Part 1: Chapter 3

Statement of Father Bruce Ritter

Eleven Solomons we are not!

Eleven Americans, not Solomons therefore, sat down together over the course of a year to listen and to learn, to argue and to debate. At the end we are able to present this modest report of our conclusions to the American people-a report in which, on most key issues, we were able to achieve virtual or at least substantial unanimity.

We are proud of the result. Or to speak for myself and not the Commission-the purpose of this "personal statement"-I am proud of the result and quite proud that I had this opportunity to serve with my fellow citizens on this Commission.

That we could not agree on all issues is hardly surprising. Indeed that kind of total unanimity is simply not to be found in the real world of a culturally and religiously pluralistic society and it would be dangerously disingenuous to criticize the Commission for memorializing in this Report its differences of perception, of logic, of background, of personal conviction.

At bottom, the creation of this Commission was an inescapably political act-we are, after all, a government body, convened to give advice to the government of the United States, and specifically, to the justice Department.

More important still, we have been asked to put our eminently fallible judgments at the service of the American people, who are the final arbiters of political power. Our every word, in every hearing and meeting, has been subject to-and has received-rigorous public scrutiny, and may be used and misused in future political debates.

It would be an egregiously self-serving mistake, however, to assume that the work of this Commission was therefore dominated by political considerations. I think it fair to state that we attempted, as best we could, within the short life span of this Commission, to reach our conclusions based on a diligent and serious study of the evidence brought before us.

In the final analysis, however, every thinking adult is a walking-around collection of a priori assumptions that influence his thinking on all serious issues. These assumptions, in part the product of education and life experience, in part the rigorous conclusions of reason and logic, are, on balance, the "givens" each of us brings to every debate, to every effort to find the truth of a particular matter. These "givens" are tested, challenged, refined and sometimes repudiated in the elastic give-and-take of serious argument. Eleven Commissioners, perforce, brought such assumptions and convictions to our deliberations. It is my hope that we were able to transcend the limitations necessarily intrinsic to any personal view of the world and human behavior-and for that matter, to transcend the limits of any supposed allegiance to the political and religious ideologies of the Right or Left.

Given the severe time and budgetary constraints under which the Commission labored we were neither able, nor should we have been expected, to treat all aspects of our charge with that degree of thoroughness many readers of this Report might have desired. Nor is it possible within the limits of this necessarily brief personal reflection on the work of the Commission to do more than touch upon those areas of more personal concern or those issues where my decision to vote one way rather than another might require elaboration, viz., the absolutely central debate over Category III materials, the Printed Word controversy, the very thorny issue of the Indecency Standard for cable television-and the hugely controversial and largely shunned as too-hot-to-handle subject of sex education for our children.

The Category III Debate

I think the Commission was quite correct in its general approach to our study of pornography, not only by refusing to establish hasty a priori definitions of what pornography is or is not, but also in attempting some delineation and distinction of the various categories of the sexually explicit materials examined by us. The rationale for this approach is, I think, stated quite lucidly and cogently in this Report. That is not to say that other approaches might not have been equally fruitful or to say that there were no serious limitations to this approach. I shall discuss below what I consider the major and perhaps in retrospect, a significantly unacknowledged and even crippling flaw, of this methodology.

Nonetheless, this particular approach greatly facilitated our difficult and timeconsuming discussions of the real or potential "harms" ascribed to pornography and the identification of these harms with the various categories of sexually explicit materials. In addition, our chosen approach enabled the Commission to understand better the various kinds of evidence or "proof" needed to draw reasonable conclusions about the kinds of harms "caused" by pornography.

As Commissioners, therefore, based on the evidence presented to us, we had little difficulty reaching the firm conclusion that violent, or even non-violent but degrading pornography represented a significant harm to individuals and to society as a whole and that these two categories of sexually explicit designed-to-arouse materials should be condemned unhesitatingly. The Commission was again unanimous in asserting that to the extent that such materials met the Miller standard they should be prosecuted and, if possible, proscribed.

Is there a third category of sexually explicit designed-to-arouse material that is neither violent nor degrading and for which no real harm can be demonstrated that therefore does not merit such condemnation and possible legal proscription under the Miller standard? Because the Commissioners became hopelessly deadlocked on this issue it was resolved that each reserve the right to compose a personal statement outlining his or her thinking on the matter.

In my view, and perhaps in that of other Commissioners as well, this is the central theoretical issue of our year's debate. We were not able to resolve this question successfully and for me it represents a major failure of the Commission-not because we were unable to agree on the merits of the issue, or much less, that the other Commissioners did not agree with my own views, but because as a group we were unwilling, or perhaps unable, to confront or to correct or perhaps merely to adjust to the inherent limitations of our approach to the study of pornography.

This inherent and deceptive weakness in our approach -- its fatal flaw in my view -- also proved to be for us a fatal temptation, permitting the Commission to rely quite heavily -- indeed almost exclusively -- on evidence of harms drawn from the empirical and social sciences to the virtual exclusion of other kinds of "evidence". While this methodology perhaps proved useful enough when we examined the potential consequences of exposure to Category I and II materials, this over reliance on such evidence did not serve the Commission well in its examination of the allegedly more innocuous materials contained in our so-called Category III.

I say "allegedly more innocuous" because implicitly an assumption began to grow among many Commissioners that sexually explicit materials that were neither violent nor degrading somehow had to be less harmful than materials not obviously so-and indeed, in many important aspects that is quite indisputably true. As a result the focus of our discussions centered more and more, and sometimes almost exclusively, on the harms to be ascribed to sexually violent and degrading materials and the evidence we considered almost exclusively that drawn from the empirical and social sciences-testimony and evidence that in and of itself necessarily lacks the probative force and authority some, when convenient, wish to ascribe to it.

The weakness of our approach, and one that in my judgment we refused as a body to deal with adequately -- and that was the basis for much of the overt and covert disagreement among Commissioners -- lay in the easy temptation not to examine the underlying sexual behavior depicted in all classes of pornography and to make fundamental ethical and moral judgments about this behavior.

Pornography is, after all, nothing more than the depiction of certain kinds of human sexual behavior. Quite apart, however, from any depiction in words or in photographs, it is incumbent upon society to make certain ethical and moral judgments about certain kinds of human behavior, not excluding sexual behavior. For example rape is not merely a crime, it is decidedly immoral quite apart from any depiction of it. Sexual behavior that degrades women -- or men -- is immoral quite apart from the photographic record of it that may exist to memorialize it.

At the heart of our disagreement over the existence, the nature and the extent of Category III materials, in my view, was the inability and quite specific reluctance of the Commission to come to terms with the necessity of making ethical and moral judgments about the underlying behavior depicted in materials that would be contained in Category III materials, e.g., certain sexually explicit solely designed-to-arouse depictions of heterosexual or homosexual behavior, or of group sex that were clearly neither violent nor obviously degrading, in the precise meaning of this term as used in our discussions concerning Category II materials. I think it fair to say that by its refusal to take an ethical or moral position on pre-marital or extra-marital sex, either heterosexual or homosexual, the Commission literally ran for the hills and necessarily postulated the existence of a third category of sexual materials designed to arouse that was neither violent nor degrading, and, that was in some vague and unspecified sense, permissible to some extent-even though much of it would have been judged obscene under the Miller standard.

A much larger issue is at stake here than the individual harm or degradation of a particular man or woman, or even of society itself caused by materials commonly and confidently ascribed to Categories I and II. The question may be posed: does pornography, of any category, so degrade the very nature of human sexuality itself, its purposes, its beauty, and so distort its meaning that society itself suffers a grave harm?

The message of pornography is unmistakably and undeniably clear: sex bears no relationship to love and commitment, to fidelity in marriage, that sex has nothing to do with privacy and modesty and any necessary and essential ordering toward procreation. The powerful and provocative images proclaim universally-and most of all to the youth of our country-that pleasure-not love and commitment-is what sex is all about. What is more, that message is proclaimed by powerfully self-validating images, that carry within themselves their own pragmatic self-justification.

To pose the question in another way: is the imaging, the message-conveying power of sexually explicit, designed-to-arouse pornography so great that society must be concerned when that perniciously convincing message becomes well nigh universal among us? I think the answer to that question must be an unequivocal resounding yes!

Speaking for myself, and representing a view that perhaps could not carry the majority of the Commission, I would affirm that all sexually explicit material solely designed to arouse in and of itself degrades the very nature of human sexuality and as such represents a grave harm to society and ultimately to the individuals that comprise society. I find it very difficult therefore to affirm the existence of a third category of pornography that is neither violent nor degrading and not harmful.

To a certain but limited extent I have outlined my convictions further in two documents submitted to this Commission that can be found immediately following this statement. The first, entitled: Nonviolent, Sexually Explicit Materials and Sexual Violence, purports to show how an argument might be drawn from social science itself that the widespread consumption of sexually explicit materials found in universally disseminated male magazines may well lead inevitably to increased rape rates. I think my conclusions, although I am no social scientist, while certainly not apodictic, are at the very least plausible.

The second, entitled: Pornography and Privacy, attempts to make a strong argument against all pornography based on its (pornography's) total and inadmissible invasion of a personal privacy so sacred and so inalienable that it must always remain inviolate. There are, in sum, certain rights so intrinsic, so foundational to the integrity of the human personality and our duties as citizens that they may never be surrendered. One of them is our personal liberty. Another is our sexual privacy.

For these reasons, and for others, I have concluded that for all practical purposes Category III does not exist, viz., that sexually explicit materials designed to arouse that are neither violent nor degrading per se, nonetheless profoundly indignify the very state of marriage and degrade the very notion of sexuality itself and are therefore seriously harmful to individuals and to society, indignifying both performers and viewers alike in ways ethically and morally reprehensible.

If in fact such a category does exist, then I am persuaded that it is so limited as to be totally inconsequential and certainly not represented by the sexually explicit materials studied by this Commission.

To conclude otherwise, I fear, is to legitimate the existence of a group of materials that some would call "erotica" and would in effect license as permissible and presumably non-prosecutable, a large class of sexually explicit materials designed to arouse that would all too easily send the clear message that the primary purpose of sex is for hedonistic, selfishly solipsistic satisfaction.

To me, the greatest harm of pornography is not that some people are susceptible to or even directly harmed by the violent and degrading and radically misleading images portrayed all too graphically by mainstream pornography. Rather pornography's greatest harm is caused by its ability -- and its intention -- to attack the very dignity and sacredness of sex itself, reducing human sexual behavior to the level of its animal components.

In a certain sense the Commission was hoisted by its own petard. In its need to describe carefully and to delineate accurately the possible harms of pornography it adopted an approach and methodology and a system of proof quite suitable to establish the -- if I may say it -- the self-evident, the per se nota, harms of violent and degrading pornography. When all is said and done, do the careful conclusions of the Commission with regard to violent and degrading pornography surprise anyone, or does any rational man or woman seriously question the legitimacy of these conclusions -- quite apart from any "evidence" thought to establish such harms? The fact is that the Emperor doesn't have any clothes on and he -- as far as violent and degrading pornography is concerned -- never did and it didn't need four national Commissions (two American, one Canadian, and one British) to "prove" it.

The fatal weakness -- fatal because largely unacknowledged -- of our approach, however, betrayed and undercut and sadly misdirected the Commission's efforts and prevented us from, in my view, considering adequately the more profound harms to individuals and society caused by pornography as a total genre. The unmistakable consequence for the Commission, in my judgment, was to ascribe more harm to the less harmful and to discount substantially and even to discredit the far graver and more pervasive harms caused by pornography not evidently violent or obviously degrading.

To put it in another way: the greatest harm of pornography does not lie in its links to sexual violence or even its ability to degrade and to indignify individuals. Pornography, all three categories of it -- if indeed a third category exists at all -- degrades sex itself and dehumanizes and debases a profoundly important, profoundly beautiful and profoundly, at its core, sacred relationship between a man and a woman who seek in sexual union not the mere satisfaction of erotic desire but the deepest sharing of their mutual and committed and faithful love.

This being said, however, I hope no one will dispute the fact that while we did not succeed in resolving the major theoretical dispute before us, the approach and methodology adopted by the Commission did enable us to deal successfuly with matters of great practical importance and concern to the American people.

The "Printed Word" Debate

One of the most difficult and controversial issues that sharply divided the Commission was the special nature and especially protected character of the printed word. Simply put, the issue was this: does the printed word -- including printed and non-pictorial pornography -- deserve special consideration because of the unique relevance the printed word bears for First Amendment considerations and the precious right of political dissent in the United States, the almost exclusive burden of which is carried by the printed and spoken word?

I voted with the bare majority on this issue, upholding the special preeminence of the printed word and holding that, despite the fact that printed pornography can be declared legally obscene under the Miller standard, printed depictions merit special protection unless they involve the degradation and abuse of children.

Because my vote in particular seemed somewhat out of character in light of other government intervention with which I agree, and because it was virtually incomprehensible to some thoughtful people on the Commission and elsewhere, I take this opportunity to at least put on the public record the rationale for my vote.

It was abundantly clear from our discussions that virtually no current prosecution, on grounds of obscenity, of the printed word occur in the United States, and that furthermore, none are realistically contemplated because of the great difficulty and complexity of these prosecutions. Indeed, the Chairman of this Commission, Henry Hudson, conceded on the record that he could not conceive of ever undertaking a prosecution of the printed word.

The problem is of course that among this genre of printed pornography there exists a large body of materials that describe the sexual abuse of children and indeed, advocate for it. It is a particularly noisome and repellent body of literature that in effect is nothing less than "cook book" and how-to-do-it manuals, guides for the sexual exploitation of children.

I expressed to the Commission my strong conviction that unless these particular printed materials involving children were singled out for special and vigorous prosecution -- excerpted as it were from the broad mass of printed pornography -- the general reluctance to ever prosecute the printed word would prevent any attempt to proscribe these maleficent materials. It is my further conviction that the unanimous action of the Commission recommending the vigorous prosecution of obscene printed materials involving or advocating the sexual exploitation of children will, in fact, spur and aid prosecutors in the vigorous enforcement of the obscenity law, at least in regard to those materials depicting children. The hope of a total prosecution of obscene printed materials is disingenuous and futile-the crying need to prosecute to the full extent of the law those materials depicting the prurient sexual abuse of children is an urgent necessity.

A second reason led me to vote that special consideration be accorded the printed word. Fear of censorship was a constant theme of many witnesses who appeared before this Commission. I do not think we are entitled to judge that concern lightly, or to consider that those who express such anxiety are motivated by self interest. First Amendment values are crucial to American life and the virtual sanctity and integrity of the printed word central to the absolute freedom of political debate and dissent.

I do not agree with those who hold that efforts to regulate and proscribe sexually explicit materials according to the Miller standard signal a return to or adoption of a censorship mentality. In short I think that those possessed by such fears, while for them the fear may seem real, are quite simply wrong.

At the same time I thought it very important that the Commission send a strong message to the public that we do not favor a return to times when the repression of unpopular ideas was part of our political landscape. By the barest of margins, the majority of Commissioners adopted this view. I am proud to be among them.

The Indecency Standard

This was another issue that sharply divided the Commission and one that only eleven Solomons could have reached consensus on. Once again I voted with the bare majority and would like to put on record my reasons for so doing.

The issue was, once again, central to the charge of this Commission and could be framed this way: millions of American families are concerned about the virtual invasion of their homes by increasing amounts of increasingly explicit sexual depictions they find offensive and even dangerous to their families, most especially to their children.

The issue is fairly simple and straightforward for broadcast, noncable television. The FCC under its broad powers to regulate what can be transmitted over the air waves prohibits the dissemination of "indecent" words and images. The Supreme Court upheld this right in its Pacifica decision on the ground that citizens had a right to expect some regulation of broadcast materials coming into the home over which individual parents had no control.

The matter is not so simple with regard to cable television and other forms of satellite-transmitted programming. At least four court decisions, one of them in federal appeals court, have clearly established the essential diversity of broadcast and cable television and decreed that the "indecency" standard used to regulate broadcast materials could not and must not apply to cable television. In fact, the courts have so far declared, unanimously, that the application of the indecency standard to cable television is unconstitutional.

The issue is complex, not only by reason of the constitutional ambiguities that surround it, but also because, from a broader perspective, citizens have a right to be concerned about who and what are going to regulate what they may see on cable television.

Many witnesses who appeared before this Commission, for example, have pointed out, that if the "indecency" standard currently in force with regard to broadcast television were also imposed on cable television, most of the mainline Hollywood films currently on view in theaters across the country could not be shown on home television served by cable. It is hardly likely, even inconceivable, that the courts on any level, including the Supreme Court, would uphold such an extension of the indecency standard to cable television.

Indeed it is just as unlikely, regardless of an individual's particular ethical or moral persuasion, that such a blanket prohibition would be tolerated by the vast majority of the American people or the Congress that represents them.

There is still another compelling reason why many thoughtful people in this country would actively oppose any attempt to apply the same standards of broadcasting television to cable. Indeed, almost all of the principal religious denominations and religious broadcasters unanimously fought such an equation of broadcast and cable television on the grounds that it might seriously impede their own religious freedom to control their programming as they saw fit and might compel them to grant equal time to atheist or agnostic or anti-religious presentations.

Whatever one thinks of their argument, no one could plausibly accuse these religious leaders of not being sensitive to the import of their position or that they thereby were in favor of indecency on television. The fact is, however, that unless we equate broadcast and cable television, the FCC has no constitutional right to regulate programming on cable using the indecency standard upheld by the Pacifica decision.

For all these reasons therefore, and for others, I voted with the bare majority not to recommend the current indecency standards for cable television.

I would strongly support, however, new legislation by Congress that could thread its way successfully through the Scylla of unconstitutionality and the Charybdis of over regulation of this medium by government.

It seems to me that Congress should look to the principles of New York v. Ginsberg-which allowed lower obscenity standards to apply if children are recipients of pornography-as a beginning toward unraveling this conundrum. Ginsberg allows the government to declare some pornographic material "obscene as to children" and to make its sale to children a criminal act. Is it not possible then, that certain material may be judged "obscene as to the home" -- that is, judged by a standard that takes into account the special problems of parents in preventing access by their children to cable television or the telephone, and so be subjected to special regulation when it appears in those settings?

I am certain that all the Commissioners, regardless of how they voted on this narrow issue, deplore the increasing appearance on our home television screens, whether broadcast or cable, of sexually explicit and frequently violent and degrading materials. We differ only on how to achieve the laudable end of protecting our children from this unwanted and dangerous incursion into the sanctity of our families.

Sex Education for Our Children

Few problems have produced more genuine concern among more Americans than the sexual awareness, behavior, and victimization of children. Few, if any, dispute the need of children for knowledge about their sexual natures-its dangers and its promise, its mystery and its power. Yet few areas of public discussion have engendered more bitter, if often legitimate, debate over the means appropriate to achieving a desired end.

This Commission found itself in the middle of that debate, not out of choice but of necessity. We have seen and heard massive quantities of evidence concerning the abuse and exploitation of children by adults, both in the making and in the consumption of sexually explicit material. We have learned, as well, of the extraordinary extent to which sexually explicit magazines, films, video tapes, telephone recordings, and books are a part of the life of our country's children and adolescents. It has become increasingly clear to us that many children who escape actual sexual abuse are nevertheless receiving their primary education in human sexuality from a graphically inappropriate source, one which describes sexual fulfillment as conditioned upon transience, dominance, aggression or degradation.

We have seen, too, that in a society flooded with sexual imagery it is virtually impossible fully to "protect" children from becoming victims of misleading information about sex. Nor is it possible to expect that criminal and civil sanctions, however vigorously applied, will wholly end sexual abuse. Teenagers, and to a great extent even younger children, must learn to protect themselves-both from exploitation by others and from the consequences of their own ignorance and immaturity.

At the same time, however, they deserve an understanding of the beauty of sexuality, and its role as the foundation of family and indeed of human civilization itself. While our charge is limited to examining the nature and effects of pornography, we would be remiss if we failed to note our passionate desire for careful, humane, and explicit instruction of children regarding the nature and effects of sexuality itself.

Unfortunately that desire only leads us directly to a central dilemma of our nation's pluralistic democracy. The very importance of sexuality makes it a central focus of almost every system of religious and ethical values. Teaching children about sex inevitably involves instruction about its relationship with morality and human relationships. Any attempt to evade such instruction or underlying values only results in teaching one specific moral assumption-that no relationship exists between sex and morality. Presenting instruction on sex combined with discussion of the full array of opinions discussed would largely dilute the importance of all of them. While these problems could be wholly avoided if full instruction on sexuality were provided to children by their parents, it is a sad fact that many, if not most, parents ignore or fail seriously in this responsibility.

This dilemma is unfortunate in part because I think we all believe that there is a core group of values which can and should form the basis of instruction on sexuality. Above all, it seems to me we could agree that such instruction should be presented as one important, but not dominant, part of instruction on the family-its history, nature, and importance. The most important institution in human society, the family, is virtually ignored in modern education. That failing is particularly tragic because it is only within the context of exploring the meaning of the family that the meaning and role of sexuality can be understood.

The particular values that almost all of us think it important to emphasize in "sex education"-responsibility, commitment, fidelity, understanding, and tenderness-are precisely those which underlie our society's legal, social and moral assumptions about the family, and can only be effectively conveyed if the two topics are inextricably linked.

If a belief in the necessity of teaching those values with respect to sexuality were in fact shared by all Americans, it would be possible, I think, to devise a mandatory curriculum on human sexuality in the elementary and secondary public schools. Because it seems clear that no such consensus exists I have been forced, in thinking on this subject, to consider only the appropriate minimum action which is necessary and possible for federal, state, and local governments to take. As mandatory, explicitly value-laden age appropriate education in affective sexuality seems at present a task beyond the capacity of public schools, we can only center our hopes for providing such education on the willingness of families to undertake it. Within a voluntary framework, however, perhaps even within a released time context, we can urge the public schools to provide extensive opportunities for students to explore all the issues surrounding the creation and maintenance of families in the United States, with instruction on sexuality forming a substantial part of such a curriculum.

Finally, where children and youth need to learn how to protect themselves from exploitation by adults or manipulation by the media, we can ask the schools to take a strong, mandatory role in providing them the facts.

If this year confronting the products of the pornography industry has taught me anything, it is that we are all profoundly ignorant of the way electronic and photographic images can be used to manipulate viewers. We continue, quite rightly, to insist that our children learn how our novelists and poets use language to shape and redirect emotions and values. Yet with regard to powerful graphic visual images designed to produce handsome profits through sexual arousal of viewers, we have allowed our schools to remain almost completely silent. Teenagers should be taught not only how their emotions and instincts are manipulated by viewing pornography, but also how the pornography industry exploits and abuses the persons used in making it. Such instruction would present none of the religious or moral quandaries of sex education generally, and seems to me a vital protective measure for our young-who are simultaneously the biggest consumers of pornography and the most vulnerable to its vicious effects.

A Priest on the Commission

A decent respect for the wholly creditable, almost entirely unspoken but perhaps genuine anxiety felt by some that my role as priest, my training and background as Roman Catholic theologian might somehow unfairly or unconsciously skew my thoughts and feelings on the issues before the Commission compels this word of assurance.

I do not think that I was invited to join this Commission because I was a priest theologian but rather because of almost 18 years of close personal experience and professional involvement with literally thousands of sexually exploited children, many but not most of whom had been victimized in the actual production of pornography in which they were the hapless performers and "stars."

For this reason I asked a member of my staff, Gregory Loken, a gifted attorney and scholar in his own right as well as a noted advocate for the rights of children and Director of the Youth Advocacy Institute of Covenant House, to make a special study of the question regarding harms to performers in pornography. The Commission has made this statement its own and I consider it an important and original contribution to the research in this field. It is found in Part Four of the Report.

I freely admit to a certain bias in this regard. Nothing, absolutely nothing justifies the sexual abuse of children, and nothing, absolutely nothing-including the most perfervid defense of the First Amendment justifies the recording of this loathsome abuse on film. The Supreme Court of the United States in its unanimous 9-0 Ferber decision affirmed this special horror and declared that child pornography did not merit constitutional protection.

But when all is said and done I am who I am. I cannot exit from my personal skin, I cannot divest of myself, any more than any other citizen, of that "walking around collections of a priori assumptions" that in part help constitute who and what I am.

I am certain that despite some unfair prior assumptions to the contrary the Commission tried as fairly and honestly and objectively as it could to reach their conclusions as a result of honest and open debate. My position on the Commission carried for me an added important symbolic responsibility. Since I was the only member of the Commission that could be ever thought to "represent" a major religion in the United States, I felt a special obligation to my fellow Commissioners and the people of this country not to adopt or impose a particular theological or sectarian slant on my contribution to the work of this Commission.

In short, I tried not to react as a Roman Catholic priest but as a citizen with a broader mandate and constituency. I hope therefore that my views represent a wide spectrum of the current American experience. At the same time I am proud to be what I am and would have it no other way.

The Writing of this Document

The difficulties and complexities of this subject could hardly be exaggerated. One man's nudity is another man's erotica is another man's soft core pornography is another man's hard core obscenity is another man's boredom!

When, at the end of our public sessions it came time to synthesize the import of our debates and discussions in this report it became abundantly clear to the great majority of Commissioners that this report could not be a "staff document"-that is, a document compiled and assembled by the staff of this Commission could not represent fairly the differing opinions and conclusions of the Commissioners. This is not to denigrate the enormous contribution of the Commission staff. They merit the highest praise, especially its Director Alan Sears, for their round-the-clock effort to provide the Commission with the materials and support they needed. The staff worked with great diligence and zeal to perform their duties and much of this final report is a product of that diligence.

In the final analysis however, this report could neither be compiled nor assembled. It demanded single authorship. Quite simply this report could not have been written by Committee.

Professor Fred Schauer provided to this Commission the grace of single authorship and it is largely due to his wholly admirable effort in providing the "framing document" for this report that, in my view, we can present to the Attorney General and the American people a product of which I think we can all be proud.

Conclusion

The Chairman of this Commission deserves the gratitude of every member of this body. His was an unenviable and awesome task-to oversee the taking of public testimony and to guide the public debate over the issues with fairness and objectivity. I think Henry Hudson acquitted himself of this responsibility in a wholly admirable way.

His unfailing courtesy to the members of this Commission and its staff was particularly noteworthy, especially when too many late-night sessions over-stressed us all.

To the other Commissioners I can only say thank you. It has been a privilege and rare honor to have served with them. I hope they share with me that pride of accomplishment as we submit this report to the American people for judgment.

I speak for myself yet I am certain the other ten Commissioners would echo my concern over the well nigh universal eroticization of American society. I am convinced, too, that the vast majority of Americans either intuitively or by rational conviction share our concern.

I urge therefore that our fellow Americans examine and debate our logic and conclusions carefully.

Pornography and Privacy

Submitted by: Father Bruce Ritter

Table of Contents

Introduction

The Material In Question
Anthropological Perspectives
1. Genital Nudity
2. Sexual Intercourse
Western and American Traditions
Sexual privacy in Modern America
1. Attitudes and Practices
2. The Law
Pornography and Harm to Privacy

An American has no sense of privacy. He does not know what it means. There is no such thing in the country.
-- George Bernard Shaw

Introduction

If there is one single lesson we have learned from studying the "problem of pornography," it may simply be that Mr. Shaw's acid observations on American privacy may finally be coming true. Commercially produced material, regularly distributed to millions of Americans, shows other Americans, in explicit photographic detail, engaged in every variety of sexual intercourse. What might have been considered at one time the most private of human activities is now a matter not simply for public discussion but for graphic public display.

We have not fully agreed among ourselves whether this aspect of "pornography"-one which cuts across all the categories we have used in discussing other issues-should be deemed a "harm." Some of us have viewed the end of the taboo on public sex as at least an ambivalent event, with its possible benefits including an end to ignorant repression of knowledge and dialogue about sexuality. For the rest of us, however, the issue is a clear one, and, with limited exceptions explained below, we consider the assault of pornography on sexual privacy to be one of its most direct and corrosive harms. Because that view has not often been articulated in the debate over sexually explicit materials, however, we feel bound to explain it fully.

That explanation must begin by acknowledging that a concern for "sexual privacy" does not arise in every type of material considered "pornographic." That it arises at all is the result, as we attempt to explain, of deep cultural, moral, and even biological norms that are generally taken for granted, but not generally discussed. Finally the extent to which those norms represent values important to America and Americans-and the extent to which sexually explicit material offends those values-is a matter we believe deserving of substantial consideration by scholars, legislators, and the general public.

The Material in Question
That the debate over "pornography" has traditionally been carried on with only limited reference to questions of privacy is hardly surprising. Not until the last fifteen years-that is, after the 1970 Commission Report-did substantial quantities of material appear on the general market which depict full, highly provocative genital nudity and actual (rather than simulated) sexual intercourse. Many of the great "obscenity" debates of this century-on, for example, Lady Chatterly's Lover and Tropic of Cancer-in fact centered solely on the printed word.

Simulated activity, drawings of sexual conduct, and the printed word may cause concern on other grounds but they are largely tangential to discussion of sexual privacy. It is true, as Warren and Brandeis so eloquently explained almost a century ago, that grave damage may be done when "to satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers."^[3] Nevertheless it is also true that the process of such "broadcast" is a largely indirect one: for damage to occur the writer must be regarded as credible and the reader must exercise his imagination. Photographic representations as we explained in discussing the role of performers in modern commercial pornography, can show actual sexual relations in such a way that those who are shown cannot deny what happened, and those who view the depictions cannot avoid the full force of the images presented.

We thus limit our discussion of "pornography" in this section to that specific form of it which seems to have most urgent and clear-cut effects on sexual privacy-that is, photographic (or live) portrayals of actual sexual intercourse or of full genital nudity designed solely to excite sexual arousal.^[4] The direct,
Anthropological Perspective.
While acutely aware of the limitations of anthropological evidence for arguing "what ought to be" for modern industrial society, we think it at lease worth noting two propositions which are widely accepted by anthropologists and which seem of real importance for our inquiry: (1) public display of genitalia is extremely rare among human cultures; and (2) sexual intercourse universally occurs under conditions of privacy. Both have relevance as indicating basic taboos which are more often explained in moral or religious terms.
1. Genital Nudity.
  In their still standard overview of 191 human cultures, Ford and Beach found that, "There are no peoples in our sample who generally allow women to expose their genitals under any but the most restricted of circumstances."^[5]
  
  In those few societies where women occasionally expose their genitals-e.g., the Lesu, Dahomeans and Kurtatchi-it is a deliberate gesture to invite sexual advanced^[6] Conversely the social controls imposed by primitive, semi-primitive and advanced cultures appear to be founded in "the prevention of accidental exposure under conditions that might provoke sexual advances by men."^[7] A number of societies, however, place no restrictions on display of male genitals, and in a few nudity in both sexes is accepted.^[8] Even in those few which allow such nudity-e.g., the Australian aborigines-strict rules forbid staring at genitals.^[9] It is therefore possible to say, in the words of one anthropologist, that "some form of sexual modesty is observed in all societies."^[10] That modesty distinguishes humans from all other primates.^[11]
2. Sexual Intercourse
  If the privacy of genitalia is the subject of limited variation among cultures, the privacy of sexual intercourse is not. Every human culture is characterized by an insistence on seclusion for sexual union, although physical conditions may make absolute privacy difficult to achieve.^[12] Thus when more than one family shares a dwelling, couples will generally copulate in a secluded place outdoors.^[13] Children are strictly admonished to ignore their parents' sexual behavior where it is possible they might see it.^[14] Among humans, according to one scholar, "sexual privacy, like the incest taboos, is virtually pancultural"^[15] Only chimpanzees among all animals have the same absolute regime of sexual privacy-a fact suggesting that this impulse is biological in nature.^[16]
  
  Margaret Mead's famous study of Samoan culture-widely regarded as a plea for more sexual openness-provides powerful evidence for the extraordinary impulse toward sexual privacy even in a society with sexual practices far different than our own. There she found married couples sharing large rooms, but careful to preserve some sense of privacy even within the house by means of "purely formal walls" of mosquito netting.^[17] Outside the house the urge to privacy is extraordinary, as she discussed in describing the sexual knowledge of Samoan children:
  
  In matters of sex the ten-year-olds are equally sophisticated, although they witness sex activities only surreptitiously, since all expressions of affection are rigorously barred in public.... The only sort of demonstration which ever occurs in public is of the horseplay variety between young people whose affections are not really involved. This romping is particularly prevalent in groups of women, often taking the form of playfully snatching at the sex organs.^[18]
  
  Even in a culture she found to be so free of "stress and strain,"^[19] the pancultural norms of sexual privacy were strictly observed.
Western and American Traditions.
Margaret Mead's disdain for the "Puritanical self-accusations" which characterize Western attitudes toward sexual freedom did not extend to the insistence of our culture on the private nature of sexual conduct. And indeed, any such disdain would be impossible for an anthropologist, for sexual privacy is at the very heart of our own culture-assumed in every major strand of Western thought, and incorporated now in American common and constitutional law. So clear, indeed, is the strength of the traditional belief in sexual privacy, that we view only a brief discussion as necessary. The historical pedigree of that belief is traceable at least to the customs of the ancient world. One historian has found that for ancient Jews nudity was "barbaric and indecent," and that "in Biblical times, it seems, the Hebrews did not come in contact with tribes that were not sensitive to the shame of nakedness"^[20] In the ancient Hellenic world "nakedness was a vulgarity" that was publicly permitted only in such specialized settings as the gymnasium.^[21] Indeed, Plato went so far as to urge shame and complete secrecy in all matters related to sexual liaisons.^[22] And even the most graphic Greek paintings of sexual conduct used "formula" faces that were not meant to reproduce the features of specific persons.^[23] Exposing the naked body of another person, in the ancient world, was a means of humiliation reserved for slaves and war captives.^[24]

Developments in Western culture from its Judaic and Hellenic roots until only very recently were all in the direction of strengthening the already strict taboos of sexual privacy. Subsequent Western attitudes toward the subject were perhaps best summarized by St. Augustine, himself no stranger to sexual excess, even before the fall of Rome:

And rather will a man endure a crowd of witnesses when he is unjustly venting his anger on someone than the eye of one man when he innocently copulates with his wife.^[25]

Social conditions-in particular, housing consisting of one room for an entire family-even through the early modern and industrial periods of Western history made it difficult to maintain absolute sexual privacy in the home, particularly in the presence of family members.^[26] But the first impulse of every class as it obtained the power to do so has been to obtain more personal privacy, particularly in respect to sexual matters.^[27] By the beginning of this century sexual privacy had assumed so important a role in Western thought that Freud could suggest, with some force, that the awakening of sexual modesty was a crucial event in the founding of human civilization itself.^[28]

Whatever its relation to civilization generally, privacy in sexual matters has long been a deeply ingrained part of American culture. From the often strict religious repression of the colonial period^[29] through the more freewheeling nineteenth century,^[30] sexual modesty was highly esteemed. Mark Twain and Henry James would have disputed the value of almost every social restriction of late Victorian society; on the need for sexual reticence, however, they stood shoulder to shoulder.^[31]
Sexual Privacy in Modern America
The gap between our novelists and the author of Portrait of a Lady is indeed a great one, and it is clear that our more liberal notions of sexual reticence form a substantial part of the difference. Yet before simply conceding that privacy in sexual conduct has been relegated to a minor role in modern American life, it would be well to consider two important facts. First, for all their changing mores, Americans still appear to assert strongly their need for privacy in matters sexual. Second, American law in this century has recognized that need ever more forcefully. The combination of these facts, along with evidence from anthropology and history, forms for us the basis on which the "harms" and "benefits" of pornography may, in this area, be assessed.
1. Attitudes and Practice.
  In launching their seminal investigation of American sexuality Alfred Kinsey and his colleagues had this to say about their subjects' need for privacy:
  
  Our laws and customs are so far removed from the actual behavior of the human animal that there are few persons who can afford to let their full histories be known to the courts or even to their neighbors and their best friends: and persons who are expected to disclose their sex histories must be assured that the record will never become known in connection with them as individuals.^[32]
  
  In the nearly four decades that have followed, many of Kinsey's hopes for greater sexual tolerance have been realized, but the acute need for sexual privacy has remained. One of the best indicators of that need has been in fact a wrenching problem for researchers attempting to conduct scientific study of pornography: the extraordinarily low volunteer rate for such experiments. In one careful study specifically designed to measure differences between volunteers and nonvolunteers in a sex-film experiment, less than one third of the males and only one in seven of the females agreed to participate if they would be required to be "partially undressed [from the waist down]."^[33]
  
  Indeed, no more than half of another group agreed to participate even when told only that they would be watching "erotic movies depicting explicit sexual scenes," with no references to undressing and with assurances that they would be wholly unobserved and that all data would be completely confidential.^[34]
  
  Two interesting pieces of evidence from Canada, for which no comparable data for the United States exist, offer a parallel to these laboratory observations. The Badgley Committee surveyed 229 juvenile prostitutes and found that almost 60 percent of both males and females had been asked at least once by clients to be the subjects of sexually explicit depictions. Yet among those requested-teenagers desperate for money who regularly sold their sexual favors to strangers-less than a third agreed to be photographed.^[35] Of equal significance, the Fraser Committee conducted a national survey to determine the attitudes of Canadians toward pornography, and found that while 66 percent of their sample declared private viewing of sexually explicit material to be acceptable, only 32 percent could approve of the production of such material, even if no one is "hurt" in the process.^[36] Apparently pornography previously produced with someone else's son or daughter is tolerable to Canadians; material which might be produced with one's own child is not.
  
  In reaching our conclusion that current American mores continue tightly to embrace sexual privacy, we note that American psychiatrists adhere to their longstanding view that exhibitionism and voyeurism are clear and saddening personality disorders. One overview of their effects finds that they:
  
  are accompanied by an inconspicuous but real alteration in character, with chronic; anxiety beyond the immediate fear of being caught, guilt, fear of losing one's mind, shame, and, usually, inhibition of normal sexual responses. Relief after arrest is common.^[37]
  
  Pornography aside, healthy Americans simply do not attempt to peek into other people's bedrooms, and have no interest in showing off their sexual organs to strangers. The "chronic anxiety" attending exhibitionism and voyeurism is thus a reflection of our society's deeply shared commitment to preserving the privacy of sex.
2. The Law
  That commitment has firm, if only recently developed, expression in American law. After the Warren and Brandeis article of 1890^[38]-which was provoked by the outrage of a Boston matriarch over the smarmy treatment by the newspapers of her daughter's wedding^[39]-the right of Americans to be free from publicity about the graphic details of their sex lives became enshrined as a fundamental principle of the common law.^[40] As we discussed in our review of the use of performers in pornography, the courts have recently recognized that this principle may be applied to protect those who are photographed while nude or engaged in sexual relations.^[41] The Supreme Court, in New York v. Ferber, seemed recently to imply that the "privacy interests" of those depicted in pornography may have, as well, constitutional weight even on the strongly-tipped scales of First Amendment analysis.^[42] The special importance of sexual relations has for more than two decades been crucial to the development by the Court of the whole concept of a constitutional "right of privacy."^[43]
Pornography and the Harm to Privacy
Simply stating what is does not resolve what ought to be. Finding that sexual privacy is pancultural, that it has been a stable feature of western civilization for as long as we have knowledge, and that it currently remains highly valued by Americans in their attitudes, practices and laws, does not ineluctably require a finding that the taboo of sexual privacy ought to continue to be held in such high esteem. But we think that these findings, while not constituting a form of "proof" themselves, are nevertheless crucial in assessing where the burden of proof ought to rest. in all fairness, we believe, it should rest on those seeking to sweep away the taboo.^[44] Does current, photographic pornography offend that taboo? And if so, what is the harm? The answer to the first question is obvious to anyone who views the wholly graphic, undiluted sexual exhibitionism inherent even to "consenting pornography." Nothing is left for the viewer to imagine; no attempt is made to conceal either the face or the genitals of the performers. The consumer of "standard" pornography in the 1980's, unlike the consumers of the materials generally available at the time of the 1970 Commission Report, is a full witness to the most intimate, the most private activity of another human being.

That this is a "harm" we think undisputable, on several grounds. First, those who "perform" in current pornography are, as a group, extremely young, ignorant, confused and exploited; as we have discussed in our examination of their situations, they very frequently cannot be said to have given an informed consent to their use. Second, even when such consent exists, such performances, where they are given in exchange for money, are inseparable from prostitution, and degrade the performers in exactly the same ways as prostitutes are injured by their profession. Neither of these concerns applies, by contrast, to the making of noncommercial, sexually explicit films for use in education or sex therapy-arenas where the reputations of performers are unlikely to be damaged.

Quite apart from injury to performers, though, we believe that injury occurs to society as a whole from such performances, injury that may best be described as the blurring of legitimate boundaries for public dialogue on sexuality. Where no reticence is allowed, where only the act of sex is regarded as an authentic statement about its meaning, most citizens can be expected to withdraw, rather than enter the discussion. Reducing the general sense that some aspects of every person's sexual life are so unique as to deserve special deference means, we think, that many will all the more militantly seek to shut out any dialogue on sexuality altogether. The virulent, devastating divisiveness over sex education in the public schools is, we think, a symptom of the fears that can arise from this destruction of the sense of boundaries.

Now against all of this, what proof is offered that the taboo of sexual privacy should be dismissed with regard to filmed pornography?

Some argue, convincingly enough, that such pornography expresses an idea, if no more elaborate an idea than an attack on sexual privacy itself. Yet that is hardly an argument against the "harm" we have discussed, for ideas can be as harmful as, indeed more harmful than a wide variety of more concrete afflictions. Others contend that the extreme reticence on sexual matters practiced by our society in the past was repressive of and injurious to healthy sexuality. That is also, so far as it goes, true enough. But do we need to pay other people to copulate for us on film in order to discuss sexuality freely?

Surely the case for that need has not been made with even minimal rigor. And even if it had been made, we remain convinced, as we said above, that as many of us are silenced in the resulting dialogue as are given voice. Indeed, after a year of witnessing the grotesque sexism of commercial pornography, we now have begun to understand what Catherine MacKinnon, Andrea Dworkin, and others meant when they told us that pornography "silences" women.

Photographic pornography silences and it also degrades.^[45] With the exception of noncommercial material produced for educational or therapeutic purposes, it exploits some human beings in violation of some of mankind's deepest instincts about the privacy of sexual conduct. The "right of the Nation and of the States to maintain a decent society,"^[46] recognized in dissent by Chief Justice Warren and by a majority of the Supreme Court since 1973,^[47] largely means only this: some aspects of American life, and of American sexual behavior, deserve special protection from intrusion, public display, and commercial mass marketing. Mr. Shaw-and the sex industry-to the contrary notwithstanding, Americans do know the value of privacy. And it is a value that commercial pornography deeply offends.

Notes
1. Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
2. Thus not only "mere" nudity, but any form of nudity which is used for purposes-artistic, scientific, political, or educational-other than simple sexual provocation are outside the scope of our analysis. We do not deny that privacy concerns may be implicated even in these displays, see, New York v, Ferber, 458 U.S., pp. 747, 774-75 (O'Connor, J., concurring), but we do not believe the evidence suggests they represent nearly as substantial, a threat to sexual privacy as the material we include unmediated public display of human beings in graphic sexual conduct is a new phenomenon in the history of culture, and it represents, in our view, a development harmful to both individuals and society at large.
3. C. Ford and F. Beach, Patterns of Sexual Behavior, p. 94 (1952), p. 945; W. Davenport, Sex in Cross Cultural Perspective in Human Sexuality in Form Perspective, pp. 115, 127-129 (F. Beach, ed. 1976).
4. Ford and Beach, pp. 93-94.
5. Id. p. 94.
6. Id. p. 95.
7. Davenport, supra note 1, p. 128.
8. Id. See also A. Kinsey, et al., Sexual Behavior in the Human Female, (1953), pp. 283-285 (finding anthropological data showing acceptance of nudity only of children before adolescence).
9. Ford and Beach, supra note 1, pp. 95, 105.
10. Davenport, supra note 1, p. 148; Ford and Beach, supra note 1, pp. 68-71. Ford and Beach do list two partial exceptions to this rule-"some Formosan natives" who in the summertime "copulate out of doors and in public, provided there are no children around," and "Yapese couples" who, "though generally alone when they engage in intercourse, copulate almost anywhere out of doors and do not appear to mind the presence of other individuals:" Id. at 68. Neither of these exceptions, on close inspection, applies to more than "some" members of what amounts to 1 percent of Ford and Beach's sample of 191 cultures.
11. Davenport, p. 150. Ford and Beach pp. 69-71.
12. Davenport, pp. 149-150.
13. G. Jensen, Human Sexual Behavior in Primate Perspective in Contemporary Sexual Behavior: Critical Issues in the 1970's, (1973), pp. 17, 22. Accord, D. Symms, The Evolution of Human Sexuality 67 (1979).
14. Jensen, supra note 12, p. 67; Symms, supra note 12, p. 67, n. 4.
15. Coming of Age in Samoa, p. 135 (1928, 1961 ed.).
16. Id. pp. 134-35.
17. Id. pp. 234.
18. L.M. Epstein, Sex Laws and Customs in Judaism, (1948), pp. 26-27 (emphasis added).
19. Id., p. 27. Romans did allow men and women to bathe together in the nude, id., p. 29.
20. Plato Laws, p. 841 a-e.
21. A. J. Dover, Greek Homosexuality (1978), p. 71.
22. Epstein, supra note 19, at 31. "The male slave and the female slave had no sex personalities in the eyes of the ancients. They were considered as having no shame and incapable of causing the sense of shame in others." Id., p. 29.
23. City of God, Book XIV, p. 468 (M. Dods trans. 1950). See J. Boswell, Christianity, Social Tolerance and Homosexuality, p. 188 (1980) (discussing monastic proscriptions against nudity); Jewish traditions proscribing nudity continues well into this century. Epstein, supra note 19, pp. 29-37 (noting reluctance even in twentieth century to approve modern bathing suits for women).
24. P. Aries, Centuries of Childhood, p. 106 (1962) (children in ancient regime believed to be wholly "unaware of or indifferent to sex"; "gestures and physical contacts ... freely and publicly allowed [to children] ... were forbidden as soon as the child reached the age of puberty").
25. Stone, supra note 25, p. 253-257.
26. Civilization and Its Discontents, (J. Strachey ed 1961), p. 46 n 1. .
27. For a full discussion of the "essential" quality of sexual privacy in the colonial period, see D. Flaherty, Privacy in Colonial New England, (1972) p. 79-84. See also F. Henriques, Prostitution in Europe and the Americas, (1965) pp. 230-45 .
28. See generally, Note: The Right to Privacy in Nineteenth Century America 94 Narv. L. Rev. 1892 (1981). The great exception to the America's Victorian sense of sexual shame was the cavalier treatment of slaves' privacy in the Old South. F. Henriques, supra note 27, pp. 245-63. That exception is in line with long established notions about the unimportance of sexual privacy for slaves. See, supra note 22.
29. Compare, for example, the treatment of sexual tension in Tom Sawyer with that of Washington Square. See also, The Secret Life I and The Secret Life II in S. Marcus, The Other Victorians (1964) (describing as "unique" a memoir describing in detail the sex life of a Victorian gentleman).
30. Sexual Behavior in the Human Male, (1948), p. 44.
31. Wolchik, Braver & Jensen (1985). See also, Wolchik, Spencer & Lisi (1983).
32. 32. Wolchik, Braver & Jensen (1985).
33. Badgley Report p. 104.
34. Fraser Report p. 104.
35. A Stanton Personality Disorders in The Harvard Guide to Modern Psychiatry, (1980), 283, 292 . See Riley, Exhibitionism: A Psycho-Legal Perspective, 16 San Diego L. Rev., (1979), 853, 854-57.
36. See, supra note 1.
37. Prosser, Privacy, p. 48 Cal. L. Rev. 383 (1960).
38. See, Restatement (Second) of Torts 652D, Comment I. (1977); Wood v. Hustler Magazine. Inc., 736 F. 2d 1084 (1984), cert. denied 105 S. Ct. 783; Melvin v. Reid 112 Cal. App. 285, 297 91 (Dist. Ct. App. 1931).
39. See, Use of Performers in Commercial Pornography, supra, in Part Four.
40. 458 U.S. 759 a. 10; See also, Bell v. Wolfish 441 U. S. 520, 558-60 (1979) (recognizing "privacy interests" of prisoners implicated by strip searches).
41. See especially Griswold v. Connecticut, 381 U.S. 479 (1965). See also, Carey v. Population Services Int'I, 431 U.S. 678 (1977); Roe v. Wade, 410 U.S. 113 (1973).
42. Likewise we believe that the critics of sexual taboos regarding incest or child molestation, see e.g., I. Constantini, The Sexual Rights of Children: Implications of a Radical Perspective, in Children and Sex 4, (1981), p. 255, must bear a similar burden of proof in arguing their cause.
43. Compare, Williams Report 138 (live sex shows considered "especially degrading to audience and performers because of their "being in the same space" during performance of intercourse; no account taken of the fact that photographic pornography can only be made if cameraman or photographer is "in the same space" as the performers), criticized in Dworkin, Is There a Right to Pornography? 3 Oxford J. Legal Stud., (1981), 177, 180-183.
44. Jacobellis v. Ohio, 378 U.S., pp. 184, 199 (1964).
45. Paris Adult Theater I v. Slaton, 413 U.S., (1973), pp. 49, 59-60, (quoting Warren).

Nonviolent, Sexually Explicit Material and Sexual Violence

Submitted by: Father Bruce Ritter

Background
1. Problem of Definitions
2. Evidence and Standard of Proof
The Evidence
1. Changes in Rape Rates
2. Correlational Evidence
  1. Danish and Other Cross-Cultural Data
  2. Sex-Magazine Circulation
  3. Sex Offenders and Pornography
  4. Conclusions from Correlational Evidence
3. Experimental and Clinical Evidence
  1. Arousal
  2. Effects on Attitudes Toward Rape- "Disinhibition"
  3. Overall Evidence for "Causation"
4. Evidence Against Causation
Conclusion

Background

The alleged relationship of sexually explicit material and sexual violence has long been a subject of acrimonious but compelling debate. The "Effects Panel" of the 1970 Commission, often accused of denying such a link, instead stated a relatively moderate view of what was then an almost entirely new area of inquiry: "On the basis of the available data . . . it is not possible to conclude that erotic material is a significant cause of sex crime."^[1] Recognizing the impossibility of ever proving "conclusively" the existence of such a casual connection, the 1970 Commission nevertheless determined that the evidence did not, at the time, suggest a "substantial basis" for such a proposition.^[2]

The findings of our predecessors, though beleaguered in this area by extensive professional criticism,^[3] are entitled to significant deference, especially because the 1970 Commission took pains to explain the basis of its conclusions. Rape, however, is among the most violent and damaging of crimes: not only inflicting deep injury on its victims, but also standing as a powerful obstacle to the fight for sexual equality in a democratic society. It is, further, an evil which has increased at shocking rates over the last fifteen years. We thus have the grave, and undeniably unpleasant, duty to examine again the possibility that consumption of sexually explicit materials and some rapes are causally linked-and to report, on the basis of the evidence available now, whether a "substantial basis" exists for believing in such a link.

We have with little trouble concluded that circulation of materials which themselves portray graphic sexual violence is a probable "cause" of rape-at least in the sense of being one factor among many (and not necessarily the most important) which increases the likelihood of rape. With regard to sexually explicit materials which do not include depictions of violence our task is more difficult because so many of our witnesses, so many professionals, and so many of our fellow citizens disagree vehemently on the issue. Tempting as it is simply to wash our hands of the question by noting the existence of the dispute and refusing to "take sides" in it, we cannot avoid sifting through the evidence and attempting to come to our own conclusions on the matter. Even if we cannot ultimately agree on the purport of each piece of evidence, or the meaning of all the data collectively, our views should be fully, and publicly explained.
1. Problem of Definitions
  One serious obstacle to such explanations, unfortunately, arises immediately in the guise of defining the material under examination. For purposes of general discussion about the possible "harms" of sexually explicit material we have found it useful to divide that material into three somewhat imprecise, but nonetheless useful categories: that which is (1) violent; (2) "degrading" but not violent; and (3) neither violent nor "degrading". Unhappily our scheme was not anticipated in advance by researchers and, though a useful blueprint for future scientific inquiry, has not formed the basis for research conducted in the past. The only distinction adhered to with some consistency in the past research has been that between those materials which depict violence and those which do not. Obviously that distinction is a crude one given the wide range of nonviolent "pornographic" materials, yet it may in some sense correspond with popular perception: thus public opinion seems strongly opposed to free circulation of materials "that depict sexual violence," but sharply divided over the fate of materials that "show adults having sexual relations," with no further explanation of whether the materials in question are "degrading" or not.^[4]
  
  For purposes of examining the evidence regarding sexually explicit materials and sexual violence, then, it seems useful to begin, at least, without clearcut distinctions based on the "degrading" character of particular items. Rather, the case for linking nonviolent materials and rape should be examined on its own terms-that is, on the basis of definitions contained in the relevant research-with attention, ultimately, to those pieces of evidence which bear on the question of distinctions among various categories of nonviolent materials. Until we sort through the evidence on this issue we cannot, after all, be certain that boundaries useful for distinguishing among materials on observable attitudinal effects are equally valuable with regard to behavioral impacts.
2. Evidence and Standard of Proof
  The assumption that consumption of sexually explicit material "causes" sexual violence is one that some 73 percent of Americans would accept as true,^[5] but it is unclear what evidence they would point to as crucial to their judgment. From our standpoint some forms of evidence are clearly more persuasive than others, but no one is useless and nondispositive. Evidence from the social sciences-correlational, clinical and experimental-seems by a wide margin the most important tool of analysis in this area, in part, paradoxically, because its limitations are most apparent. The results of individual experiments or studies can be rigorously challenged on terms universally accepted by social scientists, and can be examined as carefully for what they do not "prove" as for what they do. Anecdotal evidence, even that presented by skilled professionals, has an unfortunate tendency to touch on a wide range of questions without furnishing the basis for answering any single one of them.
  
  Particularly on an issue as bitterly fought and important as this one, therefore, reliance primarily on data from the social sciences seems appropriate and quite possibly imperative. That does not mean, however, that we are bound by the standards of "proof" which govern the work of social scientists. Our task after all, is to recommend policy based on existing knowledge in an area that will always be plagued by uncertainty. Because of limitations on the capacity of social science to measure events outside the laboratory, and because of clear ethical boundaries on what research can be conducted in this area even in the laboratory,^[6] it seems wholly unlikely that the extremely high standards for "scientific proof" can ever be satisfied one way or the other on this issue.
  
  The standard more appropriate for our purposes is suggested by the phrase used by the 1970 Commission: is there a "substantial basis" for believing that nonviolent but sexually explicit material is causally linked to sexual violence? If so, what evidence suggests the opposite conclusion-that no such link exists? Finally, which evidence on balance is more persuasive? (This standard was used by us as "the totality of the evidence" in our discussions.) Because rape is so widespread and so dangerous an evil, government action against constitutionally unprotected material might be appropriate if a "substantial basis" for believing in a causal link between such material and sexual violence exists, and might seem imperative if the evidence allows a stronger assessment. Just as government action against cigarette advertising could not await final, irrebuttable "scientific proof" of the causal link between cigarette smoking (let alone cigarette advertising!) and lung cancer, so the government may not be able to await scientific consensus on the pornography/rape connection-even if such consensus were imaginable.
The Evidence

Because direct experimental research on the alleged causal relationship between sexually explicit materials and sexual violence is impossible, or at least unthinkable, we are unhappily left to examine evidence of an indirect nature. That evidence, when it comes from the work of social scientists, tends to take one of two forms: correlational studies and laboratory experiments. The former is a useful launching point for an overview of the issue, because it measures statistical relationships between actual violence and actual consumption of sexual materials. Were no significant relationship found to exist between those two phenomena even on a statistical level, any causal connections between that be extremely difficult to demonstrate through work in the "artificial" setting of a laboratory. Such a setting is useful, however, for exploring possible causal relationships between statistically correlated events; and that is the sense in which experimental evidence is relied on here. Before either correlational or experimental evidence is examined, however, it is crucial to consider first whether sexual violence is a problem which might ever be affected by social change, and whether, in fact, as an aggregate phenomenon it has increased during the period in which sexually explicit materials have been widely available.
1. Changes in Rape Rates
  That first question is easily answered. Rape rates do seem to be related to social change, for they have increased alarmingly during the past 25 years. From 1960 to 1970 the rate of reported forcible rape rose by 95 percent, but that increase seems to have been no more than part of an explosion of violent crime generally, which rose fully 126 percent during the 1960's.' Since the report of the 1970 Commission, however, the rate of reported rape has risen almost twice as fast as violent crime generally;^[8] from 1970 to 1983 the rape rate virtually doubled, while the rate of reported homicides, for example, remained constant.^[9] In 1970 one out of every 20 violent crimes was a forcible rape; by 1983 the proportion had become one out of 16.^[10]
  
  Was this extraordinary rise in rape a "real" occurrence, or merely a product of increased reporting of rape? The possibility that increased sensitivity to rape-fueled by movements for women's equality-led to increases in the willingness of individuals to report rapes is not one that can lightly be dismissed,^[11] for rape is highly underreported crime.^[12] Nevertheless at least three pieces of evidence suggest that the increase of reported rape is not tied to increased willingness-to-report. The National Crime Survey, to begin with, which attempts to gauge actual (as opposed to reported) crime figures through a scientific public survey, showed no significant change in the percent of rapes reported to police from the period 1973-1977 to that of 1978-1982.^[13] Yet between those two periods the average number of estimated actual rapes increased substantially.^[14]
  
  Second, the 1978 survey by Professor Diana Russell found an increase in the "true rape rate" throughout most of this century;^[15] thus historically no serious misrepresentation of trends in this area is found in police data. Finally, correlational data from recent studies of state-by-state rape rates and measurements of the status of women indicate only a small, although significant, relationship between the two.^[16]
  
  Rape appears, therefore, to be a phenomenon subject to fluctuation, and during the period that sexually explicit materials have come into general circulation it has been a phenomenon on the rapid increase. That last fact, however, in no sense "proves" or even substantially "suggests" a relationship between the two events; only detailed correlational analysis can begin to do that.
2. Correlational Evidence
  Our predecessors on the 1970 Commission had no sophisticated "correlational" data before them. Indeed, the only "correlational" data which they considered was of the sort discussed above-general trends in the sex-crime rates measured for time periods in which sexual materials were becoming more available. Unfortunately, for reasons discussed below, that sort of evidence is far too crude to be of significant value, and points, in any case, in no particular direction. Far superior correlational data has in the meantime come to the fore, and it shows that a statistical relationship does appear to exist between consumption of certain types of sexual materials and rape rates. Both types of data invite the most careful attention.
  1. Danish and Other Cross-Cultural Data
    The 1970 Commission was impressed, as was the Williams Committee later, by studies on Denmark conducted by Berl Kutchinsky in which he found that relaxation of Danish pornography laws coincided with a decrease in reported sex crimes. Since that time Kutchinsky's work has been repeatedly criticized, and he himself has been forced to concede that, at least with regard to rape, liberalization of pornography laws was followed ultimately by increases in reports of rape to police.^[7] Further, Kutchinsky's approach fails to be even minimally persuasive for two crucial reasons. First, he does not account in any meaningful way for other social forces which might have affected Danish sex crime rates independently of pornography consumption. He fails to note, for example, that sex crime rates in Denmark might have been artificially high during the 20 years after the German occupation of World War II, a conflict described by one historian of Scandinavia as "shattering physically as well as emotionally."^[18] A drop in sex crimes during the late 1960's and after would thus be the result simply of recovery from social disintegration wrought by war. Second, and substantially related, Kutchinsky fails to consider the case of Norway-a country with a similar culture and a similar war experience-which has maintained far stricter laws against pornography,^[19] and has apparently enjoyed even greater success in combatting sex crimes.^[20] In the end Kutchinsky's analysis seems shallow and almost completely without value for analysis of the American experience and American policy.
    
    A more appealing cross-cultural approach, but one with only marginally greater usefulness for our purposes, is that taken by Dr. John Court (1984). His research has examined the temporal changes in rape rates in a wide variety of countries in periods of greater or lesser legal control of pornography. His conclusion, presented with considerable cogency, is simply that greater legal control of pornography appears to hold down rape rates as well. Yet for all its resourcefulness Court's work fails, like that of Kutchinsky, to place the changes studied in careful historical and cultural perspective: thus Singapore, South Africa, Australia and Hawaii are all compared with little contextual information. An additional, related limitation on the helpfulness of his findings arises from his inability to show, like Kutchinsky, whether actual consumption patterns fit neatly into the patterns of changing legal regulation of sexually explicit materials. Our experience of American enforcement of obscenity laws indicates that such laws are often honored as much in the breach as in the observance.
  2. Sex-Magazine Circulation
    Interesting as the work of Kutchinsky and Court is, we have had the benefit of receiving a body of correlational evidence of far greater power. The research of Baron and Strauss (1984, 1985) supplemented by others, has shown a strong statistical relationship between state-by-state circulation rates for the most widely read "men's magazines" and state-by-state reported-rape rates. That relationship persists even when every other factor theoretically associated with rape is controlled for: indeed, they found that the Sex Magazine Circulation Index has a consistently stronger statistical relationship with rape rates than any other factor tested." Further, in the model developed by Baron and Strauss other variables theoretically expected to be related to rape rates in fact met expectations: those factors (e.g., percent urban, percent poor) together with the Sex Magazine Circulation Index explain 83 percent of state-to-state variation in rape rates.^[22] Two independent studies, by Scott (1985) and Jaffee and Strauss (1986) have not only replicated the Baron and Strauss results for different years, but have cast doubt on potential "third factors" which would make the sex-magazine/rape association spurious. Baron and Strauss offered two such factors as possibilities: (1) a cultural pattern emphasizing "compulsive masculinity"; and (2) the degree of "sexual openness" within states. The first of those suggestions was undercut by Scott's finding that circulation of men's "outdoor magazines" is not associated with state-by-state rape rates. In addition, Baron and Strauss found that controlling for the "index of legitimate violence" and the general violent-crime rate-both seemingly plausible measures of a culture of "compulsive masculinity"-in no way lessened the sex-magazine/rape correlation. Nor did controlling for measures of the status of women-a plausible inverse measure of the degree of "compulsive masculinity" within a given state. Finally, the recent work of Check (1984) and Zillman and Bryant (1984, 1985) indicates that under experimental conditions, massive exposure to mainstream pornography may cause male viewers to become more callous and domineering in their attitudes toward women. Thus pornography may itself be a causal factor in creating a culture of "compulsive masculinity," and even if a correlation could be shown between such a culture and the incidence of rape, the association of the latter with sex-magazine circulation would still not be proved spurious.
    
    As for the other "third factor" suggested-the degree of "sexual openness"-the recent study of Jaffee and Strauss (in press) measured the impact of the Sexual Liberalism Index on the Baron and Strauss formulae. While finding that sexual openness and tolerance is correlated, to a small but significant degree, with increases in reported rape rates, Jaffee and Strauss discovered the inclusion of the new index had no effect at all on the sex-magazine/rape association. While continuing to hold out hope-against all the evidence mentioned in the previous paragraph-that a relationship between "hypermasculine gender roles" and rape rates would render the sex-magazine correlation spurious, they felt compelled to conclude that their research "suggests that there may be more to the pornography-rape linkage than originally expected. That is, the type of material found in mass circulation sex-magazines may, as claimed by critics of such material, encourage or legitimate rape."^[23]
  3. Sex Offenders and Pornography
    Somewhat less suggestive and useful, but nonetheless important, is correlational evidence exploring links between the use of sexually explicit material by sex offenders and their behavior. Dr. Gene Abel's (1985) study, in particular, is directly pertinent to the issues raised by Baron and Strauss: in treatment of 247 outpatient sex offenders (paraphiliacs), well over half admitted to use of adult men's magazines or similar material, and 56 percent of rapists stated that such materials "increased their deviant sexual interests." Comparison of those offenders who use "erotica" and those who do not produced only one statistically significant difference of direct relevance: users of "erotica" maintained their paraphilia far longer than nonusers. Between those whose deviant arousal was increased by "erotica" and those whose deviant arousal was not increased two statistically significant differences emerged: (1) the aroused-by-erotica subjects maintained their paraphilia longer; and (2) they had less "ability to control their behavior." On the whole, Dr. Abel concluded that "erotica ... does not appear to affect significantly the behavior of sex offenders."^[24]
    
    Careful review of Dr. Abel's results and of his oral testimony, however, tends significantly to undercut that assertion. To begin with, the mean number of sex crimes committed by users of erotica was 29 percent higher than the mean for nonusers. Dr. Abel lists the difference as "not significant" but does not supply a "p value"; we thus cannot gauge what the actual probability is that the difference is explained only by chance.^[25] The finding of no significance is particularly puzzling because, according to Dr. Abel's other findings, users of "erotica" commit the same number of sex crimes per month (actually 21 percent more, but once again the difference is listed as "not significant") and maintain their paraphilia for more total months. Mathematically this would seem to compel the conclusion (already suggested by the statistics on "mean number of sex crimes") that by the end of their paraphilia, the group using "erotica" will have committed more total sex crimes than nonusers. That indeed seemed to be the gist of his oral testimony, where he explained the "price" paid by sex offenders who use "erotica" to reduce their desire to commit sex crimes:
    
    ...when you use the deviant fantasy in order to ejaculate, instead of attacking a kid or raping someone, it does transiently stop you from carrying out that behavior. In many cases, that is the case, but it's a transient phenomena. And in so using that tactic, the price you pay is maintenance of your arousal. That is your arousal stays strong and will get a little stronger. So over time you are more likely to maintain your arousal over a longer period of time, that means you can commit more acts.^[26]
    
    In view of these internal tensions, Dr. Abel's results are extremely difficult to use in their present form.^[27] They seem clearly to indicate, and Dr. Abel said as much, that use of "erotica" by sex offenders (outside a treatment setting) is not "helpful."^[28] On the other hand they do not seem to rule out, Dr. Abel's protests to the contrary notwithstanding, the possibility of some important statistical relationship between use of sexually explicit materials and commission of sex crimes by this population.
    
    The possibility of such a relationship is clearly enhanced by several other relevant studies. Thus Dr. William Marshall (1985) found in an outpatient study that a far higher percentage of sex offenders currently use "hard-core" pornography than do a group of demographically similar "normals." Professor Diana Russell found high correlation in her study of 930 randomly selected adult women: a surprisingly high number of women victimized by wife rape and stranger rape who said pornography had played a substantial role in the event. A similar survey of 200 prostitutes by Silbert and Pines (1982) found that 24 percent of the large number who had been raped "mentioned allusions to pornographic material on the part of the rapist"-this without any questioning or prompting by the interviewer. Law enforcement witnesses we have heard have also consistently stated that pornographic materials are routinely found on the person of, or in the residence of arrested rapists. While all of this is, like Dr. Abel's evidence, "merely" correlational data, it suggests reason for further inquiry and research on the use of sexually explicit nonviolent materials by sex offenders.
  4. Conclusions from Correlational Evidence
    An overview of "correlational" evidence available to us ultimately leads to only one firm conclusion. A highly significant, and not obviously spurious statistical relationship exists in the United States between state "adult magazine" circulation rates and sexual violence. That relationship may be explained by a causal connection or it may not; only careful attention to other forms of evidence can indicate which explanation is more plausible. Because "adult" magazines contain relatively little violence,^[29] their connection (if one exists) to rape rates makes an excellent "test case" for considering the possible effects of the broader class of nonviolent but sexually explicit materials.
    
    No clear statistical relationships exist, on the other hand, between cross-cultural measures of rape and sexually explicit materials, although such measures if anything tend slightly to support some relationship between the two. Nor is there undisputed evidence regarding the correlation of "erotica" use by sex offenders and commission of sex crimes; it is at least strongly arguable, however, that such a relationship exists. Other sources of information may prove more informative in evaluating these ambiguities.
3. Experimental and Clinical Evidence
  A "casual" connection between circulation of adult material and sexual violence may only be inferred if one or more plausible explanations exist for how such "causation" could exist. Experimental evidence is particularly important in testing the likelihood of such causal links; as noted above, however, ethical and practical constraints insure that such evidence will always be open to charges of artificiality and obliqueness.^[30] Simply put, actual rapes cannot be staged in the laboratory, nor can known rapists be subjected to testing which might provoke future violence. Retrospective "clinical" evidence, although it does generally relate to "real" rapes by "real" offenders, has the even more crippling handicap of relying on faulty, and self-serving, memory. Yet experimental and clinical evidence remain in this area the most effective tools for testing the "validity" of correlational data.
  
  Searching the evidence for suggestions of a "cause-and-effect" pornography/rape connection inevitably leads down two different paths. The first observes the capacity of pornography to effect arousal in the viewer, and examines whether such arousal can be causally linked to sexual violence. The second, somewhat more indirect approach examines the effects of pornography consumption on viewer's attitudes, then considers whether such changes in attitudes could plausibly affect the incidence of rape.
  1. Arousal
    One of the few undisputed properties of sexually explicit materials is their capacity to cause sexual arousal in many, if not most viewers.^[31] One strand of experimental research has attempted to determine whether this arousal, alone or in combination with other factors, increases or decreases aggressive behavior in laboratory settings.
    1. "Normals"
      With regard to "normal" subjects (usually college-age male volunteers), the results have been mixed, or at least highly complex. Thus highly arousing erotic materials, when combined with prior or subsequent anger, seem clearly to provoke heightened aggression by males against males.^[32] But in a recent review of the research Professor Donnerstein made the following, more limited, statement about the effects of exposure to nonviolent pornography on male aggression toward women:
      
      ... The question of whether or not nonaggressive pornography has an influence on aggression against women is not simple to answer. For one thing, there is not that much experimental research on the topic. Also, studies investigating this issue have differed in many ways.... These studies indicate that under certain conditions exposure to pornography can increase subsequent aggression against women. What seems to be required, however, is a lowering of aggressive inhibitions. This change in aggressive predisposition can come about in a number of ways. First, a higher level of anger, or frustration, than that exhibited in a laboratory setting could influence the effects of pornography on aggression against women. There is no question that such levels are present in the real world. Second, as mentioned earlier, drugs, alcohol, and other aggression disinhibitors very likely increase aggressive response to pornography. The main mediating factor, however appears to be the type of material viewed prior to an aggressive opportunity.^[33]
      
      While experimental findings are neither conclusive nor absolutely consistent, the bulk of research to date supports the conclusion: that where highly arousing nonviolent pornography is viewed in a context of anger or provocation, aggressive behavior against women increases. Outside the context of provocation, in Professor Donnerstein's view, nonviolent material which is "either mildly arousing or leads to a positive affective reaction" does not appear to increase subsequent aggressive behavior, while that which depicts "unequal power relationships with women" or "women as sexual objects" may provoke such behavior. As part of his belief that the issue warrants "much more investigation" he notes that the effects of nonaggressive pornography may not occur with only a single exposure,^[34] which would explain varying results in experiments based on single exposure. Growing habituation to standard "pornography" over the years among likely experimental subjects may substantially affect the results of research.^[35]
    2. Sex Offenders
      Along slightly different lines, a certain amount of experimental and clinical evidence suggests that rapists are aroused by nonviolent, sexually explicit materials, and that some consciously use such materials to prepare for and execute sexual violence. Thus rapists are normally as strongly aroused to consensual nonviolent pornography as nonrapists; they are, moreover, at least as aroused to images of mutually consenting sex as they are to those of rape.^[36] Does this arousal to mutually-consenting imagery cause some of them to commit sex crimes which they might otherwise avoid? Evidence from at least Dr. William Marshall suggests that the answer may be yes: 33 percent of rapists interviewed for his study "had at least occasionally been incited to commit an offense by exposure to one or the other type of pornography specified in this study."^[37] Of that group 75 percent reported that they had at least occasionally used 'consenting' pornography to elicit rape fantasies which in turn led to the commission of a rape (or an attempt at commiting a rape)."^[38] A large number of other rapists in his sample used "consenting pornography" to "evoke rape fantasies" and consequent arousal. Indeed, fully 52 percent of the rapists in his sample (as compared to none of the "normals") used pornography "always" or "usually" during masturbation.^[39]
      
      Dr. Abel, while stating the belief that direct incitement to rape can be traced to sexually explicit depictions only in "exceedingly rare" cases, also found that a very high proportion of rapists use consenting "erotica" to elicit and maintain deviant arousal. Recent research has shown a high correlation between sexually deviant fantasies and deviant behavior,^[40] and many treatment programs for rapists have been predicated on altering their deviant behavior through changing their fantasies and arousal patterns.^[41] Dr. Abel and his colleagues at one point called for recognition of "fantasy as the pivotal process leading to deviant behavior."^[42] To the extent that nonviolent, "consensual" pornography contributes to provoke or maintain deviant fantasy and arousal in rapists, it may be considered a "cause" of their deviant behavior.
    3. General Population
      Turning back to the general population-that is, both sex offenders and "normals"-it is important to note two significant theories concerning sexually aggressive behavior which are predicated on the biological forces of simple arousal. The first, called the "general emotional arousal theory," is described in one study as predicting that "by arousing either the sexual or aggressive drives in an individual, the overall general level of arousal would be increased, thereby making both sexual and aggressive responses more probable"^[43] The second theory, which is more subtle and more flattering to the human will, adds an additional cognitive layer to the general-arousal theory:
      
      While evolutionary forces may have provided a biological basis for a link between sex and aggression, it is our contention that learning variables may accentuate or attenuate this relationship. We hypothesize that in human beings the biological link plays a relatively minor role and that to a large extent the relationship between sexual arousal and aggression is mediated by learned inhibitory and disinhibitory cues.^[44]
      
      Both theories associate arousal with aggression; the second merely adds the additional mediating factor of "learned inhibitory and disinhibitory cues." If this association is ultimately found valid, then a "casual" connection between circulation of highly arousing sexually explicit materials and the incidence of rape would be both clear and easy to explain: more sexual arousal in society (as a consequence of pornography) inevitably produces more sexual and more aggressive behavior, both of helpful and harmful varieties. If viewing sexually explicit materials cause Americans to have more sex, then some of that incremental sexual behavior will be of a sexually aggressive nature. The "rate" of rape as a percentage of all sexual intercourse will not change,^[45] but the absolute number of rapes, and the number of people victimized by rape, will increase.^[46]
      
      The ability of sexually explicit materials to arouse those who view them may, therefore, be in itself a "cause" of sexually aggressive behavior-perhaps simply for rapists, or perhaps in a more general way. This evidence does not distinguish sexual material as being more culpable than, say, alcohol as a causal factor in rape-but it does suggest that the more highly arousing the material is, the greater will be its ultimate effect. Thus highly explicit sexual material will likely have more of an impact than material which is less sexually arousing. The evidence does not indicate, moreover, that "learned" cultural mores and social attitudes have no effect on preventing rape; rather, those factors may play a significant role in mediating the negative biological forces that push men toward rape.
  2. Effects on Attitudes Toward Rape - "Disinhibition"
    If arousal to rape is mediated by learned attitudes, however, a change in those attitudes may in itself change the likelihood of rape occurring-may become a "cause" of sexual violence.^[47]
    
    Thus it is crucial to consider what the available experimental evidence shows about the effects of viewing nonviolent sexually explicit materials on attitudes toward women and toward rape. Although Professor Neil Malamuth and others have examined in some depth that question with regard to sexually violent materials, only very recently has substantial evidence emerged about materials which are similar to much of what is contained in the "adult magazines" examined by Baron and Strauss.
    
    Despite some surface tension in the results, that evidence strongly suggests that such materials, when viewed in substantial quantities over extended periods of time, tend to increase callousness toward women and acceptance of "rape myths". Thus six hours of viewing "commonly available (nonviolent)pornography" over a six-week period caused men in several experiments to become more accepting of "gender dominance"^[48] and "sex callousness"-to trivialize rape, and to discount the trauma suffered by its victims.^[49] The careful and extensive study by Professor James Check found repeated exposure to the "most prevalent" form of nonviolent pornography currently available-that depicting the women subjects in a "dehumanized fashion"-had even stronger effects on subjects' "reported likelihood of rape" and "reported likelihood of forced sex acts," than sexually violent materials.^[50] Both types of material had particularly profound effects, it is important to note, on those subjects with higher tendencies toward psychoticism.^[51] Exposure to "nonviolent erotica"-described as being the type of depiction used in sex education and therapy materials-was found to have at best an ambivalent effect: likelihood-to-rape scores increased among those viewers to a level where they were not significantly different from either those in the "no exposure" or the "dehumanizing pornography" groups.^[52]
    
    Only one study currently extant seems to cast doubt on the tendency of viewing nonviolent pornography to increase "rape myth acceptance:" In a recent doctoral dissertation Daniel Linz found that exposure of university psychology students to either two or five full-length X-rated nonviolent films over, respectively, a three- or ten-day period did not affect their attitudes toward a rapist or his victim in a simulated rape trial shown two days after exposure was completed.^[53] Such attitudes were dramatically affected, by contrast, in a comparison group observing four extremely violent R-rated films with far less sexual content. Unfortunately, Linz' study is not directly comparable with previous ones in this area. First, Linz limited the time frame of exposure to less than two weeks.^[54] Second, his study did not measure the subjects' scores on "likelihood-to-rape" or "likelihood-of-forced-sex-acts" scales similar to those used by Professor Check but rather studied subjects' reactions to a simulated rape trial. Reaction to the plight of a specific rape victim in a simulation is not as direct-and so at least arguably not as useful-a measure as answers to questions about what the subject himself desires to do. Because his study did not include, as did Check's, comparisons based on his subjects' prior viewing habits, Linz' results must be treated with extreme caution. It is possible that the strong reaction to R-rated violent films was simply a function of low prior exposure to those films-the films may have their effects because of "shock value."^[55] (College-age participants in studies of this nature are known, by contrast, to have previously seen large quantities of "commercialized erotica" and so would not likely have been as jarred by seeing more of it.)^[56] The study did not measure the effects of X-rated violent films, which would have served to indicate the role of sexual explicitness in mediating the effects of viewing violence.
    
    Despite its methodological limitations, the Linz dissertation does contribute one highly important finding to the data on nonviolent material. In a follow-up study of the participants in his experiment Linz conducted careful "debriefing" of all subjects with regard to the specific material each had seen, then measured their attitudes toward rape after a six-month period. For those subjects who had seen, then been "debriefed" regarding R-rated violent and R-rated nonviolent materials, a dramatic reduction in "rape myth acceptance" occurred-with virtually no difference between those two groups in their final scores. "Debriefing" was thus seen as a success for both groups. Subjects who had seen X-rated nonviolent materials, by contrast, showed only the most minimal decline in "rape myth acceptance" after "debriefing" the lapse of six months-so that at the point of follow-up measurement they showed substantially higher toleration of rape than either of the R-rated groups.^[57] The significance of this finding, not recognized by Linz himself, is its tendency to show long-term effects of "X-rated" material even in the face of positive efforts to "educate" viewers. In the "real world", as opposed to the laboratory, viewers of sexually explicit materials normally receive messages-" inhibitory cues"-contradicting those in the materials they watch. The Linz study provides tentative evidence that for sexual materials with a high degree of explicitness, such real-life "debriefing" may be unsuccessful.
    
    The overall results of work on "long-term" exposure to standard, nonviolent pornography was confirmed and summarized in a statement by Professor Donnerstein in 1983:
    
    Let me end up talking in the last couple of minutes, about the long term research. Researchers like myself and Neil Malamuth at UCLA are looking at massive long term exposure to this material. Some interesting things occur. If you expose male subjects to six weeks' worth of standard hard-core pornography which does not contain overtly physical violence in it, you find changes in attitudes toward women. They become more calloused towards women. You find a trivialization towards rape which means after six weeks of exposure, male subjects are less likely to convict for a rape, less likely to give a harsh sentence to a rapist if in fact convicted.^[58]
    
    Professor Donnerstein went on to say:
    
    In our own research we are looking at the same thing. Let me point out one thing. We use in our research very normal people. I keep stressing that because it is very, very important. What we are doing is exposing hundreds and hundreds of males and now females to a six-week diet of sexually violent films, R-rated or X-rated or explicit X-rated films. We preselect these people on a number of tests to make sure they are not hostile, anxious or psychotic.
    
    Let me point out the National Institute of Mental Health and the National Science Foundation and our own subjects committee will not allow us to take hostile males and expose them to this type of material because of the risk to the community. They obviously know something some of us do not.^[59]
    
    Although Professor Donnerstein himself has recently emphasized most the harmful effects of violent depictions, the research strongly seems to support the proposition that longer-term, substantial exposure to "standard" nonviolent, sexually explicit materials acts as a "disinhibiting cue" for rape.
  3. Overall Evidence for "Causation"
    No experiment has, for the reasons suggested by Professor Donnerstein, tested the effects of nonviolent, sexually explicit material on the aggressive behavior of known sex offenders or, indeed, those with even a tendency toward psychoticism. Experiments with "normal" subjects, however, have suggested two separate, but quite possibly interdependent means by which such material could heighten the probability of sexual violence. The simple capacity of nonviolent material to produce strong arousal in both offenders and the general population may in and of itself produce higher levels of sexual violence. Of equal importance, "standard" commercial pornography may over time and with significant exposure work to undermine "learned" inhibitions against sexual violence. While "adult men's magazines" have not been the normal focus of experimental investigation, the material they contain is sufficiently arousing, and sufficiently tied to views of women only as "sexual objects;" as to make the reasonable inference that these findings are applicable to them as a class. Thus the Badgley Committee in Canada found that in a group of "adult" magazines essentially the same as those studied by Baron and Strauss, photographic depictions of sexual bondage were three times as frequent as oral-genital contact, five times as frequent as vaginal penetration with penis or finger, and ten percent more frequent even than any form of kissing.^[60] While further research is clearly indicated to determine the effects of this extremely common material, at present it may fairly be seen as falling within the range of materials as to which current experimental and clinical evidence is highly relevant.^[61]
4. Evidence Against Causation
  Studies of both arousal and attitudinal effects of viewing nonviolent materials thus provide several suggestive "causal" links between such viewing and sexual violence. What is the evidence against such a connection? If substantial enough, such data might preclude forming any opinion about the plausibility of the causal link suggested by the correlational data, in combination with indirect experimental and clinical data.
  
  Unfortunately evidence which contraindicates the existence of a cause-and-effect relationship between nonviolent materials and sexual violence is slim. Short-term exposure of normal subjects to "mild erotica" has been shown to have negligible (and in some cases positive) effects on aggressive responses toward women in the laboratory.^[62] As discussed above, results of short-term exposure to highly arousing material have been to the contrary, with enhancement of aggression occurring in cases with "prior anger."^[63] Long-term exposure, however, which seems the condition most likely to resem