3. Invasion of Personal Rights

Part: 
Four
Chapter: 
2

During the course of our review of the position of performers in pornography, we have encountered evidence that they suffer physical coercion, damage to health, serious economic exploitation, and virtually complete 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[1114] 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;[1115] we know only that they have been exceedingly rare.[1116] If new remedies are needed, as we are inclined to think they are, they should be framed in ways to encourage plaintiffs to come forward: perhaps by providing for treble 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 backgrounds, 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 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.

Notes

  1. Cf. New York v. Ferber, 458 U.S. p. 759 n. 10.
  2. Compare, 1984 Senate Hearing, supra note 975, p. 249 (statement of Catherine MacKinnon) (Statutes of limitations, single-publication rules, and other technical limitations make actions by performers impractical at present), with Washington, D.C., Hearing, Vol. I, Barry Lynn, pp. 24-25 (such actions are not unknown).
  3. The cases cited in notes 960-963, supra are the only ones we have been able to uncover in this area.
  4. 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 consitutional issues may arise if equitable remedies are not carefully tailored to the First Amendment requirements, and that scienter is likely to be of some constitutional relevance in determining how wide the net of liability may be cast.
  5. Bennett, supra note 972, p. 72.