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Obscenity Prosecution Focus of Panel Hearing

On March 16, the Senate Judiciary Subcommittee on Constitution, Civil Rights and Property Rights held a hearing on obscenity prosecution and the Constitution. Presiding over the hearing, Sen. Sam Brownback (R-KS) stated, “The explosion of sexually-explicit material is not a problem that exists in the vacuum of constitutional theory; government has a compelling and real-life interest in the matter, because of porn’s adverse effects on individuals, families, and communities in the forms of criminality and addiction.”

Patrick Trueman, senior legal counsel for the Family Research Council, stated his observation that “pornography is closely linked to an increase in prostitution, child prostitution, and human trafficking.” Explaining that he served in the Department of Justice’s Child Exploitation and Obscenity Section (CEOS) under President George H.W. Bush, Mr. Trueman stated, “We found obscenity the law quite workable and, moreover, well understood by jurors who had to make decisions on the guilt or innocence of fellow citizens. To those who argue that the prosecution of obscenity crimes is a waste and an unwise use of resources, I would point out that during the time I was section chief of CEOS we received more than $24 million in fines and forfeitures as a result of our aggressive prosecution activities…We were successful not only in gaining convictions throughout the country, but in changing the nature of hardcore material produced. Themes of rape, incest, bestiality, pseudo-child pornography all common themes prior to our prosecution efforts disappeared from store shelves and were no longer produced by the major pornography companies.” Urging Attorney General Alberto Gonzales to continue the Department of Justice’s vigorous enforcement of obscenity laws, Mr. Trueman said that “a sound prosecution plan, should, in my judgment, include numerous prosecutions brought by multiple United States Attorneys, coordinated by CEOS, against the major producers and distributors of obscenity including publicly-traded companies that are now engaged in selling obscenity due to high profits,” adding, “Prosecutions should be on a wide variety of material.”

A law professor at Catholic University Robert Destro argued that existing obscenity and pornography laws “are clearly enforceable,” adding, “I strongly believe that the states and the Department of Justice should enforce them, but it should not be surprising that civil libertarians would oppose aggressive enforcement. Unless and until this Congress comes to grips with the fact that pornography is no more about ‘sex’ than rape is, the confusion will continue. Pornography is about money, and those who sell it traffic in materials that are an affront to the human dignity of the men and women who, for whatever reason, engage in sex-for-hire. The Commerce Clause [of the Constitution] gives Congress ample power to regulate the multi-billion dollar global sex trade.”

Frederick Schauer, a professor of the First Amendment at Harvard University, expressed his concern that the Department of Justice and state agencies do not have enough resources to increase obscenity prosecutions. “Because the production of child pornography by definition involves the abuse of real children, and because dealing with such child abuse should remain at the highest level of priority, there is a risk that increasing the quantity of obscenity prosecutions in a world of limited prosecutorial resources both financial and human will be at the expense of child pornography prosecutions. Such a reallocation of prosecutorial efforts away from child pornography would be inconsistent with wise policy, inconsistent with the recommendations of the Attorney General’s Commission on Pornography, and most importantly, inconsistent with the welfare of children.” He added, “Such a reallocation would not be necessary, of course, were new funds to be granted for obscenity prosecution.”

Professor Schauer also addressed the incidence of violence against women, stating that there is “evidence that endorsing portrayals of violence against women most commonly some variations on the rape fantasy in which men erroneously believe that women enjoy being raped or enjoy being the victims of sexual violence do bear a causal relationship to the incidence of sexual violence in the society, an effect that is independent of the degree of sexual explicitness.” He added, “Unfortunately, this concern for violence against women has largely dropped out of the most recent efforts to increase the level of federal obscenity prosecutions. Although a concern about violence against women is occasionally mentioned these days, such mention is rare and decidedly secondary, and there is little indication that prosecutions are to be restricted to the subset of the set of legally obscene materials that explicitly endorse or glorify such violence.” Professor Schauer concluded, “That the current pressure to increase the level of obscenity prosecution is based on issues of sexual morality, or on the supposed evils of pornography addiction, or on undocumented harmful effects on children, but virtually not at all on the real and scientifically supportable issue of violence against women, is inconsistent with the evidence, inconsistent with the conclusions of the Report of the Attorney General’s Commission on Pornography, and inconsistent with the wise allocation of scarce prosecutorial resources into areas where the problems are real, documented, and genuine.”

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