From an Obscenity to a Discrimination Approach
The notion that the problem of pornography is one of social order or unhealthy sexual morals or one of sexual shame or public indecency has prevailed everywhere in the world since the nineteenth century, including in Japan. The notion established a standard for anti-pornography laws almost everywhere, including in Japan. Obscenity law loosely restricts the public dissemination of so-called obscene materials from the viewpoint of maintaining a healthy social order (the obscenity approach). In Japan, as elsewhere, obscenity in criminal law has been treated as a typical example of a crime without a victim, and so it has been relentlessly criticized by people (liberals) who demand full freedom of speech, including that of pornography or rather freedom of access to pornography.
In the 1970s, the radical feminist movement in the US and other countries opposed this trend by arguing that pornography is political propaganda of sex discrimination and a misogynist ideology against women. They argued that pornography comprises not just sexually explicit materials but also material of a sexually dominating and subjugating nature that turns women into sex objects for sexual exploitation by men (the sexist propaganda approach). They also insisted that it causes many rapes. Robin Morgan’s famous slogan, “Pornography is the theory; rape is the practice’” (1977), was a lucid formulation of this new approach.
But the new approach had two limitations. First, it highlighted only a few of pornography’s harms, and its concern was restricted mainly to the sexist message of pornography and the harmful effects of this message on women and girls. Second, it took over a political tradition of liberalism in relation to the relationship between civil society and the state and law, so it did not believe in any legal restriction or governmental intervention against pornography, however sexist it was. Therefore, its proponents combatted pornography mainly through their own speech, and sometimes through guerrilla-like direct action, such as that of Nikki Craft(No Status Quo, n.d.). These were bold and brave struggles, but due to often accompanying illegal acts, the movement suffered damage, and not a few militants were arrested (Dworkin, 1993). Catharine MacKinnon, a feminist legal scholar, and Andrea Dworkin, a feminist writer, broke through these practical and theoretical barriers.
While MacKinnon and Dworkin built upon the existing radical feminist sexist propaganda approach, they also renovated it on two points. Firstly, they maintained that pornography was sexist propaganda against women and girls and a practice in itself concretely and directly violating of civil rights. So, and as their second renovation, they advocated its legal restriction in terms of legislation that would provide pornography’s victims avenues of civil redress. To be sure, the first change towards adopting a sexist propaganda approach instead of an obscenity approach was fundamental. However, it was still a shift contained within the bounds of the pornography as expression paradigm. ***
Table of Contents
- From an Obscenity to a Discrimination Approach
- MacKinnon and Dworkin’s Paradigm Shift
- From the MacKinnon-Dworkin Ordinance to “Anti-Pornography and Prostitution Research Group’s” Classification
- Harms in Production
- Harms of Spy-Cam Filming
- Harms Arising Through Pornography’s Circulation
- Harms Arising Through Pornography’s Consumption
- The Fourth Form of Pornography’s Harms - Social Harms
- Harms of the Existence of Pornography
- Prospects for a New Legal Strategy
- Our Strategic Alternative
- ACKNOWLEDGMENTS
- REFERENCES