Sex Offenses: Consensual

The laws regulating obscenity are extremely complex and far-reaching, but are narrowed here through the lens of the consensual aspects of the crimes. Obscenity, like most moral sexual regulation, was first regulated by ecclesiastical authorities. It was first criminalized in England in the eighteenth century. Obscene materials are a subset of sexually explicit materials. Materials that fit within the legal definition of obscenity are not protected as speech by the First Amendment to the U.S. Constitution (Roth v. United States, Miller v. California). The legal definition of obscenity has particular contours that will be discussed below. It is important to understand that the absence of free speech protection simply means state and federal governments are permitted to develop criminal law responses to the materials; it does not by itself mean that the materials are banned. They may not, however, develop criminal law responses to sexually explicit materials that fall outside the constitutional definition of obscenity, as those materials would be protected by the free speech clause of the First Amendment.

The most interesting question to the lay reader will be what this legal definition of obscenity is—which sexually explicit materials lack free speech protection. But arguably the question of how materials, once they are judged obscene, are then regulated, ought to inspire as much curiosity. The prior question, the definition of obscenity, does not really involve the question of consent as the concept is used in this entry. Free speech can be protected without being consensual; a person may speak about politics freely in the public square to nonconsenting listeners, or may advocate civil disobedience or trespassing against individuals or nations that clearly do not consent to the effects of such speech. That speech is protected by free speech principles despite its harmful third-party effects, and lack of consent does not remove legitimacy from the legal protections of speech. Whether sexually explicit materials enjoy this protection depends on the purpose, extent, and meaning of our free speech guarantee, and since obscene materials do not receive that protection, the legal definition of obscenity is one of the legal limits of the free speech guarantee. Consent is not a relevant question to this inquiry. However, consent is relevant to the question of how unprotected obscene materials are legally regulated. The definition of obscenity will be touched on briefly first, and then discussion will turn to the method of regulation.

The Supreme Court has determined that obscenity is not speech. Speech as the Court uses it must be understood not in its lay sense, but by reference to the reasons legal speech is protected by the Constitution: to promote the exchange of ideas. Obscene materials are not considered speech on the theory that they do not communicate ideas. They are instead deemed to be sexual aids, no more deserving of free speech protection than any other form of sexual aid. The Supreme Court has defined obscenity as all material that the average person, applying contemporary community standards, would find (1) taken as a whole, appeals to the prurient interest; (2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by state obscenity law; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. Implicit in the notion that this is not speech at all is that it does not communicate ideas, but is instead a form of sexual activity itself. If materials are sexually explicit but nonetheless convey a serious idea, they are speech and cannot be prohibited by obscenity laws (Miller v. California). Subject to some judicial scrutiny at the outer limits, juries decide whether allegedly obscene material meets the Miller definition of obscenity.

The individual consumption of obscene materials within one's home is constitutionally protected under the First Amendment as well as on privacy grounds (Stanley v. Georgia, United States v. Orito). This protection does not extend to carrying obscene materials across state borders or viewing obscene materials in movie theaters, for example, but remains confined to the home. This constitutional protection does not extend to the consumption of child pornography in the home (Osborne v. Ohio).

The private possession in the home of obscene materials that do not depict children cannot be prohibited. So what are the mechanisms for regulating obscenity? We will find that examination of the modes of regulation reveal the Victorian compromise: distribution and production with the intent to distribute is regulated, but not simple possession of obscene materials. An act that can be kept entirely private, then, and has no commercial gain involved, tends not to be a crime. But production and distribution of obscene materials is in fact prohibited almost everywhere in some form, and is usually punished as a misdemeanor. This is in part because commercial gains from obscenity may have third-party effects. For example, distribution areas may be associated with crime. In addition, production and distribution are crimes because the profit motive may lead to coercion in the production of obscene materials. Dissemination of obscene materials may offend those who inadvertently come into contact with the distribution system. Accordingly, many jurisdictions regulate which areas may sell obscene materials, keeping them out of the regular pathways of commercial activity and residential neighborhoods. Wide dissemination of these materials is thought to cause public desensitization to graphic sex, thereby affecting public morals. In the case of violent obscene materials, it is argued that they desensitize consumers to sexual violence, thereby inducing some individuals to commit such acts of violence. All of these potential harms affect third parties who are not the ones consenting to the sexual acts themselves.

No discussion of the regulation of obscenity is complete without attention to the feminist debate over pornography and its legal manifestations. Some feminists have argued that pornography, defined as sexually explicit materials that are degrading or dehumanizing to women, causes a number of harms that should be legally cognizable. Those include: (1) harms to individuals who are coerced to appear in pornographic materials; (2) harms to individuals who are victims of sexual assault perpetrated by one who has been incited to act after viewing pornography; and (3) a more diffuse harm to all women caused by the deterioration of the image of women through pornographic representations. The extent of each of these effects is debated fiercely. Some respected researchers have found that when sexually explicit images also depict violence, there is a causal connection between exposure to that aggressive pornography and propensity to commit violence against women (Malamuth and Donnerstein). Some have questioned the applicability of their work, performed under laboratory conditions, to real world crime, while others have argued that their laboratory work is supported by anecdotal evidence from the field.

In the mid-1980s, feminist legal reformer Catherine MacKinnon, along with feminist activist Andrea Dworkin, advocated in several cities for the passage of a local ordinance that would create a civil cause of action allowing monetary damages for anyone who could demonstrate that they had been harmed as a result of pornography. The statute would not prohibit the consumption or distribution of pornographic materials, and did not employ the criminal justice system. Instead, it was limited to private lawsuits by those who are assaulted in the making of pornography, who are assaulted by a consumer of pornography, or most controversially, who bring the suit on behalf of women who are subordinated by the pornography. The law was adopted by the city of Indianapolis, but a federal appellate court struck down the law as a violation of the First Amendment, taking issue with the definition of pornography within the statute (American Booksellers Association, Inc., v. Hudnut). That definition, which included the depiction of women as subordinate, encompasses both different and a greater range of materials than those defined as obscene within the Supreme Court's jurisprudence. These feminists have objected to obscenity prohibitions as a mechanism for addressing violence favoring the civil cause of action arising from pornography. Obscenity laws, they argue, are aimed at moral sensitivities, reflecting prudishness rather than concern over victims of violence. A cause of action against the makers of pornography, on the other hand, is aimed at sex discrimination, not moral sensitivities. However, the First Amendment jurisprudence in this area permits regulation of only those materials considered obscene, while protecting much of what is considered pornographic, so the feminist distinction does not have much impact on law in the United States. It has, however, influenced legal regulation of sexually explicit materials in neighboring Canada.

The striking exception to the rule that private possession of pornography in the home is not itself a crime is for the possession of child pornography. Through the lens of consent, the reason is obvious: real children are not able to consent to participation in the production of pornography. But the ban on possession of child pornography goes farther; it is constitutionally permissible to, and most states do in fact, ban possession of materials depicting children engaged in sexual activity even where real children are not used as models. This is justified by the belief that such materials will incite consumers to commit real world violence against children. It is an interesting exception to the arguments by some that adult pornography does not lead to violence against adults.