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  1. Prospects for a New Legal Strategy

In this final section, we consider three different legal approaches to pornography, and then describe our own preferred strategy. First is a comprehensive legal approach addressing all harms of pornography by addressing pornography itself (i.e., the MacKinnon-Dworkin Ordinance). Second is an individualized legal approach addressing specific harms by establishing special legislation against particular harms of pornography (for example, Japan’s already enacted Revenge Pornography Prevention Law, and the Anti Spy-cam Filming Law which has not been enacted yet but which has been repeatedly tabled in the country’s parliament). Third is a kind of intermediate legal approach addressing some of pornography’s most brutal harms (especially some production and circulation harms). This is an approach currently adopted in the UK. We consider each of the three approaches in turn, below.

We begin by considering the legal approach of the MacKinnon-Dworkin Ordinance. The Ordinance remains important as the first systematic legal approach to the harms of pornography, although in the end it was not enacted because of US courts judging it unconstitutional. The Ordinance has four characteristics. Firstly, in the American tradition of the civil rights movement and civil rights law, the Ordinance explicitly gives pornography a highly political and feminist characterization as a practice of sex discrimination, or a systematic practice of exploitation and subordination based on sex that differentially harms and disadvantages women (MacKinnon & Dworkin, 1988, p. 138). This theoretical definition is predicated on the Ordinance’s intention to exclude sexually explicit but not pornographic materials (such as those in the medical or sex education fields, or literature describing sexual violence) from the definition of pornography.

Secondly, as a natural result of this boundary-setting, the legal definition of pornography in the Ordinance is also an explicitly political and feminist one attuned to this theoretical characterization. The obscenity clauses of criminal laws ordinarily do not include any explicit definition of “obscenity,” so courts (and, finally, the Supreme Court) present various definitions of it in their judgements at different times. However, the MacKinnon-Dworkin Ordinance gives a distinct and clear definition of pornography from the outset. As is well known, the Ordinance defines pornography through two steps. It first defines pornography as the “graphic sexually explicit subordination of women through pictures and/or words,” and, as a second step, after concretely enumerating a number of descriptions of pornography (for example, (i) women are presented dehumanized as sexual objects, things, or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation; or (iii) women are presented as sexual objects who experience sexual pleasure in being raped;… (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), the Ordinance descriptively defines pornography as including one or more examples of these (1988, pp. 138-139). These two hurdles that must be jumped to meet the definition of pornography means its designation is strict and narrow, and the definition structurally prevents materials merely depicting nudity qualifying as pornography.

Thirdly, the ordinance is drafted so comprehensively as regulatory legislation that it further addresses general and unspecified harms arising from the social pervasiveness of pornography (harms that the Ordinance calls the trafficking of pornography, and which we call “social harms”), as well as individual harms sustained by specific victims arising in the process of the production and consumption of pornography.

Fourthly, the Ordinance is not a criminal law but a civil law allowing victims or citizens to file civil lawsuits against offenders. Based on the Ordinance, complainants can ask for two things: damages (including punitive ones), and injunctions against the circulation of pornography.

It is obvious that these characteristics are deeply interconnected. Because the social character of pornography is theoretically presented as a “systematic practice of sex discrimination,” it is inevitable that the legal definition of pornography also reflects this theoretical understanding as a discriminatory practice inflicting harms of subordination upon women. And because of such a definition of pornography, it is also inevitable that the Ordinance comes to be a law addressing not only individual harms arising from the production and consumption of it, but also social harms generally arising from its circulation. Also, given the legally formal status of pornography as “speech,” understandably there is reluctance to enact the provisions of the ordinance in criminal law, which represents the sovereign exercise of power by the state. It is to some extent inevitable, therefore, that the law would apply civilly, rather than criminally, to alternatively place in the hands of victims and citizens sovereign rights of judicial redress. Or, we might differently surmise that it is precisely because the ordinance’s provisions are enacted civilly that it is able to address pornography’s full range of harms.

However, since these above-mentioned four characteristics are based on the specific situation of the United States, they seem to be largely irrelevant to Japan’s situation.

Firstly, the United States has a strong tradition of anti-discrimination movements, including the movement for the abolition of slavery in the 19th century, and the civil rights movement of the post-WWII period, so it is not unusual for American laws to incorporate definitions of concepts such as “discrimination” or “subordination.”(That said, in the 1980s when the Ordinance was enacted, there was significant opposition to its provisions in American society.) Further, equality rights are heavily emphasized in United States constitutional jurisprudence, and are interpreted by scholars as comprising fundamental human rights. In contrast, Japan in its history has neither a slave liberation movement nor a civil rights movement, and so the country has never been engulfed in an anti-discrimination struggle. Reflecting this history is the failure of constitutional scholars across the board in Japan, even progressive ones, to recognize the importance of the explicit equality guarantee in Japan’s postwar constitution.

Accordingly, it would be extremely difficult to imagine how, in Japan, the legal definition of pornography could be expressly captured as the “subordination of women” in law.

Thirdly, because Japan’s judicial system does not allow punitive damages, compensation amounts for damages that offenders pay is minimal (at most, a few tens of thousands of dollars), even when a plaintiff wins a civil case. Further, Japan’s per capita population of lawyers is one ninth that of the US, and the number of yearly civil cases heard in its courts one eighth. Defendants tried in Japanese courts are found guilty at rates of 99%, and plaintiffs in civil cases win at rates of 80%. But when defendants are corporate entities, this figure drops to less than 50% (Iida, 2020, p. 136). For example, in 1998, when smoking victims brought civil action against a tobacco company in Japan, different from America where large payouts were awarded in such cases, the case took five years and delivered a negative judgement to the plaintiffs in 2003. Japan’s court trials take an extraordinary long time. Once appeals are launched the trials can continue for 10 years, and during this time victim plaintiffs must continue to bear the burden of court proceedings. Most victims buckle under this weight and enter settlement negotiations. In the meantime, defendant pornographers continue producing films while court cases are being heard, continue profiting from them, and continue generating victims. Therefore, a law like the MacKinnon-Dworkin Ordinance addressing all of pornography’s harms in one comprehensive civil tool is not realistic in Japan’s case.

Further, because the prison system in the United States is very corrupt, top members of criminal syndicates can bribe or intimidate detention officers to live comfortable lives in prison, and even to continue to businesses related to their crimes from within prison through contact with syndicate members on the outside. MacKinnon and Dworkin note that, even when they are sent to jail, pornographers continue running their businesses from the inside, so it is much more effective in their case to impose compensatory or/and punitive damages (1988, p. 54). However, Japan’s prison system is not similarly so corrupt.

In any case, coercion in pornography filming and the many other harms of pornography deserve severe criminal punishment, and, we believe, perpetrators should not get away with merely paying damages, which, as mentioned, are tiny in Japan. Criminal laws are envisaged as more effective in combatting the harms of pornography when accompanied by strong grass-roots movements and pressure on police and judicial institutions to enforce the laws. Of course, criminal laws must be complemented by civil efforts.

In contrast to the comprehensive civil law of the MacKinnon-Dworkin Ordinance is the approach differently commended here whereby categories of pornography’s harms are each addressed through some sort of specific criminal law. One example of this isolated legal approach is Japan’s already-enacted Revenge Pornography Prevention Law. This law prohibits and punishes the non-consensual distribution and publication of private (i.e. non-commercial) sexual photographs and footage of individual persons. Therefore, it meets our classification criteria II(2)(a) described as the nonconsensual circulation of sexual pictures taken consensually in terms of tackling a harm of pornography arising from circulation. But materials, once uploaded to the Internet, continue to circulate even when the person who uploaded them is arrested and prosecuted. Or even when the materials are taken down from the Internet, they can always be uploaded again. The current law does not intervene in these dissemination harms. However, in the same way that child pornography is treated in law, continuing to make these sorts of materials available or accessible on the Internet, downloading them, or keeping them in personal digital storage should be treated as a criminal matter. Criminalization of these further acts has already been achieved in South Korea.

The above-mentioned Revenge Pornography Prevention Law is applied to the publication and distribution of sexual photos and movies filmed by spy-cameras. However, there is no nation-wide law against spy cam filming itself in Japan. There are local council ordinances in Japan banning spy-cam filming, but definitions of spy-cam filming vary by jurisdiction, and so it is sometimes the case that spy-cam filming in public places is the only form of the crime that is prohibited, and definitions of ‘public place’ also vary according to jurisdiction. So now a movement to enact a nation-wide anti-spy-cam law has come about. If an anti-spy-cam law is enacted, the law could be applied to crack down on other non-consensual filming of sex acts or naked bodies in non-commercial context, too, for example, the act of filming when conducting sexual assault or sexual harassment (see 2(a) of our Production Harms classification). Such a new law would effectively mean Japan’s Revenge Pornography Prevention Law will apply to the publication and distribution of sexual photos or movies produced by spycam filming.

Similarly, mash-up or deepfake pornography comprising super-imposed, collage pictures and film (included in our circulation harms of pornography, subcategory 3) is likely to be a suitable candidate for individually targeted legislation. These collage products themselves are not realistically addressed in criminal law, because they are deeply intertwined with values of freedom of speech, given their common use in political satire and lampooning cartoons. Accordingly, subjecting collage materials to the criminal law is risky because of its possible misuse in political suppression. In instances where these materials do inflict harm on individuals, therefore, civil suits for defamation are more appropriate. However, in the case of sexualized collage and mash-up materials, freedom of speech imperatives do not apply, because materials designed to sexually degrade individuals cannot be imagined as having any high political purpose.

These kinds of specifically targeted laws are criminal laws in principle. This kind of criminal law addressing specific harms of pornography has some advantages. First, since the law addresses one particular harm, its provisions can apply specialized legal remedies fitting the specific harm. Also, the law’s target and purpose are limited and precise, so it is not difficult to enforce. And, because such law addresses specific harm, rather than pornography itself, it is not so likely that an oppositional movement on the grounds of freedom of expression will come about, so it is relatively easy to enact. Additionally, since it is criminal law, it is the police’s role to investigate and arrest offenders. But, as MacKinnon says:

The best thing about criminal law is that the state does it, so women do not have to. The worst thing about criminal law is that the state does not do it, so women still have to (MacKinnon, 1993, p. 29).

Both rape and indecent assault are criminal matters, but offenders are rarely arrested. Even when they are arrested, more than half are not prosecuted. And, even when they are prosecuted, convictions are rare. The same can be said of specific laws addressing specific harms of pornography. Therefore, even if this kind of law is established, it is still civil society’s task to have administrative institutions do public awareness-raising on the law, have the police enforce it, and monitor and encourage the judicial system to bring offenders to justice. If this is borne in mind, specific laws addressing pornography’s specific harms can be effective.

However, these good points are in parallel to its bad points. Pornography’s harms do not exist in isolation but in connection with each other, based on the underlying existence of pornography. Individual harms of pornography derive from the inherently violating character of it, so it is not enough to address pornography’s visible and specific harms while ignoring connections between them. This leaves the cause of the harms untouched and deals only with its most noticeable results. Accordingly, this piecemeal and specific legislative approach can remedy only a small portion of pornography’s vast harms. Thus, it has a deficiency in that most of these harms (significantly, harms arising from commercial pornography) remain untouched. Therefore, this approach should be supplemented by a more comprehensive policy.

A legal proposal by Human Rights Now (HRN) (a Japanese human rights NGO, represented by lawyer Kazuko Itou) published in March 2016 can be seen as representing an approach that sits in an intermediate position between the comprehensive legal approach of the MacKinnon-Dworkin ordinance and laws addressing specific harms of pornography. Through interviews with actual victims of pornography’s harms, and with members of NGOs (such as PAPS and Lighthouse) that support them, HRN published a Research Report into Human Rights Violations against Women/Girls through Pornography and the Pornography Industry, which proposes the concrete regulation of some of pornography’s harms, focusing on coercion in pornography filming (2016).

The Research Report, first and foremost, insists that coercing someone to appear in pornography is “violence against women, and hence a human rights violation,” and that “the state has an obligation to eradicate and prevent the harms, and to protect victims and give relief to them,” and demand criminal punishment. Also, the Report states that “solicitation for the filming of pornography through coercion, fraud, and confusion” should be banned. Furthermore, bearing in mind various concrete cases based on interviews with victims, the Report recommends prohibiting “solicitation for appearance in pornography where the solicitation targets an unspecified number of people in public places,” as well as “solicitation of a person who explicitly declines to enter into a contract offered as part of the solicitation.” And the Report demands that, when establishing contracts, the pornography industry should beforehand explain the fact that this work “falls into the category of harmful and dangerous work under the Worker Dispatch Law and the Employment Security Act,” and “agreement to contract for appearance in pornography can be always withdrawn and discharged.” The last clause is important because most young women forced to sign contracts to appear in pornography are induced to believe that they must observe the contract to the end once they have signed a contract in any situation.

These are suggestions addressing coercion harms of pornography (in terms of our classification, “1-a” and “1-b” of the specified production harms). In addition to that, the Report includes a suggestion that reaches even further to address aspects of the content of pornography. It insists that, in filming pornography, “the acts should be basically prohibited that can have a negative effect on the mental and physical safety and health” of cast members. In terms of our classification, this falls into “1-c” of production harms. In addition to acts “which can have a negative effect on mental and physical safety and health,” we believe that acts that “hurt performers’ dignity” also should be prohibited.

There will inevitably be disagreement as to what is concretely envisaged by the prohibition of acts “which can have a negative effect on mental and physical safety and health.” However, at a minimum, physical violence towards performers, deep-throating, choking, the unsanitary ingestion and handling of feces and other bodily excretions, unprotected sex, especially internal ejaculation without condoms, multiplepartner simultaneous penetration, multiple-partner continuous penetration, anal sex, bestiality, penetration with foreign objects, defecation and similar private acts in front of others or the camera, forcible ingestion of alcohol, water or other food and drink, excessive friction and rubbing of genital areas, filming in dangerous or unsanitary places, filming in public places, and filming in places accessible to the public, among other practices should be prohibited. We additionally believe that penile penetration itself, when it is undertaken for the purpose of commercial pornographic filming, should be legally restricted for its direct impact on the safety, health, and dignity of performers.

Also, the Report demands total or partial suspension of malicious businesses and recommends “injunction on the sale” of works produced by coercion, fraud, or involving insufficient preliminary explanation, and insists upon the criminal punishment (imprisonment or criminal fine) of offenders. In respect of our classification scheme, these recommendations comprise legal measures against subcategory (1) of “circulation harms.” The Report incorporates suggestions for redress beyond mere legal penalty because it asks the government to nominate a ministry to assume regulatory responsibility for the pornography industry, and recommends government take responsibility for providing consultation and counseling services for victims, and, as mentioned above, it insists that materials that “have a negative effect on mental and physical safety and health” should be prohibited as a rule, and that “injunction on the sale” of works should be imposed when they have been produced through coercion or fraud. If the HRN-recommended law is enacted, therefore, it will mean avenues of legal redress will become available for pornography’s production harms as well as some of its circulation harms.

While these HRN legal recommendations primarily focus on production harms starting with coercion in pornography filming, HRN does not propose any specific law to address production harms more fundamentally. The report’s recommendations do not confront the underlying abusiveness intrinsic to pornography, which produces numerous human rights violations. The recommendations address in isolation the kinds of harms that can be identified with individual victims. Hence, other harms, particularly social harms of pornography whose victims are unspecified, are left unaddressed.

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