I attended the Sex 2.0 conference in Silver Spring, MD this past weekend, and it was an absolute blast. It was great to meet bloggers and activists I admire (like Elizabeth Wood), catch up with my college classmate and former sex-educator colleague Maria Diaz, see a lot of other familiar faces, and share in discussions of the Internet, social media, sex blogging, erotica, sex work, and sexual freedom activism. One of the many cool things I was turned on to was CARAS, an organization of academics that supports and promotes community-based research on alternative sexualities. Another was this awesome PSA from Sex Work Awareness:
Showing posts with label feminism. Show all posts
Showing posts with label feminism. Show all posts
Tuesday, May 12, 2009
Tuesday, April 21, 2009
Law imitates art? The misplaced fixation on surgical status
Two things have bothered me lately, and it occurred to me that they are connected. One is the difficulty of persuading judges to find for plaintiffs in transgender discrimination cases, particularly in cases involving disputed bathroom use. The other is the overwhelming tendency of pop-culture representations of gender transition to focus on reassignment surgery as the central and defining change, the sine qua non of authentic gender.
As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.
This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.
Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.
Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.
Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.
All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.
As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.
This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.
Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.
Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.
Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.
All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.
Saturday, January 31, 2009
Does an anti-porn documentary violate federal law? (cont'd)
Way back in November, I blogged about then-brewing blogtroversy over a new agitprop film, which argues that pornography is harmful to society. Particularly interesting to me was contention over whether the film, which contains copious excerpts from commercial porn films, violates the federal recordkeeping requirements for pornographers, known as Section 2257. I promised to take a close look at this legal question - but I didn't get around to it until now. Better late than never.
The basic duty. The core of the law, 18 USC 2257, is this:
"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.
Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:
Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:
At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)
So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.
Summing up. The above analysis is by no means exhaustive - this is a blog, not a law review - but I think it is enough to suggest that the producers of a film like this have serious reason to think they are required to comply with 2257. In other words, it's well within the CYA margin. If requiring documentary filmmakers to document the ages of performers in their source material seems impractical, even absurd - and to maintain an address where government officials can drop by anytime during business hours for the next several years to check those records - well, that's because 2257 is a badly written law. It takes the Mom-and-applie-pie premise of keeping minors out of pornography and takes it to absurd and, in some cases, likely unconstitutional lengths.
The basic duty. The core of the law, 18 USC 2257, is this:
Whoever produces any ...film [or other media] which contains one or more visual depictions ...of actual sexually explicit conduct...shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.Seems pretty straightforward. And the definition of "produce" in the law is very broad indeed. It includes:
digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct...This clearly covers "secondary producers" who repackage content originally created by others - including documentary filmmakers. I therefore think it's reasonably clear that 2257's recordkeeping duties extend to the makers of a film like The Price of Pleasure.
"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.
Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:
“sexually explicit conduct” means actual or simulated—
18 USC 2256(2)(a). Notably, the law contains another, different definition of sexually explicit conduct that applies where minors are involved - and that definition specifically employs the word graphic, defined to mean that "a viewer can observe any part of the genitals or pubic area of any depicted person ...during any part of the time that the sexually explicit conduct is being depicted." This is a broad definition of graphic, but presumably would exclude consisent obscuring of the genitals. It is significant, therefore, that the term graphic is not employed in the definition that pertains to material not involving minors. I think it is relatively plain, therefore, that the term sexually explicit conduct (as applied to material involving only adults) includes depictions that are partially blurred. Sexual intercourse or masturbation is still sexual intercourse or masturbation.
But what if we concentrate not on sexually explicit conduct but on the term depicts? Is this conduct still being depicted if naughty bits are obscured? Neither the law nor any regulation defines depicts. Dictionary definitions of the term are somewhat circular: decpict means represent means portray means make a picture of means depict. It is at least arguable that depict is ambiguous as to whether it includes an obscured representation. But there are two reasons why I think it should :
(1) In common usage, I think we would say that a film does depict something even part of the thing being depicted is obscured, whether by shadow or by digital effects, where it is in fact a film of that thing and identifiable as such.
(2) If depict were defined more narrowly, it would make the use of the term graphic elsewhere in the statute largely, perhaps entirely, superfluous. One traditional rule of thumb is that a statute should not be interpreted in such a way that part of it is superfluous. If Congress used narrower language in one part of the law and not another, it clearly meant for them to be interpreted differently, and reading depict narrowly would seem to negate this.
Of couse, the fact that 2257 is a criminal statute, and the fact that it places restrictions on speech, are two factors suggesting that it should be generally be construed narrowly. And since I think 2257 is generally a flawed, overbroad statute, I would be happy for it to be interpreted as narrowly as possible. But I think it is fairly likely that 2257 does cover films with the naughty bits obscured - certainly likely enough it would be unwise not to try to comply.
But what if we concentrate not on sexually explicit conduct but on the term depicts? Is this conduct still being depicted if naughty bits are obscured? Neither the law nor any regulation defines depicts. Dictionary definitions of the term are somewhat circular: decpict means represent means portray means make a picture of means depict. It is at least arguable that depict is ambiguous as to whether it includes an obscured representation. But there are two reasons why I think it should :
(1) In common usage, I think we would say that a film does depict something even part of the thing being depicted is obscured, whether by shadow or by digital effects, where it is in fact a film of that thing and identifiable as such.
(2) If depict were defined more narrowly, it would make the use of the term graphic elsewhere in the statute largely, perhaps entirely, superfluous. One traditional rule of thumb is that a statute should not be interpreted in such a way that part of it is superfluous. If Congress used narrower language in one part of the law and not another, it clearly meant for them to be interpreted differently, and reading depict narrowly would seem to negate this.
Of couse, the fact that 2257 is a criminal statute, and the fact that it places restrictions on speech, are two factors suggesting that it should be generally be construed narrowly. And since I think 2257 is generally a flawed, overbroad statute, I would be happy for it to be interpreted as narrowly as possible. But I think it is fairly likely that 2257 does cover films with the naughty bits obscured - certainly likely enough it would be unwise not to try to comply.
Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:
Sell, distribute, redistribute, and re-release refer to commercial distribution ...but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.28 CFR Part 75(d).
At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)
So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.
Summing up. The above analysis is by no means exhaustive - this is a blog, not a law review - but I think it is enough to suggest that the producers of a film like this have serious reason to think they are required to comply with 2257. In other words, it's well within the CYA margin. If requiring documentary filmmakers to document the ages of performers in their source material seems impractical, even absurd - and to maintain an address where government officials can drop by anytime during business hours for the next several years to check those records - well, that's because 2257 is a badly written law. It takes the Mom-and-applie-pie premise of keeping minors out of pornography and takes it to absurd and, in some cases, likely unconstitutional lengths.
Tuesday, November 11, 2008
Does an anti-porn documentary violate federal law?
A recent documentary on pornography has prompted much discussion on blogs dealing with feminism, sexuality, sex work, pornography and related topics. The film is called The Price of Pleasure, and it intercuts clips from recent porn releases with clips from interviews with industry insiders and critics. The film is essentially a pointed argument that pornography is harmful to women and to intimate relationships. Among the many criticisms of the film is that its producers and distributor failed to comply with the detailed federal record-keeping requirements to which pornographers are subject. The law is 18 US Code Section 2257, and it is intended to ensure that only adults appear in pornography. It states that:
I haven't yet seen a serious, detailed analysis of 2257 and whether it applies to material like this, or for that matter anything written by a lawyer. I'll attempt that in a forthcoming post.
Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which— shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.Covered producers are also required to place a notice of compliance on all covered materials. The penalty for each violation is up to five years. Adult film producer Ernest Greene argues that the film is covered by, and violated, 2257 here and here. Adult Video News editor Mark Kernes makes the same argument here. Similar criticisms have been levelled at an explicit slideshow exhibited by anti-pornography at lecture appearances around the country. This material has been defended on the ground that it falls under a "fair use" exception to 2257. (They seem to be confusing copyright law with 2257, but the argument does go deeper than this misnomer.) And some critics of this anti-pornography agitprop contend that these legal arguments are weak, and attention should be focused on rebutting its arguments.
I haven't yet seen a serious, detailed analysis of 2257 and whether it applies to material like this, or for that matter anything written by a lawyer. I'll attempt that in a forthcoming post.
Friday, October 17, 2008
The sexist Catch-22 of electoral politics
Over the long course of the presidential campaigns, my mind keeps coming back to the landmark Supreme Court case of Price-Waterhouse v. Hopkins (1989). This decision sanctioned the sex-stereotyping theory of sex discrimination that has in large part formed the basis for recent decisions on anti-trans bias in the workplace. But more to the present point, the facts of the case neatly illustrate the kind of sexist Catch-22 that women like Hillary Clinton -- and, to be fair, Sarah Palin -- face running for office. Justice Brennan neatly summed up the situation:
An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not.Ann Hopkins was denied partnership at the professional services firm that is now PriceWaterhouseCoopers, and claimed that the decision was based on sexism. The company claimed her "people skills" were the reason for the decision. From Justice Brennan's plurality opinion:
The partners in Hopkins' office praised her character as well as her accomplishments, describing her in their joint statement as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Clients appear to have agreed with these assessments. At trial, one official from the State Department described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Another high-ranking official praised Hopkins' decisiveness, broadmindedness, and "intellectual clarity"; she was, in his words, "a stimulating conversationalist." Evaluations such as these led Judge Gesell to conclude that Hopkins "had no difficulty dealing with clients and her clients appear to have been very pleased with her work" and that she "was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked."
On too many occasions, however, Hopkins' aggressiveness apparently spilled over into abrasiveness. Staff members seem to have borne the brunt of Hopkins' brusqueness. Long before her bid for partnership, partners evaluating her work had counseled her to improve her relations with staff members. Although later evaluations indicate an improvement, Hopkins' perceived shortcomings in this important area eventually doomed her bid for partnership. Virtually all of the partners' negative remarks about Hopkins -- even those of partners supporting her -- had to do with her "interpersonal skills." Both "[s]upporters and opponents of her candidacy," stressed Judge Gesell, "indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with, and impatient with staff."
There were clear signs, though, that some of the partners reacted negatively to Hopkins' personality because she was a woman. One partner described her as "macho"; another suggested that she "overcompensated for being a woman" ; a third advised her to take "a course at charm school." Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it's a lady using foul language." Another supporter explained that Hopkins "ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate."
But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board's decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."
The partners, in short, thought she was a man-eating bitch. She was Hillary Clinton. But it was precisely Hopkins's toughness, her formidable personality, that made her potential partner material in the first place. What if she had indeed changed her personal style and appearance, taken "a course at charm school," and adopted a more sweetness-and-light demeanor, who would have taken her seriously as a senior manage or a corporate partner? She wouldn't have been taken seriously. She would have been, in short, Sarah Palin: a bimbo instead of a bitch.
Monday, October 13, 2008
Keeping sexual material away from sex offenders (1 of 2)
Nowadays it is common to impose conditions of release on sex offenders that place broad limitations on their access to sexually explicit materials. Here are some conditions of community custody imposed on a Washington state man convicted of rape:
Veterans and students of the feminist sex wars will recognize this as a version of the old canard, "Pornography is the theory, rape is the practice." It has long been argued, by those who favor subjecting to pornography to legal prohibition and/or strengthened social stigmatization, that (strong thesis) pornography cultivates violent sexual impulses and thereby creates rapists, or at least (weak thesis) that it feeds the impulses of those predisposed to commit sex crimes. Many have chronicled the history of these debates; suffice to say that neither thesis is supported by the evidence of social science (e.g., here). Given that this logic has been rejected by courts and legislatures as a basis for restricting access to pornography and adult businesses by the public at large, it makes little sense to impose such restrictions on
Yet in the context of the current social panic around sex offenders, applying this logic to conditions of release goes virtually unquestioned. Moreover, a lack of empirical support is probably not sufficient for render these conditions constitutionally suspect, given the lenient "reasonableness" standard usually applied to conditions of release.
On the other hand, claims that conditions of this nature are overly vague have been successful. Thus, in State v. Bahl, Washington's high court ruled that two of the above three conditions were unconstitutional because they were too vague. Tomorrow I'll discuss this case in detail.
- Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
- Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
- Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.
Veterans and students of the feminist sex wars will recognize this as a version of the old canard, "Pornography is the theory, rape is the practice." It has long been argued, by those who favor subjecting to pornography to legal prohibition and/or strengthened social stigmatization, that (strong thesis) pornography cultivates violent sexual impulses and thereby creates rapists, or at least (weak thesis) that it feeds the impulses of those predisposed to commit sex crimes. Many have chronicled the history of these debates; suffice to say that neither thesis is supported by the evidence of social science (e.g., here). Given that this logic has been rejected by courts and legislatures as a basis for restricting access to pornography and adult businesses by the public at large, it makes little sense to impose such restrictions on
Yet in the context of the current social panic around sex offenders, applying this logic to conditions of release goes virtually unquestioned. Moreover, a lack of empirical support is probably not sufficient for render these conditions constitutionally suspect, given the lenient "reasonableness" standard usually applied to conditions of release.
On the other hand, claims that conditions of this nature are overly vague have been successful. Thus, in State v. Bahl, Washington's high court ruled that two of the above three conditions were unconstitutional because they were too vague. Tomorrow I'll discuss this case in detail.
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