This provision has been interpreted widely to protect employees
from having to prostitute themselves to supervisors or submit
themselves to sexual intercourse or harassment to keep their
Jobs, 1105
One court declared flatly, "An employer may not
require sexual consideration from an employee as a quid pro quo
for job benefits. 1106

On its face this principle would seem to make illegal the
requirements that a performer engage in sexual activity as a
condition of his or her employment. There are, however, two
limitations on its scope that are at least arguable relevant to
production of pornography. The courts have ruled that sexual
-1107
demanda (1) must be unwelcome,"
and (2) must include
disparate treatment of the sexes. 1108 The first of these
limitations does not seem a serious one: the overwhelming factor
motivating the sexual conduct of pornographic models is financial
need, certainly not a desire to have sex with the partner
assigned to him or her for the scene, 1109 The sexual act is thus

1105 See, Nensen v. City of Dundee, 682 P.2d 897, 908 (11th
Cir. 1982), Bundy v. Jackson, 641 P.2d 934 (D.C. Cir. 1981);
Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979); Tomkins
Public Service Plectric & Gas, 568 P.2d 983 (D.C. Cir. 1979);
29 C.P.R. $1064(1)(a).

treatments

in no way "welcome" in the sense wo understand the law to
1110
exempt.
With regard to the "disparate
requirement, we note simply that women and men are normally paid
different rates in the industry for the same sex acts,1111 and
that women in mainstream pornography are expected to engage in
homosexual activity while men are forbidden to.1112

We therefore believe it likely that much of the commercial
production of pornography runs afoul of Title VII, even
considering the technical limitations on its reach. Further, we
believe that Title VII embodies a principle that should not be
no one in this country should have
strangled by technicalities:
to engage in actual sex to get or keep his or her job.1113 Το
the extent that Title VII and comparable state statutes do not
currently reflect that principle, we urge serious and rapid
consideration of proposals to broaden their reach.

1110 Thus Hensen defined conduct as unwelcome if the
employee did not solicit or incite it and regarded the conduct
as undesirable or offensive. 682 F.2d at 903. Model Ali Moore
is a vivid example of an employee finding such conduct
"unwelcome": "I'm not going to say all that stuff about how I
I guess I really don't like the sex
love to f**k on camera....
Ali Moore Interview, supra note 976, at 9.
much."

1111

Los Angeles Hearing, Vol. I, William Roberts, p. 65.
1112 In "gay" pornography, of course, women are excluded
altogether. Id.

1113 We emphasize actual, for the simulated sexual
activity regularly engaged in by legitimate actors in their roles
does not provoke the same concerns as actual sex. Simulated
sexual conduct does not impinge on personal privacy to so
enormous a degree; it risks no transmission of venereal disease;
it risks no pregnancy; and, finally, it carries no comparable
For a comparison of sex modeling and legitimate acting,
stigma.
text to notes 1043-1059, supra.

3.

Invasion of Personal Rights. During the course of our
review of the position of performers in pornography, we have
encountered evidence that they suffer physical coercion, damage
to health, serious economic exploitation, and virtually complete
loss of reputation. The pornography which they helped create
will live on to plague them long after they have extricated
themselves from modeling. Its effects, subject performers to
long-term effects potentially worse than any other form of sexual
abuse, a fact noted tellingly by Dr. Ulrich Schoettle in the

context of child pornography.

The

Unlike

Pornography is a graphic form of exhibitionism.
prostitution where a degree of privacy" exists during
the sexual acts, pornography literally makes the
child's body "available for anyone willing to pay the
price anywhere in the world.

privacy interests of performers in pornography seem to us
real and compelling1114 while the value of the material itself is
often indisputably minimal.

It, therefore, seems important for judges and lawmakers to
carefully consider how performers may be protected from the
unsavory characters who exploit them, and in particular what
civil and equitable remedies performers may have in court. There
has been disagreement in what we have heard over the current
status of the law in this regard, 1115 we know only that they have

1114 Cf. New York v. Ferber, 458 U.S. at 759 n. 10.
1115
Compare, 1984 Senate Hearing, supra note 975, at 249
(statement of Catherine Mackinnon) (Statutes of limitations,
single-publication rules, and other technical limitations make
actions by performers impractical at present), with Washington
D.C., Hearing, Vol. I, Barry Lynn, p. 24-25 (such actions are

been exceedingly rare.1116 If new remedies are needed, as we are
inclined to think they are, they should be framed in ways to
encourage plaintiffs to come forward: perhaps by providing for
treble damages in certain types of cases (such as coercion or
fraud) and reasonable attorneys' fees.1117

We hope, too, that in studying the availability and
desirability of such private remedies, courts and legislatures
will be sensitive to the issue of consent." Because of their
youth, their economic desperation, and their troubled back-
grounds, we submit that few performers are fully able to
appreciate the meaning and the magnitude of their decision to
engage in sexual performances and throw away all control of the
resulting material for the rest of their lives. Just as it is
appropriate to provide consumers with extensive government
protections against the consequences of their ignorance, so every
adult needs special safeguards against making a decision which
even the pornography industry's strongest booster admits will

unknown).

1116

The cases cited in notes 960-963, supra are the only ones we have been able to uncover in this area.

1117 S. 1187, introduced last year by Senator Arlen
Specter, essentially contains both these provisions - treble
damages and attorney's fees - in seeking to help adult
pornography victims obtain compensation for production or
distribution of material in which they were coerced or
We note that constitutional
fraudulently induced to appear.

issues may arise if equitable remedies are not carefully tailored
to the First Amendment requirements, and that scienter is likely
to be of some constitutional relevance in determining how wide
the net of liability may be cast.

haunt her the rest of her life."1118

Otherwise she may find that photography's freedom from time and space, so heartily welcomed by Basin, has become her dungeon.

ARCHDIOCESE OF CHICAGO

STATEMENT OF CARDINAL JOSEPH BERNARDIN, ARCHBISHOP OF CHICAGU

House Sub-Committee on Crime Hearing

Re: The Child Protection and Obscenity Enforcement Act

April 28, 1988

In all senses of the phrase, pornography is no respecter of persons. Children are victimized; women are degraded; men are perverted, the young and the insecure are seduced, families are undermined, personal and social relations are twisted. God's gift of sexuality is stripped of the personal dignity, human tenderness, mutual love, and ethical commitment that are part of the divine plan for human happiness and social good.

Nonetheless, some people are reluctant to act in opposition to pornography because of rightful concern about important First Amendment freedoms. As religious leaders, we need to be consistently clear about two points: We are opposed to censorship. We are also opposed to obscenity and child pornography which, by definition, stand outside the protection of the

First Amendment.

Informed by the findings of the Attorney General's Commission on in the initial forum of this committee

-

-- is

Pornography, Congress considering the Child Protection and Obscenity Enforcement Act. This bill, if enacted, will extend obscenity law to newer technologies, will further protect children from pornographic exploitation, and will provide financial penalties for criminal obscenity.

The dignity inherent in each individual and society's interest in protecting the vulnerable and promoting the common good urge the passage of this bill. Although I cannot be present with you today, I want to voice my support for the Child Protection and Obscenity Enforcement Act.

PAGE.

aap

Association of American Publishers, Inc.

220 East 23rd Street
New York, N. Y. 10010
Telephone 212 689-8920

STATEMENT OF THE ASSOCIATION OF
AMERICAN PUBLISHERS, INC. CONCERNING
THE CHILD PROTECTION AND OBSCENITY
ENFORCEMENT ACT OF 1988 (H.R. 3889)

Submitted to the
House of Representatives
Committee on the Judiciary
Subcommittee on Crime
May 12, 1988