RECOMMENDATION 38

Part: 
Three
Chapter: 
3

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:

  1. sexual intercourse, including genitalgenital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
  2. bestiality;
  3. masturbation;
  4. sadistic or masochistic abuse; or
  5. lascivious exhibition of the genitals or pubic area of any person.[471]

The Act should be amended to protect performers under the age of twenty-one. The amendment should prohibit producers from using persons between the ages of eighteen and twenty-one in visual depictions of certain sexually explicit activities. The proscribed activities should include actual:

  1. Sexual intercourse, including genitalgenital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
  2. Bestiality;
  3. Masturbation;
  4. Sadistic or masochistic abuse; or
  5. Lascivious exhibition of the genitals 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 disease,[473] physical abuse[474] and damage to self-esteem and mental health.[475]

Perhaps because of the inner conflicts common among this age group, adolescents are notoriously poor in making sexual choices well into their late teens and twenties. Thus adolescent use of contraceptives "approaches an almost random pattern,[476] with only a third of sexually active teenagers using contraception consistently.[477] Likewise women aged sixteen to nineteen 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 women aged fifteen to nineteen.[479] More precisely, the rate of low birth weight among babies born to nineteen-year-old white mothers is twenty-five percent higher than that for babies born to white mothers aged twenty-, to twenty-four.[488] 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, the adolescent "porn star" must always live in fear that the film or photograph will surface, once again wreaking havoc in his or her personal and professional life.

Because of the economic and social realities of late adolescence, 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 group suffer extraordinary levels of unemployment and homelessness.[484] The rate of 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 a young man he made a "skin flick," Sylvester Stallone said that he 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]

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.

Notes

  1. 18 U.S.C. S2255 (1985).
  2. Enablers, Inc., Juvenile Prostitution in Minnesota 86 (1978) (over one-half of juvenile female prostitutes had been pregnant at least once; thirty percent had been pregnant two or more times).
  3. See, e.g., Enablers, Inc., supra note 472, at 85. (half of the female prostitutes interviewed indicated they had venereal disease); D.K. Weisberg, Children in the Night 167 (1985) [hereinafter cited as Children in the Night] (venereal disease "plagues" juvenile prostitutes; and is their "most prevalent health concern"); 2 Sexual Offences Against Children, (1984), p. 1024, (majority of juvenile prostitutes studied in Canada had contracted a sexually transmitted disease, and almost a third do not seek regular medical attention).
  4. Silber & 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, p. 162 (violence also an occupational problem for juvenile male prostitutes).
  5. 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.
  6. F. Bolton, The Pregnant Adolescent: Problems of Premature Parenthood 35 (1980).
  7. Alan Guttmacher Institute, Teenage Pregnancy: The Problem That Hasn't Gone Away, (1981),p. 11. [hereinafter cited Alan Guttmacher Inst., Teenage Pregnancy] The vast majority of sexually active adolescents, of course, are aged eighteen, nineteen, and twenty. Id., p. 7.
  8. Center for Disease Control, Abortion Surveillance, (1985), p. 37. [hereinafter cited as CDC, Abortion Surveillance]
  9. Id. pp. 10, 37.
  10. Alan Guttmacher Inst., Teenage Pregnancy, supra note 477, p. 29.
  11. CDC, Abortion Surveillance, supra note 478, p. 37.
  12. Schoettle, Child Exploitation: A Study of Child Pornography, J. Am. Acad. Child Psych., (1980), pp. 289, 296.
  13. See, e.g., Wood v. Hustler Magazine, Inc., 736 F. 2d, pp. 1084, 1086 (5th Cir. 1984) (description of anguish and harassment suffered by woman whose nude photo was stolen and published in Hustler); Lederer, Then and Now-An Interview with a Former Pornography Model in Take Back the Night: Women on Pornography 57 (1980); Testimony of George (Los Angeles).
  14. 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. Statistical 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 be placed in independent living arrangements, job training or institutional shelters.
  15. Statistical Abstract p. 456.
  16. Playgirl p. 39. (Oct. 1985)
  17. See, C. Hix, Male Model, (1979), pp. 1985-86. (In answer to the question "Would you advise anyone to do nude modeling as a steppingstone into a legitimate career?" porn star Jack Wagner 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." Id., p. 186.)
  18. Sexual Offences Against Children, supra note 473, (1984), pp. 1198-99; Children of the Night supra note 473, pp. 68-69 (1985) (fourteen of fifty-four juvenile prostitutes for whom information was available had been photographed for commercial photography).
  19. Huckleberry Study, p. 34; Sexual Offences Against Children, supra note 473, pp. 992-93. These studies indicate that about one in six female prostitutes under age twenty-one had been physically coerced into their roles.