Facing Deadline : Commission Founders on Limits to Sex

Novelist Kurt Vonnegut calls them “sewer astronauts.” The American Civil Liberties Union claims they’re out to gut the First Amendment. And right-wing columnist Phyllis Schlafly charges they’ve surrendered in the war against porn.

Well, no one ever said being a pornography commissioner would be easy.

The Attorney General’s Commission on Pornography, born a year ago in the hope of clarifying this most subjective of subjects, has itself become the source of controversy and confusion.

Final Meeting This Week

Recently, for example, the Southland Corp.’s 7-Eleven chain said the commission’s work had helped convince it to ban Playboy, Penthouse and Forum magazines from its stores, even though the commissioners have yet to agree on a report or even a precise definition of pornography.

With its final meeting under way in Washington this week the commission is divided and foundering--battered by emotionally charged community pressure, thorny constitutional issues and conflicting social science evidence.

As Commissioner Ellen Levine, editor-in-chief of Woman’s Day, put it, in the end it may simply come down to a case of “What I like is erotica and what you like is pornography.”

Even so, the commission’s conservatives, led by Chairman Henry E. Hudson and staff Executive Director Alan Sears--both career prosecutors who made their reputations arguing anti-pornography cases--appear determined to propose far-reaching changes in federal and state laws. At Wednesday’s session some of these were approved, while others were turned back.

Decline R-Rated Film Ban

The commissioners, for example, accepted the staff proposal that book or video store owners convicted of selling obscene material forfeit their assets. They also approved tighter regulation of cable television, but refused to extend it to an outright prohibition of R-rated films.

Mandatory one-year prison terms for second-time violators of any federal anti-obscenity statutes also passed, but the commissioners decided that no book could be considered legally “obscene” unless it encouraged child molestation. That vote and the watered down measure on cable television were regarded by civil libertarians as defeats for Hudson.

If Congress were to approve those recommendations, and others still pending, “it would effectively end the adult film industry and decimate the publishing of sexually oriented books and magazines,” says Barry W. Lynn, a legislative counsel for the ACLU. Lynn also believes “it would make the production and distribution of many popular R-rated films extremely difficult.”

In the case of Miller vs. California in 1973, the U.S. Supreme Court did rule that sexually explicit material could be regulated as obscene, if a person applying local community standards found it lacked serious literary, artistic, political or scientific value.

Expresses Anxiety

According to Lynn, “Under this standard for measuring obscenity, you can reach an enormous amount of material already. My concern is that this commission wants to go even beyond this to regulate material which the commission believes communicates improper moral values.”

But while they may not share all of Lynn’s anxieties, some of the 11 commissioners--all of whom were appointed by Atty. Gen. Edwin Meese III--have their own reservations about the staff proposals.

This has surprised some observers, since like Hudson, a majority of the commissioners had taken strong anti-pornography stands prior to their appointment. One of them, the Rev. Bruce Ritter, a Roman Catholic priest who runs Covenant House, a shelter for youth in New York’s Times Square, had criticized government’s failure “to recognize the role which adult pornography can play in harming our young.”

Another commissioner, James C. Dobson--president of the Arcadia-based Focus on the Family organization--has been one of the Christian Right’s most vocal anti-pornography spokesmen. Other commissioners with similar credentials include attorney Harold J. Lezar Jr., a former assistant attorney general who helped create the commission; U.S. District Judge Edward J. Garcia, a Reagan appointee with a tough anti-porn record; former Scottsdale City Council member Diane D. Cusack, who campaigned against adult book stores in her town, and psychiatrist Park E. Dietz, who has written about the harmful effects of sex and violence in detective magazines.

Framed Legal Argument

Though he recently has emerged as a dissenter, Frederick Schauer, a University of Michigan law professor, was well known in legal circles for arguing that pornography could be regulated as a sexual activity rather than as an expression of ideas protected by the First Amendment.

Only three commissioners--Levine, Deanne Tilton, president of the California Consortium of Child Abuse Councils, and Judith V. Becker, a Columbia University psychology professor who treats sex offenders--had not previously made statements critical of pornography.

However, all three have come to sympathize with Schauer’s recent description of the draft report as “so one-sided and oversimplified that I cannot imagine signing anything that looks even remotely like this.” His objections to the staff’s draft are so profound, in fact, that he plans to offer his own report for consideration at this week’s meeting.

Perhaps such divisions have been inevitable since the commission’s beginnings, when Meese sounded his alarm that pornography “is pervading our entire culture.”

Mandate Set by Meese

The mandate was broad but vague: “The formation of this commission,” Meese said, “reflects the concern a healthy society must have regarding the ways in which its people publicly entertain themselves.”

Meese, of course, was not the first official to express such concern. In 1970, during the Nixon Administration, a Presidential Commission on Obscenity and Pornography funded 20 studies of pornography’s effect on its consumers. In the words of that commission, and much to the disappointment of President Nixon, they “found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior.”

Recently, however, an unlikely coalition of some feminists and conservative Christian churchmen has challenged those conclusions. One of the leaders in that campaign has been Dobson, the author of such best-selling books as “Dare to Discipline,” and “What Wives Wish Their Husbands Knew About Women.”

In a recent letter to other commissioners, Dobson referred to pornography as “the river of smut which has inundated the American landscape. . . . God help us,” he warned, if this commission reaffirms the Nixon-appointees’ conclusion that “at least for most people, there does not seem to be any harm in the enjoyment of sexual pictures.”

A Year of Travel

Dobson’s admonition was addressed to 10 men and women who have spent most of the past year traveling around the country trying to rewrite the earlier report. But because they have received a relatively small amount of money from the Justice Department, this commission has not been able to fund new studies on pornography’s impact.

The lack of such research was one of the things that lead the conservative Schlafly to charge that the commission “appears it is heading in the opposite direction from what the President wanted and expected.”

“Some believe that the commission has been intimidated by the pornography industry,” she wrote in the Washington Times earlier this year. “The commission had better get its act together soon, lest it end up assisting the pornography profiteers and propagandists.”

Without its own studies and experts, the commission has had to rely on testimony from a potpourri of witnesses who have ranged from informed to crackpot.

Heard Conflicting Views

The commissioners have heard from current and former porn stars, civil libertarians, Mormon Church women, a large number of police officers and prosecutors, Playboy bunnies and Penthouse pets, all offering conflicting views.

They have listened to the Miami vice squad’s descriptions of organized crime’s role in distributing pornography and visited a red-light district in the company of the Houston police, who obligingly swept aside privacy curtains in an adult book store to reveal men engaged in homosexual acts.

One commissioner, who did not want to be named, said her only reaction to the sight of the startled men was that she was afraid of catching a disease. Another thought an arrest should have been made. And a third said it was none of their business.

Most of the time it has been only slightly less bizarre. Dozens of hours have been spent watching shocking outtakes from X-rated films; adult book stores and peep shows have been visited; testimony has been taken in six cities; half a million dollars has been spent, and a 10-foot stack of hearing transcripts has been produced, if not reviewed.

‘We’re Just Inundated’

The commissioners all have other pressing things to do with their time and most seem to share Tilton’s belief that “we’re just inundated with too much material to absorb in time to meet our deadline.”

For that reason, she threw up her hands at the number of decisions that are supposed to be made at this week’s final session. “We have a 1,200-page staff report to go through and a rival report prepared by Fred Schauer. My sense is we’re not going to be able to get through more than one-third of this material in the allotted time. We have asked for an extension and it’s not been granted. I feel like I’m in fantasyland.”

Tilton’s frustration--shared by many of her colleagues--was clear at the group’s recent working session in Scottsdale, Ariz. There, the commissioners seemed more like befuddled tourists than steel-eyed inquisitors, more Chevy Chase than Torquemada.

For four days, tucked away in a windowless basement room of the Scottsdale city hall, the commission seemed to have lost its way in an abstract discussion of the finer points of sexual morality--for example the possibility raised by Father Ritter that oral sex might be immoral without being unethical.

First Wanted Consensus

There was an audible groan when Ritter, a thoughtful and non-obstreperous man, suddenly announced that they could not meaningfully discuss any of the matters before them without first agreeing on a definition of the healthy sexual experience.

Tilton observed pointedly that while that might be true, there seemed to be no way, in this lifetime, that the 11 of them could come to such an agreement given that they, like the general population, represented diverse religious and philosophical backgrounds.

Chairman Hudson indicated his lack of patience at having this knotty ethical and moral question raised at the 11th hour and moved the meeting on.

Some of the chairman’s colleagues, however, were in no mood to be herded toward what some clearly perceived as dogmatic convenience. “Why don’t we just admit,” asked Levine, “that we have a lot of interesting questions and few answers?”

Task May Be Impossible

In fact, the commissioners had turned out to be less zealous than some of their critics would have it. They are, for the most part, intelligent, rather ordinary people left to wander in the wilderness between the fastness of traditional morality and the mirage of perfect freedom. And as ordinary people, they are faced with what may be the impossible task of defining the permissible limits of extraordinary fantasy. At Scottsdale the results were exchanges like this:

Dietz: “I think more people would agree that it’s bad to encourage rape than would agree it’s bad to encourage ejaculation in the face.”

A commissioner: “One’s a felony.”

Cusack: “Maybe both should be.”

They had arrived at the end to talk about sex as a gigolo might practice it, professionally interested, but emotionally detached--no technique too sordid, no sexual activity beyond their intellectual curiosity, from dildos to bestiality, from the missionary position to oral sex, apparently determined to deal with sexual fantasy as if it were some thing about which they had only read--or looked at.

Sears: “We only looked at the covers of the books. By the nature of our work we didn’t read them. We had a hard time finding vaginal intercourse. We found anal and oral, which some consider degrading.”

Endlessly discussing the finer points of morality--or was it ethics?--and sex, they suggested earnest actors in a dated George Bernard Shaw play.

Father Ritter: “If I were to speak as a moralist, I would say pornography is immoral and the source of my statement is God--not social science.”

But it is the nature of plays and commissions to work themselves to some sort of ending. This commission is attempting to do that in Washington, though five of its members have said they do not believe a useful report can be written in time to meet the June deadline. The attorney general, however, is unwilling to provide additional funding to extend their time.

Definition Still Elusive

But deadline or not, the commission has yet to agree on a description of the demon Meese believes has taken possession of the American soul--or on how it differs from obscenity, which is already covered by law, and erotica, which is not. Is the difference--if there is one--a matter of personal taste, common morality, or law?

Does it include “Last Tango in Paris,” “Lady Chatterly’s Lover,” “Ulysses,” “Lolita,” “Swept Away” or the “Story of O?” When asked in a recent interview, commission chairman Hudson said he didn’t know, not being familiar with any of those works.

Hudson, a hard-nosed Virginia prosecutor, said he didn’t have time to go to the movies or read fiction, but, as he said in a recent interview, “The law is the law.”

Asked for his definition of pornography, he hesitatingly replied that “It’s any portrayal which is designed to be sexually arousing, which depicts sodomy, sexual degradation, humiliation or violence.”

Why sodomy? he was asked.

“Sodomy,” Hudson responded, “is any unnatural act. Bestiality, cunnilingus, fellatio--these are violations of common law, which are still unlawful in most states. In fact, they are felonies in Virginia.”

Even within the privacy of a marriage?

“Right, I don’t make the laws, I enforce them.”

As a young prosecutor, Hudson earned President Reagan’s commendation by ridding his Arlington County area of all “adult” theaters and bookstores and halting the rental of X-rated movies in video stores.

Minimal Effect on Dancers

What Hudson’s crusade has meant to Arlington is that the dancers at the New Village Grill down the street from his office wear the tiniest of pasties as they jiggle through their dance routines.

It has also meant that one of Arlington’s largest video stores now rents a lot of what owner Dean Tsutras calls “splatter movies,” R-rated films whose selling point is violence.

“I can rent movies that dismember and mutilate, but not show sex which is a normal encounter as opposed to dismemberment,” Tsutras said.

Asked why he found films depicting the decapitation of scantily clad women less objectionable than portrayals of sexual intercourse, Hudson responded: “I just enforce the law, and the law refers to sex, not violence.”

Other commissioners have come to favor a more nuanced response to what they still perceive as a problem. Tilton, for example, distinguishes between child and adult pornography--a dichotomy rejected by both Dobson and Ritter, who believe any pornography available to adults will make its way into the hands of children.

Critical of Colleagues

Becker, the psychologist on the commission, has made it clear that her research indicates “no serious body of evidence of a causal connection between pornography and crime,” and suggested in an interview that some of her colleagues were simply attempting to legislate their own personal morality.

One commissioner criticized the committee’s work as “shoddy” and added in a recent interview that staff director Sears “is attempting to ram through his own moral views as scientific fact.”

Still other commissioners support the staff director and welcome what Dobson called his “sincere desire to stop pornography,”

Such divisions may well stem from the ideological and moral preconceptions the commissioners brought to their task. If so, they have been reinforced by the way in which the group has gone about its work. This was clearly the case at Scottsdale. There, an attempt was made to formulate a consensus based on the existing social science research surveyed by the commission staff.

But as a summary memorandum prepared by Edna F. Einsiedel--the commission’s staff social scientist--demonstrated, that data is spotty and inconclusive.

At Scottsdale, in fact, most of the commissioners seemed to accept the view that nonviolent, non-degrading, sexual depictions have at most marginally harmful effects in terms of anti-social behavior.

Both Father Ritter and Dobson, however, have stated that they object to such erotica because, in their view, it weakens the family. Ritter has also stated that any pornography is objectionable if it leads to masturbation.

Recently, Dobson wrote his colleagues that he “dissents strenuously” because “the commission is now considering the wisdom of declaring harmless the depiction of premarital intercourse, oral copulation, etc.”

Other commissioners object to the majority’s condemnation of any sexual depiction that is violent or degrading. The Scottsdale meeting unanimously approved a resolution stating that “Sexually explicit degrading materials are immoral and unethical and are an offense against human dignity.” An identical resolution substituting the word “violent” for “degrading” also passed without dissent.

Asked to Change Votes

But during a break, Becker, Tilton and Levine began to reconsider their views, and when the meeting reconvened, they asked that their votes on the two resolutions be changed.

They argued that the resolutions would preclude works that required the depiction of violent sex to make an artistic or political point. They cited such movies as “Swept Away,” and “Last Tango in Paris,” both of which contain depictions of what some would consider violent or degrading sex.

“Swept Away” is a good example, since it was used in one of the two benchmark studies of sexual violence cited by anti-pornography activists critical of the Nixon commission’s findings. In that study, which was conducted by UCLA communications professor Neil Malamuth, students were interviewed a week after seeing the Italian film “Swept Away”--in which a working class male castaway rapes the wealthy woman stranded alone with him--and an American movie, “The Getaway”--which depicts a violent Texas bank robbery and its even more extravagantly violent aftermath. The study found marginal increases in acceptance of rape among male subjects.

Compared Aggression Levels

The commission’s draft report also cites work by University of Wisconsin psychology professor Edward Donnerstein. His study showed that when a male subject is provoked to anger and then views a sexually aggressive film, he registers higher levels of aggression. But subjects viewing non-aggressive erotic films registered no such increase.

During a hearing in Dallas, Schauer, the law professor on the commission, asked Donnerstein if there were any “laboratory studies showing increases in aggressive behavior after exposure to nonviolent sexually explicit material?”

“Not that I am aware of”’ the professor responded. Donnerstein and his associate, Dan Linz, went on to add: “The problem centers on what we mean by pornography. Are we talking about sexually explicit materials? If we are, then one would have to conclude that there is no evidence for any harm-related effects. Are we talking about aggressive materials? In this case the research might be more supportive of a potential harm-effect conclusion. The problem, however, is that the aggressive images are the issue, not the sexual in this type of material . . . “

Research Conclusion Ignored

The commission staff’s draft also ignored an important conclusion reached by Malamuth and Donnerstein in an article they co-authored in 1982 describing the research concluded since the 1970 presidential commission:

“One should not assume that all of the research since the commission’s time (1970) has shown negative effects on individuals. In fact, the evidence is quite to the contrary. There has been a great deal of research which strongly supports the position that exposure to certain types of pornography can actually reduce aggressive responses. In fact, the reader should keep in mind that pornography has been shown to have many types of effect.”

Malamuth and Donnerstein stress that it is the violence rather than the sexuality that is the key component in forming anti-social attitudes. And evidence presented to the commission indicates that R-rated movies tend to have more violent scenes than X-rated ones.

Such evidence has suggested to a number of the commissioners that if preventing crimes against women is one of their primary goals, their recommendations ought to focus on violence rather than sex itself.

‘Violence Is Main Problem’

Dietz, the psychiatrist on the commission, is emphatic on this point. “Violence is the main problem,” he said, “ not sex.”

Just how the commission will now resolve such differences is unclear.

At Scottsdale, Hudson suddenly announced that Surgeon General C. Everett Koop, a strong critic of pornography who had already testified, had been asked to once again survey the social science data on the subject. In response, Koop scheduled a three-day meeting of 20 social scientists in June, after the commissioners are scheduled to complete their work.

Levine suggested in an interview that “this might be a way of dropping something on us in the 11th hour, after we have completed our scheduled meetings, to force a certain conclusion.”

The commissioners approved a motion that each of them be permitted to prepare a statement on the effects of pornography to be printed at the beginning of the final report, although some argued it would blunt the document’s overall impact.

More recently, Schauer, chairman of the commission’s subcommittee on organized crime, served notice that he was “extremely disturbed” by the staff’s draft report and had decided to write one of his own.

Questions Source’s Validity

The source of Schauer’s irritation was a staff-prepared draft linking pornography to organized crime, which relied heavily on the testimony of a discredited FBI undercover agent.

In a letter to the commissioners, Schauer wrote that “One of the two people on whom we rely” for the organized crime material “was arrested for shoplifting.”

He added that the judge who handled that case, and who has a reputation for being tough on pornography, stated that “the court finds from the evidence that he has a great propensity to lie.”

Schauer then reviewed the rest of the draft report and found it seriously wanting. One problem, he believes, is the importance attached to testimony by alleged victims of pornography. Much of the commission’s time has been taken up with accounts offered by those who claim that pornography caused them harm.

Those persons--in some cases dramatically concealed behind screens to protect privacy and/or safety--provided emotional and at times compelling testimony of personal tribulation. But critics, like the ACLU’s Lynn, charge that there was no serious cross-examination of the witnesses or prior screening to establish the truthfulness of their accounts.

Others Expressed Concern

A number of commissioners, including psychiatrist Dietz and Judge Garcia also have expressed a lack of faith in the reliability of such testimony based on their own prior experience with witnesses.

In his letter, Schauer noted that the draft report contained a large amount of such material and stated:

‘If we are indicating that we believe or endorse all of this, I cannot conceive of going along. If we are merely reporting what was told to us, I wonder how we can justify reprinting 199 pages of victim testimony while not reprinting a single page of testimony about the dangers of overregulation or the alleged benefits of some of this material. If this section is included as is, we will have confirmed all of the worst fear about the information on which we relied and all of the worst fears about our biases. . . . I will not compromise my intellectual integrity,” he wrote.

“I hope you won’t either, and I urge all of you to bear in mind that your reputations are on the line too.”

Times researcher Nina Green contributed to this story.