Will watching Debbie Does the Devil in Dallas turn a man into a rapist? Can viewing Buttman Goes to Rio turn a man into a psychosexual serial killer? Or can watching New Wave Hookers turn a man into a child molester?
Sen. Mitch McConnell (R–Ky.) thinks these things are possible. So he has introduced a bill, the Pornography Victims' Compensation Act, that will allow women who have been sexually assaulted to sue the producers, distributors, exhibitors, and sellers of sexually explicit materials if they can prove that the defendant's book or movie "caused" the assault. A publisher or video store can be sued even if the alleged rapist or child abuser has never been convicted of a crime in a criminal trial.
McConnell is generally considered a conservative, and he claims his bill has conservative aims: protecting women and children and fighting crime. But in his zeal to fight smut, McConnell has sacrificed his conservative principles.
McConnell argues that his bill passes constitutional muster because it targets only legally obscene material, which the Supreme Court has consistently ruled is not protected by the First Amendment. But McConnell seems to differ with the Court's reasoning for exempting obscenity from protection under the First Amendment.
Obscenity, says the Court, does not convey ideas. Therefore, it is politically worthless and not constitutionally protected. But McConnell's bill is based on the notion that pornography does convey ideas: the idea that it is fun to rape women or to molest children.
So what does distinguish obscenity from protected speech? In a Senate speech on the bill, McConnell said that obscenity should not be protected because "pornography is a business, not a belief. Its chief motivation is profits, not principles." The same could be said of Hollywood movies, most novels, and many magazines.
McConnell's bill is, in fact, just another step in a movement to hold individuals and businesses responsible for things they did not do. Conservatives have railed against the loosening of liability standards, and McConnell himself has sponsored legislation that would curb frivolous lawsuits. So how does he square his pornography bill with his stand on tort reform? Michael Kinsley asked him just this question on Crossfire. "My amendment—my particular bill I think could be styled, if you can't beat them, join them," said McConnell.
McConnell insisted on that show that rape victims will have to meet strict standards of proof to win their suits: "It will be tough to make one of these cases. You'll have to show to the jury, prove to the jury that the material involved, a virtual how-to manual many of these are, was a substantial cause of the action."
But the very tort system that McConnell has criticized suggests that making such a case might be very easy. As Peter Huber and others have pointed out, courts increasingly have allowed zealots and charlatans to testify as expert witnesses in product liability suits. (Among the Bush administration's tort-reform proposals, backed by McConnell, are measures to restrict expert testimony.) Asked to determine if a particular product caused a plaintiff's injury, jurors often have no way to distinguish between good science and bad science, no way to figure out what real experts would consider proof of causation. So jurors often wind up thinking that correlation means causation. If a number of people have been exposed to the product and have developed similar injuries, then the product must be the cause.
The idea that correlation proves causation is scientific nonsense, but juries buy it every day, and apparently McConnell does as well. He has noted that some studies show that a high percentage of sex offenders regularly use violent porn. And he has stated his belief that the rising rape rates seen in recent years may be the result of a society increasingly saturated with sexual images.
But most psychologists who study human aggression say that while tests show that exposure to violent films (not just violent porn) can temporarily increase hostility in test subjects, there is nothing to show that real-world behavior is influenced by violent films. And even if there is a correlation between men using pornography and committing rape, that does not prove causation.
The 1986 Meese Commission concluded that there is a link between violent porn and rape, but Frederick Schauer, one of the commissioners who most strongly advocated this theory, admitted to reporters Philip Nobile and Eric Nadler, "It may be that some other factor, some sexual or emotional imbalance, for example, might produce excess use of pornographic materials as well as a tendency to commit sexual offenses."
The idea that rising rape rates are caused by the increased availability of erotic materials is called into question by statistics that McConnell himself often cites. In a statement before the Senate Judiciary Committee, McConnell noted that the U.S. rape rate is "4 times that in Germany, 8 times France's, and 20 times Japan's."
But Japanese salarymen make their nightly train rides home from work more enjoyable by reading comic books that are filled with very violent and very explicit depictions of rape. Sexually explicit material is at least as easily available in Germany as in the United States, and the mainstream of German pornography is much kinkier than the American variety. Finally, France's top-rated pay television service, Canal Plus, regularly shows unedited adult films. If pornography causes rape, why do these countries have far lower rates of rape?
But a true conservative would ask whether it even makes sense to say that a book or movie "causes" a person to do anything. Conservatives like to talk a lot about preserving something called our Judeo-Christian heritage. And an important part of that heritage is the notion of free will: the idea that people choose to do good or evil.
Free will is also central to the practice of punishing people for crimes they commit. After all, it would be unjust to punish someone for a crime he could not help committing. The idea of personal responsibility is one of the longest-standing parts of our system of law, but McConnell would throw it out the window. That's hardly conservative.
Indeed, conservatives have typically railed against liberals who believe that judges should give lighter sentences to criminals who grew up in poverty or who were abused as children. Conservatives argued that millions of people have grown up poor or abused and have not become criminals and that anyone who commits a crime chooses to do so. Similarly, most of the Americans who rented more than 410 million adult videos last year have not committed and will never commit a sexual crime.
And despite McConnell's stated outrage over the fact that only 29 percent of rapists are sentenced to a year or more behind bars, his bill does nothing to ensure that rapists will spend more time in jail. Indeed, some feminists have complained that the bill will do more harm than good because it will lull lawmakers into thinking they have done something about sexual crimes by voting for it when they have really done nothing at all.
If passed, the bill could actually cause more rapists to serve even less time in jail. If a book or movie "causes" someone to commit a sexual crime, that implicitly makes him less responsible. After we codify this notion, how long will it be before criminals start demanding lenient sentences because they read the wrong book or saw the wrong movie and couldn't help themselves?
This isn't as outrageous as it might sound. Consider the case of Ted Bundy. Bundy was, of course, the man who killed dozens of women in the 1970s. His confession, just before his execution, to antipornography activist James Dobson that pornography caused him to commit his crimes spurred on the antipornography movement and inspired McConnell's bill. (The bill is, in fact, informally called the Bundy Bill.) McConnell and other antipornography activists took Bundy's confession at face value.
But those more familiar with Bundy were more skeptical. To them, it seemed like a last-minute attempt to get his death sentence commuted to life imprisonment. Bundy's lawyer, James Coleman, told Playboy that the confession "was vintage Bundy. It was Bundy the actor."
In the last years of his life, Bundy had come to realize that his only chance to avoid execution was to prove his incompetency—that he was too irrational to assist at his defense in his murder trials. To that end, he talked at length with psychiatrist Dorothy Lewis. Significantly, in all of those conversations, according to journalist Philip Nobile, Bundy never cited pornography as a cause of his crime. Indeed, Nobile notes that, based upon interviews with family and friends of Bundy, Lewis found that his violent behavior manifested itself almost from infancy and that it may have been the result of being abused himself or witnessing a close family member being abused.
Actually, Bundy's story changed a number of times, depending upon whom he was talking to and what he was trying to accomplish. In his initial conversation with police, Bundy mentioned alcohol and cheerleader magazines—not violent or even hard-core pornography.
Two years later, Bundy began collaborating on a biography with Stephen G. Michaud and Hugh Aynesworth. Bundy was at the time appealing his convictions and careful to talk about the killer in the third person. He mentioned that the murderer did search out violent porn, but he never posited a causal link.
Michaud told Nobile, "Pornography came out in the course of discussing a lot of things that concerned him—alcohol, genetic flaws, his confused thinking. But it's significant to me that when Bundy was arrested, his car was filled with cheerleader booklets—with lots of pictures of cute and bouncy cheerleaders—meant for schoolgirls.…If we are to believe Dobson and the antipornographers, Bundy's car should have been full of the most vicious, wild porno on earth."
Ironically, conservative Republicans are using Ted Bundy's rationalizations for his crimes as the basis for a sweeping expansion of government powers. As of press time McConnell was reportedly just one vote short of getting his bill out of the Senate Judiciary Committee.
The fate of the bill ultimately rests with liberal Democrats who must decide which of their constituencies to placate: the feminists who support the bill or the First Amendment defenders who oppose it. Meanwhile, conservatives have rushed to embrace the bill—even though it restricts commerce, expands liability, and excuses rapists, child molesters, and serial killers, partially at least, for the crimes they commit. The humor of this situation must give Ted Bundy some relief from the tortures of whatever hell he's confined in.
Charles Oliver is assistant editor of REASON.
This article originally appeared in print under the headline "Washington: Sexual Fantasies".