Using Technology to Deepen Democracy, Using Democracy to Ensure Technology Benefits Us All

Sunday, March 16, 2008

p2p and the Porn / Prostitution Double Standard

In a letter to the editor posted to Salon.com in the midst of the Spitzer brouhaha, "DCLaw1" makes a point that is always worth remembering:
"Regardless of what one thinks of prostitution… it [is] very curious that one of the following, but not the other, is illegal: (a) Two people have sex, one of them gets paid for it; (b) Two (or more) people have sex, all of them get paid for it, and it is videotaped and sold to third parties as a commodity. I have yet to hear a convincing argument why this difference makes any actual sense."

It probably goes without saying that I advocate legalizing, and regulating, all consensual sex and sex-work involving informed, nonduressed, competent adults. I say this with awareness and real concern about the ways in which sexwork that is typically posited as "consensual" by more laissez-faire champions of legalization is often in fact characterized by intolerable violence, exploitation, and duress that any actually progressive legalization would have to account for. And I am also aware how porous are the boundaries in fact (however ferocious our cultural policing to the contrary) between demonized forms of sexwork like prostitution and valorized forms like traditional heterosexual marriage (to this day, at least the way Republicans seem to approach it). And although one cannot generalize from the experiences of promiscuous gay men in urban settings (because power dynamics, stigmas, protocols, social supports and so on differ so much between men and women, queers and straights, urban and rural folks), any gay guy who has indulged in anonymous or otherwise promiscuous sex for any extended period of time in his life will attest to the fact that the lines between consensual sex just for pay, consensual sex just for play, consensual sex with benefits, consensual sex with folks who make their living entirely or in part by having sex "on the meter" but who are not always in fact having sex as sex workers, and so on can quickly become entirely jumbled.

But the double standard to which "DCLaw1" directs our attention remains. Why does paid sexwork become legal (where it does) only when it is published? In both cases, the scene of consent can be equally problematic but also equally legible (that is to say, the vulnerabilities to exploitation and duress are pretty much the same in both, but inevitable in neither). In both cases the sexwork, when consensual, is for pay -- although surely some of the technical, er, positions, er, staff, and so on, and surely sometimes some of the players themselves are unpaid and even anonymous volunteers, indulging some kink.

Given the ubiquity of cell phones and other digicams as well as online sites collecting amateur streaming video for pay or for free, however, it isn't really clear how long we will be able to distinguish prostitution from pornography (in many cases, pornstars are also prostitutes already) from exhibitionism from promiscuity in the first place. That is to say, however ill-considered the double standard to which "DCLaw1" refers may be, it may be that even its provisional stability, such as it is, is destined for crisis.

And so, in summary, given all these complexities, there seem to be a few interesting questions in play: First, how is it that the legality of pornographic reproduction and publication of paid sexwork can comfortably co-incide with the illegality of paid sexwork itself? Second, will ever more ubiquitous networked mediation of sex (and sexwork) destabilize the fragile working stability of this coincidence of legality and illegality, bringing it to some kind of crisis? Third, would this destabilization not tend to conduce to the expansion of legal and less stigmatized forms of sex and sexwork? Fourth, since it is p2p mediation in particular that is the avenue through which this expansion might be facilitated, and since this mediation is crucially amateur in its production and decentralized in its distribution, wouldn't the same development that might expand legality likewise facilitate its regulation (circulating representations that testify to problems of violence, exploitation, duress, abuse, incompetence, and misinformation, enabling whistleblowers, diminishing stigmas that encourage lethal silences, and so on)?

10 comments:

jfehlinger said...

> First, how is it that the legality of pornographic reproduction and publication
> of paid sexwork can comfortably co-incide with the illegality of paid sexwork itself?

Well, American society isn't exactly "comfortable" with pornography, is it?
The legal battles (all the way to the Supreme Court) over books like
_Lady Chatterley's Lover_ (which my parents had a copy of, hidden away
in their bedroom) and _Tropic of Cancer_ took place during my own life,
even if I was not of an age to be aware of them.

_Playboy_ was controversial in the 50's. There were no corresponding
gay men's magazines for a long time, and the _Physique Pictorial_ and muscle
magazines, though not **ostensibly** pornography, were still
sometimes pursued by the Post Office as such -- I remember seeing an
"In the Life" on PBS that told the story of a college professor who
lost his job and eventually had to leave the country, because
somebody found his muscle mag collection -- this was in the late 50's
or early 60's.

The boundaries are **constantly** being pushed, and pushing back.
And it's **expensive** to fight those legal battles, so obviously
somebody thought there was money in it because of the huge pent-up
demand for the stuff.

D'you remember the early 70's when _After Dark_ magazine came out
(ostensibly an arts & entertainment magazine, but with ads full
of scantily-clad men), followed by _Playgirl_ (ostensibly for **women** --
hah!)? And for a long time, even after they featured full-frontal
nudity, they had to draw the line at erections, despite the
(occasionlly-published) letter from a reader begging them to go
"all the way". ;->

The folks who publish on-line porn these days are **constantly**
being harassed -- the tack these days seems to be requiring ever more
elaborately-documented proof of the age of the models, without
which the publisher can be shut down (and prosecuted) for child
porn.

I was extremely amused recently when I happened to read the latest
version of my ISP's (Comcast's) terms of service, and discovered that
downloading (or uploading, of course) "obscene" material -- very
loosely defined -- is an **explicit** violation of the terms of
my contract, for which they could presumably pull the plug on
me.

No, I think the apparent difference in comfort level is simply an
artifact of circumstantial details -- if you consider prostitution
as pornography "in the flesh" at one pole [blush] of a spectrum, and pornography
as "virtual prostitution" at the other, then each act of "consumption"
at the former end requires the body, the hotel, the drive downtown, etc.
At the other end, printed (or even more overwhelmingly, electronic) porn is
easier to conceal, can be endlessly replicated from just one encounter among
physical bodies, and is harder for the police to control, without **really**
draconian (and costly) measures, which the courts (and the taxpayer)
have obviously just not thought worth the bother.

But the moral outrage, among those inclined to be so outraged, is
the same.

Have you, BTW, ever seen the film _Perversion for Profit_ (from 1965 --
that late!), financed by Charles Keating? It's in the Rick Prelinger
collection of ephemeral films, and it's a blast.
http://en.wikipedia.org/wiki/Perversion_for_Profit
http://video.google.com/videoplay?docid=-6732024662575303848

De Thezier said...

Dale Carrico:

I say this with awareness and real concern about the ways in which sexwork that is typically posited as "consensual" by more laissez-faire champions of legalization is often in fact characterized by intolerable violence, exploitation, and duress that any actually progressive legalization would have to account for.

Thank you for not only bringing up this subject but specifically for expressing this point of view which I share.

Given the ubiquity of cell phones and other digicams as well as online sites collecting amateur streaming video for pay or for free, however, it isn't really clear how long we will be able to distinguish prostitution from pornography (in many cases, pornstars are also prostitutes already) from exhibitionism from promiscuity in the first place.

Interesting. Do you know any academic who has written on this subject?

jfehlinger said...

> I remember seeing an "In the Life" on PBS that told
> the story of a college professor who lost his job and
> eventually had to leave the country, because
> somebody found his muscle mag collection -- this was in the
> late 50's or early 60's.

It must, in fact, have been this show -- "The Great Pink Scare"
http://www.pbs.org/independentlens/greatpinkscare/
about the 1960 conviction of English professor Newton Arvin
and two other Smith College professors (Ned Spofford and Joel Dorius).
Arvin's house had been searched by Massachusetts State Police
officer John "Dirty Pictures" Regan as part of a "postal investigation"
of a suspected pornography ring, and Arvin's stash of muscle magazines
was discovered.
http://backissues.saqonline.smith.edu/aarticle.epl?articleid=453
http://en.wikipedia.org/wiki/Newton_Arvin

There was a book, _The Scarlet Professor, Newton Arvin: A Literary
Life Shattered by Scandal_ by Barry Werth.
http://www.randomhouse.com/boldtype/0501/werth/excerpt.html

Dorius died two years ago:
http://www.nytimes.com/2006/02/20/obituaries/20dorius.html
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/25/AR2006022501387.html
http://en.wikipedia.org/wiki/Joel_Dorius
http://en.wikipedia.org/wiki/Edward_Spofford

None of these guys left the country. Perhaps that was a
different case.


"Sexual intercourse began
In nineteen sixty-three
(which was rather late for me) -
Between the end of the 'Chatterley' ban
And The Beatles' first LP."

-- Philip Larkin, "Annus Mirabilis"

jfehlinger said...

Needless to say -- or at least I hope it's needless to say --
it's still not altogether "safe" to be a consumer of porn
in this U.S. of A.

Just as in the case of BitTorrent downloads of music and
TV shows -- which "everybody" does and the vast majority
of folks get away with, though the occasional unlucky person
gets caught by the RIAA or MPAA and faces a huge legal
battle and both criminal and civil liability, in amounts
that would bankrupt an ordinary middle-class person,
so the occasional unwary "customer" of porn clicks on
the wrong link, or carelessly leaves images on his hard
drive when taking the PC to CompUSA for service, and the
police get called. And once you get sucked into the
system like that, God help you.

It's so easily and conveniently accessible these days,
and storage is so cheap! But it's still risky to have in
your possession.

Witch-hunts still happen in this country over sex, even
in these "post sexual-revolution" days. The latest, of course,
being the high-profile preschool and day-care center
trials of the 80's, which combined allegations of sexual
abuse with really far-fetched accusations of Satanic
rituals involving children. Even though most -- almost all --
of the charges against these people were eventually dropped,
some people did years of jail time nonetheless.
It wasn't just in the superstitious South, either --
the hysteria seems to have gotten started in my own state
of New Jersey.
http://en.wikipedia.org/wiki/Day_care_sexual_abuse_hysteria

One of those pre-school convictions was never overturned,
though -- a homosexual man named Bernard Baran, who was convicted
when he was 19.
http://www.geocities.com/jgharris7/baran.html
http://www.justicedenied.org/bernie.htm

I know folks from Europe, working here in the US, who look
around and think that this place is just crazy on the topic
of sex. And kids. And sex and kids.

And Terrorism (TM).

Dale Carrico said...

All these points are very true and important -- and I didn't mean to denigrate them in raising a different question; namely: "Why does paid sexwork become legal (where it does) only when it is published?" That parenthetic "(where it does)" was meant to indicate I was aware that published sexwork is far from automatically legal -- when I lived in Atlanta we would take road trips to Chattanooga to scoop up dildos and pics of Kris Lord glowering at the camera and so on, it was far from a sure thing in Hotlanta itself -- but I still think it is a worthy separate question to wonder how published sexwork can co-exist legally with nonpublished illegal sexwork when it does otherwise. Your earlier suggestion about the difficulty of policing networked images is no doubt part of the story, but I still wonder if that is all that is afoot here.

jfehlinger said...

> "Why does paid sexwork become legal (where it does) only when it is published?" . . .
> Your earlier suggestion about the difficulty of policing networked images is
> no doubt part of the story, but I still wonder if that is all that is afoot here.

Well, here's another part of the story.

Some things that count as pornography -- non-photographic artwork, for
example, or a novel -- do not entail "sexwork" at all. They don't even
entail live human beings, just the products of somebody's imagination
and artistic skill.

And the earliest legal battles over pornography were fought over precisely
those things -- novels, in particular. i can hear a part of that Wyatt
interview with Russell (from 1959) in which Russell says that if censorship of books
is tolerated for reasons of "improper" content, then "stupid magistrates
will condemn really valuable work." (He also says that if "filthy postcards"
were permitted, then everybody would soon get bored with them. That's not
**quite** the way things work. ;-> ).

So those battles -- and we're not just talking, in the case of the
visual arts, about Tom of Finland or Alberto Vargas, but about, well,
Michaelangelo, for crying out loud -- were fought on a really high-class
intellectual plane.

Similarly, even photography does not necessarily involve "sexwork" per
se -- most of the guys and gals being photographed for pin-up pix
were not having sex with the photographer, or with each other,
and were not in many cases even completely nude (except rather late
in the game). I mean, if you're a hunky guy, is it "sexwork" to be
photographed at the beach in a speedo?

jfehlinger said...

Of course, this is just the sort of argument a conservative would
make about why _Lady Chatterley_ (or _Peyton Place_) should never
have been allowed in the first place -- **of course** the "rot" will
start by putting its best foot forward. You don't get a wedge to
go in by putting the thick end in front!

Once the "high-toned" stuff gets decriminalized, well, the camel's
nose is in the tent, and when the sleazier stuff starts to come
up for prosecution, everybody's so tired of the show that they just
let it slide by.

There are many Republicans today (as there always have been) who
would use precisely this argument to justify stopping it
now, or even turning the clock back. Even I'm a little surprised
that X-tube gets away with existing (though they've got their limits --
far beyond what I "need" to, as they say, "log in and get off",
fortunately. ;-> Scat, for example, is still absolutely taboo.)

jfehlinger said...

Obligatory Joni Mitchell:

"Like a priest with a pornographic watch
Lookin' and longin' on the sly
Sure it’s stricken from your uniform
But you can’t get it out of your eyes."

jfehlinger said...

More thoughts.

The battle over pornography, whether or not it entails "sexwork",
is, of course, part of a larger battle that encompasses even
more important issues, like whether birth control is legal
or not (never mind abortions!), or whether you're allowed to
use the word "pregnant" in polite company (never mind on TV!).

The same people generally find themselves on the same side of
the fence on all of these issues, and (thank God, or the automobile,
or rock 'n' roll, or cable TV, or the VCR, or the Internet, or whatever)
the "wrong" side (as far as I'm concerned) has been getting more
and more demoralized for many decades now. The whole last century,
certainly, starting at least with Freud.

The demoralization is not uniform though, even in this country (and
of course not globally), and as the tug o' war goes back and forth
(and yes, we've had a politicization of Christian fundamentalism
since the 80's, largely indeed as a backlash against the growing
acceptance of homosexuality as a legitimate alternative),
various backlashes and resurgences bubble up -- Janet Jackson's
"malfunction" and the FCC, NYPD Blue and the FCC, most of which
seem strangely anachronistic in the world of Queer as Folk
and Sex in the City.

Hookers have always been fair game for police departments and DAs
who want to be seen as "cleaning up the streets" -- we had a bit of
that recently in New York under Giuliani. On the other hand, in a world
where state governors are spending tens of thousands of dollars
on call girls, "the world's oldest profession" has also always
had a certain measure of protection. It's a strange balance
(and yes, the "workers" themselves are in a terrible, and terribly
unfair, position).

Nobody seems to mind, or even to mention, BTW, that Republican
Arnold Schwarzenegger must be the only governor, or even public official,
in the history of the U.S. who has been able to hold office at the
same time that his privates are dangling out there for all to see
in some of the brown-paper-wrapper muscle photos that he posed for
in his youth, now freely available on the Internet.

jfehlinger said...

A few more thoughts (gee, am I the only one interested in this topic? :-0 ).

It occurs to me that there are, and may always be, some perfectly
rational reasons to discriminate between prostitution and "published
sexwork" (i.e., pornography) even in societies in which the former
has been legalized (there are such places, are there not? Holland?
Denmark? Sweden? Anyway, I'm not going to Google myself into
an instant expert here.)

Prostitution, requiring as it does a very close encounter between
the "worker" and the customer for every act of consumption, will
always be a more dangerous occupation than being
a porn actor. In the latter case, the people (fellow actors,
cameraman, producer, director) are familiar to each other, and
more-or-less professional colleagues. In the former case, even where
the clients are screened in advance, there's always an element
of risk in such an intimate encounter with a stranger,
even when the police are ostensibly standing by just
in case. With pornography, the consumption always
occurs far away from the people whose images are being
consumed. Even the names and the biographical details
are faked.

It may be that these considerations consciously or unconsciously
work themselves backward into the processes that result
in the legalization of these activities. My only contact
with prostitution comes from watching _Law & Order: Special
Victims Unit_, but at least on that TV show about New York
cops (pretty liberal ones), the concern is always more
about people getting hurt (gruesomely murdered, usually, on TV)
than anything having to do with sexual morality, per se.
And it's not just the risk of violence: the risk of
sexually-transmitted disease is greater for a prostitute
than for a porn actor. It may even be that the emotional cost
of the work is greater.

Back in the realm of moral propriety and moral disgust (how
would I feel if it were my daughter or my son? etc.) it also may
be true that being photographed for private anonymous viewing
seems at least somewhat less morally degrading than participating
in serial physical encounters with strangers.

There are middle cases, of course -- employees in a strip
club, where the clients are physically present but only
get to look, not touch.

And newer technologies -- Webcam shows, with the customers
interacting with the performer via e-chat.

I suspect though that, apart from a few fanatics (fanatical
policeman, fanatical district attorneys or mayors), the
reality of police work entails that (classic) prostitution is much
more of a nuisance -- a greater potential source of serious
crime -- than the production or consumption of dirty pictures
or dirty movies. Unless kids are involved, of course
(or even suspected to be involved) -- then things get a
little crazy.