I'd say there are a lot of good arguments for why pornography, or at least the public distribution thereof, could be made illegal, and it seems that many countries in the West are beginning to regulate internet pornography more strictly lately.

Some arguments I find interesting:

1. One argument is that an actor in a pornographic film doesn't have the physical ability to consent to being viewed by strangers on the internet, therefore a 'contract' of consent to a porn company is null and void; and a person viewing a stranger in a sexual situation would typically be criminally charged under laws such as voyeurism laws; therefore viewing internet pornography is the same as voyeurism, and therefore could be made illegal to view or distribute.

2. Likewise, an argument could be made that producing or viewing pornography violates the property rights of one's body, and while legally a body is one's living property, much like a horse one owns, one isn't legally allowed to do "anything" they want to it in practice; for example one can't legally give a person written permission to murder you and have them escape murder charges.

So using these facts, a case could be made that producing pornography for the viewing of strangers is permitting them to engage in a property rights violation against one's body, and therefore could be illegal regardless of one's consent.

---

I think these arguments have good philosophical bases, and apparently the trend in the West is to begin cracking down on internet pornography, so it will be interesting to see where this trend leads; likewise the popularity of 'amateur' pornography seems to be helping to drive commercial pornography out of business, much as internet piracy has more or less done CD music, so it'll be interesting to see the direction things go.

Hopefully not an excessive backlash like the Victorian Era of England, or the rise of the Ayatollah in Iran following the Shah's removal from power, but if society on the whole is showing signs of backlash against the more uncultured and sub-literati elements in mass culture, a la internet pornography and lots of "quasi-pornography" which doesn't meet any artistic merit despite barely being over the 'legal' threshold, this may be a good thing.

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Replies to This Discussion

1. Does an actor in a hollywood film "consent" to have their likeness used in advertising, and the performance of the movie itself? If so, how is that consent different from the consent provided by a porn actor? You would have to make a distinction in the kind of performance (sexual vs ?), rather than the consent question itself, and I'm not sure that would hold up. 

2. What charge would be made in a property rights violation case? It isn't murder - you'd be right back to consent per #1. 

1. Does an actor in a hollywood film "consent" to have their likeness used in advertising, and the performance of the movie itself? If so, how is that consent different from the consent provided by a porn actor?

1. The difference would be that one is pornographic and one isn't, and people can make exceptions based on good judgment and common sense.

Much as while viewing a stranger on a sidewalk wouldn't require consent, viewing a person naked or in a sexually compromising situation would be, or else would be a sex crime of voyeurism.

2. What charge would be made in a property rights violation case? It isn't murder - you'd be right back to consent per #1. 

I would say that's incorrect. If I paid a hitman to murder me, then if he performed the deed, he would still be charged with murder, so a percent seems to be in place that consent is definitely not without exception.

1. So would you extend that prohibition to any sexually compromising situation in a hollywood movie or tv show as well, not just to pornography? And there is certainly an understanding on the part of the person signing their contract that it will be viewed by strangers - it's not like that's a surprise. 


Further, if someone is an exhibitionist and exposes themselves or has sex in public, it is not a crime of voyeurism if someone sees. If anything, this situation is more akin to that crime - but that is predicated on the exposure being an uncontrolled public area (children, etc.). Which is arguably not the case in pornography.  

2. I was unclear - my "it isn't murder" is referring to the pornography. Murder would still be a state issue and prosecuted regardless of consent. The question is, what crime here would be? 

1. So would you extend that prohibition to any sexually compromising situation in a hollywood movie or tv show as well, not just to pornography? And there is certainly an understanding on the part of the person signing their contract that it will be viewed by strangers - it's not like that's a surprise.


Yes, that's where it would get tricky, though I think if something met a litmus test for art, that a reasonable exception could be made, so if that was able to be done, then it would not apply to Hollywood films, but would apply to pornography.

Further, if someone is an exhibitionist and exposes themselves or has sex in public, it is not a crime of voyeurism if someone sees. If anything, this situation is more akin to that crime - but that is predicated on the exposure being an uncontrolled public area (children, etc.). Which is arguably not the case in pornography.

True, in this case it draws us to the argument that if the internet is a public space, then while a person viewing it on the internet wouldn't be culpable, hosting or distributing it via the internet could be illegal; much as an exhibitionist would be charged with a crime for having sex in public, but someone who happened to see it would not.

2. I was unclear - my "it isn't murder" is referring to the pornography. Murder would still be a state issue and prosecuted regardless of consent. The question is, what crime here would be? 

In this case, the hosting and/or distribution of it via the internet or electronically would, regardless of whether or not the individual gave consent to do so via a contract.


I don't know that either of those make a lot of sense.  Consent would trump both the voyeurism argument, and the bodily autonomy argument.  Consensual voyeurism is not a crime in any jurisdiction.  You're legally allowed to watch people undress, have sex, or do whatever ... if they let you do it.  How would pornography run afoul of that?  Consenting to having sex on camera for distribution to viewers would imply consent (if not explicitly stated) to having it viewed.  Consent doesn't have to be individual, in that case.  I don't see the voyeurism argument holding up to much scrutiny.

And, since consent is the basis of 'bodily autonomy' ... denying porn stars the ability to consent to having themselves filmed would, arguably, be more offensive to their bodily property rights than would be viewing the movies they consented to.  You are denying them the use of their own property for their own benefit.

As for the 'murder' thing ... in some cases, 'consent' is a defense -- or at least mitigating -- to what would otherwise be murder.  Suicide by cop is not a crime (for the cops).  What is that besides someone, by their actions, consenting to being murdered by the cops?

We allow hospitals to refuse treatment to people who have consented to having the plug pulled or DNRs.  Some jurisdictions allow assisted suicide.  There was a guy in Germany that murdered and cannibalized some dude in some weird gay cannibalism fetish ... and was convicted only of manslaughter, not murder (thus, mitigating).  There was another in Maryland that consented to torture and strangulation ... and, again, the guy got manslaughter, not premeditated murder (again, mitigated by consent).

Consent tends to matter in these kinds of questions.


JB

I don't know that either of those make a lot of sense.  Consent would trump both the voyeurism argument, and the bodily autonomy argument.  Consensual voyeurism is not a crime in any jurisdiction.  You're legally allowed to watch people undress, have sex, or do whatever ... if they let you do it.  How would pornography run afoul of that?  


It isn't physically possible to give consent to a stranger via the internet, therefore unless the individual viewing it is someone with whom you have direct, face-to-face interactions, then I see no reason to acknowledge consent.

And, since consent is the basis of 'bodily autonomy' ... denying porn stars the ability to consent to having themselves filmed would, arguably, be more offensive to their bodily property rights than would be viewing the movies they consented to.  You are denying them the use of their own property for their own benefit.


Well objectively I'd say it's not to their benefit, but their objective detriment, though they may lack the judgment to discern this - and under the same logic that one cannot request certain harmful acts to the body, such as legally hire a hitman to murder themselves, then one could make a similar case with pornography.

As for the 'murder' thing ... in some cases, 'consent' is a defense -- or at least mitigating -- to what would otherwise be murder.  Suicide by cop is not a crime (for the cops).  What is that besides someone, by their actions, consenting to being murdered by the cops?


The cops under those instances are responding to their life being threatened, they aren't intentionally killing a defenseless party.

If one paid a contract killer to kill themselves, then the contract killer would still criminally be charged, even if the individual consented to it, so likewise one could make a case for criminalizing the production of pornography even if an individual consents to letting it be produced.

We allow hospitals to refuse treatment to people who have consented to having the plug pulled or DNRs.  Some jurisdictions allow assisted suicide.  There was a guy in Germany that murdered and cannibalized some dude in some weird gay cannibalism fetish ... and was convicted only of manslaughter, not murder (thus, mitigating).  There was another in Maryland that consented to torture and strangulation ... and, again, the guy got manslaughter, not premeditated murder (again, mitigated by consent).

Consent tends to matter in these kinds of questions.

Those seem to be extreme cases, but definitely not the rule. Plus while the cannibal incident was downgraded to manslaughter, it was still charged as a lesser crime; so while charging a person who produces pornography the same as a rapist would be charged might be extreme, there is still a potential case for criminalizing the production regardless of the consent of the actor.

"It isn't physically possible to give consent to a stranger via the internet, therefore unless the individual viewing it is someone with whom you have direct, face-to-face interactions, then I see no reason to acknowledge consent."

But that's not how that works. Porn is a legal performance (like any other type of performance). In order for a porn company to distribute a recording, they need the written consent of the actors. They get that via a contract. The terms of the contract stipulate whether or not and how the porn company can distribute the recording. These contracts generally stipulate that, in exchange for X$ in payment and Y$ in royalties, the porn company owns the rights to the recording and is free to distribute, broadcast (etc.) the video as they please. By signing this kind of contract and accepting the payment, the porn actors legally agree to let anyone/everyone see the video without requiring 1-on-1 consent; they've de jure given that consent en masse and waived their right to further compensation or to damages by signing the contract.

"Well objectively I'd say it's not to their benefit, but their objective detriment, though they may lack the judgment to discern this - and under the same logic that one cannot request certain harmful acts to the body, such as legally hire a hitman to murder themselves, then one could make a similar case with pornography."

Except that unlicensed killing is illegal whereas legal pornography is, well, legal.

There is no legal definition of 'consent', as far as I know, that speaks to physical presence.  Cam-whores give explicit legal consent to strangers over the internet all the time.  Phone sex operators have given consent to strangers over the phone for decades.  Hell, if you want to take the 'business' motive out of it ... people have phone sex, chat sex, and webcam sex with strangers all the time.  Under what legal theory of consent are those encounters not-consensual?

With regard to the "to their detriment" argument -- that's not a bodily property rights argument anymore.  It's a nanny-state argument.  You're overriding their ability to consent because you think the State knows better.  Not sure what would give you that idea.  The State generally sucks at this kind of decision-making.

Your real problem here is ... who's the victim?  And, who's the criminal?  Who are you protecting?  From whom?

On your "voyeurism/consent" theory, the criminal would theoretically be the viewer and the victim would be the the performer.  You'd have to pass a law specifically invalidating the ability of a grown woman to consent to sex if there's a camera in the room.  Similar to statutory rape laws, I guess.  Expect riots.

You could then charge the viewer with statutory voyeurism.  But ... I don't see how a case gets made.  Child porn laws center on kids inability to consent due to lack of agency.  You'll never get a law passed invalidating the ability of grown women to consent to sex like that.

You'd probably have better luck just saying "porn is bad, so should be illegal".  Monkeying with the ability of free adults to consent to sex would cause much more problems than it sounds ... and would get struck down faster than you could write it.

On the 'bodily property' theory ... I can't even figure out who you're charging with a crime here.  The other actor?  If the girl is the victim, and you're overriding her consent to save her from herself ... her co-star would be the one that extra-consensually penetrated her.  But ... you'd be overriding his consent as well, so she also had sex with him absent consent.  So ... mutual rape?  With no victim?

The producer?  The cameraman?  The viewer?  The performers?  Who's the criminal?  What do you charge them with?  To protect whom?  And ... who's going to testify?


JB

You've made some good legal points, I'm thinking primarily in regards to internet pornography which can be electronically distributed with little to no means of control.

In a situation such as a camwhore directly interacting with a specific client, that's one thing; however in a situation where a video or photograph is mass-distributed via the internet to entirely anonymous individuals with little-to-no direct interaction with the pornographic model, then I'm thinking a better case could possibly be made for an inability to give consent, but I'm not totally sure on this.

To me, there is a very big difference between posting (1) a video which has been approved by the persons who are appearing and (2) a video taken secretly without the persons who are appearing knowing about it.

True, however my argument is that potentially, it's impossible to give consent via mass-distribution mediums a la internet pornography, where there is little-to-no means of curation when and whom views it.

As opposed to something, such as a private phone sex line where the individual is directly interacting with a specific client.

So under this argument, while creating internet pornography wouldn't be invalid in and of itself, distributing it or hosting it via mediums, such as websites which allow for mass distribution to anonymous parties, would not.

What is your basis for that argument?  Just coming up with a theory off the top of your head is not an argument.  It has to be based on some reasonable understanding of the law ... or at least some reasonable understanding of the words themselves.

Where did you get the idea that consent is undermined by mass distribution?  Why wouldn't the right to contract override that?  If somebody signs an agreement acknowledging that the film will be distributed -- with no means of 'curation' -- on what basis is that contract invalid?

JB

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