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Legal leverage: Laws to fight pornography aren't being used, anti-porn activists say

Published: Wednesday, July 29 2015 12:56 a.m. MDT

Raymond Robertson, the commonwealth’s attorney for Staunton, Va., successfully prosecuted an obscenity case in 2008 against an adult video store that set up shop in his town. (Provided by Raymond Robertson) Raymond Robertson, the commonwealth’s attorney for Staunton, Va., successfully prosecuted an obscenity case in 2008 against an adult video store that set up shop in his town. (Provided by Raymond Robertson)

Editor's note: The following story deals with sexually-themed subject matter that will not be appropriate for some readers. Discretion is advised.

This is part three in a four-part series. Read part one: "Ubiquitous assailant: The dangerous unasked questions surrounding pornography." Read part two: "Second-hand porn: the spreading circle of damage." Read part four: "How couples break the cycle of addiction."

As she flips through the sex offense cases for the Metropolitan Police in Reykjavik, Iceland, assistant prosecutor Sigridur Hjaltested shakes her head.

A 15-year-old girl pressured into having sex with three boys.

One of the boys was 15. The other two were even younger.

Recently, Hjaltested filed charges in the case of a woman in her 20s who was expecting a sexual encounter with a man in his 30s, yet suddenly the man's friend showed up and demanded to take part.

Ögmundur JÓnasson, the interior minister of Iceland, speaks to teachers and school staff about the concerns of sexual violence against children, including pornography. JÓnasson has sponsored a proposal to redefine “porn” in Iceland’s penal code to refer to violence and humiliation, beyond just nudity or sexual explicit images, thus making a majority of today's Internet porn illegal. (Provided by Iceland's Ministry of the Interior) Ögmundur JÓnasson, the interior minister of Iceland, speaks to teachers and school staff about the concerns of sexual violence against children, including pornography. JÓnasson has sponsored a proposal to redefine “porn” in Iceland’s penal code to refer to violence and humiliation, beyond just nudity or sexual explicit images, thus making a majority of today's Internet porn illegal. (Provided by Iceland's Ministry of the Interior)

The charge was rape using violence and unlawful pressure.

There's nothing new about sex crimes, but over the last five years, the sexual offenses division in Reykjavik has seen crimes that are more graphic, violent, and perpetrated by younger and younger individuals.

"The sexual offense cases we get bear more (resemblance) to hard-core sex and a sex culture that is rapidly changing," Hjaltested said. "I do not think that is a good development."

Distribution of pornography has been illegal in the liberal, socially progressive Nordic country since it was codified in 1940, but "porn" wasn't defined and enforcement has been sporadic due to a lack of resources. Because the majority of today's pornography is accessed online, Iceland’s former minister of the interior proposed a bill that would legally define pornography with references to violence and humiliation rather than nudity and sexually explicitness — thus making most of today’s mainstream violent Internet porn illegal.

Mary Beth Buchanan, the U.S. attorney for the Western District of Pennsylvania from 2001 to 2009, won an obscenity case against a Los Angeles-based pornographer in 2003 and believes that without visible enforcement of obscenity, the public begins to believe that anything goes. (David Bachman) Mary Beth Buchanan, the U.S. attorney for the Western District of Pennsylvania from 2001 to 2009, won an obscenity case against a Los Angeles-based pornographer in 2003 and believes that without visible enforcement of obscenity, the public begins to believe that anything goes. (David Bachman)

"There are great concerns that violent porn has blurred the line between sex and violence," said Ögmundur Jónasson, who sponsored the proposal during his tenure as minister of the interior, which ended with the country’s April elections. "A broad consensus has developed in Iceland where we agree that the current situation is not acceptable." Jónasson had organized a committee that was considering making it illegal to buy porn using Icelandic credit cards, or creating a national blacklist of pornographic websites — but opponents pointed out problems ranging from technological hurdles and false labeling of good websites to concerns over censorship. It’s unknown whether the new government will pursue the bill.

Any country wishing to prevent the spread of pornography faces similar questions now that pornography has exploded from brick-and-mortar products to ever-accessible Internet offerings.

Like Iceland, the United States also has laws that ban obscenity — a legally defined, albeit contested, subset of pornography — but they're not being enforced, experts say.

"In theory it's possible for the government to enforce them," says Eugene Volokh, a professor of First Amendment law at UCLA School of Law. "It's just that there's been very little political appetite to do that, with changing social mores … coupled with a sense that it's extremely unlikely that this is going to do any good."

Experts like Volokh point out that prosecutions may be decreasing because the laws intended to prosecute obscenity were a bit vague to begin with and are even more muddled now that offenders are predominantly online.

Others, like Patrick Trueman, president and CEO of Morality in Media and chief of the Child Exploitation and Obscenity Section in the Department of Justice from 1988-1993, point to a successful history of obscenity prosecutions in the country and say there's no reason existing laws can't be used to prosecute Internet offenders — especially if the public steps up and once again demands legal action.

"I don't think that obscenity is no longer prosecutable — it is," says Robert Showers, founder of the National Law Center for Children and Families and chief of the Child Exploitation and Obscenity section at the Department of Justice in the 1980s. "But it would take, quite frankly, an avalanche of public sentiment … saying, 'We're not putting up with this anymore.'"

LOCAL BATTLES

Fourteen years ago in a Provo courtroom, defense attorney Randy Spencer asked a jury of Utah County residents to consider the following numbers:

19,389 adult pay-per-view movies rented from DirectTV in three years.

1,416 adult pay-per-view movies purchased during a nine-month test run of "Spice TV" in Provo, Spanish Fork and Payson. (Response was so good corporate headquarters wanted the local affiliate to offer "Playboy TV" as well.)

20 percent of profits at Orem movie store Sun Coast Video came from adult video sales — only 2.5 percent of its total inventory.

3,444 non-cable-edited X-rated movies purchased by patrons at the Marriott Hotel — literally across the street from the courthouse.

How could the county charge his client Larry W. Peterman with violating community standards of decency, Spencer asked the jury, when Utah County residents themselves had accepted, albeit clandestinely, adult entertainment being sold in their malls and viewed in their homes?

Peterman was acquitted on all charges.

Results like that make prosecutors hesitant to file porn cases, says Raymond Robertson, the Commonwealth’s Attorney for Staunton, Va., and one of the last prosecutors to successfully get an obscenity conviction against a pornographer over the last decade.

"I don't know if they're too busy, or they don’t care, or they think the law is one thing when it's actually another,” he said. “But the law is pretty clear and it's clearly on the side of … if it's obscene, it's illegal."

The law he’s talking about is called the Miller test, a 1973 Supreme Court decision that defined obscenity using a three-prong test: Would the average community member find that the material in question appeals to a morbid or degrading interest in sex? Does it show or describe sexual content in a patently offensive way? And then, considering a broader, nationwide audience, does it lack literary, artistic, political or scientific merit?

If the answers are yes, then the material is obscene, regardless of who used it, how they used it, where they used it, and how pervasive it is around them, Robertson says, emphasizing that prosecutors have to stand firm on those prongs and avoid getting derailed by defense attorney’s arguments about free speech and tolerance.

The Free Speech Coalition, the trade association for the adult entertainment industry, has a different perspective on the law.

"The more people there are who enjoy adult entertainment, the harder it becomes to make the argument that adult entertainment is patently offensive to the average person," the trade group argued in its most recent report on the state of the industry. "If adult entertainment is, in fact, widely accepted by mainstream populations, then the use of criminal obscenity law to regulate it is unconstitutional."

FEDERAL FIGHTS

As Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania, initiated an obscenity case against a Los Angeles-based pornographer in 2003, the letters began pouring into her office.

"How can you, as an attorney in Pittsburgh, prosecute a couple in California?"

"Obscenity laws still exist?"

"With all the other problems we face, why are we spending taxpayers' money fighting porn?"

And her favorite: "Thanks for tackling this. Good luck."

The public's confusion and surprise was understandable and even part of her motivation, Buchanan said. The grand jury indictment of Extreme Associates and owners Robert Zicari (aka Rob Black) and Janet Romano (aka Lizzy Borden) represented the first federal obscenity case filed in nearly 10 years.

"Bringing these cases will remind the public that we do have laws that prohibit obscenity and those laws are enforceable," Buchanan said. "If (people) find this material, they don't have to accept it; they don't have to tolerate it; they can bring it to law enforcement."

Federal law prohibits selling, mailing, transporting, broadcasting, producing or transferring obscene material — which Extreme Associates was doing by mailing DVDs to a local Pennsylvania retailer, as well as offering Internet material that was being accessed in the community.

The couple was charged with 10 counts of production and distribution of obscene pornographic materials by mail and the Internet, which carried the potential for 50 years in prison and/or a $2.5 million fine.

Buchanan charged headlong into the case, relying on years of experience prosecuting child pornographers to propel her through six years of legal procedure that included a dismissal and a successful appeal to the 3rd Circuit Court of Appeals, which returned the case to the district court. The case ended with guilty pleas and a yearlong prison sentence for each defendant.

"I don't recall any other case during my entire career that took that much time and effort to obtain a judgment or conviction," Buchanan said. "When I compare this to all the drug and gun cases we did at this time, this one case had as much impact on the pornography industry … as hundreds of cases in some other area."

For a long time after the victory, Buchanan would get calls from defense attorneys who represented pornographers, asking if they were advising their clients correctly on what would and wouldn't fly in their films.

"What that showed me is they were taking the law seriously, which they had not for many years," Buchanan said. "They recognized that the law was still in effect, prosecutors were paying attention to it, and if producers violated it, there would be consequences."

During the end of Ronald Reagan's presidency and the beginning of George H.W. Bush's, adult obscenity prosecution was in full swing at the federal level, leading to a decrease in hardcore pornography and a sense of hesitancy on the part of pornographers, says Trueman, who headed up the Department of Justice office for years. Such success proved the laws were effective.

Yet, the Department of Justice hasn't filed an adult obscenity case since 2010.

The most recent adjudication came in January, when Ira Isaacs, a self-proclaimed "shock artist," was sentenced to four years in prison for his obscene films featuring bestiality and an obsession with feces.

Yet his case was filed six years ago, and had been winding through mountains of legal motions and three jury trials to get to the recent finish line.

“The department has brought numerous obscenity prosecutions in recent years, including the recent case against Ira Isaacs," said Peter Carr, Department of Justice spokesman. "However, we have focused our limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation and cases involving the sexual abuse of children, including obscene depictions of child rape. For that reason, the significant majority of the federal obscenity cases we have charged involve the exploitation of children.”

Along with prosecuting child pornography, federal law also prohibits knowingly distributing obscenity to minors, as well as creating misleading web addresses or web images designed to deceive children into viewing pornography.

Child porn is one area where the government can focus its resources and rest assured that their enforcement activities are going to stand up to the scrutiny of the law, says Marcia Hofmann, an attorney who specializes in Internet law.

"There's a tremendously strong interest in protecting children," she says. "When the law enforcement starts to go into areas where there is less of a compelling interest, then there's a great fear … of getting in a big fight over whether prosecution is OK."

And this is where the public could step in and show prosecutors there's still a compelling interest to prosecute, says Trueman. After all, law enforcement operates off of complaints, he says.

"If you don't like the situation, if you don't like a porn shop in your town, contact the district attorney. Make sure their phones ring off the hook," he says. "But the public isn't doing that. They haven't done that for many years."

Perhaps it's because many feel the battle against the spread of pornography is futile, says Volokh.

"If a prosecutor wants to prosecute distributors of online porn under Miller, there's a good chance he'll get a conviction," Volokh says. "But if the goal of the prosecutor is to make porn less accessible, that's what's not possible. One thing that we have found, is that in free countries, it's hard to stop the spread of things that people want to consume."

The government could try to install something like a nationwide China-like firewall, (which would incur massive opposition) or begin monitoring ISPs and the raid the homes of people acquiring obscenity, which is legal to possess, but not to acquire or transport. It would be a rare, but legal charge, too draconian "even for people who'd like to wave a magic wand and have all porn gone," Volokh says.

But enforcing existing law isn't draconian, it's responsible, Buchanan insists. Yes, it's difficult and requires significant time and energy, but it sends a message to the public, to pornographers and to other prosecutors that obscenity is taken seriously and that the laws written to enforce it are still being used.

"To bring these cases is important because it reminds the people in the community that it is their choice on what material they find offensive, and what material they think that the law applies to," she says. "If they don't speak up, then prosecutors won't know that this type of material is material that they don't want in their communities."

What YOU can do:

Communicate with local law enforcement and prosecutors as well as state prosecutors about establishments or Internet sites you find offensive and problematic

Write letters or call companies that use sexually explicit advertising and express your concern and determination to shop elsewhere

Refuse to support companies that make money off of distributing pornography. For information on such companies visit pornharms.com/dirtydozen

Become educated about the applicable obscenity laws in your state and at the federal level

Become educated about pornography and pornography addiction

Talk to youths about sexuality and appropriate expressions of intimacy

Install filters on computers, phones, gaming systems and cable systems to prevent exposure to pornography

sisraelsen@desnews.com

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