A Charismatic View of Pornography
It might be supposed that in a liberal society, such as ours professes to be, the attitude of the state towards obscenity, or the function of the public censor, should not give rise to problems of any great difficulty – details apart – and that there is a widely accepted model to which thinking on these issues would try to conform. The model is that provided by John Stuart Mill’s essay On Liberty, and the doctrine that it endorses runs something like this: some people like obscenity, and some don’t, and those who don’t tend to find it filthy, horrible, revolting, and, probably, immoral. But even if obscenity is filthy, horrible, revolting, even immoral, those who want it should be allowed to have it unless their doing so causes harm and this harm outweighs any good that it might also cause. That something is immoral does not, as such, justify intervention at law: what is additionally required is that it should on balance bring about harm, and, if it does, this suffices for legal intervention whether or not there is immorality. The Williams Commission accepts what it calls ‘the harm condition’, and goes on to ask what kinds of harm there are, which of those is likely to attach to obscenity, and does any?
Its report distinguishes five kinds of harm. If we take them chronologically, or in the order in which they might arise, there is, first, the harm that might be occasioned in the making of some piece of pornography – what the report calls ‘participant harm’. Secondly, there is the harm that someone might cause himself by reading or looking at some obscene material. If a natural way of thinking of such harm is as harm that stops at the person himself – except in exceptional circumstances, where the person has entered into undertakings with others which he now can’t carry out – the discussion about obscenity as it has developed over the years has focused on a rather special case, which may be seen as a distinct or third form of harm. This is where the harm doesn’t stop at the person himself, but involves others, just because it consists in a tendency, either new or moulded out of existing traits, to harm others. An example would be where reading pornography leads to a sexual assault, and this kind of harm might be called ‘transitive harm’. Fourthly, there is the kind of harm that someone who doesn’t want pornography suffers from coming across or seeing it. If there is some doubt whether this kind of harm is harm suffered on balance, there is little doubt that it is suffered, and the explanation lies in the attitudes towards pornography already mentioned of those who don’t want it. The Commission’s term for this is ‘offence’, and they think of it as relative to norms and expectations, and as admitting of differences of dimension. Finally, there is a fifth kind of harm, which, unlike the others, is suffered not by individuals but by society itself. Call it social harm.
The first kind has the advantage of being fairly clearly identifiable and apt for legal intervention. The Commission believes that participant harm certainly arises in the production of films or photographs when minors are involved, prematurely, in sexual activity, or when physical harm is inflicted on the actors. It recommends that such material should be prohibited, and it allows no room in the first case and very little in the second for the plea of consent. It does not believe that participant harm is occasioned in the making of average pornography, in ‘live entertainment’ – which it thinks should be prohibited on other grounds – or, presumably, though it says very little about this, in the use of animals in bestial films. It takes the reasonable view that the ‘snuff film’ is a figment, not of the torture chamber, but of the advertising agency.