Obscenity and Pornography: Behavioral Aspects

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OBSCENITY AND PORNOGRAPHY: BEHAVIORAL ASPECTS

Portrayals of sexuality have existed in virtually every society for which we have historical records. At the same time, virtually every society (Denmark being an exception) has called for at least some limits to sexual material, leading to precarious balances between free expression and social control.

Sex is a deep and mysterious part of human nature, being intimately linked to many aspects of human behavior, including those with the potential for good and the potential for evil. Some thinkers believe that pornographic or obscene portrayals provide insight into the nature of life and sexuality, while others contend that such portrayals cause moral and physical harm. For example, the Report of the Commission on Obscenity and Pornography (1970) concluded that pornography is largely harmless, whereas the Attorney General's Commission on Pornography (1986) came to the opposite conclusion. The debate over the beneficial or harmful effects of pornography is as alive today as ever, and will probably never be fully resolved.

The controversy over the effects and meanings of pornography and obscenity is complicated by several factors that will be examined. First, many different types of sexual depictions are available, with each bearing different meanings and impact; furthermore, researchers disagree about which types are most prevalent in society. Some pornography contains substantial artistic value, while other material appeals predominantly to base prurient and aggressive emotions. Second, demonstrating effects has proved to be elusive because most of what we know is based on laboratory experiments rather than the real world, and the key concepts that govern research are unduly vague and elusive. Third, one's assessment of the impact of sexually oriented material is often at least somewhat dependent upon the political and moral values one brings to the table, and upon one's assumptions about human nature. The elusiveness of the concepts of research leave room for value judgments to enter one's assessment.

Finally, efforts to limit the availability of sexual materials have to be cognizant of constitutional limits that protect freedom of expression. Under the sway of the First Amendment in the United States, courts have attempted to balance free speech with the rights of the community to limit the most offensive and potentially harmful material.

Availability and spread of pornography

The availability of pornography and obscenity has increased steadily over the centuries, reaching a peak in the year 2000. The spread of such material has been associated with the growth of democracy (extending rights of expression to more citizens over time) and the rise of such new forms of technology as the printing press, photography, mass publishing, modes of transportation to deliver material over long distances, videos, cable television, and, more recently, the Internet. In 1992, Americans rented 490 million hard core videos, compared to 75 million in 1985; and in 1997, 10 percent of the money earned on the Internet (up to $1 billion) came from pornography that could be found on about 34,000 web sites. The easy international availability of pornography over the Internet increasingly poses and creates legal confusion, for the law differs in each country, and no authoritative international standard has been promulgated. Studies in the 1980s maintained that the production of pornography was often associated with organized and other forms of crime, such as prostitution; yet no consensus reigns on the extent of underworld complicity in the pornographic industry today, especially given the lowered barriers of entry into the market provided by videos and the Internet.

Obscenity and pornography defined

Although the terms obscenity and pornography are often used interchangeably, they are different. The obscene is something that is foul, filthy, or impure, especially when exposed to public view. Obscenity is a legal term of art that applies to certain depictions of sex that are not protected by the constitutional guarantee of free speech because they appeal to debased sexual desire rather than the intellect. In Miller v. California, 413 U.S. 15 (1973), the U.S. Supreme Court defined obscenity as material that is predominantly "prurient" (that is, appealing to impure sexual desire) according to contemporary community standards; is "patently offensive" in its portrayal of sexual acts; and lacks "serious literary, artistic, political, or social value" when considered as a whole. In essence, the concept of obscenity is limited to material depicting hard core pornography, which means graphic portrayals of ultimate sex acts or lewd exhibition of sexual organs.

Pornography is a nonlegal term with a broader meaning. It derives from the Greek words for "harlot" and "writing," and pertains to depictions of erotic and lewd behavior, including works with artistic or literary merit (by definition, obscenity lacks such merit). All obscenity is pornographic, but not all pornography is obscene.

The balance the Supreme Court has struck between hard core and non-hard core pornography in obscenity law assumes that hard core pornography is more harmful to society than non-hard core pornography. Yet studies conducted in the years since the Court created the present legal test for obscenity cast some doubt on this assumption, as many scientific studies have found some non-obscene material to be more harmful than obscene materials. The main reason for this problem is that the legal definition of obscenity in the United States does not include violence or the degradation of women.

In the 1980s a new, feminist-inspired notion of pornography emerged that took violence and the degradation of women into account. Unlike enforcement of obscenity law, which is based on criminal punishment, the new approach was based on civil rights actions (victims could sue pornographers for harms associated with pornography), and defined "pornography" in a new way: as the "sexually explicit subordination of women" that includes various scenes of violence, humiliation, and unequal treatment. Federal courts in the United States declared this civil rights approach unconstitutional in 1985 and 1986 (American Booksellers Association v. Hudnut ) because its definition of pornography was too vague and sweeping, and because it represented censorship based on the ideas contained in the material (the main form of censorship the First Amendment does not allow). These concerns did not stop Canada from adopting this logic as the basis of its obscenity law in 1992 (R. v. Butler ). Concerns about the negative effects of sexually explicit violence and the degradation of women in pornography have continued to be the subject of political, legal, and scientific debate.

Finally, we should note the special issue of child pornography, which is either pornography made with children as models, or computer simulations of children in sexually enticing poses. Child pornography is a special cottage industry, often consisting of photographs made by child abusers (pedophiles or organized crime) which are then shared with others. Child pornography was not considered a major social problem until the later 1970s, when the children's rights movement had gained headway, spawning new enforcement efforts and laws on the state and national levels prohibiting the making, distribution, and use of pornography made with children. In 1982, the Supreme Court upheld New York's child pornography law (New York v. Ferber ), declaring that child pornography is not protected by the First Amendment. These laws have driven the child pornography market underground, requiring law enforcement to engage in undercover tactics that have occasionally given rise to concerns about entrapment (See Jacobson v. United States, 503 U.S. 540 (1992)). In 1996, Congress expanded prohibited expression by passing the Child Pornography Prevention Act, which prohibits the reproduction, possession, sale, or distribution of visual images depicting minors or those who "appear to be" minors ("virtual" child pornography) in sexually explicit conduct. This coverage is considerably broader than the exception to free speech authorized by Ferber, so the law has been challenged on First Amendment grounds. In 1999, lower Federal Courts upheld this act, which is surely headed for Supreme Court. (See United States v. Hilton, 167 F.3d 61 (1st Cir. 1999); United States v. Acheson, 195 F.3d 645 (11th Cir. 1999).)

For the rest of this entry primarily the term "pornography" will be used, as focus will be on the behavioral effects of all forms of sexual representations, not just the obscene.

Ideologies and estimates of harm

Although some believe that the question of the behavioral aspects of pornography is a straightforward scientific determination, the matter is not so simple. Anyone who studies the problem of pornography quickly notices how ideology is often a predictor of where a writer stands on the scientific evidence concerning harm. The most important ideologies in this domain are liberal, conservative, and feminist. The liberal view, which is epitomized by the American Civil Liberties Union (ACLU), is largely relativistic and individualistic: virtually any form of pornography should be permitted for consenting adults in the name of the sanctity of individual choice. Liberals are almost always skeptical of studies that purport to show how pornography causes harm. The conservative view supports legal controls and the claim that pornography causes moral and physical harm. Such conservative legal philosophers as Walter Berns and Roger Scruton maintain that sexual representations should be constrained in order to promote the interpersonal values of reason, responsibility, and commitment. Finally, the pro-censorship feminist view of such feminists as Catherine MacKinnon (as distinguished from the views of such anti-censorship feminists as Nadine Strossen, currently president of the ACLU) downplays the "moral" harms of pornography in favor of the argument that pornography depicting violence or the degradation of women causes actual violence and discrimination against women. Such feminists often endorse the distinction between "pornography" and "erotica" that feminist author Gloria Steinem made famous in 1983. Steinem argued that pornography is harmful, portraying women as the victims of male sexuality, while erotica is benign, showing women and men as equal partners in sexual interaction.

Types of pornography for research

Before we examine the evidence concerning the behavioral effects, we must look at the different classifications of pornography for purposes of research, because pornography encompasses a wide range of material (from James Joyce's novel Ulysses to the most unartful, sexually explicit video), and not all forms of pornography have the same effects. The most useful classification was provided by the Final Report of the Attorney General's Commission on Pornography, which posited three types: (1) sexually violent material, which portrays "unmistakably simulated or unmistakably threatened violence presented in a sexually explicit fashion," including sadomasochism, unwanted sexual aggression, and "slasher" films that depict violence along with sexual content; (2) nonviolent but degrading sexual material, which depicts "degradation, domination, subordination, or humiliation" (the commission decided what material is degrading based on what it thought "most people" would consider degrading, dominating, humiliating, and the like); (3) sexual material that is neither degrading nor violent.

The commission's findings concerning the predominant content of pornography were pessimistic and disturbing. It concluded that the vast majority of available pornography fits into categories 1 and 2. However, some more recent studies have looked more closely at content and concluded (at least tentatively) that the trend is away from violence and degradation. Furthermore, others have challenged the rather imprecise and impressionistic way the commission categorized material, casting doubt on its conclusion that violent and degrading material are predominant. (For example, the commission classified all sado-masochistic material as "violent," even though such sex is consensual, and it considered playful forms of "biting" to be violent.) While few question that the overall availability of pornography has increased (especially with videos, cable television, and the Internet), no one can say with any assurance what types or forms of pornography are most predominant.

Evidence concerning behavioral effects

At the most general level, many argue that pornography contributes to the decline of virtue and morality (it corrupts good character), and that it causes offense by its very presence (see Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)). The claim about offense is rather straightforward, but the contention of moral corruption is obviously more speculative, and has not been tested scientifically. But its supporters point to a commonsense assumption: if we are right to encourage the teaching of good literature because of its beneficial impact on readers' minds, then it makes sense to assume that bad and degrading literature will have the opposite effect. Furthermore, scientific evidence suggests that exposure to certain forms of pornography increases the likelihood of aggression or negative attitudes toward women, providing some support for the moral corruption theory (for such results reflect moral states), as do cross-cultural correlational studies that suggest that the extent of the availability of pornography is correlated with the extent of sex crimes. However, debate rages concerning the reliability and validity of such studies; and such countries as Japan provide counterexamples, as the high level of violent pornography in Japan is not matched by high incidents of sexual assault. Along these lines, researcher Robert Bauserman found in a review of the literature that sex offenders were not more likely than nonoffenders to have consumed pornography when they were young, though a minority of offenders were using pornography when engaging in their crimes (a finding consistent with police reports).

Harms can also arise in the making of pornography. The 1986 Attorney General's Commission stated that performers are sometimes coerced into appearing in pornography or performing acts for which they did not consent in their contracts. The commission also found that participants are often "young, previously abused, and financially strapped," and that participation in pornography often hurt their relationships and personal lives. Such concerns are most prevalent when it comes to child pornography. On the other hand, some women performers have espoused a new version of feminism and proclaimed their right to participate voluntarily in pornography. In addition, no one has conducted a serious empirical study of the harms associated with the making of pornography, leaving the matter to educated guesses.

The commission's conclusions concerning sexually violent pornography (based on its study of laboratory research conducted by other researchers) were strong and controversial: violent pornography "bears a causal relationship to antisocial acts of sexual violence." The commission was somewhat more qualified about the behavioral effects of significant exposure to nonviolent but degrading pornography, but it nonetheless maintained that exposure "bears some causal relationship to" violence, sexual aggression, and negative attitudes (e.g., viewers see rape as less serious than it is). The commission found far fewer negative effects for nonviolent, nondegrading pornography.

The research on the effects of violent, sexually explicit pornography conducted before and after the commission's 1986 report has been fairly consistent, giving some plausibility to the commission's conclusions about violent pornography, but less plausibility to its conclusions about degrading pornography. Experiments have shown that violent pornography coarsens male attitudes toward women, desensitizes them to sexual violence, and increases their aggression toward women (usually measured by their willingness to administer electric shocks to a female colleague of the researchers after being exposed to a film with the requisite content). Experiments control effects by exposing different sets of males (usually college students) to one of four types of films: violent and sexually explicit; violent without being sexually explicit; sexually explicit without being violent; neither sexually explicit or violent.

Studies indicate that the highest levels of aggression are recorded by those who viewed the violent and erotic films, followed by those who viewed the violent film. Perhaps surprisingly, some studies have found little affect on those who viewed the erotic but nonviolent film. The most important finding is that aggression levels are highest when women are portrayed as being sexually aroused by the violence perpetrated against them. Experimental psychologist Edward Donnerstein and two colleagues summed up their own research and that of others (this view has not been contradicted in the years since): "It is this unique feature of violent pornographythe presentation of the idea that women find sexual violence arousingthat plays an important role in producing violent pornography's harmful effects" (p. 88). Later work stressed that violence was the most important ingredient of the violence-sex link: even minor suggestions of sex will have effects similar to more sexually explicit depictions if violence is present. Sex appears to be less of a problem than violence.

Limits to the findings

Researchers and commentators have found flaws in the findings the commission and studies conducted before and after the commission's report. The most important criticisms boil down to the difficulty of extrapolating from the laboratory to the real world. The key criticisms include: (1) the evidence proves only correlation, not causation; (2) laboratory samples are artificial settings that do not reflect behavior in the real world. Aggression in the laboratory is not punished, and subjects perhaps perceive that the experimenters condone (or even encourage) aggression; and subjects might not believe they are inflicting real harm; (3) duration is not established. The effects of the violent pornography typically wear off after subjects leave the lab, as some studies have indeed indicated; (4) adequate operational definitions of aggression as a behavioral response and violence do not exist; (5) no longitudinal study (measuring the effects over a long period of time) has been conducted concerning the effects of pornography; and (6) the results show, at best, only "probable causation" (i.e., pornography increases the overall incidence of sexual violence, but is not shown to be causal in any particular case), not the type of direct cause that is most worrisome. Causation is least evident in the case of degrading, nonviolent pornography.

Thus, the evidence concerning the behavioral aspects of pornography is mixed. Legal scholar James Weinstein's assessment is apt. "The truth lies somewhere in between. Although there is some evidence that violent pornography (and perhaps 'degrading' pornography as well) causes violence against women, the evidence is far from conclusive" (p. 191).

Legal issues and enforcement

If the findings concerning violent and degrading pornography have merit, then there is a mismatch between law and reality, for the vast majority of potentially harmful material is not obscene, and therefore protected by the First Amendment. Yet the evidence concerning harmful effects is too speculative to merit a new exception to freedom of speech. In 1997 the Supreme Court struck down the national Communications Decency Act, a measure designed to protect children from exposure to pornography on the Internet, because of a host of free speech concerns that highlight the difficulty of enforcement posed by the First Amendment (Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)). In addition, even the enforcement of traditional obscenity law has proved difficult to administer for reasons related to what legal scholar Herbert Packer has called the "limits of the legal sanction." The most important reasons for the underenforcement of obscenity law include: (1) low priority given to obscenity cases by prosecutors with limited resources; (2) relative public tolerance of freedom of choice when it comes to what can be portrayed as a "victimless crime"; (3) confusion over the key terms of obscenity law make juries reluctant to find defendants guilty beyond a reasonable doubt; (4) gifted defense attorneys know how to use the law and take advantage of jury sympathies and confusion.

Given the difficulties of enforcing laws prohibiting hard core pornography (obscenity), society should think carefully about criminalizing other forms of pornography as well, especially given dangers such efforts present to freedom of speech.

Donald A. Downs

See also Criminalization and Decriminalization; Deviance; Gender and Crime; Homosexuality and Crime; Mass Media and Crime; Organized Crime; Police: Policing Complainantless Crimes; Prostitution; Rape: Behavioral Aspects; Rape: Legal Aspects; Sex Offenses: Children; Sexual Offenses: Consensual; Sexual Predators; Victimless Crime.

BIBLIOGRAPHY

Attorney General's Commission on Pornography: Final Report. Washington, D.C.: U.S. Department of Justice, 1986.

Bauserman, Robert. "Sexual Aggression and Pornography: A Review of Correlational Research." Basic and Applied Social Psychology 18 (1996): 405427.

Berns, Walter. "Pornography and Democracy: The Case for Censorship." The Public Interest 22 (1971): 324.

Donnerstein, Edward; Linz, Daniel; and Penrod, Stephen. The Question of Pornography: Research Findings and Policy Implications. New York: Free Press, 1987.

Downs, Donald Alexander. The New Politics of Pornography. Chicago: University of Chicago Press, 1989.

Jansma, Laura; Linz, Daniel; Mulac, Anthony; and Imrich, Dorothy. Men's Interaction with Women After Viewing Sexually Explicit Films: Does Degradation Make a Difference? CommunicationsMonographs, 4: 124, 1997.

Lynn, Barry. Polluting the Censorship Debate: A Summary and Critique of the Final Report of the Attorney General's Commission on Pornography. New York: ACLU Public Policy Report, 1986.

MacKinnon, Catherine. Only Words. Cambridge, Mass.: Harvard University Press, 1993.

Malamuth, Neil. "Pornography's Impact on Male Adolescents." Adolescent Medicine: State of the Art Reviews 4 (1993): 563571.

Packer, Herbert L. The Limits of Criminal Sanction. Stanford: Stanford University Press, 1968.

Report of the Commission on Obscenity and Pornography. New York: Bantam Books, 1970.

cruton, Roger. Sexual Desire: A Moral Theory of the Erotic. New York: Free Press, 1986.

Strossen, Nadine. Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights. New York: Scribners, 1995.

Weinstein, James. Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine. Boulder, Colo.: Westview Press, 1999.

CASES

American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985).

Jacobson v. United States, 503 U.S. 540 (1992).

Miller v. California, 413 U.S. 15 (1973).

New York v. Ferber, 458 U.S. 747 (1982).

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

R. v. Butler, 89 D.L.R. (4th) 449 (1992).

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

United States v. Acheson, 195 F.3d 645 (11th Cir. 1999).

United States v. Hilton, 167 F.3d 61 (1st Cir. 1999).

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