Pornography

Mathieu Deflem
www.mathieudeflem.net
&
Anna S. Rogers
University of South Carolina

This is a copy of a paper that was published in Encyclopedia of White-Collar and Corporate Crime, Second Edition, edited by Lawrence M. Salinger. Sage Publications, 2013. Also available in pdf format

Please cite as: Deflem, Mathieu, and Anna Rogers. 2013. "Pornography." Pp. 734-737 in Encyclopedia of White-Collar and Corporate Crime, Second Edition, edited by Lawrence M. Salinger. Thousand Oaks, CA: Sage Publications. 


Although pornography is notoriously difficult to define in a universally agreed upon manner, it can generally be described as the deliberate depiction of actions and events of a sexual nature for purposes relating to pleasure of a variably sexual or aesthetic nature. Etymologically derived from the Greek ‘porne’ (prostitute), pornography is essentially a cultural issue revealing important societal values related to sex, gender, sexuality, and procreation. Pornography can be articulated by any means of human expression, such as paintings, photographs, multiple kinds of print and literature such as books and magazines, movies, audio tapes, live performances, and online systems of publication and communication. In its various forms, pornography can connect with the aesthetic aspirations of some recognized form of artistic expression. Yet, pornography can also, and usually is, conceived more distinctly in connection with objectives related to sexual satisfaction on the part of the consumer of pornography, on the one hand, and monetary profit on the part of its producer, on the other. Throughout human history, a wide range of types of more subtle and more explicit kinds of pornography can be found across diverse cultural settings.

Culture, Law, and Crime

Within any given socio-historical context, pornography exists in legitimate and illegitimate forms, the demarcation of which is variable across time and space. The multiple cultural meanings attributed to pornography relate to some extent to the more or less explicit nature of the depicted sexual content. Additionally, the legitimacy of pornography is affected by its social location, extending from mainstream culture, such as in the contemporary form of so-called ‘soft-core’ pornographic movies and celebrity sex tapes, to the most remote margins of society, such as is the case of underground video recordings of forced sexual acts involving children.

Normative frameworks that define and respond to pornography can include various cultural systems of morality as well as more specific and formalized systems of law. Moral perspectives on pornography may both condemn (certain kinds of) pornography or formulate more positive judgments. Condemnations of pornography that are moralistic in tone are often justified on the basis of religious principles, but they can also be humanistic in kind, for instance as formulated on the basis of concerns surrounding the equal treatment of the sexes. In the history of feminist thought in the West, for example, certain currents sought to outlaw all forms of pornography because they were considered degrading to women and to contribute to sustain unequal relationships between the sexes. Besides calling for a change in mentality, such efforts have also extended into the legal arena, such as in the United States during the 1980s when some feminist groups sought to ban pornography as a civil rights issue for women. Other feminists have since then taken on a so-called ‘sex-positive’ perspective to argue for the possibility and desirability of female-friendly pornography.

From a legal viewpoint, it is to be observed that pornography exists to some extent legitimately within any culture (as erotic art), but it is also approached as a form of criminality in some of its manifestations (pornographic crimes). In the context of the United States (and similarly in other modern nations in the world), an important distinction in this respect exists between pornography and obscenity. Whereas pornography can be lawful under certain circumstances, obscenity is a legal category that criminalizes certain kinds of conduct. Under constitutional provisions specified by the U.S. Supreme Court, statements or behaviors are considered obscene when they appeal to a prurient interest as defined by contemporary community standards, when depictions of sexual conduct are patently offensive by the same standard, and when they lack serious literary, artistic, political, or scientific value. Whereas a finding of obscenity legally outlaws certain pornographic (as well as non-pornographic) materials, other regulations can regulate access to and distribution of certain materials. Ratings of movies, for example, are based on judgments that certain representations of a sexual, violent, or otherwise objectionable kind are suitable only for people of a certain age.

From a criminological perspective, pornography has been investigated in its relationship to criminal behavior or as a form of crime itself. Research on the relation between pornography and crime has primarily focused on the impact which the exposure to pornographic materials has on criminal behavior, especially sexual aggression, rape and violent attitudes or conduct. Some evidence has been presented, since at least the 1960s, that pornography could be harmful to its consumers and, more broadly, to social relations, for instance by leading to higher levels of aggressive attitudes and behavior and by contributing to decreased respect for healthy romantic relationships. In the present era, the existence of such criminal effects, if valid, could take place at an unprecedented level as the internet has enabled many forms of pornography to be readily available to a very wide audience, including many young people. The internet has indeed re-affirmed the role played in pornography by the appearance and development of media of expression, from print to the digital age, and has also qualitatively changed societal views on pornography.

Although a considerable amount of research has been done about the relationship between pornography and crime, it has not produced any conclusive results. To some extent, such research is hampered by the absence of a universally valid definition of pornography. Additionally, research limitations can be attributed to the problem of determining the causal order and mechanisms involved in observed correlations, for instance between the likelihood to watch pornography involving simulations of violent acts and having a criminal record for violent crimes. Moreover, because of the various meanings attributed to pornography across cultural settings, research in any specific location cannot be readily generalized.

Research on criminologically relevant effects of pornography has at times also suffered from not being conducted independently on the basis of scientific interests, but as part of government projects seeking to establish certain links that could serve specified policy needs. In the United States, for instance, President Richard Nixon and a majority in the U.S. Senate rejected the 1970 Report of the Commission on Obscenity and Pornography which found that harmful effects of pornography could not be conclusively established. In 1986, a Commission on Pornography mandated by then-Attorney General Ed Meese published a report that argued that pornography would be harmful to society and, specifically, that there was a link between exposure to violent pornography and aggression towards women. However, the evidence was largely based on testimony from anti-pornography crusaders, without much consultation from social scientists.

In recent decades, the dominant values of modern societies tend to draw more distinct demarcation between acceptable forms of pornography, on the one hand, and certain problematic and deviant or criminal aspects of pornography, on the other hand. There exists an ever-growing industry of pornography that is commercially very successful, culturally widely accepted or at least tolerated, and also legally allowed. Examples include pornographic magazines and adult videos that can be bought and sold in the open market place. The problems that might exist in these cases are typically approached from a medical point of view, rather than a legal framework, to address the potential to contract and spread HIV and other health-related concerns.

Culturally tolerated forms of pornography are not within the specific province of criminology. The sheer availability of pornography on the internet today can be argued to have contributed to its decriminalization and normalization, yet it will also sharpen the distinction with unacceptable forms of pornography. As a result, recent criminological attention has gone to pornography as a crime by examining criminal behavior involved in the production and distribution of pornography. In this respect, special attention has gone to various forms of coercion involved with pornography, including victims who are forced to perform in pornographic conduct against their will. Moreover, an ever-growing sex industry at times also relies on the coerced trafficking of sex workers. In that sense, pornography can be one aspect of organized crime and also relate to a broader set of white-collar crimes, such as fraud, money laundering, and corruption. In most recent years, the use of children in pornography has been especially alarming and has served to stimulate renewed criminological research.

Child Pornography

Research and policy on the criminal aspects of pornography has in most recent years focused almost all of its attention on child pornography, especially as a result of the important role played therein by the internet as the medium that has greatly eased the distribution of such materials. In modern times, child pornography had become relatively confined in scope, if not in gravity, until the advent of the internet since when it has become an increasingly growing problem. Estimates now suggest that at least 14 million websites exist that specifically include child pornography. Aided by the near-global range of the internet, online child pornography also generates huge profits for its producers to form a genuine and global industry.

Besides the impact of the internet and other factors that facilitate the desire and possibility to watch child pornography, criminologists have done research on various relevant dimensions. In terms of the production and consumption of child pornography, attention has gone to the organization of child trafficking for pornographic and other sexual purposes. The consumers of child pornography have been studied in terms of their personality characteristics, sexual dispositions, as well as prior involvement with sexual crimes such as child molestation and pedophilia. Other research has concentrated on legal efforts to ban child pornography, the effects of arrests and other police actions, as well as prosecution and punishment practices. The results in these various criminological areas are at the present time too tentative to draw any general conclusions.

The burgeoning scholarship studying child pornography as a crime parallels recent legal developments to criminalize and police child pornography. In the United States, for example, various laws have been passed at the federal and state level to criminalize child pornography and develop appropriate enforcement and punitive measures. Dating back to the federally enacted Protection of Children Against Sexual Exploitation Act of 1977, more recent legislative efforts include the Child Protection and Obscenity Enforcement Act of 1988, which was the first federal child pornography law to explicitly refer to the use of computers. In 1990, the Child Protection Restoration and Penalties Enhancement Act was passed by U.S. Congress to criminalize the mere possession of child pornography and to strengthen penalties for its distribution.

Since the rapid development of the internet during the 1990s, several new legislative efforts have been taken. Among them, the Child Pornography Prevention Act of 1996 criminalizes pornography that involves persons made to appear to be minors, even when they actually involve adults. The 2003 Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (or PROTECT Act), which is primarily involved with sex offenses, has further broadened the types of conduct recognized as child pornography by criminalizing computer-generated images that either are, or appear as indistinguishable from, a minor engaging in sexual conduct. Along with the broadening of the scope of anti-child pornography laws, the related sanctions have become more punitive, with federal sentences in the United States now ranging from five to twenty years imprisonment. As such, the consumption and production of child pornography is treated more closely to offences of illicit sexual acts against children involving physical conduct (so-called ‘contact-sex’ offences).

Accompanying legal efforts against child pornography, law enforcement agencies are today more than ever involved in investigating relevant cases and developing appropriate investigative measures. Enforcement strategies range from traditional policing tools in response to reported crimes to novel techniques involving digital evidence seized on computers, posing as a potential child victim in internet chat rooms, and the tracking of IP addresses to catch consumers and producers and locate servers that host pornographic materials.

In the United States, many federal as well as state and local police forces have set up specialized units to deal with child pornography. For instance, the Federal Bureau of Investigation (FBI) in the Justice Department oversees an Innocent Images National Initiative program and a Child Pornography Victim Assistance Program. In the Department of Homeland Security, Immigration and Customs Enforcement (ICE) has established a Child Exploitation Section to police the sexual exploitation of children, child sex tourism, and child pornography itself. Within the Department of Justice, special efforts are made to coordinate various enforcement activities by conducting investigations in the Child Exploitation and Obscenity Section and by overseeing some 61 Internet Crimes Against Children Task Forces located throughout the United States to enable cooperation among some 3,000 federal, state and local police and prosecutorial agencies.

Both in terms of legislative efforts as with respect to police measures, many countries across the world have developed instruments to criminalize child pornography. Although surely not attained on a complete global level, this harmonization of anti-child pornography measures across countries enables cooperation at an international level. Such international cooperation is readily necessitated because the distribution of materials involving child pornography is today more than ever of a cross-national character. The major national and federal police agencies have therefore also developed efforts to cooperate with one another across national borders. The Department of Homeland Security agency ICE, for example, participates in a Virtual Global Taskforce against child exploitation and abuse with the cooperation of law enforcement from Australia, the United Kingdom, Canada, Italy, and the international police organization Interpol.

International cooperation against child pornography is vital because of the decentralized nature of internet providers as well as their private ownership, with companies not always readily willing to relinquish authority over their servers. An appropriate regulation of private enterprise and the development of public-private cooperation efforts are therefore needed as well. Especially in view of the ever-growing presence of the internet in all facets of social life, the problem of child pornography must be expected to remain of considerable concern and should lead criminologists to continue and expand relevant research.


Further Readings

Diamond, Milton. “Pornography, Public Acceptance and Sex Related Crime: A Review.” International Journal of Law and Psychiatry, v.32 (2009).

Hamilton, Melissa. “The Child Pornography Crusade and Its Net-Widening Effect.” Cardozo Law Review, v.33 (2012).

Henzey, Michael J. “Going on the Offensive: A Comprehensive Overview of Internet Child Pornography Distribution and Aggressive Legal Action.” Appalachian Journal of Law, v.11 (2011).

Lehman, Peter, ed. Pornography: Film and Culture. New Brunswick, NJ: Rutgers University Press, 2006.

Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, CA: ABC-CLIO, 2002.

Marcum, Catherine. “Policing Possession of Child Pornography Online: Investigating the Training and Resources Dedicated to the Investigation of Cyber Crime.” International Journal of Police Science & Management, v.12/4 (2010).

Slade, Joseph W. Pornography and Sexual Representation: A Reference Guide. Westport, CT: Greenwood Press, 2001.