Rethinking Democracy

Date01 March 2010
Published date01 March 2010
Subject MatterArticles
Political Research Quarterly
Volume 63 Number 1
March 2010 218-237
© 2010 University of Utah
hosted at
Rethinking Democracy
Legal Challenges to Pornography and Sex Inequality in
Canada and the United States
Max Waltman
Stockholm University, Sweden
Why are democracies unresponsive to well-documented injuries in the production and by the consumption of pornog-
raphy? Legal challenges to pornography in Canada and the United States in which sexual subordination, not moral
notions of “obscenity,” were the driving rationale, show democracies inadequately recognizing gender-specific
harms. Changes in Canadian obscenity doctrines to account for harm and inequality, in contrast with the U.S. reign
of “free speech,” did not deliver a corresponding change on the ground. Developments in democratic theory, interna-
tional law, and the particular U.S.–Canadian legal trajectory, and consideration of the void of institutions articulating
the interests of those victimized in and by pornography, suggest the need to adopt empowering civil remedies.
Keywords:     pornography; prostitution; freedom of speech; democracy; equality; feminist theory; comparative judicial
politics; democratic theory; freedom of expression
Pornography has been found to desensitize societ-
ies to violence against women, inspiring rapes
and contributing to the sexual subordination of
women to men (see below). In making their materi-
als, pornographers exploit sex inequalities to coerce
women and children to perform unwanted or danger-
ous sexual acts. Existing legal regulations in
democratic societies have not approached pornogra-
phy with these realities in mind, but usually as a right
protected by freedom of expression or an “obscene”
expression, offending the public rather than harming
any particular group. In rare but important instances,
pornography has legally been seen as a harmful prac-
tice violating women’s human or democratic rights to
equality. This analysis exposes tensions and poses
questions regarding democracy, equality, and the
meaning of citizenship. If a practice such as pornog-
raphy systematically reproduces and sustains a
group’s domination of another, and if one democratic
ideal is to provide equality among citizens who may
participate in self-rule, existing democracies may be
regarded as insufficient to their own ideals when they
do not regulate it effectively. In this light, the question
becomes what, under present systems of democracy,
are the obstacles to democracies addressing these
problems, and what alternatives exist? To pursue this
inquiry, in this paper, I compare events in Canada
and the United States in which laws regulating
pornography in democracies were challenged on the
basis that they did not respond to its harms to women’s
In Canada, the Supreme Court held that prohibit-
ing pornography that is violent, degrading, or
dehumanizing, seeking “to enhance respect for all
members of society, and non-violence and equality in
their relations with each other,” promotes equality, a
fundamental democratic value “that the restriction on
freedom of expression does not outweigh” (R. v.
Butler 1992, 509). In the United States, federal
courts held that giving women a civil right to sue
pornographers for the harm to women to which their
pornography contributes was viewpoint discrimina-
tion in violation of First Amendment freedom of
expression (American Booksellers Association, Inc.,
v. Hudnut 1985, 331). These legal differences notwith-
standing (see, e.g., Mahoney 1997; LaSelva 2004, for
overviews of constitutional differences), the
Author’s Note: The author thanks Amy R. Elman, Catharine A.
MacKinnon, and three anonymous reviewers for their suggestions,
University of Michigan Law librarians Ann Chase, Jocelyn
Kennedy, Grace York (Hatcher’s), and Sandy Zeff, the Law School
Graduate Committee, Virginia Gordan, Stephanie Wiederhold, the
Lexis and Westlaw representatives Liz Beresh and Lucas Mudrey
respectively, the Department of Political Science, Stockholm
University, Maud Eduards, Drude Dahlerup, Jonas Tallberg, Maria
Jansson, and Maria Wendt..
Waltman / Rethinking Democracy 219
heterosexual pornography ruled criminal by Butler in
1992 was reportedly still available “on any given day”
(Kendall 2004, 165; cf. McCormack 1993, 177; John-
son 1995, 86), and recently received renewed
protection consistent with a narrow reading of Butler
(see below). Similarly, existing U.S. regulation is
arbitrary and ineffectual (see, e.g., Krause 2008,
52-56; describing declining obscenity prosecutions;
Lochner 2007, 30-31; Downs 1989, 20-21), with
most forms of pornography making their way to the
market (see, e.g., Rimm 1995; Bjørnebekk and Evjen
2000).1 The implications for democratic theory and
practice, specifically women’s full citizenship, are
substantial. A review of the conditions of production
of pornography is necessary to further substantiate its
connection to gender inequality.
Production and Consumption of
Pornography has been documented to be under
organized crime control (see Attorney General’s
Commission on Pornography 1986, 291-97, 1037-
1238), although legitimate corporations are
increasingly involved with distribution (Egan
2000). Some is made during war or genocide, or by
freelancers (MacKinnon 1993c, 1994, 2007,
1333n60). In 2006, reported revenues in merely six-
teen countries, however incomplete,2 were estimated
at $97 billion (Ropelato 2007). The gender imbalance
among users is telling; that is, sexual acts performed
on real persons regularly end up as masturbation
materials overwhelmingly for male consumers.3
Arguably, it is a form of prostitution for men,4 evi-
dent, for example, in nine countries where 49 percent
(n = 802) of prostituted persons themselves directly
reported, even while interfered with by pimps, that
pornography was made of them (Farley et al. 2003, 46).
An in-depth study with fifty-five female prostitu-
tion survivors in Portland, Oregon, reported that 53
percent were sexually tortured on average fifty-four
times a year, often while made to participate in por-
nography (Hunter 1993, 93-94). Much evidence
shows that this study was not an exception. Survi-
vors testify to the systematic threats, rapes, and
violence regularly committed against women and
children, some being coerced into films at age eight
(Dworkin and MacKinnon 1997, 265). Women and
young girls are documented to have been tortured to
increase the material’s market value, resulting in per-
manent physical injuries (Attorney General’s
Commission on Pornography 1986, 787-88, n799).
Male participants confirm that pornographers regu-
larly force anal intercourse on women manifestly
resisting it (Attorney General’s Commission on Por-
nography 1986, 773-4; quoting Los Angeles Hearings),
symptomatic of an industry in which violence and
coercion are hidden behind cameras (see, e.g.,
Lovelace 1980; cf. Dworkin and MacKinnon 1997,
60-65; transcribed testimony, 205-213; lie-detector
test) simultaneously as many other expressly violent
materials are trafficked (numerous studies have docu-
mented explicit violence shown in pornography; see,
e.g., Rimm 1995; Bjørnebekk and Evjen 2000, 198;
finding torture pornography the most frequent cate-
gory in a 1997-1998 sample of Internet newsgroups).
Visual materials cannot alone reveal force. Further-
more, because people withhold information when
threatened or dependent on the industry, the possibil-
ity exists of more rather than less coercion.
Testimonial evidence on violence and coercion
during production repeatedly mirror quantitative
data on violence and coercion in the lives of prosti-
tuted women around the world. Seventy-eight
percent of the Portland survivors were also raped an
average of 49 times a year, and 84 percent were vic-
timized through aggravated assault an average of 103
times a year (Hunter 1993, 92-93). Converging with
such conditions, other survivors testify to constantly
being covered with “welts and bruises” (Attorney
General’s Commission on Pornography 1986, 784).
Independent testimony in recent procuring cases in
Sweden suggests that such violence (including welts
and bruises) is not an exception (see, e.g., Helsing-
borgs tingsrätt 2005, 58-59, for testimony by Katarina,
forced by violence and/or threats to have intercourse
two or three times every day with a pimp; see also
Helsingborgs tingsrätt 2005, 48-56 [testimony by
Niculeta], and the sentence modification in Hovrät-
ten över Skåne och Blekinge 2006 [dismissing
Katarina’s approximately $8,000 damage claim]; see
also Stockholms tingsrätt 2003 [testimony by Nadja,
Julia, Renata, and Olesia], “welts and bruises” men-
tioned by independent witnesses, e.g., at pp. 14, 16,
21, and the sentence modification in Svea hovrätt
2003 [including additional testimony]). This preva-
lence of violence converges with a Vancouver sample
of 100 street-prostituted women (Farley, Lynne, and
Cotton 2005, 250-51). There is also no reason to
believe that circumstances are safer in those forms
of prostitution in which a camera is present. For
example, Linda Boreman was forced to have inter-
course or perform fellatio every time she was made

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