My research has always focused on the intentionality of visual perception and the visual perception of intentionality: how visual perception is about, and is seen to be about, objects perceived. During the first decade of my career, the emphasis was on the former. In Fall 1991, just before the Hill/Thomas hearings, I began giving greater emphasis to the latter, with research on sexuality and the law, especially contemporary debates about 'pornography and censorship'. This entailed gaining a background in relevant areas of law, political philosophy, social sciences and cultural and feminist studies, as well as doing a great deal of empirical research on the representation of sexuality in American and other societies. (In a planned work, Dog and Other Minds, I will address the same general issues concerning intentionality and its perception through the hypothesis that autism is a form of 'mindblindness' [Baron-Cohen 1995] that may also characterize some nonhuman animals [Dennett 1996].)
Since one of the best ways to learn something is to teach it, I considered developing a seminar on sexuality and the law. But would this not necessitate studying the very material that so many regard as controversial, not to say toxic? This simple, practical question has great theoretical significance, since answering it forces one to be very clear on exactly how to balance the values of knowledge and human well-being; I found that even the most sophisticated theorists have not addressed this question with the necessary clarity.
My paper on the latter topic, "(Sexual) Quotation without (Sexual) Harassment?" has appeared in James Elias et al, eds., Porn 101: Eroticism, Pornography and the First Amendment (Prometheus Books, 1999). With other material outlined below, this will comprise a book that I hope will have both theoretical significance for the study of representation, and practical utility for the implementation of anti-harassment policies and laws. The working title is Porn Probes: Dangerous Knowledge, Dangerous Ignorance. Chapters presently envisioned are these:
Chapter 1 - Obscenity in US Law I begin by giving a brief survey of the religious, historical and legal background of contemporary US criminal obscenity law, as that law is re-interpreted by the Marquis de Meese [Susan Stewart] in the most widely circulated obscene work of the late 20th century, the Final Report of the Attorney General's Commission on Obscenity and Pornography (Government Printing Office, 1987). On one religiously-inspired view, the offensiveness of obscene material results in a disruption of the soul's divinely-given natural function, a disruption that might well then be seen as criminal. Although this essentialist, religious view is not the official stance in the US legal system, the conceptual role occupied by it still needs to be filled in other justifications, as comparison of US and other legal systems helps to emphasize. Since the late 1970s, yet another approach has evolved among legal theorists who seek to move away from US criminal obscenity law's focus on offensiveness and to a harm-based, civil rights (anti-discrimination) approach to regulating sexually explicit representations. This approach recommends balancing the First Amendment-encoded value of knowledge against the value of equality implicit in the Fourteenth Amendment, and is thus intended as a challenge to the dominant views of the First Amendment. Although the first proponent of this approach appears to have been the philosopher Helen Longino, the most famous and persistent advocate has been legal theorist and activist Catharine MacKinnon (also well known for her leading role in creating a legal cause of action for sexual harassment).
Chapter 2 - A MacKinnon Primer MacKinnon's work set the terms for the contemporary debate about pornography. But misinterpretations of MacKinnon's work abound. I set out the most common and persistent misconstruals (e.g., "necessarily all intercourse is rape," "pornography is universally necessary for subordination of women," "necessarily all males oppress women," "there's no difference between representations and what they represent," "a man's viewing pornography is typically causally necessary or sufficient for his raping") and explain how they distort her views.
Chapter 3 - The Hidden Life of MacKinnon's Dog
Saying "kill" to a trained attack dog is only words. Yet it is not seen as expressing the viewpoint "I want you dead" - which it usually does, in fact, express. ... It is seen as performing an act tantamount to someone's destruction. [Catharine MacKinnon, Only Words, 12]
One of the more sophisticated misinterpretations of MacKinnon's work, advanced by Mandy Merck ("MacKinnon's Dog") and Jennifer Wicke (The Politics of Feminist Theory), is that MacKinnon is a kind of behaviorist in her account of male responses to pornography. (As Vicki Hearne has argued so eloquently in Bandit: Dossier of a Dangerous Dog, behaviorism is a poor - her term is "stupid" - account even of canine behavior.) This misinterpretation leads to a profound oversimplification of her views on the nature of representation, and to the charge that they are either insensitive to or insufficiently sensitive to key contextual features of pornography's consumption. In this case, however, MacKinnon bears some responsibility for the misinterpretation, as I explain more fully in the next Chapter.
Chapter 4 - Performance and Paradox: The Erotic Power of MacKinnon's Political Performance Art, or How MacKinnon Ties Her Nots
How, I asked MacKinnon during our interview, could she justify marriage when she has written that equal relations between men and women are impossible in an unequal society. Her answer came in the form of a lecture on sexual hierarchy. "Does one not have any relations simply because society is not hierarchical?" she asked. "We do our best. He's not not a man, and I'm not not a woman." [Dinitia Smith, "Love is Strange," New York (March 22, 1993) 36-43]
Philosophers who have articulated paradoxical views have often attempted to show what (they say) cannot be said. In this chapter, I rely on recently developed techniques for analyzing contemporary performance art to derive a new interpretation of MacKinnon's work. (Brown, Butler, Fish, Gates, Scheman, Sedgwick and Smart all suggest or hint at performative interpretations of MacKinnon's work, but no one has developed the interpretation.) The apparent paradoxes in her written work are best understood in the broader context of her political performance art. (As I suggested in Abusing Purpose's discussion of New Age pseudoreligious drivel, we need to augment Carnap's three-fold distinction among syntax, semantics and pragmatics with a fourth category: marketing.) By adopting a radical feminism so extreme as to be pragmatically self-stultifying if taken 'literally', MacKinnon is threatened with self-refutation. The 'literal' interpretations of her speech acts ignore their performative aspects, however, and when these aspects are taken into account, the threat recedes (without disappearing completely, for it, too, is a necessary element of the performance) and the erotic power of her self-displays are revealed in their full transformative potential. MacKinnon's own views on the eroticization of power entail that those who appreciate the power of her performances and rhetoric will also be responding to her (persona) sexually; it strains credulity to believe that she would not use this to her advantage. Although she reviles them with the heat typical of family fights, MacKinnon (a kind of anti-relativist) and deconstructionists (and other relativists) have a common sympathy that is exhibited in their impulse to replace sharp differences in kind with differences of degree, an impulse most radical when it calls into question distinctions between symbol and symbolized, representation and thing represented; for both, 'only words' and 'only things' are ironic. Their frequently perverse and infuriating rhetoric is intended to jolt the audience into a visceral appreciation of this impulse, the chief engine of their desired political reforms.
Chapter 5 - What to Do Next?: On the Epistemology of Utopianism Many feminist writers are weakest on "what to do next," having had to spend considerable time documenting how things are now and specifying what needs to change. Some of the most interesting and urgent problems posed by feminism are old epistemological problems about identifying and approaching ideals. Because of the relative extremity of her views, MacKinnon's work raises these questions vividly. When pressed for her positive vision for the future, MacKinnon has replied in two ways (I'm putting these words in her mouth): "I've already proposed legislation that will aid the transition, and I'm too busy highlighting women's current plight to bother with possible but still improbable future utopias. What more do you expect of me?" Given that she also had a central role in creating a cause of legal action for sexual harassment, this seems to be a rather good reply. But she's also replied in something like this way: "Things are so thoroughly bad now that neither I nor anyone else has any idea of what a nonsexist future would look like." The second reply seems more troubling (even after the interpretation of Chapter 4 is in place), since it raises questions about how anyone could either know what to do to make things better, or recognize a better situation were it to come about. There are three especially effective ways of pressing for details about what to do next in a way that will also make vivid the practical urgency of doing so, where each way results in a question about acquiring knowledge of sexuality. Those questions are presented in the next three chapters. The discussion of each highlights the varied ways in which context is crucial in gaining and evaluating such knowledge.
Chapter 6 - (Sexual) Quotation without (Sexual) Harassment? What are or ought to be the legally or morally permissible educational uses of sexually explicit material at college level and above? The strongest principle implicit in extant law and surrounding literature is:
Sexual quotation is not sexual harassment if and only if it is reasonable to believe that the quoting causes no unnecessary harm and promotes no significant misuse of sex-role stereotyping; informed consent of students is obtained; and substitute work or no-penalty withdrawal from the course is permissible to prevent unnecessary harm.
But, of course, this raises so many questions and is so deeply obscure in so many ways that it does not rise to the level of good moral or legal advice [Levy-Breuhl, 1996]. How can feminists do better? What are the parallels and differences between a gender-hostile environment and the other sorts of hostile environment implicitly defined in current law (based on race, color, national or ethnic origin, religion or creed, age or disability)? This chapter also offers a novel, simple and powerful argument for the pragmatic equivalence of targeting and hostile environment standards of harassment.
Chapter 7 - Reasonable Sex Workers and Other Consenting Adults This chapter develops the theme of informed consent, introduced in Chapter 6. The nature of consent in BDSM, by prostitutes [San Francisco Task Force on Prostitution Final Report], professional porn performers, and in amateur porn are all detailed, with due attention to the "harms of consensual sex" (in Robin West's phrase). The limitations of autonomy-based accounts of consent are examined with reference to the differing perspectives of Korean-American, Mexican-American and Navajo cultures [LJ Blackhall et al, "Ethnicity and Attitudes Toward Patient Autonomy," JAMA, v274 n10 (September 13, 1995): 820-825; JA Carrese et al, "Western Bioethics on the Navajo Reservation: Benefit or Harm?," 826-829].
Chapter 8 - Radical Sexuality (Re-)Education I focus on two questions in this chapter, one about sex education, the other about transcending harm.
(1) How ought we to conduct sexuality education in primary and secondary schools so as to protect our children from harm and to help them develop a sexuality they can truly enjoy? What, for example, would MacKinnon have had me say to those integrating sexuality education into the overall school curriculum at my daughter's middle school (where I served as a curricular consultant)? There are religiously-inspired, abstinence-based curricula that focus on the dangers of sex, and although MacKinnon et al would find the sexism of such curricula repugnant, would they have something other than fear to offer our children? Presumably, they would. So what would they offer? Our children need our help now, and it's arguably not enough (though it may be helpful in the longer term) to work for the passage of MacKinnon/Dworkin antipornography ordinances. [There is, of course, no good reason, constitutional or other, to exclude all religious perspectives from such curricula. To address the often-paired concerns about sex education and the exclusion of religious values from public schools, the public schools could develop age-appropriate curricula that integrate with the rest of the curriculum study of the world's religions and their varied prescriptions for sexual behavior. Suitably detailed discussions of religious views on, for example, abstinence, contraception and homosexuality would guarantee a focus on moral values. Although there wouldn't be time to discuss every relevant religious view, it is feasible to include a diverse sample from Western and non-Western religious traditions. Perhaps grant money could be sought for this purpose and experts in religious studies at the the nation's universities (e.g., at the Vanderbilt University Divinity School Program in Religion, Gender and Sexuality) could be consulted. This approach to the curricular integration of sex education ought to be especially welcome, or at least unobjectionable, to those whose interest in seeing abstinence emphasized is religiously-based, for in this way, their deepest reasons will receive an unprecedented degree of attention in the public schools.]
What you need is people who see through literature like Andrea Dworkin, who see through the law, like me, to see through art and create the uncompromised women's visual vocabulary. [Quote attributed to MacKinnon by Liza Mundy in "The New Critics," Lingua Franca, v3 n6 (Sept/Oct 1993): 26-33.]
Since MacKinnon herself claims to have seen far more porn than almost any male in her audiences, and has nevertheless managed to avoid, overcome or transcend the most negative effects of such exposure, her own goals would seem to require explication of the features of her (and Dworkin's and perhaps others') personality and circumstances that allowed the transcendence. Very likely, it is by close study of such people that it will be discovered how to make the transition from an unhealthily pornographic society to an erotically healthy one; if pornography is rape-like, then the literature on survivors of sexual abuse should yield pertinent information about what makes it feasible for the abused to grow beyond their abuse. (Perhaps antipornography activists generally have an above average level of exposure to pornographic material. Is there something about being active against pornography that has a protective or healing effect on those exposed? This is a plausible hypothesis that if verified should encourage detailed investigation into the process entailed.)
Chapter 9 - Ignorance is Bliss and Strength?: Policy Making Under Conditions of Self-Perpetuating Ignorance As detailed in chapters 6, 7 and 8, one looks to the social sciences for insights into how to prevent any harmful effects of pornography and what it represents. But one of the most maddening things about research on any aspect of sexuality is the dearth of accurate information about it. Taken collectively, extant empirical studies of effects of viewing pornography tell us that we don't know what the effects are, in part because the studies suffer from such serious methodological flaws. Although it is feasible to conduct experiments that are more attentive to good method and contextual factors than previous studies, and I suggest some ways of doing so, deeply entrenched guilt, shame, anger and fear make near-term improvement in our epistemic situation unlikely. But we cannot wait to make social policy or to reform our laws governing pornography or other aspects of sexuality. In this chapter, I investigate several approaches to decision making under conditions of profound disagreement and deep ignorance, including ones suggested by Rawls's defenses of political liberalism.
Chapter 10 - Quotational Modes of Presentation Drawing on my previous work on the nature of demonstrative and indexical thought [Austin 1990], I present a theory of quotation according to which (i) quotation marks (and other quotation delimiters) are special purpose demonstratives, (ii) it makes sense to classify representations as more or less quotational, as well as more or less pictorial or symbolic, and (iii) it also makes sense to classify contexts as more or less transparent. This theory can help to clarify a great deal of obscure discussion of 'referentiality' and 'citationality' in postmodern critiques of meaning. With the difficulties highlighted in Chapter 9 in mind, this theory provides a basis for a practical moral policy governing classroom sexual quotation, thus answering questions raised in Chapter 6.
Chapter 11 - What's Porn Good For?: Genre and Gender That pornography is typically 'transgressive' is a familiar theme in writings (pro and con) about it. Put in other terms, porn is good for raising questions about how various sorts of sexual normalcy are defined. In this chapter, I consider how the enormously varied genre of pornographic movies, with their varied audiences, can be used to raise such questions. Among the audiences I consider are: women who love both women and gay porn, men who love both women and lesbian porn. Among the types of porn I consider are: fetish porn (itself a varied subgenre including B&D, S/M, small top or A-cuppers, big top, fat, plumper, lactation, pregnant or ready-to-drop, leg, foot or leg-ends, black, black on white, shaved, Asian), bisexual porn, gay porn, girl-girl porn, lesbian porn, porn that features anal, multiple or double penetration, female ejaculation porn, amateur porn (the fastest growing subgenre), custom porn, meta-porn and TV/TS (transvestite and transsexual) porn, which raises questions about the definition of gender. What kinds of porn there aren't also tells us much about how we define sexual normalcy and our own bodily boundaries; there is virtually no porn that features the disabled (except for amputee fetish porn) and almost none of any kind that includes menstruation. The extreme rarity of period-porn is a real oddity, given that most other bodily effluents are eroticised in porn (though snot-porn and puke-porn are also relatively rare), menstruation is normal, some fetishize menstruation, and many others neither fetishize nor are put off by it. What does this tell us about how female normalcy is viewed? Given the variety of porn, claiming that 'it' constitutes a genre raises questions about how genres are defined. I suggest that they are best seen on the model of tissue-forming cells: highly structured, interdependent organic unities with permeable membranes.
Chapter 12 - Porn Abroad: Japan and Russia in the 90s The varieties of porn in the US, UK and Western Europe occupy the same general region of porn space, with more above ground in Western Europe and more underground in the UK, and in all these cases, there's been relative stability for the past decade or so. Not so for Japan and Russia, where the markets have been significantly different from Western markets and are now zigzagging towards greater, more Western, variety. Russia's situation is best characterized as strict suppression quickly dissolved. Japan has for several decades been suffused by "soft core," often violent, pornography, readily available even to middle school children through manga (comics) and animé (animation), films and TV. For apparently unknown reasons, a strict prohibition against display of pubic hair or adult genitals was softened beginning in 1991. In both Russia and Japan, there has been a rapid increase in availability of previously prohibited material; in Japan, for example, so-called 'hair nudes' are common in national media. Even if there is apparent convergence with Western markets, the differing histories will yield different contexts and meanings for results. The purpose of this chapter is to show in detail how this is so. [Since I know neither Russian nor Japanese, my access to (previously) regulated materials is limited. This limited access, together with assistance from scholars and natives should make it feasible for me to raise well-informed questions about these dynamic markets. Consideration of Ireland might also be added to this chapter since its legal, political and social situation has also begun to change in relevant ways.]
Chapter 13 - Degraded Unities and Degrading Aggregates: The Values of Pictorial Quotation A recurrent theme in pre-20th century philosophy, renewed most recently by Nozick, is the conviction that organized complexity is characteristic of certain 'organic wholes' [Moore's Principia Ethica, McTaggart's Nature of Existence (Vol. 1, Ch. XX), Nozick, Philosophical Explanations, Chisholm, Brentano and Intrinsic Value], and degree of intrinsic value 'tracks with' degree of organized complexity and degree of unity. Although conscious beings have the highest degrees of organic unity, and other living things are also at or near top of scale, lots of nonliving things have organic unity (are organic wholes), too; for example, inanimate objects of aesthetic appreciation are said by Moore (echoing Plato) and his teacher McTaggart to have intrinsic value. (The beautiful is that the contemplation of which would be intrinsically good, as Moore says, thus intimating that beauty and goodness are different primarily in degree.) Old-fashioned though this language is, a unified history of cognitive science may be written with unity at its focus [see Austin, "With One in Mind," 1991], and the ideas this language expresses provide a framework for distinguishing, in exquisitely context- and perceiver-sensitive ways, between 'erotica' and 'pornography'. This use of the framework allows us to confront the key methodological issue raised in Chapter 4, concerning the difference between differences in kind and differences in degree, and offers a way to resist the common, simplifying, but almost always simplistic, move to declare the best examples the only examples [see, e.g., van Inwagen on synchronic and diachronic identity].
Chapter 14 - Taxing Violent Porn: Food, Sex and the Limits of Law Some obvious, but important truths:
You shouldn't force food on an adult. Everyone should have enough to eat to remain healthy. We should all avoid food that causes long-term damage to our health, but eating such food should be strictly regulated only if the damage is very bad (e.g., poison or a 'bad' drug). If someone serves you food under circumstances where a reasonable person can be expected to know that serving you the food will lead you to act dangerously (to yourself or others), then the server shares in the legal liability for your action. (E.g., in a class on wine-tasting or bar-tending, don't serve alcohol to the clearly irresponsible, the sick, alcoholics or minors.) If we know that certain sorts of foods are dangerous to particular sorts of people, then those foods should be regulated to prevent the harm. But the regulation should take into account how likely we believe the harm to be, and how well-justified our belief is.
Alcohol consumption is a helpful example here [Kleiman 1992]: the complete banning of alcohol was tried in this country and produced a social disaster; in this kind of case, it's better to regulate than to ban, and the regulations may include extra taxes to help remedy any harm caused and to discourage consumption in the first place. And analogously for sexual behavior and its representations? Perhaps so. In the remainder of this chapter, I deploy a food/sex analogy to help defend the view that the strongest currently justified legal regulation of pornography would be something along these lines:
Obscenity law for adults is a mess. (Issues concerning children need separate consideration; see Chapter 14, below.) Critics argue that it overregulates, underregulates, or both. Few jurisdictions can afford obscenity prosecutions, so get rid of adult obscenity law, and tax visual material that contains any image which is sexual, explicit and violent - a 'sin', 'anti-pollution' or 'luxury' tax. Material is explicit if and only if it photorealistically shows violence done to at least one of the usually covered human erogenous zones/body openings: nipples, genitals, anus; violence is defined as in 'crimes of violence', where there is no consent. The total percentage tax should be lower than alcohol's, given the information we have about the harms of consumption; if future research warrants, the tax can be increased and business-owners required to carry liability insurance. Taxed material carries tax stamps, warning labels and captions.
Since this does not ban or criminalize and the tax is capped, there is less reason for free speech concern in inevitable unclear cases. Augmented civil rights panels review samples to clarify standards and ensure compliance, with decisions subject to judicial review. Civil penalties alone for failure to pay the tax are, say, seven times total gross receipts - possibly, millions per video. Anyone can submit material for review, and anyone who abuses the practice is fined.
The law should yield reliable data on prevalence. If the material is common, revenues will pay for administering the law, civil claims from injured parties, research and education about effects of the material, and aid to survivors of sexual abuse.
By changing the focus from offensiveness to harm, this law encourages use of applicable non-obscenity laws, including those covering assault, battery, false imprisonment, sexual assault of various sorts, kidnapping, sexual harassment, intentional or negligent infliction of emotional distress, invasion of privacy, libel and defamation. Labor and occupational health and safety laws should be mobilized to protect performers. Zoning laws and other sorts of display regulation can continue to be used.
This law gives fairer warning than adult obscenity law, targets what's probably most harmful, and does not require large legal fees from those claiming injury. It does not censor, but taxes material less valuable than commercial speech, already taxed and regulated. And it would at least slow what some see as an epidemic. Antipornography activists who believe the commonly drawn lessons of Prohibition are inapplicable can view this as a 'proxy' while pressing for more restrictive laws.
Chapter 15 - Children and Pornography Child pornography is the plutonium of debates about pornography. There is no more effective way to stop discussion than to mention "child" and "pornography" in the same sentence; mere proximity is terminal. Disastrously, this also inhibits the use of "child" and "sex" in the same sentence, with effects already noted in Chapter 8, and, no doubt, this is precisely the effect intended by some who force the terms into almost every discussion of sexually explicit material. Nevertheless, the issue of child pornography needs discussion. Even after empirical questions about prevalence are addressed, we are left to distinguish among degrees of ghastliness (as Andrew Vachss's fictional and factual writing about "predatory pedophiles" so vividly describe). Is there an approach to the problem of child pornography that protects children from abuse while also acknowledging the important fact that they are not sexless? I consider recent legislation, actual and proposed, as well as pertinent court decisions. Since there is evidence that some extremely intense adult reactions to sexual abuse of children can interfere with the children's recovery by amplifying the child's sense of guilt, procedures should be put in place to shield the children from over-reaction, while at the same time guaranteeing that they receive the help that they need. If there is compelling reason to believe of a predatory pedophile that s/he cannot be rehabilitated through available methods, then, I argue, s/he is a defective, nonhuman (bio)machine and ought to be kept away from children in the least costly way. It is then a question of economics whether pulling the plug on such machines permanently is the cheapest and so best alternative.
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