The below article appears at http://www.kuro5hin.org/story/2002/7/2/11558/71439 -- you should go there and read all the responses that were posted to the comments presented in this article.
The Regulation of Fantasy (Op-Ed)
By Perianwyr
Tue Jul 2nd, 2002 at 07:13:00 AM EST
The recent Supreme Court decision on "morphed" child pornography and the
subsequent legislative challenge that the House of Representatives brought last week begs
the question:
Does it make sense to regulate pure fantasy, if no actual harm is done? Nearly all of us
have fantasies that would not fit our lives, and that we would never bring to fruition.
Our popular culture supports fantasizing about things that any rational person would
consider harmful. Can we, logically, allow pure fantasizing about any element of our
existence to be controlled?
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Fantasy can be a dark place, as we all know. But it is that fact which makes the Supreme
Court's decision important.
This decision brings the issue of the legal status of fantasy to the table.
It always appeared to me that the whole point of banning child pornography was to prevent
the exploitation of children. My understanding is that since you need an actual child to
make child porn featuring actual children, the film itself constitutes evidence of a child
being made to perform sexual acts, which is illegal. Therefore, child pornography is just
like a snuff film. Since the film has someone actually having something illegal done to
them in it, it follows that the people who trade in such things are abetting the
commission of this act (just as if you watched your friend kill someone, didn't tell
anyone because you thought it was cool, and suggested he go out and whack someone else for
you.) If you buy child porn, you're encouraging scummy people who force children to
perform sexual acts do it more often. That's obvious.
However, child porn that is not composed of real children having sex is also not
documentation of the crime we are trying to prevent here. So, the distribution of such
porn is not actually encouraging people to go and force children to have sex, since no
children are needed to produce it. This property puts pornography that looks like it has
minors in it (but actually doesn't) on the same footing as violent movies that look like
they have people getting killed in them, but don't (relying on computer effects and
creative editing to look like the people depicted ate a lead sandwich.)
Kids are not being made to have sex in fake child porn any more than the actor portraying
John Anderton was made to kill the actor portraying Leo Crow in the middle of
"Minority Report". We didn't put Kevin Kline in jail over "A Fish Called
Wanda" because of the simulated cruelty to fish in it (in fact, all movies that
simulate harm to animals have representatives from humane societies on hand to make
certain that none of the animal actors are harmed.) The issue, then, is not one of actual
harm, it's one of the idea of harm.
The idea of causing harm to another, or the commission of some other illegal action, has
been in the fantasies of every person that has ever lived. Every one of us, unless we are
saints or plants, has had the idea of beating another person up or stealing their things
run through their mind before. And for certain, nearly all males with a pulse have seen
teenagers at the mall, who are under the age of consent, and thought to ourselves
"damn, she certainly has nice tits..." The form of youth is naturally attractive
(and in fact, clothing advertisers have been exploiting this tendency for years.) Young
people even naturally pursue the appearance of sexual desirability. It is not illegal to
think of how a teenager might attract you sexually, if you're an adult. It is, however,
illegal to make sexual advances toward that teenager, and exploit the fact that you are an
adult to get her into your bed. The line is crossed once you begin the advances, not once
a part of your brain (which is hardwired to do so!) notices that someone has flipped the
right buttons with their appearance. The line has not even been crossed if you imagine
what it might be like to make love to that person. The legal responsibility only occurs
when you do sexual things to someone who is legally unable to consent to your actions.
Sexual fantasies almost always contain things that a person could never do, and would
never do even if they were presented with the opportunity to. The fantasy revolves around
the actual disconnected act itself, not the social implications that its actuality would
have on your life. Just because my girlfriend thinks Brendan Witt is the sexiest man alive
and affects an emphasized sigh every time they do a close up on him at the Capitals game
does not make me worry that she'll go run off with a hockey player. I know she is better
than that. And if she isn't, it's the act that will dismay me.
Art has always been about showing facets of reality that we are often uncomfortable with,
or secretly desire, to the dismay of our more "civilized" selves. We normally
allow very graphic expressions of violent acts in our culture. Sex is generally treated
with more decency, although not always. I do not believe it is fair to make judgments
based on what other people may find in their heads, while I reserve the right to judge
them on what they actually do to others. If someone has fantasies about having sex with
people under the legal age of consent (which, I might add, is not universal) and wants to
express themselves in artwork or writing, I find it to be a foolish concept that they
could be jailed or fined for it. I consider myself an enthusiastic reader of erotic
writing, and appreciation of erotic depictions is a far more common concept. I won't deny
other people access to their fantasies, nor to the depictions that they may create. The
line between fantasy and reality is a very strong one in a healthy mind. An unhealthy mind
will find its justification anywhere it looks.