Thursday, April 2, 2009

Mass. lawmakers want to criminalize elder porn

A couple of geniuses in Massachusetts have proposed to extend that state's criminal child pornography to adults with disabilities and everyone over 60. I say it a lot here, and I'll say it again: No, really.

The Legal Satyricon has a fine post, so I won't belabor the point here:

Mass law defines an “elder” as anyone over the age of 60 (that includes Sylvester Stallone) and a “person with a disability as “a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection.

There are nightmare scenarios where people, due to mental infirmity, might not be able to give truly informed consent — and in those cases, I too would support measures to punish those who might exploit them. Illinois, for example, reportedly prohibits porn production involving the “severely mentally retarded.” Set aside the fact that we don’t call the mentally disabled “retarded” anymore, and such a law makes perfect sense. I am sure that, more likely than not, someone in such condition would lack the mental capacity to give their consent - and thus we should be jealously protective of their dignity and personal autonomy. C.f. New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech).

But, Reinstein’s law goes way too far.

Believe it or not, there is a market for “elder porn,” as well as “disability porn,” and those markets are served by consenting, healthy, elderly and disabled models. Naturally, some of this market caters to fetishists, but before you start saying “ewwww,” consider that there also happen to be many healthy members of society who don’t believe that sexual desirability ends at 60, nor at any other age, and it’s not just big in Japan. Just as “elderly,” is not necessarily inconsistent with “sexy,” (Sofia Loren and Sylvester Stallone are both over 60) neither is “physically disabled” necessarily inconsistent with “sexiness.” Just ask this wheelchair-bound porn actress.

One of the most utopian things about the internet is that anyone, and I mean anyone, can (no matter what they look like) find a porn site that features models that look just like them. ...

...Reinstein’s law is not limited to commercial porn. In fact, it doesn’t have to be porn at all - since I’d venture to guess that the elderly women who posed nude for this calendar don’t consider it to be “pornographic” or “perverted.”

The worst part is that Rep. Reinstein’s law equates nude photos of the elderly or disabled with child pornography: You can’t make it for any reason whatsoever, not even for private enjoyment, no exceptions, no nothing.

Presumably - hopefully - this one won't get far. If it does though, I suppose we'll see senior citizens arrested for taking their own boudoir pictures too.


Thomas MacAulay Millar said...


The issues with porn and the issues with censorship of porn are often ships passing in the night. As anyone familiar with the history of Dworkin, MacKinnon and the radfem anti-porn efforts (in even a fairly cursory way) knows, there are multiple critiques of porn, and lots of smart feminists think that they don't mix even when they produce some of the same conclusions, so that unlike MacKinnon, Dworkin did not support the Canadian R. v. Butler decision -- she didn't think that an obscenity-based model could ever be fully decoupled from its roots to really serve the interest of protecting women from exploitation without othering and infantilizing them. (I'm oversimplifying. Dworkin, love her, hate her, or both, was a complex thinker.)

I have a problem with people fetishizing older folks or folks with disabilities, and if I ever saw any of the fetish porn that this is aimed at I'm pretty sure I'd be appalled. But I am for older people, and people with disabilities, having sexuality, exploring and expressing it, and that must include their own right to depict it.

And, since the US Constitution, as currently understood, does not permit viewpoint-sensitive restrictions on speech, there is absolutely no way in US law to bar depictions which exploit people with disabilities from porn that does not also bar people with disabilities from making their own porn to show each other and their allies that they are sexual and refuse to be told otherwise.

(I'm thinking back ten years or more to a cartoon in the old SandMutopia Guardian, a BDSM community magazine, where a woman in a wheelchair was single-tailing a mohawked dyke spread-eagled on a frame. At least, that's the way I remember it. It's in a box in the attic.)

How much of this is a desire to stand up and shout against fetishization of people? How much is simply revulsion cloaking itself in more palatable rhetoric?

(If I play with a top over 60, would I have an obligation to make sure nobody takes pictures?)

This is particularly pernicious in that it infantilizes two groups of people, some of whom have trouble running their own affairs, but many of whom are no less able to make their own decisions than the rest of us. If 60 year olds cannot decide whether and how to participate in a display of their sexual conduct, then what the fuck are all those Senators doing running the country? Likewise, Max Cleland, Bob Dole and Bob Kerry had prominent and well-known physical disabilities. I may not want to see them have sex with anyone (in fact, I'm fairly sure I don't), but I don't for a moment question whether they can decide those issues for themselves. They are not children; for better or for worse they are or have been national leaders. Disabilities and all.

At bottom, isn't this really just, "eeeewwwww?" If this was really about whether the material was problematic, wouldn't someone have the sense to try to create a more nuanced tool?

As in most matters of sexual depiction, I think it matters a lot who makes it and who the intended audience is, and "by us/for us" material for a group outside the mainstream is something I'm going to be willing to protect pretty consistently.

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