Sex for Sale~Prostitution, Pornography and the Sex Industry (5 page)

Such curbs do not satisfy those who want such establishments totally banned. Local-level struggles occur periodically throughout the country.

Tactics include picketing outside an adult business, lobbying municipal officials, petition drives, and videotaping customers entering clubs and stores.

Such efforts can pay off in convincing local officials to impose stringent controls on adult entertainment venues. In addition to instrumental efforts to change policy, groups use symbolic tactics as well: an Indiana group, for example, recently erected a billboard with a red slash through a triple-X

symbol next to a picture of a young woman. The caption read: “Someone’s Daughter”—an attempt to personalize the threat posed by porn.85

It is often claimed that adult stores and strip clubs have negative

“secondary effects” on surrounding communities, such as increased crime. This argument was used successfully in the 1990s in New York City to justify the
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closure of many establishments in the Times Square area. A detailed discussion of the evidence supporting or contradicting the alleged adverse secondary effects is not possible here, but research studies give little credence to this claim. In fact: “Those studies that are scientifically credible demonstrate either no negative secondary effects associated with adult businesses or a reversal of the presumed negative effect.”86 The most sophisticated study found that crime was much more prevalent in the immediate vicinity of bars and gas stations than in the area near strip clubs, partly because of the security measures (bouncers, video surveillance) implemented by strip clubs.87

Pornography is legal in America as long as it does not depict minors and is not obscene. The prevailing test of obscenity remains the Supreme Court’s landmark 1973
Miller v. California
decision, which held that local “community standards” are to govern definitions of what constitutes obscene materials. Local prosecutors decide whether to prosecute a producer or distributor for a particular sexually explicit film, magazine, or other work; if prosecuted, the item is presented to a jury that decides whether it is obscene.
Miller
stipulated that the obscenity test would be whether the average person in a community would find that the work appeals to “prurient interests,” depicts sexual conduct in a “patently offensive way,” and lacks literary, artistic, political, or scientific value.88 The community standards rule means that a work that is considered obscene in one jurisdiction may not be deemed obscene in another place. The only national standard on obscenity is the blanket prohibition on producing, possessing, or distributing child pornography.

Antipornography campaigns have been launched at various points in American history, with mixed success. In the early 1980s, activists Andrea Dworkin and Catherine MacKinnon succeeded in getting the city councils of Minneapolis and Indianapolis to approve far reaching antiporn ordinances. The laws allowed any woman “as a woman acting against the subordination of women” to initiate a lawsuit or file a complaint against anyone involved the production, exhibition, sale, or distribution of pornography. The individual would not need to demonstrate direct harm to oneself or others from pornography; instead, the claimant could simply act on behalf of women. The ordinances defined pornography vaguely as “the sexually explicit subordination of women, graphically depicted.”89 To be actionable, the work would have to include one of nine features, including images of women “presented dehumanized as sexual objects,” women “presented as whores by nature,” or women

“presented in scenarios of degradation.”90 The terms “dehumanized,” “objects,”

“whores by nature,” and “degradation” are extremely elastic, and some people see all pornography in these ways. In Minneapolis, the proposed ordinance was vetoed by the mayor but the Indianapolis ordinance became law only to be
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overturned in the courts on the grounds that it would prohibit a range of materials that were legal under
Miller
.91

These municipal campaigns were followed by the equally controversial 1986 national commission appointed by Attorney-General Edwin Meese. The commission distinguished itself with its politically stacked membership, unfair procedures, and neglect of evidence running counter to its agenda.92

Almost all of the material presented in support of a government crackdown on porn was anecdotal, based on the testimony of self-described victims recruited to appear before the panel.93 It was therefore no surprise that the commission concluded that exposure to pornography contributed to sex crimes and other abuses of women.

The Meese Commission marked a turning point in the government’s approach to pornography and demonstrated how quickly official policy and enforcement practices can change in the field of sex work. The U.S. Justice Department formally accepted the commission’s recommendations and produced a report outlining steps the department was taking to implement them.94 With a new Obscenity Enforcement Unit and its “Project Postporn,”

the Justice Department assumed a leading role in the campaign against the industry. Drastic changes were envisioned, as the new unit proclaimed: “Only by removing whole businesses from society . . . will significant progress be made against the existing industry.”95 The unit used antiracketeering (RICO) forfeiture laws to close adult book and video stores and relied on the novel tactic of simultaneous, multidistrict prosecutions of pornography distributors in order to bankrupt and close these businesses. Under this innovative strategy, a company was charged with violations of federal criminal law in several states at the same time. The goal was to force a company out of business under the weight of logistical demands and legal costs incurred in fighting numerous court cases in various jurisdictions. The targets were not confined to child pornography or extreme porn (e.g., featuring bestiality or simulated rape scenes) but included mainstream porn as well.96 Prosecutors in the obscenity unit typically included Utah as one of the jurisdictions for multiple prosecutions, because its archconservative climate virtually guaranteed a conviction.

Enforcement against the pornography industry increased dramatically after the publication of the Meese report.97 Whereas only 100 individuals had been prosecuted for violations of obscenity statutes between 1978 and 1986, the number of indictments quadrupled between 1987 and 1991. A top official in the obscenity unit revealed, “From 1988 to 1995, we [the Justice Department] got 130 convictions, took in $25 million in fines and forfeiture, and convicted most of the kingpins of the pornography industry at least
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once.”98 Meanwhile, several federal courts denounced the multidistrict prosecution strategy as a form of harassment.

The Clinton administration discontinued the policy of multidistrict prosecutions of distributors,99 and it changed the obscenity unit’s focus toward child pornography, renaming it the Child Exploitation and Obscenity Unit (CEOS). But, in a return to the past, the second Bush administration launched a new effort against adult pornography. It expanded and allocated additional resources to CEOS.100 The Washington office of CEOS includes a team of specialists assigned to the daily task of searching the Internet for pornography, tracing the producers, and pursing tips sent in by citizens.101

In May 2005, Attorney-General Alberto Gonzales created a new office, the Obscenity Prosecution Taskforce, dedicated solely to the investigation and prosecution of hardcore pornography distributors.102 The taskforce’s agents work with the 93 local U.S. attorneys to prosecute obscenity crimes under the federal statutes that ban the transfer of obscene materials through the mail, via computer services, or through any other means of interstate or foreign commerce.

Some leading officials from the Reagan years have been reappointed to the department’s obscenity unit, including the head of the unit, Brent Ward. As U.S. Attorney in Utah during the Reagan administration, Ward vigorously prosecuted distributors of video pornography, attempted to impose greater controls on strip clubs, prosecuted a phone sex company, and closed Utah’s two remaining adult theaters.103 Another major figure is Bruce Taylor, who served in the Justice Department’s obscenity unit in the Reagan years, was legal counsel for the nation’s premier antipornography group (Citizens for Decency through Law, founded in 1956), and served as president of another antiporn group (the National Law Center for Children and Families). He is now the obscenity unit’s senior legal counsel.104 Since he has been such a major player in the antiporn crusade, both as Justice Department official during two administrations and as an activist, Taylor’s views on pornography are especially noteworthy:

I still believe that pornography has a bad effect on society and on families, and it’s not a good thing for guys to look at. It’s like the training manual for how guys get to be chauvinist jerks. I mean, you don’t treat a woman well if you treat her like she’s treated in a porn movie. It’s not the kind of thing you want your boy to be looking at or that the guy who comes to date your daughter is looking at. You don’t want your husband looking at it. You don’t want your boyfriend looking at it. You don’t really want your wife looking at it.105

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Taylor has a rather expansive definition of obscenity, which may be much broader than what some community standards would define as obscene. For Taylor, all depictions of penetration are by definition obscene, which means that “just about everything on the Internet and almost everything in the video stores and everything in the adult bookstores is still prosecutable [as] illegal obscenity.”106

The continuing debate over pornography illustrates the twin trends regarding the sex industry in America. As noted earlier in the chapter, there is evidence of a degree of normalization or mainstreaming of sexual commerce and its growing availability via the Internet. At the same time, this trend runs up against a countertrend fueled by some powerful forces inside and outside local and federal governments—forces intent on criminalizing and stigmatizing the sex industry. The notion of a fierce “sex war” remains as apt today as it was in the past, and these two trends are apparent both in the U.S. and internationally.

Prostitution: Decriminalization and Legalization

Prostitution is treated in a more uniform manner in the United States, with
criminalization
being the reigning policy. This means that solicitation to engage in an act of prostitution is illegal, except in certain counties in Nevada, where about 30 legal brothels exist. Other offenses include pimping, pandering, trafficking, operating a brothel, and running an agency that offers sexual services.

Approximately 80,000 arrests are made in the United States every year for violation of prostitution laws,107 in addition to an unknown number of arrests of prostitutes under disorderly conduct or loitering statutes. Most arrests involve the street trade, although indoor workers are targeted in some cities. Regarding street prostitution, arrests have the effect of either (1)
containment
within a particular area, where prostitutes are occasionally subjected to the revolving door of arrest, fines, brief jail time, and release, or (2)
displacement
to another locale where the same revolving-door dynamic recurs. Containment is the norm throughout the United States; displacement requires sustained police crackdowns, which are rare. During crackdowns, workers may simply relocate to an adjoining police precinct where enforcement is lax or move across the city limits into another jurisdiction.

Full decriminalization
would remove all criminal penalties and leave prostitution unregulated, albeit subject to conventional norms against nuisances, sex in public, or disorderly conduct. Under full decriminalization, street prostitution could exist on any street, so long as the workers and
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customers did not disturb the peace or violate other ordinances.
Partial
decriminalization
would reduce but not eliminate penalties—the penalty might be a fine instead of incarceration or the charge may be reduced from a felony to a misdemeanor or violation. A third possibility is
de facto decriminalization
, which simply means that the existing law is not enforced, yet the offense remains in the penal code. Decriminalization may or may not be a precursor to legalization (government regulation).

Proposals for full decriminalization run up against a wall of public opposition. A 1983 poll found that only 7% of Americans thought that there should be “no laws against prostitution” and, in 1990, 22% felt that prostitution should be “left to the individual” and neither outlawed nor regulated by government.108 American policymakers are almost universally opposed to the idea, making it a nonstarter in any serious discussion of policy alternatives. Advocates sometimes manage to get it placed on the public agenda, however. In 1994, the San Francisco Board of Supervisors created a Taskforce on Prostitution to explore alternatives to existing prostitution policy. After months of meetings, a majority of the members voted to recommend decriminalization,109 but the board of supervisors rejected the idea. In 2008, a measure on the ballot in San Francisco stipulated that the police would discontinue enforcing all laws against prostitution; the measure was rejected by 58% of voters. A similar ballot measure in Berkeley, California, in 2004 called on police to give prostitution enforcement the

“lowest priority.” The measure was also defeated, with 64% voting against it.110 Opposition was likely due to both measures’ laissez-faire approach; people are more inclined to support some kind of regulation, just as they are with regard to some other vices. Still, it is noteworthy that 42% of San Franciscans voted for full decriminalization in 2008, suggesting that approval of this kind of policy shift remains a distinct possibility in the future, at least in this city.