Pregnancy, fisting, and labia clamps: another look at the feds' idea of obscenity

Now comes before this blog another federal obscenity prosecution. This one targets Florida-based producer Barry Goldman, who has now been saved from total obscurity by the Justice Department's dubious attentions.

Given the inherent vagueness of the law of obscenity, the only way to really tell what's "obscene" is to look at patterns in prosecutions, convictions, and appeal outcomes. When adult industry lion John Stagliano was indicted earlier this year, I had a look at the trailers for the indicted videos and surmised that, out of the massive catalogue of Evil Angel Productions, the prosecutor cherry-picked the films in the indictment because they prominently featured enemas, female ejaculation, and BDSM. In this more typical case, involving obscure, low-quality productions, I didn't relish the prospect of doing my own research. Fortunately, Blowfish blogger Thomas Roche has watched this bad porn so I don't have to. (Much thanks to Mr. Roche, since he describes it as "low-quality SM porn by what appears to be an independent, amateur producer with vaguely misogynistic tendencies.")

So what does Justice think stands out about these videos other than bad taste? Based on Roche's description, the feds' interest was probably piqued by: knife play (no cutting), use of clamps on the nipples and labia, (apparent) vaginal fisting, and the use of a pregnant star. "Pregnant and Willing" sounds like the tamest of the bunch, and it will be remarkable if the prosecutor chooses to argue that the presence of a pregnancy should contribute to a finding of obscenity. The one thing that did jump out at me from Roche's description was the use of a face-down hogtie on the pregnant actress; as Roche puts it, "doesn’t seem even remotely safe, no matter how barely-pregnant she is." Unsafe working conditions are a big concern, but they should have no more bearing on a finding of obscenity than the safety of lighting rigs or adherence to industry STD testing protocols.

It also appears likely - again, remarkably - that the prosecutor will focus on the depiction (or suggestion) of fisting. As in the Evil Angel case, one suspects that the prosecutor will try to mischaracterize what is going on. Fisting will likely be presented to the jury as an "extreme," sadistic, painful, and perhaps dangerous act - when in fact it is simply a technically advanced (and admittedly visually dramatic), but perfectly safe and not necessarily painful, sexual technique. I'm basing this guess in part on the fact that fisting is a favorite topic of social conservatives' attacks on sexuality and HIV education funding.

Finally, this case is a stark example of prosecutorial forum-shopping. In the age of the Internet, you can bring an obscenity prosecution anywhere, and thanks to the Miller test you can rely on local "community values" to set the bar for conviction. So, the Evil Angel case involved material produced in California, but the indictment was brought in Florida. Here, the material was produced in Florida, but the indictment was in Montana!