From: wdstarr@crl.com (William December Starr) Newsgroups: comp.org.eff.talk,misc.legal,alt.censorship Subject: Re: Problems With The CDA? Date: 24 Jun 1995 11:01:41 -0700 Organization: CRL Dialup Internet Access Lines: 252 Message-ID: <3shju5$pj0@crl3.crl.com> References: <4402.1021.uupcb@hotline.com> <3s9dp7$4si@crl6.crl.com> In-reply-to: jthill@netcom.com (Jim Hill) In article , jthill@netcom.com (Jim Hill) said: >> "SECTION 1. ... Pornography is a systematic practice of exploitation >> and subordination based on sex that differently harms and disadvantages >> women through dehumanization, psychic assault, sexual exploitation, >> forced sex and prostitution, physical injury and social and sexual >> terrorism and inferiority presented as entertainment ..." > > As I read this, any material that is not provably -- and this is I > believe a criminal standard, so that's ~beyond reasonable doubt~ > provably -- part of such a systematic practice is by definition not > porn. There are an awful lot of "and"s to prove in there... > > What am I missing? You're not "missing"; rather, I've omitted. I didn't want to post the entirety of MacKinnon's proposed legislation, so you didn't get to see her proposed definition of "pornography," all of which would, of course, *by definition* constitute such a systematic practice. For those who are interested, here's the entire proposal which, as I said eralier, eventually died in the Judiciary Committee in the Massachusetts House of Representatives. All typos are mine, and I've reformatted things slightly in order to add some much-needed (imho) interline whitespace for readability. Other than that, what you get here is exactly what I got from the Massachusetts State House Documents Office on 4-16-92. -=-=-=- cut here -=-=-=- cut here -=-=-=- cut here -=-=-=- HOUSE . . . . . . . . No. 5194 ============================================ By Ms. Hildt of Amesbury, petition of Barbara Hildt, Mary Jeanette Murray, Nancy H. Evans, Marc D. Draisen, Barbara Gardner and Sally P. Kerans for legislation to protect the civil rights of women and children from pornography and sex discrimination. The Judiciary. ============================================ The Commonwealth of Massachusetts In the Year One Thousand Nine Hundred and Ninety-Two AN ACT TO PROTECT THE CIVIL RIGHTS OF WOMEN AND CHILDREN Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: SECTION 1. It is hereby found and declared that pornography is a practice of sex discrimination which exists in the commonwealth and threatens the health, safety, peace, welfare and equality of its citizens. Pornography is a systematic practice of exploitation and subordination based on sex that differently harms and disadvantages women through dehumanization, psychic assault, sexual exploitation, forced sex and prostitution, physical injury and social and sexual terrorism and inferiority presented as entertainment and existing laws have proven inadequate to solve the problem. It is further found that the bigotry and contempt which pornography promotes and the acts of aggression which it fosters: (a) diminish opportunities for equality of rights in employment, education, property, public accommodations, and public services; (b) create public and private harassment, persecution and denigration; promote injury and degradation such as rape, sexual abuse of children, and prostitution, and inhibit just enforcement of laws against these acts; (c) demean the reputations and diminish the occupational opportunities of individuals and groups on the basis of sex; (d) expose individuals who appear in pornography against their will to contempt, ridicule, hatred, humiliation, and embarrassment and target them for abuse and physical aggression; (e) lower the human dignity, worth, and civil status of women and damage mutual respect between the sexes; (f) contribute significantly to restricting women in particular from full exercise of citizenship and participation in the life of the community; and (g) undermine women's equal exercise of rights to speech and action guaranteed to all citizens under the laws and constitution of the commonwealth. SECTION 2. The General Laws are hereby amended by inserting after chapter 151E the following chapter: CHAPTER 151F. PROHIBITION OF CERTAIN SEX DISCRIMINATION Section 1. As used in this chapter, the word "pornography" shall mean the graphic sexually explicit subordination of women through pictures or words, including by electronic or other data retrieval systems, and shall further include the presentation of women's body parts, including but not limited to, vaginas, breasts or buttocks, such that women are reduced to such parts or the presentation of women: (a) as dehumanized sexual objects, things or commodities; (b) as sexual objects who enjoy humiliation or pain; (c) as sexual objects experiencing sexual pleasure in rape, incest or other sexual assault; (d) as sexual objects tied up or cut up or mutilated, bruised or physically hurt; (e) in postures or positions of sexual submission, servility or display; (f) being penetrated by objects or animals; or (g) in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in context that makes these conditions sexual. The use of men, children or transsexuals in the place of women shall also be deemed to be pornography for purposes of this definition. Section 2.(a) It shall be sex discrimination to coerce, intimidate or fraudulently induce any person into performing for pornography. The injury incurred hereunder may occur upon any appearance or sale of any product resulting from such performance. The maker, seller, exhibitor or distributor of said pornography may be liable for damages and subject to an injunction to prohibit or eliminate such product from the public view. For purposes of this subsection proof of the following facts shall not, singly or in combination, disprove coercion: (1) the person is a woman or a girl; (2) the person is or has been a prostitute; (3) the person has attained the age of majority; (4) the person is connected by blood or marriage to anyone involved in or related to the making of the pornography; (5) the person has previously had, or been thought to have had, sexual relations with anyone, including anyone involved in or related to the making of the pornography; (6) the person has previously posed for sexually explicit pictures with or for anyone, including anyone involved in or related to the making of the pornography; (7) anyone else, including a spouse or relative, has given permission on the person's behalf; (8) the person actually consented to a use of a performance that is then changed into pornography; (9) the person knew that the purpose of the acts or events in question was to make pornography; (10) the person showed no resistance or appeared to cooperate actively in the photographic sessions or events that produced the pornography; (11) the person signed a contract, or made statements affirming a willingness to cooperate in the production of the pornography; (12) no physical force, threats, or weapons were used in the making of the pornography; or (13) the person was paid or otherwise compensated. (b) it shall be sex discrimination to force pornography on a person in any place of employment, education, home, or any public place. Complaints may be brought only against the perpetrator of the force or the entity or institution responsible for the force. (c) It shall be sex discrimination to assault, physically attack, or injure any person in a way that is directly caused by specific pornography. Complaints may be brought against the perpetrator of the assault or attack, or against the maker, distributor, seller, or exhibitor of the specific pornography. (d) It shall be sex discrimination to defame any person through the unauthorized use in pornography of their proper name, image, or recognizable personal likeness. For purposes of this subsection, public figures shall be treated as private persons. Authorization once given may be revoked in writing any time prior to any publication. (e) It shall be sex discrimination to produce, sell, exhibit, or distribute pornography, including through private clubs. This subsection applies only to pornography made using live or dead human beings or animals. Isolated parts shall not be the sole basis for complaints under this subsection. City, state and federally funded public libraries or private and public university and college libraries in which pornography is available for study, including on open shelves but excluding special display presentations, shall not be construed to be trafficking in pornography. Any woman may bring a complaint hereunder as a woman acting against the subordination of women. Any man, child, or transsexual who alleges injury by pornography in the way women are injured by it may also complain. Section 3. It shall not be a defense to a complaint brought under this chapter that the respondent did not know or intend that the materials at issue were pornography or sex discrimination. No damages or compensation for losses shall be recoverable under subsection (e) of section two, or other than against the perpetrator of the assault or attack under subsection (c) of section (2), unless the defendant knew or had reason to know that the materials were pornography. Section 4. Any person who has a cause of action under this chapter, or their estate, may seek nominal, compensatory, punitive damages without limitation, including for loss, pain, suffering, reduced enjoyment of life, and special damages, as well as for reasonable costs, including attorneys' fees and costs of investigation. In claims brought under subsection (e) of section two, or other than against the perpetrator of the assault or attack under subsection (c) of section (2), no damages or compensation for losses shall be recoverable against a maker for pornography made, against a distributor for pornography distributed, against a seller for pornography sold, or against an exhibitor for pornography exhibited, prior to the effective date of this chapter. Any person who violates this law may be enjoined except that: (a) In actions under subsection (e) of section two, or other than against the perpetrator of the assault or attack under subsection (c) of section (2), no temporary or permanent injunction shall issue prior to a final judicial determination that the challenged activities constitute a violation of this law. (b) No temporary or permanent injunction shall extend beyond such pornography that, having been described with reasonable specificity by said order, is determined to be validly proscribed under this chapter. Section 5. The availability of relief under this chapter is not intended to be exclusive of and shall not preclude, or be precluded by, the seeking of any other relief, whether civil or criminal. Section 6. Complaints pursuant to this chapter shall be brought within six years of the accrual of the cause of action or from when the complainant reaches the age of majority, whichever is later. -=-=-=- cut here -=-=-=- cut here -=-=-=- cut here -=-=-=- -- William December Starr