As opposed to a test which focuses on whether a publication is likely to deprave and corrupt(TM), the law should instead focus on the wider harm pornography causes to women and society.(TM) Critically analyse t

To be convicted under section 1(1) the material must disrupt and corrupt the viewer of that material, not the general public.  In the case Attorney Generals Reference (No 2 of 1975) the Attorney General held that whether an article was obscene within section 1(1) the jury were only entitled to take into account the effect of the article on the persons who were likely to read it.  Similarly in DPP V Whyte (1972) the defendants argued that the readers of their material from their bookshop were already sick and disturbed perverted middle-aged men, therefore unlikely to be corrupted and disturbed by the material being sold.  However the court held the material is obscene under section 1(1) as the bookshop is open to the general public.

Radical feminists, such as Mackinnon regard the Obscene Publication Act 1959 ineffective for a number of reasons.  They proclaim that the law only protects the consumer and not the women participating in the pornographic material.  Secondly, the law reflects patriarchy, as the consumers of pornography are mainly men.  British obscenity law has centred its solitude on the mind of the consumer, specifically on whether the materials have a tendency to “deprave and corrupt” his morals. While one might well worry about what pornography does to those who use it, this test makes invisible those who are violated in making the materials, as well as those who are injured and subordinated by consumers acting on them.  A substantive equality approach would make those harms visible.

The Supreme Court in Canada, on the other hand, focuses on the nature of the material impact rather than the impact of the consumer specifically.  The Court in the case of Butler v The Queen (1992) divided pornographic material into three categories: explicit sex with violence; explicit sex without violence but treats people in a degrading or dehumanising way; and explicit sex that is neither violent nor degrading or dehumanising.

Of the three, only the first two are subject to criminal conviction as they fall outside what is generally tolerable in society.  However a radical feminist will argue that the Canadian laws protect women in society as it prohibits violent material, but not enough because pornography is legitimised, as long as it’s not violent or degrading.  Canadian freedoms derive from the Charter of Rights and Freedoms, Section 1.  Mills influence is substantial in Canadian, American and English democracies because they are all varieties of liberal democracies.  Radical feminist critically argue that the freedoms are chosen by men, for men, and thus denying women a say in society.

In America, pornography is defended by the first amendment as free speech as long as it’s not obscene.  The US Supreme Court held that the test for obscenity is:

“Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

Whilst Liberal feminists argue that participation in pornographic material is a free choice, radical feminists have generally denied that sexual preferences and practices can be personal.  It is a product of patriarchy, which mimics heterosexuality abuse, and endorses the degradation of women.  In other words men want women to participate in pornography because that’s how they can construct women’s sexuality to how they would like it under a patriarchal society.  In Kitzingers view the pornography industry is a powerful means through which a female sexuality is manipulated to deny the possibility of lesbianism and celibacy as valid sexual choices.  Susan M Edwards says: 

“Pornography is also a powerful medium of communication and propaganda defining and legitimising the subjection of women and children to men, institutionalising male supremacy, eroticising male domination.”

Radical feminists also point out that the majority of sex workers are lower class women who are coerced into pornography because of economic reasons.  Mackinnon argues:

"Paying the woman to appear to resist and then surrender does not make the sex consensual; it makes pornography an arm of prostitution.  The sex is not chosen for the sex.  Money is the medium of force and provides the cover of consent."

Radical feminists accept there is a great economic injustice in America, but that is no reason for depriving poor women of an economic opportunity some of whom might prefer alternatives.

Liberal feminists argue that the assumed degradation radical feminists believe is often linked with to the objectification of women; that is, pornography converts women into sex objects.  However Wendy McElroy argues that when radical feminists say pornography portrays women as “sexual beings,” it makes for poor rhetoric:

In accordance with the radical feminists view that many women that participate in pornography are coerced because of economic reasons, liberal feminists argue that women have a right to make the choice, and a right to make the wrong choice.  Reports of violence cannot be dismissed as every industry has its abuses.  In her article Wendy McElroy says out of the dozens of women in pornographic material with who she spoke to, not one of them reported being coerced into pornography.  There is already action women can take having being coerced physically into pornography through criminal convictions of kidnapping, assault and rape.  However, as argued above these women interviewed by McElroy may have been coerced because of economic reasons, not physically being coerced.  Still, one may argue that all wage-based work is demeaning, degrading and exploitative. If MacKinnon is right about pornography, then what about other businesses?  Pornography is just another capitalist enterprise.

Radical feminists argue further that women who like and participate in pornography are dupes of the system.  To a radical feminist a women with her legs open on film saying to a man “come and get me” isn’t displaying her freedom of expression, but displaying that she’s manipulated by patriarchy, whilst accepts that she’s a sexual object for men.

Dworkin and MacKinnon express that our culture has become so saturated by degrading images of women that images of sexual violence has been normalised by pornography.  Any man viewing material where a woman is enjoying being raped or put into a situation of group sex will believe that all women enjoy similar activities.

In 1985 the Congress of the United States authorised and President Reagan appointed a Commission, later known as the Attorney General's Commission, to determine the nature, extent and impact on society of pornography in the United States.  The Commission concludes that such depictions support the conclusion that degrading porn causes attitudinal changes in the psyche of those who consume it.  The Commission also touches on material that is non-violent and possibly non-degrading because depicted as consensual.  Of this, the Commission Report says:

"The manner of presentation almost necessarily suggests that the activities are taking place outside of the context of love, commitment or even affection…to the extent that the character of sex is public rather than private…then to many this would constitute harm."

On the discussion of the harm to marriage it was stated in a booklet in New York that the major consequence of being addicted to pornography is not the probability or possibility of committing a serious sex crime (though this can and does occur), but rather the disturbance of the fragile bonds of intimate family and marital relationships.  This is where the most grievous pain, damage, and sorrow occur, as also illustrated in the case Halloway (1982). 

The Attorney General's Commission also commented on the harm pornography has to children declaring:

“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 the wrong message at the wrong time."

Opposing, again Indian born Shashank Mahtani disagrees,

"I think it would be a good idea to make pornography legal because kids see it anyway…In any case, in our country where no one wants to discuss sex, porn serves only as sex education."

At the other end of the spectrum is child pornography in which the Commission strongly emphasises that the issues related to the sexual abuse of children and child pornography are inextricably linked.

According to the Valerie Bryson, a quarter of women in Britain have experienced rape and nearly half of all women experienced sexual harassment in the workplace.  According to MacKinnon this effectively shows unrestrained and systematic sexual aggression of one half of the population against the other.  From this perspective, patriarchy rests ultimately on force – a woman’s fear of sexual assault works to the advantage of men.  This does not mean all men are violent, but that all men benefit from action of those who are.  In the view of Susan Brownmiller, the roots of patriarchy are so deep that it lies in male biology itself. 

Radical feminists point to evidence that show there is a link between pornography and violence against women.  Firstly, there are many sex offenders that claim that they offended because they wanted to copy acts they witnessed in pornographic material after being addicted to pornography.  Although it must be noted that any justification that the acts were done to fulfil fantasies in pornographic material will not suffice in any court, as noted in the case R v Coutts (2005). 

Serial killer Ted Bundy, from the United States killed at least 28 young women and girls.  He was interviewed the day before his execution and said that his addiction to pornography fuelled his fantasies.  Dr Victor Cline,  concluded that when men become addicted to pornography they, like a drug addict, look for the ‘big kick’.  When the wave hits them, nothing can stand in their way of getting what they want, including sex from a prostitute or from raping a woman.  In accordance, radical feminists point to two other forms of evidence that pornography incites violence against women. 

Firstly, in the form of evidence form laboratory experiments with convicted rapists and normal men show that rape scenes in which women are sexually exited by violence, sexually aroused both parties.  Secondly, psychological and sociological studies indicate an alarming number of college male students after viewing explicit pornographic material admitted they would rape a female if they could get away with it.  These studies appear to show that even brief exposure to films in which women are shown to be enjoying violence can increase the belief that all women want to, or deserve to be raped.

However, liberal feminists accuse radical feminists of miss-interpreting data and failing to distinguish between fantasy and reality.  Many liberal feminists argue that sex in pornographic films is safe for women (Pro–sex feminists) to fulfil sexual fantasies and situations that would be anathema to them in real life.  Wendy McElroy protests that radical feminists tell women to be ashamed of their appetites and urges.  Pornography allows women to accept and enjoy them in a safe manner.

What of real world feedback?  Rape is rife in China and Muslim countries where pornography is illegal and is much less of a problem in Europe were pornography is readily available.  Also, in Japan where extreme violent material is legal, rape is much lower than the United States per capita, where violent material is restricted.

Whilst Liberal feminists claim that pornography is a freedom of speech, radical feminists such as MacKinnon, believe in the ‘Speech act theory’ that pornography is not speech at all, but motion pictures inciting hatred against women, therefore preventing women from expressing their true voices because pornography creates a society of degrading women.  In the case Brandenburg v Ohio (1969), the Supreme Court held that what was said was not free speech protected under the first amendment and that speech must not go beyond the standards of a mere advocacy and amount to incitement to imminent lawless action.  MacKinnon argues that if material that incites hatred against race or religion is not protected by the first amendment, why is material that incites hatred against women in the context of pornography now?  Bhattacharya, in agreement with MacKinnon cites that pornography is to women what racist propaganda is to black people.

In 1986 when Clair Short tried to push a private Bill through Parliament to amend the Indecent Display bill she was portrayed as a killjoy and an upholder of moral values. M.P. Short argued that nude displays of women in tabloid newspapers offended women and used the porn equals rape argument.  However the newspapers mocked M.P. Short and constantly referred to her by the size of her breasts.  Her attempt to introduce anti-pornographic legislation revealed precisely what radical feminists were complaining of: that in a patriarchal society, when a woman tried to stand up for beliefs she was made fun of and eroticised in a form to exercise power over her.

In the US in 1983, Andrea Dworkin and Catherine MacKinnock drafted an amendment to the Human Rights ordinance of the City of Minneapolis.  The ordinance did not regulate pornography, instead it recognised harm and provided redress for those who had been harmed.  It provided four causes of action: anyone who is coerced into pornography can claim damages and an injunction against the publication of the material; anyone could sue for violation of the right not to have pornography forced upon him or her; a person may seek damages for injury directly caused by pornography; and finally, women could bring an action against anyone trafficking pornography. However the city’s Mayor vetoed the Ordinances.  Plus the Ordinances were held to violate the first amendment in the case American Booksellers (1986). 

Contradictory, some liberal feminists do not want further censorship of pornography, as it will limit the individuals’ right to freedom of expression.  Censorship of pornographic material of all types is not a new phenomenon and has been debated nearly every time a new medium of distribution has emerged.  The Internet has been no exception in this regard.  In terms of the right to freedom of expression, the Court of Appeal R v Stephane Laurent Perrin [2002] noted that the right would be better protected in the context of an exchange of political views in comparison to publishing pornography for gain.

As argued previously, a ban on pornography would result in a return of the sexual ignorance and repressiveness of the 1950’s; whereas pro-sex feminists do not want to be seen as victims of pornography.  Also many liberal feminists do not want to hand more power to the judges, many of whom have shown themselves to be completely lacking in the understanding in cases involving harm to women

In a liberal, modern western society, society would see pornography as they do with many moralistic issues (i.e. abortion) that are being regulated by the law - as long as it causes no harm physically or mentally to those that are not aware of it, it should not be decriminalised.  The presumed causal connection between imagery and harm, which is inherent in the view of pornography as sex discrimination has proved problematic.  The harm might be identified as that perpetrated on women who are involved in the making of pornography, those involved in the assaults which may arise out of male usage of pornography and harm perpetrated on women generally as a result of the widespread dissemination of imagery which debases women as a group.

As discussed above the law currently allows pornography to be made and purchased, as long as it does not deprave and corrupt, in that we all have a freedom of expression as stated in the European Convention of Human Rights, and if someone wants ‘porn’ they can purchase, participate and produce it freely.  There are clearly other issues concerning how much we are subjected to pornography and if in fact it is constantly reflected in the media.  Advertisers constantly use sex to sell their goods or services as they know it gets the viewers attention – resulting in a multi-million pound industry.  One may compare pornography as to Cigarettes – if they are seen as ‘bad’, but are still legal, then surely a case can me made that pornography should be seen in the same light.

Unless it can be proved beyond doubt that pornography is the cause of hatred and violence against women then it will be extremely difficult for radical feminists to get their views incorporated into law because the right to produce pornography is a public right and the right to consume pornography is a private interest.  The radical feminist position has been made more vulnerable because of the quick inference from the theoretical reconstruction of pornography as public to the idea that some instrumental regulatory strategy must be appropriate, and hence by a failure to engage in a sufficient debate about not just the efficacy but also the ethics of legal control.  At a discursive level, the implications of the legislative strategy seem at best, uncertain and at worth, damaging.

BIBLIOGRAPHY

Books: 

Primary reading: 

• Brant, Claire and Lee Too, Yun (1994), Rethinking Sexual Harassment, Pluto Press, London.
• Bridgeman, J and Millns, S (1998), Feminist Perspectives on Law: Law’s Engagement with the Female Body, Sweet and Maxwell, London.
• Bryson, Valerie (1999), Feminist Debates, Macmillan.
• Dworkin, Andrea (1989), Pornography: Men possessing Women, New York Dutton.
• Echols, Alice. (1997), Daring to be bad. Radical Feminism in America 1967-1975, 4th Edition, University of Minnesota Press.
• Edwards, Susan (1996), Gender and the legal process, Blackstone Press Limited – London.
• Kitzinger (1995), The Social Construction of Lesbianism.
• Mackinnon, C (1989), Sexuality, Pornography and Method. Pleasure under Patriarchy.
• Penner, Schiff, Nobles, et al (2002), Jurisprudence and Legal Theory, Butterworths.
• Smart, Carol (1996), Feminism and the Power of Law.  London and New York.

• Strossen, Nadine (1996), Defending pornography, London (Abacus).

Secondary reading: 

• Barnett, H (1998), Introduction to Feminist Jurisprudence, Cavendish Publishing Ltd, London.
• Mill, John Stuart (1869), On Liberty, London, Longman..
• Smart, C (1995), Feminism and the Power of Law, Routledge, London.

Journals and Articles:

• Albert, Michael, Catharine Mackinnon and Pornography  - 
• Brown Miller, Susan, Let's Put Pornography Back in the Closet. –
• Cline, Doctor Victor (1999), Pornography’s effects on women and children, Morality in Media, New York.
• Hogg, Charles (December 5th 1999, Pornography and the Internet in the United States -
• Home Office Consultation (2005): On the Possession of Extreme Pornographic Material, H.M.S.O.
• Meady, Paul (September 22nd, 2000), The Harmful Effects of Pornography, General Counsel of Morality in Media. September 22, 2000.
• Lacey, N (1993), Theory into Practice: Pornography and the Public/Private Dichotomy - Journal of Law and Society.
• McElroy, Wendy (2001), A Feminists overview of Pornography, ending in a defence thereof 

Electronic Sources:

• Current Legal Information.
• LexisNexis.
• Westlaw.

RESEARCH SUMMARY SHEET

Question 3:

‘As opposed to a test which focuses on whether a publication is likely to ‘deprave and corrupt’, the law should instead focus on the wider harm pornography causes to women and society.’

Summary of legal/theoretical issues:

• Radical feminists believe that pornography is degrading and oppressive to women and why, in their view, the legal system fails to protect women in society against pornography?

• What is the radical feminists view on pornography and what, in their view are the consequences of pornography? How does this view differ from liberal and ‘pro-sex’ feminists?
• Is there any evidence that pornography incites violence and hatred against women?
• What are the current laws regulating pornography in England and Wales?
• What are the current laws regulating pornography in the United Sates and Canada?
• Harm against women?
• What other harm does pornography cause? Marriage?  Children?  Morals?
• Why do radical feminists believe these laws fail to protect women against pornography? And why do radical feminists believe the laws regulating pornography in Canada protect women more than in the England and Wales?
• Issues relating to ‘deprave and corrupt’ test?
• Why was the Civil Ordinance Act by radical feminists MacKinnon-Dworkin held to be unconstitutional?

Key Words/Phases:

Radical Feminism

Liberal Feminism

‘Pro-sex’ Feminism

Censorship

Patriarchy

Pornography

Sexual violence

Freedom of speech and expression

Liberty

Research strategy:

1. Search library for relevant textbooks on gender and the law.
2. Find relevant statutes in statute books i.e. Obscene Publications Act 1959.
3. Find articles recommended by the module handbook in the library.
4. Find articles recommended by textbooks in the library
5. Search for articles written by feminists or critical analysis on radical feminist theory on pornography on the Internet via search engines such as ‘Google’.
6. Search the Internet, via search engines for information regarding reform of pornography laws in America and the current law in Canada.
7. Use LexisNexis to read further articles and journals.

Research Record:

Feminist theory

• Radical Feminism – Pornography is a product of patriarchy, thus degrading and incites violence against women. Should be banned or regulated stricter to prevent further harm to women.
• Liberal Feminism – Believe in freedom of choice. Dismiss the idea pornography incites violence against women.
• ‘Pro-sex’ Feminism – Pornography benefits women to fulfil their sexual needs and desires. Believe there is nothing wrong with women being portrayed as sexual objects.

Laws regulating pornography

• Obscene Publications Act 1959
• Butler v The Queen [1992] 1 S.C.R (Canada)

• Roth v United States of America. (1957) 354 US 476 (US)

Reform?

• Human Rights ordinance of the City of Minneapolis 1983.
• Private Bill – Indecent Display Bill 1986 by Claire Short.

Summary of findings:

Unless it can be proved beyond doubt that pornography is the cause of hatred and violence against women then it will be extremely difficult for radical feminists to get their views incorporated into law because the right to produce pornography is a public right and the right to consume pornography is a private interest.  The radical feminist position has been made more vulnerable because of the quick inference from the theoretical reconstruction of pornography as public to the idea that some instrumental regulatory strategy must be appropriate, and hence by a failure to engage in a sufficient debate about not just the efficacy but also the ethics of legal control.  At a discursive level, the implications of the legislative strategy seem at best, uncertain and at worth, damaging.

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