1. Background
   1. Problem of Definitions
   2. Evidence and Standard of Proof
2. The Evidence
   1. Changes in Rape Rates
   2. Correlational Evidence
      1. Danish and Other Cross-Cultural Data
      2. Sex-Magazine Circulation
      3. Sex Offenders and Pornography
      4. Conclusions from Correlational Evidence
   3. Experimental and Clinical Evidence
      1. Arousal
      2. Effects on Attitudes Toward Rape- "Disinhibition"
      3. Overall Evidence for "Causation"
   4. Evidence Against Causation
3. Conclusion
4. Notes

 Notes

1. 1970 Commission Report, at 287. See, Fraser Report, p. 99; Williams Report, p. 6186.
2. 1970 Commission Report, pp. 286-87.
3. For a review of many of those criticisms see Donnerstein & Malamuth (1984).
4. 1985 Newsweek Poll. Forty-seven percent of respondents would ban magazines showing adults having sexual relations, but only 21 percent favored such a ban for magazines depicting "nudity". Because many current popular magazines are clearly "degrading" in their portrayals, the difference in views seems more related to sexual explicitness than to the positive or negative portrayal of the person depicted.
5. Id.
6. See, e.g., Linz (1985) (excluding subjects from experiment if "psychoticism" or "hostility" score exceeded 1.0 on Symptom-checklist 90); Check (1985).
7. Sourcebook of Criminal Justice Statistics, (1984), p. 380, (hereinafter Sourcebook).
8. Id. The high point of both general violent crime rates and reported forcible rapes came in 1980, the former having risen 60 percent and the latter 95 percent from 1970 levels. From 1980 to 1983 the rate of all violent crime fell 9 percent, while reported forcible rape rates dropped by 7.5 percent. Id.
9. Id.
10. Id.
11. Rapid social change associated with "women's liberation" may also be viewed, of course, as making rape itself more likely-through setting up more possibilities of "acquaintance rape". See Geis & Geis, Rape in Stockholm: Is Permissiveness Relevant? 17 Criminology, (1979), p. 311. Women raped by "friends" may be less willing to involve criminal sanctions against their attackers. Thus it is at least arguable that "women's liberation" may in some respects have had a dampening effect on rape reporting rates.
12. National Crime Survey figures indicate that no better than half of all rapes are reported. Sourcebook, supra note 6, pp. 274-275.
13. Between 1973 and 1977 an average of 46.2 percent of all rapes went unreported according to the Survey; between 1978 and 1982 the average percentage of unreported rapes stood p. 48.2. Id.
14. Between 1973 and 1977 the average estimated number of actual rapes per year was 152,877; between 1978 and 1982 the average stood at 173,353, an increase of 13 percent. Id.
15. D. Russell, Sexual Exploitation, (1984), pp. 52-57. Professor Russell's survey was conducted in 1978, and so is of little value for determining recent trends in rape reporting. It does attest, however, to the fact that, historically, upward trends in police reports of rape have been consistent with actual incidence of the crime.
16. Baron and Strauss (1984), for example, found that every change of one standard deviation in the Status of Women Index in a given state is associated with a change in the rape rate of only 0.43 rapes per 100,000 population. By contrast, such a change in the homicide rate would result in a swing of 1.70 rapes, and a one-standard-deviation change in the Sex Magazine Circulation Index would cause a swing of 6.99 rapes (the highest of any variable studied). Id., p. 200.
17. 17. Kutchinsky (1984), pp. 24-25. Kutchinsky attempts to limit the damage of this concession by noting that the increase in rape reports did not substantially begin until 1977, several years after liberalization. He is not, however, able to rule out the possibility that Danish consumption of pornography took some time after legalization to reach substantial proportions.
18. F.D. Scott, Scandinavia, (1975), p. 247.
19. See, General Civil Penal Code of 22 May, 1902, Para. 211, as amended by Law of 24, May, 1985 (received in translated form from Jan Farberg, Norwegian Information Service).
20. According to the Public Information Office of Interpol the rate of reported sexual offenses in Denmark dropped 14.2 percent from 1970 to 1981. In West Germany, another country with liberal obscenity laws used by Kutchinsky in support of his argument, the rate dropped 19.8 percent during that span. In Norway, however, the drop was 33.7 percent in reported sex offenses from 1970 to 1981. These figures are not necessarily computed in the same manner from country to country and should thus be considered only with extreme caution. Nevertheless they do suggest the grave problems in Kutchinsky's selective use of sex-crime figures from one or two locations unembarrassed by historical or cross-cultural analysis.
21. See note 16, supra.
22. Scott (1985a). In another study Scott (1985b) found that no significant statistical relationship existed between rape rates in the states and the number of "adult theaters" per 100,000 residents in each state. That finding, however, is of almost no value on several grounds: (1) the study did not use multiple regression analysis to examine possible interdependence of the variables; (2) the number of "adult theatres" is an almost completely meaningless figure in view of the fact that each such theatre will sell a different quantity of sexually explicit materials, and no account is taken of that variation; and (3) "adult theatres" are so restricted by zoning, obscenity laws, and the need for urban or semi-urban locations that they cannot be assumed to measure exposure to sexually explicit materials among males who can, if necessary, purchase such materials through the mail.

    In their joint statement Commissioners Becker and Levine attempt to discount the importance of this correlational evidence by pointing to a letter from one of the researchers involved, Murray Strauss, which states (1) the correlational research does not "demonstrate" that pornography causes rape;" and (2) "the scientific evidence clearly indicates that the problem lies in the prevalence of violence in the media, not on sex in the media." Id., p. 13. Strauss' first statement is uncontestable: no correlation can, by itself, "demonstrate" causation. Strauss' concern about "misinterpretation" of his research seems somewhat bizarre in view of his published statement that his "findings suggest that the combination of a society that is characterized by a struggle to secure equal rights for women, by a high readership of sex magazines that depict women in ways that may legitimate violence, and by a context in which there is a high level of nonsexual violence, constitutes a mix of societal characteristics that precipitates rape." Baron & Strauss (1984), at 207. He then intimates that research suggests "social policies directed toward eliminating or mitigating the conditions that make rape more likely to occur." Id. It is Strauss, not the Commission, who has made suggestions of causal linkage based on correlational data alone. See also text to note 23.

    With regard to his second observation, that violence in the media seems to be "the problem" rather than sex, the research is very far from "clearly" indicating any such thing. Thus it has been found that with regard to same-sex interactions, nonviolent but highly arousing erotic material facilitates aggression substantially more than "violent" material. Donnerstein (1983b). And when, angered males are shown a nonviolent, "erotic" film, then allowed a short delay before testing, their aggressive behavior toward women has been shown to increase dramatically, to levels far higher than for similarly treated subjects shown violent or neutral films. Donnerstein & Hallam (1978). The "delay" factor seems crucial, as measurements of aggression toward women taken immediately after film exposure tend to suggest that "erotic" material does not increase aggression. Donnerstein (19836); Donnerstein & Berkowitz (1981). This "delayed reaction" effect is similar to that found by Zillman & Bryant (1982, 1984, 1985), in which "massive exposure" to nonviolent, degrading pornography over six weeks produced dramatic increases in subjects' acceptance of "rape myths" and "sex callousness." (By contrast Linz (1985) did not find such effects after a substantially shorter exposure period.) Obviously this experimental data is still at a primitive stage, but it hardly warrants the interpretation Strauss gives it.

23. Jaffee & Strauss (in press) p. 10. Rodney Stark, in Demonstrating Sociology (1985), has claimed to disprove the Baron and Strauss correlation, at least with respect to Playboy's circulation rates. Id., pp. 29-31. Because Stark's discussion of the issue is openly informal, and because the Baron and Strauss results have been replicated formally by others, Stark's view is not persuasive. See, Koss (1986) (in large sample of college students there existed a statistically significant relationship between prior consumption of pornography and self-reported sexual aggression).
24. Abel (1985), p. 5.
25. Dr. Abel has been asked to furnish the exact "p value" for this and other comparisons in his written testimony. For our purposes the appropriate level of "significance" in a matter such as this might be substantially different from that typically used in the social sciences. There a statistical difference between two groups is normally not described as "significant" unless there exists 95 percent probability that it did not occur by chance. The probability level appropriate for our use-which, after all, is only to determine whether a "substantial basis" far a finding exists-might be as low as 70 percent.
26. Houston Tr. 100. Earlier Dr. Abel has said the use of erotica by sex offenders "maintains their arousal over time, and therefore greater opportunities to commit further crimes occur." Id., p. 88.
27. Because of his limitation of his study to the role of "hard-core pornography" (not including the typical "adult magazines" referred to by Dr. Abel in his study) Dr. Marshall's results are in no sense directly comparable to those of Dr. Abel. He does, however, find a pattern of pornography being used so integrally in preparation for and commission of sex offenses as to make his evidence highly pertinent.
28. Id., pp. 97, 100.
29. Malamuth & Spinner (1979) (sexually violent content in Playboy and Penthouse from 1973 and 1977, amounted to less than 10 percent of total cartoon and pictorial content).
30. Thus Gross (1983) has criticized the research of Zillman and Bryant (1982) because he suspects the subjects "were giving the researchers what they thought they wanted." Id. at III. This, despite the elaborate efforts of the researchers to deceive the subjects into believing that they were most interested in aesthetic qualities of materials viewed, rather than their efforts on attitudes. Unfortunately Gross' criticism may be applicable to virtually any experiment in this area, or indeed in other areas of inquiry. And he is unable to suggest any way to surmount the artificiality inherent in laboratory experiments.
31. See e.g., Donnerstein (1980); 1970 Commission Report pp. 198-241.
32. Donnerstein (1984); Donnerstein (1983b); Sapolsky (1984).
33. Donnerstein (1984), p. 62.
34. . Id. Compare Check (1985) with Linz (1984). For further discussion of varying research results see, supra note 22.
35. See, Saplosky, (1984), p. 92; Wolchik, Braver & Jensen (1985).
36. Barbaree, Marshall & Lanthier, (1978); Abel, Recker & Skinner, (1980).
37. Marshall Statement p. 23.
38. Id.
39. Id.
40. Marshall (1984); Abel, Roulean and Cunningham-Rathmer (1985).
41. Abel, Blanchard & Jackson (1974); Marshall (1973); Marquis (1970); Davidson (1968).
42. Abel, Blanchard & Jackson (1974), p. 474.
43. Abel, Becker & Skinner (1980), p. 183. See e.g., Saplosky (1984).
44. Malamuth, Feshback & Jaffe (1977); Donnerstein, Donnerstein & Evans (1975).
45. Rape statistics, of course, measure only the number of such acts, and the "rate" of such acts for a constant population group. They do not, and cannot, measure rape as a percentage of all sexual behavior.
46. Some general support for this hypothesis may be found in the fact that as rape dramatically increased in incidence in post-war America, so did sexual activity among the young-the age group most prone to sexual violence. Thus only about one-half of males 21 years of younger had engaged in sexual intercourse at the time of the first Kinsey study. A. Kinsey, et al., Sexual Behavior in the Human Male 316, while currently over 90 percent of boys appear to have begun such activity by age 17. R. Coles & Stokes, Sex and the American Teenager 73 (1985) (The Coles & Stokes sure is somewhat ambiguous on this point; in another table the percent of 18 year olds "having had intercourse" is listed at 46 percent. Id., p. 73. In any case the trend toward earlier and greater sexual involvement is clear, for in Kinsey's survey only some 31 percent of all 18 year-old males had experienced sexual intercourse. Kinsey, supra, p. 316.
47. See generally, Malamuth (1984).
48. Zillman & Bryant (1985b).
49. Check (1985), Zillman & Bryant (1982, 1984); Donnerstein (1984).
50. Check (1985), p. 49.
51. Id., p. 53. Indeed, subjects with "low P" scores were not significantly affected by any of the sexually explicit materials, a finding which may call into question flat conclusions about the effects of pornography independent of the specific vulnerability of individual subjects, and which supports the role of a well-developed moral sense in mediating the effects of exposure.
52. Id. pp. 49, 53. It is notable that on the three measures of sexual violence in which no-exposure and "violent pornography" scores were significantly different, the "erotica" scores were slightly closer to those of the latter. Professor Check thus seems to have overstated the importance of his findings that "erotica" and "no exposure" scores were not "statistically significant".
53. Linz (1985).
54. Zillman and Bryant (1982, 1984, 1985), by contrast, used a six-week exposure model. Check (1985) used a time frame similar to Linz, but tested for prior consumption of pornography-finding that only those viewers with high previous consumption were affected by exposure to new materials. Thus the negative findings of Linz may well have to do with low prior exposure to pornography among his subjects-precluding, in the short time used, development of the effects of long-term exposure. See, infra text to note 57.
55. See, Zillman, Bryant & Carveth (1981) (viewing bestiality increased aggression due to "annoyance summation"). The shock value explanation for the Linz data is strengthened by the fact that later "debriefing" treatments over a six-month period seemed completely to reverse the effects of viewing these materials. Linz, p. 96.
56. Wolchik, Beaver & Jensen (1983).
57. Linz (1985), pp. 96-98.
58. Public hrgs. on Ordinances to Add Pornography as Discrimination Against Women, Minneapolis City Council, Sess. I, p. 31 (Dec. 12, 1983).
59. Id. at 32.
60. Badgley Report p. 1223. Of course graphic depictions of genitalia of nude models in such magazines-often with pubic hair shaved-serves as well to reduce those shown to the status of "sexual objects". This general description of magazines evaluated by Baron and Strauss and others should not be taken as specific to any one of them. Individual differences in format, and style and content may be crucial.
61. Thus Abel (1985) focused on such material in his study of sex offenders. As discussed above, supra text to notes 21-23, Dr. Abel's findings are ambivalent but troubling.
62. See Donnerstein (1984, 1980A).
63. Donnerstein & Hallam (1978).
64. For a discussion of the evidence on sex offenders presented by Dr. Abel and Dr. Marshall, see, supra text to notes 21-24,34-40.
65. Houston Tr., p. 100.
66. Fraser Report p. 98.
67. Check (1985). Indeed, Check found that on many measures sexually violent materials produced less "negative effects" than "dehumanizing pornography"-although not by "significant" margins. "Erotica," of course, was also found not to be "significantly" different in its effects than "no exposure:" See, supra note 52.
68. It is useful, as well, to compare the strength of our conclusions in this area with those of the Advisory Committee to the Surgeon General in an area which was at the time similarly contentious and difficult-the health risks of cigarette smoking. The evidence relied on for the Committee's conclusion was overwhelmingly correlational-showing higher death and illness rates among smokers than in non-smokers. The Committee recognized fully that correlational evidence did not show causality and looked to animal experiments, clinical data, and "population studies" (i.e., retrospective studies of smokers vs. control groups). Surg. Gen'l of the Pub. Health Serv, U. S. Dept. of H.E.W., (1964), pp. 26-27. With regard to lung cancer, those additional forms of evidence were sufficiently supportive of the correlational data to allow the Committee to conclude that "cigarette smoking is causally related to lung cancer in men"; with regard to women the data allowed the lesser conclusion that the data "point in the same direction." Id. p. 31. As for heart diseases, the Committee found that there existed a strong correlation between coronary disease and smoking, but found that the current explanations for causation from experimental and other evidence "do not account well for the observed association". Id. p. 327. Instead of throwing up its hands in the face of difficult and conflicting evidence the Committee said simply: "It is . . . more prudent to assume that the established association between cigarette smoking and coronary disease has causative meaning than to suspend judgement until no uncertainty remains:" Id.

    It would be presumptuous to compare the quantity of evidence before us with that reviewed by the Surgeon General's Committee; research on "pornography" is still in its infancy. But our responsibility to be as prudent as possible is the same, and the correlational evidence before us combined with at least a substantial strain of experimental and clinical data make it prudent to advise the public of the risks of the materials for which statistical data do exist.

Statement of Father Bruce Ritter