CHAPTER ONE – Legislation and the Social Harm Debate.

Rebecca Hoad

This chapter will be studying the effects pornography has had on society, by researching the implications of legislation and the entitlement to free speech.  Also to contribute to this study will be the much debated topic of social harm, linking pornography with sexual violence, with women as the victims.  This topic is to be discussed as its effects contribute towards the protection of free speech and why many restrictions have occurred.

Looking back at the introduction of this study, it is evident pornography has become widespread in our society, and easily accessible, so the State has been obliged to control this situation.  This is apparent from as early as the eighteenth century and still the State are trying to change societies attitudes and opinions towards sex in general.  Today the State has the authority to regulate society, and this includes unofficial leisure activities, such as sex.  However sex and the availability of pornography has proven difficult to control, which the State is aware of, so the State probably wants the public to police themselves.  They want people to censor themselves and to avoid watching such explicit material.  This is taking a more liberal approach, and there are arguments for and against that will be discussed further into this chapter.

Looking briefly at free speech, this has caused problems when determining the boundaries.  Similar to many guidelines and restrictions within this area there is a lack of definition causing a great deal of confusion.  The First Amendment in the USA has to be considered at this point, as it focuses on wanting free speech to be enforced at an equal level, and to give the, ‘…right of the people peaceably to assemble, and to petition to the government.’  (The First Amendment cited in Assiter & Avedon 1993:56 -- see References). The U.K have no such constitutional guarantee.  This may seem as an ideal approach, but for this to happen people have to be living in a perfect society.  Individuals and groups will always dominate others and voice stronger opinions, which are not always necessarily the correct or best ones.  The argument raised over free speech and the subject of sex is, should it be a free form of speech, as it is a form of communicating?  Or should it be prohibited, because sex and pornography is for sexual arousal, which could lead to sexual violence on women, and other undesirable effects, for example towards young children.

The harm principle regularly occurs in the discussion of free speech and pornography; however, ‘…in some cases the fact of harm is sufficient to limit free speech.’  (Easton 1994:93).  If this is the case, then maybe there is not so much need for emphasis on regulating pornography, if people are aware of the debate and can still control their own views.  The First Amendment has these views in mind, for freedom of expression, however Susan Easton believes within this amendment women have distinctly been silenced, and their concerns were not acknowledged adequately.  (Easton 1994).  Is this fair?  There is never a right or wrong answer to this debatable topic, so the problem still arises whether or not pornography and free speech should be regulated or not.  This brings the discussion onto the implications of legislation and restrictions; many brought to light by this contested debate.  There is a great diversity of legislation, so the following listed are only a selection that are relevant more towards the topic of censorship in sexually explicit material.

Prior to the late 1950s there were difficulties in the English law.  Also pornographic material was becoming widespread which was met with mixed feelings, including a moral panic.  Society was becoming concerned with the accessibility of consumption and its content.  The law acted upon this and introduced legislation to prevent a loss of control.  In 1957 individuals came together to form the Wolfenden Committee.  The purpose to, ‘…protect the citizens from what is offensive [and] safeguard against exploitation and corruption of others.’  (Rogerson & Wilson 1991:22).  The public’s protection was in mind, but it never referred to who the public was.  It can be argued that the Wolfenden Committee was reacting to the moral panics of the time, and therefore was favorable towards the public’s safety.  Since this involvement, other groups and guidelines have worked in favour to regulate the consumption of sexually explicit material.

The Obscene Publications Act (O.P.A) became the main law on pornographic censorship, which was first enacted in 1857.  However, similar to many other guidelines this act did not hold a distinct definition for obscenity.  The main aim of the act was for all material to pass through a classification process before distribution, and to restrict material that is likely, ‘…to deprave and corrupt persons.’  (O.P.A 1959).  Since then, this act has been amended over the years, firstly in 1954, stating, ‘people should not be convicted if publication could be proved in the interests of science, literature, art or learning.’  (O.P.A 1954).  However from an early stage sex was portrayed as ‘dirty,’ meaning material that was supplied for sex education was brought under scrutiny and suggested unsuitable for the readers, so this material became restricted or in some cases withdrawn.  Here is an example of the O.P.A not working efficiently to its guidelines.  How are people supposed to learn about the topic and its consequences?  England has one of the highest rates of teenage pregnancies and sexual crimes, so this silence may have contributed to this.  ( 15/09/01).  Although these restrictions are working towards public protection, they still are suffering criticisms.  The O.P.A has been suggested it is to, ‘… weak to control pornography.’  (Easton 1994:12).  Though it was never determined to what extent of pornography it should be controlling.  Britain’s material has been suggested it is far less explicit than other European country (McNair 1996), so this could be resulting in Britain being out of touch with the rest of Europe.  It is fair to say it has proven difficult to account for everybody’s views.  Some are worried for who may be consuming this material and therefore want stricter controls, and the other end of the spectrum is people who feel withdrawing material will not prevent people from consuming it, but make them more determined, which is where illegal material becomes available on the market.

Looking back at this particular Act, it continues to make amendments to move with popular culture, yet still no definitions are evident, which is why it suffers criticism.  The term, ‘obscenity’ as an example has to be questioned.  ‘The focus on English law is on the state of mind of the consumer.’  (Easton 1994:127).  The law is concerned with whom the likely reader is when determining material(s) suitability.  ‘An article cannot be obscene in itself: it can be so in relation to its likely readers.’ (Easton 1994:127).  The problem arisen here suggests that every case could be judged differently if no guidelines are implemented.  All jurors will hold different opinions, to determining how these likely readers will react and who the likely readers are.  It is an arguable case, and due to the diversity of views, some realistic solutions need to be anticipated.  This rests in the hands of the law, where the police and licensing authorities have their own definitions on offensive material.  So there is a need for structure and equal rights to be implemented, which so far the O.P.A has been criticised for ignoring the publics rights.

Since the advent of this legislation, much legislation has been implemented resulting from concerns for the public, proving a systematic structure was slowly being implemented.  Several pieces of legislation such as the Indecent Displays Act 1981 and The Local Government (miscellaneous provisions) Act 1982 introduced more authority within the local communities.  Concern spread over explicit material being consumed, so these acts placed restrictions on where these materials could be purchased, for example in licensed sex shops.  Warning signs was put in place, so individuals would not be offended. This is an example of the law working with the general public’s views.  Tighter controls were made, but explicit materials were not restricted, so individuals who wanted to consume this material could do so without offending others.  By working with local authorities, greater emphasis was put on local people’s opinions and demands.

A moral panic began when a problem of video nasties arose, which saw the implementation of the Video Recordings Act 1984.  This still proved much more difficult to control, as even though videos were put through a classification process, private viewing proposed it was difficult to determine who was consuming the material.  With many problems arising, unofficial legislation and campaigns were introduced such as the Hays Code 1940 in the U.S.A.  This was an attempt to resume morality within society, with the industry being forced to make their own commandments for what was censored.  The practice like many others never became official, but it is an important attempt showing people were trying to improve the state of their society.  It is evident that legislation has suffered a lack of clarification, resulting in confusion and critical statements.  The process of measuring obscenity and corruption is an aspect that has been picked apart by many critics, and especially feminists, where this study will now be concentrating.

The issue of feminism and violence has drawn together many campaigns and groups to combat this problem.  The ever-increasing argument put forward is that, ‘…pornographic combinations of sexuality and violence are a proven threat to women’s freedom, dignity and safety.’  (Dworkin 1981 cited in Mcguigan 1996:154).  However there is a contrast in views that have risen in debate, which makes the topic, ’…one of the most fiercely contested moral issues of our time, conceptually and politically.’  (Segal cited in Gibson & Gibson 1999:5).  Both viewpoints will be acknowledged.

Firstly a very influential academic, Andrea Dworkin, strongly believes pornography displays images of the oppression of women.  In Dworkin's academic literature, ‘Men Possessing Women,’ 1981, she looks at various aspects of why pornography is so degrading, and believes this is due to living in a patriarchal society.  ‘The weak are women as class – economically, socially and sexually degraded as a given condition of birth.’  (Dworkin 1981:138).  Dworkin's statement contributes to the view that historical implications are still today effecting people’s views.  This whole picture that men dominate women is apparent throughout her study.

‘The major theme of pornography as a genre is male power.’  (Dworkin 1981:24).  Dworkin looks at several components of males, such as physical strength, sex and money which is the hold they have over females.  She also feels the historical element of males owning females has contributed to this affair.  This study could be suggested it is out of touch with today’s attitudes since the study was completed over two decades ago.  Women now have their own disposable income, and are working in high powered jobs.  Nevertheless Dworkin’s studies cannot be dismissed, as male dominated societies are still apparent today.  Also the aspect of physical strength is an issue that has caused widespread concern.  Even before this, in the 1970s and 1980s women have been fighting for their rights, which resulted in a number of trade unions.  One famous campaign, Women against Violence against Women, (WAVAW), took the lead role in feminism.  Since then the concern expressed by these women was taken very seriously.  Contributing to Dworkin’s study, women feel pornographic material is sexually humiliating, where women are portrayed as objects for male pleasures rather than human beings with their own feelings.  Women feel at threat, suggesting men may adopt this approach and perform it on unwilling females.  Some extreme quotes from the supporters of feminists suggest, ‘…pornography is the theory – rape is the practice.’  (Morgan cited in Rodgerson & Wilson 1991:26).

Due to this theory, a diversity of experiments was undertaken to establish if there is a connection.  Edward Donnerstein, a leading pornography effects researcher wanted to prove the theory to be correct.  Donnerstein adopted an ‘arousal shift’ theory in the 1970s to detect aggression levels on males when consuming sexually explicit material.  Aggression levels were detected, but there was not enough solid evidence to prove the theory.  Many other case studies were collated, to raise the awareness of the theory.  (King cited in Assiter & Avedon 1993).  The Ted Bundy case in 1989 became famous, which led to his execution in the U.S after a string of sexually motivated murders.  Bundy confessed that the sexual murders he committed were influenced by him consuming pornographic material, containing sadistic activities.  These case studies have suffered much criticism, which will be addressed further into this chapter.

Now looking at the other side of the debate, critics believe feminists have no argument to prove there is a connection, and are against having pornography banned.  ‘The women’s movement lacks the political capacity to enact any legislative programme on pornography.’  (Rubin cited in Assiter & Avedon 1993:39).  Suggestions have been made, that feminists have narrow definitions of pornographic content, so are unaware of the specialist types available.  Feminists only seem to be aware of sadomasochistic pornography, which in reality sadomasochistic is a very small percentage in the market, and may be unrepresentative.  Feminists are not fighting for a ban on material that is degrading and violent on women, they want to abolish all types of pornography.  Is this took hold then individuals who wanted to consume material that does not involve any of the latter content would be discriminated.  Feminists groups hold a view that; ‘…men are predators, [and] women victims.’  (Rodgerson & Wilson 1991:34).  This is a very stereotypical image, again basing it more on an historical view, rather than the present day.  Here feminists are acting as the victims, so they are not helping themselves escape male domination or fighting for equal rights.

Lynne Segal, a leading academic has devoted research to search for evidence, but finds no truth behind the theory.  Segal believes, ‘no meaning has never been fixed,’ with the pornography debate, which is why it has suffered so much criticism.  (Segal cited in Gibson & Gibson 1994:5).  Segal used previous experiments to prove there is, ’…no harmful effects on its consumers.’  (Segal cited in Gibson & Gibson 1994:9).  Segal looks at Donnersteins experiments and even uses one of his statements to prove no scientific results can justify this debate.  ‘Common sense is a better guide than laboratory experiments; and common sense tells us pornography is bound to contribute to sexual crime.’  (Donnerstein 1987 cited in Gibson & Gibson 1994:10).  Other critics agree with Segal, stating most research undertaken, ’…suffers from simplistic assumptions.’  (Kipins cited in Gibson & Hill 2000:152).

Many critics are confused why feminists only want to censor violence in pornography, because, ’…is pornography [actually] more violent than other mass media?’  (Rubin cited in Assiter & Avedon 1993:24).  It is very apparent in the media today of many displays of violence, which has been acceptable for the media.  As this is the case, are feminists making the assumption that violence and women’s subordination originated through pornography?  ‘Pornography may mirror the sexism of society, but did not create it.’  (Rodgerson & Wilson 1991:35).  However historically there was a repression of sex, which meant society was silenced, which may have led to curiosity for many.  This image created so long ago may still be intact, so today people may of thought pornography was not as degrading if this is what they were brought up with.

Sex is still discussed in discourse today because of concerns such as overpopulation and the young’s behaviours.  It is very easy to contemplate the disapproval of sex and pornography, as it is morally correct.  People will support a view to go along with the majority, however this cannot be said for everyone.  This could suggest individuals are dishonest about their viewpoints, but this would be difficult to prove.  The State would have troubles regulating to satisfy everybody’s views if the truth is never to be told.  This question aims to be answered in the analysis of the research conducted in Chapter Four, to establish whether people are more honest about the topic.

This chapter has discussed the main implications of legislation on pornography, and the effects these and other issues have contributed towards the social harm debate.  The evidence demonstrates there are a diversity of viewpoints, on the social harm debate, which will continue to be disputed.  There is a necessity for distinct definitions for terms and classifications, to help regulate society, and also to contribute to fairer verdicts.  This next chapter will be looking closely at the BBFC, who aim to work to a system to incorporate the demands from society and the State.

Chapter 2