5.2.3 Non-Violent and Non-Degrading Materials

Part: 
Two
Chapter: 
5

Our most controversial category has been the category of sexually explicit materials that are not violent and are not degrading as we have used that term. They are materials in which the participants appear to be fully willing participants occupying substantially equal roles in a setting devoid of actual or apparent violence or pain. This category is in fact quite small in terms of currently available materials. There is some, to be sure, and the amount may increase as the division between the degrading and the non-degrading becomes more accepted, but we are convinced that only a small amount of currently available highly sexually explicit material is neither violent nor degrading. We thus talk about a small category, but one that should not be ignored.

We have disagreed substantially about the effects of such materials, and that should come as no surprise. We are dealing in this category with "pure" sex, as to which there are widely divergent views in this society. That we have disagreed among ourselves does little more than reflect the extent to which we are representative of the population as a whole. In light of that disagreement, it is perhaps more appropriate to explain the various views rather than indicate a unanimity that does not exist, within this Commission or within society, or attempt the preposterous task of saying that some fundamental view about the role of sexuality and portrayals of sexuality was accepted or defeated by such-and-such vote. We do not wish to give easy answers to hard questions, and thus feel better with describing the diversity of opinion rather than suppressing part of it.

In examining the material in this category, we have not had the benefit of extensive evidence. Research has only recently begun to distinguish the non-violent but degrading from material that is neither violent nor degrading, and we have all relied on a combination of interpretation of existing studies that may not have drawn the same divisions, studies that did draw these distinctions, clinical evidence, interpretation of victim testimony, and our own perceptions of the effect of images on human behavior. Although the social science evidence is far from conclusive, we are, on the current state of the evidence, persuaded that material of this type does not bear a causal relationship to rape and other acts of sexual violence. We rely once again not only on scientific studies outlined later in the Report, and examined by each of us, but on the fact that the conclusions of these studies seem to most of us fully consistent with common sense. Just as materials depicting sexual violence seem intuitively likely to bear a causal relationship to sexual violence, materials containing no depictions or suggestions of sexual violence or sexual dominance seem to most of us intuitively unlikely to bear a causal relationship to sexual violence. The studies and clinical evidence to date are less persuasive on this lack of negative effect than they are persuasive for the presence of negative effect for the sexually violent material, but they seem to us of equal persuasive power as the studies and clinical evidence showing negative effects for the degrading materials. The fairest conclusion from the social science evidence is that there is no persuasive evidence to date supporting the connection between non-violent and non-degrading materials and acts of sexual violence, and that there is some, but very limited evidence, indicating that the connection does not exist. The totality of the social science evidence, therefore, is slightly against the hypothesis that non-violent and non-degrading materials bear a causal relationship to acts of sexual violence.

That there does not appear from the social science evidence to be a causal link with sexual violence, however, does not answer the question of whether such materials might not themselves simply for some other reason constitute a harm in themselves, or bear a causal link to consequences other than sexual violence but still taken to be harmful. And it is here that we and society at large have the greatest differences in opinion.

One issue relates to materials that, although undoubtedly consensual and equal, depict sexual practices frequently condemned in this and other societies. In addition, level of societal condemnation varies for different activities; some activities are condemned by some people, but not by others. We have discovered that to some significant extent the assessment of the harmfulness of materials depicting such activities correlates directly with the assessment of the harmfulness of the activities themselves. Intuitively and not experimentally, we can hypothesize that materials portraying such an activity will either help to legitimize or will bear some causal relationship to that activity itself. With respect to these materials, therefore, it appears that a conclusion about the harmfulness of these materials turns on a conclusion about the harmfulness of the activity itself. As to this, we are unable to agree with respect to many of these activities. Our differences reflect differences now extant in society at large, and actively debated, and we can hardly resolve them here.

A larger issue is the very question of promiscuity. Even to the extent that the behavior depicted is not inherently condemned by some or any of us, the manner of presentation almost necessarily suggests that the activities are taking place outside of the context of marriage, love, commitment, or even affection. Again, it is far from implausible to hypothesize that materials depicting sexual activity without marriage, love, commitment, or affection bear some causal relationship to sexual activity without marriage, love, commitment, or affection. There are undoubtedly many causes for what used to be called the "sexual revolution," but it is absurd to suppose that depictions or descriptions of uncommitted sexuality were not among them.[48] Thus, once again our disagreements reflect disagreements in society at large, although not to as great an extent. Although there are many members of this society who can and have made affirmative cases for uncommitted sexuality, none of us believes it to be a good thing. A number of us, however, believe that the level of commitment in sexuality is a matter of choice among those who voluntarily engage in the activity. Others of us believe that uncommitted sexual activity is wrong for the individuals involved and harmful to society to the extent of its prevalence. Our view of the ultimate harmfulness of much of this material, therefore, is reflective of our individual views about the extent to whether sexual commitment is purely a matter of individual choice.

Even insofar as sexually explicit material of the variety being discussed here is not perceived as harmful for the messages it carries or the symbols it represents, the very publicness of what is commonly taken to be private is cause for concern.[49] Even if we hypothesize a sexually explicit motion picture of a loving married couple engaged in mutually pleasurable and procreative vaginal intercourse, the depiction of that act on a screen or in a magazine may constitute a harm in its own right (a "primary harm" in the terminology introduced earlier in this Chapter) solely by virtue of being shown. Here the concern is with the preservation of sex as an essentially private act, in conformity with the basic privateness of sex long recognized by this and all other societies. The alleged harm here, therefore, is that as soon as sex is put on a screen or put in a magazine it changes its character, regardless of what variety of sex is portrayed. And to the extent that the character of sex as public rather than private is the consequence here, then that to many would constitute a harm.

In considering the way in which making sex public may fundamentally transform the character of sex in all settings, it seems important to emphasize that the act of making sex public is as an empirical matter almost always coincident with the act of making sex a commercial enterprise. Whether the act of making sex public if done by a charitable institution would be harmful is an interesting academic exercise, but it is little more than that. For in the context we are discussing, taking the act of sex out of a private setting and making it public is invariably done for someone's commercial gain. To many of us, this fact of commercialization is vital to understanding the concern about sex and privacy.

We are again, along with the rest of society, unable to agree as to the extent to which making sex public and commercial should constitute a harm. We all agree for ourselves on the fundamental privateness of sex, but we disagree about the extent to which the privateness of sex is more than a matter of individual choice. And although we all to some extent think that sexuality may have in today's society become a bit too public, many of us are concerned that in the past it has been somewhat too private, being a subject that could not be talked about, could not constitute part of the discourse of society, and was treated in some way as "dirty." To the extent that making sex more public has, while not without costs, alleviated some of these problems of the past, some of us would not take the increased publicness of sexuality as necessarily harmful, but here again we are quite understandably unable to agree.

The discussion of publicness in the previous paragraph was limited to the necessary publicness consequent in making a picture of a sexual act, regardless of whether the picture is made public in the broader sense. But to the extent that this occurs, we are once again in agreement. While some might argue that it is desirable for sexual explicitness to be publicly displayed to both willing and unwilling viewers, and while some might argue that this is either a positive advantage for the terrain of society or of no effect, we unanimously reject those conclusions. We all agree that some large part of the privateness of sex is essential, and we would, for example, unanimously take to be harmful to society a proliferation of billboards displaying even the hypothesized highly explicit photograph of a loving married couple engaged in mutually pleasurable and procreative vaginal intercourse. Thus, to the extent that materials in this category are displayed truly publicly, we unanimously would take such a consequence to be harmful to society in addition to being harmful to individuals. Even if unwilling viewers are offended rather than harmed in any stronger sense, we take the large scale offending of the legitimate sensibilities of a large portion of the population to be harmful to society.

A number of witnesses have testified about the effects on their own sexual relations, usually with their spouses, of the depiction on the screen and in magazines of sexual practices in which they had not previously engaged. A number of these witnesses, all women, have testified that men in their lives have used such material to strongly encourage, or coerce, them into engaging in sexual practices in which they do not choose to engage. To the extent that such implicit or explicit coercion takes places as a result of these materials, we all agree that it is a harm. There has been other evidence, however, about the extent to which such material might for some be a way of revitalizing their sex lives, or, more commonly, simply constituting a part of a mutually pleasurable sexual experience for both partners. On this we could not agree. For reasons relating largely to the question of publicness in the first sense discussed above, some saw this kind of use as primarily harmful. Others saw it as harmless and possibly beneficial in contexts such as this. Some professional testimony supported this latter view, but we have little doubt that professional opinion is also divided on the issue.

Perhaps the most significant potential harm in this category exists with respect to children. We all agree that at least much, probably most, and maybe even all material in this category, regardless of whether it is harmful when used by adults only, is harmful when it falls into the hands of children. Exposure to sexuality is commonly taken, and properly so, to be primarily the responsibility of the family. Even those who would disagree with this statement would still prefer to have early exposure to sexuality be in the hands of a responsible professional in a controlled and guided setting. We have no hesitancy in concluding that learning about sexuality from most of the material in this category is not the best way for children to learn about the subject. There are harms both to the children themselves and to notions of family control over a child's introduction to sexuality if children learn about sex from the kinds of sexually explicit materials that constitute the bulk of this category of materials.

We have little doubt that much of this material does find its way into the hands of children, and to the extent that it does we all agree that it is harmful. We may disagree about the extent to which people should, as adults, be tolerated in engaging in sexual practices that differ from the norm, but we all agree about the question of the desirability of exposing children to most of this material, and on that our unanimous agreement is that it is undesirable. For children to be taught by these materials that sex is public, that sex is commercial, and that sex can be divorced from any degree of affection, love, commitment, or marriage is for us the wrong message at the wrong time. We may disagree among ourselves about the extent to which the effect on children should justify large scale restrictions for that reason alone, but again we all agree that if the question is simply harm, and not the question of regulation by law, that material in this category is, with few exceptions, generally harmful to the extent it finds its way into the hands of children. Even those in society who would be least restrictive of sexually explicit materials tend, by and large, to limit their views to adults. The near unanimity in society about the effects on children and on all of society in exposing children to explicit sexuality in the form of even non-violent and non-degrading pornographic materials makes a strong statement about the potential harms of this material, and we confidently agree with that longstanding societal judgment.

Perhaps the largest question, and for that reason the question we can hardly touch here, is the question of harm as it relates to the moral environment of a society. There is no doubt that numerous laws, taboos, and other social practices all serve to enforce some forms of shared moral assessment. The extent to which this enforcement should be enlarged, the extent to which sexual morality is a necessary component of a society's moral environment, and the appropriate balance between recognition of individual choice and the necessity of maintaining some sense of community in a society are questions that have been debated for generations. The debates in the nineteenth century between John Stuart Mill and James Fitzjames Stephen, and in the twentieth century between Patrick Devlin and H. L. A. Hart, are merely among the more prominent examples of profound differences in opinion that can scarcely be the subject of a vote by this Commission. We all agree that some degree of individual choice is necessary in any free society, and we all agree that a society with no shared values, including moral values, is no society at all. We have numerous different views about the way in which these undeniably competing values should best be accommodated in this society at this time, or in any society at any time. We also have numerous different views about the extent to which, if at all, sexual morality is an essential part of the social glue of this or any other society. We have talked about these issues, but we have not even attempted to resolve our differences, because these differences are reflective of differences that are both fundamental and widespread in all societies. That we have been able to talk about them has been important to us, and there is no doubt that our views on these issues bear heavily on the views we hold about many of the more specific issues that have been within the scope of our mission.

Thus, with respect to the materials in this category, there are areas of agreement and areas of disagreement. We unanimously agree that the material in this category in some settings and when used for some purposes can be harmful. None of us think that the material in this category, individually or as a class, is in every instance harmless. And to the extent that some of the materials in this category are largely educational or undeniably artistic, we unanimously agree that they are little cause for concern if not made available to children are foisted on unwilling viewers. But most of the materials in this category would not now be taken to be explicitly educational or artistic, and as to this balance of materials our disagreements are substantial. Some of us think that some of the material at some times will be harmful, that some of the material at some times will be harmless, and that some of the material at times will be beneficial, especially when used for professional or nonprofessional therapeutic purposes. And some of us, while recognizing the occasional possibility of a harmless or beneficial use, nevertheless, for reasons stated in this section, feel that on balance it is appropriate to identify the class as harmful as a whole, if not in every instance. We have recorded this disagreement, and stated the various concerns. We can do little more except hope that the issues will continue to be discussed. But as it is discussed, we hope it will be recognized that the class of materials that is neither violent nor degrading, as it stands, is a small class, and many of these disagreements are more theoretical than real. Still, this class is not empty, and may at some point increase in size, and thus the theoretical disagreements may yet become germane to a larger class of materials actually available.

Notes

  1. Nor, of course, do we deny the extent that the phenomenon, in part, also goes the other way. Sexually explicit materials in most cases seem both to reflect and to cause demand.
  2. The concerns summarized here are articulated more fully in a statement that expresses the views of a number of individual members of this Commission.