Porn - Philosophy for Everyone: How to Think With Kink (35 page)

I contend that censorship of SM porn itself perpetrates violence on sadomasochists – both physical and psychological – but that this happens off-stage, outside of the boundaries of official legal discourse. And because of this, judges and anti-porn advocates are not concerned with, nor held accountable for, the consequences of such censorship. This infuriates me. I am tired of being on the defensive. It is time to launch a philosophical attack.

There are three kinds of overlapping violence I will address: physical violence, phenomenological violence, and epistemic violence. Each of these forms of violence represents an exercise of undue force by the state that culminates in undeserved and unwanted pain and degradation on the part of sadomasochists.

Physical Violence

Censorship does not simply keep naughty pictures out of the hands of vulnerable individuals. It sends people to prison. Prosecutors and police, often unable to catch or charge the people who actually commit violent acts, are quick to focus on bookstore owners, video store managers, and sometimes unwitting porn consumers, who have come into contact with texts containing hardcore sexual imagery. These “pornographers” are much easier to entrap than violent offenders.

Consider the American case of the
USA v. Guglielmi
.
⁸
The accused was convicted by jury of transporting obscene films through interstate commerce. This first-time offender was sentenced to 25 years in prison, a punishment usually reserved for the most extreme violence (murder or aggravated sexual assault) and/or for repeat offenders.To justify the sentence, the court found that the films were “violent” and “degrading” and would incite violent acts by some of their consumers. This claim was unsubstantiated. Indeed, it was later noted that most of the “customers” who had received the materials were in fact FBI agents. No evidence was introduced to indicate that the materials had incited anyone, either the undercover agents or genuine customers, to violence. After Guglielmi spent five years in prison, a Court of Appeal finally found that the sentence was overly punitive and remanded the case for reconsideration.

The notion of proportionality is an enshrined principle of justice.Your punishment should be proportional to the harm inflicted by your crime. In Guglielmi’s case, the prosecution did not adduce evidence of direct harm, much less prove it beyond a reasonable doubt.Yet an overwhelmingly punitive sentence came to be imposed, signaling an abandonment of the principle of proportionality that is all too common in obscenity cases involving SM texts.

Regrettably, legal systems in Canada and the United Kingdom can also impose punishment in reliance on the “monkey see, monkey do” hypothesis. For example, the
Criminal Code of Canada
prohibits the making or distribution of obscene materials, with a punishment of up to two years in prison.Thus, for example, while Aisha and Gabriel would not be prosecuted for mere possession of
Whiplash
, the publisher that produced the magazine, and the bookstore owner who sold it, could be criminally convicted and sentenced to prison. England’s legislation has an even broader reach, criminalizing simple possession of “extreme pornographic images.”
⁹
If Aisha and Gabriel were caught reading
Whiplash
in England, they would be vulnerable to criminal prosecution and liable to a prison term of two years.

And what is the upshot of all this? State sanctioned violence against sadomasochists and those who cater to their unusual (or is it that unusual?) erotic tastes.

Prison is violence. Make no mistake. It is not a benign rehabilitative apparatus that simply incapacitates dangerous offenders and reprograms them for life on the outside. It perpetrates violence on the inmate, both psychological and physical.Autonomy and human identity are destroyed; one becomes a number. Every moment is tallied, controlled, and accounted for. Perhaps this is deserved if you have violated another’s autonomy; for example, if you have assaulted an individual who now lives in fear because of post-traumatic stress. But when you have provided sexual texts for the pleasure of sexual minorities, or indeed if you are a member of a sexual minority who has found pleasure and affirmation in a text produced by consenting adults, this obliteration of your freedom, of your bodily control, is undue. It is excessive. It reflects a neurotic agenda of moral sexual conformity that masquerades as the state
doing something
to stop violence.

Prison also provides a venue for physical violence. Inmates are often victims of attacks, including sexual attacks, from other inmates or prison guards.
¹⁰
Again, some retributionists might argue that it is fair for an offender who has committed sexual assaults to now be vulnerable to similar violations in prison; an eye for an eye, a rape for a rape. But if you are incarcerated for multiple years for the “crime” of consuming or trafficking in sexual texts that have not been proven beyond a reasonable doubt to cause harm, and that have no complaining victims, the punishment is grossly unfair by Common Law standards of justice. In this case, justice is not blind, but rather suffers from a blind spot that overlooks a kinky person’s right to be free from cruel or unusual punishment.

Phenomenological Violence

Phenomenology believes that inherent truths of human existence can be derived from our sensory interaction with the outside world. The philosopher credited with founding this school of thought, Edmond Husserl (1859–1938), advanced the idea of a “pure preconceptual experience,” insisting that we must bracket preconceived notions of human nature, of reality, and of knowledge (including scientific knowledge) in order to access the genuine meaning of a lived experience. Later phenomenologist philosophers, like Maurice Merleau-Ponty, focused on the embodied nature of this lived experience, challenging the mind–body dualism of traditional philosophy and arguing that mental and corporeal processes are interpenetrative.

In view of this radical rethinking of the human condition, consider how Aisha initially fragmented her subjectivity by superimposing a preconceived and singular “truth” on her body’s mutinous arousal to representations of violence. Her feelings
must
be the product of social conditioning and it
must
therefore be suppressed. From a phenomenological standpoint, Aisha should bracket her preconceived notions of healthy, progressive, or authentic sexuality. Instead, she should be attuned to her erotic impulses – not as simplistic corporeal truth that overrides her intellectual analysis, but rather as part of a holistic engagement with the sensations and narratives that turn her on.

By withholding judgment on her SM desires,Aisha might discover that repression is not the most effective form of resistance to patriarchal authority.To the contrary, she might decide that it is deeply transgressive for a woman to prioritize sexual pleasure for its own sake, and not for some speculative future goal such as “the better good of society” or even “the better good of womankind.” Aisha might also find that SM’s appropriation of hierarchal scripts within a contrived and consensual context provides an empowering and subversive way to confront her demons. A way to alchemize the pain of past sexual trauma, or the fear of its occurrence (what woman does not live with this fear?), into catharsis and courage.

But if Aisha were to fully embrace her sadomasochistic self, her SM activities might bring her to the attention of the authorities.This is what happened to a group of SM lovers in England who videotaped their sex parties for personal enjoyment and were criminally convicted in the
R. v. Brown
case.
¹¹
During an unrelated investigation, police seized the tapes after searching private premises and were convinced they had discovered genuine “snuff” films. Millions of pounds were spent on an obscenity/murder investigation before the police realized that the footage had simply captured a group of gay men enjoying a consensual – albeit extreme – sexual experience. This did not deter the police from eventually charging the men with various assault-related offenses.
¹²
Their guilty conviction was upheld all the way through to the highest court in England. Punishments ranged from fines to prison terms that reached up to three years. As such, physical violence in the form of harassment, arrests, detentions, and imprisonments was perpetrated against these consensual lovers.

Much has been written about the injustice of the decisions and the sentences, particularly with respect to homophobia and sexual totalitarianism. These are very important critiques, but for purposes of this section, I want to highlight the phenomenological violence flowing from the police conduct and the House of Lords’ decision.

While the videotape was not technically caught by anti-obscenity laws, as it had not been produced for commercial distribution, it was central to the case. In the face of this visual evidence, the authorities refused to accept the phenomenological reality of the accused men. While the dominant lovers were convicted of assault, the submissives were convicted of accessory to assault
upon their own bodies
. Criminalizing “assault” therefore has nothing to do with protecting the autonomy or bodily control of the “victim,” rather it manifests as a way to impose an authoritarian view of proper sexual behavior. Indeed, when the submissive men insisted that the activities depicted in the video had been mutual and very much desired, the majority judges simply dismissed their testimony as “worthless.”

This is what I call phenomenological violence. The embodied psychosexual experiences of the sadomasochist lovers are deemed “worthless.” The pleasure and the agency of the submissive and dominant players become not just unacceptable, but unintelligible. And instead of allowing the “actors” in the private sex tapes to translate the meaning of the filmed events, the judges aggressively imposed an interpretation based on their own phenomenological reaction to the video footage. Over and over again, the judges employ rhetoric of antipathy to describe their assessment of the tapes. Words that were used include “disgust,” “horror,” “incomprehension,” “bewilderment,” “sadness,” “revulsion,” “repugnance,” “moral objection,” and “repulsively wrong.”To hear practices that you find pleasurable, intuitive, appealing, sexy, respectful, and so very
right
described in this judicial language violates one’s sense of subjectivity, of identity, of existence. It engenders self-hatred, shame, and repression.

My point here is not that the judges were inherently wrong to determine from their own subjective points of view that the depicted activities were objectionable. Instead, I want to emphasize that because of the judicial monopoly on the construction of reality, their definitive statements of the “truth” of SM violently enforce one version of the good (sex) life.This amounts to an incidence of interpretive force, culminating in both ontological as well as physical violence, inflicted in the absence of protesting victims or any other evidence that harm has resulted from these mutually satisfying sexual practices.

Epistemic Violence

That the SM lovers in the
Brown
case were considered incompetent to determine the significance of their own sexuality is perhaps not so surprising. Given pervasive mainstream cultural views that sadomasochists are “sick” or “perverse,” their perspective is likely to be dismissed as a symptom of their pathology. However, as is demonstrated by the case of
Little Sisters v. Canada
, even the expert witnesses who do not identify as sadomasochists will be disregarded if they dare to challenge the judicial gaze on sexual minorities.
¹³

At issue was the effective censorship imposed by Canadian customs inspectors, who were empowered to ban the importation of any materials determined to be “obscene” – a label disproportionately applied to SM texts destined for gay and lesbian or women’s bookstores. For example, if
Whiplash
had been an American magazine on its way to the Toronto Women’s Bookstore, there are good chances it would have been held at the border, deemed too dangerous for Canadians like Gabriel and Aisha to see.The applicants in the
Little Sisters
case argued, among other things, that such seizures amounted to a violation of their constitutional right to freedom of expression.

During the trial, the Little Sisters bookstore posited that the SM texts at issue had “artistic merit” and they should therefore not be found to be criminally obscene. It called expert witnesses from the fields of literary interpretation, semiotics, and queer culture who offered insights to assist the trial judge in understanding SM representation as a cultural, political, and artistic project.
¹⁴

Among others, the court heard from Bart Testa, a well-known film and semiotics professor, Becki Ross, a notable sociologist who specialized in women’s studies, and Nino Ricci, a prominent writer and professor of creative writing.These three experts testified that the reviewed SM texts could possess significant, but coded, artistic merit. It was further contended that people outside of the SM sexual subculture were likely to misunderstand the dynamics and the significance of the represented sexual activities.

The trial judge accepted that uninformed readers might misinterpret and misconstrue SM texts and that such texts could hold artistic value and could thus not presumptively be labeled obscene. On appeal, however, the Supreme Court of Canada played down the possibility that SM representation might hold artistic value. Ignoring the complex picture drawn by experts regarding the encoded meanings of SM, the court characterized a scene between a dominatrix and her “slave” – a classic SM erotic role-play – as “degrading” and “dehumanizing.”The imagined submissive in the scenario was further labeled a “victim,” with no regard to whether the text portrayed the activities as consensual and mutually pleasurable. Returning to the “monkey see, monkey do” hypothesis, the court found that SM representations were legitimately censored because of the harm that parliament
believed
might flow from their dissemination. Again, no evidence of harm was adduced to support the contention that the censored SM texts incited violence in their consumers.