RECOMMENDATION 87

Part: 
Three
Chapter: 
5

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 entertainment.[695] The harm of pornography is thus conceived to be a form of discrimination on the basis of sex.[696]

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 sue for similar violations under the ordinance.[698]

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.[699] Women have been coerced into pornographic performances by abduction, threats, drugs, and 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 controversial,[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 equality comes from extra-judicial sources, studies and individual accounts.[703]

The United States Supreme Court has recognized and relied upon social and behavioral science findings in several decisions. In Muller v. Oregon,[704] the Supreme Court upheld the constitutionality 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."[706] 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.[707] 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 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"[715] evidence about alcoholism, but rejected it as going "too far on too little knowledge"[717] and declined to find criminal sanctions against public drunkenness to be cruel and unusual punishment.[718] However, the Court has relied upon extrajudicial proof in cases dealing with issues as diverse as the death penalty[719] 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.[721] 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]

Judge Craven concluded with respect to the extra judicial proof in Brown 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 Caroline, 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 perpetuate subordination. 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, "pornography 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 all kinds]." Indianapolis code S16-1(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.

CONCLUSION

The pattern of harm documented before the Commission, taken as a whole, supports the conclusion that the pornography industry systematically violates human rights with apparent impunity. The most 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 pornographers' abuse of individual members of protected groups both victimizes them and notifies all of society that such abuse 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 in, 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.

Notes

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., pp. 153, 184-87, 196 S.Ct. 2909, 2930-31, 49 L.Ed.2d, p. 859 (1976) (opinion of Stewart, Powell, and Stevens, J.).

  1. See, Chicago Hearing, Vol. II, Catherine MacKinnon, p. 133; Chicago Hearing, Vol. II, Teresa Stanton, p. 168; Houston Hearing, 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.
  2. . See, Indianapolis-Marion County, Ind., Ordinance 35, ch. 16 (June 15, 1984).
  3. Id. S16-1(a)(2).
  4. See generally, MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv.C.R.-C.L. L. Rev. 1(1985).
  5. Indianapolis-Marion County, Ind., Ordinance 35, ch. 16 (June 15, 1984).
  6. Id.
  7. See, Houston Hearing, Vol. I, Diana Russell, p. 285; Miami Hearing, Vol. II, Garrett, p. 19; Washington, D.C., Hearing, Vol. I, Dorchen Leidholt, Vol. I, p. 205; Washington, D.C., Hearing, Vol. I, Sarah Wynter, p. 183.
  8. See, Indianapolis-Marion County, Ind. Ordinance 39, S16-3(g) (4)-(7) (June 15, 1984).
  9. Id. S16-27.
  10. See, Chicago Hearing, Vol. II, Nan Hunter, p. 101; Chicago Hearing, Vol. II, Burton Joseph, p. 4; Houston Hearing, Vol. II, John Money, p. 34; Washington, D.C., Hearing Vol. II, Barry Lynn, pp. 169-70.
  11. See, MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv.C.R.-C.L. L. Rev. 1(1985).
  12. 208 U.S. (1908), p.412.
  13. Id., p. 416.
  14. Id., p. 419, n.1.
  15. Levin & Moise, School Desegregation Litigation in the Seventies and the Use of Social Science Evidence-An Annotated Guide, 39 Law and Contemp. Probs. 50, 51 (1975) [hereinafter cited as Levin & Moise, School Desegregation].
  16. 208 U.S., pp. 419-21.
  17. Levin & Moise, School Desegregation, supra, note 707, p. 51.
  18. 347 U.S. (1954), p. 483.
  19. Id., p. 494.
  20. Id.
  21. Id.
  22. Id., pp. 494-95, n. 11.
  23. See, Cahn, jurisprudence, 30 N.Y.U. L. Rev. (1955), p. 150; Fiss, The Jurisprudence of Busing, 39 Law & Contemp. Probs. (1975), p. 194.
  24. Powell v. Texas, 392 U.S. 514, (1968), p. 537 (Black, J., concurring).
  25. 717. Id., p. 521.
  26. Id., pp. 521-23.
  27. Furman v. Georgia, 408 U.S. (1972), pp. 238, 250-51 n.15 (Douglas, J., concurring) (citing studies that conclude the death penalty is disproportionately applied in cases involving poor or black defendants); p. 307 n.7 (Stewart, J., concurring) (citing studies comparing crime rates in jurisdictions with death penalty provisions).
  28. Williams, v. Florida, 399 U.S. (1970), pp. 78, 101-02 n. 49 (citing psychological evidence that twelve member juries are no more advantageous to criminal defendants than six member panels).
  29. Craven, The Impact of Social Service Evidence on the Judge-A Personal Comment, 39 Law & Contemp. Probs. (1975), pp. 157, 63.
  30. Id.
  31. Id., p. 153.
  32. J.B. McMillan, Social Science and the District Court The Observations of a Journeyman Trial Judge, 39 Law & Contemp. Probs. (1975), p. 157, 163.
  33. American Booksellers Ass'n v Hudnut, 771 F.2d (1985), p. 323, 325.
  34. Id., p. 329 In footnote 2, the court added,
  35. 54 U.S.L.W. 3548(Feb. 25, 1986).
  36. See, Recommendations for Regulating Child Pornography in Chapter 11 and the complete discussion of Victimization in Chapters 12 and 16.