because prohiblc
extends to material not obscene as to minors); *m*FigTT
Booksellers Ass'n, Inc. b. Superior Court, 129 Cal. App. 3° lred
181 Ca.Rptr.33(1982)(ordinance overbroad because it re<i
sealing material containing any photo whose primary pursexual arousal regardless of whether obscene as to m
762
While opaque covers and sealed wrappers are a permissible
Of restricting the display of sexually explicit materials
inors, a Virginia statute which simply made it unlawful to
lav material harmful to minors in a manner "whereby juveniles
examine and peruse it" was found unconstitutional.756 TheIfl3y c
virqinia statute contained no provisions for the use of opaque
covers and the court found that outlets would face unreasonable
burdens in complying with the statute.757 They would have to
deprive adults of the material, remove it from their shelves or
ban minors from their stores.758 The Court also found the idea
of outlets restructuring their premises and creating an "adults
only" section to be unreasonable.759 The Court concluded the
statute was overbroad as a time, place and manner restriction.7*"0
A requirement of opaque covers or "blinder racks" would have
narrowed the scope of the restriction and could have, provided the
Calderon v. City of Buffalo, 61 A.D.2d 323, J402 N.Y.S.2d
48511978) (ordinance overbroad because it prohibited sale and
•Khibltion to juveniles of material that was not obscene as to
juveniles); Oregon v. Frink, 60 Or. App. 209, 653 P.2d 553(1982)
(statute prohibiting dissemination of all nudity to minors
overbroad because it does not limit prohibition to material that
i« obscene as to juveniles).
..„ 756 American Booksellers Ass'n v. Strobel, 617 F. Supp.«« (E.D. Va. 1985).
757
758
759
760
1(3. at 706.
Id. at 702-03.
Id.
Id- at 706.
763
basis for the court upholding the statute in this case.7ei
761 Id. at 706-07.
764
PART FOUR
765
Chapter 1
Victimization
Women, men, and children who believe they have been harmed
pornography described adverse physical and psychological
effects in their public testimony before the Commission and other
bodies and in accounts given in writing or in interviews by
Commission staff. The Commission heard testimony from thirty
witnesses who reported that they or others with whom they had
special relationships had been harmed in some manner by or as a
result of pornography. More than one hundred persons were
Interviewed by Commission staff investigators, who were law
enforcement personnel with considerable experience in dealing
with trauma victims. Although in many instances, facts related
by the person interviewed could be verified by reference to
treatment records, court records, or law enforcement files, in
other instances no independent verification was possible. In
addition to the foregoing, a number of other statements were
received in letters from persons who reported pornography-related
victimization and in exhibits filed by witnesses from hearings
before other fact finders, including city councils, courts of
record, and the United States Senate. Some of these individuals
reported an extensive series of traumatic events in their lives,
•siting it difficult to assess the relationship, if any, between
Pornography and their suffering.
767
Witnesses attributed to pornography their having been
coerced into pornographic performances, bound and beaten i
direct imitation of pornography, and forcibly imprisoned for th
purpose of manufacturing pornography. Although this CommissiOn
can neither conclusively determine that pornography caused thes
physical harms nor conclusively determine that it did not, it Vas
the opinion of the witnesses that pornography played a central
role in the pattern of abuse within which they were harmed
Witnesses attributed many different kinds of damage to
psychological functioning and sense of self to their having been
used in the production of pornographic materials, exposed to
pornographic materials, or sexually assaulted by offenders who
used pornography as part of the abuse. Many of these
psychological injuries correspond to the signs and symptoms of
post-traumatic stress disorder.762 witnesses also attributed to
pornography financial losses due to hospitalization and therapy,
damage to family relationships and status in the community caused
by defamatory representations in pornography, associations
between prostitution and pornography, and sexual harassment
through pornography. Many of the women, men, and children who
762 "The essential feature is the development of
characteristic symptoms following a psychological y
traumatic event that is generally outside the range 01
human experience. The characteristic symptoms invo ^
reexperiencing the traumatic event; numbing^
responsiveness to, or deduced involvement with,
external world; and a variety of autonomic, dysPh°r
or cognitive symptoms." American Psychi"
Association, Diagnostic and Statistical Mamiaj
Mental Disorders 236 (3d ed. 1980).
768
.fied reported each of these types of conseguences, and some
'duals are quoted repeatedly in various sections of this
chapter.
Although we have tried in this chapter to allow victims to
k in their own words, without interpretation or commentary,
have in several instances guoted the words of victims'
thers, friends, or therapists. We have done so only because
there are instances in which the victims themselves were
unavailable for testimony. In the same vein, we quote here
pertinent excerpts from the eloquent testimony of Andrea Dworkin
on behalf of many other victims whose voices were not heard:
My name is Andrea Dworkin. I am a citizen of the
United States, and in this country where I live, every
year millions of pictures are being made of women with
our legs spread. We are called beaver, we are called
pussy, our genitals are tied up, they are pasted,
makeup is put on them to make them pop out of a page at
a male viewer. Millions and millions of pictures are
made of us in postures of submission and sexual access
so that our vaginas are exposed for penetration, our
anuses are exposed for penetration, our throats are
used as i£ they are genitals for penetration. In this
country where I live as a citizen real rapes are on
film and are being sold in the marketplace. And the
major motif of pornography as a form of entertainment
is that women are raped and violated and humiliated
until we discover that we like it and at that point we
ask for more.
In this country where I live as a citizen, women are
penetrated by animals and objects for public
entertainment, women are urinated on and defecated on,
women and girls are used interchangeably so that grown
women are made up to look like five- or six-year-old
, children surrounded by toys, presented in mainstream
pornographic publications for anal penetration. There
re magazines in which adult women are presented with
PUbic areas shaved so that they resemble
this country where I live, there is a trafficking in
769
e I-
pornography that exploits mentally and physical!
disabled women, women who are maimed; there is amputee
pornography, a trade in women who have been maimed j
that way, as if that is a sexual fetish for men. j"
this country where I live, there is a trade in racls
as a form of sexual pleasure, so that the plantation is
presented as a form of sexual gratification for the
black woman slave who asks please to be abused, please
to be raped, please to be hurt. Black skin ig
presented as if it is a female genital, and all the
violence and the abuse and the humiliation that is in
general directed against female genitals is directed
against the black skin of women in pornography.
Asian women in this country where I live, are tied from
trees and hung from ceilings and hung from doorways as
a form of public entertainment. There is a
concentration camp pornography in this country where i
live, where the concentration camp and the atrocities
that occurred there are presented as existing for the
sexual pleasure of the victim, of the woman, who
orgasms to the real abuses that occurred, not very long
ago in history.
In the country where I live as a citizen, there is a
pornography of the humiliation of women where every
single way of humiliating a human being is taken to be
a form of sexual pleasure for the viewer and for the
victim? where women are covered in filth, including
feces, including mud, including paint, including blood,
including semen; where women are tortured for the
sexual pleasure of those who watch and those who do the
torture, where women are murdered for the sexual
pleasure of murdering women, and this material exists
because it is fun, because it is entertainment, because
it is a form of pleasure, and there are those who say
it is a form of freedom.
Certainly it is freedom for those who do it. Certainly
it is freedom for those who use it as entertainment,
but we are also asked to believe that it is freedom for
those to whom it is done.
Then this entertainment is taken, and it is used on
other women, women who aren't in the pornography, to
force those women into prostitution, to make them
imitate the acts in the pornography. The women in tn
pornography, sixty-five to seventy percent of them we
believe are victims of incest or child sexual abuse.
They are poor women; they are not women who n*Y
opportunities in this society. The are freguenciy
runaways who are picked up by pimps and exploits
770
They are freguently raped, the rapes are filmed, they
re kept in prostitution by blackmail. The pornography
is used on prostitutes by Johns who are expected to
replicate the sexual acts in the pornography, no matter
how damaging it is.
pornography is used in rape—to plan it, to execute it,
to choreograph it, to engender the excitement to commit
the act. Pornography is used in gang rape against
women. We see an increase since the release of "Deep
Throat" in throat rape—where women show up in
emergency rooms because men believe they can penetrate,
deep-thrust, to the bottom of a woman's throat. We see
increasing use of all elements of pornography in
battery, which is the most commonly committed violent
crime in this country, including the rape of women by
animals, including maiming, including heavy bondage,
including outright torture.
We have seen in the last eight years, an increase in
the use of cameras in rapes. And those rapes are
filmed and then they are put on the marketplace and
they are protected speech—they are real rapes. We see
pornography in the harassment of women on jobs,
especially in nontraditional jobs, in the harassment of
women in education, to create terror and compliance in
the home, which as you know is the most dangerous place
for women in this society, where more violence is
committed against women than anywhere else. We see
pornography used to create harassment of women and
children in neighborhoods that are saturated with
pornography, where people come from other parts of the
city and then prey on the populations of people who
live in those neighborhoods, and that increases
physical attack and verbal assault.
We see pornography having introduced a profit motive
into rape. We see that filmed rapes are protected
speech. We see the centrality of pornography in serial
murders. There are snuff films. We see boys imitating
pornography.
We see the average age of rapists going down. We are
beginning to see gang rapes in elementary schools
committed by elementary school age boys imitating
pornography. We see sexual assault after death where
frequently the pornography is the motive for the murder
kin"86 the raan believes that he will get a particular
•he is deSaedXUal pleasure having sex with a woman after
8ee a major trade in women, we see the torture of
771
I I
women as a form of entertainment, and we see women also
suffering the injury of objectification-- that is to
say we are dehumanized. We are treated as if we are
subhuman, and that is a precondition for violence
against us.
I live in a country where if you film any act of
humiliation or torture, and if the victim is a woman,
the film is both entertainment and it is protected
speech. Now that tells me something about what it
means to be a woman citizen in this country, and the
meaning of being second class.
When your rape is entertainment, your worthlessness is
absolute. You have reached the nadir of social
worthlessness. The civil impact of pornography on
women is staggering. It keeps us socially silent, it
keeps us socially compliant, it keeps us afraid in
neighborhoods; and it creates a vast hopelessness for
women, a vast despair. One lives inside a nightmare of
sexual abuse that is both actual and potential, and you
have the great joy of knowing that your nightmare is
someone else's freedom and someone else's fun.
The first thing I am going to ask you to do is
listen to women who want to talk to you about what has
happened to them. Please listen to them. They know,
they know how this works .... [I]t has happened
to them.
I am also asking you to acknowledge the international
reality of this — this is a human rights issue — for a
very personal reason, which is that my grandparents
came here, Jews fleeing from Russia, Jews fleeing from
Hungary. Those who did not come to this country were
all killed, either in pogroms or by the Nazis. They
came here for me. I live here, and I live in a country
where women are tortured as a form of public
entertainment and for profit, and that torture is
upheld as a state-protected right. Now, that is
unbearable.
I am asking you to help the exploited, not the
exploiters. You have a tremendous opportunity here,
am asking you as individuals to have the courage,
because I think it's what you will need, to actually be
willing yourselves to go and cut that woman down and
untie her hands and take the gag out of her mouth,
and to do something, for her freedom.'63
763 New York Hearing, Vol. II, Andrea Dworkin, p. 129-5
772
jt, ADVERSE EFFECTS
A. Physical Harm
1. Rape
The Commission received testimony alleging rapes related to
pornography. For example, a woman reported that her daughter was
forced to engage in sexual acts in the making of pornographic
•aterials.
My daughter attended [a] Pre-school in ...
California. She was three years old when she began
attending. During the six months she attended before
the school closed, she was sexually molested on
multiple occasions, by teachers on the school grounds
and also was taken off school property to unknown
locations to be molested by persons unknown to me.
Photographs were taken on many (if not all) of these
occasions. She was threatened with physical violence
with a knife and a gun and was forced to watch animals
being killed.764
A man who claimed he had participated in over one hundred
pornographic films in two and a half years testified:
I have seen -it totally destroy too many lives, but
mostly the girls. It's a lot harder on young ladies.
I have seen a lot of producers and directors and
photographers, just to get out a product that they have
in mind, either badger or almost force the girls into
aolng things that they would really rather not do. I,
l H? e been on a couPle of sets where the younglaaies have been forced to do even anal sex scenes with
« guy which is rather large and I have seen them crying
»" Pain and ]ust totally destroys their personality
764 Miami Hearings, Vol. II, p. 285B.
773
o
when they are forced to do things like that.765
Other rapes were allegedly stimulated by the viewing
pornography or modeled after particular pornographic materials
A mother left her ten year old daughter for two hours with
very close friend who lived next door. The friend had the qi
watch pornographic movies on the Playboy TV channel and then
engaged in oral sex with her.766
In testimony before another body, one woman reported:
Over a period of eighteen years the woman was regularly
raped by this man. He would bring pornographic
magazines, books, and paraphernalia into the bedroom
with him and tell her that if she did not perform the
sexual acts that were being done in the "dirty" books
and magazines he would beat and kill her. I know about
this because my bedroom was right next to hers. I
could hear everything they said. I could hear her
screams and cries. In addition, since I did most of
the cleaning in the house, I would often come across
the books, magazines, and paraphernalia that were in
the bedroom and other rooms of the house. The
magazines had pictures of mostly women and children and
some men. Eventually, the woman admitted to me that
her ex-husband did in fact use pornographic materials
to terrorize and rape her.767
Another woman wrote:
When I first met my husband, it was in early 1975, and
he was all the time talking about Ms. Marchiano's film*
Deep Throat. After we were married, he on several
occasions referred to her performances and suggested I
765 Los Angeles Hearing, Vol. I, p. 81.
766 Letter from Oklahomans Against Pornography to t '
Attorney General's Commission on Pornography-
1983).
14767 Minneapolis City Council, Session II, P-
774
try to imitate her actions .... Last January .
my husband raped me .... He made me strip and lie
on our bed. He cut our clothesline up ... and tied
my hands and feet to the four corners of the bedframe.
(All this was done while our nine month old son
watched.) While he held a butcher knife on me
threatening to kill me he fed me three strong tran-
quilizers. I started crying and because the baby got
scared and also began crying, he beat my face and my
body. I later had welts and bruises. He attempted to
smother me with a pillow .... Then, he had sex with
me vaginally, and .then forced me to give oral sex tohim.768
Another woman alleged that her father had used Playboy in
connection with his molestation of her when she was a small
child:
. . . This father took a Playboy magazine and wrote her
name across the centerfold. Then he placed it under
the covers so she would find it when she went to bed;
He jomed her in bed that night and taught her about
According to another source:
A five year old child told her foster mother, "We have
movies at home. Daddy shows them when mother is gone.
The people do not wear clothes, and Daddy and I take
our clothes off and do the same thing the people in themovies do.769
-ho had been asked if they had ever been upset by anyone
to get them to do what they'd seen in pornographic
had described the following examples:
769
y Cent's
,?0***** R«°urce CenterGeneral's Commission on Pornography.
"'^aphy to the
775
..Miss D: I was staying at this guy's house. He tried to
make me have oral sex with him. He said he'd seen
far-out stuff in movies, and that it would be fun to
mentally and physically torture a woman.
Miss G: He forced me to have oral sex with him when i
had no desire to do it.
Miss M: Anal sex. First he attempted gentle
persuasion, I guess. He was somebody I'd been dating a
while and we'd gone to bed a few times. Once he tried
to persuade [me] to go along with anal sex, first
verbally, then by touching me. When I said, "no," he
did it anyway—much to my pain. It hurt like hell.'7''
One rape victim said that her assailants had attacked her aft
perusing pornographic magazines:
The third man forced his penis into my mouth and told
me to do it and I didn't know how to do it, I did not
know what I was supposed to be doing. He started
swearing at me and calling me a bitch and a slut and
that I better do it right and that I wasn't even
trying. Then he started getting very angry and one of
men pulled the trigger in his gun so I tried harder.
Then when he had an erection, he raped me. They
continued to make jokes about how lucky they were to
have found me when they did and they made jokes about
being a virgin. They started kicking leaves and pine
needles on me and kicking me and told me that if I
wanted more, that I could come back the next day.
Then they started walking away and I put my clothes
back on and it was not far from where they had set up
their camp and I looked down and saw that they had been
reading pornographic magazines. They were magazines
with nude women on the covers.
770 Minneapolis City Council, Session I. p. 65, 67 (D«c>
1983). (Testimony based on Diana Russell's research).
771
1983).
Minneapolis City Council, Session II, P- 42
776
^ x a ana rape was attributed to imitation of a specificElsewhere ay*
piece of pornography:
f&i a gang rape of a juvenile girl [was committed] by
<x adolescent boys who used a pornographic magazine's
pictorial and editorial outlay to recreate a -tape in
the woods outside of their housing development. ^
ther victim of sexual assault during childhood attributed her
ailant's behavior to the instruction of pornography:
What this game consisted of was each child going into a
tool shed with this guy. When my turn came I didn't
want to go in because I was scared, it was dark in
there and it was dirty. There were cobwebs and there
was this giant pitchfork.
One of the kids pushed me inside and shut the door.
Then this boy grabbed me and he pulled down my shorts
and sexually abused me. In short, he finger-fucked me
and he made me masturbate him. I was really terrified.
I thought I was in hell, and I was also in a lot of
pain. I started crying really hard and he finally let
me go, but I was told that if I told anyone I wouldn't
be believed, that it was all my fault and that I would
be punished. He also told me that he would hurt me
again if I told anyone. His sister told me that this
game he had learned from his dirty books. I knew that
he had these dirty books because I had seen him withthem.773
Another witness testified that pornography had been used by a man
•ho had sexually abused her in childhood:
A lot of raping went on in the basement. That is also
where the pornography books were. They were magazines
that were brought of hiding, out of boxes that were on
the top of shelves.
Judoes r~ ,Porn°9raPhy Speech presented to the National Women
'*ner»i- n e.nce» Ocfcober 12, 1986, submitted to the Attorneyral s Commission on Pornography.
773
198J). "mneapolis City Council, Session II, p. 48-49 (Dec.
777
o
When [he] and I got to the top of the stairs I knew i
was going to pay for my little arrangement. He ordered
me to take my clothing off and he tried to rape me. He
was too big and I was too small. He forced me to go
down on him . . . .774
Other witnesses testified that men had required of th
particular acts that had been seen in pornography:
While imitating the women in the magazines was one
result of the material, I have always felt that another
consequence was the initiation of oral sex into the
abuse. This did not occur until after the pornographic
material arrived and I firmly believe that the idea
came from the pornographic magazines.
Pornography did not cause the incestuous relationship
with my older brother but I have always felt that its
use contributed to the different types of abuse that
was used.77^
Another woman described the same phenomenon within her marriage:
I had not realized the extent of the harm that
pornography had done to me until a year and a half ago
when I was working on a photo montage of the kinds of
pornography for an educational forum. I came across a
picture of a position that my ex-husband had insisted
we try. When we did, I found the position painful, yet
he was determined that we have intercourse that way. I
hemorrhaged for three days. I finally went to my
doctor and I recall the shame I felt as I explained to
him what had caused the bleeding.
Once we saw an X-rated film that showed anal
intercourse. After that he insisted that I try anal
intercourse. I agreed to do so, trying to be the
available, willing creature that I thought I was
supposed to be. I found the experience very painful,
and I told him so. But he kept insisting that we try
it again and again.''"
774 Washington, D.C., Hearing, Vol. I, p. 222.
775 Chicago Hearing, Vol. II, p. 291B.
776 Chicago Hearing, Vol. II, p. 241F3.
778
According to a former Playboy bunny:
A Playmate of the Year, also on the Woman to Woman
Show, testified that a man attempted to rape her after
he recognized her from the magazine.
I experienced everything from date rape to physical
abuse, to group sex and finally to fantasizing
homosexuality as I read Playboy magazines. The group
sex held in Hefner's mansion was accompanied by the
pornographic movie, The Devil in Hiss Jones . . . .
A woman who said that both of her husbands had subjected her to
sexual and other physical abuse testified.
Often he would be high on drugs or alcohol and force me
to do violent sexual acts while he was leafing through
the pictures.778
Testifying before another body, one woman described forced sexual
activity during the screening of pornographic films:
. . . comments like "That's how real men do it,"
instructing the handicapped men, teasing them that if
they watched enough of these movies they would be able
to perform normally. There were constant remarks made
about what normal male sexual experience was. Then the
disabled men were undressed by the able men and the
woman was forced to engage sexually with the disabled
men, there were two weapons in the room. The woman
refused and she was forced, held down by the physically
able men. Everyone watched and the movies kept going.
After this, the able-bodied men said they were going to
show the handicapped men how "real men" do it. They
forced the woman to enact simultaneously with the
movie. In the movie at this point a group of men were
urinating on a naked woman. All the men in the room
were able to perform this task, so they all started
urinating on the woman who was now naked. Then the
able-bodied men had sex with the woman while the
Chicago Hearing, Vol. I, p. 314, 316.
778 Washington, D.C., Hearing, Vol. I, p. 125,
779
o c
disabled men watched.779
2. Forced Sexual Performance
During the course of the hearings the Commission received
reports from individuals who described situations in which they
were forced to engage in certain sexual acts. These acts are
distinct from and in addition to those acts described as rape
above. As with the acts of rape which were described to the
Commission, acts of forced sexual performance included those done
in the course of making pornographic material and those relating
to the use of existing pornography. Examples of the first of
these are abundant:
A mother and father in South Oklahoma City forced their
four daughters, ages ten to seventeen, to engage in
family sex while pornographic pictures were being
filmed. This mother also drove the girls to dates with
men where she would watch while the girls had sex, then
she would collect fees of thirty to fifty dollars.
A woman who had been forced into prostitution and participating
in the filming of pornography testified:
He had video equipment in his home long before it was
mass produced. Every time my pimp sent me to him he
would take pornographic pictures of me and a second
woman. He also made video tapes of the sex that took
place under his direction. This continued on the
average of once a week for about a year.
779 Minneapolis City Council, Session II, p. 72 (Dec.
1983).
780 Letter from Oklahomans Against Pornography to the
Attorney General's Commission on Pornography.
780
There was an apartment that I was sent to often. There
were usually two to three men there. After I had sex
with them, they would take pictures of me in various
pornographic poses. When I was a young girl I didn't
have the vocabulary to call them pornographers. I used
to refer to them as "the photographers."
On another occasion another young girl and myself were
taken to an apartment in to meet some men. We were
told that they were gangsters and that we should be
nice to them. When we arrived we were taken into a
room that had a large bed at its center surrounded by
lighting and film equipment. We were told to act out a
"lesbian scene." After about fifteen minutes we were
told to get dressed, that they couldn't use us. We
were returned to [our city] unpaid. Again, it was only
in retrospect as an adult that I realized I had been
used in a commercial pornographic film loop.781
Another woman wrote:
My father was my pimp in pornography. There were three
occasions, from ages nine to sixteen, when he forced me
to be a pornography model. This was in the 1950s and
1960s .... I don't know if the pictures and films
are still being distributed.782
A sixteen-year-old girl who had been molested by two family
friends from age seven to age twelve testified:
Viewing the pictures in the magazines seemed to click
something for him, for he then wanted his own personal
record of all that he had taught me.
He whipped out his Polaroid camera, which was in his
briefcase, and then he proceeded to take pictures of me
in these various positions, which included using thevibrator.783
781 Washington, D.C., Hearing, Vol. I, p. 180.
789 Brief of Women Against Pornography submitted to the
Attorney General's Commission on Pornography.
783 Miami Hearing, Vol II, p. 20-21.
781
I 1
Another woman described her discomfort in trying to pose a
demanded of her:
So I told him that I would try. The first few attempts
I failed, he was very disappointed. I failed under the
weight and under the heat of the plaster. He wanted me
to be in poses where I had to hold my hands up over my
head and they would be numb and they would fall. He
eventually tied my hands over my head. Finally he
succeeded, he ended up getting a plastic cast of my
body.
... He told me to take off my clothes and to pose in
various positions, either draped over the corroded,
rusty seats or in positions where I acted as if I was
running towards the door. And then he asked me to put
my body in contorted different positions, draped down
the stairs of the bus, and they were quite jagged, and
at that moment I realized that we were depicting a
murder. I became very terrified and scared and I was
really cold. I told him I didn't want to do this and
that I wanted to go home and that I was really scared.
While we were doing this, I would like to backtrack for
a minute, I wasn't achieving the right facial
expressions for the pictures so he started telling me
stories that depicted pursuits during rape so that I
would have the right expressions on my face like the
women in the magazines. I remember being very distant
from him and just wanting to get home. I remember
being very scared.78*
In these instances in which forced sexual performances were said
to be modeled after pornography, the individuals stated that they
were shown various pornographic materials and forced to recreate
the activities depicted. In some cases the imitation required of
victims was highly specific, as in the following example:
My father had an easel that he put by the bed. He'd
pin a picture on the easel and like a teacher he would
tell me this is what you're going to learn today. He
784 Minneapolis, Session II, p. 59-60 (Dec. 1983).
782
would then act out the picture on me.795
Another woman wrote:
I was sexually abused by my foster father from the time
I was seven until I was thirteen. He had stacks and
stacks of Playboys. He would take me to his bedroom or
his workshop, show me the pictures, and say, "This is
what big girls do. If you want to be a big girl, you
have to do this, but you can never tell anybody." Then
I would have to pose like the women in the pictures. I
also remember being shown a Playboy cartoon of a man
having sex with a child.786
A mother described her discovery of her daughter's abuse:
My daughter explained that the adults would come into
the room and announce that tit] was time for a "movie"
or a "bath" and then begin to usher the children . . .
into the den or the bathroom. When my daughter refused
to undress one of the mothers removed my daughters
clothing with hand movement over her entire body. My
daughter was seldom allowed to go home until she had at
least one bath with one or more children. Upon hearing
this I called the mother and gave her emphatic
instructions that my daughter was not to take "baths"
at her house. One such occasion after that my daughter
came home with obvious dried tears on her face. I
feared something dreadful had happened.787
They confirmed my fear and discovered even more horror.
She had been not only sexually abused but over one
thousand pornographic photographs were seized in a
search of their apartment spanning a period of over two
years. My daughter was only twelve years old at the
time of the phone call. She had broken up over the
events of the previous week.788
785
786
Chicago Hearing, Vol. II, p. 95.
/ b b «
"Emitted ho n°nvm°us letter to Women Against Pornography(*"". 1984) Attorney General's Commission on Pornnoranh
787
788
- — •• —..,%-!. nij a j. i> a i. r- VJL nuy L apiiy ,the Attorney General's Commission on Pornography
Houston Hearing, Vol. II, p. 178D3.
Houston Hearing, Vol. II, Anonymous, p. 178Q2.
783
o
One woman who was asked if she had ever been upset by anyo
trying to get her to do what they'd seen in pornographic
pictures, movies or books said:
This guy had seen a movie where a woman was being made
love to by dogs. He suggested that some of his friends
had a dog and we should have a party and set the dog
loose on the women. He wanted me to put a muzzle on
the dog and put some sort of stuff on my vagina so that
the dog would lick there.789
A woman who had been forced into prostitution and participation
in the production of pornography testified:
They knew a child's face when they looked into it. It
was clear that I was not acting of my own free will. I
was always covered with welts and bruises. They found
this very distasteful and admonished me about it. it
was even clearer that I was sexually inexperienced. I
literally didn't know what to do. So they showed me
pornography to teach me about sex and then they would
ignore my tears as they positioned my body like the
women in the pictures and used me.
My pimp also made me work "stag" parties. These
parties were attended by an average of ten to twenty
men. These parties took place in catering halls, bars
and union halls. I was also forced to work
conventions. These were weekend affairs held at major
hotels in New York attended by hundreds of professional
men. The series of events was the same. Pornographic
films followed by myself and other women having sex
with the men. The films that were shown most often set
the tone for the kinds of acts we were expected to
perform.
My last pimp was a pornographer and the most brutal of
all. He owned, on the average, three women and girls
at any given time. There was always pornography in our
apartment. Every night he would set up the projector
and run a series of stag films. When he was
sufficiently aroused he would choose one of us for sex.
The sex that happened always duplicated the
pornography. He used it to teach us how to service
789 Minneapolis City Council, Session I, p. 67 (Dec.
(Testimony based on Diana Russell's research).
784
him. In retrospect the only sex I knew until I was
well into my twenties was coercive sex taught to me
through pictures of women coerced into pornographic
performances.
A gixteen-year-old girl testified:
At about age eleven and a half he started using the
magazine again. In these magazines there were pictures
of one woman masturbating' another woman, two men and a
woman having sex, oral, anal and vaginal sex. It was
with these magazines that we started having me act out
positions with him.791
The mother of two girls testified:
[My daughters] also had an experience with an eleven
year old boy neighbor boy .... Porno pictures that
[he] had were shown to the girls and to the other
children on the block. Later that day, [he] invited
(my daughters] into his house to play video games, but
then tried to imitate the sex acts in the photos with
[my] eleven year old [daughter] as his partner; [my
other daughter] witnessed the incident.792
A woman testified that her husband demanded that she enact
behaviors he had found appealing in pornography:
. . . I was coerced into acting out certain sexual
fantasies which he had, many times from reading
pornographic literature or viewing certain pornographic
movies.'93
Another woman described her father's use of pornography to
• ncourage and legitimize incest:
He encouraged me by showing me pornographic magazines
790
791
792
793
Washington, D.C., Hearing, Vol. I, p. 179-82.
Miami Hearing, Vol. II, p. 21.
Washington, D.C., Hearing, Vol. I, p. 128.
Chicago Hearing, Vol. I, p. 23-26.
785
o
which they kept in the bathroom and told me it was not
wrong because they were doing it in the magazines and
that made it o.k. He told me all fathers do it to
their daughters and said even pastors do it to their
daughters. The magazines were to help me learn more
about sex.794
Another woman described the same phenomenon:
The incest started at the age of eight. I did not
understand any of it and did not feel that it was
right. My dad would try to convince me that it was ok.
He would find magazines with articles and/or pictures
that would show fathers and daughters and/or mothers,
brothers and sisters having sexual intercourse.
(Mostly fathers and daughters.) He would say that if it
was published in magazines that it had to be all right
because magazines could not publish lies.
He would show me these magazines and tell me to look at
them or read them and I would turn my head and say no.
He would leave them with me and tell me to look later.
I was afraid not to look or read them because I did not
know what he would do. He would ask me later if I had
read them and what they said or if I looked real close
at the pictures. He would say, "See it's okay to do
because it's published in magazines."
3. Battery, Torture
Witnesses who appeared before the Commission and those who
submitted statements reported acts of battery and episodes of
torture associated with the production or use of pornography.
Individuals described acts of battery or torture inflicted upon
them during the course of producing pornographic materials, for
794 Anonymous letter to the Attorney General's Commission
on Pornography.
795 Letter to the Attorney General's Commission on
Pornography.
786
oie a woman who reported having been sexually abused since
infancy said:
That night that I was filmed for a pornographic movie,
my stepfather tortured me both physically and sexually
because I did not perform adequately enough to be
convincing.796
young man who had been the victim of a "sex ring" testified:
I became involved in bondage. I was shown pornography
and was bound in various ways and photographed.797
Linda Marchiano testified:
When I decided to head back north and informed Mr.
Traynor of my intention, that was when I met the real
Mr. Traynor and my two and a half years of imprisonment
began. He began a complete turnaround and beat me up
physically and began the mental abuse, from that day
forward my hell began.
During the filming of Deep Throat, actually after the
first day, I suffered a brutal beating in my room for
smiling on the set. It was a hotel room and the whole
crew was in one room, there was at least twenty people
partying, music going, laughing, and having a good
time. Mr Traynor started to bounce me off the walls.
I figured out of twenty people, there might be one
human being that would do something to help me and I
was screaming for help, I was being beaten, I was being
kicked around and again bounced off of walls. And all
of a sudden the room next door became very quiet.
Nobody, not one person, came to help me.79"
One witness before the Commission described how women and
young girls were tortured and suffered permanent physical
injuries to answer publisher demands for photographs depicting
796
797
798
Washington, D.C., Hearing, Vol II, p. 262.
Washington, D.C., Vol II, p. 49.
c-- . Public Hearings before Minneapolis City Council,be3svon I, p. 47, 49 (Dec> 1983)
787
err
sado-masochistic abuse. When the torturer/photographer inquired
of the publisher as to the types of depictions that would sell,
the torturer/photographer was instructed to get similar existing
publications and use the depictions therein for instruction. The
torturer/photographer followed the publisher's instructions
tortured women and girls accordingly, and then sold the
photographs to the publisher. The photographs were included in
magazines sold nationally in pornographic outlets.'"
The Commission also had received several accounts from
individuals who described the use of pornography in the course of
physical abuse, and who attributed the type and forms of abuse to
specific pornographic materials. For example, one woman who
reported having been sexually abused by her father from the age
of three testified that he would:
. . . hang me upside down in a closet and push objects
like screwdrivers or table knives inside me. Sometimes
he would heat them first. All the while he would have
me perform oral sex on him. He would look at his porno
pictures almost every day, using them to get ideas of
what to do to me or my siblings.
Testifying before another body, another woman said:
He would read from the pornography like a textbook,
like a journal. In fact, when he asked me to be bound,
when he finally convinced me to do it, he read in the
magazine how to tie the knots and how to bind me in a
way that I couldn't get out.
799 Los Angeles Hearing, Vol. II, p. 65, 77. One such
publication was purchased in Washington, D.C.
800 Chicago Hearing, Vol. II, p. 95.
801 Minneapolis City Council Hearings Session II, P- 68
(Dec. 1983).
78S
former prostitute testified before another body:
The man returned with two other men. They burned her
with cigarettes and attached nipple clips to her
breasts. They had many S and M magazines with them and
showed her many pictures of women appearing to consent,
enjoy, and encourage this abuse. She was held for
twelve hours, continuously raped and beaten,,,^ She was
paid fifty dollars, or about $2.33 per hour.8"02
Another woman wrote!
. . . [s]olid charges . . . could be brought forth.
Amongst these charges would be sexual deviance due to
repeated inflictions of sadomasochistic acts. I was
also told I would be entitled to an annulment as the
marriage remained unconsummated throughout.
. . . While doing household chores, I found very
pornographic materials which illustrated sadist
techniques and answered my questions as to where my
husband got these bizarre ideas.803
A former prostitute testified:
He stripped me, tied me up, spread-eagled on the bed so
that I could not move and then began to caress me very
gently. Then, when he thought that I was relaxed, he
squeezed my nipple really hard. I did not react. He
held up a porn magazine with a picture of a beaten
woman and said, "I want you to look like that. I want
you to hurt." He then began beating me, and when I
didn't cry fast enough, he lit a cigarette and held it
right above my breast for a long time before he burnedme.304
Another woman testified before another body:
802 Public Hearings before Minneapolis City Council,Session II, p. 73 (Dec. 1983).
fl 0 "5
Letter to the Attorney General's Commission onPornography.
fl fl A
Public Hearings before Minneapolis City Council,Session II, p. 77 (Dec. 1983).
789
(Vf
During the time that I was held captive by that man, i
was physically and psychologically abused by him. \
was whipped with belts and electrical cords. I was
beat with pieces of wood. I was usually forced to pull
my pants down before I was to be beaten. I was touched
and grabbed where I did not want him to touch me. j
was also locked into dark closets and the basement for
many hours at a time and I was often not allowed to
speak or cry.
The things that this man did to me were also done to
the children of the woman, except that they suffered
from even worse abuse. I believe that part of the
psychological abuse I suffered from was from the
pornographic materials that the man used in his
terrorization of us. I knew that if he wanted to, he
could do more of the things that were being done in
those magazines to me. When he looked at the
magazines, he could make hateful obscene, violent
remarks about women in general and about me. I was
told that because I am female I am here to be used and
abused by him and that because he is male he is the
master and I am his slave.805
A women's shelter wrote to the Commission:
One woman known to us related that her spouse always
had a number of pornographic magazines around the
house. The final episode that resulted in ending their
marriage was his acting out a scene from one of the
magazines. She was forcibly stripped, bound and
gagged. And with help from her husband, she was raped
by a German shepherd. His second wife became known to
us when she sought out support because of the magazines
and bondage equipment she discovered in their home.
Penthouse and Hustler were always a part of the
literature in thethird woman's home. Occasionally,
her spouse would add Cheri, Oui, Swedish Erotica to the
collection. His favorite form oTabuse was 5"bndage.
He enjoyed playing what he called a "game" of whipping
and slavery. She knows that what he did to her was
directly related to articles about bondage and sex
[slaves] which he read. He wanted to involve a second
805 Public Hearings before Minneapolis City Coun
Session II, p. 15-16 (Dec. 1983).
790
1
woman, her friend, in the scenarios. 806
A mother of two girls testified:
[My husband] had a large collection of bizarre SSM and
bondage pornography that he kept in the nightstand
drawer in our bedroom. On one occasion [he] tied me to
our bed and sodomized me. This occurred after I
refused to agree to be bound and tied as the models
appeared in some of [his] pornographic magazines.
Also, the girls told me that [he] sometimes played a
game with them in which their feet were tied up tightly
with a rope. The molestation included "bad touching"
and exhibitionism by [him] , but did not involve actual
penetration. 807
In testifying before another body, one man said
I understand pornography to be a force in creating
violence in the gay community. I was battered by my
ex-lover who used pornography. The pornography,
straight and gay, I had been exposed to, helped
convince me that I had to accept his violence, and
helped keep me in that destructive relationship.
Then one time, he branded me. I still have a scar on
my butt. He put a little wax initial thing on a hot
plate and then stuck it on my ass when I wasQ nounaware. ouo
Women who were asked in a research project if they had ever
b«en upset by anyone trying to get them to do what they'd seen in
pornographic pictures, movies or books described experiences
•Irailar to those reported by Commission witnesses:
Miss F: He'd read something in a pornographic book, and
a nr
.h Letter from Donna Dunn's Women's Shelter, Rochester, to
• Attorney General's Commission on Pornography.
Washington, D.C., Hearing, Vol. I, p. 126-27.
s«««ion n P"blc£ Hearings before Minneapolis City Council,' " * ' r \ DG c • 1 9 8 3 ) •
791
then he wanted to live it out. It was too violent for me
to do something like that. It was basically getting dresse<j
up and spanking. Him spanking me. 1 refused to do it.
Miss I: It was S6M stuff. I was asked if i would
participate in being beaten up. It was a proposition, it
never happened. I didn't like the idea of it.
Hiss P: My boyfriend and I saw a movie in which there was
masochism. After that he wanted to gag me and tie me up.
He was stoned, I was not. I was really shocked at his
behavior. I was nervous and uptight. He literally tried to
force me, after gagging me first. He snuck up behind me
with a scarf. He was hurting me with it and I started
getting upset. Then I realized it wasn't a joke. fje
grabbed me and shook me by my shoulders and brought out some
ropes, and told me to relax, and that I would enjoy it.
Then he started putting me down about my feelings about sex
and my inhibitedness. I started crying and struggling with
him, got loose, and kicked him in the testicles, which
forced him down on the couch. I ran out of the house. Next
day he called and apologized, but that was the end of
him.809
A woman whose father had sexually abused her from age three
testified:
I have had my hands ties, my feet ties, my mouth taped to
teach me big girls don't cry. He would tell me I was very
fortunate to have a father that would teach me the facts o£
life. Many of the pictures he had were of women in bondage,
with their hands ties, feet tied and their mouth taped.810
In testimony before another body, a woman said:
I was hit and punched because I refused to allow my
partner to put his fist in my vagina in the same
fashion as in one of his pornography magazines.811
Another woman, testifying before the Commission, reported:
n
809 public Hearings before Minneapolis City Council.
Session I, p. 65, 66 (Dec. 1983) (Testimony based on Dian
Russell's research).
810 Chicago Hearing, Vol. II, p. 95-96.
8H Testimony before Minneapolis City Council on June ^
1984, submitted to the Attorney General's Commissi
Pornography.
792
a trick first showed me how to do bondage and
d's"cipline acts. I had numerous customers who would
have pornographic material with them. I was asked to
have my pubic hairs because it reminded them of a
child or engage in specific sex acts they had seen in a
magazine. Having me urinate on them, commonly referred
to as golden showers, was a popular request.
Again my customers, who mostly professional types,
would bring many examples in magazines or books of the
types of bondage they wanted or of other acts they
thought would satisfy their sexual desires, like me
acting like their mother, enemas, spanking or cross
dressing (men dressing in women's undergarments or
clothing). I would also get couples (a man & woman)
who were into bondage and discipline, with me as the
instructor s ultra dominatrix. My customers would want
me to dress like women in the magazines or to bind them
in some specific way. Urinating on my customer was
also not uncommon.812
4. Murder
In addition to the physical harms already mentioned, some
evidence was received alleging a connection between murder and
pornographic materials. Cases were reported to the Commission in
which a murder may have been patterned after a depiction found in
« pornographic magazine or film. For example, the New York Times
reported:
The December 1984 issue of Penthouse carried this
eroticized torture into the 'men's entertainment1 forum
with a series of photographs of Asian women bound with
heavy rope, hung from trees, and sectioned into parts.
It is now known whether this pictorial incited a crime
that occurred two months later wherein an eight year
old Chinese girl living in Chapel Hill, North Carolina,was kidnapped, raped, murdered and left hanging from
812 Washington, D.C., Hearing, Vol. II, p. 312A-1.
793
T
a tree limb.813
Witnesses also described the influence they perceived
pornography had in their criminal activities or the crimes others
had committed.
The day came when I invited a small neighborhood boy
into my apartment, molested him and then killed him in
fear of being caught. Over the next few years I
kidnapped, sexually abused and murdered four other
boys.
Pornography wasn't the only negative influence in my
life, but its effect on me was devastating. I lost all
sense of decency and respect for humanity and life.814
5. Imprisonment
The Commission received testimony and other evidence from
individuals who reported that they had been kidnapped or held
captive during the production of pornographic materials. For
example, the woman who appeared in Deep Throat testified:
My name today is Linda Marchiano. Linda Lovelace was
the name I bore during a two and a half year period of
imprisonment. For those of you who don't know the
name, Linda Lovelace was the victim of this so-called
victimless crime. Used and abused by Mr. Traynor, her
captor, she was forced through physical, mental, and
sexual abuse and often at gunpoint and threats of her
life to be involved with pornography.
I literally became a prisoner. I was not allowed out
of his sight, not even to use the bathroom. Why, you
813 N.Y. Times, Feb. 4, 1985.
814 Anonymous letter to the Attorney General's Commission
on Pornography.
794
O
may ask, because there was a window in the bathroom. 815
Well, at night what he would do is put his body over my
body so that if I did try to get up he would wake up.
And he was a very light sleeper. If I did attempt to
move or roll over in my sleep he would awaken. 816
women's shelter wrote:
In another case, a woman was imprisoned in the
house by her husband. He had a video cassette
recorder. He would bring home pornographic movies, tie
her to a chair and force her to act out what they were
seeing on the screen. She was severely injured and
came to our Shelter.817
d. Sexually Transmitted Diseases
Witnesses reported various injuries and diseases associated
with the production of pornography.8*8 The diseases which were
reported included a variety of sexually transmitted diseases. For
example, a citizen's group wrote to the Commission:
How does a three and a half year old girl learn to cope
with gonorrhea of the throat and a painful vagina,
stretched many times its normal size because her father
used her for sexual gratification. This father was
815 Public Hearings before Minneapolis City Council,Session II, p. 45, 46, 47 (Dec. 1983).
816
MlnneaP°lis Council,
817 Letter from Harriet Tubman Women's Shetler to theAttorney General's Commission on Pornography.
pip
See, Chapter 2 in this Part for a further discussion of
ies and diseases performers in the pornography industry
795
Vol.0-86-26
another pornography addict.819
A former Playboy bunny testified:
bunny I knew had her reproductive organs
i to venereal disease leff nnt-reat-ert 820
I heard a
removed due to venereal disease left untreated.*
°neA man who had participated in the production of more than
hundred pornographic films testified:
I decided to get out of the business because I was kind
of scared about all the different diseases and stuff
going on. I myself was pretty lucky to only have got
gonorrhea a couple of times. I never caught herpes or
nothing like that. But it is scary. The diseases are
really rampant out there, and especially with the AIDS
scare. You have one person that has AIDS in the
industry and within six months you can really infect
about half the industry because there's so much
contact; you have so many different jobs, different
people, each month.821
A woman testified:
There seemed to be a lot of venereal diseases and other
contact diseases going around and I was afraid of
catching something.822
7. Masochistic Self Harm
One person described her son's use of pornography and his
819 Letter from Oklahomans Against Pornography to the
Attorney General's Commission on Pornography.
820 Chicago Hearing, Vol. I, p. 317.
821 Los Angeles Hearing, Vol. I, p. 82.
822 Washington, D.C., Hearing, Vol. I, p. 82.
796
resulting death.823
«y son, Troy Daniel Dunaway, was murdered on August 6,
1981 by the greed and avarice of the publishers of
Hustler Magazine. My son read the article 'Orgasm of
geath" , set up the sexual experiment depicted therein,
followed the explicit instructions of the article, and
ended up dead. He would still be alive today were he
not enticed and incited into this action .by Hustler
Magazine's 'How To Do' August 1981 article; an article
which was found at his feet and which directly caused
nis death.824
woman testified about her husband, who was a medical
professional and an avid consumer of pornography:
. . extremely excited about was the story of a man
who had fish in an aquarium, stuck his organ in the
aquarium and they nibbled on it until he orgasmed.
John was so excited that he would go out and buy a fish
tank. At that time John was physically abusing me by
pulling my hair, slapping me, kicking me, stomping on
my feet.825
8. Prostitution
Witnesses who testified before the Commission and
Individuals who submitted statements reported several connections
between pornography and prostitution. One such connection was
the use of pornography as instructional manuals for prostitutes.
823 Commercial "erotica" was found at the death scene of
forty-four out of 150 accidental autoerotic deaths in the largest
study of this subject. R.R. Mazelwood, P.E. Dietz & A.W.Bur9ess, Autoerotic Fatalities 130-131 (1983).
824 Houston Hearing, Vol. II, p. 178H1; Herceg et. al. v.
jmier Magazine. Inc.. C.A. no.H-82-198, S.D. Texas (1985) (casenow on appeal). "
825 Washington, D.C., Hearing, Vol. I, p. 81.
797
For example, a former prostitute testified:
One of the very first commonalities we discovered as a
group, we were all introduced to prostitution through
pornography; there were no exceptions in our group, and
we were all under eighteen.
Pornography was our textbook, we learned' the tricks of
the trade by men exposing us to pornography and us
trying to mimic what we saw. I could not stress enough
what a huge influence we feel this was.
Another connection was the use of pornographic films h
pimps to blackmail the participants:
I was the main woman of a pimp who filmed sexual acts
almost every night in our home. The dope man, who
supplied us with cocaine for free in exchange for these
arranged orgies, was a really freaky man who would do
anything. They arranged to have women, who I assumed
were forced to be there, have sex with dogs and filmed
those acts. There were stacks of films all over the
house, which my pimp used to blackmail people with.
Yet another connection was the use of magazines to stimulate th«
clientele:
When I worked at massage studios, the owners had
subscriptions to Playboy, Penthouse, Penthouse Forum
and the like. These magazines were arrangedTnthe
waiting area of most of the massage places which I
worked in. If a girl was not inside with a trick, she
was expected to sit out front with the men who were
waiting or who were undecided and to look at the
magazines with them in order to get them titillated.
They used the soft porn to help them work up the
courage to try the acts described in the magazine with
the prostitutes at the massage studio.
826 public Hearings before Minneapolis City Counc
Session II, p. 70 (Dec. 1983).
827 id,, at 79.
828 td. at 77.
798
psychological Harm
B*
1 Suicidal Thoughts and Behavior829
Xhe Commission received testimony from many individuals who
norted suicidal thoughts and behavior. These individuals
described experiences related to pornographic materials that led
them to feel worthless and hopeless, which in turn led to
thoughts of suicide or attempts. For example, the mother of an
adolescent girl who said she had been molested through the use of
pornography testified:
This is not accomplished overnight, nor is it ever
undone. She is now sixteen. She tried to commit
suicide at the age of thirteen and a half as her only
means of escape. She spent five months in an
adolescent psychiatric unit and nineteen months at a
residential care facility for twenty-four hour round-
the-clock help with her problems. The brunt of the
expenses for her care were our responsibility, reaching
close to $100,000.830
Another witness testified:
"By age fourteen, I had attempted suicide three times
and had been in three different mental hospitals.
Never had I revealed to anyone my childhood nightmare.
Finally, in an effort to revive our sex life, we began
to use pornography. This had a devastating effect on
our lives. I began to become very depressed and
suicidal again. Though we did become more sexually
active, the quality of our relationship deteriorated
almost to the point of divorce. Pornography again had
char, i In some instances the symptoms described may be
,t 205-5 tio of mood disorders. See, DSH-III, supra note 762205-224.
830 Miami Hearing, Vol II, p. 33-34.
799
touched my life in a very destructive way.831
A former Playboy bunny testified:
I was extremely suicidal and sought psychiatric help
for the eight years I lived in a sexually promiscuous
fashion.
In Los Angeles, my roommate, who was a bunny, had
slashed her wrists because she was so suicidal.
Although I received small parts in Godfather li and
Funny Lady, had sex with movie stars andproducers, I
felt worthless and empty. Out of rav despair i
attempted suicide on numerous occasions. "
Other individuals reported suicidal thoughts and behaviors
as a result of being forced to participate in the production or
use of pornography. For example, a teenage boy who had run away
from home reported having been sexually abused by his uncle. H«
stated he was shown pornographic materials in the course of
sexual abuse and he was used in the production of pornographic
films:
He told me they were for him and his friends to view .
. . It was a difficult situation for me. And
afterwards, I attempted suicide several times.833
A woman reported experiences:
which I found very humiliating and very
destructive to my self-esteem and my feeling of self-
worth as a person, to prevent these I agreed with him
831 Houston Hearing, Vol. II, p. 187R2.
832 Chicago Hearing, Vol. I, p. 313-14.
833 Washington, D.C., Hearing, Vol. I, p. 48.
800
to act out in privacy a lot of those scenarios that he
ead to me. A lot of them depicting bondage and
different sexual acts that I found very humiliating.
About this time when things were getting really
terrible and I was feeling very suicidal and very
worthless as a person, at that time any dreams that I
had of a career in medicine were just totally washed
away. I could not think of myself any more as a human
being.834
A woman who testified that her former husband of eleven
rs was an avid consumer of pornography and had attempted to
force her to view pornographic materials testified that she:
. . was very suicidal throughout my marriage;
attempted several times.835
2. Fear and Anxiety Caused by Seeing Pornography
The Commission heard testimony from several witnesses who
described fear and anxiety associated with being shown
pornography. The anxieties which have been described may be
divided into two primary categories: anxiety attributable to
•emories of prior abuse which are relived through the images
portrayed in the pornography being shown; and an overall
•nbarrassment or discomfort in being made to view pornographic
»«terials.
One witness reported being forced by her father to view
Pornographic materials during the course of an incestuous
R 1 A
Session TT Publlc Hearings before Minneapolis City Council,ess*°n II, p. 64 (Dec. 1983).
fl 1c
Houston Hearing, Vol. I, p. 61.
801
o
relationship:
. . . and of course he had booked a double room. He
had all kinds of things in his briefcase, and he pulled
out a magazine or book and told me to read it. He sat
on the bed and watched me and his facial expression
frightened me. I did not want to read it. I did not
want to look at those pictures .... I was
emotionally tortured and I didn't know what to do. j
did not like my body or my father's body and having
to look at those pornographic pictures forced me to
visually memorize painful incidents with my
father.836
Another witness described similar feelings of anxiety and
fear of being shown pornography during the course of sexual abuse
in her childhood, beginning when she was ten:
. . . I have no memory of there being any pornography
in the bungalow where we lived. All nine kids slept in
one room. My stepfather had his own room. My mother
slept on the couch in the living room. The pornography
was at the store. The pornography was also in the
garage where Carl had some kind of office. He was
involved in some kind of activity that needed to be
hidden. I have no idea what that was. I remember the
pictures on the wall and I remember boxes of books
again. These were books I didn't want to look at.
Carl's apartment is the place where I remember he made
the pornography of me.837
As they would show me this pornography, I would look at the
pictures and then I would feel real scared . . . .838
Other women have described their feelings about pornography
and the pain it recreated from a previous abusive experience. One
woman appearing before the Minneapolis City Council reported that
836 Washington, D.C., Hearing, Vol. II, pp. 132-33.
837 Washington, D.C., Hearing, Vol. I, p 223.
838 Id. at 224.
802
cushe
because
rrently experiences anxiety upon viewing pornography
i j. reawakens the experience of sexual abuse she had
earlier suffered:
Two days later, having failed my attempts to keep those
images away from me, I was sexually abused in my
family. I don't know if the man that abused me uses
pornography but looking at the women in those pictures,
I saw myself at fourteen, at fifteen, at sixteen. I
felt the weight of that man's body, the pain, the
disgust .... I don't need studies and statistics to
tell me that there is a relationship between
pornography and real violence against women. My body
remembers.839
parents also reported children's lasting fears after abuse.
The mother of a girl who reportedly was molested and used in the
production of pornography in a California pre-school testified:
She has also talked about a lot of lights, big strong
lights, and she is also very fearful of having her
picture taken. My sister was visiting from overseas
and tr^ied to take her picture and she hid under the
bed.840
The second category of fears and anxiety were described
primarily by adult women who during the course of an intimate
relationship were forced to view pornography by a spouse or close
friend. These women described feelings of embarrassment,
<Jlsqust, and public humiliation:
My husband is very knowledgeable about the Marquis de
Sade. He was raised by prostitutes. One of his
stepfathers had what he called the largest pornography
839
M n in?"6110 Hearir>gs before Minneapolis City Council session' P- U2(Dec. 1983).
640 Miami Hearing, Vol I, p. 101.
803
collection he had ever seen. There was pornographic
art throughout his stepfather's home. One evening when
we went to visit his mother and his stepfather, the
evening's entertainment consisted of getting together
with the neighbors and their children and watching apornography film involving sex with children. I got
up, I left the room to throw up; and my husband came
over to tell me that I had embarrassed him.
Other witnesses described feelings of humiliation at bei
forced to view pornography and being subject to ridicule who
they demonstrated a reluctance to participate. For examples
We would meet together as a group at pornographic adult
theaters or live sex shows. Initially I started
arguing that the women on stage looked very devastated
like they were disgusted and hated it. I felt
devastated and disgusted watching it. I was told by
those men if I wasn't as smart as I was and if I would
be more sexually liberated and more sexy, that I would
get along a lot better in the world and they and a lot
of other men would like me more. About this time I
started feeling very terrified.842
The Commission heard testimony from several women whose
husbands requested they accompany them to view pornography. Thest
women reported feelings of embarrassment and humiliation as well
as a deterioration of the marital relationship:
I went with him once. I was disgusted with what I saw.
I was also very embarrassed to have been seen in the
theatre. He continued going by himself and probably
never missed a new showing.843
841 Houston Hearing, Vol. I, p. 62.
842 Public Hearings before Minneapolis City Coun
Session II, p. 62 (Dec. 12, 1983).
843 Chicago Hearing, Vol. I, p. 153-54.
cll-
804
Another woman testified:
would take me to the pornography stores here in
u uston with the intention of going to get a newspaper
" aoing to get a Better Homes and Gardens. Before I
?rew it, he would kind of lead me back into the second
art of the store. I think that only happened twice
because I would get so upset and traumatized ....
Yet another woman experienced fear and anxiety when she
ned to Dial-A-Porn messages that her son had been calling:
The chilling horror I felt in my kitchen after my firstencounter with Dial-A-Porn lingers with me today.
After my initial reaction of disbelief subsided, I was
overcome with grief. I cried uncontrollably for
myself, my son . . . .845
3. Feelings of Shame and Guilt846
The Commission heard testimony from many witnesses who
described feelings of worthlessness, guilt, and shame which they
•ttributed to experiences involving pornographic materials.
As an adolescent, I was sexually molested in my own
home by a family member who regularly used pornographic
materials. I have been threatened at knifepoint by a
stranger in an attempted rape. I have been physically
and verbally harassed on the street, in other public
places, and over the telephone at all hours of the
night. I have experienced and continue to experience
the humiliation, degradation, and shame that these acts
were meant to instill in me.
This connection became clear to me when I saw a
844
845
846
Houston Hearing, Vol. I, p. 58.
Los Angeles Hearing, Vol. I, p. 265.
5tre«. m Tnese symptoms may be reflective of Post-traumatic8 Disorder, see, DSM-III, supra note 762, at 238.
80S
o
documentary about pornography called Not a Love Story
I realized that I was any one of the women in tlie tiinj)
at least In the eyes of those men who have abused me.'
I saw myself through the abusers' eyes and I felt dirty
and disgusting, like a piece of meat. It was the same
shame and humiliation as in the other experiences.8*'
The Commission also heard testimony from people who
experienced feelings of guilt and shame when shown pornography-
It was important to me to try and stop the feelings of
embarrassment because then I thought that they would
not be able to see my shame. Somehow I thought they
watched me, waited to see my reaction to the porno-
graphy and then they would continue holding it up i nfront of me to make me squirm. I felt humiliated and
hollow.848
Guilt and shame were also reported by witnesses as feelingj
associated with the production of pornography. For example, a
young man who was used in the production of pornography as an
adolescent testified:
A couple months later I went into the Straight program,
and I talked about it a couple of times, why I would do
it. Take her money and go down to buy cocaine with it.
I just felt it really disgusted me and I shamed
myself .849
A statement submitted to the Commission by the National
Conference of Judges discussed the feelings of guilt and sham
that victims experience because of the production and use o
847 Public Hearings before Minneapolis City Council-
Session III, p. 126 (Dec. 1983).
848 Washington, D.C., Hearing, Vol. I, p. 225.
849 Washington, D.C., Hearing, Vol. I, p. 170.
806
honiemade pornography.
collections of self-made pornography detailing
'ho their victims were and the acts they committed.
This is a particularly traumatic issue for many of the
victims that we treat. It is a source of extreme shame
and embarrassment for the victims that pictures of the
activity between them and the offender exist. We may
not have all those pictures, copies of the pictures may
have been sold or traded to other collectors, and we
may not have found the entire collection. These
collections are catalogued at the Bureau of Criminal
Apprehension and continue to exist long past the time
when the crime has been reported. . . .
In many of our incest families, the perpetrators use
pornography as tools or guides in order to initiate
their family members into sexual behavior. Manuals and
books that speak of father-daughter love, father-son
sex, or family love have been used to rationalize and
validate this kind of behavior.
Many of our child molesters, both juvenile and adults,
have utilized both adult and child pornography as a way
to initiate their victims into the sexual behavior as
well as a tool or guide for the sexual behavior of
child molesting. Many of our victims blame themselves
and feel a great deal of culpability because they
believed the original depiction from pornographv as
being normal behavior between adults and children.""
In a letter presented to the Minneapolis City Council, a
woman described her public embarrassment and shame at seeing what
seemed to be a photograph of herself:
It was a full length figure, naked except for high
heeled shoes and stockings, taking off a shirt. Never
in my life had I posed for any photograph, drawing or
painting remotely similar to this image. The people
giving me this laughed, thought it was funny, thought I
would find it funny and truly meant no harm—they are
all talented, intelligent, nice people, an indication
°£ the extent of the pornographic mind set we all
suffer under. I felt upset, ripped-off, diminished,
insulted, abused, hurt, furious and powerless. All of
850 National Conference of Judges, October 12, 1986.
807
which I concealed from my friends by smiling and
saying, "Where did you get this?" (For the moment i
thought they had it made up by the art department at
the studio.) "From a magazine" was the answer. Added
to the aforementioned reactions was horror! I thought,
"this has been published! It is publicly available for
anyone to see and assume I may have posed for it."
I curtailed my honest reaction because in a few minutes
we would all have to begin filming our show—which we
did. They, thinking it had been a fun joke, me in a
great deal of pain and distress.851
4. Fear of Exposure through Publication or Display of
Pornographic Materials.
Some witnesses feared the future dissemination of
pornography which had been made of them. For example, a woman
who had been forced to participate in the filming of pornography
testified:
But there still exists the pornography that was made of
me. I know the men who made it, I know where they are,
and there is nothing I can do about it. I live knowing
that at any time it could surface and could be used to
humiliate me .and my family. I know that it can be used
to ruin my professional life in the future. I know
because some of it was produced within months before my
eighteenth birthday that it is protected under currer^
law.852
Linda Marchiano, who appeared in the film Deep Throaj »»
Linda Lovelace, testified:
I have a son who will be ten in April. My daughter
851 Public Hearings before Minneapolis City Council-
Session III, p. 4(Dec. 1983).
852 Washington, D.C., Hearing, Vol. I, p. 189.
808
Lindsay will be six on the 4th of July. There are
times when my phone rings and it's just obscene phone
calls and people saying the typical kind of degradation
they say on the telephone. And it's hard because, how
do you say to these people, come on, you are hurting my
six- and my nine-year-old children. That hurts and it
does hurt that the film is still being shown.
I mean, we have a video store in our town, and we have
a VCR» and I will go into that store and get my tapes.
I will go to the next town to get them. I just don't
feel that store should have that film in the town that
I live, but there is nothing I can do about it.
I have no rights as a victim. The only right I have is
to be able to tell my story and hope that someone
listens.853
The young man who had been sexually abused by his uncle and
used in the production of pornography testified:
The sexual abuse that was afflicted on me lowered my
self-esteem and the films reminded me of that. I was
afraid that this would be shown to the world.854
A woman who reported that she was forced into prostitution
at age thirteen after running away from a sexually abusive home
testified that she was forced to participate in the production of
pornographic films and tapes:
It was clear to me that in the years I was in
prostitution that all of the women I met were
systematically coerced into prostitution and
pornography in the same way a prisoner of war is
systematically imprisoned, tortured and starved into
compliance by his captors. The difference is that
prisoners of war are not held responsible for coerced
statements and acts but when a girl or woman is coerced
in this very manner into prostitution and for use in
853
854
New York Hearing, Voli I, p. 54-55.
Washington, D.C., Hearing, Vol. I, p. 49.
809
pornography, she is held responsible.
This pimp made pornography of all of us. He also made
tape recordings of us having sex with him and
recordings of our screams and pleading when he gave us
brutal beatings. It was not unusual for him to
threaten us with death. He would later use these
recordings to humiliate us by playing them for his
friends in our presence, for his own sexual arousal,
and to terrorize us and other women he brought home.855
According to the submission on behalf of the National Judges
Conference, the continuing existence of pornography impedes
treatment of victims:
The therapeutic issue for the victim to complete
treatment is the need to put the crime in the past, an
impossibility when there is an existing pictorial
history.856
5. Amnesia and Denial and Repression of Abuse857
The Commission heard accounts from several witnesses who
were unable to recall portions of their lives or specific events.
These witnesses attributed their amnesia to trauma associated
with the production or use of pornography. The woman who had
been sexually abused and forced to participate in the production
and viewing of pornography from age ten testified:
I do not remember the exact beginning of my personal
855 Washington, D.C., Hearing, Vol. II, P- I83-
856 National Judges Conference, October 12, 1986.
857 These symptoms may be reflective of *?**'*• 238™*
Stress Disorder (PTSD). See, DSM-III, supra note Ib2. at
810
war.858
In 1984 is when I started to speak publicly against
pornography because it was during that year that I
learned and remembered that I was victimized as a
child. Prior to that time I had no memory of it.859
My upset has to do with not being able to remember
exactly the beginning, or for that matter, the lost
segments of time such as a year or two of my life.860
It is essential, if one is to survive years of physical
abuse, whether one is a child or an adult, to distort
one's reality and live in denial.861
Witnesses described various psychological mechanisms they
used to endure the sexual abuse or humiliation associated with
pornography:
Sometimes I would make believe I was in a coma and I'd
have to lay absolutely still, because people in comas
don't move. So I would set about my task by practicing
how not to move and how not to make a sound."*>2
and because of what my family life was like, I
learned to cope with being shown pornography.
The way I did that was I would behave as if I was
looking at the pictures. But I would not directly look
at them. I would make believe that I was blind, that I
could not see. In my mind I said to myself, I do not
see them, but then concentrated on not allowing ray body
to respond in any way that would be visible to them. I
repeated to myself over and over again, don't move any
part of your body. Somehow I believed if I denied the
feelings that I could forget the experience, which I
later translated to it never happened, and I had
o e p
Washington, D.C., Hearing, Vol. I, p. 220.
859 Id. at 219.
860 Id. at 220.
861
862
Id. at 231.
Id. at 230.
811
stayed that way for twenty years.863
A woman who said she had been sexually and emotionally
abused since childhood through the use of pornography and who
said she suffered from multiple personality testified:
In every episode with him are ones I realized that I
could not avoid his advances; I would put myself in a
trance-like state and pray for it all to be over with
as soon as possible.
. . Then, like an internal sore, the repressed
memories began erupting, baring all of my symptoms and
anxiety; I looked for the long-term help that I knew I
would need.865
. . . It has been extremely difficult for me to write
my testimony. I am only now, because of the request
that I testify today, beginning to remember the
pornography to which I was subjected. The memories
that I have relived completely have been of a physical
nature, the extreme traumas which were responsible for
my splitting. I feel that I have been so desensitized
that the memories of having been shown pornographic
pictures have seemed harmless and therefore, until now,
there has been no need to remember them.
. . . trauma of my relationship with my stepfather, and
the role pornography played. Each time I have reread
what I have written I am so reappalled, rehorrified and
retraumatized myself that I decided it more important
to just tell you that I knew pornographic magazines
played a large part in my stepfather's life. I do not
remember in detail the magazines he used, but I do know
that they were of a sado-masochistic nature.866
863 Id. at 224.
864 Washington, D.C., Hearing, Vol. II, p. 262.
865 Id. at 264.
866 Id. at 258-59.
812
6. Nightmares867
The mother of an adolescent girl who said she had been
sexually abused through the use of pornography testified that her
daughter had recurrent nightmares of the abuse:
He used this magazine to get her to do the same type of
thing to him and as a tool to instruct her as to how he
wanted her to pose for his nude photographs. To this
day, she has nightmares and is continually remembering
additional details of his assaults.8"8
7. Compulsive reenactment of sexual abuse and inability to feel
sexual pleasure outside of a context of dominance and
submission.869
Many witnesses described an inability to engage in healthy
sexual relationships, including reports of a seeming need for
abuse or unhealthy dominance. One woman whose husband was an
avid consumer of pornography testified:
This obsession and addiction did not enrich our sex
life. It robbed me of a loving relationship, and our
sex life turned to his masturbating with his
pornography.870
867
668
869
This symptom may be reflective of Post-traumatic Stress
Disorder. pSM-III, supra note 762, at 238.
Miami Hearings, Vol. II, p. 32.
muman These described symptoms may be characteristic of Post-
•uora n, i- Stress Disorder and Sexual Masochism. See, DSM-III,-HE£« note 762, at 238,274.
870 PV%.Chicago Hearing, Vol. I, p. 154.
813
Another witness testified:
My unhealthy concept of sex began when I was a child
between the ages of seven and nine. At that time I
was introduced to both pictorial and written
pornography. This was over fifty-five years ago. My
entire concept of what sex was all about came from
these materials.
A woman who had been forced to participate in the production
and viewing of pornography testified:
So at night in order to go to sleep I would act out
scenes in my head of being tortured and I had to
practice how to endure extreme pain. This is how I put
myself to sleep at nights as a child. As an adult,
instead of having to imagine these scenes, John acted
out his violent sadomasochistic fantasies on my
body.872
1 lived with [a man]. One day he told me he had
fantasies; fantasies of tying up a woman and using
whips. I told him I had the same fantasies. In fact I
have been having those fantasies since I was at least
twelve or thirteen years old. One of the ways I would
put myself to sleep at night as a child was I would run
skits through my head and the main character I would
act out was me. I was always being hurt.873
A former Playboy bunny testified:
My first association with Playboy began in childhood
when I found Playboy as well as other pornographic
magazines hidden around the house. I have since
discovered that a great deal of pornography ends up in
the hands of the children. This gave me a distorted
871 Houston Hearing, Vol. II, p. 178BB1.
872 Washington, D.C., Hearing, Vol. I, p. 230.
873 Id. at 229-30.
814
image of sexuality. Pornography portrays sex as
impersonal and insatiable.874
Inability to experience sexual pleasure and feelings of
sexual inadequacy.
A woman whose father had used pornography in his sexual
abuse of her from the age of three testified:
I was nothing but a pornographic tool for his use. I
cannot distinguish the difference between sex and
pornography. Because of my sexual abuse as a child I
am extremely against pornography, and because of
pornography I cannot enjoy sex.875
Other witnesses attributed feelings of sexual insecurity and
Inadequacy to experiences with pornography. For example, a woman
whose husband attempted to force her to view pornography
testified:
It was at that point, early in our relationship, that I
began to think that there was something wrong with me.
After all, if I loved this person, why didn't I share
his enthusiasm?87*"
Another woman who said her husband had sexually abused her
through the use of pornography testified:
I thought that I was either a frigid, uncaring wife,
but that's the idea; I have received messages from my
874
875
876
Chicago Hearing, Vol. I, p. 312.
Chicago Hearing, Vol. II, p. 98
Houston Hearing, Vol. I, p. 58-59.
815
husband.877
Another woman whose husband was an avid consumer of pornography
testified:
- it finally progressed to the desire for exchanging
oarties and sex orgies with many partners. He again
?old me there was something wrong with me because I
would not share him with others and I did not enjoy
sex.878
I can still remember when I told him I still loved him
and I would not divorce him if he would change. He
said I was sexually cold and selfish . . . .879
He was convinced there was something wrong with me
because I could no longer respond to him. In fact, I
felt very uncomfortable whenever he touched me. He
continually told me I was cold, even though he had
nothing to offer me. And I believe this was justifying
his involvement with pornography.
9. Feelings of Inferiority and Degradation
Some individuals described situations in which pornography
had been used to instill feelings of racial inferiority. For
example, one woman testified before another body:
In thinking about coming here today to speak, I
realized that my life would be in danger. As a woman
of color these dangers seem many and great, an absolute
loss of credibility and respect, wrath and disgust,
potential violence both verbal and physical, and
877 Chicago Hearing, Vol. I, p. 24.
878 Chicago Hearing, Vol. I, p. 154
879 ia_. at 157.
880 Id. at 154.
816
ridicule and harassment to name a few. I also realized
the dangers to my life if I did not come. These
dangers being complacency, letting go of my rage and
terror about pornography and its impact on my life,
accepting that the shame is mine, accepting that I am
the slut and the whore that deserved what was done to
me, believing that I am usable. I have no, illusions
about men not seeing me as a slut, they do.
Witnesses also described the pornography was used to degrade
them as women. For example, a woman whose husband used
pornography to abuse her testified:
As a result of this I developed, a very low self esteem.
I felt emotionally isolated because of the fear and
embarrassment.882
Another woman said:
He showed me art books and also books, magazines of
pornography. And as he was showing me these works, he
was doing critique of women's bodies, of their facial
expression, of parts of their bodies and of their
dress. Following this was a critique of my too
athletic, too muscular body. I was seventeen, it was
very devastating to me that my body was being torn
ap*rt in this way.883
Another woman testified:
Once he insisted that we go see an X-rated movie at a
theatre that showed pornography exclusively. I
remember feeling humiliated and frightened being the
only woman in the room while the men around me sat
masturbating openly. I kept my eyes glued to the top
881 Public Hearings before Minneapolis City Council,Session n, p. 47. (Dec> 1983).
882
883
Chicago Hearing, Vol. I, p. 25.
00:> Public Hearings before Minneapolis City Council Session"• P. 58 (Dec. 1983).
817
of the screen and prayed for it to be over soon. v;hen
we got home, he demanded sex.
A witness who appeared before the Minneapolis City Council
described feelings of inferiority and inadequacy:
When we arrived, he informed me that the other men at
the party were envious that he had a girl friend to
fuck. They wanted to fuck too after watching the
pornography. He informed me of this as he was taking
his coat off.
He then took off the rest of his clothes and had me
perform fellatio on him. I did not do this of my own
volition. He put his genitals in my face and he said,
"Take it all." Then he fucked me on the couch in the
living room, all this took about five minutes. And
when he was finished he dressed and went back to the
party. I felt ashamed and numb and I also felt very
used.
This encounter differed from others previous, it was
much quicker, it was somewhat rougher, and he was not
aware of me as a person. There was no foreplay. It is
my opinion that his viewing of the pornography served
as foreplay for him.
. . . this usual treatment did result in feelings of
low self-esteem, depression, confusion and a lot of
shame.885
The Commission received reports from individuals who
described feelings of exploitation through a partner's use of
pornography in an intimate relationship:
He was a lover. He'd go to porno movies, then he'd
come home and say, I saw this in a movie. Let's try
884 Washington, D.C., Hearing, Vol. I, p. 186.
885 Public Hearings before Minneapolis City Council-
Session II, p. 54-55 (Dec. 1983).
818
it- I felt really exploited, like I was being put in a' 886mold.
A young man who had been forced to engage in sexual acts for
the production of pornography testified that he and other boys
who had been exploited by a sex ring felt stigmatized by the
publicity surrounding the investigation and prosecution of the
offenders:
Those of us who were involved in the ring never talked
about it. We wanted to forget the experience. But
since my name became public I couldn't escape the
stigma of being involved in the- . . . sex scandal. I
started taking drugs heavily at age twelve to try to
cope with the situation.887
A woman who had herself been forced into prostitution and
the production of pornography testified:
My first husband was always withdrawn and had very
little self esteem. He was a sad young man. People
often felt sorry for him. He died before his twenty-
fifth birthday in a drunken car accident. Just a few
months ago I learned something that helped explain his
low self-esteem, his alcoholism, and his avid consump-
tion of pornography. I saw a picture of him as an
adolescent in a child pornography photograph in a Women
Against Pornography display.888
886
on I
887
888
Public Hearings before Minneapolis City Council,
i P. 65 (Dec. 1983).
Washington, D.C., Hearing, Vol. II, p. 48.
Washington, D.C., Hearing, Vol. I, p. 186-87.
819
10. Feelings of Frustration with the Legal System
The Commission heard testimony describing feelings oj
frustration and problems with the legal system. Some of the
witnesses described helplessness and frustration which they
thought could have been alleviated if they had been provide(j
guidance in seeking legal redress. For example, one woman wrote:
Please, please, use their experience and knowledge and
work with them. They have tried to get legislation
passed against the evils of pornography, for instance
the Minneapolis ordinance .... Lastly, there are
many women's organizations which have been working hard
against the evils of the ever-growing, and increasingly
more violent pornography which is making our society
even more sick.889
Linda Marchiano testified:
. . . [A]t a grand jury hearing in California after
they had watched a porno film, they asked me why I did
it. I said, "Because a gun was being pointed at me"
and they just said, "Oh, but no charges were ever
filed." I also called the Beverly Hills Police
Department on my final escape and I told them that Mr.
Traynor was walking around looking for me with an M-16.
When they first told me that they couldn't become
involved in domestic affairs, I accepted that and told
them that he was illegally possessing these weapons and
they simply told me to call back when he was in the
—nA~ 890
889 Letter to the Attorney General's Commission °n
Pornography.
890 Public Hearings before Minneapolis City Council-
Session I, p. 49 (Dec. 1983).
ft young man who had been forced to participate in the production
of pornography testified:
During the trial the only name to come out in the
newspaper was my name. I was eleven years old at the
time.891
A woman whose memories of abuse and forced participation in the
production of pornography had remained buried for many years
testified:
If we had the civil ordinance, passed, if I had access
to something like that, I would be able to pull through
the part of me that exists today. I have no means of
doing so. All of the statutes of limitations have run
out. Most of the time the women that have been abused,
statutes of limitations have run out before we even
remember we have been sexually abused.892
Another woman testified:
When I think that police, attorneys, legislators,
jurors, judges, school teachers and doctors of our
country can be desensitized to the suffering of a
child, it angers me. A child's justice has been
thwarted by the preconditioning of emotions. Victims,
of sexual violence don't get a fair trial. The true
emotions that should be felt have been replaced by
sexual fantasies. Victims are a curiosity. People
come to see us talk about our genitals as if we are
some form of entertainment. Our trial becomes an
extension of pornography. So much that even nude
891
892
Washington, D.C., Hearing, Vol. II, p. 47-48.
Washington, D.C., Hearing, Vol. I, p. 236-37.
820 821
photos of us are passed around. 893
Another woman who had been forced into prostitution and
production of pornography alleged that policemen and juven'i
facility workers had been among her abusers:
I don't think that consent was a possibility for a girl
who was delivered into the hands of organized crime
figures in New Jersey in the dead of night. Others
might wonder why I didn't turn to the police for help.
As a matter of fact I didn't have to walk all the way
to our local headquarters to speak to the police. They
were at our apartment every week for their payoff—me.
When I was sixteen I was sentenced to juvenile
detention by the courts. My incarceration was a
nightmare of sexual abuse at the hands of the male
employees of the facility. One young girl complained
to her parents about this on visiting day. That night,
after her parents left, she was made an example of. We
heard her cries and pleading all night. The official
story the next morning was that she had tried to
runaway, was caught, and was being held in isolation.
Soon after I was transferred to a facility upstate.894When I saw my opportunity I escaped.
ll.« Abuse of Alcohol and Other Drugs 895
Several of the witnesses reported the use of various drugs,
893 Houston Hearings, Vol. II, p. 291B3.
894 Washington, D.C., Hearing, Vol. I, p. 182.
895 These symptoms are characteristic of substance abuse
disorders. See, DSM-III, supra note 762, at 163.
822
alcohol, in connection with the manufacture of
=nhic materials. A former Playboy bunny testified:pornograP"11-
Drug abuse is deeply interwoven into the Playboy
lifestyle- I saw marijuana being used at Hetner' s
mansion on a regular basis, and cocaine as well. I
began taking moderate amounts of alcohol and tran-
quilizers thinking it would do no harm but the lustarows for more drugs and alcohol to desensitize the
psyche to the sexual perversion. 896
Some witnesses stated that drugs were used to induce an
Individual to participate in the production of pornography. For
example, a woman who had run away from sexual abuse at home at
age thirteen described the use of drugs and nude photographs to
initiate her into prostitution:
The third night I was away from home I was wandering
around the streets in a sort of daze when I was
befriended by a man about twenty years my senior.
I confided my problems to him and he offered to take me
in. During my stay with him he treated me relatively
well. He was kind to me, he fed me, and he said he
cared about me. He also kept me drugged, spoke
glowingly about prostitution and took nude photographsof me.897
A young woman who had suffered years of sexual and emotional
abuse testified:
896 Chicago Hearing, Vol. I, p. 315-16.
897 Washington, D.C., Hearing, Vol. I, p. 177.
823
I recall at times, from age thirteen until fifteen,
having been drugged and used in group demonstrations .
Money, grass and alcohol were used as inducements by
[two of the men in the sex ringj in their seduction
process. [One] would use the school bus to pick us up
and take us over to another's house in Revere. We were
paid five dollars plus we were given beer and grass.995
Another young man testified:
When I was young, my uncle sexually molested me. He
introduced me to alcohol and drugs. He took nude
photographs of me with body paint '. . . . 899
A woman who at eighteen became a nude model and posed for
pornographic films testified:
He had me sign a contract, so that scared me, because I
had to go to the office every day, you know, and he
would try to tell me that soon I would be there, I
would be famous. He got me involved with drugs and
made me service him, and if I didn't he would threaten
me. 900
The Commission also heard testimony from witnesses who used
the money received for participation in prostitution and
pornography to buy drugs. A young man who had been forced to
participate in the manufacture of pornography testified:
898 Washington, D.C., Hearing, Vol. II, p. 46, 48.
899 Washington, D.C., Hearing, Vol. I, p. 47.
900 Los Angeles Hearing, Vol. I, p. 93.
824
I spent all the money on drugs. While hustling, quite
often I would be picked up by a guy and taken to his
house where he would show me homosexual porn films to
get him and me turned on. Many times I would be photo-
graphed in pornographic poses for private collections.
Most often I was involved in prostitution with guys.9"'
Other witnesses said that they used alcohol and other drugs to
escape mentally from the abuse they were suffering. For example,
one woman testified:
I escaped prostitution quite by accident. I became a
heroin addict. I had been taking other drugs through-
out the time I was in prostitution and pornography.
They had been supplied and doled out by my pimp. I
accepted them because they numbed my physical and
emotional pain. yo'
901
902
Washington, D.C., Hearing, Vol. II, p. 46,
Washington, D.C., Hearing, Vol. I, p. 182.
48.
825
o
C. Social Harms
1. Loss of job or promotion/sexual harassment
Reports of sexual harassment similar to those described jn
the "Physical Injuries" section were also submitted as forms of
social injuries. The witnesses stated the harassment was
attributable to the presence of pornographic materials and served
to reduce their social status.
I was working as a telephone repairwoman for Southern
Bell in Florida. Porn was everywhere. They use it to
intimidate you, to keep women out of their territory.
They had pin-ups in the workrooms. Male workers would
draw pornographic pictures of women workers in the
cross-boxes and write comments about what we would do
in bed. One day I went to the supply room to get some
tools. The inside of the room was covered with
pornography. The guy who ran it shoved a photograph at
me of a woman's rear end with her anus exposed and
asked, "Isn't this you?' I was humiliated and
furious.903
When I got on the job, three of the trades had set up a
nice little shack and had lunch there. And it was a
real shock when I walked in because three of the four
walls in the room were completely decorated with
pictures out of various magazines, Hustler, Playboy,
Penthouse, Oui, all of those. Some of them I would
have considered regular pinups but some of them were
very, very explicit, showing women with their legs
spread wide and men and women performing sex acts and
women in bondage. It was very uncomfortable for me to
go down there and have dinner and lunch with about
twenty men and here is me facing all these pictures and
hearing all these men talking about all the wonderful
things they did on the weekend with all of these women.
I put up with it for about a week and it finally got to
903 Letter to Women Against Pornography submitted to
Attorney General's Commission on Pornography.
th«
826
the point where I could no longer tolerate sitting
there and realizing that all of these men were there I
felt totally naked in front of these men. 904
A working woman called the Pornography Resource Center
in May 1984 to report that her employer had called her
into his office, pushed her down on the floor, ripped
her^dress, taken a gun out of his pocket, and stuffed
it into her vagina. A pornographic picture on the
lunchroom wall showed a woman sucking a gun."905 Manv
of the complaints received by Amici are from women
workers in nontraditional jobs. The following is
typical: I've been a brakewoman for the railroad for
almost nine years .... i-ve seen pornographic
pictures of a woman with spread thighs being raped by a
huge dismembered penis with my name below 906
3. Financial Losses
The Commission heard reports from individuals who encounter
financial conseguences attributable to experiences with
pornography. Many of these witnesses stated they had suffered
financial difficulty because of the need to seek medical and
nental assistance because of injuries they attributed to
pornographic materials:
, real and run over five hundredm01?th/or weeklV therapy, monthly consul-
h
s
o
i
u
d« t
rfs
H
ti"?' The hospitalization was
a MfAi011""', M°St major ^""ncelifetime maximum benefit of ten to
dollars on this type of problem; afte?
905
Council,
Testimony to Women Against Pornography, Feb. 1985.
r Pornoar.phyCommission on Pornography.
827
15S-315 Vol.- 86 • 27
T
that If the victim needs help guess who pays. This
has a real dollar cost of over seventy thousand dollars
so far with many months and perhaps years to go.
My oldest daughter has been in therapy for nearly four
years receiving help including a two month hospitali-
zation period for evaluation.
Our four year old daughter was sexually molested at a
preschool that she attended in Hermosa Beach, Cali-
fornia. She attended the school, . . . for
approximately ten months in 1984. She was two years
old ....
She has spoken on many occasions where she was taken to
certain residence and other locations where she was
molested by strangers and threatened with guns and
knives and also photographed. All of this was being
kept secret through the continuous threats to our
daughter that we would leave her, or, worse, that she
would die if we were told the secret.
We spent the past year trying to help our daughter
through the fears and anxiety over this experience.
She is, and has been for about a year, undergoing
psychotherapy on a weekly basis. I have also been
receiving psychotherapy 90£
3. Defamation and Loss of Status in the Community
The Commission received testimony from witnesses who
reported that pornographic materials were used to place them in «
bad light. The witnesses stated that they had been depicted in
pornography without knowledge or consent. Although avenues of
recourse may have been available, some were advised to avoi
further adverse publicity. For example, one woman testified:
907 Houston Hearing, Vol. II, Anonymous, p. 178Q1-4.
908 Miami Hearing, Vol. I, p. 93-94.
828
The buyer had their choice of seven famous women
pictured in the nude; all of our full names were listed
and, of course, choice of color of T-shirt. I was
appalled and angry and had meetings with a lawyer
regarding what action I should take. All my then
advisers, this attorney, my personal manager (regarding
career) and my business manager (regarding accountina
and finances) advised strongly against taking any
action whatsoever. They all concurred that it would be
extremely costly and would draw attention to and sellmore of these shirts." 909
Other witnesses stated that pornographic materials were used
to hinder their standing within the community. This apparently
was particularly true for individuals who had at one time been
depicted in pornography. For example, Linda Marchiano testified:
And the fact that this film is still being shown and that mythree children will one day walk down the street and see
their mother being abused, it makes me angry, makes me sad.
Virtually every time someone watches that film, they are
watching me being raped.910
4. Promotion of Racial Hatred
The Commission received statements identifying pornography
« a tool to promote racial bias and hatred. Witnesses
identified specific pornographic materials which portray persons
color in a derogatory manner. These individuals attributed
C_°^ed^te^t^ng and feelings of racial inferiority to the
909
S""ion ni^p^Vec^y^) ^^ MinneaP°lis City Council,
s«ssion I"" b*£°re MinneaPolis City Council,
829
i r
pornographic materials:
They made other comments, "The only good Indian is a
dead Indian." "A squaw out alone deserves to be
raped." Words that still terrorize me today.
It may surprise you to hear stories that connect
pornography and white men raping women of color. It
doesn't surprise me. I think pornography, racism, and
rape are perfect partners. They all rely on hate.
They all reduce a living person to an object. A
society that sells books, movies, and video games like
"Custer's Last Stand" on its street corners gives white
men permission to do what they did to me. Like they
said, I'm scum. It is a game to track me down, rape,
and torture me.911
5. Loss of Trust within a Family
The Commission heard reports of family problems attributed
to pornography that were more subtle than some of the massive
family ruptures described earlier in this Chapter. Some
individuals stated that when a family member used pornography or
was subjected to the use of pornography, other members of the
family felt the effects. For example, a woman who had been
forced to view and participate in the production of pornography
in childhood by family members testified:
... I am the only member of my family who is speaking
out. I am the only member of my family saying "no" to
the abuse. It is very, very common that our families
lose themselves from us. I have no support with the
exception of one younger brother. My family is very
911 Public Hearings before Minneapolis City Cound
Session II, p. 19,(Dec. 1983).
830
angry at me for saying "no" to the abuse. They are
very angry about the fact I am identifying it.
My sisters, they are all repeating the cycles of abuse.
They are abusing their children and their children are
being incested. This is the long-term cycles, the
repeating and maintaining of violent life cycles.
6. Prostitution
Witnesses who testified before the Commission and
individuals who submitted statements reported several connections
between pornography and prostitution. One such connection was
the use of pornography as instructional manuals for prostitutes.
For example, a former prostitute testified:
One of the very first commonalities we discovered as a
group, we were all introduced to prostitution through
pornography; there were no exceptions in our group, and
we were all under eighteen. Pornography was our
textbook, we learned the tricks of the trade by men
exposing us to pornography and us trying to mimic what
we saw. I could not stress enough what a huge
influence we feel this was.913
Another connection was the use of pornographic films by
pimps to blackmail the participants:
I was the main woman of a pimp who filmed sexual acts
almost every night in our home. The dope man, who
supplied us with cocaine for free in exchange for these
912
913
s»S8ion I
Washington, D.C., Hearings, Vol. I, p. 241.
before Minneapolis City Council,. 1983).
831
arranged orgies, was a really freaky man who would do
anything. They arranged to have women, who I assumed
were forced to be there, have sex with dogs and filmed
those acts. There were stacks of films all over the
house, which my pimp used to blackmail people with.g14
Yet another connection was the use of magazines to stimulate
the clientele:
When I worked at massage studios, the owners had
subscriptions to Playboy, Penthouse, Penthouse Forum
and the like. These magazines were arranged Tn tKe"
waiting area of most of the massage places which I
worked in. If a girl was not inside with a trick, she
was expected to sit out front with the men who were
waiting or who were undecided and to look at the
magazines with them in order to get them titillated.
They used the soft porn to help them work up the
courage to try the acts described in the magazine with
the prostitutes at the massage studio.
Women who are or who have been prostitutes identified
pornography as a significant factor in prostitution. These
individuals reported that pornography was not only used and made
of them while engaged in acts of prostitution, but they stated
that pornography is used to perpetuate the concept that women are
accustomed to being placed in the role of a prostitute.
I am speaking for a group of women, we all live in
Minneapolis and we all are former prostitutes. All of
us feel very strongly about the relationship between
pornography and prostitution. Many of us wanted to
testify at this hearing but are unable because of the
914 Id. at 79.
id. at 77.
832
consequences of being identified as a former whore.
This is absolutely incredible to me that prostitution
is seen as a victimless activity and that many women
are rightly terrified of breaking their silence,
fearing harassment to themselves and families and loss
of their jobs.
we have started to meet together to make sense of the
abuse we have experienced in prostitution and how
pornography endorses and legitimizes that abuse.916
7. sexual Harassment in the Workplace
Several women reported incidents of sexual harassment in the
workplace involving the display and use of pornography. For
example, one woman said:
I put up with it for about a week and it finally got to
the point were I could no longer tolerate sitting there
and realizing that all of these men were there, I felt
totally naked in front of these men. The only thing
they talked about during lunch period was women, their
old ladies, their girl friends, and all their conquests
of the weekend.
I got to the point where I couldn't put up with it any
more. And being one of the only two women on the job
and being rather new at it and not knowing that I had
any alternatives, I got pissed off one day and ripped
all the pictures off the wall. Well, it turned out to
be a real unpopular move to do. I came back in at
lunch time and half the pictures were back up again,
they pulled them out of boxes and stuck them on the
wall and proceeded to call me names. And just
basically call me names or otherwise ignore me.917
916
917
Id.
s««sion n,PUbli8C6(Hearings before the Minneapolis City Council,
833
o
Another woman wrote:
I was working as a telephone repairwoman for Southern
Bell in Florida. Porn was everywhere. They use it to
intimidate you, to keep women out of their territory.
They had pin-ups in the workrooms. Male workers would
draw pornographic pictures of women workers in the
cross-boxes and write comments about what we would do
in bed. One day I went to the supply room to get some
tools. The inside of the room was covered with
pornography. The guy who ran it shoved a photograph at
me of a woman's rear end with her anus exposed and
asked, "isn't this you?" I was humiliated and
furious.918
A woman testified before another body:
When I got on the job, three of the trades had set up a
nice little shack and had lunch there. And it was a
real shock when I walked in because three of the four
walls in the room were completely decorated with
pictures out of various magazines. Hustler, Playboy,
Penthouse, Oui, all of those. Some o£ EFem I would
have considered regular pinups but some of them were
very, very explicit, showing women with their legs
spread wide and men and women performing sex acts and
women in bondage. It was very uncomfortable for me to
go down there and have dinner and lunch with about
twenty men and here is me facing all these pictures and
hearing all these men talking about all the wonderful
things they did on the weekend with all of these women.
I put up with it for about a week and it finally got to
the point where I could no longer tolerate sitting
there and realizing that all of these men were there, I
felt totally naked in front of these men.91
Another woman wrote:
918 Letter to Women Against Pornography submitted to the
Attorney General's Commission on Pornography.
919 Public Hearings before Minneapolis City Council-
Session II, p. 85-86(Dec. 1983).
834
ft working woman called the Pornography Resource Center
in May 1984 to report that her employer had called her
into his office, pushed her down on the floor, ripped
her dress, taken a gun out of his pocket, and stuffed
it into her vagina. A pornographic picture on the
lunchroom wall showed a woman sucking a gun."
"Testimony to Women Against Pornography, Feb. 1985.
Many of the complaints received by Amici are from women
workers in nontraditional jobs. The- following is
typical: "I've been a brakewoman for the railroad for
almost nine years .... I've seen pornographic
pictures of a woman with spread thighs being raped by a
huge dismembered penis with my name below.920
Similar to the harassment reported above, women identified
pornography as a tool to continue sexual harassment. Women
stated that pornography continued to perpetuate the harassment
and alienation.
After the LEAP Offices and State had written letters to
send out to these various employers, my boss, the man
who owned the company, called me up one day and said,
"Look, I heard you are having a little trouble down
there, why don't you just kind of calm down a little
bit. Don't make such a mess. We don't need any
trouble down there, just calm down, just ignore it." I
said, "Hey, I can't ignore it, I don't have to, I
can't, it is already done." A couple days later they
got the letter and they were told that this did not
comply with the action guidelines.921
9 20 Letter from Montana woman to Women Against Pornography
suonutted to the Attorney General's Commission on Pornography.
921,, Public Hearings before Minneapolis City Council, Vol.". P. 88(Dec. 1983).
835
T F
Chapter 2
The Use of Performers in Commercial Pornography
A. Background
1. Terminology and Distinctions
2. previous Commission Findings
3. performers and Obscenity Law
B. Use of Performers in Pornography - The Evidence
1. The Nature of the Evidence
2. The Performers
a. Age
b. Personal Background
c. Economic Circumstances
3. The Job
a. Recruitment
b. Coercion
c. Contractual Terms
d. Working Conditions
e. Health Risks
f. Drug Use
g. "Modeling" vs. Acting
h. Career Prospects
<• Modeling and Personal Life
837
C. Conclusions and Recommendations
1. Modeling and Prostitution
2. Sex Discrimination
3. invasion of Personal Rights
T
The objective nature of photography confers on it a quality
credibility absent from all other picture-making. . . The
hotographic image is the object itself, the object freed from
P C0nditions of time and space that govern it.
1 Andre Bazing22
The leap from "picture making" to photography was an event
of profound cultural significance; it was, in Bazin's view "the
most important event in the history of plastic arts."923 It was,
as well, the single most important event in the history of
pornography: images of the human body could be captured and
preserved in exact, vivid detail. As with every other visible
activity, sex could now, by the miraculous power of the camera,
be "freed from the conditions of time and space."
"Sex" in the abstract, of course, remains invisible to the
camera; it is particular acts of sex between individual people
which photographs, films, and video tapes can record. Unlike
literature or drawing, sexually explicit photography cannot be
made by one person: there must be a photographer and one or more
persons being photographed. This use of an actual person as the
object distinguishes such photography from all other types of
•exual 'material. No study of filmed pornography can thus be
complete without careful attention to the circumstances under
"hich individual people decide to appear in it, and the effects
°f that appearance on their lives.
N°r is this an academic or trivial exercise. The evidence
922E«gava The Ontology of the Photographic Image, in Classic
£g-on Photography 237, 241 (A. Trachtenberg ed. 1980).
923 Id. at 241.
838
839
before us suggests that a substantial minority of. women win
some time in their lives be asked to pose for or perform in
sexually-explicit materials.924 it appears, too, that th
proportion of women receiving such requests has increased
steadily over the past several decades.925 jj our societ ,
appetite for sexually-explicit material continues to grow, Olr
even if it remains at current levels, the decision whether to
have sex in front of a camera will confront thousands of
Americans.
After a brief clarification of terms, we begin our
examination of the issues surrounding pornographic "performances"
by reviewing the extent to which those issues have been faced by
previous commissions and by the courts. We then turn to a brief
overview of the kinds and quality of available evidence on the
subject, and a summary of what that evidence shows. in
924 Houston Hearing, Vol. I, Diana Russell, p. 288. In
Professor Russell's random survey of San Francisco women,
fourteen percent stated that they had been asked to pose for
pornographic pictures. Id. at 285. The survey did not examine
how many of these women actually posed for such pictures. A
national random survey of Canadians revealed that as many as
60,000 people in that country had been used in pornography as
children, and perhaps an equal number as adults. 2 Sexual.
Offenses Against Children, Report of the Comm. on Sexual Qttenses
Against Children and Youths, Min. oi Justice and Attorney
of Canada 1198 (1984) (hereinafter the Badgley Report).
925 Houston Hearing, Vol. I, Diana Russell, p. 287t
(Younger women statistically are far more likely to have been
asked to pose for pornography, with twenty-four percent of those
aged twenty to twenty-four having been asked as against two
percent of those over sixty.) Because "pornographic P*^11?^,,
may not have been clearly defined in the questions included
the survey, it is possible different generations of responden
interpreted the query differently.
840
nclusion, we consider three areas which the record suggests
id be of serious concern, along with recommendations for
federal, state and local action.
A. Background
1. Terminology and Distinctions. Those who appear in
sexually-explicit material, from stills to movies to video tapes,
have been variously called "actors," "models," "stars," and "sex
workers" during the course of our public hearings. None of these
terms seems perfectly appropriate as a description of what such
activity involves: the first three seem euphemistic, the last
derogatory. We adopt the term "model" not only because it seems
to have been the one most commonly used during our hearings, but
also because it seems to be somewhat less loaded with positive
926and negative connotations.
It is important to qualify that definition instantly,
however, by limiting its range of application to sexually-
explicit material that is commercially produced. As we will
discuss later, a substantial portion of photographic pornography
926 In choosing to use the terms "model" and "modeling"
jn this context we of course mean no disrespect to those engaged
In conventional modeling - nor do we mean to imply that appearing
•s the subject of a sexually-explicit film is more similar to
conventional modeling than it is, for example to conventional
•cting. See, c. Hix & M. Taylor, Male Model 181 (1979) ("The
^"PProvaiengendered by nude modeling spills over into the
t>« °E straight modeling, though to a lesser degree, merely
«lso root word 'model1 is used in both cases. 'Model' is
a' for an enti-rely different profession
841
cr
is made informally, with little or no monetary motive and
intention of widespread distribution. While such small-scal6
productions are of real concern to us, those who appear in the™
seem to be at least largely distinct from those who perform in
glossier, commercial "X" rated material. Where it is important
in the following discussion to refer to those appearing jn
noncommercial pornography, we will do so specifically. And where
we wish to refer both to those appearing in commercial and
noncommercial pornography, we will simply use the term
"performers."
2. Previous Commission Findings. A fierce debate has raged
•
in this country over obscenity and pornography since the 1970
Commission on Obscenity and Pornography announced its findings; a
debate mirrored in the bitter internal struggles of the
927Commission itself. It is perhaps a measure of the passionate
as opposed to reflective character of the struggle that the
interests of those persons actually photographed for sexually-
explicit material were considered by neither the majority nor the
minority reports of the Commission. Perhaps because "hard-core"
material was seen by the Commissioners as being largely of
foreign origin,92*5 the risks for performers in such materials may
927 For an overview of the tension between members of the
1970 Commission and problems in its operation, See, Hill-Li"
Minority Report in Report of the Commission on Obscenity _«£.
Pornography, 456, 460-463 (1970) (hereinafter 1970 Report).
928 1970 Report at 22 (source of "picture m
depicting sexual intercourse "principally Scandanavia" ; _ s
films" domestically produced but in "extremely disorganiz
fashion with no national distribution).
842
. I
have seemed virtually irrelevant. The Commission's Traffic and
Distribution Panel merely paused to note that in making a typical
"stag film"929 the 'performers' are paid $100 to $300.930 Tne
recommendation of the majority for repeal of all laws regulating
distribution of obscene material to adults was premised on the
belief "that there is no warrant for continued governmental
interference with the full freedom of adults to read, obtain or
view whatever such material they wish."931
The majority did not consider it even a theoretical
possibility that such unlimited freedom .might conflict with the
freedom and well-being of those performing sexual acts in front
of a camera for consumption by the masses.932 So myopic was the
Commission on this issue, indeed, that under the strict terms of
its recommendations, neither "snuff" films933 nor child porno-
929 "Stag films" were the only motion pictures on the
market at the time of the Panel's report that met its definition
of "hard core" or "under-the-counter" pornography - that is,
"wholly photographic reproductions of actual sexual intercourse
graphically depicting vaginal and/or oral penetration." Id. at
137.
930
931
Id_. at 140.
Id. at 58.
932 The dissenter, too, failed to perceive performers in
sexually-explicit material as needing any special protection.
|®£. Hill-Link Minority Report, supra note 927 at 457 (grounding
dissent on need for "protection for public morality" rather than
demonstrable individual "harms").
933 A "snuff" film is one in which there is apparently an
actual murder enacted.
843
graphy would have been subject to prohibition.934
Neither of the two major national committees which followed
the 1970 Commission was quite so blind to the possible risks to
performers in sexually-explicit material. Both the Williams
Report935 ana the Fraser Report936 recommended prohibition of
pornographic materials which depicted a child^7 in explicit
sexual conduct or which were made in such a manner that "physical
injury" was inflicted upon a performer. Yet apart from their
concern for protecting children from use in pornography, the
Williams and Fraser Committees ultimately gave little attention
to the circumstances in which sexually-explicit material is
produced, and in particular the situation of those who perform in
it. The Williams Committee heard some evidence that "there was
much misery in the trade and that many of the girls in strip
clubs, for example, were disturbed and mentally ill," but did not
think it sufficient in the face of vigorous denials from a
934 io prevent production of child pornography the
majority apparently relied on the "taboo against pedophilia"
which made the "use of pre-pubescent children in stag films . . .
almost nonexistent." 1970 Report at 139. The 1970 Commission
expressed no concern whatsoever over the possible use of young
adolescents in pornography.
935 B. Williams, Report of the Commission on Obscenity and
Film Censorship 131 (1979) (hereinafter the Williams Report).
P. Fraser, r-rn n^nphy .nd ProStituti^^.in_C^
l^ V-UlltlU* **Mt_ i-v*...^-., Kerelnafter the Fraser Report)~
The Williams Committee set the
™protection of children in this area at: •hoseproec
at 131; the Fraser Committee chose
844
publisher of magazines "within the trade."938 Its analysis of
the issue did not extend beyond two paragraphs, and focused
solely on production of pornography in Great Britain, which at
the time did not generally permit production of any "hard core"
pornography.939 The Fraser Committee gave the issue even more
cursory treatment after finding that only "a very small number of
[sexually-explicit] films are produced within Canada" and "the
production of other forms of pornography, for example, magazines
and books is not undertaken for commercial purposes."940 The
Committee supported a ban on material in which "actual physical
harm was caused to the person or persons depicted" as an
"additional deterrent to the causing of such harm."941 without
discussing the nature of the evidence before it, the Committee
declared that "we know that the relations between the producers
of violent pornography and the actors in it are often such that
there is little or no respect for the rights and physical welfare
of the latter."942 Like the Williams Report, however, the
938
939
Williams Report at 91.
Id. at 37. "Foreign" material was the chief target of
British obscenity-law enforcement in the late 1970's, Id., and
"ithin Britain the "industry" had agreed to restrain itself
through self-regulation. Id. at 42.
940 Fraser Report at 87. This abrupt dismissal of the
problem of pornography production in Canada is in curious tension
with the finding of the Badgley Report that tens of thousands of
Canadians have at one time or other been "subjects of sexually
•xpiicit depictions." Badgley Report, supra note 924, at 1198.
941
942
Id. at 265.
Id.
845
Canadian report did not explain what level of proof would K
required to demonstrate that "actual" as opposed to "simulated"
harm had been caused to performers. Unlike the Williams Repm-^.
however, the Fraser Report did not devote even a paragraph to
consideration of harms to performers other than those resultinn
from outright violence on the set. 43
Ultimately, then, it seems fair to say that in this area, at
least, we are without clear guidance from our predecessors in
examining a possible "harm" of pornography. The nature of the
pornography industry has changed so rapidly in this country since
the 1960's that it is hardly surprising that the 1970 Commission
felt no obligation to examine the situation of performers;
because the industry seems so centered in the United States and
continental Europe, moreover, it would have been extremely
difficult for the Canadian or British panels to study it in
detail. Nevertheless, the failure of these commissions to
examine the issue even in the abstract points to what we view as
a nagging conceptual flaw in their approaches: they assumed a
photographic image of sexual conduct by actual persons to be
essentially no different from a written description or drawing of
such conduct. As we will explain below, the use and misuse of
"models" and other performers makes that assumption at least
943 The Report's only reference to possible "harms" of
pornography which might be associated with effects on performers
was its recitation of the allegation by some "that pornography Is
to be deplored simply for portraying people in an inhuman way • •
. ." Id_. at 96. Even in that context, however, the Report
immediately tested the allegation with reference only to the
effects of such portrayals on viewers. Id.
846
gravely doubtful.
, Performers and Obscenity Law. The refusal of previous
issions to consider carefully the situation of performers in
ally-explicit material is hardly unique in this area; indeed,
is a characteristic of virtually all legal analysis of
. orn0graphy" until very recently. In this country, of course,
the Supreme Court did not squarely address the constitutional
issues inherent in suppression of obscenity until the Roth
decision in 1957.944 There the Court rested its view that
obscene material could constitutionally be suppressed on the
failure of such material to have "even the slightest redeeming
gocial importance, "945 ancj made no distinctions in its analysis
among writings, drawings, or photographs.946 During the
following sixteen years of acrimonious judicial debate over the
problem of "obscenity" the Court singled out "photographic
speech" for special analysis only twice: in Times Film Corp. v.
Chicago94? an(j Freedman v. Haryland948 it laid out rules
944 Roth v. United States, 354 U.S. 476(1957).
945 Id. at 484 (emphasis added).
946 Indeed, the Court was strongly criticized by Justice
Harlan in his separate opinion for refusing to examine the
•aterials at issue and make "particularized judgments" on the
individual constitutional problem" presented by each of them.Id. at 497.
947co 365 U>S' 43(!961). m Bantam Books v. Sullivan, 37258, 70 n. 10(1963), the Court distinguished a system ofrestraint" affecting books from one affecting movies
explaining relevant differences in the character of eachof speech.
948 380 U.S. 649(1965).
847
governing prior review and censorship of motion pictures. Yet in
those decisions, the Court's "recognition that films differ from
other forms of expression'949 seemed in no way based on dangerg
to performers but rather on a largely unexplained concern for the
special power of films to corrupt viewers.950 when in 1973 the
Court finally settled on the test and the rationale for
regulation of obscenity in, respectively, Miller v. California95l
and Paris Adult Theatre v. Slaton,9^2 photographic speech was not
discussed separately and possible risks or harms to performers in
sexually-explicit films were not mentioned. The decision of
the Court on that same day that "words alone" could be suppressed
if obscene reinforced implicitly the assumption that constitu-
Freedman y. Maryland, supra, 380 U.S. at 61. The
initial indicationb~y"the Court that motion pictures might
present a "peculiar problem" came in its first decision holding
films to be constitutionally protected "speech." Joseph Burstyn,
Inc. v. Wilson, 343 U.S. 495, 502-03 (1952).
950 in Times Film Corp., the Court referred only to
Chicago's "duty to protect its people from the dangers of
obscenity in the public exhibition of motion pictures" as a basis
for distinguishing films from other modes of expression. Id. at
49. In Freedman the Court muddied its references to the
distinctive qualities of films by ultimately suggesting that
Maryland look for guidance to a previously approved prior
censorship scheme for books (in Kingsley Books, Inc., v. Brown,
354 U.S. 436 (1957). 380 U.S. at TOT~~
951 413 U.S. 15(1973).
952 413 U.S. 49(1973).
953 The Court explained in Paris Adult Theatre that
suppression of obscenity by the States could be justified by the
conclusion that "public exhibition of obscene material, °*
commerce in such material has a tendency to injure the community
as a whole, to endanger the public safety, or to jeopardize . • •
the States' "right to maintain a decent society1." 413 U.S. *"•
69.
848
'onal doctrine governing sexually-explicit material was based
9 54olely on its effects on viewers and the public.
With minor exceptions955 tnat assumption continued to govern
judicial pronouncements on sexually-explicit material until the
Supreme Court decided New York v. Ferber956 in 1932. There the
Court for the first time extended its analysis of such material
to encompass the "privacy interests" of the performers957 _ ±n
this case children. Filming children in the midst of explicit
sexual activity not only harmed them because of the sexual abuse
involved, but also because "the materials produced are a
permanent record of the children's participation and the harm to
the child is exacerbated by their circulation."958 in addition,
the continued existence of a market for such materials was found
to make it more likely that children would be abused in the
954 Kaplan v. California, 413 U.S. 115(1973). In that
decision the Court distinguished between "traditional and
emotional response" to suppression of words and the tepid defense
mounted on behalf of "obscene pictures of flagrant human
conduct." 413 U.S. 119.
955 See, Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y.
1978) (cartoon depiction of famous .boxer in the nude was heldactionable because of its effects on him). In Zacchini v.
Scripps-Howard Broadcasting Co., 433 U.S. 562(1977) the courtheld that a circus performer's "right of publicity" in his act
could, consistent with First Amendment, receive protection under
state tort law.
956
957
958
458 U.S. 747(1982).
Id_. at 759 n. 10.
Id. at 759. Circulation of the pornography was found
by the Court to violate "the individual interest in avoiding
Disclosure of personal matters." Id. at 759 n. 10 (citing Whalenii-226.' 429 U.S. 589(1977)). —
849
future thus justifying a ban on distribution as the "mo
expeditious if not the only practical method of law enforcement
. . ."959
Since Ferber, courts have begun to consider problems faced
by performers in pornography, including adults as well a
children. The Fifth Circuit recently upheld a judgment against
Chic magazine for publishing a nude picture of a woman whos
consent had been obtained fraudulently .960 The same cou
sustained a judgment against Hustler magazine for "reckless"
publication of a nude photograph which had been stolen from the
subject's homo.961 An<j in overturning the "Indianapolis
Ordinance" - which sought to provide civil remedies against
pornography as a form of sex discrimination - the Seventh Circuit
declared that "without question a state may prohibit fraud,
trickery, or the use of force to induce people to perform in
pornographic or in any other films, "962 an(j that under the
principles of Ferber the state might be able to "restrict or
forbid dissemination of the film in order to reinforce the
959 Id. at 760.
2d 245 (1984), cert, denied,960 Braun v. Flynt, 726 F.
105 S. Ct. 783(1984).
Wood v. Hustler Magazine, Inc., 736 F.2d 1084(1984),961"'"'"' WOOU V. nuat-U-CL i-iavjn*. A.II^ t + ..^» , .
cert, denied, 105 S. Ct. 783(1985). Accord, Hustler Magazine^
Inc. v. Douglass, 769 F.2d 1128(7th Cir. 1985), cert, denied. 54
U.S.L.W. 3646(Mar. 31, 1986).
962 American Booksellers Assn. v. Hudnut, 771 F. 2d 323,
332(1985), aff'd mem., 54 U.S.L.W. 3560 (Feb. 24, 1986).
850
prohibition of the conduct."963
in the wake of the Ferber decision, then, it is still
difficult to predict the precise constitutional boundaries which
govern regulation of photographic "speech" on behalf of
performers.964 That such performers have privacy and other
interests worthy of protection, however, now seems clear. In
part as a response to these judicial developments and in part as
an effort to aid in future legal analysis, we feel compelled to
examine with the utmost care the evidence bearing on the
situation of performers used in pornographic photographs, video
tapes, and films.
B. Use of Performers in Pornography — the Evidence
Because no previous commission has fully examined the
special problems presented by the use of actual persons to make
963 Id. But cf., Faloona v. Hustler Magazine, 607 F. Supp.
1341 (D.C. Tex. 1985) ,~appeal docketed, No".85^1359 (5th Cir.
1985) (children whose nude pictures, including one showing the
plaintiff child holding her vagina open facing the camera,
Hustler 33(Nov. 1978), appeared in adult magazine had no right to
revoke mother's consent to publication).
Q C A I
For an indication of the confusion still remaininggoapare Braun v. Flynt, supra note 960, with Faloona v. Hustler
1'qazine. supra note 963. Deference to the parent's "consent" to
publication of the nude pictures in the Faloona case is difficult
° justify in view of their graphic character, See, note 963
--££1' which makes them at least arguably prohfFTted "child
• UDr»qr*Phy" under state and federal law. But see, Faloona,-_££«, 607 F. Supp. at 1343 n. 4 (denying that the pictures
of oroMh*..?hlld P.orr|ography despite inclusion in federal statute
chlldr!.., 10 s directed at "lewd exhibition of the genitals" ofren 18 U.S.C. 52255(2) (D) (1984).
851
sexually-explicit material, and because courts have only begun
develop the legal principles which may be applied to resolvinq
those problems, we approach this aspect of our task with exttem
caution. To begin with, we comment on the nature and the quality
of the evidence before us both in testimony at our hearings and
on the public record elsewhere. Then we examine the main
outlines of what that evidence reveals about the nature of the
performers' reasons for participation in producing pornography,
and their experiences once the decision has been made.
1. The Nature of the Evidence. In setting forth the types
of evidence we have considered on this subject, it is important
to note first the limitations which have been imposed on our
fact-finding efforts. Above all, we have not had the power to
issue subpoenas summoning reluctant witnesses to appear; thus all
information at our disposal was presented to us voluntarily or
obtained through our review of materials on the public record.
In addition, the severe time constraints imposed on our work were
particularly damaging in this area because, as discussed earlier,
this aspect of the pornography "industry" has received only the
scantiest attention in the past. We, therefore, did not have the
benefit of knowing from the outset what were the most likely
avenues to discovery of pertinent evidence about activities that
are largely underground. Finally, both the difficulty of
locating witnesses and the pressure of time meant that we were
not able to spend substantial time in cross-examination of the
testimony or in background investigations to corroborate their
852
statements.
ution is dictated, too, because there have been to our
ledge almost no "scientific" investigations into the
ckground of participants in pornography or its effects on them
tterwards.965 Such investigations would certainly be extremely
difficult - perhaps impossible - to design and conduct given the
landestine character of the pornography industry. Reliable
nclusions about the number and characteristics of performers in
pornography will likely remain as difficult to reach as, for
example, solid estimates of the number and characteristics of
illegal aliens.966
What we have been able to discover, however, is deeply
disturbing, and, we think, based on substantial evidence from a
variety of generally credible sources. Somewhat to our surprise,
the testimony of law enforcement officers, of current and former
performers in pornography, and of those involved with pornography
•behind the scenes" has rarely been in conflict. Further,
significant and useful information is available from court cases,
from books and "adult" magazines, and from "adult" film industry
965 The survey Diana Russell conducted is the only
A»erican survey addressing the issue that we have seen. Houston
Hearing, Vol. I, Diana Russell, p. 283. See, Badgley Report,
ii!Pr.l note 924, addressing the issue in CanadaT
966. See, e.g. , United States General Accounting Office,
JLQDlema and Options in Estimating the Size of the Illegal Alien
-julatvon, Report to the Chmn. of the Subcomm. on Immigration
S«n«r i?e* Policv of tne Comm. on the Judiciary, United States
• He 2) ("Current estimates of the size of the illegal
•••ma uni7l,la1tion ln the United States are unsatisfactory and itId. at jg jely that more precise estimates can be derived soon."
853
publications. If on the whole we believe our understanding
the problems faced by performers in pornography is incomplete
and that our findings and recommendations must be large]
tentative, we also view the state of the evidence as highly
suggestive. And we think it points to the need for action
well as for further study.
2. The Performers. The most basic questions about
performers in pornography - who they are, and how they came to
appear in sexually-explicit material - are unfortunately the most
difficult to answer decisively. For reasons that are largely
obvious but will be explored later, anonymity is a valued
commodity among pornography performers: apparently even the best
known models frequently do not use their real names for their
appearances.967 ^nd in much pornography (such as that shown in
video arcades) the performers are not identified at all. Thus it
would have been difficult to conduct independent investigations
of their backgrounds even if resources permitted it; instead we
have relied on testimony and other information in the public
record. What that evidence shows about their age range,
background, motivations, and path of entry into modeling is »
967 Models (particularly women) tend to choose short,
suggestive names: Linda Lovelace, Desiree Lane, Ali Moore, Di
Rambone. The majority of the witnesses appearing before
said they had appeared in sexually-explicit material tes
under truncated or fictitious names. The use of assumed
seems to be rooted in far more than the longstanding theatr ^
practice of giving upcoming actors new names for "box off 1 ,
reasons - rather it appears to be closely related to the m°°
need to conceal their involvement from their families, frieno ,
and future employers.
854
crucial backdrop to examination of what the sex industry demands
of them.
a. Age. Perhaps the single most common feature of models
is their relative, and in the vast majority of cases, absolute
youth. As one law enforcement officer who has extensively
Investigated the production of commercial pornography told us,
"they [the producers] are looking for models that look as young
as possible. They may use an eighteen-year-old model and dress
her up to look like she is 15. "968 Female models appearing in
•mainstream" commercial pornography appear rarely to be over
thirty years old or even in their late twenties; indeed, most
whose age we have been able to gauge began their careers in their
late teens.969 indeed, one former model who now works in the
968 LOS Angeles Hearing, Vol. I, William Roberts, p. 64-
65. This emphasis on youth apparently took hold in hard-core sex
films in the years after World War II. Before then models who
appeared in what were at that time know as "stag films" were in
their late twenties or early thirties. Sampson, Commercial
Traffic in Sexually Oriented Materials in the United STLates in J
Technical Report of the Commission on Obscenity and Pornographyf, 186(1971).
'69 7^6 ages at which some prominent "X" rated film models
»pparently began performing are, so far as we can determine from
•aterials on the public record, as follows: Angel (18); Ali
"oore (18); Amber Lynn (19); Jessie St. James (18 or 19); Mindy
*•• (19); Shauna Grant (18); Tiffany Clark (18); Nikki Charm
18); Ginger Lynn (19 or 20); Richard Pacheco (20 or 21); Seka
2<)l Samantha Fox (28); Chelsea Black ("fortyish"). The ages
K^6.d above are largely taken from articles or interviewsPublished in adult film industry trade publications or in
comercial, sexually-explicit "guides" to adult films and videos.
** result, it is possible that models or interviewers
ated their a9es to maintain a desireable public image.
f88' in'1971 Sampson, supra, note 968 found that "[m]any
.. ale Perf°rmers appear to be in their late teens or
—' at 186- Further, about half of oures who had appeared in sexually-explicit films or photos
855
front office of an "adult" video company explained her deci
to retire thuss "Good roles for women over nineteen years
have become few and far between."970 William Margold, a iea
figure in the "adult" film industry, described it simply
"essentially an overage juvenile hall."971 while male m
apparently can enter and remain in the industry at a soraewh
older age,972 on the whole we find Mr. Margold's imaqer
particularly apt.973
b. Personal Background. Along with their youth, models in
sexually-explicit media seem to share troubled or at least
ambivalent personal backgrounds. Although many described or
implied unhappy experiences during childhood, we are not able to
say with scientific certainty whether their family backgrounds
began such performing in their teens: Cisa (Washington, D.C.)i
Jeff (Washington, D.C.); George (Los Angeles); Chris (Lo«
Angeles); Harry James (Miami); and Linda Marchiano (New York).
See also, Lederer, Then and Now; An Interview with a Form«r
Pornography Model, in Take Back the Night; Women on Pornograph'TT
57,58 (began nude modelingimmediately after graduation from nigh
school) (hereinafter "Lederer Interview"); People v. Fixler, 128
Cal. Rptr. 363(Ct. App. 2d Dist. 1976) (use of fourteen-year-old
model by large scale commercial publisher of sexually-explicit
magazines).
970 Where Are They Now?, Adult Video News 52(Aug. 1985).
971 Los Angeles Hearing, Vol. I, William Margold, p. 4H-
972 Bennett, Breaking into X-Rated Films, A Guide fo£
Prospective Porn Stars, Hustler Erotic Video Guide 71(May I'8"
(Interview with William Margold).
973 See, Interview; Cecil Howard, Adult Video News j
(October 1984) (interview with prominent "adult film" ProduCgn<)
("AVN: Does it appear to you that we're now seeing younger
younger girls doing films? CH: It's true and I think that
horrible." Id. at 24.)
856
were worse or better than "normal."974 One model recently
lared before a Senate subcommittee that it is a "myth" that
models have "unhappy childhoods."975
Despite this claim, many other models have painted a
astically different picture of their families - broken
srriages,976 early parental death,977 an<a intense family
nflict.978 Many - including the model who denied the "myth" of
nhappy childhoods reported having suffered early sexual
abuse.979 Professor Russell, moreover, has found a "highly
974 Thus Professor Russell in her study found no
significant difference in measures of "social class" between
women who were asked to pose for pornography and those who were
not. Houston Hearing, Vol. I, Diana Russell. Unfortunately, her
study did not determine which respondents had actually agreed to
pose, so provides only suggestive evidence regarding thatsubgroup.
975 Effect of Pornography on Women, Children, Hearings
before the Subcomm. on Juvenile Justice, Comm. on the Judiciary7
U.S. Senate, 98th Cong., 2d Sess. 315 (1984) (Statement of
Veronica Vera) ("I came from a very loving family. That core of
love has always been my strength.") (hereinafter cited as 1984Senate Hearing. )
976 Statement of Valerie Heller (Washington, D.C.); Lisa
(Washington, D.C.); Jeff (Washington, D.C.); Getting Down with
Candida Royale Forum 42, 45 (April 1986); From CheerleaderTo
Saut Star. Adult Video 8, 9 (April 1986) (interview with All
Hoore) (hereinafter "Ali Moore Interview"); Christy Canyon, Best
of Erotic X-Rated Film Guide 24(no.8).
977
( Amber Lynn; Pom's Busiest Beaver, Hustler 24, 30
1984 Senate Hearing, supra note 975, at 1064.ony ol Linda Marchiano). — — -
979
tubiiiii-* ^ Yera, "Beyond Kink," Puritan, copy of article
Comnig • h letter of v- Vera dated February 8, 1986, to
O.C ) fh°Kn (.abuse by Stranger); Statement of Jeff (Washington,H«Uer iwYSli5-ter); Lisa (Washington, D.C.) (uncle); Valerie
^Washington) (stepfather and stepbrothers); Lederer
857
t
•l.tlstlcally significant r.latlonshlp b.t...n Inc.stuou, „,„„ ,tanc., of parental deprivation, ,bu,., or both.983
A a A 1C*1Q p A
and being asked to pose for pornography." In her study she
found that "girls and women who are being asked to pose f0r
pornography . . . are those who have already been seriously
sexually abused by a relative."981 Sketchy as the evidence ts>
we are struck by the relative rarity in the material and
testimony we have studied of claims regarding positive features
of families of models.982 If anything, the balance of the
evidence suggests that models have typically grown up in
interview, supra note 969, at 57-58; See also, Statement of
George (Los Angeles) (exposure by father to hard core pornography
during childhood and early teens, considered by witness to hav«
been major contributing influence in decision to perform in such
material). Joanna Storm, X-Rated Cinema 63(May 1986) ("I was a
real little nymphountil I was about eighteen. I got tired of
every man and his brother making a pass at me."); Interview with
Lynn Ann Wilson, Adult Cinema 64(Vol. 5, No. 2) (19Bb)r""^". 7
any orgies that even went on were while I was living at home. At
the tender age of 16." Id. at 68.); Ali Moore Interview, supra
note 976, at 54 ("I had a rough childhood. Some things I'd
rather not discuss, and it left me kind of gun shy when it comei
to sex.")
980 Houston Hearing, Vol. I, Diana Russell, p. 3101.
981 Id. at 310M. In Professor Russell's view, men seeking
to make pornography are adept at selecting previously victimize11
women. Id.
982 Of the models who testified before us, ,or otherwi»»
have discussed their past publicly, only a handful even refer
their families except to describe such problems as dlvol[.Ky
conflict, or abuse. Compare, Statement of Dottie Meyer
parents raised me in a happy, healthy home"); and testimony °
Veronica Vera, supra note 975; with text to notes 976-979. "•jjjfhowever, have given interviews or testimony without any tet*. t1at all to their families; thus we do not know what they woula^J
about their upbringing. That so high a number were involved
explicit aex modeling by their late teens certainly do
suggest to us that their silence should be construed as
of a happy childhood and adolescence. See note 979 supra
8S8
c. Economic Circumstances. If it is not possible to speak
wtth certainty about the family backgrounds of the young women
and men who become "models," it nevertheless seems clear what
chiefly motivates their decision to appear in sexually-explicit
•aterial: financial need. As one former model put it when asked
why most women enter nude modeling:
A lot of women are hurt or crazy women under stress.
Yes, most women come in under a lot of stress. They're
usually desperate when they first come in - maybe they
need money for some emergency, like I did, or they've
gone as long as they can doing odds and ends or working
at (menial) jobs, and they finally just have to pay
their bills. I met a woman whose kid was in the
hospital, and I met lots of women who were financially
strapped. There were also many illegal aliens there
who couldn't work regular jobs even if they had the
skUls because they didn't have their green cards
. . [TJhey certainly know how to get you to do what
they want. Some women are so bad off that they just goimmediately into hard-core films.984
On* prominent model recently described her entry into the
Dullness in similar though less sympathetic terms.
I had a sugar daddy who was, you know, keeping me.
Paying for everything. I didn't need a dime of my own
and never had to work. Then I guess his wife found
983 We
of these the similarity of the backgrounds of
those of prostitutes. See, e.g., Silbert
- ' I n f 1 u e_Sexual Exploitation „„ .,.. J.MJ. xuenue in
uciai work 285(1»«3) (in sample of 200 current
as juveniPir^tltUct*,8K6° Per Cent had been sexuallyJ 13 vn ih ' S.llbert & Pines, Entrance into
^ISe^^om tJo-_,r«\S°KClety'471(1982) (in same sample only
thirty-two n" .J116,8' —' at 475; only nineteen perBl" their° P?"ent nad a "Positive relationship" with,^eir fathers and their mothers. id. at 480.
Interview, supra note 969, at 58-59.
859
1,0-86 - 28
out, and he ran back to her, breaking it off with me
I was out in the cold. Then a friend of his asked me
if I was interested in doing some masturbation stuff On
video. I needed the money and said okay. °->
Although not a universal feature of models' accounts,986
with
striking regularity they speak of money and dire financial
as critical factors in their decision to model. 987 jn
985 Amber Lynn; Pom's Busiest Beaver, Hustler 21
30(April 198TTT '. '•
986 see, Interview - Richard Pacheco, Adult Video News I
(1984) (made his first "X" rated film in 1968 at age twenty or
twenty-one because "I wanted to know what it was like." id. lt22). Some other models do not clearly refer to fina~Kcial
motivation as a factor in their career decision. Thus Veronic*
Vera described to a Senate Subcommittee in 1984 then decided,
four years before the hearing, to "write or forget my fantasy to
become a writer" and finally to enter "X" rated films. x*.
Vera's 1984 testimony represents the only statement by a current
or former model of which we are aware which seems flatly to
contradict the assertion that financial need is the overriding
reason for entering nude modeling; unfortunately, it not only
gives no verifiable details of her previous career but also seew
at least partially inconsistent with some of her published
statements. See, Vera, Beyond Kink, supra note 975 (describing
(1) how, in 1979, she lived in Paris with "Roger" and, in 1W
how (2) "Mistress Antoinette" placed her "in beautiful bondage'
on a tree from which she was "bound and suspended" while "(h)tr
husband silently (took) pictures.").
987 see, e.g., Heather Wayne, Erotic X-Film Guide 28 (JW
1986) (former model, "What was I gonna do when the money stopp*
coming in? I couldn't live. I couldn't survive, because it «•
the money that kept me going." Id. at 58); Ali Moor« Tntervl**'
supra note 976, at 9 ("Adult Video: . . . Why do you do it? AI
Money, money, money. That is the only reason in the ""-><-ld.
Statement of "Lisa" ("The money [offered for nude
wasn't all that great but I was on welfare . . .");
Harry Reems, Adult Video News (April 1985) ("I was
whopping $76.00 per week [as a New York actor]. I
supplement my income."); letter from Kellie Everts to
States Department of Justice of March 21, 1986 [former £
and nude model] stating "the women who get invo Oi
pornography do so not because of a lack of morals but be^* 97*.
economic necessity"); Candida Royale Interview,supra no
860
Of one now famous former model who was "literally starving" when
he made an X-rated film: "It was either do that movie or rob
gomeone."988 As a representative of United States Prostitutes
Collective put it: "For women working in the sex industry,
prostitution and pornography are about money, not sex. "989 Not
turprisingly, Professor Russell found that women who had been
asked to appear in pornography were significantly poorer than
other women in her sample.990 From what we have learned about
the rigors and risks of sex modeling, it is difficult to imagine
any overriding motive other than serious economic need for such a
•oaentous decision.991
at 46 (,"Then one summer, it all fell apart ... I had no
aupport. I got a job in a porn film and thought, why not?"); C.
Hlx, Male Model 165-86 (among males involved in nude modeling the
phrase *"JTt t"ne time, I needed the money" is the "usual
explanation" for their initial involvement. Id. at 179.) Some
•odela, of course, may well have been coerced Into appearing in
aexually-explicit material, See Section B-3-b, infra; for them
•oney could not be a factor in their participation.
988 Sylvester Stallone, Playgirl 39 (October 1985).
989 Los Angeles Hearing, Vol. II, Margaret Prescod, p.
US. Ms. Prescod pointed out, as did numerous other witnesses,
that the "feminization of poverty" had left the sex industry as
one of the few alternatives open to women to get out of, orrefuse poverty . . . ." l<3. at 216.
990 Houston Hearing, Vol. I, Diana Russell, p. 310F.
991,, . One alternative motive advanced by a major male model
that r n9ler> is intriguing: "I was so insecure with [my body]
v M,.WaKted to build myself into something that everyone would
Pra n fbeautiful whether I believed it or not." Male Model,
JeTlno• ' at 183- Obviously the decision to enter sex
•"•« econ^8<an extren)ely complex one that involves far more than
*•«"«! abu need> Ifc is likelv' for example, that childhood10 consider plavs a substantial role in predisposing individuals
*»»««rch on fh activity. See, text to notes 974-983, supra,the factors influencing such a decision is clearly
861
(
3. The Job. When that decision is made, and for whate
reason, the model enters a world averse to public scrutiny
almost wholly unconcerned with public accountability. in our own
examination of the commercial "adult" film and magazi
industries we received little information from the industrieg
themselves regarding the position of performers, although we did
find at least one industry spokesman, William Margold, remarkably
candid and forthright on the subject. Fortunately, a substantial
amount of information in this area is available from
knowledgeable law enforcement sources, court cases, and, of
course, performers themselves. The view of performers' lives
which they provide is invaluable and grimly fascinating from the
methods of recruitment to the experience of performing to the
likely aftermath in personal career directions.
a. Recru i tment. For most young women in commercial
pornography, entry into "modeling" seems to occur almost without
serious thought. One now famous model described her own
initiation in surprisingly casual terms:
Well, I answered an ad in the paper. It was for a
modeling job. It did not say, "adult modeling," or
"nude modeling" or anything such as that. I went in
and it turned out to be nude modeling. The first day,
I took shots for Penthouse. So I kept on going and
before I knew it, three months later I was doing adult
""go into,nd8
pose
needed - yet it does seem clear that
say when asked about their motives
faTamount. Even Mr. Wrangler, when asked why
nude modeling replied: "One, because "«* ne£
somebody offers them a hundred bucks or so if they up
for them. The same reason some people might
prostitution." Id_. at 186.
862
i"
films.992
Typically young women and men answer advertisements seeking
"models," and only later discover nudity or sexual intercourse is
Involved in the work.993 often, the "model agencies" placing the
ads apply strong pressure to convince prospects, as one former
model has recently described it:
The majority of people in this business, they're
heartless. They take a little girl off the street,
fresh out of high school. They sit there and keep
pushing it in her face and asking her if she'd like to
do porn, and she keeps saving "No" and "No" and theykeep on pressing . . . . 99«
Others enter from nude dancing995 or prostitution.996
Whatever their entry route, however, well established,
profitable enterprises exist to provide the services of female
992
1985).Interview; Ginger Lynn, Adult Video News 30 (Feb.
993 See, e.g., Los Angeles Hearing, Vol. I, Chris, p. 92;Log Angeles Hearing, Vol. II, Charles Sullivan, p. 65; LosAngeles Hearing, Vol. II, Chatherine Goodwin, p. 78-79.
OQ 4
... . , Heather Wayne Interview, supra note 987, at 30. See,
LOS Angeles Hearing, Vol. II, Catherine Goodwin, 78-79 (after
•beW?o
nt
nB P°sed f°r "fashion/glamour" photos, photographer^oegan^to persuade and coerce her to do the S&M type of posing .
995
"«nclng at Waansohin9ton- D-C., Hearing, Vol. I, Lisa, p. 61. (nude
Storm inL^ S1Xtee"' then "™odeling" at eighteen); Joanna
•trippina VI L '• ^-u-£ra note 979' 60-61 (nude dancing andPPing at age sixteen, "film career" at age twenty)
996 „. .Uiicago Hearing, Vol. II, Terese Stanton.
863
models to producers of "X" rated material.997 "Model agent »
receive a flat daily fee for each model provided, and provide
producers with books containing pictures of those models
available."^ One such agent, William Margold, described to us
the "legitimate ad" he regularly places in a Hollywood
publication that, in his words, "lures, literally lures people in
on the guise of getting [a legitimate acting] job."999 After
they arrive at his office, Mr. Margold tells the prospects, who
"are all filled with the idea of becoming a star," what his
agency actually wants, and then warns them of the hazards of sex
modeling.1000 "Many people," he continued, "years later, would
call and thank me for not letting them into the industry, because
I would warn them out. I didn't need that on my conscience."1001
In view of the overall tactics employed by him and other agents,
Mr. Margold's "conscience" on this point seems somewhat overnice.
With regard to men involved in "modeling," by contrast,
recruitment practices seem far more straightforward. Males have
a substantially more difficult time breaking into pornographic
997 see, People v. Souter, 178 Cal. Rptr. llKCt. App., 2d
Dist., 1981) (pandering conviction of principal of World Modeling
Agency, which provided performers for commercial pornography
productions); People ex rel. Van DeKamp v. American Art
Enterprises, Inc.; 142 Cai. Rptr. 338(Ct. App., operation whicn
engaged its performers through "model agencies" Id. at 340).
998 LOS Angeles Hearing, Vol. I, William Roberts, p. 64-
999 Los Angeles Hearing, Vol. I, William Margold, p. 402~
03.
1000 Id. at 402.
1001 Id.
864
where men are concerned, according to Mr. Hargold,
Ihis is a closed shop" with only a few "superstars" who "end
up m all the videos. "1002 Those who are able to enter the
business often do so through the good offices of a new or
established female performer. 1003 some male models, on the other
hand, drift into pornography in ways similar to women - through
nude dancing, prostitution, or clever persuas ion . 1004
Recruitment of men may be easier because of what many male
performers describe as the ego gratification of working in
pornography.1005
b. Coercion. Efficient as it is, the normal recruiting
process for pornographic models is apparently not fully adequate
to meet producers' needs. It is an unpleasant, controversial,
but in our view well established fact, that at least some
1002 Bennett, Breaking into Rated Films, Hustler
Erotic Video Guide 71 (May 1986) ( interview with William
Margold). In this article Mr. Margold seemed to be referring to
heterosexual male modeling. With regard to modeling in
homosexual publications and films, there appears to be a much
Sroader demand for new and different faces. See generally, Hale
Model, supra note 926, at 172-86.
1003 Id. at 72. See, Porn Star Confessions, Erotic X-Film
Guide 51, 6tilMay 1986) (story of Marc Wallice, introduced into
Swedish Erotica" through Lisa DeLeeuw, established model).
1004,. L°s Angeles Hearing, Vol. I, George, p. 86.
i aancing and nude modeling"); Washington, D.C., Hearing, Vol. I,
77 ,'. p> 168 (prostitution); Male Model, supra note 926, at 176-
Inf ^frVlew with "John Rucculo" describing gentle persuasioninto nude modeling).
1005of T, L u 5|£' Male Model, supra note 926, at 182-86 (comments
»t la? i 9 ' wnose "reward" is principally "self-esteem" Id.
24 ("AUH ~Ut 8ee« Richard Pacheco Interview, supra note 986, at
and 85* • But hoW much of ifc do V°u like? RP:T5"% is pleasure
is trauma and hard work for which I'm very well paid.").
865
performers have been physically coerced into appearing l(|
sexually-explicit material, while others have been forced to
engage in sexual activity during performances that they had not
agreed to beforehand. We heard direct testimony from three
unrelated women who each described how brutal force was used to
push her into pornography.1006 The credibility of that testimony
was strongly reinforced by the testimony of representatives of
"sex workers,"1007 by a victim counselling agency;1008 and
1006 See, generally, Washington, D.C., Hearing, Vol. i
Valerie Heller, p. 217; Washington, D.C., Hearing, Vol. I, Sarah
Wynter, p. 175; New York Hearing, Vol,. I, Linda Marchiano, p.
47; Ms. Marchiano's testimony was actually a short summary of
her full account in L. Lovelace, Ordeal (I960), in which she
described her forced introduction and participation In
pornography by her husband and "manager" Chuck Traynor. Mr.
Margold discounted her testimony on the basis that "if you put a
gun to the head of the girl who's performing fellatio on you,
what would be left to perform fellatio on." Los Angeles Hearing,
Vol. I, William Margold, p. 414. This view is neither faithful
to the actual account of Ms. Marchiano's experiences nor
convincing in its logic. Harry Reems, who performed with Ms.
Marchiano in "Deep Throat," has more cogently questioned the
validity of her assertions by contradicting certain details of
her account of the filming of that movie. Harry Reems Interview,
supra note 987, at 28. Nevertheless he ultimately conceded that
he does not know whether Ms. Marchiano was coerced into making
"Deep Throat" or other movies, Id. , and at least one impartial
chronicler of the world in which she moved during the 1970s has
apparently found her story fully credible. R. Miller, Bunnyi
The Real Story of Playboy 162-66(1984). Based on their demeanor,
their lack ofany obvious motive to falsify, and the other
evidence we have heard, we can state that we believe the
testimony of Ms. Marchiano, Ms. Heller, and Ms. Wynter to be
true, and , in view of their sufferings from continued publ
exposure in this light, courageous as well.
1007 Los Angeles Hearing, Vol. II, Priscilla Alexander, P-
229. (Education Coordinator, COYOTE, National Task Force
Prostitution) ("There is certainly evidence that some w°me" ,tbeen forced to perform in sexually-explicit productions." 13*
229-30.)
866
insic evidence on the public record.1009
1008 Chicago Hearing, Vol. II, Terese Stanton, (founding
of pornography Resource Center which provides help to
of pornography) ("We have gotten calls from both womenV'Cl"en who are currently being forced into the making of
*nd oqraphy - asking us if there is anything we can do for them."
^V 6.)
1009 in hearings before the Minneapolis City Council in
one woman related how she was forced into pornographic
rf'ormance. Public Hrgs. on Ordinance to Add Pornography As
??fl^rlmination Against Women (1983), Session II at 49-52. Tn
fKose same hearings Professor Kathleen Barry, author of Female
:. aj slavery (1984) submitted al letter describing how some
Sornography is produced by pimps through the rape of prostitutes,
for reasons which "include personal pleasure of the pimp and his
friends, blackmailing the victim by threatening to send them to
her family, and selling to • the por nog r aphe r s for mass
production." Id. , Session I at 58-59. A street outreach worker
confirmed that young prostitutes are often raped by their pimps,
»ith the rapes photographed, held as a weapon to insure their
continued submission, and later "published in pornographic
magazines without their knowledge and consent." Id. Session III,
at 77. Because pornography and prostitution a~re so strongly
linked, it may of course be inferred that the coercion which
historically and currently afflicts the latter will play some
role in the former. See, R. Rosen, The Lost Sisterhood:
Prostitution in America, 1900-1918 (about 7.5 per cent of
prostitutes at the turn of the century were physically coerced
Into the profession); Silbert & Pines, Entrance into
Prostitution, supra note 987, at 484 (four per cent ot present-
day sample of prostitutes listed "physical threat" as the "major
reason" they entered prostitution); Badgley Report, supra note
1013, at 988 (3.6 per cent of juvenile male prostitutes and 15.9
P«r cent of juvenile female prostitutes were forced into
prostitution). Finally, although it has not yet come to trial,
•« note that a state court in New Mexico has received substantial
tMtlmony supporting the existence of a pornography ring which
kidnapped a young woman for use in a pornographic film but killed
Mr out of fear of discovery - testimony sufficient for the court
find probable cause and bind the suspects over for trial.
-__.• series of articles from Albuquerque Journal and Tribune,
ginning February 15, 1986, on file in Commission Archives.
•« beii«°r n?fc a conviction for murder is obtained in that case,lorcibl evidence is sufficient to strongly indicate that
tactics were used to secure female models for
§gg also, Jacobs, Patterns of Violence; A Feminist
Regulation ot Pornography^ 7 Harv. Women's
867
We also find highly credible the assertion of
enforcement officers that models more often face coercion to
them to perform specific sex acts that were not contract
for.1010 As one of them put it:
Coercion comes in, especially like some of these
witnesses have testified, in the area of anal sex,
which many of the models don't want to get into. it
really comes into a factor in the bondage and S&M type
films. I have talked to models and I have seen films
where it's quite obvious that the model had no idea as
to what they were getting into. Part of an S&M film,
when they start torturing the victim, tying them,
whipping them and putting cigarettes out on their body,
is the showing of pain. This is what sexually excites
some people.
Obviously we are no* dealing with people that can act,
so they can't act tlio pain. Therefore the pain is very
real. It's quite apparent these people do not realize
what they have gotten into once they start the
filming.1011
Certainly their pain may not be lightly dismissed.
At the same time we may not dismiss the strong assertions of
producers, agents, and models in the sex industry that perforrasri
are generally safe from physical coercion.1012 Actual force or
101° Los Angeles Hearing, Vol. I, William Roberts, p. "
100; Los Angeles Hearing, Vol. II, Catherine Goodwin, p. 78-79.
1011 Los Angeles Hearing, Vol. I, William Roberts, p
100. See note 1015, infra.II.»• I
1°12 Los Angeles Hearing, Vol. I, Les Baker, p. 203?~I Oi
(President, Adult Film Assn. of America) (describing coerci
Linda Marchiano, if it did occur, as "a tragically unfor "lnQ,
but nevertheless isolated phenomenon."); Los Angeles He .,
Vol. I, William Margold, p. 414-415; Statement of Candida' ^j)i
(denying any coercion used in inducing her to become a o(
1984 Senate Hearing, supra note 976, at 316 (testin»°n'^
Veronica Vera) (denied ever meeting "anyone, man or woman,
was not participating of his or her own free will.")-
868
1
at of force does not, indeed, appear to be a normal part of
ainstream" pornography production. Rather it seems
ntrated in the fringe areas of bondage, sadomasochism, and
home-made, noncommercial pornography. Force used to induce young
men to enter "mainstream" pornography appea'rs to be applied
most often not by filmmakers but by dominating "boyfriends" who
in fact play the role of pimp.10*4 All this said, it is never-
theless troubling that the Adult Film Association of America
nowhere includes in its "unofficial credo" a pledge to eschew all
forms of coercion in recruitment of models.10-15
c. Contractual Terms. Those models who enter pornography
voluntarily - that is, without having been physically forced-
can expect to enter their new employment under contractual terms
quite unlike any others we know of. They will by most standards
r,ra l°ll §£!' Los Angeles Hearing, Vol. I, George, p. 87 (" in
Q?.7r.°» TM 10S ^lmS' I haVe neV6r See" a ^rector "physicallygrab [a model] and force her to do a scene.").
"..rin^^u^/v^.^Verier,0^^.'1980'' WaShi"gt°"' D'C"
Th. » P » L°3 An9eles Hearing, Vol. I, Les Baker, p. 203B-3.
on oro/oV; acknowledges five "responsibilities " which center
Pornoaranh ° children and nonconsenting adults from seeing
P«rffirS
P hjfc n°"e °f them relate to problems of adult<'I have l'een^~' LH°S An9eles Hearing, Vol. I, George, p. 86-87.
'•'ling and throw! directors get really violent and have a lot ofth«V win ne«r ? things and threatening of the young ladies,
' Th«". you know agal" 1E they d°n<t Want to do a scene • •lt "fterwards ? '..K6^^ tlme T have seetl the ^irls, always regret
tc"""« they didn't wa^t" ^ * ^ °f Pain involved with doin9
869
be well paid - from $250 a day for established modelsioig
but
they will be paid strictly in cash1017 and normally by the numb
and type of sex acts performed.1018 Fringe benefits such a
medical insurance are unknown.1019 Models sign a standard
release form which gives the film producer or the photographer
complete ownership of, and unlimited rights to the material
produced.1020 Once they leave the movie set or the film studio
they have no guarantee of future employment and no ability to
control the use of the material in which they appear.
d. Working Conditions. During a typical day of filming an
1016 LOS Angeles Hearing, Vol. I, William Roberts, p. 65j
Los Angeles Hearing, Vol. I, Chris, p. 98; Los Angeles Hearing,
Vol. I, George, p. 85. (noting that he "would make between
$1,000 and $2,000 a week"). William Margold estimates that male
"superstars" earn $80,000 per year, while "newcomers" earn"around $200 per day." Bennett, supra note 972, at 71. Thehighest salary currently paid - to a female "superstar" - appearsto be $17,000 per day. Heather Wayne Interview, supra note 987,
at 58 (statement of Bruce Seven, prominent X-rated filn
producer).
1017 Bennett, supra note 972, at 71; Los Angeles Hearing,
Vol. I, George, p. 91.
1018 Los Angeles Hearing, Vol. I, George, p. 85; Los
Angeles Hearing, Vol. I, William Roberts, p. 65 ("going rate
being about $250 per sex act").
1019 LOS Angeles Hearing, Vol. I, George, p. 89.
1020 LOS Angeles Hearing, Vol. I, William Roberts, P- ™~
71. For the extraordinary effects of such releases See, If-—jj
v. Hustler Magazine, 607 F. Supp. 1341(0.C. Tex. 1985) jJPg-j,.docketed, No. 55-1359 (5th Cir. 1985) (child whose nude piccu ^
appeared in Hustler had no right to revoke mother's c°n!lj"entpublication, even though pictures had been taken for aitIal8O,
publication and sold to Hustler by photographer). °^^-~yft
Shields v. Gross 58 N.Y. 2d 338 (1983) (dismissing B ed
Shields'efforts to stop publication of nude, highly eropictures taken of her at age ten with her mother's consent;.
870
• rated movie or video a performer is expected to engage in at
least two sex scenes, in a manner pellucidly described by Mr.
to prospective male "stars":
You have to be a machine. You have to get it up, get
It in and get it off on cue. You have to be able to
completely divorce yourself from your surroundings and
be able to function in any situation. For example, if
you're working on location for a film shoot and staying
at a motel for seven days, you have to cope with being
In unfamiliar surroundings, getting irregular sleep and
living on McDonald's and Kentucky Fried Chicken, and
still be able to perform sexually no matter what else
is on your mind.1022
workdays are twelve to fourteen hours long, with videos requiring
three and films seven days to shoot.1023 During the filming of
sex scenes it appears to be standard practice to restrict access
to the set to the models and film crew; one actor is reported to
have "hastily [covered] his private parts" when a reporter could
see onto the set.1024 in mainstream pornography females but not
•ales are normally expected to engage in homosexual as well as
heterosexual sex,1025 while in male homosexual pornography women
1021 Bennett, supra note 972, at 72.
1022 Id.
1023 Id.
10(1 Q Goldman' On the Set of An Adult Film. Adult Video
12i3_21 / T^ 9enerallv- Badqely Report, supra note 924, at
'•sbian lanalvzin9 contents of 11 pornographic magazines, with
Portrayal 6neS being "a popular subject" while homosexual maler««<l "e,Te nonexlstent). in a recent review Hustler urgedcheck out" a film because of the "daring" performance
r««<leraofa raa,e -tad as . e revewno, he doesn't actually make it with another guy;
Continued- -ta as a "bisexual film director." The review
871
do not perform at all.1026
e. Health Risks. Precisely because sex is their job
models face health hazards of forbidding intensity. Work!
three to four days as week, with two sex scenes each day,1027
one model may have twenty-four to thirty-two different sexual
partners every month,, just through work. Even though soni
performers state that they receive regular medical check-ups,*°28
the odds of contracting sexually transmitted diseases are very
high - particularly because performers do not even have the
option of using condoms or other "safe sex" techniques.1029 Not
surprisingly, even the rumor that a model is infected with a
sexually transmitted disease can ruin his or her career,1030 but
just as obviously such a rumor will often fail to spread before
the disease has. Further, it is only the established "stars" who
this flick is daring, but not that daring." Hustler 18 (April 1986).
1026 A recent video which included bisexual activity
involving several men and one woman was dubbed by one "erotica
reviewer as "not, strictly speaking, a gay tape" and "probably
different from anything you've ever seen." Review, Hustler
Erotic Video Guide 90-91 (May 1986).
1027 Tne typical work week described by one of the models
in testimony before us. Los Angeles Hearing, Vol. I, George, p-
85.
1028 See> e.g. , Lynn Interview, supra note 977, at 30; Los
Angeles Hearing, Vol. I, George, p. 89.
1029 See , Pacheco Interview, supra note 986, at .25
(description by interviewer of "the only time I've seen a ruboer
being used in a porno movie.")
1030 i^ at 30. Bennett, supra note 972, at 72.
872
can choosy about their partners. 1031 One of the best known
described his own experiences in illuminating terms:
when you're a nobody, it doesn't occur to you to be
brave and ask, even though you have a lot at stake. I
didn't worry too much about that until the Herpes stuff
started to become real. Op until 1982, I had one clap
scare. I went and received shots for it. I don't know
if I ever had it or not. But I had contact with a
known carrier. In '82, we got pregnant for the firsttime and having Herpes was the difference between a
vaginal birth and a Caesarian section which made a
significant difference to us. And I didn't have Herpes
and I saw no reason to get it. So I began saying cate-
gorically that I wouldn't work with anyone that had
Herpes. I had to do this one part with someone who had
an active outbreak of Herpes, and we cheated the scene.
The person put a towel in her thighs and I ended up
f***ing the towel. We had no physical contact. Ironi-
cally enough, it turned out to be a beautiful
scene."1032
when asked who the Herpes carrier was, the model replied that he
had "kind of shielded it."1033
The advent of Acquired Immune-Deficiency Syndrome (AIDS)
•Iqht have been expected to produce drastic changes in sex
Industry practices, but the prevailing attitude seems best
1031
1032
Pacheco Interview, supra note 986, at 30.
Id.; See also, Los Angeles Hearing, Vol. I, George, p.
". (encountered S.T.D. in fellow performers); Lederer Interview,
?"P" note 969, at 66. ("Women who work in the pornography
business always have vaginal trichomoniasis or some infection
iron the working conditions, which run from bad to simply
"tolerable. At one point there was an epidemic of hepatitis and
us"*1)0 The con™unicable diseases spread quickly." Id.vuln KI That a "sex worker" population would be higRTy
« sho" t0 sexually transmitted diseases should hardly come asSee, w. Darrow, Prostitution and Sexually Transmitted•hock.
Diseases i
1033
.
Sexually Transmitted Diseases 109 (K.K.Holmes ed . 1984)
Id.
873
reflected in the following, recent comments in a
interview of Amber Lynn, a leading "porn star":
"HUSTLER: You're f***ing so many men these days,
aren't you afraid of AIDS? Many actors in the business
are bisexual.
LYNN: There's an incredible fear of AIDS sweeping
through the X-rated-film business right now. All of my
girlfriends are talking about it. We're scared to
death that we'll find out in three years we've only got
a few months left.
HUSTLER; Why do you continue your promiscuous career
then?
LYNN: I get a blood test regularly and am very careful
about the people I work with. Hey, life's a f***ing
gamble anyway, and there is where I want to be. I
can't think of doing anything else. That's not to say
I'm reckless. For instance, I won't f*** some guy I
know has been f***ing a bunch of other guys not for a
lousy thousand dollars. It's not worth it to me,
because if I get AIDS, then everyone I come in contact
with get it and not just the people I work with, but
the people I love and care about too. °34
Of course, even an occasional sexual contact with a member of a
high-risk group carries such a substantial risk of exposure to
AIDS1035 that the gamble Ms. Lynn embraces seems a peculiarly
misguided one.
f. Drug Use. Along with the insidious threat of infectious
1034 Lynn Interview, supra note 977, at 26-30.
1035 See, Curran, The Epidemiology and Prevent- ion of ^!i
Acquired Immune-deficiency Syndrome, 103 Ann. Internal M^di
557, (Sea (1965) ("the risk of exposure to HTLV-III/LAV »»*•«;;„
from a sexual encounter with an occasional partner for a g * ^
is very high, several times higher than for a heterosexual vlru»
woman.") Blattner, Epidemiology of Human T-Lymphotropxc^-.,.
Tvoe III and the Risk of the Acquired Immune-Deficiency svn"'-^—
103 Ann. Internal Medicine
874
se models face a more overt challenge to their physical
drug use, and in particular, use of cocaine. Few
ects of the world of pornographic modeling seem less free from
bt than the dependence of most performers, at one time or
another, on cocaine. The view of one prominent model that in her
world "everybody goes through a drug stage"1036 is perhaps
verstated; but involvement of a substantial majority of
performers in the use of cocaine seems highly probable. 1037 jn
the opinion of at least one model, drugs are necessary in her
work because "you have to hide, you have to keep your feelings
and emotions from being completely destroyed. Each day [in the
industry] erodes them away."1038 It is true that Mr. Les Baker,
President of the Adult Film Association of America labelled the
problem of drug abuse in his industry a "misconception,"
contending that such abuse "is a universal problem and we of the
A.F.A.A. just a small part thereof."1039 For nim drugs usage by
pornographic models is simply part of an infection spreading
1036 Ginger Lynn Interview, supra note 982, at 36.
1037 See, Los Angeles Hearing, Vol. I, William Roberts, p.
»8- ("Drugs play a very large part in [the pornography
Industry]; "George", supra note 1013, at 84 ("eighty to ninety
percent of the models do delve into cocaine"); Interview: Traci
Adult Video News 34 (Aug. 1985) ("Many girls go through
«ntal breakdowns or get into drugs really bad. They feel so
lone because there's just nothing there. So they get into the
°*e crowd and that's what keeps them going.")
Heather. eaer Way"e Interview, supra note 987, at 58.— i°£<J. Joanna Storm Interview, supra note 979, at 60 ("I guess I8ed Icocaine] to escape.") -
Los Angeles Hearing, Vol. I, Les Baker, p. 203B-7.
875
through the whole "entertainment industry."1040 William M
put it somewhat more positively:
I know that drugs are in my industry. I know that
drugs are in almost any form of creative people. Some
people seem to need them to do whatever they have to
do.1041
We of course are in no position to compare the severity
drug abuse in the pornography industry with that in other fields,
it is sufficient simply to note that by all accounts such abuse
exists and inflicts serious damage on those it touches.1°42
g. "Modeling" vs. Acting. The reference of Mr. Margold to
the "creative people" performing in mainstream pornography raises
for us, guite apart from the issue of drug abuse, a question of
substantial importance in attempting to describe the role and the
lot of models. To what extent is their work in fact "creative"?
More bluntly, to what extent are they actors as opposed to
glorified prostitutes? More than aesthetic judgments hang in the
balance: for if the performing in sexually-explicit films can be
called truly creative, it is possible to imagine it bringing
intangible, subjective benefits to models that scrutiny of
contract terms, working conditions and the like could never
reveal. Fortunately, it is an issue on which models themselv««
seem largely in agreement. Mr. Margold, himself a mode ,
1040
1041 Los Angeles Hearing, Vol. I, William Margold, ?• 4l
1042 See> Los Angeles Hearing, Vol. I, Les Baker, P- 2°3B"
(suicide of young model linked to drugs).
876
recently was asked, "Is acting ability and training an important
factor tin breaking into "X" rated films]?1043
His answer was
.imple and instructive:
No, I don't think so. I think what's most important is
being in the right place at the right time, having the
right connections and getting the right roles.1044
Margold went on to explain that the reason some male models
•get their foot in the door" but "fail to make it to super-
tardom" is not for lack of creative drive or talent, but because
they "cannot keep functioning reliably shoot after shoot."1045
One former model who testified before us was even more
careful about distinguishing "modeling" from "acting":
That also reminds me somehow, what I really wanted to
say is when you are paid, to 'act1 in these videos and
films and stuff, you know, a lot of them say that I am
an actor, I am an actress, or something, I am gettingpaid to act.
When the producer or director pays you, after you
leave, and before the shooting, you are paid not by how
many lines you have or by what part you have you may
have five lines or you may have 107 pages of dialogue,
but you are paid per sex scene and that's how they
quote it to you. If you have one sex scene a day you
get like two hundred to two hundred fifty dollars for
that, if you have two sex scenes, there's three or four
hundred for two sex scenes. You are paid more for anal
or girls are paid more for when they are working withtwo guys.
So the models that say they are getting paid to act are
only doing that to pretty much preserve their job
ecurity because, you know, anybody in the industry
Bennett, supra note 972, at 72.
1044 TJ
1045 Id.
877
knows you are paid per sex act and not for acting.1046
Several former models have made similar public assessments
declaring flatly that "the market today is just not conducive to
anyone who takes their acting seriously."1047 Adult filmmakers
shoot with only the barest of scripts, desperate simply to get
the requisite number of sex scenes on film with an alluring title
and package.1048 The result for performers is that, in the words
of a leading model:
You never really forget the sex, you forget the movie.
There's a lot of movies on the market that are exactly
the same.1049
When asked to remember a movie she was proud of, she tellingly
replied:
Yeah, I think one of the films I am most proud of is
'Sex Waves.' There was acting in it, a story to it . .
it wasn't an excuse to have sex.1050
As one knowledgeable observer told us, sex scenes are normally
1046 Los Angeles Hearing, Vol. I, George, p. 84-85.
1047 Where are They Now, supra note 970, at 52 (statement
of Jessie St~. James) . Accord, Id. (statement of Kay Parker)
("Empty plots, with soulless characters"), and Id. (statement 01
Candida Royalle) ("An actress has very little say over
creative aspects of the films she's in.")
1048 see, Los Angeles Hearing, William Roberts, Vol. !• p
62-72.
1049 Traci Lords Interview, supra note 1037, at 34.
1050 id.
878
* (n one take, and dialogue scenes in two or three:shot i" "
They do not spend a lot of time on the dialogue. They
do not look for perfection. If they [looked] for
perfection, most of the porn movies would still be in
production. The people they are using are not well
known actors and actresses and they are not very
skilled in this area.1051
prom our limited direct observation of "X"-rated material we must
agree: skilled acting seems irrelevant to what is depicted.1052
There are, of course, those who disagree. One model speaks
of always performing "within the character" he is portraying,
even in sex scenes;1053 another of how "[t]he voice changes, the
walk changes, the face changes, everything changes" while he
plays the character he has portrayed through ninety-seven
•features"; a third (more dubiously) of the "ultimate acting
challenge" involved in managing to "fool the public" into
thinking she enjoys the sex, which she considers pure "exploita-
1051 Los Angeles Hearing, Vol. I, William Roberts, p. 68.
1052 This general distinction between "acting" and
pornographic performing seems to have a parallel in the work offashion modeling:
Few male centerfold discoveries are fashion model
material. Carl Garrison and the select others who have
put their clothes back on to forge a career all possess
the requisite suit size - 40 regular or thereabouts-
as well as a special look and a special drive. On the
other hand, the requirements for nude modeling, as one
•K H 10ner for a male flesh magazine explains, areoody, face, cock," not necessarily in that order.
Pacheco Interview, supra note 986, at 24.
Male Model, supra note 926, at 185.
879
tion."io55 clearly it is impossible to draw a bright, unwaveri
line between legitimate "acting" and pornographic "modeling.
Yet, ultimately we are faced with the simple fact
acknowledged even by one of the most partisan of the adult £iim
industry's fans: "Jealousy and most other human emotions (excent
fear and lust) are rarely expressed in adult films."1056 Worse
as another sympathetic critic has conceded, "hard-core guarantees
realism, . . . yet it remains incapable of showing pleasure."1057
In a medium where virtually no human emotion (not even sexual
pleasure!) can be expressed, and where, moreover, the performers
are chosen neither for training in acting nor for natural acting
talent, it seems to us all but ludicrous to call them "actors."
We do not, therefore, consider it even the mildest paradox that
the performers in live or filmed pornography are not treated on
an equal footing as other performers by such organizations as
Actors Eguity and the Screen Actors Guild. 1058 Nor <jo we
consider one of the rising male models to be wholly misguided in
describing his job as, simply, f***ing pretty girls for a
1055
1056
li Moore Interview, supra note 976, at 9.
. Rimmer, The X-Rated Videotape Guide 28(1984).
1°57 G. Lenne,
5(Jacobs trans. 1985).
1058 It is our understanding that at least one prominent
pornographic model is a member of Actors Equity, but that
membership depends on work he did in the legitimate theatr
See, New York Hearing, Vol. II, Colleen Dewhurst, p. 190-91.
880
career Prospects.Just as sex modeling appears to
offer few opportunities for creative expression, so too it seems
to allow only sparse chances for long-term employment and
remuneration. The life of a typical model's career is extremely
short, usually not more than a few months or years. Of twenty
new male "stars" each year in "adult" films, only about half a
dozen will remain in the business for over a year. °" One of
the few women to survive long in the industry, when asked what
advice she would give to new female-models, replied:
I would tell them not to burn themselves out so fast.
What happens is that they become big names and everyone
wants them. A couple of years down the line, these
girls are going to find people telling them they're
overexposed. The typical line is something like we
can't pay you a great deal of money because you're not
a name yet. Then when they use you in every damn thing
around and you become dependent on the income, they
tell you we can't pay you very much because you're
overexposed. They're setting themselves up for a
really bad experience. I had a six year career. I
think the reason it was that long is because I would
only do three or four films a year. I tried to be
choosy. These new stars shouldn't depend on hardcore
as a full-time income. The directors are gonna grab
them, chew them up, and spit them out real fast.1061
Some models manage to remain for longer periods in the rated
1059 Porn Star Confessions, supra note 1003, at 61. See,
Joanna Storm Interview, supra note 979, at 63 ("Films letjne
express a lot of my 'extra sexual desire."
I'd probably be in bed with the postman.")
If I didn't do films,
probably
1060 Bennett, supra note 972, at 71.
1061
1985).Interview. Candida Rovalle, Adult Video News 38(July
881
world, but after they reach the age of forty almost never appea
naked, and only rarely appear in sexual intercourse.1062 uome
can almost never expect to hang on in any but minor roles after
age thirty,1063 although a few women have successfully moved into
production and management roles.1064 As for switching to
legitimate acting, Mr. Margold has said bluntly, "if someone
thinks he's going to get into mainstream through porn, he's
deluding himself."1065 Whether in films or traditional modeling,
his observation seems to hold fast.1066
As for money, models in the sex industry collect none of the
residuals on which professional actors expect to survive through
1062 Rimmer, supra note 1145, at 28.
1063 id.
1064 one such woman is Candida Royalle, whose written
statement is on file with the Commission. See also, Candida
Royale Interview, supra note 976. Other prominent women who have
survived in aspects of the "adult entertainment" business are
Dottie Meyer (management position at Penthouse), who testified
before us; Seka (mail order pornography business), and Veronica
Vera (writing for such "adult publications as Puritan magazine).
See, 1984 Senate Hearing, supra note 975, at 313-22 (statements
of Seka and Vera) .
1065 Bennett, supra note 972, at 72.
1066 See, Male Model, supra note 926, at 186
'"" film comDi
wu>, ,. .. you if you have done nudePlaygirl or for Playboy or whatever.") see ao.au, i.*.~ .
note 1006, at 284-86 (discussing death of Dorothy Stratton, whose
"death was a cruel blow to Playboy, since she was the ^*r?t
Playmate, of all the many Playmates, who looked as if she m1^
become a Hollywood star .... One after another, the playmate
disappeared into obscurity. ..." Id. at 286).
882
jean years. 1067 one angry former model was quoted at the time
left the business as follows:
And they deserve it. Do you know what it's like to
have somebody pay you five hundred dollars to do two
sex scenes, considering the money he's gonna get back?
If you want to know something, I've got nothing really
to show for it.1068
Her experience seems common, and her current dilemma wrenching.
4. Modeling and Personal Life. As a job, sexually-explicit
modeling has dramatically serious defects - from poor working
conditions to disease, drugs, economic insecurity, and exclusion
from mainstream acting. Modeling, however, appears to have
consequences for its participants that extend deeply into their
personal lives as well. Limited as our inquiry could be with
regard to the world of modeling in general - and to the personal
lives of performers in particular - we would be remiss if we
failed to take into account what evidence does exist. On the
xhole, we believe the evidence before us to be highly suggestive
In this area - suggestive as much of the attitudes of others as
of the feelings of the performers themselves.
A few of the performers in this field, to begin with, speak
1067 In this respect, as to a lesser extent with respect to
•<3« limitation, "modeling" in pornography is similar to
traditional modeling - which, unlike acting, is not organized in
and thus has never established residual, retirement, and
benefit standards. See, Male Model, supra note 926, at
s,ven
'
Heather Wayne Interview, supra note 987, at 58. Bruce
erv prominent X-rated film producer, was quoted in the same
;v,rf
ew as agreeing with Ms. Wayne, listing only four female
ers "w"° made anything out of it." Id.
883
in glowing terras of the experience. One of them, a former "p
of the Year" in Penthouse, described to us how her marriage had
remained strong and happy after her selection for the honorL and
then during her subsequent career at the magazine in management
positions.1069 Another, speaking before a Senate subcommitte
"not only for myself but for every woman that I know in the sex
industry," declared:
We do not see ourselves as victims. We do not need to
hide in the shelter of being somebody's victim. We
accept responsibility for our own lives.1070
And a third related how he had maintained a happy marriage and
fathered two children during his career adding that, in his
words, "I've made the decision that I will abide by the incest
taboo, completely."1071
Reassuring as these comments are, they stand in a clear
minority. William Margold once again offered the most straight-
forward summation of what modeling means for the personal
relationships of models:
Whenever I'm interviewing someone who wants to get into
porn, I always ask them, "Do you have anybody that you
will hurt by doing this?" It would be ideal if someone
had no relatives - disenfranchised human being devoid
of any past that would haunt them and any kind of
1069 New York Hearing, Vol. II, Dottie Meyer, p
Ms. Meyer, it should be noted, does not appear to have
in any material depicting actual sexual conduct.
1070 1984 Senate Hearing, supra note 975, at 317 (st*^*e
of Veronica Vera).Ms. Vera, of course, alluded elsew
having suffered sexual abuse as a child.
1071 Pacheco Interview, supra note 986, at 23-24.
884
<>sent or future that they could destroy. If it's a
he also better be single because, unless he's
"^rried to the most magnanimous of women, it will tear
ner insides out.
t on to point out its effects on the personal reputation of
,o*en involved.
And I'd like to point out that for a woman, there's
even more of a stigma than for a man. She'll be called
prostitute and a whore and thought of as sleazy,
cheap and slutty. And she has to understand that what
she does now will haunt her the rest of her life.1073
Kr. Margold's view, bleak as it is, has the weight of his
thirteen years' experience in the field behind it; it is,
•oreover, continually echoed in the testimony and public
statements of others who have knowledge of the industry.
Personal relationships, to begin with, appear to be severely
threatened by modeling in pornography. Romances as well as
family ties are often strained or broken. One young man, who
1072
1073
1074
Bennett, supra note 972, at 72.
Id.
See, e.g., Los Angeles Hearing, Vol. I, Chris, p. 93-
'< (relationship with boyfriend broken); Ginger Lynn Interview,
!JPra note 992, at 30 (being known as porn star "stops the whole
•agTcal process" of romantic attachment, but still accepted by
<a«ly>! Traci Lords Interview, supra note 1037, at 34 ("You
,°" t have a personal life.") Ali Moore Interview, supra note
'»i at 9-10 (modeling makes relationship with husband "very
ough ; family members "know nothing of any porn films"); Heather
nInlrr"'f"' supra n°te 987, at 32 )modeling "destroys your
'" and' according to Bruce Sevens, porn producer, "reallyUP relationshiPS.") Los Angeles Hearing, Vol. II, Miki
fiall v' H* 116* (Playboy "Playmates" suffer alienation from
>• 78 (t K ds)' But see> Los Angeles Hearing, Vol. I, Mary,vnusoand found TT was very hard for him to adjust . . .
885
had been lured into making "adult" films at age seventeen, t
us about his feelings after leaving modeling and entering a dru
rehabilitation program:
I don't know, I feel scared to have a sexual
relationship with a girl. I don't know what it's going
to be like or if I am going to ,be too rough.1075
Candida Royalle, a major "star" (and now producer) in the
industry, told Forum Magazine recently that after her marriage
she had ended her performing because "[o]nce wed. . . Sne
couldn't quite bring herself to do the sex scenes."1076 ^en
that may be of little avail: as one "X" rated film producer put
it, "A man getting involved with an ex-porn star will always
shove it back in her face."1077
What relationships do continue for models are often highly
negative. Thus many female models live with highly abusive
husbands or boyfriends, whose relationship to them is that of
pimp to prostitute.1078 Others report suffering rape!079 or
to me doing this . . . [and] wasn't very pleased with me," but It
"hasn't really affected my married life"; "several relative!
stopped speaking to me").
1075 Washington, D.C. Hearing, Vol. II, Jeff, p. 173.
1076 Candida Royalle Interview, supra note 976, at 42.
1077 Heather Wayne Interview, supra note 987, at 58.
1078 Lederer Interview, supra note 969, at 63; S«J'
Washington, D.C., Hearing, Vol. I, Sarah Wynter; Washingto .
D.C., Vol. I, Valerie Heller; New York Hearing, Vol. I<• £ <t
Marchiano. See also, Heather Wayne Interview, supra note 98/' t
58 (" [Erotic~Film Guide]: Actor William Margold also sa%s~e ol
actresses seek out abusive boyfriends and husbands, the dr » t?society, because they want to punish themselves. Any comro
886
demands that they service agents or producers. 1080 indeed, some
drift directly into "call girl" status.1081may
I was never viewed as a human being. . . . Most people,
riaht off the bat, assume I am a piece of meat, a porno
star, a floozie.1082
wavne: It's hard to find a nice man who'd want you. And I guess
ou figure you wouldn't deserve a nice man.").
1079 Lederer Interview, supra note 969, at 67; Los Angeles
Hearing, Vol. II, Miki Garcia, p. 116, 124.
1080 LOS Angeles Hearing, Vol. I, Chris, p. 93; 1984 Senate
Hearing, supra note 975, at 179 (Linda Marchiano statement).The
'casting couch" is, unfortunately, apparently not unique to the
pornography segment of the entertainment industry.
1081 LOS Angeles Hearing, Vol. II, Miki Garcia, p. 117.
Ms. Garcia, until 1982 the director of Playmate Promotions,
asserted that, among many other abuses, former Playmates "were
involved in an international call girl ring with ties to the
Playboy mansion." Id; Playboy Enterprises, in a letter from its
counsel of November 6, 1985, accused her of "bearing false
witness" in "efforts for self-aggrandizement," but offered no
specific evidence rebutting her accusations. Until she left
Playboy, Ms. Garcia occupied a position (conceded by all sides )
of responsibility and trust. Documents submitted to the
Commission by Ms. Garcia indicate, further that she had received
outstanding ratings for performance of her duties at Playboy, and
that at least at the time of her resignation had communicated her
feelings about the treatment of the Playmates with her superiors.
*• are, of course, in no position to evaluate the truth of this
•ccusation - or of the others included in her testimony - but we
•ee no clear reason why, as Playboy suggests, Ms. Garcia's
•ccount should be dismissed out of hand. It accords, indeed,
I IA statements submitted by two other former Playmates (Susanwaon and Brenda MacKillop), and in significant respects with a
lon7nt ful1 scale overview by an outsider. Miller supra note
f. ' ' "any girls drawn into this orbit found the world of
Sj^SPX was not a pretty place ....") Id. at 160. We can
reoarrti * thorou9h investigation of Ms. Garcia's allegations.l!.r<?ln9 Problems faced by the Playmates she supervised, which
sexual exploitation and harassment, rape, murder andI murder.
l»85). Interview; Linda Wong, Adult Video News 19(March
887
"Adult" publications even those which are "soft core," v^
models as products.1083 In the midst of that environment a yOu
female performer said that she "just hated [herself] everv
day"1084 and a young male told us it " [m] ade me fe
worthless."1""!' AS Andrea Dworkin has explained, that valuati
is a central element of contemporary pornographic modeling.1086
And it is a valuation we strongly reject.
C. CONCLUSIONS AND RECOMMENDATIONS
In sum, then, we have found, within the admittedly severe
limitations of the evidence, the following propositions to be
generally true of commercial pornography's use of performerai
(1) that they are normally young, previously abused, and
financially strapped; (2) that on the job they find exploitative
economic arrangements, extremely poor working conditions, serious
health hazards, strong temptations to drug use, and little chance
of career advancement; and (3) that in their personal lives they
will often suffer substantial injuries to relationships, reputa-
tion, and self-image. We acknowledge that exceptions exist to
1083 Los Angeles Hearing, Vol. II, Miki Garcia, p. 121.
1084 Heather Wayne Interview, supra note 1051, at 58.
1085 Washington, D.C., Hearing, Vol. II, Jeff, p. 171.
1086 A. Dworkin, Pornography; Men Possessing Women (1979)
("Contemporary pornography strictly and literally conforms to
word's root [Greek] meaning: the graphic depiction of
whores, or, in our language, sluts, cows (as in: sexual cattle*
sexual chattel) . . . ." id. at 200.
888
. tnese findings, and we concede, as well, that extremely
rough investigation might prove one or more of them untrue.
happily tne Power to conduct such an investigation is not in
r hands. And the industry itself, which of course knows the
full truth of the matter, has shown little interest in sharing
that knowledge with us. We are, therefore, left with the
unattractive but firm obligation to make recommendations in this
area based on what we in our limited way have been able to
uncover.
The approach we propose in this area is a cautious but
urgent one. Caution we believe to be required from the
incomplete character of the evidence currently available.
Urgency, however, arises from the extremely serious nature of the
harms apparently being inflicted on many young and vulnerable
people. Both of these interests will be best served, we believe,
If federal and state governments initiate thorough investigations
- by agencies or committees possessed of substantial resources
and full subpoena powers - of the use of "models." Those
investigations should, in our view, proceed from three related,
but distinct perspectives: pornographic modeling as (1) a subset
of prostitution; (2) a form of sex discrimination; and (3) an
Invasion of performers' personal rights. Briefly we will
consider the parameters of each of these perspectives and
Possible concrete courses of action available under each
lt Modeling and Prostitution. It seems abundantly clear
rom tne facts before us that the bulk of commercial pornographic
889
o C'T
modeling that is, all performances which include actual sexual
intercourse, quite simply a form of prostitution. So much was
directly asserted by representatives of prostitutes' organi-
zations who testified before us,1087 as well as representatives
of law enforcement and effectively denied by no one. Every
court which has examined the questions from this standpoint has
agreed, reasoning that where persons are paid to have sex it is
irrelevant that the act is for display to others.1089 As prosti-
tution is conduct which the state has a strong interest in
regulating, the First Amendment does not preclude that regulation
merely because it is labelled "speech" or is filmed.1 90 It is
also readily apparent that the interests which have in the past
most powerfully justified the state's concern over prostitution-
exploitation of the young and the weak, prevention of disease-
are just as strongly implicated by pornographic "modeling."
If upon further study our equation of prostitution and
1087 Los Angeles Hearing, Vol. II, Margaret Prescod, p.
215; Los Angeles Hearing, Vol. II, Priscilla Alexander, p. 224.
1088 LOS Angeles Hearing, Vol. I, James Docherty, p. 15.
See also, Chicago Hearing, Vol. I, Nan Hunter ("some women work
in both pornography and prostitution": statement does not
contest their overlapping character).
1089 See, United States v. Roeder, 526 F.2d 726(10th Cir.
1975), cert, denied 462 U.S. 905(1976); People v. Sonter, I78
Cal. Rptr. lll(Ct. App. 2d Dist. 1981); People ex rel. van ueKan
v. American Art Enterprises, 142 Cal. Rptr. 338(Ct. Appp- '
Dist. 1971?); People v. FixTer, 128 Cal. Rptr. 363 (Ct. App- z°
Cist. 1976); People v. Kovner 96 Misc. 2d 414 (sup. Ct. N.Y. c°'
1978). See also, People v~Marta, 203 Cal. Rptr. 685(Ct. ApP-
1st DistmsTTTdefendant convicted of pimping for hiring w°men
to have on-stage sex with customers in a theater).
1090 Id.; See, United States v. O'Brien, 391 U.S. 367(1968)>
890
"modeling" proves to be true, it is incumbent upon the federal
ernment an(j the states to consider carefully how to respond.
Some of our witnesses have in fact urged legalization of
ornographic modeling, and of all prostitution, as a means of
eliminating its clandestine character and allowing "sex workers"
to improve the conditions under which they labor.1091 Insofar as
that proposal would permit the recruitment of men and women into
prostitution, the promotion of prostitution, or the living on the
avails of prostitution - all characteristics, so far as we can
tell, of the producers and distributors of commercial pornography
- It flies in the face of established international mores,1092
1091 LOS Angeles Hearing, Vol. II, Margaret Prescod, p.
215; Los Angeles Hearing, Vol. II, Priscilla Alexander, p. 224;
Chicago Hearing, Vol. I, Nan Hunter.
The International Convention for the Suppression -of
the Traffic in Women and Children, League of Nations - Treaty
Series (1922) (No. 269) , adopted by twenty-eight member nations
of the League of Nations in 1921, established the duty of all
signatory states to punish the procuring or promoting the
prostitution of any women by force, or any woman under age of
twenty-one, even with her consent. See, V. Bullough, The History
ot Prostitution 184(1964). The United States, which of course
refused League membership, never acceded to the Convention. In
1949 the United Nations adopted the Convention for the
Suppression of the Traffic in Persona and of the Prostitution of
Others, which committed signatory states to punish the procuring
or the exploitation of the prostitution of another, without
f«gard to any age limit. Report of Mr. Jean Fernand-Laurent,
jjgecial Rapporteur on the Suppression ot Traffic in Persons and
Ine Exploitation of the Prostitution of Others, Economic and
Social council. United Nations (1983), Annex VII [hereinafter,
-Jtted Nations Report]"! At present both international
Stat ntlons are ln effect - although not ratified by the United
0( V5.8 and are supplemented by the Convention on the Elimination
Unit H Forms of Discrimination Against VJomen, adopted by the
"gnat ations ln 1979» which also requires (in Article 6) the
-' parties to "suppress all forms of traffic in women and
he« °" °f Prostitution of women." Id. Annex IX. On their
se agreements all seem fully applicable tocommercial pornography.
891
158-315 1. Q - 86 -29
n
longstanding national policy,1093 and simple good sense.1094 We
agree with the International Convention for the Suppression 0{
the' Traffic in Persons and of the Exploitation of th
Prostitution of Others, adopted by the General Assembly of the
United Nations in 1949, that the State should punish any person
who "Iplrocures, entices or leads away, for purposes of
prostitution, another person, even with the consent of that
person" or who "[elxplolts the prostitution of another person,
even with the consent of that person."1095 Lifting sanctions
against the "employer" seems no more attractive a solution with
regard to exploitation in pornography than it would, for example,
with regard to child or subminimum-wage labor. "Legalization,"
if extended to producers and others currently considered
"panderers" under state laws, would only make it easier for then
to persuade more vulnerable young people to participate in a
world that seems to us inherently abusive.
1093 The clearest expression of this policy is the White-
Slave Traffic Act (the Mann Act), ch. 395, 36 Stat. 825 (codified
as amended at 18 U.S.C. SS2421-2424) (1970 & Supp. 1985), which,
inter alia forbids interstate transportation of women or girl«
for the purposes of prostitution.
1094 For excellent discussions of the pitfalls of legalized
prostitution, see, K. Barry, Female Sexual Slavery, 128~^,
(1984); C. WinTck & P. Kinsie, The Lively Commerce 211~ :..
(1971); and of course the classic work studying legal!**
prostitution in 19th century Europe, A. Flexner, OK^CI-Itution »
Europe (1914). For a jolting overview of the pimp-prostitu
relationship, See, L. Lee, The Social World of the Feroaj-
Prostitute in Los Angeles, PH.D. Diss. (1982).
1095 United Nations Report, supra note 1092, at. 60 (Ann**
VII), quoting resolution 317 (IV) adopted by United Nations
December 2, 1949.
892
on
With regard to penalties directed at models themselves,
the argument for decriminalization seems much stronger,'
several grounds. First, it is not uniform policy in the
, trict of Columbia to make the simple act of prostitution
(without accompanying "solicitation") a crime.1096 second, those
ho are misguided, desperate or frightened enough to turn to
pornographic modeling are unlikely to be deterred by the
relatively light sentences typically imposed on those convicted
of prostitution.1097 Third, models are often so badly harmed by
their experience that the addition of criminal penalties to their
Buffering - which includes a never-ending fear that humiliating
photographs or films will be publicly exhibited - may seem
superfluous and cruel.1098 Finally, fear of prosecution may make
«uch models less likely to come forward and provide evidence
against those who exploited them. 1099
While we do not believe, therefore, that prostitution laws
1096 For a listing and analysis of state laws on
prostitution, See, Note, Right of Privacy Challenges to
Prostitution Statutes" 58 Wash U.L.Q. 7J9~, 471-80(1979) (four
•talesandDistrict of Columbia punish solicitation for
prostitution but not act itself). The act of prostitution was
not an offense under English common law. Id. at 443.
1097 See, Winick & Kinsie, supra note 1094, at 218-19.
See, e.g., Barry, supra note 1094, at 125-28; Fraser1098see, e.g., 1
5»E2It. supra note 936,at 530-37.
1099 Of course, it is also possible that with no fear of. , . ,
poll Prosecution themselves, models will be impervious to
b«i pressure to give evidence against their employers. On
•or^th thS threat of a prostitution charge - in every state no
to bet 3 m,isdemeanor ~ seems unlikely to persuade many modelscray their colleagues and thereby jeopardize their careers.
893
are a perfect weapon in every respect for protecting models fro
procurement and abuse, their application at least to producers
and agents seem fully justified. The experience of Los Angel6a
where pandering prosecutions and "red-light" nuisance abatement
actions have been successfully brought by police and prosecutors
deserves careful study in other jurisdictions. There seems
little warrant for a state or locality to tolerate the production
of commercial pornography that is as exploitative as that
discussed above unless its basic approach to prostitution itself
is radically different from the national norm.
Quite apart from the use of pandering statutes, however, an
approach that seems to us worthy of careful study is imposition
of sanctions on any persons trafficking in products or materials
which they know or have reason to know were manufactured or
marketed through the use of persons engaging in prostitution.
Such legislation would parallel existing legislation which
forbids trafficking in products manufactured through child labor
or through certain oppressive adult labor practices.1100 Because
not directed specifically at speech,1101 and because clearly
grounded in legitimate governmental interest in controlling
prostitution, it would seem likely to survive constitutional
1100 See, United States v. Darby, 312 U.S. 100(1914).
con
ee,
1101 A company which hired employees whose duties
of providing sexual services to potential clients of the
could be subject to sanction under such a law.
attack.1102 Given the federal government's long commitment to
tt-<5 powers to regulate interstate commerce to attack
use * *• K
ostitution in every form, we are, indeed, somewhat surprised
t such a proposal has not been seriously studied before now.
nevertheless, the idea is sufficiently novel and could affect so
ch commerce not directly within the purview of our charter that
we merely offer it for consideration and debate.
2. sex Discrimination. Along similar lines we urge careful
study by the Department of Justice of the extent to which
producers of sexually-explicit photographs, films, and video
tapes are acting in violation of federal civil rights laws, and
in particular of Title VII of the Civil Rights Act of 1964. ~"
That law provides, in pertinent part:
It shall be an unlawful employment practice for an
employer. . . to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because
of such individual's . . . sex.1104
1103
894
1102 Cf., New York v. Ferber, 458 U.S. 747, 761(1982)
(advertising and selling child pornography "provide an economic
•otive for and are thus an integral part of the production of
such material, an activity illegal throughout the nation. It
rarely has been suggested that the constitutional freedom for
speech and press extends its immunity to speech or writing used
•• an integral part of conduct in violation of a valid criminal
*t»tute. Giboney v. Empire Storage 7 Ice Co., 336 U.S. 490, 498
<1949)."); Wirtz v. Keystone Readers Service, Inc. 282 F. Supp.
''I (S.D. Fla.1968)(magazinesubscriptionservice violated"deral law prohibiting illegal labor practices by employing high
school student at below minimum wage).
1103 42 U.S.C. S2000(e).
1104 42 U.S.C. S2000 (e)-2(a)(l).
895
((TT
This provision has been interpreted widely to protect employ6e
from having to prostitute themselves to supervisors or submit
themselves to sexual intercourse or harassment to keep their
jobs.1105 One court declared flatly, "An employer may not
require sexual consideration from an employee as a quid pro quo
£or job benefits."1106
On its face this principle would seem to make illegal the
requirements that a performer engage in sexual activity as a
condition of his or her employment. There are, however, two
limitations on its scope that are at least arguable relevant to
production of pornography. The courts have ruled that sexual
demands (1) must be "unwelcome,"1107 and (2) must include
disparate treatment of the sexes.1108 The first of these
limitations does not seem a serious one: the overwhelming factor
motivating the sexual conduct of pornographic models is financial
need, certainly not a desire to have sex with the partner
assigned to him or her for the scene.110^ The sexual act is thus
1105 See, Hensen v. City of Dundee, 682 F.2<J 897, 908 (llth
Cir. 1982); Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981)l
Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979); Tomkins
V. Public Service Electric & Gas, 568 F.2d 983 (D.C. Cir. 1979))
29 C.F.R. S1064(l)(a).
1106 Hensen, supra note 1194, 682 F.2d at 908.
1107 I£. at 904.
1108 Id. at 904, 905.
1109 see, Text to notes 984-991, supra.
896
way "welcome" in the sense we understand the law to
empt.1110 With regard to the "disparate treatment":
irement, we note simply that women and men are normally paid
different rates in the industry for the same sex acts,im and
that women in mainstream pornography are expected to engage in
homosexual activity while men are forbidden to.1112
We therefore believe it likely that much of the commercial
production of pornography runs afoul of Title VII, even
considering the technical limitations on its reach. Further, we
believe that Title VII embodies a principle that should not be
strangled by technicalities: no one in this country should have
to engage in actual sex to get or keep his or her job.1113 TO
the extent that Title VII and comparable state statutes do not
currently reflect that principle, we urge serious and rapid
consideration of proposals to broaden their reach.
1110 Thus Hensen defined "conduct" as "unwelcome" if "the
employee did not solicit or incite it" and "regarded the conduct
as undesirable or offensive." 682 F.2d at 903. Model Ali Moore
is a vivid example of an employee finding such conduct
"unwelcome": "I'm not going to say all that stuff about how I
love to f**k on camera.... I guess I really don't like the sex
much." Ali Moore Interview, supra note 976, at 9.
1111 Los Angeles Hearing, Vol. I, William Roberts, p. 65.
112 In »gay» pornography, of course, women are excluded
altogether. Id.
1113 We emphasize "actual," for the simulated sexual
activity regularly engaged in by legitimate actors in their roles
does not provoke the same concerns as actual sex. Simulated
'«xual conduct does not impinge on personal privacy to so
enormous a degree; it risks no transmission of venereal disease;lt risks no pregnancy; and, finally, it carries no comparable
igma. FOr a comparison of sex modeling and legitimate acting,
5S£- text to notes 1043-1059, supra.
897
3. Invasion of Personal Rights. During the course of 0
review of the position of performers in pornography, we ha
encountered evidence that they suffer physical coercion, damage
to health, serious economic exploitation, and virtually complet
loss of reputation. The pornography which they helped create
will live on to plague them long after they have extricated
themselves from modeling. Its effects, subject performers to
long-term effects potentially worse than any other form of sexual
abuse, a fact noted tellingly by Dr. Ulrich Schoettle in the
context of child pornography.
Pornography is a graphic form of exhibitionism. Unlike
prostitution where a degree of "privacy" exists during
the sexual acts, pornography literally makes the
child's body "available" for anyone willing to pay the
price anywhere in the world.
The "privacy interests" of performers in pornography seem to us
real and compelling!!^ while the value of the material itself is
often indisputably minimal.
It, therefore, seems important for judges and lawmakers to
carefully consider how performers may be protected from the
unsavory characters who exploit them, and in particular what
civil and equitable remedies performers may have in court. There
has been disagreement in what we have heard over the current
status of the law in this regard; 1"* we |<now on\y that they have
1114 c_f. M»W York v. Ferber, 458 U.S. at 759 n. 10._
1115 compare, 1 «»«* Senate Hearing, su£T| note JJJ' •JonB,
(statement oT^Fherine "-cKinnon. iSt.tut.. ^ ^aTions **'act^^^fV^
D.C., Hearing, Vol. I, Barry Lynn, p. 24 25 <suc
898
been
inc
exceedingly rare, me if new remedies are needed, as we are
i'ned to think they are, they should be framed in ways to
ourage plaintiffs to come forward: perhaps by providing for
eble damages in certain types of cases (such as coercion or
fraud) and reasonable attorneys' fees.1117
We hope, too, that in studying the availability and
desirability of such private remedies, courts and legislatures
will be sensitive to the issue of "consent." Because of their
youth, their economic desperation, and their troubled back-
grounds, we submit that few performers are fully able to
appreciate the meaning and the magnitude of their decision to
engage in sexual performances - and throw away all control of the
resulting material for the rest of their lives. Just as it is
appropriate to provide consumers with extensive government
protections against the consequences of their ignorance, so every
adult needs special safeguards against making a decision which
even the pornography industry's strongest booster admits "will
unknown).
1116 The cases cited in notes 960-963, supra are the only
ones we have been able to uncover in this area.
1117 S. 1187, introduced last year by Senator Arlen
Specter, essentially contains both these provisions - treble
damages and attorney's fees - in seeking to help adult
pornography victims obtain compensation for production or
distribution of material in which they were coerced or
fraudulently induced to appear. We note that constitutional
Issues may arise if equitable remedies are not carefully tailored
to the First Amendment requirements, and that scienter is likelyto be of some constitutional relevance in determining how wide
'ne net of liability may be cast.
899
haunt her the rest of her life."1118
Otherwise she may find that photography's freedom from time
and space, so heartily welcomed by Bazin, has become her dungeon>
Bennett, supra note 972, at 72.
900
Chapter 3
Social and Behavior Science Research Analysis
Introduction
The Commission has examined social and behavioral science
esearch in recognition of the role it plays in determining legal
standards and social policy. This role, while notable, is not,
nor should it be, the sole basis for developing standards or
policy. The lack of funding and the inability under the mandate
of the Charter to conduct original research has resulted in the
need to rely on existing information. The amount of research
conducted in the last fifteen years provides a reasonably
sufficient base to reevaluate answers to old questions. Some
might argue that given the controversy and heated debate that
inevitably surrounds any discussion about pornography, in some
ways, we might be better off relying on studies initiated,
funded, and presented outside the context of s'uch a milieu.
The major question which frames this research review is:
what are the effects of exposure to pornography and under what
conditions and in what kinds of individuals are these effects
manifested? We also have structured this review with the
following considerations in mind: (1) that it provides some
Input into the policy-making process; (2) that it provides social
science information for public consumption and understanding; and
(3> that it provides the research community with further
Questions for investigation.
While the nature of effects is the focus of this section, we
901
have also examined public opinion on pornography to system-
atically describe the nature of public perceptions of and
experiences with such material as well as policy preferences. jn
terms of effects, correlational as well as experimental studies
on sexual offenders as well as on nonoffender populations were
examined. For background purposes, we have also presented brief
summaries of what some predecessor Commissions have concluded
about the social science evidence before them.
Some observations on terminology and on the character of
social science evidence are appropriate at this point as
guidelines to reading through the rest of this chapter.
We will simply avoid the usual definitional morass by using
the term "pornography" to refer to the range of sexually explicit
materials used in the various studies reviewed here. In a number
of studies, these materials have included sex education
materials. In describing specific studies, we also will use the
researcher's terminology of choice, but making sure that the
stimulus materials are adequately described for the reader.
We also are sensitive to the limitations and strengths of
specific research approaches and we have taken special efforts to
review these briefly in each major section of this Chapter, if
only to underscore the fact that our evaluation of the research
recognizes these limitations and indeed proceeds from the
assumption that any conclusions must be drawn on the basis °
complementary or convergent data.
902
erview of the 1970 Commission Research Conclusions
The period prior to the creation of the 1970 Commission on
Obscenity and Pornography was marked by a paucity of research on
the effects of exposure to pornography (Cairns, Paul and Wishner,
1962). A Commission-sponsored review of the literature in 1970
later concluded that "we still have precious little information
from studies of humans on the questions of primary import to the
law . • • tne data stop short of the 'critical point". (Cairns,
et al, 1970). Much of the Commission-sponsored studies thus
constituted some of the earliest investigations on the issue of
pornography.
The 1970 Commission funded over eighty studies to examine
various aspects of pornography. Surveys included a national in-
person survey of public attitudes toward and experiences with
pornography (Abelson, et. al., 1970). A number of correlational
studies examined social indicators of crime rates (Thornberry and
Silverman, 1970; Kupperstein and Wilson, 1970; Ben-Veniste, 1970)
while another cluster of studies investigated sex offenders and
their previous experiences with erotica, patterns of exposure and
self-reported arousal. Finally, another group of studies was
commissioned (laboratory experiments) to examine causal links
between exposure to pornography and effects (see Technical
Reports of the Commission on Obscenity and Pornography, vols. 1,
6- 7, and 8, 1970) .
The national survey findings (Abelson, et. al., 1970) showed
that between two-fifths to three-fifths of the respondents
903
believed then that sexually-explicit materials provided informs
tion about sex, were a form of entertainment, led to moral
breakdown, improved sexual relationships of married couples,
people to commit rape, produced boredom with sexuall
materials, encouraged innovation in marital sexual technique and
led people to lose respect for women (see comparison between 1975
survey findings and 1985 Gallup poll results below).
Experimental findings showed brief increases in sexual
activities and fantasies after exposure to sexually-explicit
materials but no significant alterations of established sexual
behavioral patterns. The Commission further determined that
there was no detectable relationship between availability of
pornography and crime rates in the United States but suggested
that removal of restrictions on pornographic material was
correlated with lower sexual crime rates, as determined from
Danish data prior to and after the removal of restrictions on
pornography (Ben-Veniste, 1970; Kutchinsky, 1970, 1973).
The 1970 Commission concluded!
. . . In sum, empirical research designed to clarify
the question has found no evidence to date that
exposure to explicit sexual materials plays a signifi-
cant role in the causation of delinquent or criminal
behavior among youth or adults. The Commission cannot
conclude that exposure to erotic materials is a factor
in the causation of sex crimes or sex delinquency (p.
223) .
The Commission's conclusions were challenged and a number of
methodological issues were raised (Cline, 1974; Eysenck and Nia8'
1980) . At the very least, these conclusions were described a9
904
• remature" (see Liebert, 1976). Researchers who have done
dies subsequent to the 1970 Report have also consistently
identified a I"aJor flaw in the 1970 studies: the absence of any
investigation of the effects of violent pornography.
On balance, however, the impetus for further research on the
effects of exposure provided by the 1970 Commission cannot be
overlooked. As the Effects Panel noted in its report,
One of the contributions of the work of the Panel has
been to place the dimensions of human sexual behavior
on the agenda for continuing inquiry. By providing
resources in terms of funds and technical guidelines,
the Panel has helped to legitimate systematic inquiry
into an area that heretofore has either been ignored or
feared.
It is difficult to quarrel with this observation.
Since the 1970 Commission report, in fact, numerous research
studies have been done exploring various aspects of the effects
of pornography. Since 1970 the quantity and quality of the
research has been impressive. While much remains to be explored,
not only has the volume of studies conducted steadily increased,
but the programmatic nature of the research conducted by various
individuals and research teams has provided a better insight into
understanding the various conditions under which certain effects
may or may not occur.
Studies done for the 1970 Commission were hampered by time
constraints. As the research director for the 1970 Commission
Pointed out, "most of the researchers had less than nine months
n which to establish a research team, arrange a research
905
i r
setting, develop measuring instruments, secure subjects, collect
the data, reduce the data, and write a report." (General Preface
to Technical Reports, Commission on Obscenity and Pornography,
1970, p. vii)
Methodological advances in measurement procedures have also
enhanced the reliability and validity of research instruments and
findings. For example, measures of sexual arousal in some of the
1970 studies were based almost entirely on self-reports (e.g.,
Cook and Fosen, 1970; Goldstein, et. al., 1970; Davis and
Braught, 1970). Since then, the poor correlation between self-
reports of sexual arousal to sexually explicit stimuli and
physiological measures of arousal has been well documented (Abel,
Barlow, Blanchard and Guild, 1977; Blader and Marshall, 1984).
More recent studies have used instruments such as the penile
plethysmograph (Malamuth and Check, 1980a), thermography proce-
dures (e.g., Abramson, et. al., 1981) or the vaginal photo-
plethysraograph (see Sintchack and Geer, 1975; Hatch, 1979) to
evaluate arousal (see also Geer, 1975; Heiman, 1977), or have
combined physiological measures (e.g., blood pressure readings)
with paper-and-pencil tests. Researchers have also attempted to
validate paper-and-pencil measures, a critical methodological
requirement (see, for example, Burt, 1980; Malamuth, In Press).
Finally, more sophisticated statistical techniques have allowed
for better data analysis, control, and interpretation. Multipl6
regression techniques, for instance, have allowed researchers to
specify how much each explanatory variable contributes to changes
906
in the variable being measured. Various other statistical
techniques have also helped in deciding whether correlational
data give any credence at all to the possibility of causal
linkages.
A final observation might be made with regard to stimulus
differences between the 1970 studies and more recent ones.
Stimulus materials used in the 1970 studies were obtained
primarily from sex research institutes (the Institutes of Sex
Research at Hamburg University in West Germany and at Indiana
University) and the Bureau of Customs confiscated contraband
collection. One researcher (Tannenbaum, 1970) resorted to
producing his own film which he described as showing a young lady
"going through the motions of disrobing in a fairly sensuous
manner in apparent preparation for the arrival of a lover."
These materials were also presented primarily in the form of
slides, magazine pictorials, mimeographed passages and film.
It is perhaps as much a function of availability and
changing technology that more recent studies have used as
stimulus materials films, audiotapes, videos, and material from
various "adult men'.s" magazines, all easily available from
outlets as diverse as the neighborhood video store, the corner
newsstand, or the local adult bookstore.
Other Pornography Commissions and Social Science Research
Other organizations which have studied pornography such as
"e Williams Committee in England and the Fraser Commission on
907
Pornography and Prostitution in Canada have also examined social
science research evidence on the effects of viewing pornography.
(Report of the Committee on Obscenity and Film Censorship, 197g.
Report of the Special Committee on Pornography and Prostitution,
1985).
The Williams Committee, working between 1977 and 1979(
commissioned two reviews of the existing literature. One review
examined the effects of viewing pornography (Yaffe and Nelson,
1979) and the other examined the effects of exposure to media
violence (Brody, 1977). Both reviews highlighted the difficul-
ties of studying human behavior and of understanding human
motivations. The review of the effects of viewing sexually-
explicit materials concluded that "there is no consensus of
opinion by the general public, or by professional workers in the
area of human conduct, about the probable effects of sexual
material." The review on the effect of exposure to media
violence similarly maintained that "social research has not been
able unambiguously to offer any firm assurance that the mass
media in general, and films and television in particular, either
exercise a socially harmful effect, or that they do not."
The long track record of media violence research and anti-
social behavior makes the latter conclusion somewhat surprising/
particularly since an opposite conclusion was arrived at by a
similar commission working under the direction of the United
States Surgeon General in 1972, which had examined the effects of
exposure to media violence (Surgeon General's Scientific Advisory
908
Committee on Television and Social Behavior, 1972).
The conclusions of the Williams Committee on the effects of
viewing pornography may not be as surprising since much of the
experimental work was published after 1978. It is not clear,
however, how much value these studies would have had for the
Williams Committee since its call for more research was
predicated on the importance of studying "the human personality
as a whole, rather than to specific questions about violent or
sexual materials and their supposed effects." (p. 4) The
Committee further appeared to give greater attention to
correlational studies as it examined in considerable detail
studies by Court (1977) and Kutchinsky (1973) The Committee was
highly critical of Court's methodology but also pointed out that
the Danish data did not lead to the conclusion that the avail-
ability of pornography resulted in a decrease in sexual offenses.
The Canadian Eraser Commission similarly sponsored a
research review (McKay and Dolff, 1985) and concluded that "the
research is so inadequate and chaotic that no consistent body of
information has been established. We know very well that
individual studies demonstrate harmful or positive results from
the use of pornography. However, overall, the results of the
research are contradictory or inconclusive." (Report of the
Special Committee on Pornography and Prostitution, v. 1, p. 99).
The commissioned review was exceedingly critical of the
•search, maintaining that the studies in every aspect exhibited
conceptually cloudy thinking," that they were characterized by
909
1
"blatant silliness" and had no integrating framework, that "th
literature is rife with speculation and unwarranted assumptions."
The low regard for behavioral science methods is evident
throughout the review, with major criticisms focusing on the
uselessness of the experimental paradigm (p. 86-87), and the
inability to draw conclusions from correlational research.
Despite this assessment, the Commission proceeded to recommend
criminal sanctions for sexually violent material and child
pornography and limits on public display for nonviolent
pornography. These recommendations were based on the
Commission's observations that these materials were contrary to
Canadian values of equality and human dignity.
It is obvious that the contribution of social science
findings to policy considerations can vary, from being the sole
or primary basis for policy recommendations, as was the case for
the 1970 Commission, to being close to irrelevant to such
considerations, as seemed to be the case with the Canadian
pornography commission.
PUBLIC ATTITUDES TOWARD PORNOGRAPHY
How does the public view pornography and have there been any
changes in public opinion in the last fifteen years?
Survey data from a national public opinion poll on the is3
of pornography were made available to the Commission by Newswe£_
magazine. The poll was conducted for Newsweek by the Gal
organization in March, 1985, and involved a sample size of
910
respondents interviewed by telephone.1119
Comparisons between the Gallup data, where appropriate, will
be made with the 1970 Commission survey (see Abelson, et. al.,
j970) to examine any observable change.
The 1970 Commission survey used face-to-face interviews from
February through April of 1970 with a random sample of 2,486
adults and 769 persons ages fifteen to twenty (Abelson, et. al.,
1970). For purposes of comparison with the 1985 sample, only the
data from the adult sample for 1970 will be used. The Newsweek-
Gallup poll was a telephone survey of 1,020 adults conducted in
March, 1985.
The 1970 survey was a far more wide-ranging survey covering
a host of areas including opinions on the effects of sexually-
explicit material for which some directly comparable poll data
are available from the Newsweek poll), the respondents' experi-
ences with sexually explicit materials, opinions on different
categories of sexual expllcitness, attitudes toward legal and
other forms of control, and attitudes toward different categories
of sexual explicitness.
In contrast, the Newsweek-Gallup poll was much more limited,
consisting of eight questions. For purposes of additional
1119, Surveys such as this Gallup survey which employ
Probability samples" are generally accurate within known limits,
•hi tf!6 samPle results can be applied to the population as a
tii wltnin the sampling tolerance ranges for a given sample
«rro' f°r this survey sample size of 1020 respondents, sampling•ver three percent. In practical terms, if we could contact
P«rcJni.nlember of tne population being described, the "real"
°t>Berv»H9e would be within plus or minus three percent of thePercentage for the sample.
911
comparison, a 1977 national Gallup poll provides another
point which allows comparisons with a 1985 question on th
applicability of national versus local standards.
Any comparisons between the 1970 and 1985 findings should be
made with caution, given the independence of both surveys and th
fact that only a few questions were exactly alike. in those
areas where questions were examining similar issues but were
worded the same, only the questions which were more narrowly
defined for the 1985 survey were included and any resulting error
would be on the side of conservatism. The distinctions between
direct and indirect comparisons are carefully noted. A major
objective is to note whether patterns observed in 1970 continue
in 1985. Comparisons will be made in the three areas: (1)
public exposure to sexually explicit materials; (2) perceptions
of the effects of pornography; and (3) opinions on the regulation
of pornography.
1. Public Exposure to Sexually Explicit Materials
The data from 1970 and 1985 are comparable only in a limited
way because of differences in the materials mentioned and changes
in technology (e.g., the widespread use of cable and home
videos). In 1970, for instance, the respondents were asked
they had "ever seen stag movies or skin flicks". In 1985,
respondents were asked whether they had gone to an X-rated ntov
or bought/rented an X-rated video cassette in the last yea jr.The
1985 respondents were asked if they had "ever read" magazi"
912
they
po
playboy, or Penthouse, while 1970 respondents were asked if
had seen or read a magazine "which you regarded as
raphic." Again, we note that this is a loose comparison,
IV afforded by the fact that the 1985 question is more specific
nature and, therefore, a more conservative estimate.
In response to the question whether they had seen or read a
azine "which you regarded as pornographic," one in five in
1970 said "yes," with twenty-eight percent of the men and
fourteen percent of the women responding in the affirmative.
However, half of the men and a third of the women in this group
were unable to recall the title. Of those titles mentioned, it
was clear that the term "pornographic1 embraced a wide variety of
material including Cosmopolitan, Esquire, Good Housekeeping and
Ladles Home Journal (Abelson, et. al., p. 23).
In contrast, two thirds of the 1985 respondents had read
Playboy or Penthouse at some time. Over a third said they
"sometimes buy or read magazines like Playboy" (37%) while
thirteen percent said they "sometimes buy or read magazines like
Hustler."
In 1970, fifteen percent of respondents said they had seen a
•ovie they regarded as "pornographic1 in the past year. Again
the range of titles mentioned included such films as Butch
Cjsaidy and the Sundance Kid, The Graduate, Easy Rider, and
Bonnie and Clyde, in addition to titles that could more likely
* 1 in the "adult" movie category. On the other hand, less than
8n Percent (7%) of the 1985 respondents had been to an X-rated
913
movie in the past year while close to one in ten (9%) na(j
purchased or rented an X-rated video cassette. The marked
difference between the questions asked at both time points
precludes any conclusion about any increase or decrease in film
viewing in the last fifteen years although the media fOt
purveying adult films certainly has increased.
In 1970 as in 1985, men, younger individuals, and those with
more education were more likely to have been exposed to sexually
explicit material than women, older respondents, and those less
educated (Tables 1 and 2). The differences in exposure between
men and women are fairly large both in 1970 and in 1985 but are
particularly striking in 1970.
At what age is the average person first exposed to sexually
explicit materials? Abelson, et. al. (1970) found that about one
in five males and about one in ten females had their first
exposure by age twelve. By age seventeen, over half of the males
(54%) and a third of the females had been exposed (p. 8). Those
exposed earlier also tend to differ from those exposed at a later
age. "Young adults, college-educated people, those with
relatively liberal attitudes toward sex, and people who have
experienced the most erotica recently are all disproportionately
more likely than others to have had their first experiences with
erotica at a young age" (p. 9).
No comparable age-of-first-exposure question was asked
the 1985 Newsweek-Gallup Poll. A few other studies h«v
similarly examined these questions and the results may ident
changes which have occurred since 1970.sny
Gebhard (1980) compared data collected by the Kinsey
titute between 1938 and 1960 (using only the data from white
leg and females with at least some college education —a total
f 4 388 respondents) to a much smaller nonprobability sample of
dergraduate males and females in one university in 1975. By
comparing responses to questions on age and source of first
knowledge of such topics as coitus, pregnancy, fertilization,
aenstruation, and venereal disease. Gebhard concluded that
•children and young people are learning the basic facts about sex
at considerably younger ages than did their parents and
grandparents" (p. 168).
For example, over half of each sex in the 1975 sample knew
of coitus by age ten whereas only a third of the earlier sample's
females and half of the males had this same knowledge at that
«ge. By age eight, thirty-one percent of the males in the Kinsey
• ample knew of pregnancy compared to sixty-three percent in the
1"5 sample; for females, it was thirty-one percent versus
••venty-six percent, respectively.
A second finding of this study was that sources of early sex
'"formation appeared to have shifted slightly in relative
Portance. Same-sex peers remained the major source in both
"»ples but to a lesser degree for the more recent sample, with
*rs and the mass media becoming more significant (ranked
°nd and third, respectively). These results, however, are
V suggestive because Qf the difficuity Of generalizing
914 915
beyond these particular groups of respondents and the limit
size of the 1975 sample. These data also gave little indication
of whether "mass media" includes pornography.
Another more recent set of data based on a national
probability sample of 1071 respondents is available from Canada
(Check, 1985). The Canadian results show that adolescents, ages
twelve to seventeen, report most frequent exposure of sexually
explicit fare. As Table 3 shows, two in five twelve to seventeen
year olds view such material in movie theaters at least once a
month; over a third (37%) see similar material on home videos
with the same frequency.
These results should be viewed with caution because of the
small numbers in this age group. The 1970 survey data demon-
strated a similar pattern. Respondents in the 1970 sample were
asked how many times during the past two years they had seen
photographs, snapshots, cartoons or movies of a list of sexually
explicit items. Adolescents reported more frequent exposure than
adults, with three in ten of the adolescents saying they had seen
such material six or more times in the last two years compared to
one in four adult males and one in seven adult females.
In comparing his results to the 1985 American Newsweejc-
Gallup data discussed above for comparable questions, Check foun
parallel results at least for sexually violent material. Results
on nonviolent fare could not be compared because of the dii
ences in question wording. This consistency and the fact
over eighty percent of the sexually explicit material in can
916
fs from the United States (Special Committee on Pornography and
prostitution, 1985, p. 161) might suggest that the Canadian
results may not be dissimilar from what might be found in the
United States.
917
r
Table 1
previous Exposure to Sexually Explicit Materials, By Age
and Gender: 1970 Commission Survey
21-29 30-39 40-49 50-59 604-
yes, have seen
stag movie
Yes, have seen
akin flick
women
yes, have seen
stag movie
yes, have seen
skin flick
54%
49
17
15
55%
28
12
10
44% 43%27%
22
13
12
H * 2482
Question: "There are some movies called stag movies or party
•ovles. These are not shown in regular theaters, but are shown
In private homes or private parties or at club meetings. Have
you ever seen stag movies or party movies of this kind?"
Question: "Nearly every city has one or more theaters that
«P«cialize in showing movies that feature a lot of nudity and
'uggestions of sexual activity. These movies are sometimes
filed "skinflicks'. Have you ever seen these kinds of films?"
IT«ble 13, Abelson, et. al., 1970, p. 17)
I
919
Table 2
Exposure to Sexually Explicit Material, By Age, Gender,
and Permissiveness: 1985 Newsweek-Gallup Survey
Men
SLariddtds StandVriJs —
18-20 30-49 50+ Stricter Less stri
Ever read Playboy
or Penthouse 91% 92% 70% 77% 88%
Sometimes buy/read
magazines like
Playboy 63 58 29 29 61
Sometimes buy/read
magazines like
Hustler 28 24 11 11 26
Went to X-rated
movie in past year 12 9 6 3 12
Bought/rented X-rated
video cassette
in past year 17 14 4 7 13
Women
Standards Standards
18-20 30-49 50+ Stricter Less Strict
Ever read Playboy
or Penthouse 64 62 28 41 61
Sometimes buy/read
magazines like
Playboy 40 32 5 18 31
Sometimes buy/read
magazines like
Hustler 15 5 0 3 8
Went to X-rated
movie in past year 14 4 .3 3
Bought/rented X-rated
video cassette
in past year 12 8 .9 4 1U
N = 1020
920
Table 3
Frequency of Viewing Sexually Explicit Films in
Movie Theaters and on Videos, By Age
(Canadian National Sample)
Movies
12-17 18-34 35-49 55+
Never 28% 34% 48% 74%
1-2 times/yr 22 44 35 12
1/mo. or more 39 12 74
Videos
12-1") 18-34 35-49 55+
Newer 32 33 50 83
1-2 times/yr 22 37 25 7
1/mo. or more 37 23 20 5
H • 1071
Notet "Don't Know"/No Response not included
(Check, 1985)
921
trr
Public Standards of Acceptability
The 1970 Commission survey examined standards of accepta
for various categories of explicitness in two types of media.
movies and print. Table 4 shows that there was slightly great
tolerance for sexual explicitness in the print media than i
movies (if one compares the percentages of persons advocatin
total bans on various categories). The print category presents a
problem since it does not distinguish between textual and visual
or photographic material, which might be found more often in
books and magazines, respectively. Restrictiveness also
progressively increases the more the behavior departs from what
respondents might consider normative. A reanalysis of the 1970
survey data does confirm this observation of acceptability based
on perceived normativeness and, in addition, showed that
judgments were also related to community size and medium
(Classman, 1978).
In 1985, slightly different distinctions appear to be made
(Table 5). Greater tolerance is shown for film (both theater and
video tape cassettes) than for print, with the public more likely
to suggest no restrictions for the former. While the survey does
not use the wider range of distinctions of sexual activities
provided 1970 respondents (a limitation imposed no doubt because
of the telephone procedure), the three categories used nudity.
sexual relations, and sexual violence provide a suffiden
diverse range of themes. The data clearly show greater toleran_.-„.,id
for nudity, with a majority maintaining that restrictions
922
should
ly apply to P<Jblic display. There was least tolerance for
ual violence, with a majority advocating banning such
terial. What has been called the "VCR morality" is also very
. £n evidence here with more than a quarter of the respondents
pting f°r no restrictions on X-rated video tape cassettes.
Nearly one in four respondents did not object to the sale or
rental of video cassettes featuring sexual violence as long as
there is no public display.
These differences are clarified further when one takes into
account the respondent's age and gender (Table 5). The young are
clearly less opposed than the old, and men more than women, these
patterns appearing with fairly high consistency.
There also appears to be some interaction between these
demographic characteristics. Greater numbers of older men tend
to be more permissive than older women, with about twice as many
•en over fifty suggesting no restrictions on materials across the
board. The gap between men and women narrows significantly among
younger respondents (those between eighteen and twenty-nine),
»lth women just as likely as men to favor no restrictions on all
•aterials except magazines with nudity and the sale or rental of
"Ideocassettes. Men were more likely to favor no restrictions on
these materials than women.
Has there been an increase in permissiveness in the last
"fteen years? Again, while some of the categories between 1970
85 are not directly comparable-, a reasonable comparison can
for the category describing depictions of sexual
923
158-315 1.0 86 - 30
intercourse. For the 1970 sample, only four percent advocated
restrictions on depicting intercourse in books and magazines and
the same percentage advocated no restrictions for movies as well
In 1985, twelve percent advocated no restrictions on "magazines
that show adults having sexual relations." Twenty percent
favored no restrictions on "theater showings of X-rated movies."
The assumption we make here, of course, is that most respondents
associate X-rated movies with depictions of sexual intercourse
but these comparisons are made with this caveat in mind. With
the exception of sexual violence in magazines, the percentages
opting for no restrictions on various categories of materials are
also higher in 1985 than in 1970.
Finally, the 1985 sample was asked whether there should be a
single nationwide standard or whether local community standards
should be applied. Comparable data collected by the Gallup poll
in 1977 provides another data point. As Table 7 shows, respon-
dents in 1985 were almost evenly divided on whether a national or
community standard should be used (forty-seven percent versus
forty-three percent). The numbers who prefer to see local
community standards applied have remained about even in 1977 and
1985 — about four in ten respondents. There were as many who
indicated standards should be stricter in 1977 as in 1985—
forty-five percent versus forty-three percent. Additiona
analysis shows that those who indicated standards should
stricter were more likely than those who said standards should
less strict to favor application of a national standard (5
924
to
). Six in ten women were also likely to favor a stricter
andard compared to four in ten men.
In the last year, this gap between men and women appears to
have increased even more on the issue of restrictiveness. A
Washington Post-ADC News survey in February, 19861120 asked the
question: "Do you think laws against pornography in this country
are too strict, not strict enough, or just about right?" Among
men, ten percent said they were about right, forty^one percent
jaid they were not strict enough, and forty-seven percent said
they were about right. Among women, on the other hand, only two
percent said the laws were too strict, while seventy-two percent
— seven in ten women — maintained they were not strict enough.
Almost a quarter (23%) said they were just about right.
r»bru The Wasnina.ton Post-ABC News poll was conducted
n,t, ary 6 ~ 12, 1986 by telephone among 1,504 men and women
Points The mar9*n of error is plus or minus three percentage
925
Table 4
Public Permissiveness, by Medium and Content: 1970
In Movies In Books, Magazines
Total Some No Total Some No
Ban Rest. Rest. Ban Rest. Rest.
Sex organs showing 45% 46% 5% 41% 47% 7%
_ _ ,, - * 40 44 4intercourse 50 42 4 48 «4 4
Activities with 62 31 3 58 .34 4
sane sex
Oral sex 62 30 3 58 33 4
Whips, belts 65 26 4 60 30 5
Question: On top of this card are descriptions of sexual
material sometimes shown in movies in regular theaters (found in
orinted material). On the bottom of the card are some opinions
about who it is all right to admit to movies showing such
material. (These could be stories in books, magazines, paperback
books, or on typewritten pages) For each description on top, tell
me which, if any, group on the bottom it is all right (to admit
to these movies) (for the material to be available).
Key: A - None. There is no one it is all right to admit.
B - It is all right to admit people like me but not
C - 'Vt^u'all right to admit adults 21 and over but
not persons under 21.
D - It is all right to admit persons 16 or older but
not persons under 16. .
E - It is all right to admit anyone who wishes to oe
admitted.
(Appropriate variations in Key made for Print version)
For categories used above, A = Total BanB, C S D = Some Restrictions
E = No Restrictions
i 1970'(Reconstructed from Tables 120 and 122, Abelson, et. al.,*
pp. 102-103)
926
I
Table 5
Public Permissiveness, by Medium and Content:
Newsweek-Galluo Survey
Totally No Public
Banned Display
Magazines that show nudity 21% 52%
Magazines that show adults
having sexual relations 47 40
Magazines that show sexual
violence 73 JQ
Theater showings of X-
rated movies 40 37
Theater showings of
movies that depict
sexual violence 68 21
Sale/rental of X-rated '
video cassettes for
home viewing 33 39
Sale/rental of video
cassettes featuring
sexual violence 63 23
1985
No Res-
trictions
26%
6
20
9
o 7£. 1
13
Sd°be tOtaUrLnn^ ?** V""' tCU Me lf y°U feel ifc
lono »« ft, , Y banned for sale to adults, sold to
ilS n^ rirtVlct'o™?1"1"10 dlSPlay' °r Sh°Uld be S°ld
927
„
adults as
to adults
Table 6
Medium, Content Type, and Level of Restriction -
Comparisons by Gender and Age:
1985 Newsweek-Gallup Poll
Women
A. Materials Should be Totally Banned
Men _____
16-29—fo^49 50+" 18-29 30-49 50+
6 6% 9.1% 29.9% 14.8% 20.6% 41.2%Magazines - nudity 6.6% y.i* ^
Magazines - adults having
sexual relations
Magazines - sexual
violence
Theaters - X-rated
movies
Theaters - sexual
violence
Sale/rental - X-rated
video cassettes
Sale/rental video cas.
w/ sexual violence
26.8 35.6 57.2 31.6 49.6 76.2
57.7 73.1 71.7 61.9 81.3 87.2
28.7 22.2 46.7 27.0 39.0 69.0
57.7 63.1 68.4 53.3 75.2 85.2
17.6 19.1 42.8 20.9 31.5 54.8
47.8 60.0 62.8 49.2 69.6 78.8
928
Table 6 (cont. )
. No Public Display of Materials
Men Women
Magazines - nudity
Magazines - adults having
sexual relations
Magazines - sexual
violence
Theaters - X-rated
movies
Theaters - sexual
violence
Sale/rental - X-rated
video cassettes
Sale/rental video cas.
w/ sexual violence
18-2930-495T5T 18-2930-495o7
50.7% 59.1% 43.8% 63.9% 54.0% 41.2%
52.6 49.7 32.6 53.3 37.9 18.6
32.4 17.5 21.1 30.7 13.4 10.1
40.4 48.4 30.3 46.3 40.7 17.7
27.9 23.1 18.4 35.7 16.7 8.7
39.7 43.8 29.9 50.4 43.2 28.7
33.1 24.1 18.8 35.7 17.5 13.0
929
Table 6 (cont.)
C. No Restrictions on Materials
Magazines - nudity
Magazines - adults having
sexual relations
Magazines - sexual
violence
Theaters - X-rated
movies
Theaters - sexual
violence
Sale/rental X-rated
video cassettes
Sale/rental video cas.
w/ sexual violence
Men women
13-29" 30-49 50? 18-29 30-49 50T
41.5% 30.0% 25.0% 21.3% 24.0% 16.2%
19.1 14.7 9.9 14.3 11.7 4.3
7.7 9.1 5.6 7.4 5.6 2.6
25.0 27.8 19.7 23.8 16.2 9.6
11.8 12.2 10.2 9.8 6.1 3.5
40.1 36.6 25.0 28.3 24.5 12.8
18.4 15.6 15.1 14.3 12.3 6.7
930
Table 7
Application of Standards to Obscenity/Pornography
A. National versus local standards:
A national standard
Community set own standard
Shouldn't be any (volunteered)
Don't know
Question: In determining whether a book, magazine or movie is
obscene, do you think there should be a single, nationwide
standard or do you think each community should have its own
standard?
1977 Gallup
Poll
45%
39
9
7.
1985 Gallup
Poll
47%
43
5
5
B. Change in Standards:
Should be stricter
Should be less strict
Kept as they are
Don't know
1977 Poll
45%
6
35
14
1985 Poll
43%
4
48
5
Questions Do you think the standards in your community regarding
the sale of sexually explicit material should be stricter than
they are now, not as strict or kept as they are now?
931
Perceptions of Pornography's Effects
Respondents are just as likely in 1985 as in 1970 to
perceive both positive and negative effects from exposure to or
use of sexually explicit materials (Table 8). However, there is
a significant increase in the numbers who perceive negative
effects from 1970 to 1985. 1970 and 1985 data in this case were
directly comparable since the same categories of effects were
used.
The most significant changes were in the areas of violence
toward women, with the number of respondents indicating these
materials could lead some people to lose respect for women
increasing from forty-three percent to seventy-six percent and
those believing they lead some people to commit rape or sexual
violence increasing from forty-nine percent to seventy-three
percent in 1985. Whether this reflects greater sensitivity
toward women or greater consciousness of sexually violent
material available or both is unclear. A slightly greater number
in 1985 than in 1970 were also likely to think that sexually
explicit materials provide a safe "outlet for people with sexual
problems" (34% to 27%) while the number of people who agreed that
these could help improve the sex lives of some married couples
remained the same (47%).
932
Table 8
Perceptions of Effects of Pornography - 1970 and 1985
(Percent Saying "True")
They provide information about sex
They lead some people to commit rape
or sexual violence
They provide a safe outlet for
people with sexual problems
They lead some people to lose
respect for women
They can help improve the sex
lives of some couples
They provide entertainment
They lead to a breakdown of morals
(Base)
Question for 1985: "Thinking of sexually explicit magazines,
movies, video cassettes, and books, tell me if you believe thefollowing are true or not true:"
Question for 1970: "On this card are some opinions about the
effects of looking at or reading sexual materials. As I read the
letter of each one, please tell me if you think sexual materials
do or do not have these effects." Item choices provided the 1970
respondents were worded in the same way or were reasonably
similar: "Sexual materials provide information about sex;" ". .
• lead people to commit rape;" "... give relief to people who
have sex problems;" "... improve sex relations of some married
couples;" ". . . provide entertainment;" ". . . lead to a
breakdown of morals." The 1970 survey had five additional itemsn°t included here since these were not utilized by the 1985Ngwsweek poll.
1970
61%
49
27
43
47
48
56
(2486)
1985
52%
73
34
76
47
61
67
(1020)
933
Public Perception of Pornography as a Social Problem
1970 respondents were asked to name "what you think are th
two or three most serious problems facing the country today?" ^t
the height of the Vietnam War, not surprisingly, more than half
named this event the most important issue, followed by racial
conflict and civil rights, and thirdly, by the economy (36% an(j
32%). Only two percent said they were concerned about erotic
materials. The 1985 Gallup survey asked the question of
perceived importance in a different ways by evaluating the
problem relative to other social problems and asking the
respondent to judge whether progress was being made to solve
these problems (see Table 9). •
934
Table 9
perception of Pornography as a Social Problem
(1985)
Making Losing Staying Don't
Progress Ground About same Know
ajpreventing violent
crime
bJStopping drug
addiction
c)Controlling porn.
d)Dealing w/ air
pollution
19%
28
20
38
37% 42%
42
33
20
26
38
36
2%
4
9
Question: 1 am going to name a number of problems facing the
nation. For each, tell me if you feel this is a problem on which
we are making progress, losing ground, or staying about the same.
935
There is greater overall public tolerance for sexually
materials. However, public opinion on restrictiveness
clearly differentiates among different media, content depictions,
and public access to such materials. There is a preference for
no public display of materials featuring nudity and nonviolent
sexual activities whereas a majority favor banning materials that
depict sexual violence. There is also a greater willingness to
impose restrictions on theater showing and magazine publication
of sexual activities than on home videos.
The most frequent exposure to pornography is reported by
adolescents between twelve to seventeen, a finding reported by
the Canadian as well as the 1970 Commission survey. While sexual
knowledge appears to be acquired at younger ages, it remains
unclear what role pornography plays in this "sex education"
process.
Finally, the public perceives both beneficial as well as
harmful effects from exposure to sexually explicit materials.
Some maintain these materials help improve sex lives of some
people, that they provide information about sex, and also provide
entertainment. A significant number also feel they lead to a
loss of respect for women, a breakdown of morals, and the
commission of sexual violence. The changes between 1970 and 1985
are most apparent in the increase in the numbers who perceive
that exposure to these materials lead to loss of respect for, and
"e commission of sexual violence against, women.
937
I
SEX OFFENDERS AND PORNOGRAPHY
A common contention is that exposure to pornography leads to
the commission of sex offenses. There are two ways one can
examine this contention: (1) by looking at the relationship
between sexual offense statistics and the availability of
pornography, and (2) by examining interview data from sex
offenders, investigating the mechanics behind the onset of
deviancy and the role of pornography in the commission of sex
crimes.
The examination of aggregate social indicators of
pornography availability and sexual offense statistics provides
another view of the potential relationship between pornography
and these offenses. It offers another way of validating results
of the laboratory studies or from individual surveys. For
example, if the results indicate a higher incidence of sexual
aggression in the laboratory studies as a consequence of exposure
to particular types of stimuli, and if surveys reveal that
individuals who report higher levels of exposure to similar
materials also tend to exhibit higher levels of sexual
aggression, and if these findings are corroborated with a
correlation between aggregate measures of availability and
offenses, then we have reason to be more confident in an
assertion that exposure to the class of materials in question has
a substantial relationship to sexual aggression.
In the case of sex offenders, a comparison of their arousa
patterns to those of nonoffender groups is vital, particularly as
938
these patterns correlate with sexual aggression and attitudinal
easures. It is reasonable to suggest that findings among
nonoffender males who are aroused to coercive sexual themes and
who also tend to be more sexually aggressive would be more
meaningful if matched by similar patterns among those identified
as sex offenders.
From the perspective of the offenders and society as well,
understanding their behaviors is critical because of the social
costs in terms of victimization. While the number of sex
offenses reported by incarcerated sex offenders appears to be
small, results of clinical interviews, conducted with outpatient
sex offenders (with great lengths taken to assure
confidentiality) reveal that the number of crimes committed by
the average sex offender is far greater than generally has been
estimated (Abel, Mittelman, and Becker, 1985). Data from two
psychiatric clinics obtained from 411 sex offenders revealed a
staggering number of multiple victimizations per offender. These
offenders attempted an average of 581 sex offenses and completed
typically about 533 offenses each, with a mean number of 336
victims each. These attempted or completed offenses were over an
average period of twelve years (Abel, Mittelman and Becker,
1985).
Aggregate Indicators; The Incidence of Sex Offenses and
Egrnography Availability! "
One of the most frequently cited studies has been the
939
analysis of sex crimes in Denmark before and after the
legalization of pornography in the 1960s (see Kutchinsky, 1973.
Ben-Veniste, 1970). Kutchinksy's data showed a drop in the
number of reported sex crimes after legalization and he argued
that the availability of pornography is cathartic as it siphons
off potentially dangerous sex impulses -- the "safety valve
theory" (Kutchinsky, 1970, p. 288; Kutchinsky, 1973)_
Kutchinsky's work was lauded by the British pornography
commission (Williams, 1979) for its thoroughness and the
restraint with which he interpreted his findings. It singled out
the dramatic reduction in offenses against children coinciding
with the availability of pornography and, while the Commission
did not endorse the "safety valve" hypothesis, agreed that
Kutchinsky's interpretation was plausible, absent any other
likely factor (p. 84).
On the other hand, Kutchinsky's study and conclusions did
not go unchallenged. First, the weight of empirical evidence
amassed in the last two decades by social psychologists,
particularly in the area of media violence and aggressive
behavior, hardly supports catharsis (see Weiss, 1969; Geen and
Quanty, 1977; Bandura, 1973; Bramel, 1969; Comstock, In Press;
NIMH, 1982).
Second, a number of problems have been raised with
Kutchinsky's analysis and interpretations (see Cline, 1974'
Bachy, 1976; Court, 1977; Baron, 1984; Malamuth and Billing8'
1985). Some of these problems included the lumping together of
940
gex offenses masked a stable, if not an increased, rape rate
(Cline, 1974; Court, 1984). Also, such crimes as voyeurism were
no longer recorded by police. Kutchinksy (1973) also noted that
other activities such as homosexuality were simply tolerated more
and certain social changes such as earlier sexual experiences for
females meant reduced reports of intercourse with minors (Bachy,
1976).
The problem of using aggregate social indicators such as
crime reports is well illustrated not just with reliability
problems in reporting, but also in differential use of the data.
For example, by Bachy's (1976) review of Copenhagen rape
statistics between 1965 and 1974 which showed increases in rape
and attempted rape as a proportion of total sex offenses. These
offenses included intercourse with minors and indecent exposure,
in addition to rape and attempted rape. Court's (1984) analysis
of rape statistics for Copenhagen showed a similar upward trend
while a fluctuating pattern was demonstrated by Kutchinsky's
figures for the same crime in the same city between 1965 and
1970.
More recently, Kutchinsky (1985) has maintained that the
increased availability of "hard-core" pornography in Denmark "may
have been the direct cause o£ the real decrease in incidents of
Peeping and child molestation" (p. 313) and has proposed the
"substitution" hypothesis as the most likely explanation. He
further cites a similar pattern in West Germany with legalization
°f pornography in 1973 bringing about a decrease in sex offenses
941
against children. This proposed causal link should be viewed
with extreme caution, particularly since pornography availability
statistics have not been presented.
Other data are available that allow further cross-cultural
comparisons. Abramson and Hayashi (1984), in analyzing
pornography in Japan, noted that while it was illegal to show
pubic hair and adult genitals in sexually explicit stimuli,
pornography appeared to be widely available in this country,
including the prevalence of bondage and rape as recurring themes.
In terms of rape statistics, however, they concluded that a low
incidence of rape appears to be the case and suggested that
certain socio-cultural mediating circumstances may be involved.
Unfortunately, no data are provided by Abramson and Hayashi on
availability or rape rates and at least one study indicates that
these rates may actually be increasing. Goldstein and Ibaraki
(1983) found that while crime rates have decreased or remained
relatively stable among adults, juvenile crime increased from
twenty-three percent of all crimes in 1976 to forty-two percent
in 1980, occurring mainly in violent crime categories, including
rape. The unique character of rape in Japan is also evident from
these authors' findings that fifty-seven percent of the total
reported rapes are group-instigated and seventy-five percent are
committed by juveniles. Finally, an informal survey reported i"
this study showed that ninety percent of the women interviewed
said they would not report the rape to the police if they
been victimized (p. 317-318).
942
had
Other cross-national data from areas as disparate as
England' Australia, Singapore, and South Africa were analyzed by
Court (1977, 1982, 1984). His studies compared rape rates in
countries or areas where pornography is widely available, and
those where restrictions exist. On the basis of his findings,
Court advanced the propositions that (1) rape reports have
increased where pornography laws have been liberalized while the
same steep rise is not in evidence where restrictions exist; (2)
intermittent policy changes or changes in the law are temporally
related to changes in the rape rates; (3) the increase in rape
reports does not parallel the increase in serious nonsexual
offenses.
While Court's data are intriguing, the case he presents is
weakened by (a) the selective use of a small number of countries,
and (b) the lack of direct correlational analyses between sexual
offense statistics and pornography distribution/circulation
figures. The Williams Committee in England (Williams, 1981), in
fact, took exception with Court's data, pointing out that he did
not take into account the rise of crime in general in England (p.
74) and that the rising trend in rape and sexual assaults started
"ell before what Court determined was the date marking the
availability of pornography (p. 76; see Court, 1980, 1985 for
responses to the Williams Report). Cocrane (1978) has similarly
disputed Court's analysis and interpretations,
Kupperstein and Wilson (1970) of the 1970 Commission staff
examined the incidence of sex crimes in the United States and
943
reported that the rise in adult sex crimes (using report and
arrest data) was not greater than the rise for other offenses
between 1960 and 1969, despite the heightened availability Of
sexually oriented materials. The two indicators used for the
latter were the circulation of Playboy magazine and the number of
complaints reported to the United States Post Office for
unsolicited sexually oriented mail. The study employed fairly
crude measures, simply examining the percentage increase for
various sexual and nonsexual offenses.
On the whole, a number of methodological problems
characterize some of these early studies: first, the
availability of pornography was simply assumed to have increased
or decreased following legal changes. Second, direct
correlations between the volume of pornography and sexual offense
rates were not investigated. Third, sexual offenses were
combined, masking important differences between various
categories of offenses. Finally, the mediating effects of other
variables which .could affect the relationship between the
circulation of pornography and sexual offense rates were not
systematically investigated.
More recently, correlational evidence using more detailed
statistical analyses, presents some additional insight into the
pornography-sex crimes relationship on the aggregate or societal
level in the United States (Baron and Straus, 1985). A fifty-
state correlational analysis of rape rates and circulation rates
of adult magazines was conducted, using aggregate circulation
944
rates (subscription and newsstand sales per 100,000 population),
for eight magazines (Chic, Club, Gallery, Genesis, Hustler, Oui,
and Playboy, and Penthouse). A fairly strong correlation — +.64
._ was found between these circulation rates and rape rates.
This relationship was present even with controls for potential
confounding variables such as police practices (measured by
police expenditures per capita), propensity to report rape
(measured by number of rape crisis centers per 100,000 females;
NOW membership per 100,000 females; MS magazine circulation per
100,000 females; and number of battered women's shelters);
"southernness" (based on the higher violent crime rates in the
South), and "illegitimate opportunities" (referring to greater
opportunities to commit crimes in warmer than colder periods; the
indicator used was average temperature).
Baron and Straus further found that rape rates are
negatively correlated with the status of women when other factors
are controlled for. This status-of-women index was measured via
economic, political and legal indicators such as women's median
income as a percentage of men's; the percentage of female members
in the state legislature; and existence of laws giving women the
same property rights as men. The study concluded that in a male-
dominant society, the lower status of women may be reflected in
higher rape rates.
Since it is possible that rape rates also may be a function
°f the overall culture supporting legitimate violence (that is,
the societal endorsement of the u.se of physical force for
945
socially approved ends/ such as crime control or order in
schools), the relationship between this factor and rape rates was
also examined. Using a twelve-measure index that included such
figures as violent television viewing, hunting licenses issued,
and use of corporal punishment, no significant association
between, legitimate violence and rape was found. It is still
theoretically possible that rape rates may be influenced
indirectly by the level of legitimate violence through the
latter's inverse relationship with the status of women; that is,
cultural support for violence may contribute to sexual inequality
which, in turn, may increase the risk of rape.
Finally, the level of social disorganization was also found
to be directly related with rape rates and to affect these rates
indirectly through its association with the circulation of
pornography and the status of women. Other factors found to
correlate with rape rates were the extent of urbanization,
economic inequality, and unemployment.
In comparing the relative influence of these various
explanatory variables, it was found that the proliferation of
sexually explicit magazines and the level of urbanization help
explain more of the variation in rape rates than social
disorganization. The latter is also "more influential" i"
predicting rape than are economic inequality, unemployment, or
sexual inequality. Together, these six explanatory factors
explain eighty-three percent of rape rate variations, certainly a
considerable proportion of the variance.
946
A follow-up study by Jaffee and Straus (1986) examined the
•mpact of a variable called "sexual liberalism" on the
relationship between these sexually explicit magazines'
circulation rates and rape rates. It was hypothesized that a
more liberal sexual climate might explain the relationship
between sexually explicit magazines' circulation rate and rape by
encouraging men to purchase more of these magazines and also
encourage more women to report rape to the police. An index
based on twenty-two questions in a national survey measuring
attitudes toward a variety of sexual issues was utilized as the
measure for "sexual liberalism." Results showed that the
original relationship between rape rates and circulation rates of
sex magazines was non-spurious and that sexual liberalism played
a minor role, accounting for only nine pe.rcent of the state-to-
state rape rate variations. A problem with this study, however,
is that it attempts to match individual-level measures of
attitudes with aggregate-level social indicators, using data from
forty states for the former (effectively reducing the original
sample size of fifty states by a fifth).
Using the Baron and Straus data set, Scott and Schwalra
(1985) essentially confirmed the sex magazine-rape rate
relationship although their additional analysis showed that when
raPe rates were correlated with specific magazines, these
correlations were higher for Playboy, Penthouse, and Oui than
they were for Hustler magazine. Their contention was that sexual
c°ntent in Hustler magazine was more likely to be associated with
947
r w
rape since this magazine has more sexually violent material than
the other three magazines. Since correlations with the oth
four magazines were not provided, it is difficult to judge
consistency of such a pattern. Furthermore, such a breakdown i
again not very helpful since the level of analysis is aggreqat
rather than individual. Thus, on an individual level, it will be
more meaningful to correlate an individual's scores on sexual
aggression measures and that individual's readership of specific
magazines; on an aggregate level, it is more appropriate to
relate the aggregate offense rate with aggregate availability
figures for the material in question. And even on the individual
level, there may still be some question as to the actual
separability of individual magazine readership. A readership
survey conducted for Hustler magazine among its subscribers shows
that on average, the typical subscriber reads 3.6 adult men's
magazines (Readex, 1984).
Scott and Schwalm (1985) also analyzed the effect of three
additional variables not investigated by Baron and Straus: the
effect of circulation rates of general circulation magazines
(e.g., Time, Readers' Digest) and the effect of outdoor men's
magazines (e.g., Field and Stream, American Rifleman), the latter
using the presumption that an indicator of a "macho" environment
could also account for rape rates. Alcohol consumption for eac
state was also examined. None of these variables
1121 The READEX survey was part of the public record ^
part of a court case involving Hustler magazine (Herc_v—.
Hustler, Inc.).
948
jgnificantly related to rape rates.
Scott (1985) further examined the correlation between adult
theaters and rape rates for 1982 and found no relationship to
xist. It is quite possible that this finding may be an artifact
Of the decreasing number of adult theaters in this country as a
result of the rise of home videos, as Scott himself pointed out
(see also Newsweek, 1985; Knowledge Industries, 1985). He also
correlated the number of adult bookstores in each state and rape
rates and again, found no relationship. Scott's data may not
necessarily be inconsistent with Baron and Straus'. It is quite
conceivable that the number of stores may not correlate with rape
rates but the actual circulation of the magazines in various
outlets do. In any case, Scott's endorsement of the "safety
valve" or catharsis hypothesis on the basis of his findings
appears premature at the very least.
While Baron and Straus1 work is impressive for its
wethodological care and thoroughness, their findings do not
Indicate that men are induced to rape as a result of exposure to
these magazines. While this is certainly plausible, there are
two caveats to their analysis. First, it is a macro-model that
Is being tested, examining the relationship of various social-
cultural factors on rape. Second, given that this is a
^relational study, there is always the possibility that there
•»y be some third factor influencing the observed sex-magazine
949
Or
rape rate relationship.1122 The cruciai causal evidence has to
come from an examination of the relationship under controller
conditions, and these studies are discussed below under
"Experimental Findings."
On an individual level, some parallel is offered the Baron
and Straus data by a recently completed large-scale study on
sexual assault among the college student population (Koss, 1986).
Correlates of sexual victimization and sexual aggression were
examined among 6,000 college students from a probability sample
of higher education institutions. This study established a
relatively high incidence of sexual assault within this
population (336 per 1,000 college women, a rate which includes
rape, attempted rape, and forceful sexual contact). The portrait
of college men who report behavior that meets legal definitions
H22 Baron and Straus recently conducted additional
analysis of their data by introducing a "Violence Approval
Index," based on attitude measures from the general Social
Survey. By introducing this into their original equation, the
relationship between the sale of sex magazines and rape
disappeared. While this could offer some tentative support for
the authors' contention that a "hypermasculine" climate might be
responsible for rape rates, rather than sex magazines per se,
they are also appropriately cautious about the severe limitations
of this particular finding. They point out that while the
Violence Approval Index correlates in expected fashion with the
percent males in the population, the percent of the population in
the high-violence age group of eighteen to twenty-four, with the
Legitimate Violence and Social Disorganization indices, it also
has an unexpected negative correlation with the percent single
males in the population and has a low correlation (.23) with the
rape rate. Second, the data are restricted to forty states
which, in combination with the addition of still another variable
to the equation, increases the standard error. Until these
problems are sorted out, the impact of this variable will have to
remain speculative. It is presumably for this reason that the
authors included this information in a footnote rather than i"
their text, and we likewise do so.
950
of rape shows individuals who are sexually experienced, come from
homes where family violence was normative, who use alcohol fairly
regularly (and reported becoming intoxicated one to three times
per month), who regularly discuss with their peers "how a
particular woman would be in bed," and who frequently read at
least one of the widely available men's magazines.1123
While these results offer correlational evidence, again,
they do not support any causal link between readership of such
magazines and sexually aggressive behavior. There are a variety
of factors that correlate with sexual aggression as this study
and the Baron and Strauss (1986) study demonstrate. Both also
provide an important contribution towards our understanding of
the types of factors, social, cultural, situational, and
individual, which interact to explain sexually aggressive
behavior as the theoretical thinking behind it.
In the case of causal relationships, the demonstration of a
statistical relationship (that is, that the probability of the
observed relationship being due to chance is minuscule) is a
first requirement. A second requirement is that other competing
or alternative explanations have been controlled for to establish
1123 xhe question used by Koss (1986) in this survey as aneasure of pornography exposure was:
How often do you read any of the following magazines:
Playboy. Penthouse, Chic, Club, Forum, Gallery, Genesis, Oui, orHustler? (check oneH ~
Never
Seldom
Somewhat frequently
Very frequently
951
that X indeed causes Y.
In the case of rape rates and circulation rates of adult
magazines, establishing a significant correlation between the two
is a first step. That such a relationship may in fact be a
spurious one due to the exis-tence of some third factor is a
second step in establishing the validity of the relationship.
Unlike experimental situations, however, where most "alternative
factors" are controlled for by randomly assigning subjects to
experimental conditions, one has to be able to identify every
potentially significant "third factor" in correlational research
and actually account for these in the analysis. Therefore, we
find ourselves at most in the position of accepting an observed
relationship as being plausible but yet cannot fully preclude the
possibility of its being spurious.
Evidence from Sexual Offenders
There are three levels by which sex offenders' use of
pornography can be evaluated: first, what are the patterns of
their early exposure to pornography? Second, what is the role of
pornography in their fantasy and arousal behaviors? Third and
most critical, is the question of the role of pornography in the
commission of their sex offenses.
Methodological Considerations. A number of elements need to
be considered in the study of sex offender populations.
1. Nature of the population evaluated.
952
The deviant populations most accessible to researchers in
the past were incarcerated sex offenders. This category thus
constituted the samples described in earlier studies, including
the significant pioneering surveys done by Gebhard, et. al.
(1965) and Goldstein, et. al. (1970). There is evidence,
however, that data provided by incarcerated offenders tends to
vary significantly from non-incarcerated groups (Abel, Becker and
Skinner, 1985). The demographic profile of incarcerated
offenders, for instance, appears to differ from nonincarcerated
groups. For example, Goldstein, et. al. (1970) found that while
forty-two percent of his control sample had some college
education, only twenty-six percent of the rapists, twenty percent
and five percent of the male-object and female-object pedophiles,
respectively, also had similar educational levels. Gebhard, et.
al. (1965) similarly found lower educational levels among his
sexual offender sample compared to controls. Only thirteen
percent of heterosexual child molesters, thirteen percent of
homosexual child molesters, and twenty-one percent of rapists had
a grade eleven or higher education compared to twenty-one percent
of other criminal offenders and fifty-two percent of. the control
sample. Both these studies examined incarcerated samples.
Abel (1985), on the other hand, found that among an
outpatient sample of 192 child molesters, forty-six percent had
at least one year of college, with a guarter of the total sample
completing college or having an advanced degree. Marshall's
ll°85) comparison of eight-nine outpatient sex offenders with
953
twenty-four control adults showed little difference between th
mean IQ's of this group and a comparison control. A mean IQ oj
92, 93, 94 and 101 was measured for heterosexual and homosexual
child molesters, incest offenders, and rapists, respectively, ancl
91 for the control sample. It has been estimated that
incarceration rates for some sex offenders are low. Only
thirteen to sixteen percent of rapists are actually incarcerated
for instance (Abel, Becker and Skinner, 1985} Dietz, 1978),
making it likely that an outpatient sample of sex
offenders/deviants would more closely resemble the population of
deviant cases than an incarcerated one. The representativeness
of such an outpatient group still is uncertain, given the fact
that these are individuals who, either voluntarily or by court
mandate, have sought treatment.
2. Measurement of Arousal.
An important aspect of evaluating sexual deviance in terms
of diagnosis, treatment, and projection of future behavior has
been the assessment of arousal patterns. A major weakness in the
early studies on sexual deviance was that measures of arousal
consisted solely of self-reports. An extensive review of various
assessment procedures (Zuckerman, 1971) concluded that the
measurement of penis size (penile tumescence) in response to
various stimuli provides the most valid indicator of sexual
arousal. While the development of the penile transducer provided
more accurate assessments of male arousal, problems still
with this technology. The primary problem is that it is
954
for the offender to control his erectile responses (by
controlling his attention and sexual fantasies. (See Quinsey and
gergersen, 1976; Laws and Holman, 1978; Abel, Becker and Skinner,
1985; Abel, Rouleau and Cunningham-Rathner, In Press). However,
it has been possible to identify such faked responses under
planned treatment situations and to reduce their occurrence but
not to eliminate them entirely (Abel, Mittelman and Becker,
1985).
3. Ethical Considerations.
Clinical researchers are obviously unable to examine sex
offenders in laboratory conditions to assess cause-and-effect
relationships in the same way their social psychologist
counterparts are able to do with nondeviant or "normal"
populations. The risks are too great for a group with little or
no control over their own behaviors. Furthermore, the notion of
informed consent becomes a problem when physiological measures of
arousal patterns may reveal interest patterns the patient may not
even be aware of (see Abel, Rouleau and Cunningham-Rathner, In
Press). Other ethical considerations further arise out of the
occasional conflicting needs of the judicial system, the
offender's needs and rights, therapeutic requirements, and even
the public interest (see Bohmer, 1983; Abel, Rouleau and
Cunningham-Rathner, In Press, for an extended discussion).
A number of important advances have been made in the last
fifteen years to elucidate the nature of sexual deviancy.
Particularly as they relate to the measurement of arousal
955
158-315 Vol. 1, o - 86 - 31
patterns. On the whole, however, certain inherent limitations
exist for this particular population that preclude gaining the
fullest knowledge about the antecedents of their sexual
behaviors. One of the earliest landmark studies based on
interviews with sexual offenders was conducted by the Kinsey
Institute for Sex Research (Gebhard, et. al., 1965). The study
was notable for its scope, including 1365 sex offenders, 888
other criminal offenders, and 477 controls, all white males. The
study was conducted during two time periods: 1941 to 1945 and
1953-1955.
Interviews with sex offenders led the authors to conclude
that no relation between pornography and sex crimes exists. The
researchers, in fact, concluded that the inferior intelligence
and education of the average sex offender precludes his deriving
sufficient sexual arousal from pornography to lead to overt
antisocial activity, a conclusion which has been contradicted by
much subsequent data.
Some of the other earlier studies on this question were done
for the 1970 Commission. On the basis of these early studies
(see, for example, Cook and Fosen, 1970; Goldstein, et. al.,
1970; Walker, 1970; Davis and Braught, 1970), the Commission
concluded that (1) sex offenders did not differ from adults in
the general population in their reported immediate responses to
reading or viewing erotic materials; (2) that sex offenders
generally had less adolescent experience with erotica than
general adult population but did not differ from the latter'i"
956
adult exposure patterns; and (3) erotica was an insignificant
factor in the reported likelihood of engaging in sexual behavior
during or after exposure.
Since these early studies, much more has been learned about
sex offenders in terms of their arousal patterns and efficacies
of various treatment approaches.
Early exposure. Do sex offenders differ from nonoffenders
in their patterns of early exposure to pornography? Goldstein,
Kant, Judd, Rice and Green, (1970) found a high level of exposure
to pornography during adolescence among sex offenders (categories
in this study included rapists, pedophiles, transsexuals, and
homosexuals) but these levels were not significantly different
from a non-offender comparison group. In comparing their samples
on exposure to pornography during adolescence, Goldstein and his
colleagues found that more rapists than controls had never been
exposed to particular types of stimuli. Yet, the differences
among the various groups were not statistically significant over
the total range of stimuli. Significantly less exposure was
reported among rapists to photos of partially and fully nude
women and to books describing nudity and oral-genital relations.
In fifteen other categories (different themes in different
media), the differences were not significant. In their later
book elaborating on their findings (Goldstein, Kant and Barman,
1973) Goldstein and his colleagues describe a significantly
larger number of rapists as having had exposure to "hard-core"
Pornography than controls (30% versus 2%) during childhood or
957
between six to ten years old. They also tended to report an
earlier age of "peak experience" with pornography, that is, a
sexual experience that stood out in their minds the most.
Cook and Fosen (1970) found that among their sample of
incarcerated sex offenders and criminal offenders, the latter
reported higher rates of exposure to pornography during
preadolescence and adolescence. Johnson, et. al., (1970), on the
other hand, found slightly higher rates of early exposure among a
sample of convicted sex offenders who were on probation and
receiving therapy compared to the control sample consisting of
the respondents in the Abelson, et. al. (1970) national survey
(44% versus 40%).
Walker (1970) interviewed two groups of male sex offenders,
one from a maximum security ward of a state hospital and the
second who were prisoners in a correctional facility. Two
control groups incarcerated in both facilities for reasons other
than sex offenses were utilized in addition to another comparison
group of male college students and members of a number of men's
service clubs. The latter were more closely matched to the sex
offender sample in terms of age.
Data on age of first exposure revealed no overall difference
between sex offenders and the combined student and men's club
controls. However, portrayals of sexual activities for which the
sex offenders had earlier exposure than the men's club control
group appeared to be of the more unusual variety: bestiality,
group sex, and "sex activities with whips, belts or ropes.
958
While the student and men's club members had significantly
greater exposure to a wider range of sexually explicit depictions
than the sex offenders, the latter also had collected pornography
for a longer period of time than the men's club members.
Another study conducted for the 1970 commission (Davis and
Braught, 1970) found that early exposure to pornography was
related to greater involvement in deviant sexual practices among
groups of criminal offenders and a comparison group of male
students. This was particularly true for what they called
"serious deviance," primarily rape. The age-of-exposure variable
appears to be critical as these authors found that exposure to
pornography was a strong predictor of sexual deviance among the
early age of exposure subjects. They also noted that "exposure
to pornography in the "early age of exposure' subgroup was
related to a variety of precocious heterosexual and deviant
sexual behaviors."
They found a slightly different pattern among those exposed
to pornography at a later age, with the amount of exposure
correlated with poor character scores and participation in
criminal, deviant, and sexually active peer groups. This result
suggests that among those later exposed, such exposure to
pornography is part of a deviant and highly active sexual life
style. Thus, two separate but related factors — pornography and
peer pressure — seem to play some interacting role as sexual
behavior patterns develop (Davis and Braught, 1973, p. 194).
However, because we do not have age-of-commission data for the
959
more deviant sexual behaviors, a hypothesis that gives a causal
status to pornography exposure cannot be supported. Among 476
male reformatory inmates between sixteen to twenty-one years old,
a similar association was found between early age of exposure to
pornography as well as high exposure and sexual deviance.
Because more recent studies (Abel, Rouleau and Cunningham-
Rather, In Press) suggest that over fifty percent of various
categories of paraphiliacs had developed their deviant arousal
patterns prior to age eighteen, it is clear that the age-of-
first-exposure variable and the nature of that exposure needs to
be examined more carefully. There is also evidence that the
longer the duration of the paraphilia, the more significant the
association with use of pornography (Abel, Mittelman and Becker,
1985). On the whole, the conclusion of the 1970 study that "both
the extent and freguency of sex offenders' experience with erotic
material is substantially less than that of non-sex (criminal)
offenders and non-offender adults during preadolescence and
during adolescence" needs to be qualified. These data
demonstrate relatively lower levels of exposure among sex
offenders when the comparison group is criminal offenders.
Compared to "normal" adults, however, the differences appear to
be more qualitative than quantitative: sex offenders seem to
have been exposed to sexually explicit materials for the first
time at earlier ages, and there are some suggestions that the
range of material they were exposed to were of the more unusual
variety compared to the wider range of materials that control
960
nonoffender groups were exposed to.
It is important to stress that these findings apply
specifically to incarcerated samples, particularly groups that
were considered serious offenders, given the maximum security
facilities housing the Goldstein, et. al. -sample, the Walker
sample and the Davis and Braught sample. A recent study (Carter,
prentky, Knight and Vanderveer, 1985) compared thirty-eight
rapists and twenty-six child molesters incarcerated at a state
treatment center. No differences were found between the groups
in their exposure to pornography in the home (twenty-seven
percent of the rapists and twenty-six percent of the child
molesters said they had sex materials in their home while they
were growing up) and during development (58% of the rapists and
54% of the child molesters had "seen or read sex materials as a
teenager"). However, child molesters were found to use
pornography more often than rapists in adulthood, were
significantly more likely to use these materials prior to and
during their offenses, and to employ pornography to relieve an
impulse to commit an offense. Because of the absence of a
control group of nonoffender adults, it is difficult to determine
whether early exposure to pornography in this instance differs
significantly from that of a nonoffender sample. The study also
does not describe what types of sex materials were involved.
In retrospective interviews with eighty-nine sex offenders
(all nonincarcerated and attending an outpatient clinic) and a
control sample, Marshall (1985) found that greater numbers in all
961
I 1
categories of offenders had been exposed to nonviolent
pornography than the comparison group of non-offenders.
The term "pornography" in this case was limited to two
categories of materials: "hard-core materials," or "those
available only in specialized stores and depicting sexual acts
with nothing left to the imagination" (p. 14), and materials
depicting "forced sex." These were described to the subjects as
those portraying "sexual relations between adult males and adult
females where the female displayed a clear unwillingness to
participate by both her verbal refusals and her physical attempts
to prevent the attack, and the male in the depiction was said to
recognize this refusal but ignored it by forcefully enacting his
sexual wishes."
Marshall found that over a third of the rapists (35%), two
in five homosexual child molesters (41%), a third of the
heterosexual child molesters, and only a fifth of the control
adults (21%) had been exposed to materials that did not depict
forced sex. Only four percent of the rapists and eight percent
of the controls were exposed to sexually aggressive portrayals
(forced sex) during pubescence. Because of the terse description
of "hard-core" sex materials used in this study, it is difficult
to reconcile these findings with those of earlier ones suggesting
early exposure to depictions of more deviant activities.
It is apparent that these studies cover a variety °£
comparison situations (no nonoffender controls, comparison wi
nonsexual criminal offenders only), populations (incarcerated,
962
non-incarcerated and in therapy) and a range of measures for
early exposure. Certainly, the notion that sex offenders have
significantly less exposure to sexually explicit materials than
normal adults does not appear to hold for nonincarcerated groups
(Marshall, 1985; Johnson, et. al., 1970) and, for incarcerated
groups, appears to be true when the comparison group is nonsexual
criminal offenders. Compared to nonoffenders, rapists differ
only on specific types of material (Goldstein, et. al., 1970).
Only one study (Marshall, 1985) shows somewhat higher levels of
exposure than nonoffender adults.
Fantasies and Arousal.
Studies reviewed by and conducted for the 1970 Commission
examined differences in arousal patterns for sex offenders and
nonoffenders. These studies showed either that sex offenders
were somewhat less responsive than other adults to erotic stimuli
(e.g., Gebhard, P.H., J.H. Gagnon, W.B. Pomeroy and C.V.
Christenson, 1965) or that both groups did not differ in their
responses to reading or viewing erotic material (Cook and Fosen,
1970; Walker, 1970; Johnson, W.T., L. Kupperstein, and J. Peters,
1970). The Commission concluded in summary that "the available
research indicates that sex offenders do not differ significantly
from other adults in their reported arousal or reported
likelihood of engaging in sexual behavior during or following
exposure to erotica." (p. 284).
Later studies have demonstrated that arousal patterns among
sex offenders could in fact differ from non-offenders (Abel,
963
Barlow, Blanchard and Guild, 1977; Barbaree, Marshall and
Lanthier, 1979; Quinsey, Chapin and Varney, 1981). The 197,.
conclusion can be attributed to a number of factors: first
self-report measures of arousal were used for the most part. TH
problems with reliance on self-reports as the sole arous
measure have already been discussed. Second, many of the studies
used stimuli labeled "erotica" without attempting to discriminat
among content cues (stimuli used, for instance, were primarily
adult heterosexual activities). Finally, with the exception of
the Goldstein, et. al. (1970) study, differences among sex
offender categories were not examined.
Subsequent studies have shown the importance of
discriminating among various categories of sex offenders, content
cues, and utilizing physiological measures of sexual arousal.
While other physiological measures have been used as
correlates of sexual arousal (e.g., respiration, galvanic skin
response, heart rate), these have been viewed as less desirable
than direct erection calibration (Zuckerman, 1971) since
increases in these variables have also been recorded for other
emotional states not related to sexual arousal.
A key study that attempted to distinguish rapists from non-
rapists on the basis of erections was conducted by Abel, Barlow<
Blanchard and Guild (1977). This study was also important in its
attempt to discriminate responses according to consenting a"
non-consenting stimuli. The development of a "rape index" was
another important element in this study. The index was the
964
Quotient of the mean percent erection to rape cues to the mean
percent erection to mutually consenting intercourse, a measure
yhlch was found to have predictive validity in this study and
subsequent ones (see Abel, et. al., 1976; Quinsey and Chaplin,
1982; Quinsey, Chaplin and Varney, 1981; Barbaree, Marshall and
Lanthier, 1979). The results showed that rapists respond to both
rape and mutually enjoyable intercourse cues while nonrapists
exhibited arousal only to the latter.
Other studies have similarly found that rapists show sexual
arousal to rape cues as well as to depictions of consenting
sexual activity compared to nonrapists who are usually more
aroused to the latter (Abel, Becker, Blanchard and Djenderedjian,
1978; Barbaree, Marshall and Lanthier, 1979; Quinsey, Chaplin and
Varney, 1981). The nature of sexual cues was further elaborated
by Quinsey and Chaplin (1984) who found that rapists did not
discriminate among the various sexually explicit narratives used
while nonrapists responded most to the consenting sex narratives,
less when the sexual partner did not consent, and least when the
victim was shown to experience pain.
In comparing these findings to males in the general
population, sexual arousal responses have also been found to be
indicative of a proclivity to rape but only in combination with
other factors will such a tendency be manifested in overt
aggressive behavior (Malamuth, Check and Briere, 1985; Malamuth,
In Press).
Child molesters also have demonstrated significantly
965
different arousal patterns with penile circumference measures
than a comparison group of non-sex offender patients (Quinsey,
Steinman, Bergersen and Holmes, 1975). Twenty male child
molesters confined in a maximum security psychiatric institution
exhibited significantly higher penile circumference measures when
presented with slides featuring children compared to eleven
nonsex-offender patients from the same institution and ten
control adults from the community.
Marshall (1985) reported that among his sample of eighty-
nine sex offenders, two in five of the heterosexual child
molesters, two out of three of the homosexual child molesters,
and one in two rapists said they used deviant fantasies "usually"
or "always" during masturbation. None of the control adults
indicated they had these deviant fantasies "usually" or "always"
although forty-six percent said they did so "occasionally" or
"rarely."
Seven out of eighteen rapists indicated that 'consenting
pornography1 provided a cue to elicit fantasies of forced sex.
Similarly, ten of the eighteen who currently used 'consenting
sex' stimuli used it to elicit rape fantasies.
Abel, (1985) reported that erotica use increased self-
reported arousal (i.e., erotica "increased their deviant sexual
arousal") more frequently among rapists than among child
molesters, with fifty-six percent of the rapists indicating
erotica use increased their arousal compared to forty-two percent
of the child molesters. Since there were only sixteen rapists
966
compared to 112 child molesters in this report, these findings
have to be viewed with caution. In addition, a number of
questions can be raised about these data. First, it is unclear
what "erotica use" refers to. It could refer to usage for
masturbation, for arousal prior to committing an offense, or,
perhaps for child molesters, use during the commission of an
offense (e.g., to lower the victim's inhibitions). It is also
far from clear whether these arousal changes refer to changes in
the offender's arousal patterns or whether these are simply their
reported reactions to sexually .explicit materials. Current
evidence suggests a high correlation between deviant fantasies
and deviant behaviors (Marshall, 1984; Abel, Rouleau and
Cunningham-Rathner, 1985). Some treatment methods are also
predicated on the link between fantasies and behavior by
attempting to alter fantasy patterns in order to change the
deviant behaviors (Davison, 1968; Marquis, 1970; Marshall, 1973).
What is unclear, however, is the use of pornographic stimuli as a
precondition for the generation of such fantasies.
Commission of Sex Crimes.
Goldstein, et. al.'s 1970 data on offenders' and a control
group's reaction to a "peak experience" with erotica is
reproduced below. "Peak experience" in this instance referred to
the most memorable depiction of a stimulus, one "which really
stood out in your mind the most" (p. 81). Again, keeping in mind
that this sample was an incarcerated sample, the results show
that as teenagers, deviants did not differ much from controls in
967
terms of trying to enact the behaviors they had seen. AS ad
a quarter of the female-object pedophiles did try the behavi
depicted shortly thereafter compared to thirteen percent of
controls, fifteen percent of the rapists, six and seven percent
of the homosexuals and transsexuals, respectively.
Table 10
Reaction to Peak Experience with Erotica
(Adapted from Goldstein, et. al., 1970)
Control Rapist Male
Object
Pedo.
wished to try
Did try
N =
ATA
30% 48% 35
13 28 15
46
T
80
30
A
35
15
T
65
25
Female
Object
Pedo.
A T
25 40
25 20
Usera
A T
58 66
22 30
20 20 20 50
A User: People who were currently avid buyers and consumers of
commercially available pornography.
A: Adult T: Teen
968
In Marshall's (1985) sample of eighty-nine sex offenders,
lightly more than one third of the child molesters and rapists
eported at least occasionally being incited to commit an offense
exposure to forced or consenting pornography. Pornography as
an instigator was not deliberately sought out by every offender
in this category to arouse them to offend. For some, pornography
as an instigator was simply fortuitous. Fifty three percent of
those child molesters who reported being incited to offend by
pornography said their use was deliberate in their preparation
for committing an offense, as was the case for thirty-three
percent of the rapists. Finally, six of the eight rapists who
reported being incited to offend by pornography reported
occasional use of "consenting" pornography to elicit rape
fantasies which in turn led to the commission of a crime. It is
unclear whether the use of this type of material was by choice or
because it was the only material available.
Finally, Abel, Mittelman and Becker (1985) evaluated the use
of erotica/pornography by 256 paraphiliacs undergoing outpatient
assessment-treatment. Regardless of paraphiliac activity, those
targeting adults were somewhat more likely to use erotica (60%)
than those targeting adolescents (43%) or children (46%).
Categorized according to their primary predispositioning,
fifty-six percent of their rapists and forty-two percent of their
child molesters implicated pornography in the commission of their
°ffenses.
Again, these comparisons have to be viewed with caution.
969
The disparities in the data can, in part, be accounted for by th
questions posed to the respondent and the differences in the
samples. In terms of the population differences, Abel's and
Marshall's samples are non-incarcerated while Goldstein's sample
consisted of incarcerated sex offenders in a maximum security
prison. The Goldstein sample was questioned about tryinq the
behavior depicted in the stimulus to which the respondent had
recently been exposed, a stimulus "which really stood out in your
mind the most" (p. 81). This very specific question regarding
the imitation of the most memorable depiction (the "peak
experience") likely accounts for the lower figures relative to
those obtained in the other studies. The other two studies, on
the other hand, used more general questions pertaining to the use
of such materials in commission of offenses.
While these figures are suggestive of the implication of
pornography in the commission of sex crimes among some rapists
and child molesters, the question still remains: is there a
difference in the rates of offenses among those who use
pornography versus those who don't? The only data available that
directly address this issue suggest that these offenses occur
regardless of the use of pornography by the offender (Abel, et.
al., 1985).
Those offenders who did not use pornography did not differ
significantly from those who did in frequency of sex crimes
committed, number of victims, ability to control deviant urges,
and degree of violence used during commission of the sex cri™e-
970
The longer the duration of paraphiliac arousal, however, the
greater the use of pornography.
971
Table 11
Relationship of Erotica and Paraphilias
Characteristic of Paraphilia Uses Does not
Mean no. of sex crimes
Mean no. of victims
Sex crimes/month
Victims/month
Duration of paraphilia (mos.)
Ability to control behaviora
Age
Coercion during crimeb
Social skillsc
Assertive skills0
302.0 234.0
139.0 200.0
1.7 1.4
1.0 0.9
128.0 86.0*
81.0 82.0
33.3 32.2
3.2 3.2
3.1 2.6*
2.8 2.7
3.3 3.0
86
a!00 = complete ability
t>5 = severe coercion
=5 = excellent
d This analysis was conducted on the subgroup that said they
"used erotica" (n = 170). The study simply described
"increased arousal" in terms of an increase (or decrease) in
arousal to their deviant interest.
*p <_ .001 using t-tests.
Table reconstructed from Abel, 1985.
Cncr.
irousal
421.0
124.0
2.2
1.0
160.0
75.0
33.7
3.2
3.0
2.6
3.2
82
Deer,
arousal
189.0
153.0
1.3
1.0
99.0*
86.0*
32.9
3.2
3.2
2.9
3.3
88
972
Based on these data, the authors suggest that sexual
viants appear to come from socially deprived environments which
tunt their social and other coping skills. The longer the
duration of the paraphilia, or the earlier the onset, the more
likely tne paraphiliac was to have used erotica. It is difficult
to sayi however, to what extent this early exposure contributed
to the onset of the deviance.
A number of questions are not addressed in the discussion of
these data. First, it is not entirely clear what "erotica use"
means. Does it mean the offender enjoys viewing the material on
a regular basis? Does it mean use for arousal and masturbation?
Does it mean use as incitement prior to committing an offense?
For a child molester, "use" could refer also to the employment of
sexually explicit materials to lower inhibitions of a potential
victim and to present behaviors that might be imitated (Russell,
1975). There also appear to be a few inconsistencies in the
data. For example, the number of sex crimes of those using
erotica (302) is considerably higher than those not using it
(224), but the mean number of victims shows a difference in the
opposite direction (139 vs. 200). Also, the rationale for the
use of a criterion value of p » .001 in combination with multiple
t-tests remains unclear.
In testimony before this Commission, Abel (1985) suggested
on the basis of these data that sexually explicit materials play
ar> important role in the maintenance of these paraphilias.
Greater numbers of deviants report current use of erotica, its
973
use is associated with length of the deviancy, and it anna
play some role in maintaining arousal and masturbatory patte
As Abel (1985) pointed out, while the use of pornography
decrease the likelihood for some offenders to commit sex <••>-('-rin^g
in the short run, in the long term, "the pairing or associati
of deviant fantasies with the pleasurable experience of orgas
perpetuates the deviant sexual interest." It is clear that
role of sexually explicit materials in this maintenance of
deviancy needs to be investigated more thoroughly particularly a«
they relate to repeated offenses.
Summary
While the number of studies on sex offenders has
proliferated in the last fifteen years, the etiology of deviancy
still remains to be answered.
There is evidence of a correlational relationship between
pornography availability and rape offenses in the United Statei
but such evidence remains in need of corrobora t ion by
experimental evidence using similar stimuli. Furthermore,
correlational data appear inconsistent across cultures. There i«
little analogous social science evidence on pornography
availability and child molestation with the exception of
Kutchinsky's recent assertion that increases in availability
caused less molestation in Denmark and West Germany (1985). Th*
"causal" assertion here is not only tenuous; clinical evidence o
long term use of pornography being correlated with length of th*
974
viancy at least suggests this assertion is debatable.
The contribution of pornography to sexual deviance remains
open question. At present, "no single, comprehensive theory
explain the development of paraphiliac behavior has yet
emerged." (Kilmann, et. al. , 1982). Competing models include a
jychoanalytic view which views the paraphllia as a symptom of an
underlying psychopathology, with its origins in unresolved
conflicts during psychosexual development, a Freudian view; a
behavioral model which postulates that the occurrence of sexual
variance is a result of classical conditioning processes
including modeling, reinforcement, generalization, and
punishment, much as "normal" sexual behavior also occurs; and a
biological model which suggests genetic influences and emphasizes
the control of sexual behavior through biological or hormonal
means (e.g., Ball, 1968; Berlin, 1983; Money, 1984).
The 1970 Commission's conclusion that sex offenders have
less exposure to pornography may have been applicable only to
serious sex offenders (that is, those incarcerated in maximum
security institutions). At most, a reevaluation of their
evidence and those from subsequent studies suggest that rather
than frequency of exposure, it may be the quality of that
exposure and the age-of-first-exposure that might help explain
subsequent sex behavior differences. Malamuth and Billings
fl985) have, in fact, suggested that the effect of pornography on
r'Pists may be more pronounced as a function of their more
restrictive home environments, with limited or no information on
975
sexuality and male-female relations.
It is unfortunate that the nature of the first masturbator
experiences and the role of pornography in that experience, j.
any, also remains a gap in our knowledge for future research to
address.
Finally, while self-reports of some offenders appear to
implicate pornography in the commission of their sex offenses,
the objective data of actual offenses committed which show no
significant differences between those who use pornography and
those who don't have to be viewed as tentative. It is clear that
in addition to investigating developmental sexual behavior
patterns among offenders, their arousal patterns as these relate
to offenses committed should be investigated more thoroughly.
976
EFFECTS ON THE "AVERAGE INDIVIDUAL"
THE EXPERIMENTAL EVIDENCE
in order to draw conclusions about whether exposure to
pornography leads to or causes certain effects, one would have to
look at the experimental evidence for these causal linkages.
The experimental results are presented in terms of effects
in the areas of arousal, perceptions, affective states,
attitudes, and behaviors. Two categories of pornographic stimuli
have generally been used to sort out differential effects in
these areas: nonaggressive-pornography and aggressive
pornography (see, for example, Malamuth and Donnerstein, 1984;
Donnerstein, 1983). Some question may be raised about whether in
fact these two categories are sufficiently representative of
distinctions the average consumer or the public at large might
make or whether these two categories afford reasonable conceptual
value. Nevertheless, these categories provide a convenient way
to organize the results from experimental studies.
The Effects of Violent Sexually Explicit Materials
The findings from studies investigating effects of exposure
to sexually violent materials appear to be fairly unequivocal:
"assures in the areas of attitudes and behaviors have
consistently demonstrated changes in attitudes and laboratory-
"Basured behaviors, with the nature of the effect mediated by
'uch additional factors as message cues (e.g., whether the female
Vlctim is shown to be abhorring or enjoying the rape) and
977
individual personality differences.
Studies on the effects of exposure to sexually viol
material have been conducted primarily in the laboratories Of
Neal Malamuth (at Manitoba, Canada and University of Californi
Los Angeles) and Edward Donnerstein at the University Of
Wisconsin. With their respective colleagues, they have utilized
three typical approaches.
The first approach generally has subjects exposed to stimuli
(usually varying consent versus force), with physiological penile
tumescence and self-report measures of arousal taken during
exposure, followed by questionnaires incorporating dependent
variable measures (e.g., likelihood of rape, acceptance of rape
myths and interpersonal violence, acceptance of sexual violence
against women (see, for example, Malamuth and Check, 1980, 1981,
1983) .
A second approach typified by Linz (1985) has subjects
exposed to one of several types of stimuli over time (neutral,
aggressive, or sexually violent of the "slasher" variety) under
the guise of a film evaluation study. Prior to this exposure,
measures are generally obtained on psychoticism, in part to
eliminate participation by subjects who might be especially
vulnerable to this type of exposure. The second phase has
subjects participate in an ostensibly different study in the l»w
school where they are asked to take part in a mock rape tria1-
Measures are then obtained at this point which asses
punitiveness, rape empathy and similar attitudes.
978
The third approach has been to expose subjects in the
laboratory to sexually violent versus comparison material and
assess negative effects by utilizing surrogate measures of
a<jgressive behavior (e.g., shock intensities on an aggression
machine. See, for example, Donnerstein, 1980; Donnerstein and
Berkowitz, 1981).
All three approaches have different virtues which contribute
to our ability to understand various dimensions to the problem.
For example, the physiological penile measures of arousal provide
an independent and objective means of corroborating self-reports.
Surrogate measures of aggression avoids the ethical problems of
"inducing" actual anti-social behaviors and at the same time can
be validated by actual self-reports of aggression in sexual
behavior. Finally, the "massive" exposures afford a first step
at our efforts to examine the longer-term effects of exposure to
sexually-explicit materials.
Effects on Fantasies
Only one study has examined the effects of sexually explicit
materials on fantasies. Malamuth (1981) presented two groups of
roale subjects with a slide-audio show. One version depicted rape
and the other showed a mutually-consenting sexual encounter.
Analyses of sexual fantasies which subjects were later asked to
create and write down indicated that those exposed to the rape
Vfirsion were more likely to create aggressive sexual fantasies.
Aggressive sexual fantasies appear to be fairly common among
certain groups of offenders. Gebhard et. al. (1965) found that
979
158-315 Vol. 1. 0 - 86 32
w
"patterned rapists" or those who raped repeatedly, We
significantly more likely than incidental rapists to often engage
in sadomasochistic fantasies (twenty percent versus zer
percent). Walker and Meyer (1981) found four in five of. their
rapists to report primarily deviant sexual fantasies while Abel
Becker and Skinner (1985) similarly reported aggressive sexual
fantasies among their outpatient sexual assaulters. What role
pornography, particularly violent pornography, plays in the
construction of these fantasies remains to be answered.
Effects on Arousal, Perceptions and Attitudes
Are there differences in effects from exposure to violent
versus nonviolent sexually explicit material? An early study
(Malamuth, Reisin and Spinner, 1979) had male and female subjects
exposed to one of the above stimuli or a neutral one. The
materials presented were pictures from Playboy or Penthouse
magazines for the sexual exposures and from National Geographic
for the neutral exposure. Sexually violent depictions included
pictures of rape or sadomasochism whereas the sexually nonviolent
material had no aggressive elements. After viewing the
materials, subjects filled out a mood checklist. This was
followed ten minutes later by an assessment of reactions to rape
after the subjects had viewed a videotaped interview with an
actual rape victim as well as an assessment several days later in
an ostensibly different study. Both types of stimuli were found
to reduce the extent to which subjects perceived that pornograP"1'
may have detrimental effects but neither one affected reactions
980
to rape. Correlational data, on the other hand, showed that
sexual arousal to the sexually violent depictions were
significantly related with a self-reported possibility of
engaging in rape.
Another study (Malamuth, Haber and Feshbach, 1980) examined
the effects of written descriptions of a sexual interaction based
on a feature from Penthouse magazine and modified to create a
violent and nonviolent version for male and female subjects. In
this study, males who had been exposed to the sexually violent
depiction (sadomasochism) perceived more favorably a rape
depiction that was presented to subjects subsequently. Subjects
were found to believe that a high percentage of men would rape if
they knew they would not be punished and that many women would
enjoy being victimized. Finally, of the fifty-three male
subjects, seventeen percent said they personally would be likely
to act as the rapist did under similar circumstances. Fifty-
three percent of these males responded similarly when asked the
same question if they could be assured they would not be caught.
In order to draw out the various dimensions in the
portrayals of sexual violence which might explain the exhibition
or inhibition of sexual responsiveness, Malamuth, Heim and
Feshbach (1980) conducted two experiments on male and female
students. The first experiment replicated earlier findings that
normal subjects seem to be less aroused by sexual violence than
"V "nonviolent erotica." A second experiment manipulated
reactions of the rape victim with one version showing her as
981
experiencing an involuntary orgasm and no pain. The second
version had her experiencing an orgasm with pain. Both male and
female subjects were aroused to these depictions, with femal
subjects more aroused by the orgasm with no pain version while
the males were most aroused by the orgasm with pain stimulus
The authors postulated in this case that under certain
conditions, rape depictions can be arousing, particularly when
the rape victim is shown experiencing an orgasm during the
assault. According to the authors, subjects may have
reinterpreted the events preceding the depiction of the victim's
arousal so that the rape is now viewed as one that is less
coercive and less guilt-inducing.
Three additional studies (Malamuth and Check, 1980a; 1980b[
1983) provide further evidence that victim reactions have a
significant impact on sexual arousal and behavioral intentions.
Results from one of these studies showed that both male and
female subjects exhibited higher arousal levels when portrayals
showed an aroused female, regardless of whether the context was a
rape or a mutually consenting situation. The second study
(Malamuth and Check, 1980a) similarly showed that male subjects
had higher penile tumescence scores when viewing a victim-aroused
rape portrayal compared to a portrayal showing victim abhorrence.
Significant correlations were also obtained between the reports
possibility of engaging in similar behavior, sexual arousal
rape depictions and callous attitudes toward rape.
The effect of sexually violent depictions on attitudes
982
also been demonstrated with male and female subjects reporting
greater acceptance of rape myths after exposure to such material
(Malamuth and Check, 1980a, 1985,- Malamuth, Haber and Feshbach,
1980).
In an attempt to approximate a "real world" situation,
Malamuth and Check (1981) had male and female subjects view full-
length features as part of campus cinema showings. The films
—Swept Away and The Getaway-- represented sexually violent films
whereas control subjects viewed a nonviolent feature film.
Dependent measures were obtained after a week in a questionnaire
presented as a separate sexual attitudes survey. These measures
included rape myth acceptance measures, measures on the
acceptance of interpersonal violence as well as adversarial
sexual beliefs, measures developed by Burt (1980). Results
showed that exposure to sexual violence increased male subjects'
acceptance of interpersonal violence against women. A similar
trend, though statistically nonsignificant, was found for the
acceptance of rape myths. There were nonsignificant tendencies
for females in the opposite direction. In addition to the
advantage of external validity from this field experiment, the
problem of demand characteristics in some laboratory experimental
situations is guite effectively dealt with in this study.
tAggressive Behavior
Donnerstein (1980) had male subjects provoked or treated in
neutral manner by a male or female confederate, then had them
view one of three films: a sexually explicit film, a film
983
depicting a rape, and a neutral film. Results of this study sho
that when the target of angered subjects was a male, there was no
difference in aggressive behavior (measured by shock intensity o
an aggression machine) among males in the erotic and the
aggressive-pornographic conditions. However, when the target was
a female, aggressive behavior was higher only in the aggressive-
pornographic film condition, regardless of provocation.
To account for the impact of victim reactions in a rape
portrayal, Donnerstein and Berkowitz (1981) had male subjects
angered by a male or female confederate. Following instigation,
they then watched one of four films: a neutral film, a non-
aggressive pornographic film, an aggressive pornographic film
with a positive outcome (where the woman is smiling and offering
no resistance, becoming a willing participant in the end) and the
last with a negative outcome, where the woman is shown exhibiting
disgust and humiliation. Subjects who were angered by a male
confederate were not significantly more aggressive towards the
male instigator after viewing the pornographic or aggressive-
pornographic film; those angered by a female, however, showed
significantly higher levels of aggressive behavior in both
aggressive-pornographic conditions, that is, those that portrayed
a negative and those showing a positive outcome.
What about the effects of positive and negative outcomes on
non-angered subjects? The same study (Donnerstein and Berkowi »
1981) examined this issue using only female confederates.
Results showed that for non-angered subjects, only t
984
aggressive-pornographic film with a positive ending elicited
higher aggression levels. Subjects exposed to this version also
saw the woman portrayed as suffering less, enjoying more, and
being more responsible for her situation. These findings suggest
the importance of disinhibiting factors that might produce a
readiness to respond (e.g., anger or frustration) and message
cues (e.g., enjoyment of sexual coercion) as enhancing the
likelihood of laboratory aggressive behavior. These are also
short-term effects although with appropriate cues, there might be
long-term effects as well. This remains speculative at this
point (Malamuth and Ceniti, 1986).
A recent study demonstrates that such laboratory aggression
is not always manifested when these "enhancing" factors are
absent (Malamuth and Ceniti, 1986). Two groups of subjects were
exposed to either sexually violent or sexually nonviolent
depictions in movies, books and magazines over several weeks and
compared to a third no-exposure control group. Several days
later, in what was presented as a different study on ESP,
measures of laboratory aggression using aversive noise were
obtained in the typical aggression paradigm. No differences were
found among the three exposure conditions. The authors
speculated that a more immediate measure, in combination with
stimuli which "prime" thoughts and feelings relevant to the
exhibition of specific behaviors might be more conducive to an
'ndividual's performance of such behaviors.
An important study that clarifies the interaction of
985
motivational, message and inhibitory factors as predictors of
self-reported sexual aggression (Malamuth, In Press) has
demonstrated that (a) such factors as hostility to women,
dominance and acceptance of interpersonal violence, arousal to
sexual violence, and sexual experience all correlate with
sexually aggressive behaviors; (b) the occurrence of these
aggressive behaviors is better "explained" or "predicted" by
these factors in combination; (c) arousal to sexual aggression
correlates with dominance and hostility to women and is also an
important predictor of sexual aggression; and (d) these self-
reports of sexually aggressive behavior are also correlated with
laboratory measures of aggression.
Effects of Massive Exposure
In a study designed to evaluate the effects of massive
exposure to sexual violence and to further explore the components
of the desensitization process, a series of four studies — all
part of a Ph.D. dissertation were conducted. (Linz, 1985).
College males were exposed to a series of "slasher films," all R-
rated, using a formula of sexual explicitness juxtaposed with
much blood and gore. A typical example is a scene from Toolbox
Murders showing a naked woman taking a tub bath, masturbating,
then being stalked and killed with a power drill by a masked
male. Comparisons were also made among R-rated nonviolent films
and X-rated nonviolent films, both of which included sexually
explicit scenes (the former were of the teenage sex film
986
variety).1124
After viewing one film per day for five days, subjects were
asked to participate in what was presented as a different study
„_ a pretest of a law school documentary — then completed a
questionnaire assessing the defendant's intentions, the victim's
resistance, responsibility, sympathy, attractiveness, injury and
worthlessness.
Among his findings:
-- Those who were massively exposed to depictions of
violence against women came to have fewer negative emotional
reactions to the films, to perceive them as significantly less
violent, and to consider them significantly less degrading to
women.
-- This desensitization appeared to spill over into a
different context when asked to judge a female victim of a rape.
Those massively exposed to sexual violence judged the victim of
the assault to be significantly less injured and evaluated her as
less worthy than did the control group.
— There were no differences between subjects exposed to the
teenage sex film or the X-rated film and the control group on
either pretrial measures on objectification of women, rape myth
acceptance or the acceptance of conservative sex roles or on the
1124 Tne following films were used: R-rated nonviolent
'teen sex" films; Porky's, Fast Times at Ridgemont High, Private
Lessons. Last American Virgin,andHots. x-rateanonviolent
turns!Debbie Does Dallas,Health Spa, The Other Side of Julie,
Indecent Exposure, and Fantasy^ R-rated "slasher"films;Texas
£!lLinsaw Massacre, Maniac, Toolbox Murders, Vice Squad, ancl T
n Your Grave. — -
987
J
posttrial measures (defendant guilt, verdict, victim
responsibility).
— Two movies (about three hours viewing time, about twenty
to twenty-five violent acts) were sufficient to obtain a
desensitization effect similar to the effect obtained after
exposure to five movies, suggesting that desensitization can
occur fairly rapidly.
-- These findings were most pronounced for those subjects
high on psychoticism and exposed to the highly sexually violent
film. These individuals were significantly more likely to
endorse the use of force in sexual relations and to evaluate the
victim portrayed in the rape case as less credible, less worthy,
and less attractive.
The effectiveness of debriefing procedures were assessed and
the measures were found to be generally effective in reducing
negative effects observed after film exposure.
Krafka (1985) used these same R-rated "slasher" films in a
study similar to Linz's but using female subjects. Krafka also
used these films as stimuli for a "violent" condition and
contrasted this with exposure to sexual violence and to an X-
rated set of films. The effects of massive exposure obtained for
male subjects were absent for females.
It is clear that for males, exposure to sexually explicit
materials juxtaposed with violence directed at a female target
enhances calloused attitudes in similar situations involving
women as victims.
988
The Effects of Nonviolent Sexually Explicit Materials
The importance of specifying various contingent conditions
under which certain effects may or may not be obtained becomes
Immediately obvious when one looks at the findings in this area.
It is also clear that while there are a greater number of studies
that examined the effects of nonaggressive sexually explicit
materials, particularly if one includes the 1970 Commission
studies, the diversity of dependent variable measures as well as
experimental stimuli used is also greater than those in the area
of sexual violence.
A number of different effects from a variety of studies have
been obtained in the areas of affect, attitudes as well as
behavior.
Affective and Perceptual Responses
Wishnoff (1978) exposed sexually inexperienced undergraduate
females to explicit erotic films. He found that sexual anxiety
decreased while expectations about engaging in intercourse in the
near future increased significantly.
Along the same lines, Byrne (1977) and Byrne and Byrne
(1977) suggested that initially, exposure to sexually explicit
materials may offend and disturb some, or produce apprehension in
others. These authors then hypothesized that frequent exposure
""educes negative reactions and negative appraisals of these
^actions. Once tolerance increases, the stimuli leads to
greater pleasurable sexual fantasies and greater enjoyment, a
generally supported by their data.
989
Perceptual judgments have also been demonstrably affected
exposure, particularly in the areas of comparative judgments and
estimations of reality. Kenrick and Gutierres (1980) fOu
subjects' judgments of the attractiveness of an average female
were lowered by exposure to media females. Proposing that such
effects could be more significant in the realm of sexually
explicit materials, Gutierres, et. al. , (1985) did a follow-up
recently in which subjects were asked to assess characteristics
of others after exposure to slides of Playboy and Penthouse
models. In four successive experiments, target persons rated
were a stranger and the subject's spouse or long-term live-in
partner. Both types of target persons were more negatively rated
only by male subjects. Similar results were obtained after males
were exposed to "beautiful females in sexually enticing
activities" (sexually provocative poses or precoital and coital
activities) in contrast to males exposed to less attractive
females (Weaver, Masland, and Zillmann, 1984).
This perceptual contrasting of aesthetic appraisals is
contingent on whether the rated target and the comparison target
are associated (Melamed and Moss, 1975; Griffitt, 1971). F°r
example, when an individual is presented in the context of
attractive friends, that individual tends to be rated as more
"attractive." In the case of comparing media models with »
significant other, on the other hand (where presumably there
no association between the target and the comparison), tn*
comparison stimulus, or the media model in this case, "provi
990
an anchor or contrast point for the evaluation of the target
timulus." (Melamed and Moss, 1975, p. 129).
Hatfield and Sprecher (1983) exposed males to "a Playboy-
type article -- a romantic seduction scene designed to be
arousing-" They predicted that a sexually aroused male would
exaggerate a woman's sexual' desirability as well as her sexual
receptivity. Male subjects were then shown a photograph of "a
potential date." Both predictions were confirmed. Aroused men,
according to the authors, were more likely to agree that their
potential date was "amorous," "immoral," promiscuous," "willing,"
"unwholesome," and "uninhibited."
Different results were obtained by Dermer and Pyszczynski
(1978) in an investigation of the effects of erotica on males'
responses to women they loved. They were particularly interested
in whether erotica would enhance "loving", or "liking" responses.
Hales who read an erotic story (an explicit account of sexual
behaviors and fantasies of a college female) reported greater
romantic involvement than those in a control condition. That is,
they were more apt to report expressing "loving" than "liking"
statements to their loved ones when sexually aroused than when
n°t sexually aroused.
In looking at the above studies as a whole, it is quite
Possible that with "loved ones," could accentuate perceptual
judgments while stimuli that primarily enhance arousal reactions
las in the Hatfield and Sprecher, 1983 and Dermer and
yszczynski, 1978 studies which used textual material) enhance
991
more "love-oriented" responses for loved ones and "lust-oriented"
responses in a dating situation.
Effects on Behaviors.
Initial studies conducted for the 1970 Commission showed
that sexually explicit materials had either no effect on sexual
behavior or when effects were observed, these were generally
slight increases in those sexual activities already in the
individual's established repertoire (Amoroso, et. al., 1970-
Byrne and Lamberth, 1970; Kutchinsky, 1970). These behavioral
effects generally occurred within a short period after exposure.
However, as one of the 1970 research investigators observed, it
was also possible that,
the effects of erotica on behavior could have been
obscured in the initial body of research because two
major components of the influence process were missing
from the early investigations: the extended time
period necessary for change to occur and the
specification of the depicted behavior as well as the
relationship between the interactants. (Byrne and
Kelley, 1984).
While more recent studies have examined the impact of
nonviolent sexually explicit materials after repeated exposure,
others have also examined behavioral effects after short-term
exposure. It is in the latter area of behavioral effects from
exposure to nonviolent sexually explicit stimuli where apparently
conflicting results are found.
Baron and Bell (1977) exposed male students to stimuli that
included seminude females, nudes, heterosexual intercourse
some exp-licit erotic passages. The mild erotic stimuli (sen
nudes and nudes) inhibited aggression levels whereas
992
"stronger" stimuli had no effects. A follow-up study (Baron,
1979), this time on female subjects, using the same stimulus
materials found mild stimuli inhibiting aggressive behavior while
the stronger stimuli increased aggression. Both these studies
measured aggressive behavior via "shocks" delivered on an
aggression machine.
In another study, photographs variously depicting
"nonerotica," nude females, and couples in sexual activities were
shown to male subjects (Zillmann and Sapolsky, 1977).
Additionally, subjects were either provoked or unprovoked. For
the latter group, no differences in aggression levels by type of
stimulus were observed. No differences were observed in
aggression levels for subjects who were provoked either, although
respondents in this condition also exhibited lower annoyance
levels. The authors explained these findings in terms of the
aggression-reducing effect of relatively non-arousing but usually
pleasant sexually explicit images which act to reduce annoyance
or anger and consequently, aggressive behavior.
Along these lines, Sapolsky (1984) has suggested that
content characteristics have an impact on affective states (that
is, how pleasing or displeasing the stimulus is) as well as on
arousal levels. The combination of these factors appear to
Produce differential responses.
Situational factors such as provocation and the removal of
restraints against aggression appear to further mediate the
effects of nonviolent pornography on viewers. Donnerstein,
993
Donnersteln and Evans (1975) found that "mild erotica" (semi-
nudes and nudes from Playboy) inhibited aggressive responses in
contrast to "stronger erotica" (frontal heterosexual nudes in
simulated intercourse and oral-genital contact) which enhanced
aggression, particularly for previously provoked subjects. A
subsequent study similarly showed that a pornographic film (black
and white stag film depicting oral, anal intercourse and female
homosexual intercourse) increased aggression levels among angered
males to a significantly greater extent than a neutral film
(Donnerstein and Barrett, 1978).
In comparing the effects of both aggressive and erotic films
on aggressive behavior of male subjects, Donnerstein and Hallam
(1978) found both types of stimuli to increase aggressive
behavior against both a male and a female target. However, when
these subjects were given a second opportunity to aggress, these
responses increased in the pornographic film condition for the
female but not for the male target. The second aggression
opportunity, the authors suggest, acts to reduce restraints on
aggression against women.
In sum, the experimental effects from exposure to nonviolent
pornographic material appear to be mediated by a number of
conditions: the strength of the stimulus to induce arousal, the
affective nature of the stimulus, and situational factors such as
the removal of restraints against aggression.
Effects from Longer Term Exposure.
A number of studies, both from the 1970 Commission and more
994
recent ones, examined the effects of "massive" exposure to
pornography. "Massive exposure" in these studies means exposure
Over a duration of one to several weeks. Mann, Sidman and Starr
(1970) exposed married couples in four consecutive weekly
sessions to sexually explicit films or to nonerotic films (for
the control group). Sexual activities were recorded in diaries
by the subjects during the exposure period and attitudes toward
pornography also assessed both prior to and after exposure.
Sexual activities increased in frequency during exposure days
although these activities were ones these subjects normally
engaged in (i.e., they were not related to specific ones
portrayed in the stimulus materials). An additional finding was
that the reported stimulating effect grew weaker as the weeks
progressed. Whether this diminution is attributable to boredom
or to habituation is not entirely clear.
Howard, Reifler and Liptzin (1971) similarly exposed male
college students to heavy doses of pornographic films,
photographs, and reading material during ninety-minute sessions
over a three-week period. Experimental subjects could choose
from among these materials and other "nonerotic" ones during the
first ten sessions. This was followed by three sessions where
the original pornographic material was replaced by new ones.
During the last two sessions, the "nonerotic" materials were
taken away. Control subjects were not exposed to these types of
"aterials. The findings, based on physiologic and attitudinal
Measures, revealed initial high interest which faded rapidly with
995
158-315 Vol. 1, o - 86 - 33
repeated exposure. After this period of unrestricted exposur
the provision of new materials failed to revive interest
Decreased penile response was measured as well as concomita
reductions in other responsiveness measures (e.g., heart rate
respiration rate and skin temperature). While the author
interpreted these results in terras of boredom, Zillmann and
Braynt (1984) suggested that habituation is a potential
alternative explanation based on the premise that continued
exposure to emotion-inducing stimuli produces declines in the
arousal component of the reaction: evidence that habituation
effects might be occurring.
To test this hypothesis, Zillmann and Bryant (1984) had
eighty male and female undergraduates randomly assigned to a
massive, intermediate, no exposure or control group. Subjects in
the three experimental groups met in six consecutive weekly
session and watched six films of eight minutes duration each,
with varying degrees of exposure to the explicit sex films.
Ostensibly, the subjects were to evaluate the aesthetic aspects
of these films. All erotic films depicted heterosexual
activities, mainly fellatio, cunnilingus, coition, and anal
intercourse, none of which depicted infliction of pain. The non-
erotic films were educational or entertaining materials, all
previously judged as interesting. Experimental subjects returne
to the laboratory one week after treatment and were then expose
to three films of varying degrees of explicitness (precoitus«
oral-genital sex and intercourse, and sadomasochism an
996
bestiality) followed by measurements of excitation levels (heart
ate and blood pressure) and affective ratings.
Two weeks after initial treatment, subjects were randomly
assigned (within initial exposure treatments) to view one of the
following: (a) a film depicting oral-genital sex and hetero-
sexual intercourse; (b) a film depicting sadomasochistic
activities; (c) a film featuring bestiality; (d) no film.
Heasures of aggressive behavior also were obtained at this point.
The results three weeks later indicated that with increasing
exposure to various explicit stimuli, arousal responses
diminished, as did aggressive behavior. Furthermore, more
unusual or "harder" erotic fare appeared to grow increasingly
more acceptable with subject evaluations that the material was
offensive, pornographic or should be restricted progressively
diminishing. Measures of sex callousness suggested further
habituation effects as did projective measures of the commonality
of these behaviors. According to Zillmann and Bryant, these
effects were, "evident for both male and female subjects."
Similar habituation effects after "massive exposure" were
reported by Ceniti and Malamuth (1984) for subjects who were
"force-oriented," effects which were most pronounced with
exposure to sexually violent depictions. Arousal patterns were
n°t affected, however.
An earlier report on other aspects of the same study
lzillmann and Bryant, 1982) showed that subjects also exhibited
'reater sex-callousness, using measures developed by Mosher
997
(1970). They also showed some cognitive distortion in terms Of
exaggerated estimates of the prevalence of various sexual
activities as a result of massive exposure.
There is contrary evidence from Linz (1985) on the effects
of massive exposure to nonviolent sexually explicit materials in
a study described earlier under Effects of Massive Exposure to
Sexual Violence. Subjects exposed to R-rated "slasher" filmS|
"teen sex" films and "X-rated nonviolent films" did not show
the same effects in a rape-judgment situation as did the
"slasher" films which showed perceptual changes described as
desensitization to film violence and to violence against women.
Another investigation into the effects of massive exposure
to nonviolent sexually explicit materials tested the habituation
hypothesis (Zillmann and Bryant, In Press) using both male and
female students and adults from a metropolitan community
similarly examined effects of massive exposure. This time, the
"behavior" of interest was choice of entertainment material. Two
weeks after exposure, subjects were provided an opportunity to
watch videotapes in a private situation with G-rated, R-rated and
1125 Psychoticism measures included such items as the
following (Linz, 1985):
(a) The idea that someone else can control your thoughts.
(b) Having thoughts about sex that bother you a lot.
(c) The idea that something is seriously wrong with your
body.
(d) Never feeling close to another person.
(e) Feeling lonely when you are with other people.
998
X-rated programs available. This opportunity to view was
provided during an ostensible "waiting period" between
procedures, with the subject's choice of entertainment and length
Of viewing unobtrusively recorded. Subjects with considerable
prior exposure to common, nonviolent pornography showed very
little interest in this type of fare, choosing instead to watch
more uncommon materials that included bondage, sadomasochism, and
bestiality. These effects, while observable among both males and
females, were again more pronounced among the former.
While habituation is certainly a plausible explanation for
these findings, choice of entertainment fare on the basis of
stimulus novelty cannot be precluded entirely (see Kelley, In
press). An examination of the mean amount of time spent viewing
the video tapes shows that for those massively exposed, male
students watched an average of three and a half minutes of
"uncommon fare" (featuring bondage, S & M, bestiality) while
female students watched an average of a minute and a half, with
viewing times for their nonstudent counterparts only slightly
higher. Keeping in mind that subjects had fifteen minutes of
viewing time, the graduation to a preference for stronger fare,
or habituation, does not seem to be firmly supported by the data,
furthermore, the measurement situation might also be viewed as
"permission-granting," with choice of what might normally be
considered taboo material being more permissible or socially
condoned. One could argue that greater availability of these
"aterials in the real world might also be analogous to an
999
indication of social sanctions being lifted, so to speak, and th
laboratory evidence obtained here certainly merits mor
attention, perhaps through longitudinal studies.
Further measures were obtained from the same samples of
subjects in the last study described above in the areas of
"sexual satisfaction" and "family values," both through an
extensive battery of questions (Zillmann and Bryant, 1986a
1986b). Subjects were asked how satisfied they were with their
present sexual partner, their partner's physical appearance,
affectionate behavior, sexual behavior, commitment and so forth.
Their findings showed significantly increased dissatisfaction in
these various areas of sexuality after massive exposure.
In the area of "family values," a variety of questions
tapped attitudes on pre-marital and extra-marital sex,
estimations of occurrences of "sexual faithfulness" in the
population, and perceptions of the institution of marriage and
divorce. Again, massive exposure appears to have increased
acceptance of pre-marital and extra-marital sex and diminished
the importance of the institution of marriage. These findings
have to be viewed with caution since the large number of
statistical tests conducted increases the chances of obtaining
false positive conclusions. Because of the complexity of the
experimental procedures, the long battery of questions asked, and
the absence of a measure validating the effectiveness of the
cover story, we must also view these findings as tentative and
worthy of further examination.
On the basis of the above findings, it appears that short-
term effects have been observed in the laboratory but under very
specific conditions. These conditions should be further
elaborated on in future research. Massive exposure studies
varying the lengths of exposure, on the other hand, suggest that
certain types of effects may occur with long-term exposure. The
question arises whether this is true of all types of sexually
explicit stimuli that do not have any violent elements.
A recent Canadian study has tried to address this issue
(Check, 1985). Four hundred thirty-six college students and
nonstudent metropolitan Toronto residents recruited by means of
advertisements, were exposed over three videotape viewing
sessions to one of three types of materials, or to no material at
all. The stimulus materials were constructed (primarily because
no materials could be found that exclusively contained the
intended manipulations) from existing commercially available
entertainment videos to represent one of the following:
1. Sexual violence — Scenes of sexual intercourse
which included a woman strapped to a table and
being penetrated by a large plastic penis.
2. Sexually explicit and degrading -- Scenes of
sexual activity which included a man masturbating
into a woman's face while sitting on top of her.
3. Sexually explicit — Sex activities leading up to
intercourse between a man and woman.
These categorizations were validated in preliminary
j Questionnaires assessing subjects' perceptions of these|
i materials. Results indicated that exposure to both the sexuallyi
! violent and the nonviolent dehumanizing pornography (1) were more
1000 1001
likely to be rated "obscene," "degrading," "offensive" and
"aggressive;" (2) tended to elicit more pronounced feelings of
anxiety, hostility and depression; and (3) tended to be
successfully differentiated from the materials classified as
"erotica." The patterns were less clear on reported likelihood
of rape measures and reported the likelihood of engaging in
coercive sex acts. While those in the violent and in the
degrading exposure conditions reported significantly greater
likelihood of engaging in these behaviors compared to the control
group, an effect more pronounced among those with high
psychoticism scores, those exposed to the "erotica" stimulus did
not differ significantly from either the control or both
pornography conditions. The findings also have to be viewed with
caution as the exposure conditions were not completely equivalent
(i.e., the no-exposure control group came in for a single session
while the experimental groups came in for four sessions), a
caveat Check recognized and discusses. Finally, it is not
entirely clear what differential effects on the exposure groups
the preliminary instructions to all subjects might have had which
included some reference to the study being funded by the Fraser
Commission on Pornography.
Similar findings were obtained by Senn (1985) for female
subjects exposed over four sessions to slides of "erotica,
"nonviolent dehumanizing pornography," and "violent pornography.
The first class of materials were described as mutually
pleasurable sexual expression between two individuals presented
as egual in power. The second category was described as havin
no explicit violence but portraying acts of submission (female
kneeling, male standing; female naked, male clothed) while the
third included acts of explicit violence in the sexual
interaction (e.g., hair pulling, whipping, rape).
Both violent and nonviolent pornography resulted in greater
anxiety, depression and anger than erotica and both were also
reliably differentiated from the latter on a number of affective
dimensions, with "erotica" consistently rated more positively.
These findings on non-violent, "degrading" pornography are
by no means definitive but they do suggest the importance of
examining the effects of various content attributes.
Individual Differences.
Not everyone reacts in the same way to sexually explicit
materials. Researchers have examined various individual
explanatory variables which might explain more fully why
individuals respond in different ways. We do not intend an
exhaustive summary of the variety of individual attributes
examined but merely wish to illustrate that observed effects are
mediated by a number of factors. Three sets of factors will
suffice for discussion.
One characteristic which has been examined is gender. It
had often been asserted that females are less interested in sex
than males. Some of the early studies on sexual behavior
(Kinsey, Pomeroy, Martin and Gebhard, 1953) concluded that
females were disinterested in pornography and were less aroused
1002 1003
by it. The same sex differences were reported in the national
survey of the 1970 Commission (Abelson, et. al., 1970).
Experimental findings, however, seem to suggest otherwise.
Males and females in laboratory-exposure situations reported the
same levels of arousal in response to sexually explicit stimuli
(Sigusch, et. al. , 1970; Byrne and Lamberth, 1971; Griffitt,
1973). Females, however, are also more apt to report negative
affect toward erotic stimuli, that is, they report more shock,
disgust, and annoyance than males (Schmidt, et. al., 1973^.
These differences, not surprisingly, are even more pronounced
when aggressive sexual themes such as rape portrayals alre
employed (Schmidt 1974). The context of the portrayal is also
significant as Stock (1983) demonstrated. Female subjects
exposed to an eroticized version of a rape exhibited high arousal
levels while a version which emphasized the victim's fear and
pain elicited negative affective reactions and lower arousal
levels. Krafka's (1985) female subjects did not exhibit the same
negative effects that Linz's (1985) males did after exposure to
R-rated slasher films which the former attributed to some
emotional distancing because the victim in these films was
invariably female.
Personality differences also mediate effects. One
personality dimension which has been examined is "psychoticism"
(Eysenck and Eysenck, 1976) which Barnes, Malamuth and Check,
1984a, 1984b) found to be positively related to the enjoyment of
force and unconventional sexual activities. Linz (1985) and
Check (1985) similarly found psychoticism scores to be highly
correlated with the acceptance of rape myths.
Finally, experiential factors also help explain response
differences. Those with more previous experience with sexually
explicit materials also tend to be less inclined toward
restrictions (Newsweek-Gallup Survey, 1985) and also tend to
exhibit more sex-calloused attitudes (Malamuth and Check, 1985)
and more self-reported sexually aggressive behavior (Check,
1985).
Summary for Violent and Nonviolent Sexually Explicit
Materials.
In evaluating the results for sexually violent material, it
appears that exposure to such materials (1) leads to a greater
acceptance of rape myths and violence against women; (2) have
more pronounced effects when the victim is shown enjoying the use
of force or violence; (3) is arousing for rapists and for some
males in the general population; and (4) has resulted in sexual
aggression against women in the laboratory.
Malamuth's (In Press) research has further demonstrated that
such attitudes as rape myth acceptance and acceptance of violence
against women are correlated with arousal to such materials and
with "real-world" sexual aggression and that subjects who have
demonstrated sexual aggression in the laboratory are also more
likely to report using coercion and force in their actual sexual
interactions. The validation of the measures used in his
studies, the use of physiological measures of arousal, and the
1004 1005
attempt to systematically examine patterns among different
populations with a variety of measures, arousal, attitudinal and
behavioral, all tend to provide the type of convergent validation
we feel is required of social science evidence.
We are less confident about the findings for nonviolent
sexually explicit materials and we hasten to add that this is not
necessarily because this class of materials has no effects but
because the wide variety of effects obtained needs to be more
systematically examined and explained. We can speculate, as have
others, about potential explanations regarding some of these
differences. For example. Check and Malamuth (1985) have pointed
to the differences between Mosher's (1970) lack of effects on sex
callousness and Zillmann and Bryant's (1982) finding of greater
sex callousness from exposure to nonviolent sexually explicit
stimuli (using the same scale developed by Mosher) as possibly
attributable to a difference in stimulus characteristics.
Mosher's film, based on his own descriptions, depicted "more
affection than is typical of much pornography", while Zillmann
and Bryant's (1984) material tended to portray women as
"nondiscriminating, as hysterically euphoric in response to just
about any sexual or pseudosexual stimulation, and as eager to
accommodate seemingly any and every sexual request" (p. 22).
Check and Malamuth (1985) maintain that the portrayal in Zillmann
and Bryant's study suggests "a dehumanized portrayal of women,
which had the effect of generating disrespectful, antifemale
attitudes in both male and female subjects" (p. 205).
This explanation could conceivably hold for the differences
between Linz's (1985) findings and those of Zillmann and Bryants
(1984). Because specific attributes that may characterize these
films (other than the fact that they contain no violence) and
explain their effects are either confounded (i.e., more than one
factor is emphasized, making it difficult to attribute results to
a particular one), or are not clearly explicated, it is more
difficult to say definitively that this particular class of
materials has a particular pattern of effects. There are very
tentative suggestions that the manner in which the woman is
portrayed in the material (i.e., whether she is portrayed in a
demeaning or degrading fashion) might be an important content
factor but this is clearly an area that should be investigated.
Certainly, the theoretical, (and many will argue the common-
sensical) reasons for mediating effects on the basis of content
cues are already available from social learning theory (Bandura,
1977; Bandura, et.al., 1975).
Some Methodological Considerations
As we have done for previous sections describing different
types of data collection procedures with different populations,
we need to consider certain issues that pertain to experimental
studies that will help clarify our evaluation of research
findings. We will consider five issues in particular which are
probably most often mentioned: the problem of the ability to
generalize the results outside of the laboratory (what
researchers call "external validity"); the problem of "the
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158-315 Vol. 1, O - 86 - 34
college student" as volunteer subject? the measures used to
reflect "anti-social behavior"; ethical issues; and the
operationalization of "pornography."
Ability to Generalize Experimental Findings.
The problem of the "artificiality" of the experimental
situation is an issue not new to social psychologists (see
discussions by Berkowitz and Donnerstein, 1982; Littman, 1961).
While it is true that the experiment is indeed "artificial," it
is so by design. If one wanted to examine if X "causes" Y, a
necessary condition for establishing such a causal connection is
the elimination or control of other factors which may also affect
Y. Such a condition then obviates a "real-world" setting in
which numerous factors interact and jointly impinge on the
individual. Littman (1961) maintains that systematic
experimental designs are designed to test "more universal
theoretical propositions that apply to large groups of human
beings." That is, they are designed to test theorized
relationships about human behavior that makes the issue of
representativeness of the experimental setting and subjects of
lesser consequence. Berkowitz and Donnerstein, 1982, offer a
cogent summary of arguments on this point. (See also Kruglanski,
1975).
The College Student as Experimental Subject.
The issue of representativeness has also been raised with
regard to the college student as experimental subject, with the
implication that the college student hardly represents "real
people" in the "real world." To reduce the issue to one Of
demographics is an oversimplification. If we are interested in
the question of human response to sexually explicit materials,
why should being in college or being male for that matter be a
problem? As Berkowitz and Donnerstein (1982) point out, "The
meaning the subjects assign to the situation they are in and the
behavior they are carrying out plays a greater part in
determining the generalizability of an experiment's outcome than
does the sample's demographic representativeness or the setting's
mundane realism." (p. 249)
Having said that, we also need to point out that there are,
in fact, other attributes of the subject who participates in
experiments involving exposure to sexually explicit materials
that might have an impact on the interpretations of experimental
results. Results from various studies suggest that:
1. Males, more than females, are likely to volunteer for
sex-related experiments (Kenrick, et. al., 1980).
2. Subjects who are willing to watch sexually explicit
materials also tend to be sexually liberal, more sexually
experienced, less anxious about sexual performance, and have
fewer objections to pornography (Kaats and Davis, 1971; Parkas,
et. al., 1978; Wolchick Spencer and Lisi, 1983; wolchick, Braver
and Jensen, 1985).
3. Volunteer rates drop for both men and women the more
Intrusive the experimental conditions. Volunteer rates dropped
by two thirds (from thirty-eight percent to thirteen percent) for
1008 1009
women and by over half for men (from sixty-seven percent t
thirty percent) with the requirement of partial undressing to
accommodate physiological arousal measurements (Wolchick, Braver
and Jensen, 1985) ,
If participants are in fact more liberal, more experienced,
and more accepting of sexually explicit materials, then it is
certainly plausible that the "error," if there is one, might be
in the direction of null findings, while observed effects,
particularly in the short term, might be indicative of their
robustness (Eysenck, 1984). In any case, it is apparent that
these other attributes ought to at least be considered in both
the design and interpretation of experimental studies involving
sexually explicit materials.
Ethical Considerations. While some bias may be inherent in
the volunteer subject in general (Rosenthal and Rosnow, 1969) and
in the volunteers for experiments involving sexually explicit
materials in particular, we are constrained even more by
understandable concerns regarding the more "vulnerable" segments
of the population. Sherif's (1980) observations about the lack
of evaluation procedures for the effectiveness of debriefing
subjects in one particular study (see Malamuth, Heim and
Feshbach, 1980 for the study in question and Malamuth, Feshbach,
and Heim, 1980 for response to Sherif, 1980) have prompted
researchers to measure debriefing effects (Malamuth and Check,
1984; Linz, 1985; Krafka, 1985;) and also to eliminate from
participation those who might be more vulnerable to the effects
of exposure to materials in these studies. For example,
(1985) measured potential subjects on a psychoticism scale an<j
eliminated from participation those who had high scores on this
measure. Krafka (1985) excluded from her female subject pool
those who were sexually inexperienced because of earlier findings
(Wishnoff, 1978) that when these types of females were exposed to
explicit erotic films, their sexual anxiety diminished while
their expectations about engaging in sexual intercourse
increased. The trade-off between ethical concerns and
representativeness is evident in Krafka's observation: "Although
this restricts the population to which the present results
generalize, the author was unwilling to show sexually
inexperienced females degrading images of sexual behavior and,
especially, pornographic rape depictions." (p. 17).
These efforts to protect subjects from potential harm are,
of course, laudable and a healthy response to concerns that have
been raised. In terms of the final pool of subjects who
participate in pornography experiments, however, the self-
selection process described above and the researcher-imposed
selection process must circumscribe our evaluation of research
results.
Measures of Behavioral Effects.
The range of dependent variable measures used in these
studies is reasonably diverse. The use of similar measures
across studies allows for better validation and the use of varied
measures also provides the advantage of convergent validation.
1010 1011
We will focus on behavioral measures of effects in this
discussion and briefly discuss how attitude measures may or not
may predict behavior.
Four categories of behavioral measures have been used in
these studies:
1. Measures of aggressive behavior. The Buss aggression
machine, sometimes know as a "shock box," has been widely used in
laboratory experiments in the area of media violence and
aggressive behavior (see reviews by Andison, 1978; Comstock, In
Press). Donnerstein and his colleagues have used this measure to
examine similar effects of exposure to violent and nonviolent
pornography and aggressive behavior (Donnerstein, et. al., 1975;
Donnerstein and Barrett, 1978; Donnerstein, 1980; Donnerstein and
Berkowitz, 1981).
The procedure usually involves putting the subject in a
"learning" situation where the subject's task as "teacher" is to
make sure that a "learner" (usually an experimental confederate)
masters a given lesson. When the learner makes a "correct"
response, the subject is instructed to reward him or her by
pressing a button illuminating a light. Whenever the learner
makes an error, he is punished by means of an electric shock.
The sequence of responses has, of course, been preprogrammed.
The subject's "aggressive tendencies" are recorded by means of
the intensity and the duration of the shock which, in reality, is
not received by the confederate (see Baron, 1977b for discussion
on this measure).
1012
While this procedure has been criticized (see, for example
Baron and Eggleston, 1972), subsequent procedural modifications
have increased its validity and has, in fact, been found to be
highly predictive of physical aggression (Baron, 1977b). The
question, however, of this measure's predictive validity in the
area of sexually aggressive behavior outside of the laboratory
still remains open since no efforts have been directed at
examining this question.
Other surrogate measures of aggressive behavior have
included the infliction of aversive noise (Cantor, et. al., 1978;
Malamuth, 1983) and infliction of "pain" to an experimental
confederate in a retaliation move where the subject has the
opportunity to apply too much cuff pressure in a blood pressure
reading situation (Zillmann and Bryant, 1984). Some validation
is offered by Malamuth (1983) for the use of the aversive-noise
measure with evidence that attitudes about real-world aggression
(such as wife battering and rape) are clearly correlated with
levels of laboratory aggression against females, suggesting some
linkage between laboratory aggression and external responses
outside the laboratory.
2 . Judgments toward sexual assailants. In numerous
studies, dependent measures have been obtained by having subjects
respond to a rape case by evaluating both the victim and the
assailant. While perceptual measures are most often used in this
instance, one could also presumably consider delivering a verdict
or a sentence as "behavior." In these instances, the
1013
presentation of a mock trial situation provides an element of
mundane realism to the experimental situation. The studies by
Linz (1985) and Krafka (1985) are excellent attempts at further
diminishing Wemand characteristics of the experimental situation
since the location of this phase of the experiment was conducted
at the law school moot court where subjects were asked to
evaluate what is purported to be the details of an actual rape
case. An earlier study, a field experiment, by Malamuth and
Check (1981) provides what may be the best procedure for
eliminating demand characteristics and the measurement of effects
in a setting that affords both control and realism. In this
study, subjects were asked to watch the experimental films which
were being shown on campus as part of the regular campus film
program. Dependent measures were obtained a week later in what
was presented as a public opinion survey. More studies in this
area are clearly called for.
3. Choice and Viewing of Pornographic Fare. Zillmann and
Bryant (In Press) utilized a unigue way of measuring behavioral
effects of exposure by examining subjects' choice of
entertainment fare in an unobtrusively measured procedure. In
their study of the effects of massive exposure, the following
procedure was used to determine subjects' preferences for
entertainment fare after they had been repeatedly exposed to
pornography or to a neutral stimulus in the control conditions
the subjects were met individually by the experimenter and
informed of a brief delay caused by equipment problems. The
subject was then taken to another waiting area (ostensibly
another student's office) with a television set, a video tape
recorder, and some video tape cassettes (including general
interest and adult tapes ranging from "common erotica to graphic
depictions of relatively uncommon sexual practices") and invited
to feel free to watch. To ensure the subject knew he could watch
in privacy, the subject was told the experimenter would call him
on the phone to report to the designated room. Unknown to the
subject was the fact that each cassette tape was programmed to
emit a unigue signal such that when the tape was played, an event
recorder also recorded the amount of time spent watching.
The advantage of this procedure is its experimental as well
as ecological realism.
4. Self-reports of Aggressive Sexual Behavior. Two types
of measures have been used to describe sexually aggressive
behavior: a behavioral inclination measure operationalized by a
self-reported likelihood of raping and using force in sexual
interactions (see Malamuth, Haber and Feshbach, 1980; Malamuth,
1981; Briere and Malamuth, 1983) and a self-report inventory
developed by Koss and Oros (1982) and used in several studies
(see Malamuth, 1982; Malamuth, In Press; Check, 1985). The
latter includes a range of sexual behavior measures from saying
things one does not mean to obtain sexual access to using various
degrees of physical force.
An instrument developed by Hurt to measure attitude (1980)
has been used in a number of studies (Koss, 1986; Linz, 1985;
1014
1015
Krafka, 1985; Malamuth and Check, 1981; Malamuth, 1981) to tap
three dimensions: the acceptance of rape myths, the acceptance
of interpersonal violence; and the acceptance of violence against
women. The following are examples of the rape myth acceptance
measure:
When women go around braless or wearing short skirts and
tight tops, they are just asking for trouble.
Women who get raped while hitchhiking get what they deserve.
In evaluating these attitudinal measures and the laboratory
measures of sexual behavior, two important questions have been
raised to which we have alluded earlier. First, do attitudes
predict behavior? And second, do laboratory measures of
aggressive behavior predict actual aggressive behavior?
On the first guestion, Malamuth and his colleagues have
demonstrated a consistent correlation between Burt's (1980)
attitudinal measures and their own measures of behavioral
intentions (Briere and Malamuth, 1983; Malamuth, 1981; Malamuth,
Haber and Feshbach, 1980; see also Malamuth and Briere, 1986 for
a discussion on the attitude-behavior question in the area of
sexual aggression). Koss (1986) has similarly demonstrated a
high correlation between these sex-stereotyped beliefs and self-
reports of sexual aggression. We do not have these same
attitudinal data from those members of the population who provide
the more extreme measures of sexually aggressive behavior —
rapists — which might provide another means of validating the
attitude-behavior postulate. However, interviews of incarcerated
rapists appear to show similar acceptance of rape myths (Scully
and Marolla, 1984). A number of studies are also reviewed in
Malamuth and Briere (1986) which support the correlation between
attitudes and non-laboratory aggressive behavior.
Operationalizations of Pornography. Researchers, like lay
people or the courts, have had some differences in the
operationalization of "pornography." Malamuth (1984), for
instance, uses the term with the qualifier that "no pejorative
connotation is intended" and points out the difficulty of
operationalizing the distinction between "aggressive versus
positive types of pornography." (p. 29). However, he also relies
on Steinem's (1980) separation of "acceptable erotica," in
Malamuth's terms, emphasizing the notion of what Steinem called
"shared pleasure," from "objectionable pornography," or what
Steinem referred to as "sex in which there is clear force, or an
unequal power" and describes stimuli in his research as using
material belonging to the latter. Others have similarly used the
term to refer only to sexually violent material and have used
"erotica" to refer to nonviolent sexually explicit material
(Abel, 1985). Still others on occasion simply use the term
"erotica" and employ subclasses of aggressive and nonaggressive
"erotica." (Donnerstein, 1983). Senn (1985) and Check (1985)
have operationalized pornography to include both sexually violent
and nonviolent but degrading categories and have classified all
other sexually explicit portrayals as "erotica."
In examining the types of stimuli used in these studies
1016 1017
(Figure 1), it is clear that a wide diversity of research stimuli
has been employed. These have ranged from partial nudity (Baron,
1979; Baron and Bell, 1977) to various levels of sexual activity,
from "implied" to "explicit," covering a varied range of
behaviors -- masturbation, homosexual and heterosexual
intercourse, oral-genital and oral-anal intercourse, fellatio,
cunnilingus, bondage, and bestiality. Sources of materials have
also run the gamut from so-called stag films to mainstream
sexually explicit magazines, "adult" videos from the neighborhood
video store, and even sex education films (Schmidt and Sigusch,
1970; see also the earlier description of stimulus materials used
in 1970 experimental studies; Check, 1985). The 1970 Commission
found the term "sexually explicit materials" to have greater
utility.
Comparison among studies has become hampered by the
differences in stimulus materials. A common classification
system has been to make use of two subclasses: violent and
nonviolent pornography (see Donnerstein, 1983, 1984) and while
the stimulus materials representing the former have been
relatively consistent (usually a rape scene with variations on
victim reactions), the same cannot be said for "violent
pornography." The full range of stimuli mentioned earlier, from
partial nudity to bestiality (used, for instance, by Zillmann,
Bryant, Comisky and Medoff, 1981) falls within the "non-
aggressive" pornography category. Perhaps not surprisingly, a
full range of results (negative, no effect, and positive) have
also been elicited.
Donnerstein (1983) has maintained that differential arousal
levels evoke different reactions, with "mild erotica" producing a
pleasant distraction and more strongly arousing material
resulting in negative effects. However, this differential-
arousal attribute has not been pursued in subsequent studies.
Zillmann and Sapolsky (1977) have suggested that in addition to
arousal, the stimulus' valence property -- how pleasing or
displeasing it is — also accounts for differential findings.
If the effects from exposure to nonaggressive sexually
explicit materials are mediated in part by their affect value, a
problem still remains: how do we explain the 'pleasing' or
'displeasing' character of a stimulus? Pleasing or displeasing
evaluations could arise from a number of factors including the
explicitness of the material, the type of activity portrayed
(see, for example, Glass1 (1978) scale analysis of the 1970
Commission survey data which shows clear gradations in public
perceptions of different activities), or the theme employed. For
example, Sherif (1980) raised the possibility of power
differentials to explain female subjects' arousal but high
negative affect in response to a stimulus portraying a rape
victim experiencing an involuntary orgasm in Malamuth, Heim and
Feshbach's (1980) study.
Two studies (Check, 1985; Senn, 1985) have attempted to
reconceptualize nonaggressive sexually explicit materials into
two further classes ('sexually explicit and degrading or
1018 1019
dehumanizing", and simply 'sexually explicit'). There is
theoretical justification for expecting differential effects from
these subclasses. Bandura, Underwood and Fromson (1975) have
demonstrated that socially reprehensible attitudes or behaviors
may be made more acceptable by dehumanization of victims.
"Inflicting harm on individuals who are subhuman and debased is
less apt to arouse self-reproof than if they are seen as human
beings with dignifying qualities." (p. 255). Again, this is
clearly a line of research that merits further attention.
The problem of explicating stimulus attributes is
complicated with examination of a class of materials categorized
by their commercial label: "R-rated slasher films" (see Linz,
Donnerstein and Penrod, 1984; Linz, 1985; Krafka, 1985), or "X-
rated films." The former "contain explicit scenes of violence in
which the victims are nearly always female. While the films
often juxtapose a violent scene with a sensual or erotic scene
(e.g., a woman masturbating in the bath is suddenly and brutally
attacked), there is no indication in any of the films that the
victim enjoys or is sexually aroused by violence. In nearly all
cases, the scene ends in the death of the victim." (Linz, et.
al., 1984, p. 137). These studies using this film genre have
generally found desensitizing effects among male subjects, after
massive exposure.
But the question still remains: what does this class called
"R-rated slasher films" mean conceptually? If one were
interested in describing potential effects from classes of
sexually explicit materials, where does this set of materials fi>
in? This appears compounded in an examination of effects 0£
sexually violent, violent, and sexually explicit materials on
female subjects (Krafka, 1985), where these films are used to
operationalize "violent" films, despite allowing that they have
"some sexual content."
"X-rated films" pose the same problems. While they appear
to be used to represent sexually explicit material without any
violence, different themes may be emphasized leading to quite
different results.
The need to utilize meaningful classes that go beyond those
in current use is important not just for validity requirements.
After all, the question•which social scientists must ultimately
address — with both theoretical and pragmatic or public policy
implications — is what types of effects have been demonstrated
for what classes of materials? Such investigations for some
social scientists may have undesirable political or ideological
implications but ignoring the issue also hampers our ability to
explain the nature of effects more fully so as to provide for
nonlegal policy strategies that are firmly anchored in social
science findings (see, for example, Byrne and Kelley, 1984;
Kelley, 1985).
Some Theoretical Considerations
In designing research studies to answer particular
questions, social scientists do not ordinarily operate in a
vacuum. Quite often, the relationships posited, the selection of
1020 1021
variables and their operationalizations, the groups of people
selected for examination, and the general research procedures are
guided by "theory." Quite simply, this is the explanatory
framework which rationalizes or justifies why a particular
relationship might be expected.
We think it useful to summarize some of the theoretical
reasoning that has been applied to the general question of what
effects if any might be found from exposure to sexually explicit
stimuli.
1. Social Learning Theory. This approach offers a
perspective on human behavior based on the notion that there is
"a continuous reciprocal interaction" between environmental
factors, an individual's processing of information from his
environment and his behavior (Bandura, 1977). This framework
assigns a prominent role to the processes of vicarious and
symbolic learning (i.e., learning by observing others' behavior
and one's own) and a self-regulating process whereby an
individual selectively organizes and processes stimuli and
regulate his or her behaviors accordingly.
The generic process of modeling is a major component of
social learning which many mistakenly interpret' as simply
imitation, or a one-to-one correspondence between some portrayed
novel behavior and the reproduction of such behavior. While this
type of effect is not precluded (and there are certainly many
anecdotal media accounts of such instances), "modeling" embraces
a more complex array of processes which can be subsumed under two
categories. First, modeling includes the facilitation of
particular response categories ("response facilitation") which
assumes that a portrayed behavior functions as an external
inducement for similar sets of responses which can be performed
with little difficulty. Second, it includes the capacity to
strengthen or weaken inhibitions of responses ("inhibition" or
"disinhibition") that may already be in the observer's
repertoire. If there are restraints on a particular behavior
(self-restraints, as in anxiety over a particular behavior, or
external restraints, including the possibility of getting caught
and punished for some socially disapproved -- or illegal —
action), such restraints may be lifted when an observer sees a
model engage in disapproved acts without any adverse consequences
(Bandura, 1973, 1977).
In Check and Malamuth's (1985) application of this
theoretical framework, they discuss their findings in terms of
Bandura's postulated "antecedent" and "consequent" determinants.
The former incorporates symbolic expectancy learning principles
exemplified by the symbolic pairing of sex with violence against
women and vicarious expectancy learning, or observing others
becoming aroused to sexual violence. Consequent determinants
include observing seeing a male use force, not get punished, and,
furthermore, find the experience pleasurable for himself and for
his victim.
Two studies based on survey data provide additional
information that certain sexually explicit materials may provide
1022 1023
"models" for behavior for some individuals.
Russell (1985) reported findings from an earlier study on
sexual abuse of women. A probability sample of 930 adult female
residents in San Francisco were interviewed. Of this number,
about four in ten (389 women) said they had seen pornography and
forty-four percent of this group reported being upset by it.
Fourteen percent of the total sample reported they had been asked
to pose for pornographic pictures and ten percent said they had
been upset by someone trying to get them to enact what had been
seen in pornographic pictures, movies or books. An additional
finding in this study was that those who were upset by
pornographic requests were twice as likely to be incest victims
than those who were not upset by similar requests. A similar
pattern was found among those who reported being upset at being
asked to pose for pornographic pictures, i.e., those who were
asked to pose were more than twice as likely to suffer incest
abuse in their childhood (thirty-two percent versus fourteen
percent). What this suggests, according to Russell, is that
women who suffered sexual abuse are significantly more vulnerable
to pornography-related victimization, a " re vict imizat ion"
syndrome.
Silbert and Pines (1986), in a similar study on sexual
assault of street prostitutes, came upon unexpected information
in the course of their interviews. From detailed descriptions
the subjects provided to open-ended questions in regard to
incidents of juvenile sexual assault in their childhood and to
incidents of rape following entrance into prostitution, it became
evident that violent pornography played a significant role in the
sexual abuse of street prostitutes. Of the 200 prostitutes
interviewed, 193 reported rape incidents and of this number,
twenty-four percent mentioned allusions to pornographic material
on the part of the rapist. Since these comments were not
solicited, it is likely that this figure is a conservative
estimate. The authors described the comments as following the
same pattern: "the assailant referred to pornographic materials
he had seen or read and then insisted that the victims not only
enjoyed the rape but also the extreme violence." (p. 12).
2. Arousal. Arousal, has been conceived of as a "drive"
that "energizes or intensifies behavior that receives direction
by independent means" (Zillmann, 1982, 1978). This model relies
on the notion that arousal based on exposure to some
communication stimulus can facilitate behaviors which could
either be prosocial or anti-social, depending on situational
circumstances. Such circumstances could include specific content
cues which might elicit either positive or negative affect
(Sapolsky, 1984). If arousal levels are minimal and the stimulus
evokes pleasant responses (as might be the case when viewing
mildly erotic material), the effect might be reduced aggression.
If, on the other hand, the stimulus elevates arousal to high
levels, then the outcome might be aggressive behavior. This
approach has been criticized for its inability to account for the
predominance of one response rather than another.
1024 1025
3. Habituation. The idea 6f habituation is akin to drug
treatment or drug dependency where, over time, one must rely on
increasing doses to obtain the same effect. In the area of
exposure to explicit sexual stimuli, repeated exposure has
resulted in initially strong arousal reactions become weaker over
time, leading to habituation. (Zillmann, 1982; 1984). One
attitudinal manifestation of this effect is callousness, either
to victims of aggression or simply to the violent or anti-social
behaviors themselves. While this holds promise as an explanatory
framework, more research is needed, particularly longitudinal
studies, to demonstrate its predictive utility.
4. Cue Elicitation/Disinhibition. Berkowitz (1974, 1984)
has proposed a stimulus-response relational model which suggests
that an individual (e.g., a film viewer) reacts impulsively to
environmental stimuli and this reaction is determined in part by
predispositions and in part by stimulus situational
characteristics which could function to "disinhibit" such
predispositions. . Berkowitz has demonstrated that cues associated
with aggressive responding such as a situation depicting a female
victim, when viewed by an individual predisposed to aggress (one
who is provoked or angered), will more likely evoke the
aggressive response as a result of the stimulus-response
connection already established by previous exposure to the films,
(see Donnerstein and Berkowitz, 1981 and Linz, 1985 for
applications) .
These explanatory-predictive approaches may not necessarily
operate independently; they could conceivably complement each
other. They stand, however, in contrast and direct opposition to
the catharsis theory which is still being promoted in many
quarters as the explanation for why exposure to sexually explicit
materials has only beneficial effects. Catharsis suggests that
exposure to highly arousing material actually leads to a
diminution of anti-social effects because relieving the arousal
then reduces the instigation to commit any sex crimes in the
future. Unfortunately, little evidence exists for this claim and
numerous research reviews (primarily in the area of media
violence and aggressive behavior) have arrived at this same
conclusion (Berkowitz, 1962; Bramel, 1969; Weiss, 1969; Geen and
Quanty, 1977; National Institute of Mental Health, 1982;
Comstock, 1985). The following observation typifies comments
made about the catharsis theory.
The cause-effect hypothesis that we already described
is not supported by the data. Little evidence for
catharsis, as we have defined it, exists and much of
the evidence that has been adduced in its favor is
susceptible to alternative explanations that are at
least parsimonious. In fact, when conditions that give
rise to such alternative explanations are re-moved from
the experimental setting, the reverse [authors'
emphasis] of what the catharsis hypothesis predicts is
usually found, i.e., aggression begets more, not less,
aggression. (p. 6)
It is instructive that some have called a moratorium on
catharsis (Bandura, 1973), others have proclaimed its demise
(Comstock, 1985). Even its major proponent has reformulated his
position by explaining why it does not apply to situations
involving media exposure (Feshbach, 1980).
1026 1027
Other Effects of Sexually Explicit Materials
If we take the entire potential range of "effects" which
could occur as a result of exposure to sexually explicit
materials, and if we take the commission of sex offenses to be
one extreme of that continuum, then the other end might be
represented by beneficial effects. Many have made an argument
for such benefits. (Tripp, 1985? Wilson, 1978).
Public opinion data both in 1970 and in 1985 show that a
majority believe use of sexually explicit materials "provide
entertainment," relieve people of the impulse to commit crimes,
and improve marital relations.
If they are any indication, the popularity of "How-To"
articles on sex in the popular media and in best-sellers such as
The Joy of Sex, The Sensuous Woman, and others like them are also
testament to the learning that might occur from these materials.
There are also two areas in which sexually explicit
materials have been used for positive ends: the treatment of
sexual dysfunctions and the diagnosis and treatment of some
paraphilias.
In the area of sexual dysfunctions, a common conceptual
model views a particular goal as a new response to be learned.
The reduction of sexual anxieties or the attainment of orgasm for
nonorgasmic individuals might be examples of such objectives. In
the process of learning a new response, two steps are implicated:
the weakening of response inhibitions and facilitation of the
acquisition of new behavior patterns that comprise the steps
toward the final objective.
For instance, in teaching nonorgasmic females to achieve
orgasm, therapeutic procedures might include desensitization
techniques, followed by the modeling of a hierarchy of behaviors
such as body exploration, genital manipulation, self-stimulation
to orgasm, and the generalization of the response to a partner
(Caird and Wincze, 1977; LoPiccolo and Lobitz, 1972; Heiman,
LoPiccolo and LoPiccolo, 1976).
A number of controlled experimental studies have
demonstrated the efficacy of therapeutic treatments involving
video taped modeling, written instructions which implicate
principles of observational learning, and information processing.
Such procedures have been successful in changing both attitudes
and behaviors (Anderson, 1983; Heiby and Becker, 1980; Nemetz,
Craig and Reith, 1978; Wincze and Caird, 1976; Wish, 1975).
In the case of diagnosis and treatment of sex offenders, the
identification of arousal patterns and the subsequent therapy
program (which might involve the inhibition of inappropriate
arousal responses such as arousal to a photograph of a child)
have involved the use of sexually explicit materials. As part of
some treatment methods, the use of aversive techniques might be
directed at extinguishing deviant arousal, or they might be
combined with positive reinforcement for more appropriate sexual
responses. In some treatment programs; the combination of these
procedures with social skills training has been found to be
effective (Abel, Becker and Skinner, 1985; Whitman and Quinsey,
1028 1029
1981). However, the results have been less conclusive for
narrower approaches to treatment (see Quinsey and Marshall,
1983).
On the whole, the learning principles that include vicarious
learning, reinforcement, disinhibition principles that are used
in these therapeutic controlled settings are no different from
those which have been employed to explain the acquisition of
negative attitudes and behaviors.
AN INTEGRATION OF THE RESEARCH FINDINGS
It is clear that the conclusion of "no negative effects"
advanced by the 1970 Commission is no longer tenable. It is also
clear that catharsis, as an explanatory model for the impact of
pornography, is simply unwarranted by evidence in this area, nor
has catharsis fared well in the general area of mass media
effects and anti-social behavior.
This is not to say, however, that the evidence as a whole is
comprehensive enough or definitive enough. While we have learned
much more since 1970, even more areas remain to be explored.
What do we know at this point?
-- It is clear that many sexually explicit materials,
particularly of the commercial variety, that are obviously
designed to be arousing, are / in fact, arousing, both to
offenders and nonoffenders.
-- Rapists appear to be aroused by both forced as well as
consenting sex depictions while nonoffenders (our college males)
are less aroused by depictions of sexual aggression. On the
other hand, when these portrayals show the victim as "enjoying"
the rape, these portrayals similarly elicit high arousal levels.
— Arousal to rape depictions appears to correlate with
attitudes of acceptance of rape myths and sexual violence and
both these measures likewise correlate with laboratory-observed
aggressive behaviors.
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— Depictions of sexual violence also increase the
likelihood that rape myths are accepted and sexual violence
toward women condoned. Such attitudes have further been found to
be correlated with laboratory aggression toward women. Finally,
there is also some evidence that laboratory aggression toward
women correlates with self-reported sexually aggressive
behaviors.
What we know about the effects of nonviolent sexually
explicit material is less clear. There are tentative indications
that negative effects in the areas of attitudes might also occur,
particularly from massive exposure. The mechanics of such
effects need to be elaborated more fully, however, particularly
in light of more recent findings that suggest that degrading
themes might have effects that differ from non violent, non
degrading sexually explicit materials. This is clearly an area
that deserves further investigation.
-- There are suggestions that pornography availability may
be one of a nexus of socio-cultural factors that has some bearing
on rape rates in this country. Other cross-cultural data,
however, offer mixed results as well so these findings have to be
viewed as tentative at best.
-- We still know very little about the causes of deviancy
and it is important to examine the developmental patterns of
offenders, particularly patterns of early exposure. We do have
some convergence on the data from some rapists and males in the
general population in the areas of arousal and attitudes but
again, this remains to be examined more closely.
Clearly, the need for more research remains as compelling as
ever. The need for more research to also examine the efficacy of
strategies for dealing with various effects is as compelling. I£
learning — both prosocial and antisocial — occurs from various
depictions, and there certainly is clear evidence of both, the
need for strategies that implicate the same learning principles
must be evaluated. Educational and media strategies have been
discussed elsewhere and found to be effective in such disparate
areas as health and media violence (see Rubinstein and Brown,
1986; Johnston and Ettema, 1982; American Psychological
Association, 1985). Researchers in the area of pornography have
no less a responsibility.
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SUMMARY OF COMMISSION FINDINGS OF HARM FROM PORNOGRAPHY 5. Society
C. Moral, Ethical and Cultural—Harm found
The Commission divided pornography into four classifications
and then analyzed each classification according to three tiers as
set forth below:
I. Sexually Violent Materials
A. Social Science Evidence—Negative effects were found to
have been demonstrated
B. Totality of Evidence—Harm found in all sub-tiers
1. Acceptance of Rape Myths
2. Degradation of the Class/Status of Women
3. Modeling Effect
4. Family
5. Society
C. Moral, Ethical and Cultural—Harm found
II. Sexual Activity Without Violence But with Degradation,
Submission, Domination or Humiliation
A. Social Science Evidence—Negative Effects were found to
have been demonstrated
B. Totality of Evidence—Harm Found in all sub-tiers
1. Acceptance of Rape Myths
2. Degradation of the Class/Status of Women
3. Modeling Effect
4. Family
III. Sexual Activity Without Violence, Degradation, Submission,
Domination or Humiliation
All Commissioners agreed that some materials in this
classification may be harmful, some Commissioners agreed that not
all materials in this classification are not harmful. It was
determined that this classification is a very small percentage of
the total universe of pornographic materials. See text for
f ur tfie~r—dj,scuss ion.
/
IV. Nudity Without Force, Coercion, Sexual Activity or
Degradation
All Commissioners agreed that some materials in this
classification may be harmful, some Commissioners agreed that not
all materials in this classification are not harmful. See text
for further discussion.
U.S. GOVERNMENT PRINTING OFFICE : 1986 O - 158-315 Vol. 1
1034 1035
For sale by the Superintendent of Document*. U.S. Government Printing Office
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