Father Bruce Ritter Pornography and Privacy

Porn Studies > Meese Report Table of Contents

Table of Contents
  1. The Material In Question
  2. Anthropological Perspectives
    1. Genital Nudity
    2. Sexual Intercourse
  3. Western and American Traditions
  4. Sexual privacy in Modern America
    1. Attitudes and Practices
    2. The Law
  5. Pornography and Harm to Privacy

An American has no sense of privacy. He does not know what it means. There is no such thing in the country.
-- George Bernard Shaw

Introduction

If there is one single lesson we have learned from studying the "problem of pornography," it may simply be that Mr. Shaw's acid observations on American privacy may finally be coming true. Commercially produced material, regularly distributed to millions of Americans, shows other Americans, in explicit photographic detail, engaged in every variety of sexual intercourse. What might have been considered at one time the most private of human activities is now a matter not simply for public discussion but for graphic public display.

We have not fully agreed among ourselves whether this aspect of "pornography"-one which cuts across all the categories we have used in discussing other issues-should be deemed a "harm." Some of us have viewed the end of the taboo on public sex as at least an ambivalent event, with its possible benefits including an end to ignorant repression of knowledge and dialogue about sexuality. For the rest of us, however, the issue is a clear one, and, with limited exceptions explained below, we consider the assault of pornography on sexual privacy to be one of its most direct and corrosive harms. Because that view has not often been articulated in the debate over sexually explicit materials, however, we feel bound to explain it fully.

That explanation must begin by acknowledging that a concern for "sexual privacy" does not arise in every type of material considered "pornographic." That it arises at all is the result, as we attempt to explain, of deep cultural, moral, and even biological norms that are generally taken for granted, but not generally discussed. Finally the extent to which those norms represent values important to America and Americans-and the extent to which sexually explicit material offends those values-is a matter we believe deserving of substantial consideration by scholars, legislators, and the general public.

The Material in Question

That the debate over "pornography" has traditionally been carried on with only limited reference to questions of privacy is hardly surprising. Not until the last fifteen years-that is, after the 1970 Commission Report-did substantial quantities of material appear on the general market which depict full, highly provocative genital nudity and actual (rather than simulated) sexual intercourse. Many of the great "obscenity" debates of this century-on, for example, Lady Chatterly's Lover and Tropic of Cancer-in fact centered solely on the printed word.

Simulated activity, drawings of sexual conduct, and the printed word may cause concern on other grounds but they are largely tangential to discussion of sexual privacy. It is true, as Warren and Brandeis so eloquently explained almost a century ago, that grave damage may be done when "to satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers."[3] Nevertheless it is also true that the process of such "broadcast" is a largely indirect one: for damage to occur the writer must be regarded as credible and the reader must exercise his imagination. Photographic representations as we explained in discussing the role of performers in modern commercial pornography, can show actual sexual relations in such a way that those who are shown cannot deny what happened, and those who view the depictions cannot avoid the full force of the images presented.

We thus limit our discussion of "pornography" in this section to that specific form of it which seems to have most urgent and clear-cut effects on sexual privacy-that is, photographic (or live) portrayals of actual sexual intercourse or of full genital nudity designed solely to excite sexual arousal.[4] The direct,

Anthropological Perspective

While acutely aware of the limitations of anthropological evidence for arguing "what ought to be" for modern industrial society, we think it at lease worth noting two propositions which are widely accepted by anthropologists and which seem of real importance for our inquiry: (1) public display of genitalia is extremely rare among human cultures; and (2) sexual intercourse universally occurs under conditions of privacy. Both have relevance as indicating basic taboos which are more often explained in moral or religious terms.

Genital Nudity.

In their still standard overview of 191 human cultures, Ford and Beach found that, "There are no peoples in our sample who generally allow women to expose their genitals under any but the most restricted of circumstances."[5]

In those few societies where women occasionally expose their genitals-e.g., the Lesu, Dahomeans and Kurtatchi-it is a deliberate gesture to invite sexual advanced[6] Conversely the social controls imposed by primitive, semi-primitive and advanced cultures appear to be founded in "the prevention of accidental exposure under conditions that might provoke sexual advances by men."[7] A number of societies, however, place no restrictions on display of male genitals, and in a few nudity in both sexes is accepted.[8] Even in those few which allow such nudity-e.g., the Australian aborigines-strict rules forbid staring at genitals.[9] It is therefore possible to say, in the words of one anthropologist, that "some form of sexual modesty is observed in all societies."[10] That modesty distinguishes humans from all other primates.[11]

Sexual Intercourse

If the privacy of genitalia is the subject of limited variation among cultures, the privacy of sexual intercourse is not. Every human culture is characterized by an insistence on seclusion for sexual union, although physical conditions may make absolute privacy difficult to achieve.[12] Thus when more than one family shares a dwelling, couples will generally copulate in a secluded place outdoors.[13] Children are strictly admonished to ignore their parents' sexual behavior where it is possible they might see it.[14] Among humans, according to one scholar, "sexual privacy, like the incest taboos, is virtually pancultural"[15] Only chimpanzees among all animals have the same absolute regime of sexual privacy-a fact suggesting that this impulse is biological in nature.[16]

Margaret Mead's famous study of Samoan culture-widely regarded as a plea for more sexual openness-provides powerful evidence for the extraordinary impulse toward sexual privacy even in a society with sexual practices far different than our own. There she found married couples sharing large rooms, but careful to preserve some sense of privacy even within the house by means of "purely formal walls" of mosquito netting.[17] Outside the house the urge to privacy is extraordinary, as she discussed in describing the sexual knowledge of Samoan children:

In matters of sex the ten-year-olds are equally sophisticated, although they witness sex activities only surreptitiously, since all expressions of affection are rigorously barred in public.... The only sort of demonstration which ever occurs in public is of the horseplay variety between young people whose affections are not really involved. This romping is particularly prevalent in groups of women, often taking the form of playfully snatching at the sex organs.[18]

Even in a culture she found to be so free of "stress and strain,"[19] the pancultural norms of sexual privacy were strictly observed.

Western and American Traditions

Margaret Mead's disdain for the "Puritanical self-accusations" which characterize Western attitudes toward sexual freedom did not extend to the insistence of our culture on the private nature of sexual conduct. And indeed, any such disdain would be impossible for an anthropologist, for sexual privacy is at the very heart of our own culture-assumed in every major strand of Western thought, and incorporated now in American common and constitutional law. So clear, indeed, is the strength of the traditional belief in sexual privacy, that we view only a brief discussion as necessary. The historical pedigree of that belief is traceable at least to the customs of the ancient world. One historian has found that for ancient Jews nudity was "barbaric and indecent," and that "in Biblical times, it seems, the Hebrews did not come in contact with tribes that were not sensitive to the shame of nakedness"[20] In the ancient Hellenic world "nakedness was a vulgarity" that was publicly permitted only in such specialized settings as the gymnasium.[21] Indeed, Plato went so far as to urge shame and complete secrecy in all matters related to sexual liaisons.[22] And even the most graphic Greek paintings of sexual conduct used "formula" faces that were not meant to reproduce the features of specific persons.[23] Exposing the naked body of another person, in the ancient world, was a means of humiliation reserved for slaves and war captives.[24]

Developments in Western culture from its Judaic and Hellenic roots until only very recently were all in the direction of strengthening the already strict taboos of sexual privacy. Subsequent Western attitudes toward the subject were perhaps best summarized by St. Augustine, himself no stranger to sexual excess, even before the fall of Rome:

And rather will a man endure a crowd of witnesses when he is unjustly venting his anger on someone than the eye of one man when he innocently copulates with his wife.[25]

Social conditions-in particular, housing consisting of one room for an entire family-even through the early modern and industrial periods of Western history made it difficult to maintain absolute sexual privacy in the home, particularly in the presence of family members.[26] But the first impulse of every class as it obtained the power to do so has been to obtain more personal privacy, particularly in respect to sexual matters.[27] By the beginning of this century sexual privacy had assumed so important a role in Western thought that Freud could suggest, with some force, that the awakening of sexual modesty was a crucial event in the founding of human civilization itself.[28]

Whatever its relation to civilization generally, privacy in sexual matters has long been a deeply ingrained part of American culture. From the often strict religious repression of the colonial period[29] through the more freewheeling nineteenth century,[30] sexual modesty was highly esteemed. Mark Twain and Henry James would have disputed the value of almost every social restriction of late Victorian society; on the need for sexual reticence, however, they stood shoulder to shoulder.[31]

Sexual Privacy in Modern America

The gap between our novelists and the author of Portrait of a Lady is indeed a great one, and it is clear that our more liberal notions of sexual reticence form a substantial part of the difference. Yet before simply conceding that privacy in sexual conduct has been relegated to a minor role in modern American life, it would be well to consider two important facts. First, for all their changing mores, Americans still appear to assert strongly their need for privacy in matters sexual. Second, American law in this century has recognized that need ever more forcefully. The combination of these facts, along with evidence from anthropology and history, forms for us the basis on which the "harms" and "benefits" of pornography may, in this area, be assessed.

Attitudes and Practice.

In launching their seminal investigation of American sexuality Alfred Kinsey and his colleagues had this to say about their subjects' need for privacy:

Our laws and customs are so far removed from the actual behavior of the human animal that there are few persons who can afford to let their full histories be known to the courts or even to their neighbors and their best friends: and persons who are expected to disclose their sex histories must be assured that the record will never become known in connection with them as individuals.[32]

In the nearly four decades that have followed, many of Kinsey's hopes for greater sexual tolerance have been realized, but the acute need for sexual privacy has remained. One of the best indicators of that need has been in fact a wrenching problem for researchers attempting to conduct scientific study of pornography: the extraordinarily low volunteer rate for such experiments. In one careful study specifically designed to measure differences between volunteers and nonvolunteers in a sex-film experiment, less than one third of the males and only one in seven of the females agreed to participate if they would be required to be "partially undressed [from the waist down]."[33]

Indeed, no more than half of another group agreed to participate even when told only that they would be watching "erotic movies depicting explicit sexual scenes," with no references to undressing and with assurances that they would be wholly unobserved and that all data would be completely confidential.[34]

Two interesting pieces of evidence from Canada, for which no comparable data for the United States exist, offer a parallel to these laboratory observations. The Badgley Committee surveyed 229 juvenile prostitutes and found that almost 60 percent of both males and females had been asked at least once by clients to be the subjects of sexually explicit depictions. Yet among those requested-teenagers desperate for money who regularly sold their sexual favors to strangers-less than a third agreed to be photographed.[35] Of equal significance, the Fraser Committee conducted a national survey to determine the attitudes of Canadians toward pornography, and found that while 66 percent of their sample declared private viewing of sexually explicit material to be acceptable, only 32 percent could approve of the production of such material, even if no one is "hurt" in the process.[36] Apparently pornography previously produced with someone else's son or daughter is tolerable to Canadians; material which might be produced with one's own child is not.

In reaching our conclusion that current American mores continue tightly to embrace sexual privacy, we note that American psychiatrists adhere to their longstanding view that exhibitionism and voyeurism are clear and saddening personality disorders. One overview of their effects finds that they:

are accompanied by an inconspicuous but real alteration in character, with chronic; anxiety beyond the immediate fear of being caught, guilt, fear of losing one's mind, shame, and, usually, inhibition of normal sexual responses. Relief after arrest is common.[37]

Pornography aside, healthy Americans simply do not attempt to peek into other people's bedrooms, and have no interest in showing off their sexual organs to strangers. The "chronic anxiety" attending exhibitionism and voyeurism is thus a reflection of our society's deeply shared commitment to preserving the privacy of sex.

The Law

That commitment has firm, if only recently developed, expression in American law. After the Warren and Brandeis article of 1890[38]-which was provoked by the outrage of a Boston matriarch over the smarmy treatment by the newspapers of her daughter's wedding[39]-the right of Americans to be free from publicity about the graphic details of their sex lives became enshrined as a fundamental principle of the common law.[40] As we discussed in our review of the use of performers in pornography, the courts have recently recognized that this principle may be applied to protect those who are photographed while nude or engaged in sexual relations.[41] The Supreme Court, in New York v. Ferber, seemed recently to imply that the "privacy interests" of those depicted in pornography may have, as well, constitutional weight even on the strongly-tipped scales of First Amendment analysis.[42] The special importance of sexual relations has for more than two decades been crucial to the development by the Court of the whole concept of a constitutional "right of privacy."[43]

Pornography and the Harm to Privacy

Simply stating what is does not resolve what ought to be. Finding that sexual privacy is pancultural, that it has been a stable feature of western civilization for as long as we have knowledge, and that it currently remains highly valued by Americans in their attitudes, practices and laws, does not ineluctably require a finding that the taboo of sexual privacy ought to continue to be held in such high esteem. But we think that these findings, while not constituting a form of "proof" themselves, are nevertheless crucial in assessing where the burden of proof ought to rest. in all fairness, we believe, it should rest on those seeking to sweep away the taboo.[44] Does current, photographic pornography offend that taboo? And if so, what is the harm? The answer to the first question is obvious to anyone who views the wholly graphic, undiluted sexual exhibitionism inherent even to "consenting pornography." Nothing is left for the viewer to imagine; no attempt is made to conceal either the face or the genitals of the performers. The consumer of "standard" pornography in the 1980's, unlike the consumers of the materials generally available at the time of the 1970 Commission Report, is a full witness to the most intimate, the most private activity of another human being.

That this is a "harm" we think undisputable, on several grounds. First, those who "perform" in current pornography are, as a group, extremely young, ignorant, confused and exploited; as we have discussed in our examination of their situations, they very frequently cannot be said to have given an informed consent to their use. Second, even when such consent exists, such performances, where they are given in exchange for money, are inseparable from prostitution, and degrade the performers in exactly the same ways as prostitutes are injured by their profession. Neither of these concerns applies, by contrast, to the making of noncommercial, sexually explicit films for use in education or sex therapy-arenas where the reputations of performers are unlikely to be damaged.

Quite apart from injury to performers, though, we believe that injury occurs to society as a whole from such performances, injury that may best be described as the blurring of legitimate boundaries for public dialogue on sexuality. Where no reticence is allowed, where only the act of sex is regarded as an authentic statement about its meaning, most citizens can be expected to withdraw, rather than enter the discussion. Reducing the general sense that some aspects of every person's sexual life are so unique as to deserve special deference means, we think, that many will all the more militantly seek to shut out any dialogue on sexuality altogether. The virulent, devastating divisiveness over sex education in the public schools is, we think, a symptom of the fears that can arise from this destruction of the sense of boundaries.

Now against all of this, what proof is offered that the taboo of sexual privacy should be dismissed with regard to filmed pornography?

Some argue, convincingly enough, that such pornography expresses an idea, if no more elaborate an idea than an attack on sexual privacy itself. Yet that is hardly an argument against the "harm" we have discussed, for ideas can be as harmful as, indeed more harmful than a wide variety of more concrete afflictions. Others contend that the extreme reticence on sexual matters practiced by our society in the past was repressive of and injurious to healthy sexuality. That is also, so far as it goes, true enough. But do we need to pay other people to copulate for us on film in order to discuss sexuality freely?

Surely the case for that need has not been made with even minimal rigor. And even if it had been made, we remain convinced, as we said above, that as many of us are silenced in the resulting dialogue as are given voice. Indeed, after a year of witnessing the grotesque sexism of commercial pornography, we now have begun to understand what Catherine MacKinnon, Andrea Dworkin, and others meant when they told us that pornography "silences" women.

Photographic pornography silences and it also degrades.[45] With the exception of noncommercial material produced for educational or therapeutic purposes, it exploits some human beings in violation of some of mankind's deepest instincts about the privacy of sexual conduct. The "right of the Nation and of the States to maintain a decent society,"[46] recognized in dissent by Chief Justice Warren and by a majority of the Supreme Court since 1973,[47] largely means only this: some aspects of American life, and of American sexual behavior, deserve special protection from intrusion, public display, and commercial mass marketing. Mr. Shaw-and the sex industry-to the contrary notwithstanding, Americans do know the value of privacy. And it is a value that commercial pornography deeply offends.

Notes

  1. Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
  2. Thus not only "mere" nudity, but any form of nudity which is used for purposes-artistic, scientific, political, or educational-other than simple sexual provocation are outside the scope of our analysis. We do not deny that privacy concerns may be implicated even in these displays, see, New York v, Ferber, 458 U.S., pp. 747, 774-75 (O'Connor, J., concurring), but we do not believe the evidence suggests they represent nearly as substantial, a threat to sexual privacy as the material we include unmediated public display of human beings in graphic sexual conduct is a new phenomenon in the history of culture, and it represents, in our view, a development harmful to both individuals and society at large.
  3. C. Ford and F. Beach, Patterns of Sexual Behavior, p. 94 (1952), p. 945; W. Davenport, Sex in Cross Cultural Perspective in Human Sexuality in Form Perspective, pp. 115, 127-129 (F. Beach, ed. 1976).
  4. Ford and Beach, pp. 93-94.
  5. Id. p. 94.
  6. Id. p. 95.
  7. Davenport, supra note 1, p. 128.
  8. Id. See also A. Kinsey, et al., Sexual Behavior in the Human Female, (1953), pp. 283-285 (finding anthropological data showing acceptance of nudity only of children before adolescence).
  9. Ford and Beach, supra note 1, pp. 95, 105.
  10. Davenport, supra note 1, p. 148; Ford and Beach, supra note 1, pp. 68-71. Ford and Beach do list two partial exceptions to this rule-"some Formosan natives" who in the summertime "copulate out of doors and in public, provided there are no children around," and "Yapese couples" who, "though generally alone when they engage in intercourse, copulate almost anywhere out of doors and do not appear to mind the presence of other individuals:" Id. at 68. Neither of these exceptions, on close inspection, applies to more than "some" members of what amounts to 1 percent of Ford and Beach's sample of 191 cultures.
  11. Davenport, p. 150. Ford and Beach pp. 69-71.
  12. Davenport, pp. 149-150.
  13. G. Jensen, Human Sexual Behavior in Primate Perspective in Contemporary Sexual Behavior: Critical Issues in the 1970's, (1973), pp. 17, 22. Accord, D. Symms, The Evolution of Human Sexuality 67 (1979).
  14. Jensen, supra note 12, p. 67; Symms, supra note 12, p. 67, n. 4.
  15. Coming of Age in Samoa, p. 135 (1928, 1961 ed.).
  16. Id. pp. 134-35.
  17. Id. pp. 234.
  18. L.M. Epstein, Sex Laws and Customs in Judaism, (1948), pp. 26-27 (emphasis added).
  19. Id., p. 27. Romans did allow men and women to bathe together in the nude, id., p. 29.
  20. Plato Laws, p. 841 a-e.
  21. A. J. Dover, Greek Homosexuality (1978), p. 71.
  22. Epstein, supra note 19, at 31. "The male slave and the female slave had no sex personalities in the eyes of the ancients. They were considered as having no shame and incapable of causing the sense of shame in others." Id., p. 29.
  23. City of God, Book XIV, p. 468 (M. Dods trans. 1950). See J. Boswell, Christianity, Social Tolerance and Homosexuality, p. 188 (1980) (discussing monastic proscriptions against nudity); Jewish traditions proscribing nudity continues well into this century. Epstein, supra note 19, pp. 29-37 (noting reluctance even in twentieth century to approve modern bathing suits for women).
  24. P. Aries, Centuries of Childhood, p. 106 (1962) (children in ancient regime believed to be wholly "unaware of or indifferent to sex"; "gestures and physical contacts ... freely and publicly allowed [to children] ... were forbidden as soon as the child reached the age of puberty").
  25. Stone, supra note 25, p. 253-257.
  26. Civilization and Its Discontents, (J. Strachey ed 1961), p. 46 n 1. .
  27. For a full discussion of the "essential" quality of sexual privacy in the colonial period, see D. Flaherty, Privacy in Colonial New England, (1972) p. 79-84. See also F. Henriques, Prostitution in Europe and the Americas, (1965) pp. 230-45 .
  28. See generally, Note: The Right to Privacy in Nineteenth Century America 94 Narv. L. Rev. 1892 (1981). The great exception to the America's Victorian sense of sexual shame was the cavalier treatment of slaves' privacy in the Old South. F. Henriques, supra note 27, pp. 245-63. That exception is in line with long established notions about the unimportance of sexual privacy for slaves. See, supra note 22.
  29. Compare, for example, the treatment of sexual tension in Tom Sawyer with that of Washington Square. See also, The Secret Life I and The Secret Life II in S. Marcus, The Other Victorians (1964) (describing as "unique" a memoir describing in detail the sex life of a Victorian gentleman).
  30. Sexual Behavior in the Human Male, (1948), p. 44.
  31. Wolchik, Braver & Jensen (1985). See also, Wolchik, Spencer & Lisi (1983).
  32. 32. Wolchik, Braver & Jensen (1985).
  33. Badgley Report p. 104.
  34. Fraser Report p. 104.
  35. A Stanton Personality Disorders in The Harvard Guide to Modern Psychiatry, (1980), 283, 292 . See Riley, Exhibitionism: A Psycho-Legal Perspective, 16 San Diego L. Rev., (1979), 853, 854-57.
  36. See, supra note 1.
  37. Prosser, Privacy, p. 48 Cal. L. Rev. 383 (1960).
  38. See, Restatement (Second) of Torts 652D, Comment I. (1977); Wood v. Hustler Magazine. Inc., 736 F. 2d 1084 (1984), cert. denied 105 S. Ct. 783; Melvin v. Reid 112 Cal. App. 285, 297 91 (Dist. Ct. App. 1931).
  39. See, Use of Performers in Commercial Pornography, supra, in Part Four.
  40. 458 U.S. 759 a. 10; See also, Bell v. Wolfish 441 U. S. 520, 558-60 (1979) (recognizing "privacy interests" of prisoners implicated by strip searches).
  41. See especially Griswold v. Connecticut, 381 U.S. 479 (1965). See also, Carey v. Population Services Int'I, 431 U.S. 678 (1977); Roe v. Wade, 410 U.S. 113 (1973).
  42. Likewise we believe that the critics of sexual taboos regarding incest or child molestation, see e.g., I. Constantini, The Sexual Rights of Children: Implications of a Radical Perspective, in Children and Sex 4, (1981), p. 255, must bear a similar burden of proof in arguing their cause.
  43. Compare, Williams Report 138 (live sex shows considered "especially degrading to audience and performers because of their "being in the same space" during performance of intercourse; no account taken of the fact that photographic pornography can only be made if cameraman or photographer is "in the same space" as the performers), criticized in Dworkin, Is There a Right to Pornography? 3 Oxford J. Legal Stud., (1981), 177, 180-183.
  44. Jacobellis v. Ohio, 378 U.S., pp. 184, 199 (1964).
  45. Paris Adult Theater I v. Slaton, 413 U.S., (1973), pp. 49, 59-60, (quoting Warren).

Statement of Father Bruce Ritter

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