in no way "welcome" in the sense we understand the law to exempt. 1110 With regard to the "disparate treatment": 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 strangled by technicalities: no one in this country should have 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 love to f**k on camera.... I guess I really don't like the sex much." Ali Moore Interview, supra note 976, at 9. 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 stigma. For a comparison of sex modeling and legitimate acting, see, 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. Pornography is a graphic form of exhibitionism. Unlike The "privacy interests" of performers in pornography seem to us real and compellingl114 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 1115 status of the law in this regard; 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 not 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 backgrounds, 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 fraudulently induced to appear. We note that constitutional 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 Bazin, has become her dungeon. Chapter 3 Social and Behavior Science Research Analysis Introduction The Commission has examined social and behavioral science research in recognition of the role it plays in determining legal standards and social policy. This role, while notable, is not, nor should it be, the sole basis for developing standards or policy. The lack of funding and the inability under the mandate of the Charter to conduct original research has resulted in the need to rely on existing information. The amount of research conducted in the last fifteen years provides a reasonably sufficient base to reevaluate answers to old questions. Some might argue that given the controversy and heated debate that inevitably surrounds any discussion about pornography, in some ways, we might be better off relying on studies initiated, funded, and presented outside the context of such a milieu. The major question which frames this research review is: what are the effects of exposure to pornography and under what conditions and in what kinds of individuals are these effects manifested? We also have structured this review with the following considerations in mind: (1) that it provides some input into the policy-making process; (2) that it provides social science information for public consumption and understanding; and (3) that it provides the research community with further questions for investigation. While the nature of effects is the focus of this section, we |