CRM 222, Class notes: Week 1-3
CRM 222, Class notes: Week 1-3 CRM 222
Popular in Pornography and Crime
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This 13 page Class Notes was uploaded by Bria morris on Thursday September 22, 2016. The Class Notes belongs to CRM 222 at Eastern Michigan University taught by Marilyn Corsianos in Fall 2016. Since its upload, it has received 6 views. For similar materials see Pornography and Crime in Criminology and Criminal Justice at Eastern Michigan University.
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Date Created: 09/22/16
Pornography, Criminal Acts, Freedom of Speech, and Censorship Definitions of Pornography ● The definition of pornography and obscenity generates a lot of discussion and debate ● A lack of consensus as to what qualifies as pornography or obscene material is one reason pornography is such a contentious legal issue ● Some people may perceive painting or statues of naked people as pornographic ● Others may view certain television commercials that use sex to sell particular products as pornographic ● Others may consider a book that describes a sexual encounter in detail as pornographic ● The famous statement by the late Justice Potter Stewart in 1973 (when the US Supreme Court ruled on a group of pornography/obscenity cases) represented the challenges in trying to define pornography ● Justice Potter Stewart ○ “I shall not today attempt to further to define (obscenity); and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” ● Other academics (Check & Guloien; Donnerstein & Berkowitz; Fisher & Barak; Zillmann & Bryant) have tried to define sexually explicit materials by creating categories. ○ The 3 categories to guide theory and research in this area: ■ Erotica ● Consists of material ● In images of words presented in magazines, books, films, DVDs, videos, and or internet sites ● They involve sexually explicit, non degrading, and non violent portrayal of consensual sexual activity ■ Degrading pornography ● In images or words presented in magazines, books, films, DVDs, videos and or internet sites ● Typically includes sexually explicit material that degrades, debases, and dehumanizes people, mostly women, in a fashion that endorses such degradation ■ Violent pornography ● In images or words presented in magazines, books, films, DVDs, videos and or internet sites ● Consists of sexually explicit material that depicts and endorses the use of sexual violence, usually by the men against the women ● How can we all agree on which sexually explicit materials should fall into one of these three categories? ● Admittedly, achieving agreement across the board would be impossible ● Even though to definition of pornography can be very subjective, as can deciding which kinds of sexually explicit materials are erotica or degrading, many academics would agree that there is a mainstream of mass market pornography that most adults living in the US have become aware of Mainstream of Mass Market Pornography ● Material that consists of sexual content of any shape or form (usually combines sex acts with the exposure of genitals) in images (pictures and/or acts) and words, where the goal of the material is to sexually arouse viewers or listeners and usually sold for profit ● These materials dominate the mass market and overwhelmingly promote a sexist and heterosexist sexual hierarchy. ● They are readily available and there seems to be an endless supply to choose from, especially in the form of DVDs, magazines, and internet sites Early Attempts to Define and Regulate Pornography ● Mackinnon and Dworkin define pornography as the graphic sexually explicit subordination of women whether in pictures or in words that also includes: ○ Women being presented in dehumanized ways as sexual objects, things, or commodities ○ Women being presented as sexual objects who experience sexual pleasure in being raped ○ Women being presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or even in postures of sexual submission ○ Women’s body parts are exhibited such that women are reduced to those parts ○ Woman being presented by being penetrated by objects or animals ○ Women being presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these condition sexual ● In the early 1980s, legislators in Minneapolis employed Dworkin and Mackinnon to write a law for the city that would define pornography as a human rights violation ● The new laws recognized violations of people’s civil rights done through pornography ● Dworkin and Mackinnon argued that pornography is what it does. In other words, there were real consequences to women which made pronography a form of sexual discrimination ● As a result, for the first time, people who had been harmed/injured as a result of pornography could sue in civil court ● Other jurisdictions passed similar laws (Indianapolis, LA county, and a number of cities in Massachusetts) ● Individuals could sue in civil court (sue the makers, producers and or distributors of pornographic material) for a variety of reasons such as: ○ If they were coerced in making pornography ○ Forced to consume pornography ○ Defamed by being used in pornography without consent ○ Assaulted due to pornography ○ Subordinated as a member of a sexbased group through traffic in pornography AntiPornographers in the 1980s ● The antipornographers in the 1980s asserted that these new laws did not suppress speech ● They also argued that not all speech is equally protected and promoted; some have the power to define sex and sexuality in narrow terms and promote them as common sense ● They asserted that we do not all have an equal voice to begin with ○ There is no freedom of speech for all; they criticize the pro pornographers for their position to protect freedom of speech when we do not all have freedom of speech; that is, multiple hierarchies exist along class, gender, race/ethnicity, sexuality lines which give some a voice over others According to Dworkin and Mackinnon ● Pornography is a multibillion dollar a year industry that harms people not by what is says but instead by what it does ● Violence against women is promoted ● Pornography sexualized dominance and submission, women are objectifies and presented as body parts rather than whole persons who have feelings, families, responsibilities, who work to pay their bills ● Mackinnon was quoted as saying that before pornography became the pornographer’s speech it was somebody’s life ● During the Minneapolis hearing before the new pornography laws were introduced, victims of pornography were for the first time given the chance to talk about the harmful role of porn in their lives ● According to Mackinnon, these hearings freed previously suppressed speech, and so would the ordinance ● The new law, she argued, was not an example of censorship, but just the opposite ● The Minneapolis hearings generated a great deal of publicity which led the federal government to revive the national commission on pornography ● Attorney general William French Smith created the Attorney General’s Commission on Obscenity and Pornography ○ They asked to hear from survivors of all kinds of abuse and investigated the effects of violent as well as nonviolent sexual materials ○ The Commission concluded that “the harms at which the ordinance is aimed are real and the need for a remedy for those harms is pressing. It concluded that civil and other remedies ought to be available to those who have been in some way injured in the process of producing these materials.” It found that the civil rights approach allows for the recognition of certain pornography as a form of sex discrimination; and in their report, they included an entire chapter on the harm done to porn actors (who, according to the anti pornography advocates, were the most ignored victims of porngraphy and the ones most often blamed) ○ Since the Commission’s report, parts of the Minneapolis ordinance were introduced as bills in Congress ○ Senator Specter introduced the “Pornography Victims Protection Act” making the coercion of an adult or the use of a child to make pornography civilly actionable ○ Senator Mitch McConnell introduced the “Pornography Victims’ Compensation Act” creating a civil action for assault or murder caused by pornography ○ Moreover in 1994, Congress adopted the “Violence Against Women Act” which provided a federal civil remedy for gender based acts of violence such as rape and assault. According to Mackinnon, “Congress made legally real its understanding that sexual violation is a practice of sex discrimination, the legal approach that the antipornography civil rights ordinance pioneered in legislative form” ○ Minneapolis, Indianapolis, Los Angeles County and Massachusetts had passed laws that redefined pornography as a human rights violation (adopting Dworkin and Mackinnon’s civil rights approach) ○ However, over the years these ordinances were challenged and defeated: today the ordinance is not law anywhere ○ Mackinnon believes that multiple political forces are at work to try and silence and/or discredit the antipornographers (By saying that the scientific evidence on the harmful effects of exposure to pornography is inconclusive rather than trying to explain the disturbing findings that show a cause and effect relationship between certain types of pornography and violence) The Relationship between Viewing Pornography and Committing the Crime of Rape ● Diana Russell defines pornography as “material that combines sex and/or exposure of genitals with abuse or degradation in a manner that appears to endorse, condone, or encourage such behavior” ● She makes a distinction between pornography and erotica. She defines erotica as sexually suggestive or arousing material that is free of sexism, racism, and homophobia and is respectful of all human beings and animals portrayed ● Russell examines the relationship between pornography and the crime of rape ● She asserts that rape is a crime, but, the showing and distribution of actual rapes on film is protected as free speech ○ The movie Deep throat is considered to be pornography since it does not portray rape or other violence. ○ Linda (Lovelace) Marchiano who appears in the movie would later reveal in great detail that the film was actually a documentary of rape from the beginning to the end. (Discussed in her books “Ordeal” and “Out of Bondage”, as well as in her public testimony during the Public Hearings in 1983) ● Russell argues that pornography is associated with violence against women and contributes to the high incidence of rape in the U.S. ● In a study on sexual violence, Russell conducted interviews with a random sample of 930 women in the San Francisco area. Russell found 32% of the 87 women who had reported experiences of marital rape had been asked to pose for pornography. 24% of the victims of marital rape were upset by requests to enact pornography; and there were at least 15 cases of rape or attempted rape that the women attributed to their abusers’ use of pornography ● Experimental data has shown that exposure to pornography increases aggression in male participants; and that this effect was most consistent when the participants were exposed to aggressive/violent pornography (Donnerstein’s study, 1984) ● Other experiements have found that exposure to pornograpy increases participants’ acceptance of rape myths that include “women ask to be raped by the way that they dress and act”, or “when women say no they really mean yes” (studies done by Alen, Emmers, Gebhardt, & Giery, 1995; and Malamuth and Donnerstein) ● Another experiment found that male participants exposed to pornography recommended shorter prison terms for rapists in a mock trial than the male participants who were not exposed to any pornography during the experiment (study done by Zillman & Bryant) ● Different studies done by researcher such as Malamuth, Haber, Briere, and Feshbach found that a high percentage of males would consider raping a woman if they could get away with it ○ Briere and Malamuth found that 60% of their sample of male college students indicated that under the right circumstances, there was some likelihood that they would rape, use force, or do both ○ Other studies done by Malamuth found that 25% to 30% of male college students in the US admit that there is some likelihood that they would rape a woman if they could get away with it ● Russell discusses 4 variables in the role of pornography in predisposing some males to want to rape: ○ Pairing sexually arousing/gratifying stimuli with rape ■ Viewers of pornography can develop arousal responses to depictions of rape, murder, child sexual abuse, or other assaultive behavior ○ Increasing males’ selfgenerated rape fantasies ■ Malamuth’s study ■ Abel, Barlow, and Blanchard’s study ○ Sexualizing dominance and submission ■ Study done by James Check and ted Guloien ○ Creating an appetite for increasingly stronger pornographic material ■ Zillmann and Bryant’s study ● Pornography has also played a role in sexually violent dating relationships in college ○ A study done by Schwartz and DeKeseredy found that 8.4% of the 1638 women in their sample reported being upset by their dating partner trying to force them to enact what they had seen in pornography ○ From the women who had been sexually abused 22% of them were upset by someone trying to force them to enact what they had seen in pornographic material ● Schwartz and Dekeseredy also surveyed male college students and found a statistically significant relationship between those men who admitted to sexually assaulting their partners and those who admitted to trying to force their partners to enact what they had seen in pornographic materials ● Schwartz and Dekeseredy argue that some men collectively learn to treat women through their exposure to certain pornographic media. Also, they argue that cyberspace technology now enables individuals to engage in online victimization of women… by virtually assaulting or virtually raping women ● In Bergen’s (1996) study on marital rape survivors (women who had been raped by their husbands) ⅓ of the women reported that their abuser used pornographic material, and, pornography consumption was clearly linked to those men who sadistically raped their wives ● Some of the researchers discussed above provide data that they believe proves causality (pornography causes violent crimes such as abuse and rape) ● Whereas some of the others argue that data showing correlation does not prove causality (pornography causes violence) but instead that pornography certainly plays a role in the sexual violence experienced by some women Violence Against Women in Pornography 1973 US Supreme Court Decision ● Miller v. California ● The US Supreme Court provided a definition of obscenity which is more or less in effect today. ● Obscenity: ○ Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest ○ Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law ○ Whether the work taken as a whole, lacks serious literary, artistic, political, or scientific value ● Since Miller v. California, the US Supreme Court has offered clarifications to the Miller standard ● Four clarifications are offered: ○ When determining whether material is obscene, jurors must decide whether the material violates community standards for obscenity ○ Appeals to the prurient interest means material which appeal to shameful or morbid interests in sex, (but not that which incites normal lust), and includes materials designed for and primarily disseminated to a deviant sexual group which appeals to the prurient interest of that group ○ Average person included both sensitive and insensitive adult persons, but does not include children ○ Serious artistic, political, or scientific value using a national standard is required for a finding that something is not obscene, and a finding of some artistic, political, or scientific value does not preclude a finding that a work is obscene ● The court identified indecent materials that are protected speech ● Indecent materials are defined as those which show nonconformance with accepted standards or morality ● Certain sexually explicit materials are regarded as free speech under the 1st Amendment. However, there are three categories of sexually explicit material that the US government can regulate: ○ Obscenity Involves work that, taken as whole and judged by the current standards of a community, appeals to an unhealthy interest in sex, depicts sexual conduct in a patently offensive way, and lacks any serious literary, artistic, political, or scientific value ○ Child pornography Involves pictures of minors engaged in sexually explicit conduct. Includes actual or simulated sexual intercourse, masturbation, bestiality, sadistic or masochistic abuse, and the lascivious exhibition of the genitals of the pubic area of a child ○ Obscenity of minors Includes materials that are considered obscene when children are in the audience The Sex Wars The Sex Wars ● The sex wars of the 1980s were fought and continue to be fought by scholars who are divided on the tissue of pornography and censorship AntiPornography Supporters During the Sex Wars ● Mackinnon and Dworkin became the poster women or the antipornography movement; they and other supporters asserted that pornography is a human rights issue rather than a free speech or censorship issue ● They argued that the US Constitution protects freedom of speech, and pornographers are not restricted for the kinds of speech/pornographic material they wish to express ● The ordinance they drafter would punish those whose speech brought physical harm/injury to others ● The ordinance in Minneapolis and in the other cities was struck down; it was deemed unconstitutional ● In 1985, the 7th Circuit Court of Appeals held the ordinance unconstitutional on the grounds that it violated the 1st Amendment guarantees of freedom of speech of the press ● In 1986, The Supreme Court declined to overrule the 7th Circuit Court of Appeals’ decision ● Mackinnon argues that even if material that was degrading and violent towards women was protected by the by the 1st Amendment, as the 7th Circuit Court of Appeals declared, there materials offend another constitutional value; which is the equal protection clause of the 14th Amendment that guarantees everyone equal protection under the law. ● Mackinnon argues that since pornography does not guarantee equal protection for all under the law, then the courts must resolve the conflict between the two constitutional value in favor of equality and censorship ● Mackinnon and Dworkin assert that there is a correlation between viewing and or reading pornography and criminal acts (rape) ● Mackinnon noted that most rapes go unreported as seen in a number of well regarded research studies (Koss’s research that found that 1 in 4 US college women were the victims of rape or attempted rape; and similar results found in Dekseredy’s research of Canadian college students) ● Mackinnon and other antipornography supporters also state that freedom of speech and freedom of thought is an elitist ideal that has had little or no value to marginalized and oppressed groups in society (Ex: women, racial minorities such as African Americans and Native Americans) that is, groups that have been exploited historically and deprived of the necessary forms of power to have an opinion, to be heard, to be respected, and to be able to put ideas into action. ● They state that the government already prohibits certain types of speech. ○ The government prohibits sexual and racial harassment in the workplace and punishes employers who engage in certain types of harassing behavior including speech ● Several universities have adopted speech codes that prohibit certain types of language in the classroom ● Antipornography supporters believe these are necessary to promote equality for all, to ensure mutual respect for women and men in the workplace, to obtain an atmosphere of mutual respect for all students in the classroom ○ Those who violate these policies often face punishment which can include dismissal Comparisons Made to Hate Crime Legislation ● Some supporters of the early Minneapolis ordinance say that the ordinance was in some ways similar to today’s hate crime legislation in that people are free to say anything hateful but when they choose to act on their hatred and bring physical harm to a person or person’s property because of the group they represent (real or perceived) (Ex. their race, ethnicity, sexual orientation, gender) then that qualifies as a hate crime and thus there should be an increase in punishment. ○ A person may be convicted of an aggravated assault and receive a sentence in prison. ○ If it is proven in court that the victim was assaulted because of the group they represent, then the convicted person should receive an increase in punishment in addition punishing the convicted person of the crime, they are also punished for what they said because it is this speech that is used in court to prove hatred for the group. ● These folks who draw some parallels with today’s hate crime legislation, argue that a pornographer may choose to promote hatred towards a group of people (making violent pornography that shows young women being beaten and raped), but if women are injured in the making of the films, then crimes have been committed. ● Others would also support holding pornographers criminally responsible for harm brought to people who were assaulted by persons who watched the films, internalized/fantasized about the kinds of speech that was being depicted, whether in words and or images, and then engaged in the actual violent behavior. ● If we push certain forms of speech under hate crimes, then why shouldn’t we punish the speech created by pornographers that influences others to act on it. ● Some would say that these cases should be treated as hate crimes. ● 49 states and the federal government have enacted legislation that increases punishment for those convicted of a hate crime. ● Hate crimes: crimes committed against individuals by an offender motivated by hatred toward the victim’s race, ethnicity/ancestry, gender identity, sexual orientation, religion or physical disability. ● States differ on which categories are included in their hate crime legislation ● Several states have not included sexual orientation or gender, but include race, ancestry, and religion ● Supporters of hate crime legislation believe that the government must take a stand and condemn hate crimes given the physical, psychological and financial harms done to society and thus support an increase in punishment ● Others believe that this type of legislation punishes thoughts not actions since the laws already punish convicted persons for their crimes ● Hate crime legislation allows the courts to assess the perpetrators’ thoughts/psyche and speech to determine hatred for a particular group and then increase the punishment ● Antipornography supporters recognize the difficulties in establishing a direct cause and effect relationship between particular types of pornographic material and violent crimes ○ This does not mean that we should not be concerned about pornography at all, and we should look at the role that mainstream pornography plays in shaping and influencing people’s perceptions about sex, sexuality, women, men, human relationships, as well as the sexual violence experienced by some women ● Cameron and Frazer state that representation and action may not be related in a chain of cause and effect, but one can nevertheless discover important and complex connections between them. ● We should look carefully at the forms of sexual representations that exist in our culture and how they shape and influence human behavior ● Cameron and Frazer critically evaluate the two particular causal models: ○ The copycat model ■ You view pornography and then you do what you saw ○ The addiction model ■ Initial erotic stimulation is obtained from relatively mild forms of pornographic material, but over a time a stronger stimulus is required to achieve the same effect, and eventually the pornographic material itself is no longer effective which then impels the individual to act out the stimulus ● Cameron and Frazer assert that human behavior cannot be explained by applying the positivist approach used to study the physical world. ○ The laws of physics can explain different aspects of our physical world (Ex: gravity, movement of planets) but there are no universal laws for social/ human behavior ● Cameron and Frazer argue that social conditioning where people are socialized/ influenced by their surrounding environment implies that people have no control and are thus without the ability to think and make decisions ● Antipornography scholars point to the limitations in Cameron and Frazers’ critique of social conditioning ○ If one lives in a world where misogynistic, violent material in presented as the norm where it isn’t questioned ar criticized; where it's protected as free speech; where it erotisized and or normalized, then these images/actions may easily be interpreted as normal or socially acceptable by individuals who perhaps have had a violent history, where violence is what they know to be reality, and perhaps haven’t had others in their lives to question these images/representations. ○ It would be very easy for someone like this to move from viewing certain types of pornographic material to wanting to act out those representations ProPornography Supporters During the Sex Wars ● 1984: A group of community activists, writers, artists, and scholars formed the Feminist Anti Censorship Taskforce (F.A.C.T.) and organized to oppose the anti pornography laws ● Nan Hunter and Lisa Duggan, founding members of F.A.C.T. argued that the debate about pornography no longer pits victimized women and conventional moralists against pornographers and civil libertarians ● F.A.C.T. affirms the sexuality for women can be a source of pleasure and power, as well as a realm of danger and oppression ● April 1985: F.A.C.T. filed a brief in the US Court of Appeals for the 7th Circuit Court ○ Is abThe brief was endorsed by 79 organizations and women including the Women’s Legal Defense Fund, Rita Mae Brown, Betty Friedan, Kate Millett, and Adrienne Rich ○ It outlined why the Minneapolis ordinance and other similar ones (Indianapolis, Los Angeles, Cambridge) were unconstitutional ■ The ordinance suppressed constitutionally protected speech in a manner particularly detrimental to women ■ The laws have incorporated a sexual double standard denying women’s interest in sexual expression ■ There were concerns that feminist produced pornograpy or lesbian produced pronography (produced by the lesbian community and for the lesbian community) could be targeted whereas more mainstream pornography that catered to those with more economic, social and political power would be ignored ○ The brief also stated that the ordinance discriminated on the basis of sex and reinforced sexist stereotypes ● Mary Joe Frug supported the defeat of the ordinance for a number of reasons: ○ Problems associated with how pornograpy was defined ■ Not all pronography is violent, misogynystic, or heterosexist ○ The belief that by destroying a particular depiction of women’s oppression (Ex: in certain types of porn) then this would change the experience of women’s oppression in its multiple manifestations (Ex: wage disparities, gender discrimination, violence against women) ■ Frug argued that if women’s oppression occurs through sex, then in order to end women’s oppression in its many forms, we must begin to change the ways that people think, talk, and act about sex ○ Not all pornography is about women being fucked; there are works in which women fuck, or where the female character is the dominant ■ There are many different representations of sex, sexuality, and sexual performances in pornographic material that needs to be deconstructed in order to gain insight about how and why they are formed, as well as their effects on viewers ○ Advocates of the ordinances falsely assumed that pornography users mechanistically identify with samesex characters and mechanistically seek to reproduce pornography scenes in their own lives ■ Ronald Dworkin believes that most men, just as most women find the violent forms of pornography appalling and do not mechanistically identify with the samesex characters and seek to act out these scenes. ○ Although many view pornography for sex instruction, other may view or read porn for fantasy seeking to escape lives characterized by chastity, routine sex, or gender appropriate sex ○ People who commit crimes such as rape and assault can be prosecuted without banning all types of pornography
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