SEXUALITY AND THE LAW Possible Syllabus for SEXUALITY AND THE LAW - an upper division undergraduate course. (Added to WMST-L March 1995) Comments welcome. For legal and political reasons, I may not be able to teach this course at NCSU, but it having the syllabus in the archive might provoke some useful discussion. David F. Austin Associate Professor of Philosophy Department of Philosophy and Religion Box 8103 NCSU Raleigh, NC 27695-8103 david_austin@ncsu.edu Preliminary remarks: I believe that this course would not be worth doing unless students became familiar with the materials that the debates are about; verbal descriptions of the materials would be inadequate. This entails students' viewing sexually explicit videos that, it has been argued, are not Dworkin/MacKinnon-pornographic and viewing sexually explicit videos that, it has been argued, are Dworkin/MacKinnon-pornographic. Given my current understanding of the relevant issues, I'd not want on the books any law that would preclude such fully informed debate about itself; nor would I want a law on the books (like, e.g., most current obscenity laws) that is less than clear about the permissibility of such debate. Although my department, University Office of Legal Affairs, Sexual Harassment Prevention Officer and Provost have been supportive, I don't know whether it'll ever be feasible to teach a course here that uses pornographic or obscene material. The legal situation is murky, since NC obscenity statutes were amended in 1985 (under the direction of attorney H. Robert Showers, Jr., then of the Meese Justice Department, and over the strong protests of educators, librarians and therapists) to remove an exemption based on (otherwise obscene) materials' educational value. (The law was also made stricter in other ways.) I am also concerned about the application of sexual harassment law, even if the course described were team- taught (in the way indicated in the enclosed) with female, feminist faculty; the relevant Title IX case law is meager at best. Legal issues aside, there is the question of how reactions to the course would affect university funding at all levels; the university budget is controlled by the same (sort of) legislators who strengthened the obscenity law in 1985, just one year ago refused to decriminalize consensual, not-for-money, heterosexual, oral sex, even in marriage (it's still a felony in NC, and the law's been used in recent memory against unmarrieds), and just last summer considered a bill that would have banned teachers from talking about unlawful sex acts, thus prohibiting classroom talk about oral sex, sodomy and bestiality. I've spoken with a respected, well-known psychologist whose specialties are research on sexual trauma and therapy with trauma survivors, and who has shown some sexually explicit material in courses that she teaches. She tells me that viewing such material has triggered memories of abuse in some of her students; most, but not all, of the students were female, and some also had nonabusive sexual experiences between the time of abuse and the triggering of the memories. She remarked that, as long as appropriate therapeutic help is provided (not by the instructor), it may not be wholly unfortunate to have such memories triggered in this relatively safe and supportive context. This psychologist's view is that viewing 'violent pornography' is on a par with viewing Holocaust films and other material depicting severe trauma: all of it is typically very disturbing; but it is important to include it in courses on psychological trauma. Her students agree, as do other trauma specialists I've consulted. Two female faculty (at other universities) who have taught courses on pornography suggest that a detailed syllabus is 'fair notice', and that a separate consent form is unnecessary, just as it is unnecessary in courses discussing creationism, the Holocaust, etc. Attorneys with relevant experience have advised me that a separate consent form [containing the "Guidelines for Students Enrolled in This Course" (see sample syllabus, below) and extremely detailed description of the materials] would not be necessary; a detailed syllabus, reviewed early in the course, would suffice.1 To help guard against the development of a 'hostile learning environment', the "Guidelines for Students Enrolled in This Course" [see below] would be reviewed during the first class meeting; and the course would be team-taught with two female colleagues, one a philosopher of law who has worked on feminist legal theory, and the other a film theorist who specializes in the representation of women in film. The reading and viewing lists need much work; additions and deletions need to be made. Several people who work to help prostitutes have reviewed this draft and strongly recommended increased attention to the laws regulating sexual behavior (as well as explicit representations of the behavior). This is a good recommendation, though I'm not yet sure just how to implement it. It has also been suggested that, despite the law-based reasons for doing so, grouping homosexual and child pornography together in the same section of the course may convey an unintended message. Draft Sample Syllabus for a Seminar not now taught or even proposed Sexuality and the law M 2:00-5:00 W 19:00-21:30 We'll investigate the politics of sexuality by focusing on laws, actual and proposed, for the regulation of sexually explicit representations. To guide us, we'll consider the hypothesis that one of the greatest mysteries about sex is that it's mysterious, because there is no significant moral difference between how we ought to conduct our sexual practices and our food-consumption.2 Prerequisites: Two courses in relevant fields at junior- level, and instructors' permission; enrollment limited to 15 students. Course Format: One seminar meeting each week, and one viewing session each week. (If a session is held late in the day, escort service is provided on request by Campus Public Safety.) The course carries 4 hours of credit (25% more than for a standard one-semester course). How to Get a Grade: (i) 750-1000 word paper for each of parts II, III, IV and V of course; due by the end of each part; topics suggested by instructors (40% of grade); (ii) 1250 word paper (20% of grade) on lessons learned from 'mock jury' determinations on selected material (for the "fourth" credit): for each item studied (or a specified subset, depending on time constraints), all fifteen seminar members (12 jurors, and three alternates) will apply (a) the US Supreme Court Miller standard; (b) NC state obscenity law; and (c) the MacKinnon/Dworkin model ordinance to determine if the material is obscene [(a), (b)], pornographic [(c)] or 'merely' erotica [neither obscene nor pornographic]. A worksheet specific to each standard will be supplied. Time permitting, some items may be viewed and evaluated a second time at the course's end. If feasible, a mock trial will be held for some material, if cooperating attorneys can be found. (iii) Final project-3000+ words (40% of grade): Propose and argue for a model statute regulating pornog- raphy; or argue, on either practical or theoretical grounds, that such a statute is undesirable. Collaborative efforts may be undertaken only with the instructors' permission; everyone in the group will receive the same grade. How to Get an Even Better Grade: If your course grade is on a borderline, you may boost it into the higher range by providing well-written, well-argued 250-500 word reviews of any three of the films viewed in the course. Guidelines for Students Enrolled in This Course:3 The sort of material that we will be viewing can elicit strong re- sponses; among common responses are amusement, anger, anxiety, arousal, boredom, disgust, embarrassment, sadness - any of which may be accompanied by characteristic physical reactions. (Some instructors' experiences suggest that arousal is far less common than might be expected, perhaps because of the group setting for viewing and the analytical approach taken towards the material. There have also been reports that viewing this sort of material can cause 'buried' memories to surface, some of these memories of abuse.) These responses and reactions can serve as data for class investigations. It is therefore important for us to work to make this classroom a safe place for students to share experiences, feelings, and ideas. Here are some rules to help us. Students may propose new rules or amendments to these rules if they wish. +There will be no interruption of any student by another. The instructors will moderate all discussion and invite the next comment when the current speaker is finished. +There will be no personal criticism of any kind directed by any member of the class to any other member of the class. You are entitled to comment on the intellectual content of another student's words, to contribute your own feelings and thoughts to the discussion, and to pose questions to other students, but you are not entitled to tell your peers that they are "crazy," "perverted," "stupid," "sexist," or anything else of this nature. Treat peers with respect and kindness. This includes treating any silences with respect, as well. Of course, none of this precludes exercising one's sense of humor, but it should be done with appropriate care. +Some students may choose to give accounts in class of their personal experiences, though no one will ever be re- quired to do so. These accounts are welcome in this class if and only if they relate directly to the discussion. Since they are true accounts, students in this class should respect others' privacy and observe the rules of confidentiality--if you tell someone else's stories outside of class, please omit the student's name and any other identifying features. No one may tape any session of the course for any purpose. +This class is not a therapy session, and no instructor can serve as any student's therapist. Feelings and personal experience may be introduced into discussions if and only if they contribute to the class's understanding of the par- ticular topic under discussion. Students who wish to explore the option of therapy may speak with any instructor privately for a list of on- and off-campus resources. +Some students may find it necessary to take an occasional 'breather' during class; they should feel free to stand up and walk out of class if they find themselves in need of a short break. It's OK to ask a classmate to accompany you during such a break. +One ideal for discussion will be defined by Feldman's Reason and Argument. Although the ideal may not always be attained, we will aim for it. Participation in Studies: You may be invited to participate in one or more academic studies on the effects that taking this course has on your attitudes. Any such study would have been reviewed and approved by the University Committee on the Use of Human Subjects. Participation would in any case be strictly voluntary and is not a course requirement. If you did choose to participate, any study may be discussed in one of your shorter required course pa- pers [see (i), in How to Get a Grade, above]. Texts: Required: Feminist Anti-Censorship Task Force (FACT), Caught Looking, $15.95 [This contains B&W pornographic pictorials, and some historically important essays arguing against MacKinnon/Dworkin ordinances.] Catharine MacKinnon, Only Words (Harvard University Press, 1993), $14.95 Sexuality and the Law CoursePak, <$30.00 (collection of articles; see outline below) Richard Feldman, Reason and Argument (Prentice Hall, 1993), $22.95 Recommended only: Robert Stoller and I. S. Singer, Coming Attractions: The Making of an X-Rated Movie (Yale University Press, 1993), $30.00 [-an ethnographic study of the making of the pornographic video Stairway to Paradise] Diana E. H. Russell, Against Pornography: the Evidence of Harm (Russell Books, 1994), $12.95 [-contains B&W pictorial pornography, and an extended argument, based on social scientific studies, that pornography, as distinguished from erotica, is harmful] Catharine MacKinnon, Feminism Unmodified (Harvard University Press, 1987) $13.95 Marcia Pally, Sex and Sensibility: Relections on =46orbidden Mirrors and the Will to Censor (Ecco Press, 1994), $11.00 [-a summary of some common arguments against censorship, current obscenity laws, and MacKinnon/Dworkin ordinances] - all available at the University Bookstore approximate COURSE SCHEDULE AND REQUIRED READINGS (viewing material to be selected from appended list) Week 1: Viewing: Sexually Explicit Anti-Pornography, Pornography in the Making ('Meta-Porn') I. Introduction and Preliminaries A. Hello B. Review of Syllabus, including discussion of Guidelines C. Anonymous Survey of Beliefs and (Mis)information (including the Kinsey Institute 'quiz' on American sexual habits and attitudes) (Be sure to keep a copy of your own responses. We'll repeat the survey at semester's end.) D. Methodological Preliminaries: 1. Hypothesis: One of the greatest mysteries about sex is that it's mysterious, because there's no significant moral difference between how we ought to conduct our sexual practices and our food- consumption. (Gayle Rubin, "Thinking Sex," selection from Tania Modleski, Feminism without Women) 2. The 'Martian' view of sex and eating (-revulsion at public displays of nutrient consumption and bafflement at the moral mystique of procreation and sex-for-fun) 3. A 'working' definition of "pornography" (Donald VanDeVeer, "Pornography," Encyclopedia of Ethics)4 4. A Dialectical Ideal (Feldman, Reason and Argument) Weeks 2 and 3: Viewing: Sex Education for Adults, Food and Sex II. Sex, the Unknown In this part of the course, we investigate how attitudes towards sex have affected attempts to discover information about sex, information that is needed for evaluating various legislative proposals. In line with our hypothesis, we will consider parallel questions about food, alcohol and drug consumption. A. Sex: physiological and anatomical 'facts' 1. The 'G-spot' controversy (Carole Tavris, "The G- Spot Controversy," The Mismeasure of Woman; selection from Janice M. Irvine, Disorders of Desire: Sex and Gender in Modern American Sexology) 2. Phallic Wars: Does size matter? (selections from June Reinisch, The New Kinsey Report on Sexual Behavior; Janus Report on Sex) 3. Brains as Sex Organs: Does the brain have a sex? (selection from Ann Fausto-Sterling, Myths of Gender; Simon LeVay, The Sexual Brain) B. Sex: sociological 'facts' 1. Surveying American sexual behavior: Kinsey, Janus, ... 2. The prevalence of 'perversions' 3. Incidence and causes of sex-related violence (selections from DEH Russell; Donnerstein and Linz, The Question of Pornography) C. Sex: psychological 'facts' 1. What is perversion? (Stoller, DSM I) 2. Is homosexuality a disease? (selections from DSM IV) 3. Is there a male attitude and a female attitude towards sex? (selection from Tavris; Tisdale, "Talk Dirty to Me") D. Sex: moral 'facts' 1. Religious perspectives (Francoeur, "The Religious Suppression of Eros"; George Kelly, The Catholic Marriage Manual, Ch Three) 2. Traditional nonreligious perspectives 3. Feminist perspectives Weeks 4, 5 and 6: Viewing: Early Twentieth Century 'Blue Movies', Classics, Pornographic Performance Art III. Obscenity Law, Censorship and the First Amendment We will study the evolution of law concerning obscenity, culminating in our own attempts to apply the current standard to course materials. In line with our hypothesis, we will consider legislative efforts to regulate food, alcohol and drug consumption, including the great social experiment of Prohibition. A. Older approaches: Comstock B. From Comstock to Roth-Alberts v. US C. The Current Standard: Miller v. California D. Traditional Liberalism's Objections to the Miller Standard 1. The 'absolutist' interpretation of the First Amendment, and why no one holds it 2. Why and how vagueness matters in the law ("...unconstitutionally vague...") (selections from van Alstyne, The First Amendment: Cases and Materials) (transitional: Fish - "There's No Such Thing as Free Speech - and it's a Good Thing, Too") Weeks 7, 8, 9, 10: Viewing: MacKinnon/Dworkin lecture, Violent Pornography, 'Golden' Era, 'Couples', R-rated 'slasher' IV. Beyond Obscenity: Civil Rights Approaches to Regulating Pornography In the early 1980s, feminist legal theorist Catharine MacKinnon, working with lawyer and author Andrea Dworkin, proposed a new approach to regulating sexually explicit material, arguing that pornography is a practice that discriminates against women and should therefore be actionable under civil, as opposed to criminal, law. We will examine the specific proposal, general arguments for the approach, and criticisms of both the specifics and the general arguments. A. Arguments for the MacKinnon/Dworkin Model Ordinance 1. Why aren't current remedies in criminal and civil law good enough? (selection from Adult Users Only) a. civil law: libel, etc.; product liability ('he should have known it'd be harmful') b. criminal law: assault, rape 2. The Theory of Porn (MacKinnon, Dworkin, Longino, Sunstein) 3. The Theory-Laden Data of Porn: Representations, causal powers and harm (selections from Itzin, Pally) B. MacKinnon's Critics: 1. Unsympathetic feminist critics (Vance, Califia, Pally) 2. Sympathetic feminist critics (West, Cornell) 3. Judicial critics (the decision in Hudnut) 4. Are research on and teaching about porn permissible? - the problem of context (in)dependence C. The Rhetoric of (Anti-)Anti-Porn: Arguments ad feminam: 1. Dworkin's Porn: "So Long As It's Not Sex and Violence" (Gilbert) (-if it's the intention that matters...) 2. The Erotic Power of Only Words: "Catharine MacKinnon, the Antiporn Star" (Roiphe) (rdgs. on Carrie Nation and Temperance Movement) 3. "The Marquis de Meese" (Susan Stewart) Weeks 11, 12 and 13: Viewing: Homosexual, Bi, BD/SM/Fetish, Amateur Pornography V. Varied Extremes: More Controversial Cases A. Homosexual pornography 1. Gay Porn 2. Lesbian Sadomasochism (Queen, "Erotic Power and Trust"; Margaret Nichols, "Lesbian Sexuality: Issues and Developing Theory"; selection from Against Sadomasochism; selection from SAMOIS, Coming to Power) B. Bi Porn (LWilliams) C. Sex Workers' Rights (actors, dancers, masseuses, prostitutes) (selection from Delacoste and Alexander, Sex Work; and/or Vindication of the Rights of Whores) D. Child pornography - a very special case (selection from New York v. Ferber) 1. What is a child? 2. Do children have sexual states? 3. The NAMBLA manifesto E. Amateur pornography, informed consent, and the problem of genre definition (LWilliams; PHanson, "Sex Lives on Videotape") F. Digital porn with alien cybersex-could it be obscene? (Gareth Branwyn, "Compu-Sex: Erotica for Cybernauts," South Atlantic Quarterly 92:4 (Fall, 1993), 779-791; selection from Penley, Technoculture; selection from Datlow, Alien Sex) Week 14: Viewing: Selected reruns VI. Regulating Porn: Costs and Benefits - Do We Know What to Do Next? [Repeat Anonymous Survey of Beliefs and (Mis)information; compare with first survey's results] Viewing Categories of Sexually Explicit Course Material: In most cases, several examples are provided; time does not permit viewing of most of the material listed. If a given item is unavailable or another item is judged more suitable, substitution of comparable material may be made. If feasible, material will be made available to students for individual viewing before it is viewed in class. +Sexually Explicit Print Material on Reserve: Mail-order Catalogues (all with pictures): (e.g., Great Pictures, Leisure Time Products) Open Enterprises Mail Order Catalogues: Good Vibrations Catalog of Toys, The Sexuality Library Print (some with pictures): FACT, SAMOIS, Bright, Dworkin, Sprinkle... +Anti-Pornography Videos: Not a Love Story, Dreamworlds (-sexually explicit) [A Civil Rights Approach to Pornography, Catharine A. MacKinnon and Andrea Dworkin, Tape 7 of "Speech, Equality and Harm: Feminist Legal Perspectives on Pornography and Hate Propaganda," University of Chicago Law School, March 5-7, 1993.] [Peril or Pleasure? featuring Evelina Kane of Women Against Pornography and pornographer Candida Royalle, with appearances by Annie Sprinkle and Susie Bright. Torrice Productions, 1230 Market St. #123, SF, CA 94103, $35.00 ppd.] [Video and transcript of Professor Catharine A. MacKinnon's 11/22/93 appearance before the National Press Club, televised on C-SPAN.] +Violent pornography: "women are presented as sexual objects, who experience sexual pleasure in being raped" +Early Twentieth Century 'Blue Movies': Blue Memories, Blue Memories II +Classics: Deep Throat, The Devil in Miss Jones, Behind the Green Door, Opening of Misty Beethoven, Insatiable, Holliday's Legends of Porn +'Golden' (i.e., High-Budget) Era (or, the pre-camcorder 80s): Every Woman Has a Fantasy, Ribald Tales of Canterbury +Pornography in the Making: Stairway to Paradise, Tori Welles Goes Behind the Scenes +Pornographic Performance Art: Annie Sprinkle's Post Porn Modernist, Sluts and Goddesses Workshop +Sex Education for Adults: Better Sex Video Series, Behind the Bedroom Door Series, Sex: A Lifelong Pleasure Series, How to Female Ejaculate +Homosexual Pornography: Gay: Powertool, More of a Man Lesbian: Suburban Dykes +Bisexual Pornography: Bi-Coastal +Bondage and Domination (BD), Sadomasochism (SM) [must specify examples of each kind]: Pain Suite Fetish: from BonVue Enterprises +Amateur Pornography: oldest material from Video Alternatives, Homegrown Video +'Couples' Videos: Pornography Intended for The Heterosexual Women and Her 'Significant Other': Femme: Three Daughters, Revelations MTV-Style Pornography: Night Trips, House of Dreams Mainstream Efforts: Chameleons, The Masseuse +R-rated 'female-slasher': Nightmare on Elm Street (I-V) +Food and Sex: La Grande Bouff=E9, The Cook, The Thief, His Wife and Her Lover Material on Reserve [in University or Department Library]: In addition to the texts, the following supplemental material is available.... NOTES: 1Suppose, however, that a MacKinnon/Dworkin ordinance were in effect in the relevant jurisdiction. One activist associated with work for the ordinance has suggested that a course that uses pornography (as defined by the ordinance) would still be permissible just so long as the pornography was not forced on any student, and the student's informed consent was obtained in advance. 2Discovering the weaknesses of this hypothesis would, I believe, be very helpful for students. Many have noted the profound similarities between the roles of sex and food in societies, and these analogies need to be handled with care, in part so as not to portray sexual desire as 'just another biologically determined appetite', especially since desire for food doesn't meet that description, either. Some of the connections are horribly vivid in eating disorders. Some references I've found helpful: Tana Modleski, Feminism without Women: Culture and Criticism in a "Postfeminist" Age , 152-3, comment on Gayle Rubin, "Thinking Sex," about Rubin's apparently naive statements regarding both sex and food; Susan Bordo, Unbearable Weight; Robin West, "Sex, Reason and a Taste for the Absurd," Georgetown Law Journal 81 (1993) 2413-2456, criticising Posner's views on sex, ice cream and the role of preferences; and Carol Tavris, The Mismeasure of Woman, 226-227, on Masters and Johnson's 'four stages of sexual response' and 'the four phases of eating a meal'. 3Adapted from rules developed by a female faculty member at George Mason University, who has taught a number of courses on sensitive subjects and worked extensively with groups of Vietnam veterans, Holocaust survivors and rape/incest survivors. These rules are quoted, with derision, in Christina Hoff Sommers, Who Stole =46eminism? My source was the person who developed the rules, not Hoff Sommers. 4Pornography is the sexually explicit depiction of persons, in words or images, created with the primary, proximate aim, and reasonable hope, of eliciting significant sexual arousal on the part of the consumer of such materials (987). [This characterization is population-relative:] Important in deciding whether material is likely to evoke significant sexual arousal [an admittedly somewhat vague term] is its probable effect on an average person in a certain popula- tion,.... The reactions of particular individuals are inconclu- sive (988). Encyclopedia of Ethics (Garland, 1990), 986- 989. David F. Austin Associate Professor of Philosophy and Assistant Head Department of Philosophy and Religion Winston Hall 101A Box 8103, NCSU Raleigh, NC 27695-8103 (919) 515-6102 FAX (919) 515-7856