our difficult and time-consuming discussions of the real or potential "harms" ascribed to pornography and the identification of these harms with the various categories of sexually explicit In addition, our chosen approach enabled the Commission to understand better the various kinds of evidence or materials. "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 prosecuted and, if possible, proscribed. be I s 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, permissable 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 sexuality itself, its purposes, its beauty, and SO distort its meaning that society itself suffers a grave harm? human 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 is more, that message is what sex is all about. 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. Το 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: Non Violent, Sexually Explicit Materials and Sexual Violence, purports to show how an argument might be drawn from social science itself that the widespread |