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University of Pennsylvania
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American Law Register
VOL. 141 APRIL (^1993) No. 4
ARTICLES
DEFINING PORNOGRAPHY
JAMES LINDGRENt
t Norman & Edna Freehling Scholar, Associate Dean for Faculty Development, and Professor of Law, Chicago-Kent College of Law. J.D., 1977, University of Chicago; B.A., 1974, Yale University. I would (^) like to thank many people for helpful suggestions, including Wendy Gordon, Anita Bernstein, Lori Andrews, Scott Lindgren, Kent Smith, John Donohue, Michael McConnell, Albert Alschuler, and participants in the Legal Theory Workshop at Chicago-Kent College of Law. I would particularly like to thank Cass Sunstein for his comments on the first survey questionnaire and Catharine MacKinnon for her comments on an early draft. Much of this study was conducted during the winter and spring of 1992, while I was (^) a Visiting Scholar at the Northwestern University and University of Chicago Law Schools. I would like to thank both schools and their deans for their generous support of this project, as well as the Marshall D. Ewell Fund of Chicago-Kent College of Law. Those who teach pornography in class might consider using a couple of examples from the survey questionnaires in appendix A, asking their students to examine the examples under the MacKinnon-Dworkin and Supreme Court tests. Perhaps form 2.2, examples B and C, might be best. Although you don't need this law review's consent to use these questionnaires, you do need the informed consent of your students if you expose them to example B or any other pornography.
Warning: This Article contains pornographi, sexist, and racist materials.
1154 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:
1. Pornography: Story of the Eye, Stoy of 0, and
Feminist Fiction: Ice and Fire, The Women's
- 1154 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:
- INTRODUCTION
- I. METHODOLOGY - A. Choosing Sex Scenes for Testing - Beaver Hunters - by Women, and Mercy Room, Titters: The First Collection of Humor - B. Taking Scenes Out of Context - C. The Administration of the Questionnaires
- II. THE FIRST SURVEY - A. Vagueness - B. Overbreadth and Underbreadth - 1. Compared to What? - 2. Methods of Aggregating Data - 3. Conclusions About Sexual Materials - C. DemographicBreakdown of Responses - 1. Tendency to Find Works Pornographic - from Feminist Works 2. Expertise at Distinguishing Pornographic
- III. THE SECOND SURVEY - A. Vagueness - B. Overbreadth and Underbreadth - C. DemographicBreakdown of Responses - 1. Tendency to Find Works Pornographic - from Feminist Works 2. Expertise at Distinguishing Pornographic
- IV. REVISING THE DEFINITIONS - A. The MacKinnon-Dworkin Definition - B. The Miller Test - C. The Sunstein Test
- CONCLUSION - A. Testing the Tests - from PornographicSex Scenes B. Group Skills at DistinguishingFeminist Sex Scenes - C. Enforcing the Definitions - of Subordination D. SubordinatingDepictions or Depictions - E. What's Next? More Testing
- APPENDIX A - FIRST SURVEY
1156 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:
a test of the ability of three pornography or obscenity definitions to distinguish what should be readily distinguishable: sex scenes in pornographic fiction from those in feminist fiction.
Much of^ the^ acrimonious^ debate^ over^ pornography^ among feminists^3 has centered on^ whether^ it^ can^ be^ defined.^ Modern pornography statutes are debated in^ nearly^ every^ university^ in the country. Yet no one has yet taken the elementary step of asking
people to apply them. This study is designed to test whether these definitions are vague, overbroad, or underbroad. The most influential modern definitions of pornography all stem in one way or another from Andrea Dworkin and Catharine MacKinnon's 1983 ordinance for Minneapolis. 4 Building on Dworkin's earlier work opposing pornography 5 and MacKinnon's women's rights background, they created a civil rights statute that would allow women to sue purveyors of pornography. A version of the statute was adopted by the Minneapolis City Council in 1983 and 1984, but vetoed by liberal mayor Donald Fraser.^6 Later in 1984, the Indianapolis City Council enacted another version, which was signed by conservative mayor William Hudnut, but struck down by the Seventh Circuit in American Booksellers Ass'n v. Hudnut,^7 a decision affirmed without comment by the United States Supreme Court.^8 Nonetheless, the Canadian Supreme Court and a govern-
3 See, e.g., CATHARINE A. MACKINNON, On Collaboration,in FEMINISM UNMODIFIED 198,199,204-05 (1987) (stating that women opposed to her statute are defending and fronting for pornographers). 4 It is sometimes incorrectly stated (^) that the statute was a class drafting project at the University of Minnesota Law School. See DONALD A. DOWNS, THE NEW POLITICS OF PORNOGRAPHY 34-35, 56-57 (1989) (discussing emergence of the ordinance in the law school class). According to MacKinnon, she and Dworkin drafted the statute themselves, not as part of the class. Telephone Conversation with Catharine MacKinnon (Sept. 30, 1992). 5 See ANDREA DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN (1979) (the "ovular" work (^) in the antipornography (^) literature). 6 See Randall (^) D.B. Tigue, Civil Rights and Censorship-IncompatibleBedfellows, 11 WM. MITCHELL L. REV. 81, 82 (1985). Explaining his veto, Fraser stated: "The definition of pornography in the ordinance is so broad and so vague as to make it impossible for a bookseller, movie theater operator or museum director to adjust his or her conduct in order to keep from running afoul of its proscriptions." Id.; see also DOWNS, supra note 4, at 62-65, 86, 89, 111 (discussing Fraser's veto). 7 771 F.2d 323 (7th Cir. (^) 1985), aftd, 475 U.S. 1001 (1986) (^) (finding the statute's definition of pornography overbroad). 8 475 U.S. 1001 (1986). 9 See Butler v. The Queen, 1 S.C.R. 452 (Can. 1992) (holding that violent, degrading, or dehumanizing materials are obscene); see also Suzanne Fields, Porn By Gender? Limiting Speech, WASH. TIMES, Mar. 5, 1992, at G1 (discussing Butler); Tamar Lewin, Canada Court Says PornographyHarms Women, N.Y. TIMES, Feb. 28, 1992, at B
DEFINING PORNOGRAPHY
ment pornography commission in New Zealand"^0 have adopted
altered versions of the MacKinnon-Dworkin definition of pornogra-
phy. In addition, ordinances similar to those in Minneapolis and
Indianapolis have been considered elsewhere in the United States,
including Cambridge (Massachusetts), Los Angeles, Bellingham
(Washington), Madison (Dane County, Wisconsin), and Suffolk
County (Long Island, New York).^11
The MacKinnon-Dworkin model statute has three elements:
graphic sexual explicitness, the subordination of women, and
depictions of any one of a long list of specific sexual acts.1 2^ Critics
of the model statute have repeatedly called its provisions vague,
overbroad, and^ underbroad.
1 3
(discussing Butler and citing the similar ordinance at issue in American Booksellers). 10 See Charlotte L. Bynum, Feminism and Pornography: A New Zealand Perspective, 65 TUL. L. REV. 1131 (1991) (analyzing the New Zealand commission report). 11 See DOWNS, (^) supra note 4, at xiii (listing municipalities (^) that considered an ordinance similar to Indianapolis's); Note, Anti-pornographyLaws andFirstAmendment Values, 98 HARv. L. REV. 460, 461 n.4 (1984) (listing areas interested in adopting a similar pornography ordinance);John Elson, PassionsOver Pornography, TIME, Mar. 30, 1992, at 52. 12 Under the MacKinnon-Dworkin (^) model (^) statute: Pornography is the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (i) women are presented dehumanized as sexual objects, things or commodities; or (ii) women are presented as sexual objects who enjoy pain or humili- ation; or (iii) women are presented as sexual objects who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (v) women are presented in postures of sexual submission, servility or display; or (vi) women's body parts-including but not limited to vaginas, breasts, and buttocks-are exhibited, such that women are reduced to those parts; or (vii) women are presented as whores by nature; or (viii) women are presented being penetrated (^) by objects or animals; or (ix) women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual. CATHARINE A. MACKINNON, Not a Moral Issue, in FEMINISM UNMODIFIED, supra note 3, at 146, 146 n.1. 13 See American Booksellers Ass'n v. Hudnut, 598 F. Supp. 1316, 1328-38 (S.D. Ind. 1984) (finding the Indianapolis ordinance unconstitutionally vague), aff'd on other grounds, 771 F.2d 323, 332 (7th Cir. 1985) (holding the definition of pornography unconstitutionally overbroad), aff'd, 475 U.S. 1001 (1986); DOWNS, supra note 4, at
DEFINING PORNOGRAPHY
Pornography, however, is not the same as obscenity, and the
purposes of the terms are often different. Roughly, obscenity is
dirty sexual material that lacks value, while pornography is explicit
sexual material that harms women. Typically, pornography is a
much broader category that includes some currently constitutionally
protected works with literary or social value. The Supreme Court's
definition of obscenity was set out in Miller v. Calfornia^8 in 1973:
prurient interest; patently offensive depictions of specific sexual
acts; and the lack of serious value. 19 The Miller test has been
called vague, underbroad, and overbroad by various commenta-
tors.
20
necessarily over- and underinclusive for the same reasons that the Dworkin- MacKinnon model is-namely, that 'pornography' cannot be defined with the requisite objectivity or specificity to ensure a narrow application consistent with feminist and civil liberties concerns."). is 413 U.S. 15 (1973). 19 See id. at 24-26. As the court stated:
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken a whole, appeals to the prurient interest.. .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifi- cally defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. at 24 (citation omitted). The Court went on to explain what specific sexual conduct would meet its test: We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Id. at 25. Later cases have slightly modified the Miller test. See infra note 68 and accompanying text. (^20) Downs, for (^) example, argues: Confusion over the meaning of key parts of the Miller test-"prurience," "serious value," "patently (^) offensive," "community (^) standards"-make prosecu- tors reluctant to prosecute (^) and juries reluctant to convict, especially given the need to find guilt "beyond a reasonable doubt." Complex laws and judicial instructions confusejuries, making them less inclined to convict, and few laws are more confusing and complex than obscenity laws. DOWNS, supra note 4, at 20-21; see also HAWKINS & ZIMRING, supra note 1, at 25- (stating that "the term 'obscenity'... cannot serve to facilitate discussion or make any significant distinction" among the terms "obscenity," "pornography," and "erotica"); CATHARINE (^) A. MAcKINNON, Afterword, (^) in FEMINISM UNMODIFIED, supra (^) note 3, at 215, 223 (referring to criminal obscenity statutes as "vague and discretionary").
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1160 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:
The purpose of this study is to test whether any of these three
definitions works. I'm not asking whether pornography is a good
thing or a bad thing. I believe that it's a bad thing. I'm not asking
whether pornography harms women. I believe that it does. Ideas
matter; bad ideas-such as sexism or socialism-have caused harm
and will continue to cause harm. I'm also not asking whether
pornography should be prohibited if it can be successfully defined.
I'll leave that question to others.
This is a feasibility study. My concern is with the drafting
exercise. Are any of these definitions successful at separating
pornography from material that isn't pornographic? My hope is to
shed more light than heat on this issue. Perhaps naively, I assume
that people wouldn't want to enact statutes that won't accomplish
their purposes.
To test the definitions, I asked law student subjects in two
separate surveys to apply the three tests to pornographic and
feminist sexual materials. My purpose was not to determine
whether particular works were pornographic. Rather, I wanted to
examine how well various definitions separated pornographic works
from feminist works.
In this study, the performance of the MacKinnon-Dworkin
definition was mixed. It suffers from overbreadth by MacKinnon
and Dworkin's standards. An excerpt from Andrea Dworkin's own
novel Mercy is pornographic under their test. 21 The MacKinnon-
Dworkin test is, however, less vague than the Supreme Court's
obscenity test, although many people may still find it disturbingly
vague. On balance, the performance of the Supreme Court's
obscenity standard is perhaps slightly worse. It's the most vague of
the three tests and by various measures either overbroad or
potentially underbroad. Indeed, the results vary markedly depend-
ing on how the data are aggregated. Yet the Sunstein test performs
even worse. Nothing is close to pornographic under its standard.
MacKinnon has contrasted her statute with the Miller test, using language suggesting its vagueness: This is not like obscenity law, which is written in order (^) to include a whole lot of possibilities for interpretation and local variation. This law is extremely concrete. It's not only ... narrow, but it's very specific. It doesn't give that kind of room. ValerieJ. Hamm, Note, The CivilRights PornographyOrdinances-AnExaminationUnder the First Amendment, (^) 73 KY. L.J. 1081, 1106 (1984) (quoting Nightline interview with Catharine (^) MacKinnon). (^21) See ANDREA DWORKIN, MERCY 207-12 (1991).
1162 UNIVERSITY OFPENNSYLVANIA LAW REVIEW [Vol. 141:
1987 study found that 83% of the men surveyed found the Stoiy of o exciting."M^ It was published under the^ pen^ name^ Pauline^ R6age, but in my opinion, its cruelty suggests (^) that it was written by a man. Because these two works are considered to have some significant literary pretensions, they should not be obscene under the Supreme Court's Miller test. Dworkin and MacKinnon, however, clearly do not intend to exclude these works, or art in general, from their definition of pornography. As MacKinnon argues, "if a woman is subjected, why^ should^ it^ matter^ that^ the^ work has^ other^ value?"
3 2
I then selected scenes that (^) Dworkin and MacKinnon should find particularly objectionable. From the Story of 0, I selected a scene that showed 0 being handed over as a possession from one male protagonist to another, then being painfully throat-raped to the point of tears, followed immediately (^) by her admitting to herself that she enjoyed it. With MacKinnon (^) and Dworkin among the leading opponents of throat-rape,3 3^ this passage should be the kind of scene that leads Dworkin to call the Story of 0 pornographic: "All we ask you to do is submit to it, and, if you scream or moan, to agree ahead of time that it will be in vain," Sir Stephen went on.... "So (^) give us your answer [Ren6] said. "Do you consent?" Finally she said that she did.... "I leave you to Sir Stephen," Ren6 then said [to 0]. "Remain the way you are, he'll dismiss you when he sees fit."
[0] did not dare look Sir Stephen in the face, but she saw his hands undoing his belt. When he had straddled 0, who was still
SoURCEBOOK]. The four books named most often as pornographic in a survey of "feminist crusaders" were:
1. STORY OF O 17%
- TROPIC OF CANCER (Miller) 14 3. AN AMERICAN DREAM (Mailer) 11
- Books by de Sade 9
Id. 31 See Virginia Greendlinger & Donn Byrne, Coercive SexualFantasiesof CollegeMen as Predictors of Self-Reported Likelihood to Rape and Overt Sexual Aggression, 23 J. SEX RES. 1, 5 (1987) (reporting that 82.6% of the men in the survey found the book exciting). 32 Catharine A. MacKinnon, (^) Pornography, Civil Rights, and Speech, (^) 20 HARV. C.R.- C.L. L. (^) REV. 1, 21 (1985). 33 See id. at 1, 35 n.65 (acknowledging Dworkin's assistance to (^) MacKinnon in the fight against (^) pornography and decrying the increased incidence of throat-rape after the release of the movie Deep Throat).
DEFINING PORNOGRAPHY
kneeling, and^ had^ seized^ her^ by^ the nape^ of^ the^ neck,^ he drove into her mouth.^ It^ was^ not^ the^ caress^ of^ her^ lips^ the^ length^ of^ him he was looking for, but the^ back^ of^ her^ throat.^ For^ a^ long^ time^ he probed, and^0 felt the^ suffocating^ gag^ of^ flesh^ swell^ and^ harden, its slow repeated hammering finally bringing her to tears. In order to invade her better, Sir Stephen ended by kneeling on the sofa, one knee^ on^ each side^ of^ her^ face,^ and^ there^ were^ moments when his buttocks rested on O's breast, and in her heart she felt her womb, useless and scorned, burning her. Although he delighted and reveled in her for a long time, Sir^ Stephen did^ not bring his pleasure^ to^ a^ climax,^ but^ withdrew^ from^ her^ in^ silence and rose again to his feet, without closing his dressing gown. "You are easy,^ 0,"^ he^ said^ to^ her.^ "You^ love Ren6,^ but^ you're easy. Does Ren6^ realize^ that^ you covet^ and long^ for^ all^ the^ men who desire you, that by^ ...^ surrendering^ you^ to^ others^ he^ is providing you with^ a^ string^ of^ alibis^ to^ cover^ your^ easy^ virtue?" "I love Ren6," 0 replied. "You love Ren6, but you desire me,^ among^ others,"^ Sir Stephen went on. Yes, she did desire him, but what if Ren6, upon learning it, were to change? All she could do was remain silent and lower her eyes: even to have looked Sir Stephen directly in the eyes would have been tantamount^ to^ a^ confession.
3 4
From the Story of the Eye, I chose the passage that Dworkin quoted most extensively from in Pornography and the two sexual acts that preceded^ it:
3 5
One day, when I^ tried^ to^ rape^ Simone^ in^ her^ bed,^ she^ brusquely slipped away: "You're totally insane, little man," she cried, "I'm not interest- ed-here, in a^ bed^ like^ this,^ like^ a housewife^ and^ mother!^ I'll only do it with Marcelle!" "What are you talking about?" I^ asked,^ disappointed,^ but basically agreeing with her. She came back affectionately and said in a gentle, dreamy voice: "Listen, [Marcelle] won't be^ able^ to^ help^ pissing^ when^ she sees us... making it."
34 RAGE, (^) supra note 28, at 76-78, 83-84 (for the study, (^) "0" was replaced by "W"). This is the "consent" version. In the "nonconsent" versions of^ the^ survey,^ I^ omitted the first five lines of this passage. Compare example B in the three versions of^ the questionnaires in appendix A. 35 See DWORKIN, supra (^) note 5, at 169 (describing sex acts and (^) attempted rape scenes in Stoyy of the Eye).
1993]^1163
DEFINING PORNOGRAPHY
got her home. But pornographic materials cannot always be easily characterized as such.3 8 In the photograph, the woman's (^) legs are open and the hunters carry rifles. A bumper sticker on thejeep-style vehicle says, "I Brake for Billy Carter." A separate bumper sticker with these words ran alongside the Beaver Hunters (^) photo in Hustler and was included on the page of my (^) survey. The text below the picture read: Beaver Hunters. Western sportsmen report beaver hunting (^) was particularly good throughout the (^) Rocky Mountain region during the past season. These two hunters easily bagged (^) their limit in the high country. They told Hustler that they stuffed and mounted their trophy as soon as they (^) got home.3 9 Surprisingly, the photograph (^) was quite small as printed, less than a quarter-page, and was intended as humorous. Some people apparently consider (^) sexual violence funny. In a magazine filled with photographs (^) for masturbating, this may not have been one of them.
40
I selected the Beaver Hunters photograph as an example of what both Dworkin and Sunstein consider the (^) worst in pornography, the easiest case. Moreover, a poll of (^) anti-pornography activists named Hustler as pornographic more (^) frequently than any other maga- zine.4 1^ Because visual works (^) are usually thought to be worse than mere words, 42 and because (after Deep Throat) the Beaver Hunters
38 Sunstein, supra note 15, at 593 (citations omitted). 39 Beaver Hunters, HUSTLER, Dec. 1978, at 18, 18. (^) In the survey, I replaced Hustler with "us." 4 Subjects were shown a color copy, which is not (^) included in the appendix to this Article. 41 See Kirkpatrick & Zurcher, supra note 30, at 503 tbl. F-16. The seven magazines named most often as pornographic by "feminist (^) crusaders" were:
1. HUSTLER 63%
- PLAYBOY **57
- PENTHOUSE** 49
- Oui 20 5. CHIC 9 5. PLAYGIRL 9 5. EASY RIDER MOTORCYCLE MAGAZINE 9
Id. 42 See Pollard, supra note 13, at 155 (noting that most studies correlating violence toward women with pornography used films to present the pornographic material); Sunstein, supra note 15, at 625 (asserting that the evidence of harm is dearer with films and photos than with written material); Bruce A. Taylor, Hard-CorePornography:
1993] 1165
1166 UNIVERSITY OFPENNSYLVANIA LAW REVIEW [Vol. 141:
photograph is the most infamous example in the pornography literature, it should provide a baseline against which to measure (^) all the other works.
- Feminist Fiction: Ice and Fire, The Women's Room, Titters: The First Collection of Humor by Women, and Mercy
For the feminist sex scenes, I looked first at Andrea Dworkin's 1986 novel Ice and Fire.^43 It's inconceivable that Dworkin would consider her own novel pornographic. To my surprise, however, the novel has a disgusting, (^) fairly explicit sex scene in which a woman asks to be beaten, bitten, and degraded in various ways enumerated by Dworkin's own statute. The woman regrets having taught her future husband to systematically torture her, but in context the scene is what it appears to be-a moderately explicit scene in which a woman seeks to be sexually degraded: There was a big bed, one room, a huge skylight (^) in the middle of the room, one large table in a corner: I put the bed under the skylight, water condenses and drips on it, but there I teach him, slowly. I have understood. He has too much respect for women. I teach him disrespect, systematically. I teach him how to tie knots, how to use rope, scarves, how to bite breasts: I teach him not to be afraid: of causing pain. It goes slowly. I teach him step by step. I invent sex therapy in this one room somewhere in the middle of Europe. I am an American innocent, in my fashion. I forbid intercourse. I teach him (^) how to play games. You be this and I will be that. Rape, virgin, Queen Victoria. The games go on and on. There are some we do over and over. I teach him to penetrate with his fingers, not to be afraid of causing pain. I fellate him. I teach him not to worry about erection. I tie him up. Dungeon, brothel, little girl, da-da. I ask him what he wants to do and we do it. I teach him not to be afraid of causing pain. Not to be afraid of hurting me. I am the one (^) there: don't be afraid of hurting me, see, this is how. I teach him not to be afraid of piss and shit, human dirt. I teach him everything about his body, I penetrate him, I scratch, I bite, I tie him up, I hit him with my
A Proposalfor a Per Se Rule, 21 U. MICH. J.L. REF. 255, 272 (1987-88) (providing a visual-based (^) definition of hard-core pornography). But see Donn Byrne & John Lamberth, The Effect of Erotic Stimuli on Sex Arousa4 Evaluative Responses, and Subsequent Behavior, in 8 TECHNICAL REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 41, 53 tbl. 3, 65 (1971) (noting that imagining sexual activities proved to be more arousing4 3 than pictorial or prose presentations of these activities). ANDREA (^) DWORKIN, ICE (^) AND FIRE (1986).
1168 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:
genitals, licking them, she was horrified, but he kept stroking her belly, her leg, he kept doing it and when she tried to tighten her legs, he held them gently apart, and she lay back again and felt the warm wet pressure and her innards felt fluid and giving, all the way to her stomach. She tried to pull him up, but he would not permit it, he turned her over, he kissed her back, her buttocks, he put his finger on her anus and rubbed it gently, and she was moan- ing and trying to turn over, and finally, she succeeded, and then he had her breast in his mouth and the hot shoots were climbing all the way to her throat. She wrapped her body around him, clutching him, no longer kissing or caressing, but only clinging now, trying to get him to come inside her, but he wouldn't. She surrendered her body to him, let him take control of it, and in an ecstasy of passivity let her body float out to the deepest part of the ocean. There was only body, only sensation: even the room had ceased to (^) exist. He was rubbing her clitoris, gently, slowly, ritually, and she was making little gasps that she could hear from a distance. Then he took her breast in his mouth again and wrapped his body around her and entered her. She came almost immediately and gave a sharp cry, but he kept going, and she came over and over again in a series of sharp pleasures that were the same as pain. Her face and body were wet, so were his, she felt, and still the pangs came, less now, and she clutched him to her, holding him as if she really might drown. The orgasms subsided, but still he thrust himself into her. Her legs were aching, and the thrust no longer felt like pleasure. Her muscles were weary, and she was unable to keep the motion going. He pulled out and turned her over and propped her on a pillow so that her ass was propped up, and entered her vagina from behind. His hand stroked her breast gently, he was humped over her like a dog. It was a totally different feeling, and as he thrust more and more sharply, she gave out little cries. Her clitoris was being triggered again, and it felt sharp and fierce and hot and as full of pain as pleasure ....^^47 As the final work in the first study I chose Titters: The First Collection of Humor by Women. 48 Titters includes submissions by Fran Lebowitz, Candice Bergen, Gilda Radner, Laraine Newman, Gail Parent, Peg Bracken, Lois Gould, Anne Meara, and Erma Bombeck, among others. The purpose of the collection, as the
47 Id. at 313-14. (^48) See TITTERS: (^) THE FIRST COLLECTION OF HUMOR BY WOMEN (Deanne Stillman
& Anne Beatts eds., 1976) [hereinafter TITTERS].
DEFINING PORNOGRAPHY
editors Deanne Stillman and Anne Beatts explain, is to break out of the negative stereotyping of women (^) as not funny:
We don't want to bore you with case histories of oppression. This is meant to be an introduction, (^) not a political manifesto. But after years of telling our favorite jokes, witticisms, funny ideas, satirical remarks, and boss slashes to men, and having them respond, "I just don't think that's funny" ... we began to get suspicious.
So, if you're a man, Titters may hold some surprises. You may even think (^) some of it is "just not funny." We can't help that. We didn't do it for you, although we hope you'll enjoy reading it. We did it for^ ourselves.^ 49
Most pieces have a feminist orientation: attacks on The Total Woman, romance magazines, girl scouts, football, male orgasms, and nude centerfolds. There are also parodies of feminist works, including Ms. Magazine and Fear of Flying. I selected for this study Susan Toepfer's parody of Nancy Friday's My Secret Garden: Women's Sexual Fantasies.^50 Toepfer calls her parody My Secret Cabbage Patch and uses the penname Maundy Thursday, who is described as a "[n]oted inventor of sex fantasies." 51 The parody presents supposed female sexual fantasies in a very negative light, fantasies too disturbing to be (^) erotic, pleasant, or even believable.
Here's the one I used:
I am a happily married mother of four, and though my husband is a perfect lover, I still have fantasies during sexual inter- course. Maybe it's because my husband is so perfect that I have this recurring fantasy that we have driven down to Sam's Garage to get the muffler on our Ford fixed. While my husband (^) is busy talking to Sam, I am approached by a small well-built Oriental grease monkey. Soon, the two of us are mounting the engine block, where my mysterious new acquaintance reaches beneath my skirt and begins to massage my poontang with gasoline. Just as I am about to explode in Exxon, he jerks away those small yellow fingers and screws me onto a nearby piston. Then he wraps himself around my neck and jams his little yellow button up my nose. To my delight, Sam, my husband, and everyone within a one-mile radius soon runs to my side. As the Chinaman and I sit there writhing and wiggling-the piston urging us on in our
49 Deanne (^) Stillman & Anne Beatts, Introduction to TITTERS, supra note 48, at (^) 3,3-4. 50 NANCY FRIDAY, MY SECRET GARDEN: WOMEN'S SExUAL FANTASIES (1973). 51 Stillman & Beatts, supra note 49, at 6.
1993] 1169
DEFINING (^) PORNOGRAPHY
his teeth on my nipple, and he's got my underpants torn off me and my legs pushed up and spread and he's in me and I think I will count to a hundred and it will be over but it isn't, he's different, I try to push him (^) off and he raises himself above me and he smiles at me and he pushes me back, he holds (^) me down, and I give up, I do, I stay still, my body dies as much as it can, hate distilled, a perfect hate expressed in a perfect physical passivity, a perfect attentiveness to dying, he's going to say (^) I'm a bad lay because I won't move but I hate him and I won't move. Ijust wait now for him to come but he's different, (^) he won't come, he pushes my neck to hurt it and he kisses me, I feel his mouth on me, he's in me, sudden, brutal, unpleasant; (^) vomitous; then he's out of me, he's kissing me, he kisses me everywhere, he rams into me then he's out, he's kissing, he's kissing my stomach, he's kissing my legs, then he's in me and my thighs are pushed back past my shoulders, then he's kissing me, he's kissing my anus and licking (^) it and he's kissing my legs and he's talking to me, your skin reminds me of Bridget's, he says, Bridget has beautiful skin, some whispering bullshit like I'm his lover or his friend or something, conspiring with him, and then he's ramming himself in me and then he's kissing me and I am confused and afraid and I am paralyzed, I don't move,... I'm desperate for an end but there's no end, he's brutal and cold and chaotic and I say this will end but it doesn't end, he rams, he kisses .... he's in me, then he withdraws, then he kisses, he kisses my stomach, he kisses my (^) feet-my feet; he kisses my legs, I feel a searing pain in my leg, I feel a terrible bad pain, I feel sharp shots of pain, then he rams, he kisses, he pushes, he pushes my legs apart, he pushes them back, (^) he rams, he kisses, he must of read a book, girls like this, girls like that, you kiss girls, you kiss them; you kiss them; he's kissing me and saying things as if we are friends or I know him or something and then he rams in, brutal bastard, and then he's a lover, kissing; and this is my body but it ain't, I say it ain't... I move slowly and finally I am sitting, sitting on the edge of the bed, the single bed, sitting, chaste, just sitting, and my right leg is split open, the skin on it is split open in two places, above my knee and under my knee, the skin's torn, there's big jagged pieces of skin, there's gashes, it's deep tears, deep cuts, blood, dried blood and wet blood, my leg's torn open in two places, his kisses, his lover's kisses opened the skin, inside it's all angry looking as if it's turning to a yellow or greenish pus, it's running with dirty, angry blood, I think it needs stitches but I can't get stitches ... I concentrate on getting out, finding my clothes, putting on my clothes, they're torn and fucked (^) up, and I ask for the keys to get out ... I walk out and it's deserted, cold, bare, bare city streets ..... .I wish someone would go up now
1993] 1171
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while he's asleep and kill him or rob him, I wish I could put a sign on the door-it's open, kill him, rob him, I think there's some chance, it's a bad neighborhood, maybe somebody'll find him. I'm dirty; all my clothes are torn and fucked up as if they were urinated on or wrapped in a ball and used to wipe someone's ass. I call Jill from a^ pay^ phone.^ He^ raped^ me,^ I^ say.
55
B. Taking Scenes Out of Context
This study looks at sexual materials out of context. This is both an advantage and a disadvantage. Besides facilitating comparisons, using excerpts allows me to explore whether context is necessary. If sex scenes are indistinguishable out of context, then it's the context that matters, not the sex. Divorcing materials from the larger work certainly makes the classification of those materials more difficult. Yet to the extent that feminist and pornographic sex scenes look the same out of context, that would indicate that what makes something pornographic isn't the sex, but the context. In other words, the author's purpose and the repetitiveness of the depictions in the work would be the crucial determinants of whether something was pornographic, not the sort of sex depicted. The evidence on this point is mixed. Significant differences were observed between the results for the tests used. Further, in the second study, the MacKinnon-Dworkin test actually performed worse when a longer excerpt showing clearer context was used.^56 Excerpting is not a serious problem for the BeaverHunters photo since the work is potentially complete in itself. According to Kois v. Wisconsin,^57 a case decided before Miller, adding "serious value" to otherwise obscene works will not exculpate the works from a conclusion that they are obscene. 58 After reviewing the conflicting cases on the "work as a whole" element, Fred Schauer concluded that "magazine 'articles' with no connection except that of dealing with the same general subject matter are not necessarily likely to be
55 DWORKIN, supra note 21, at 207-12. 56 See infra tables 2.4 & 2.5 (showing that longer "nonconsent" version of Ice and Fire performs worse). 408 U.S. 229 (1972). 58 See id. at 231 (noting that "[a] (^) quotation from Voltaire in the flyleaf (^) of a book will not constitutionally redeem an otherwise obscene publication"); see also FREDERICK F. SCHAUER, THE LAW OF OBSCENrrY 105-09 (1976) (summarizing the Supreme Court's "taken as a whole" test in obscenity cases).
