Trafficking? In MY Pornography?

By: Oumou Keita

As a society, we have come far from the days of clutching our pearls at the idea of pornographic depictions. Pornography is now a multi-billion-dollar industry, and has been professionalized in many ways.[1] The United States Department of Labor has approved the International Adult Entertainment Actors Union (AEAU), the nation’s first official union for adult film actors.[2] Adult film actors also have the option of joining guilds to protect their interests.[3]

Pornography in the United States is governed by obscenity law. Though the Supreme Court has stated that the First Amendment does not cover obscene materials, the definition of obscenity is nebulous and left to the states to determine using their individual community standards.[4] However, federal attempts to regulate online pornography have been struck down by the Supreme Court on free speech grounds.[5] The omnipresence of online pornography seems to suggest that this debate is over. Most modern efforts against pornography are focused on preventing and punishing child pornography.[6]

Though online pornography is largely accepted as a fact of modern life and many adult film actors find their profession lucrative and fulfilling, there are individuals exploited by this industry who’s suffering has been obscured by the lens of the camera.[7] There are various opinions as to whether pornography provides a net benefit or detriment to society. I am not interested in taking part in moralistic debate, but rather in examining the ways in which sex criminals use the legality of pornography to hide sex trafficking in plain sight.

The Difficulty of Identifying Consent in Pornography

The first and perhaps most obvious of the ways pornography hides illegal conducts is through the complete lack of context for the scenes. Sex traffickers take advantage of this ambiguity by making videos of their victims for both private consumption and commercial sales.[8] Viewers have no way of knowing whether the individual in the scene is a willing participant or being assaulted on camera, partially because depictions of violence are not uncommon in pornography.[9] Rape-scenes are a sub-genre of pornography in which it is particularly difficult to determine whether the realism is in fact real.[10]

With the popularity of amateur porn, it is similarly impossible to tell whether the people in the scene consented to their home videos being publicized. There is an unsettling trend of people posting intimate images of their former partners online known as revenge porn.[11] As this is a fairly new phenomena, the legal system is still in the process of figuring out exactly how to handle these abuses. Forty-six states and the District of Columbia have revenge porn laws on the books as of 2019.[12] These laws vary, but in most cases, revenge porn includes publishing or distributing photographs, pictures, or films that show the genitals, anus, or female breast of the other person, or depicts that person engaged in a sexual act for the purpose of harassment.[13] This is usually a civil offense classified under cyberbullying or harassment, but in some jurisdictions the court may order a person convicted of distributing revenge porn to register as a sex offender.[14]

It is often impossible to tell whether the individuals displayed in a porn scene are adults capable of consent. Both children and adults with severe mental disabilities are at risk of being exploited through pornography unbeknownst to the viewer. The Supreme Court has refused to extend constitutional protections to child pornography and there are both state and federal statues to prevent the creation, possession, and dissemination of such materials. [15]  Nonetheless, the difficulties of identifying age, cognitive ability, and especially consent make it possible for traffickers to profit off of sexual exploitation through online pornography.

Pornography as a Tool for Controlling Those Engaged in Prostitution

At times, people engaged in illegal prostitution are forced by their pimps to produce pornography under threat of being exposed for illegal sex work. Though they may have consented to prostitution, the creation of pornographic materials under duress clearly does not constitute consent and is in fact trafficking.

In a 2003 survey, 49% of people “currently or recently in prostitution” reported that their traffickers made pornographic material of them while they were engaged in prostitution.[16] In some cases, pimps used those online pornographic materials to advertise the women they were trafficking.[17] In addition to being an additional form of revenue for these traffickers, pornography is also used to control victims.[18] Even if a woman is able to escape her captors, the existence of footage or images of their abuse complicates the healing process and can make it difficult to find employment outside of sex-work.[19]

Consent and Employment in the Adult Film Industry

Many conversations regarding sex trafficking focus on individuals who have been kidnapped and controlled using force or threats of force. There is considerably less discussion of victims who willingly entered sex work only to find themselves stuck in a cycle of coercion and exploitation. Professional adult actors and amateurs who consented to participating in adult films often find themselves as victims of mistreatment.

Adult film actors typically give directors “yes no lists” which detail which acts they are comfortable performing.[20] Unfortunately, these lists cannot encompass the full spectrum of possible sex acts and therefore create a gray-area of consent in which things can quickly spiral out of control.[21] In addition to the on-camera violations, certain directors expect sexual favors as a part of the business deal.[22] The professionalization of pornography has also given some producers a new tool to coerce actors into performing acts they have not consented to: threats of litigation.[23] When actors are unaware of the legal implications of refusing directions, a willing participant can quickly transform into a coerced victim.

Unfortunately, the legal system is often ill-equipped to deal with rape allegations in the field of pornography. Traditional methods of investigation may be impaired as physical evidence is near meaningless and proving consent is near impossible in the context of professional pornography.[24] Sex workers also face societal stigma and skepticism from law enforcement when attempting to report abuse, which dissuades many from coming forward.[25]

Actors have spoken out to say that beyond the evidentiary difficulties, the industry as a whole fosters a culture of habitual line crossing. As actor Chad Alva told Vice, “[w]hen a performer demonstrates genuine sadism, a lack of restraint, or carelessness and then sees a progression in their workflow and income, naturally they are going to think they should continue behaving in a similar manner.”[26] Furthermore, adult film stars face risks of being labeled “difficult to work with” or otherwise blacklisted for refusing unwanted sexual advances or reporting abuses.[27] Coming forward with these allegations may ostracize an actor, as the industry as a whole is fighting against the stigmatization of pornography as unsafe and amoral.[28]

Women and girls make up the majority of the sex trafficking victims so the issue of exploitation in the adult film industry is inextricably linked to women’s rights.[29] As such, it is unsurprising that adult film actresses have spoken out against abuse in the industry in a #MeToo fashion. Adult film actors did speak out against giants in the industry long before the hashtag, however. In the now infamous case of adult film darling James Deen, questions of consent in the porn industry reached a fever pitch when multiple women accused him of assault ranging from forcing sex acts not agreed to in the contract to full on punching an actress during a BDSM scene.[30] These experiences do not characterize the adult film world as a whole but are common and severe enough to merit institutional change, as exemplified by the many calls from within the industry for a paradigm shift.[31]

Ethical Pornography

Sex work, pornography, and sex crimes are not one and the same and conflating these subjects is simultaneously ignorant and patronizing. Banning pornography, even if feasible, would be a draconian and ineffective way of addressing the abuses in and around the adult film industry. This approach would also exacerbate sex trafficking by further marginalizing a vulnerable population. [32] There is no easy solution to these problems.  I believe the only way to make progress in stopping sex criminals from profiting from pornography is through a combination approach that includes both social and legal change.

I personally advocate for the de-stigmatization and decriminalization of sex work. Decriminalization would have a direct impact on some of the issues described above. For example, it would reduce the number of individuals blackmailed into pornography under threat of being turned in for prostitution. In addition to supporting large institutional changes, however, consumers can take steps to watch pornography in a more ethical manner. This is possible primarily through due diligence.

Not all pornography is created equal. Some studios and directors in the adult film industry take consent very seriously, going as far as periodically stopping scenes to check in with their actors.[33] Most people understandably do not know where to begin when it comes to ethical porn consumption, but there are simple steps we can all take such as researching a production company’s reputation within the industry, purchasing porn from the performer or company directly, learning about performers on social media, and much more.[34] This may seem burdensome as free, contextless pornography is so easily available and quite frankly the norm, but a commitment to ethical consumption is both possible and a growing movement. [35]

 

I want to leave you with one final request: if you see anything on or offline that you believe is sex trafficking, please reach out to the National Human Trafficking Hotline at 1 (888) 373-7888.

[1] Ross Benes Quartz, Porn Could Have a Bigger Economic Influence on the US Than Netflix, Yahoo Finance (June 20, 2018)  https://finance.yahoo.com/news/porn-could-bigger-economic-influence-121524565.html ; Tom Farr, In 2018 Porn Is An Industry: And It’s Not Sex That’s Being Sold, It’s Abuse, Medium (Jan 22, 2018), https://medium.com/@tom_farr/in-2018-porn-is-an-industry-and-its-not-sex-that-s-being-sold-it-s-abuse-f1bfefdda520.

[2] I’ntl Entertainment Adult Union, http://entertainmentadultunion.com/?zone=/unionactive/view_page.cfm&page=WHY20THE2020IEAU (last visited Oct. 23, 2019).

[3] Adult Performers Actors Guild,  http://apagunion.com/.

[4] Miller v. California, 413 U.S. 15, 36–37 (1973).

[5] Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 845 (1997).

[6] Review of Child Pornography and Obscenity Crimes, https://oig.justice.gov/reports/plus/e0107/results.htm  (last visited Oct. 23, 2019).

[7] Misha Barber Way, After James Deen Rape Allegation Porn Companies Debate the Issue of Consent, Vice (Dec. 21, 2015),  https://www.vice.com/en_us/article/53nvv5/after-james-deen-rape-allegations-porn-companies-debate-the-issue-of-consent.

[8] Allison J. Luzwick, Human Trafficking and Pornography: Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, 112 Nw. U. L. Rev. 355 (2017). https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1244&context=nulr_online.

[9] Tom Farr, In 2018 Porn Is An Industry: And It’s Not Sex That’s Being Sold, It’s Abuse, Medium (Jan. 22, 2018), https://medium.com/@tom_farr/in-2018-porn-is-an-industry-and-its-not-sex-that-s-being-sold-it-s-abuse-f1bfefdda520.

[10] List of Pornographic Subgenres, Art & Popular Culture, http://www.artandpopularculture.com/List_of_pornographic_subgenres (last visited Oct. 23, 2019).

[11] Jack Simpson, Revenge Porn: What is it and How Widespread is the Problem?, Independent (July 2, 2014, 19:55), https://www.independent.co.uk/news/uk/home-news/what-is-revenge-porn-9580251.html.

[12] 46 States + DC + One Territory Now Have Revenge Porn Laws, Cyber Civil Rights Initiative, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Oct. 23, 2019).

[13] State Revenge Porn Laws, FindLaw, https://criminal.findlaw.com/criminal-charges/revenge-porn-laws-by-state.html (last visited Oct. 23, 019).

[14] Id.

[15] New York v. Ferber, 458 U.S. 747, 764 (1982).

[16] Melissa Farley, “Renting an Organ for Ten Minutes:” What Tricks Tell Us about Prostitution, Pornography, and Trafficking, Prostitution Research and Education 1, 2 (2007),  http://www.prostitutionresearch.com/FarleyRentinganOrgan11-06.pdf .

[17] Allison J. Luzwick, Human Trafficking and Pornography: Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, 112 Nw. U. L. Rev. 355, 362 (2017).

[18] Michelle Lillie, The Connection Between Sex Trafficking and Pornography, Human Trafficking Search (2014),  https://humantraffickingsearch.org/the-connection-between-sex-trafficking-and-pornography/.

[19] Melissa Petro, Getting Out Of Sex Work, Pacific Standard, https://psmag.com/economics/getting-out-of-sex-work (last updated June 14, 2017).

[20] Misha Barber Way, After James Deen Rape Allegation Porn Companies Debate the Issue of Consent, Vice (Dec. 21, 2015),  https://www.vice.com/en_us/article/53nvv5/after-james-deen-rape-allegations-porn-companies-debate-the-issue-of-consent.

[21] Way, surpa note 20.

[22] Id.

[23] Marlo Safi, The Porn Industry and Human Trafficking Reinforce Each Other, National Review (Aug. 1, 2018, 2:22 PM), https://www.nationalreview.com/2018/08/porn-human-trafficking-reinforce-each-other/; John-Henry Westen, Want to Stop Sex Trafficking? Look to America’s Porn Addiction, HuffPost (last updated Mar. 30 2015), https://www.huffpost.com/entry/want-to-stop-sex-traffick_b_6563338.

[24] Tess Barker, What Does Consent on a Porn Set Look Like?, Vice (Mar. 6 2016, 10:00 AM),  https://www.vice.com/en_us/article/jpywqx/what-does-consent-on-a-porn-set-look-like .

[25] Tierney Finster, Why It’s So Hard To Bring The #Metoo Movement To Porn, MelBeta (2018), https://melmagazine.com/en-us/story/why-its-so-hard-to-bring-the-metoo-movement-to-porn.

[26] Barker, surpa note 24.

[27] Finster, surpa note 25.

[28] Id.

[29] United Nations Office on Drugs and Crime, https://www.unodc.org/unodc/en/human-trafficking/global-report-on-trafficking-in-persons.html.

[30] Misha Barber Way, After James Deen Rape Allegation Porn Companies Debate the Issue of Consent, Vice (Dec. 21, 2015),  https://www.vice.com/en_us/article/53nvv5/after-james-deen-rape-allegations-porn-companies-debate-the-issue-of-consent.

[31] Gabby Bess, After Rape Accusations, Female Porn Stars Stand in Solidarity Against James Deen, Vice (Nov. 30, 2015, 3:05 PM), https://www.vice.com/en_us/article/ae5maa/after-rape-accusations-female-porn-stars-stand-in-solidarity-against-james-deen.

[32] Erin Albright and Kate D’Adamo, Decreasing Human Trafficking through Sex Work Decriminalization, AMA Journal of Ethics, https://journalofethics.ama-assn.org/article/decreasing-human-trafficking-through-sex-work-decriminalization/2017-01, (last visited Oct. 23, 2019).

[33] Tess Barker, What Does Consent on a Porn Set Look Like?, Vice (Mar 6 2016, 10:00 AM),  https://www.vice.com/en_us/article/jpywqx/what-does-consent-on-a-porn-set-look-like .

[34] Jack Simpson, Revenge Porn: What is it and How Widespread is the Problem?, Independent (July 2, 2014, 7:55 PM), https://www.independent.co.uk/news/uk/home-news/what-is-revenge-porn-9580251.html.

[35] Clay Skipper, How to Watch Porn Ethically, GQ (Oct. 20, 2015), https://www.gq.com/story/how-to-watch-porn-ethically

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