The Category III Debate

Part: 
One
Chapter: 
3

I think the Commission was quite correct in its general approach to our study of pornography, not only by refusing to establish hasty a priori definitions of what pornography is or is not, but also in attempting some delineation and distinction of the various categories of the sexually explicit materials examined by us. The rationale for this approach is, I think, stated quite lucidly and cogently in this Report. That is not to say that other approaches might not have been equally fruitful or to say that there were no serious limitations to this approach. I shall discuss below what I consider the major and perhaps in retrospect, a significantly unacknowledged and even crippling flaw, of this methodology.

Nonetheless, this particular approach greatly facilitated our difficult and timeconsuming discussions of the real or potential "harms" ascribed to pornography and the identification of these harms with the various categories of sexually explicit materials. In addition, our chosen approach enabled the Commission to understand better the various kinds of evidence or "proof" needed to draw reasonable conclusions about the kinds of harms "caused" by pornography.

As Commissioners, therefore, based on the evidence presented to us, we had little difficulty reaching the firm conclusion that violent, or even non-violent but degrading pornography represented a significant harm to individuals and to society as a whole and that these two categories of sexually explicit designed-to-arouse materials should be condemned unhesitatingly. The Commission was again unanimous in asserting that to the extent that such materials met the Miller standard they should be prosecuted and, if possible, proscribed.

Is there a third category of sexually explicit designed-to-arouse material that is neither violent nor degrading and for which no real harm can be demonstrated that therefore does not merit such condemnation and possible legal proscription under the Miller standard? Because the Commissioners became hopelessly deadlocked on this issue it was resolved that each reserve the right to compose a personal statement outlining his or her thinking on the matter.

In my view, and perhaps in that of other Commissioners as well, this is the central theoretical issue of our year's debate. We were not able to resolve this question successfully and for me it represents a major failure of the Commission-not because we were unable to agree on the merits of the issue, or much less, that the other Commissioners did not agree with my own views, but because as a group we were unwilling, or perhaps unable, to confront or to correct or perhaps merely to adjust to the inherent limitations of our approach to the study of pornography.

This inherent and deceptive weakness in our approach -- its fatal flaw in my view -- also proved to be for us a fatal temptation, permitting the Commission to rely quite heavily -- indeed almost exclusively -- on evidence of harms drawn from the empirical and social sciences to the virtual exclusion of other kinds of "evidence". While this methodology perhaps proved useful enough when we examined the potential consequences of exposure to Category I and II materials, this over reliance on such evidence did not serve the Commission well in its examination of the allegedly more innocuous materials contained in our so-called Category III.

I say "allegedly more innocuous" because implicitly an assumption began to grow among many Commissioners that sexually explicit materials that were neither violent nor degrading somehow had to be less harmful than materials not obviously so-and indeed, in many important aspects that is quite indisputably true. As a result the focus of our discussions centered more and more, and sometimes almost exclusively, on the harms to be ascribed to sexually violent and degrading materials and the evidence we considered almost exclusively that drawn from the empirical and social sciences-testimony and evidence that in and of itself necessarily lacks the probative force and authority some, when convenient, wish to ascribe to it.

The weakness of our approach, and one that in my judgment we refused as a body to deal with adequately -- and that was the basis for much of the overt and covert disagreement among Commissioners -- lay in the easy temptation not to examine the underlying sexual behavior depicted in all classes of pornography and to make fundamental ethical and moral judgments about this behavior.

Pornography is, after all, nothing more than the depiction of certain kinds of human sexual behavior. Quite apart, however, from any depiction in words or in photographs, it is incumbent upon society to make certain ethical and moral judgments about certain kinds of human behavior, not excluding sexual behavior. For example rape is not merely a crime, it is decidedly immoral quite apart from any depiction of it. Sexual behavior that degrades women -- or men -- is immoral quite apart from the photographic record of it that may exist to memorialize it.

At the heart of our disagreement over the existence, the nature and the extent of Category III materials, in my view, was the inability and quite specific reluctance of the Commission to come to terms with the necessity of making ethical and moral judgments about the underlying behavior depicted in materials that would be contained in Category III materials, e.g., certain sexually explicit solely designed-to-arouse depictions of heterosexual or homosexual behavior, or of group sex that were clearly neither violent nor obviously degrading, in the precise meaning of this term as used in our discussions concerning Category II materials. I think it fair to say that by its refusal to take an ethical or moral position on pre-marital or extra-marital sex, either heterosexual or homosexual, the Commission literally ran for the hills and necessarily postulated the existence of a third category of sexual materials designed to arouse that was neither violent nor degrading, and, that was in some vague and unspecified sense, permissible to some extent-even though much of it would have been judged obscene under the Miller standard.

A much larger issue is at stake here than the individual harm or degradation of a particular man or woman, or even of society itself caused by materials commonly and confidently ascribed to Categories I and II. The question may be posed: does pornography, of any category, so degrade the very nature of human sexuality itself, its purposes, its beauty, and so distort its meaning that society itself suffers a grave harm?

The message of pornography is unmistakably and undeniably clear: sex bears no relationship to love and commitment, to fidelity in marriage, that sex has nothing to do with privacy and modesty and any necessary and essential ordering toward procreation. The powerful and provocative images proclaim universally-and most of all to the youth of our country-that pleasure-not love and commitment-is what sex is all about. What is more, that message is proclaimed by powerfully self-validating images, that carry within themselves their own pragmatic self-justification.

To pose the question in another way: is the imaging, the message-conveying power of sexually explicit, designed-to-arouse pornography so great that society must be concerned when that perniciously convincing message becomes well nigh universal among us? I think the answer to that question must be an unequivocal resounding yes!

Speaking for myself, and representing a view that perhaps could not carry the majority of the Commission, I would affirm that all sexually explicit material solely designed to arouse in and of itself degrades the very nature of human sexuality and as such represents a grave harm to society and ultimately to the individuals that comprise society. I find it very difficult therefore to affirm the existence of a third category of pornography that is neither violent nor degrading and not harmful.

To a certain but limited extent I have outlined my convictions further in two documents submitted to this Commission that can be found immediately following this statement. The first, entitled: Nonviolent, Sexually Explicit Materials and Sexual Violence, purports to show how an argument might be drawn from social science itself that the widespread consumption of sexually explicit materials found in universally disseminated male magazines may well lead inevitably to increased rape rates. I think my conclusions, although I am no social scientist, while certainly not apodictic, are at the very least plausible.

The second, entitled: Pornography and Privacy, attempts to make a strong argument against all pornography based on its (pornography's) total and inadmissible invasion of a personal privacy so sacred and so inalienable that it must always remain inviolate. There are, in sum, certain rights so intrinsic, so foundational to the integrity of the human personality and our duties as citizens that they may never be surrendered. One of them is our personal liberty. Another is our sexual privacy.

For these reasons, and for others, I have concluded that for all practical purposes Category III does not exist, viz., that sexually explicit materials designed to arouse that are neither violent nor degrading per se, nonetheless profoundly indignify the very state of marriage and degrade the very notion of sexuality itself and are therefore seriously harmful to individuals and to society, indignifying both performers and viewers alike in ways ethically and morally reprehensible.

If in fact such a category does exist, then I am persuaded that it is so limited as to be totally inconsequential and certainly not represented by the sexually explicit materials studied by this Commission.

To conclude otherwise, I fear, is to legitimate the existence of a group of materials that some would call "erotica" and would in effect license as permissible and presumably non-prosecutable, a large class of sexually explicit materials designed to arouse that would all too easily send the clear message that the primary purpose of sex is for hedonistic, selfishly solipsistic satisfaction.

To me, the greatest harm of pornography is not that some people are susceptible to or even directly harmed by the violent and degrading and radically misleading images portrayed all too graphically by mainstream pornography. Rather pornography's greatest harm is caused by its ability -- and its intention -- to attack the very dignity and sacredness of sex itself, reducing human sexual behavior to the level of its animal components.

In a certain sense the Commission was hoisted by its own petard. In its need to describe carefully and to delineate accurately the possible harms of pornography it adopted an approach and methodology and a system of proof quite suitable to establish the -- if I may say it -- the self-evident, the per se nota, harms of violent and degrading pornography. When all is said and done, do the careful conclusions of the Commission with regard to violent and degrading pornography surprise anyone, or does any rational man or woman seriously question the legitimacy of these conclusions -- quite apart from any "evidence" thought to establish such harms? The fact is that the Emperor doesn't have any clothes on and he -- as far as violent and degrading pornography is concerned -- never did and it didn't need four national Commissions (two American, one Canadian, and one British) to "prove" it.

The fatal weakness -- fatal because largely unacknowledged -- of our approach, however, betrayed and undercut and sadly misdirected the Commission's efforts and prevented us from, in my view, considering adequately the more profound harms to individuals and society caused by pornography as a total genre. The unmistakable consequence for the Commission, in my judgment, was to ascribe more harm to the less harmful and to discount substantially and even to discredit the far graver and more pervasive harms caused by pornography not evidently violent or obviously degrading.

To put it in another way: the greatest harm of pornography does not lie in its links to sexual violence or even its ability to degrade and to indignify individuals. Pornography, all three categories of it -- if indeed a third category exists at all -- degrades sex itself and dehumanizes and debases a profoundly important, profoundly beautiful and profoundly, at its core, sacred relationship between a man and a woman who seek in sexual union not the mere satisfaction of erotic desire but the deepest sharing of their mutual and committed and faithful love.

This being said, however, I hope no one will dispute the fact that while we did not succeed in resolving the major theoretical dispute before us, the approach and methodology adopted by the Commission did enable us to deal successfuly with matters of great practical importance and concern to the American people.