In the Wall Street Journal, Garance Franke-Ruta proposes raising the age of consent for making pornography from 18 to 21. Her suggestions have not been particularly well-received by other progressive bloggers – Atrios writes that her argument denies agency to women, and Jon Swift suggests raising the minimum age to 65.
I’m also troubled by Garance’s argument. I hate Joe Francis and “Girls Gone Wild;” I’m also not a huge fan of the porn industry in general. I do think that porn is bad for women — for the women who participate in it, but even moreso for women everywhere, who have their identities shaped by porn. The vast majority of porn is misogynist and abusive, and sexualizes the humiliation and degradation of women. I don’t think that pictures of naked people or of people having sex is inherently bad or degrading; however, within our particular social context, porn operates in an incredibly poisonous way towards women as a class. I don’t like porn. I don’t think porn is feminist or empowering. I think porn is bad for women.
But I understand the fact that lots of people — men and women — do like porn. Lots of people like it even if they’re troubled by its broader social implications. And lots of people participate in it, either for money or for some other form of gratification (positive social attention, sexual gratification, whatever). I think we can talk about porn, include soft-core boobie-flashing like Girls Gone Wild, without shaming the people who participate in it and those who consume it. So my disclaimer: When I say that I dislike porn and that I think porn is exceptionally bad for women, that isn’t me saying that women who participate in the making of pornography are bad people who are hurting the feminist cause. It isn’t me saying that people who watch or look at pornography are horrible misogynists. It isn’t me attacking you for what you do in your personal life. There are lots of things that I think are really bad for women (beauty culture, for example) that I also engage in. We’re all doing the best we can within a pretty shitty system. So, to preempt any defensiveness, when I talk about my dislike of porn, I’m not talking about my dislike of you. I’m also not anti-nudity. I wish bared breasts weren’t such a big deal — then Girls Gone Wild probably wouldn’t exist. But pornography is not the way to promote the loosening of public nudity laws. Those laws are in place precisely because certain body parts are considered sexual and therefore must be kept under wraps. Porn re-emphasizes that point, it doesn’t undermine it.
But back to Garance. I do think she has a point that a 21-year-old is significantly more mature than an 18-year-old. But the fact remains that for most purposes, 18 is the point of legal adulthood. Yes, 21 is the drinking age (which I think is ridiculous, as an aside) and we have minimum ages for holding political office, but for the most part, 18 is it. I think it’s certainly debatable whether 18 is an appropriate age for things like military service and voting rights, but given that 18 is the general age of legal adulthood, it seems a little paternalistic to me to require that women be 21 before they can flash their boobs to a camera.
I also don’t think that laws can solve all of our social problems. They can do quite a lot to move things forward, especially when they give people greater rights, but the problem here isn’t that the “girls” on Girls Gone Wild are 18 — the problem is that they’re exploited by men like Joe Francis. Raising the age limit for porn is not going to do anything to address the actual problems with pornography.
As Ezra points out, there are ways to combat that exploitation without focusing on the age issue. He suggests implementing some sort of informed consent standard, so that if an 18-year-old wants to be in a GGW video, she can be — she just has to consent to it when she’s sober and not being pressured in the heat of the moment. Someone elsewhere suggested some sort of 24 or 48-hour consent window — anyone who participates in the making of pornography (male or female) would have to sign a consent form 48 hours before or after filming, in addition to the release that they sign at the time of filming. I don’t see anything problematic about requiring that consent be given while sober and without pressure, either by having what Ezra describes as a “no recruiting for same-day porn videos at bars” rule, or a waiting period for consent. Several states have a waiting period for marriage licenses. Many states require some sort of waiting period for a birth mother to consent to adoption (generally three days, but as long as 15).
The idea of a “waiting period” raises red flags for me primarily because I associate it with abortion — but a waiting period for a medical procedure, which places substantial burden on individuals, is a little different from a pornographic image waiting period. Waiting periods, as far as I can tell, serve two purposes: (1) to guard against spur-of-the-moment decisions which may have extremely negative consequences if binding, and (2) to allow people time to think about a decision when the circumstances surrounding that decision change. Waiting periods for a valid marriage license make sense to me — they still let you get married, don’t impose a huge burden, but put guards in place against people who want to get married because they’re drunk and/or stupid. Waiting periods for adoption allow a birth mother to reexamine her situation when the circumstances of that situation change — i.e., when she gives birth and is faced with the reality of handing over her real live baby to another person/s. Abortion doesn’t fall into either of those two categories — people don’t get wasted and decide to abort for fun; nor are abortion waiting periods contingent on some sort of situational change. A waiting period for consent to have your image used or captured for pornographic purposes seems to fall under the first model of waiting periods — to recognize that the decision is a significant one, and should be made with a clear mind and without situational pressure. So it makes more sense to me than simply upping the age of consent, when 18 is already widely established as the age of adulthood for practically everything.
The waiting period idea is just one way to deal with the issue of informed consent — to make sure that a person isn’t impaired when they’re signing away rights to these images. Garance responds to Ezra’s suggestion by writing:
As for Ezra Klein’s suggestion that we lower the drinking age to 18 and create a category of “impaired consent” under which no one could legally participate in anything, I really don’t think we want to go there.
Except Ezra isn’t suggesting that we can’t legally participate in anything. Plus we already do go there — lots of states have impaired consent laws for sex. You cannot legally have sex with a person who is incapable of giving consent, whether that incapability is because of age or mental impairment (permanent, as in a person with a severe mental disability, or temporary, like extreme inebriation). Where to draw the line differs from place to place, but the fact is that the law already curtails certain activities based on an inability to fully consent.
None of these laws are going to do much to change the culture we live in, where women’s bodies are routinely used as commodities and are physical representations of sex itself. But they could make life a little better for the individual women who make a decision while drunk or under pressure that could very well follow them for the rest of their lives (just look at the reactions to the Brooklyn Law student who made a naughty video). I think women deserve the right to consent to something like that when they’re sober and not under significant social pressure.
Of course, it would also help if we quit stigmatizing women who do flash their boobs at a camera or make a sex tape. I’m not sure how lifting up your shirt at Mardi Gras makes you unfit for a professional career, or means that you’re an idiot or that you shouldn’t be taken seriously. The argument seems to be that it reveals “poor decision-making” — but it’s only a poor decision because the activity is so stigmatized for, as far as I can tell, no good reason. And note that the men who are buying the videos, making money off of them, and screaming at the women to get naked aren’t considered poor decision-makers or people unfit for certain professions.
Long story short: Pornography is an extremely complicated feminist issue. Laws can help to a point, but they’re pretty limited in what they can do to improve the over-all situation. I’m not sure that if we decide we want to deal with this through the legal system — which I’m not even convinced is the best route — that jacking up the age of consent is the way to go.
I am happy that Joe Francis is in jail though. And that he’s being taunted by his cell-mate.
- On Child Pornography by Jill May 24, 2008
- England Bans Violent Porn by Jill September 6, 2006
- Grannies Gone Wild by Jill December 30, 2006
- Feminist Porn: Sex, Consent, and Getting Off by KaeLyn July 23, 2008
- Can We Talk About Porn Without Having the Same Fight Over and Over? by Lisa Jervis August 29, 2007