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PART 4: CHAPTER 2
The objective nature of photography confers on it a quality of credibility absent from all other picture-making...The photographic image is the object itself, the object freed from the conditions of time and space that govern it.
-Andre Bazin[922]
The leap from "picture making" to photography was an event of profound cultural significance; it was, in Bazin's view "the most important event in the history of plastic arts."[923] It was, as well, the single most important event in the history of pornography: images of the human body could be captured and preserved in exact, vivid detail. As with every other visible activity, sex could now, by the miraculous power of the camera, be "freed from the conditions of time and space:"
"Sex" in the abstract, of course, remains invisible to the camera; it is particular acts of sex between individual people which photographs, films, and video tapes can record. Unlike literature or drawing, sexually explicit photography cannot be made by one person: there must be a photographer and one or more persons being photographed. This use of an actual person as the object distinguishes such photography from all other types of sexual material. No study of filmed pornography can thus be complete without careful attention to the circumstances under which individual people decide to appear in it, and the effects of that appearance on their lives.
Nor is this an academic or trivial exercise. The evidence before us suggests that a substantial minority of women will at some time in their lives be asked to pose for or perform in sexually-explicit materials.[924] It appears, too, that the proportion of women receiving such requests has increased steadily over the past several decades.[925] If our society's appetite for sexually-explicit material continues to grow, or even if it remains at current levels, the decision whether to have sex in front of a camera will confront thousands of Americans.
After a brief clarification of terms, we begin our examination of the issues surrounding pornographic "performances" by reviewing the extent to which those issues have been faced by previous commissions and by the courts. We then turn to a brief overview of the kinds and quality of available evidence on the subject, and a summary of what that evidence shows. In conclusion, we consider
three areas which the record suggests should be of serious concern, along with recommendations for federal, state and local action.
Those who appear in sexually-explicit material, from stills to movies to video tapes, have been variously called "actors," "models," "stars," and "sex workers" during the course of our public hearings. None of these terms seems perfectly appropriate as a description of what such activity involves: the first three seem euphemistic, the last derogatory. We adopt the term "model" not only because it seems to have been the one most commonly used during our hearings, but also because it seems to be somewhat less loaded with positive and negative connotations.[926]
It is important to qualify that definition instantly, however, by limiting its range of application to sexually-explicit material that is commercially produced. As we will discuss later, a substantial portion of photographic pornography is made informally, with little or no monetary motive and no intention of widespread distribution. While such small-scale productions are of real concern to us, those who appear in them seem to be at least largely distinct from those who perform in glossier, commercial "X" rated material. Where it-is important in the following discussion to refer to those appearing in noncommercial pornography, we will do so specifically. And where we wish to refer both to those appearing in commercial and noncommercial pornography, we will simply use the term "performers."
A fierce debate has raged in this country over obscenity and pornography since the 1970 Commission on Obscenity and Pornography announced its findings; a debate mirrored in the bitter internal struggles of the Commission itself.[927] It is perhaps a measure of the passionate as opposed to reflective character of the struggle that the interests of those persons actually photographed for sexually explicit material was considered by neither the majority nor the minority reports of the Commission. Perhaps because "hard-core" material was seen by the Commissioners as being largely of foreign origin,[928] the risks for performers in such materials may have seemed virtually irrelevant. The Commission's Traffic and Distribution Panel merely paused to note that in making a typical "stag film"[929] the 'performers' are paid $100 to $300.[930] The recommendation of the majority for repeal of all laws regulating distribution of obscene material to adults was premised on the belief "that there is no warrant for continued governmental interference with the full freedom of adults to read, obtain or view whatever such material they wish."[931]
The majority did not consider it even a theoretical possibility that such unlimited freedom might conflict with the freedom and well-being of those performing sexual acts in front of a camera for consumption by the masses.[932] So myopic was the Commission on this issue, indeed, that under the strict terms of its recommendations, neither "snuff" films[933] nor child pornography would have been subject to prohibition.[934]
Neither of the two major national committees which followed the 1970 Commission was quite so blind to the possible risks to performers in sexually-explicit material. Both the Williams Report[935] and the Fraser Report[936] recommended prohibition of pornographic materials which depicted a child[937] in explicit sexual conduct or which were made in such a manner that "physical injury" was inflicted upon a performer. Yet apart from their concern for protecting children from use in pornography, the Williams and Fraser Committees ultimately gave little attention to the circumstances in which sexually-explicit material is produced, and in particular the situation of those who perform in it. The Williams Committee heard some evidence that "there was much misery in the trade and that many of the girls in strip clubs, for example, were disturbed and mentally ill," but did not think it sufficient in the face of vigorous denials from a publisher of magazines "within the trade."[938] Its analysis of the issue did not extend beyond two paragraphs, and focused solely on production of pornography in Great Britain, which at the time did not generally permit production of any "hard core" pornography.[939] The Fraser Committee gave the issue even more cursory treatment after finding that only "a very small number of [sexually explicit] films are produced within Canada" and "the production of other forms of pornography, for example, magazines and books is not undertaken for commercial purposes."[940] The Committee supported a ban on material in which "actual physical harm was caused to the person or persons depicted" as an "additional deterrent to the causing of such harm."[941] Without discussing the nature of the evidence before it, the Committee declared that "we know that the relations between the producers of violent pornography and the actors in it are often such that there is little or no respect for the rights and physical welfare of the latter."[942] Like the Williams Report, however, the Canadian report did not explain what level of proof would be required to demonstrate that "actual" as opposed to "simulated" harm had been caused to performers. Unlike the Williams Report, however, the Fraser Report did not devote even a paragraph to consideration of harms to performers other than those resulting from outright violence on the set.[943]
Ultimately, then, it seems fair to say that in this area, at least, we are without clear guidance from our predecessors in examining a possible "harm" of pornography. The nature of the pornography industry has changed so rapidly in this country since the 1960's that it is hardly surprising that the 1970 Commission felt no obligation to examine the situation of performers; because the industry seems so centered in the United States and continental Europe, moreover, it would have been extremely difficult for the Canadian or British panels to study it in detail. Nevertheless, the failure of these commissions to examine the issue even in the abstract points to what we view as a nagging conceptual flaw in their approaches: they assumed a photographic image of sexual conduct by actual persons to be essentially no different from a written description or drawing of such conduct. As we will explain below, the use and misuse of "models" and other performers makes that assumption at least gravely doubtful.
The refusal of previous commissions to consider carefully the situation of performers in sexually-explicit material is hardly unique in this area; indeed, it is a characteristic of virtually all legal analysis of "pornography" until very recently. In this country, of course, the Supreme Court did not squarely address the constitutional issues inherent in suppression of obscenity until the Roth decision in 1957.[944] There the Court rested its view that obscene material could constitutionally be suppressed on the failure of such material to have "even the slightest redeeming social importance,"[945] and made no distinctions in its analysis among writings, drawings, or photographs.[946] During the following sixteen years of acrimonious judicial debate over the problem of "obscenity" the Court singled out "photographic speech" for special analysis only twice: in Times Film Corp. v. Chicago[9][47] and Freedman v. Maryland[948] it laid out rules governing prior review and censorship of motion pictures. Yet in those decisions, the Court's "recognition that films differ from other forms of expression"[949] seemed in no way based on dangers to performers but rather on a largely unexplained concern for the special power of films to corrupt viewers.[950] When in 1973 the Court finally settled on the test and the rationale for regulation of obscenity in, respectively, Miller v. California[951] and Paris Adult Theater v. Slaton,[952] photographic speech was not discussed separately and possible risks or harms to performers in sexually explicit films were not mentioned.[953] The decision of the Court on that same day that "words alone" could be suppressed if obscene reinforced implicitly the assumption that constitutional doctrine governing sexually-explicit material was based solely on its effects on viewers and the public.[954]
With minor exceptions[955] that assumption continued to govern judicial pronouncements on sexually-explicit material until the Supreme Court decided New York v. Ferber[956] in 1982. There the Court for the first time extended its analysis of such material to encompass the "privacy interests" of the performers[957]-in this case children. Filming children in the midst of explicit sexual activity not only harmed them because of the sexual abuse involved, but also because "the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation."[958] In addition, the continued existence of a market for such materials was found to make it more likely that children would be abused in the future thus justifying a ban on distribution as the "most expeditious if not the only practical method of law enforcement. . . ."[959]
Since Ferber, courts have begun to consider problems faced by performers in pornography, including adults as well as children. The Fifth Circuit recently upheld a judgment against Chic magazine for publishing a nude picture of a woman whose consent had been obtained fraudulently.[960] The same court sustained a judgment against Hustler magazine for "reckless" publication of a nude photograph which had been stolen from the subject's home.[961] And in overturning the "Indianapolis Ordinance"-which sought to provide civil remedies against pornography as a form of sex discrimination-the Seventh Circuit declared that "without question a state may prohibit fraud, trickery, or the use of force to induce people to perform in pornographic or in any other films,"[962] and that under the principles of Ferber the state might be able to "restrict or forbid dissemination of the film in order to reinforce the prohibition of the conduct."[963]
In the wake of the Ferber decision, then, it is still difficult to predict the precise constitutional boundaries which govern regulation of photographic "speech" on behalf of performers.[964] That such performers have privacy and other interests worthy of protection, however, now seems clear. In part as a response to these judicial developments and in part as an effort to aid in future legal analysis, we feel compelled to examine with the utmost care the evidence bearing on the situation of performers used in pornographic photographs, video tapes, and films.
Because no previous commission has fully examined the special problems presented by the use of actual persons to make sexually explicit material, and because courts have only begun to develop the legal principles which may be applied to resolving those problems, we approach this aspect of our task with extreme caution. To begin with, we comment on the nature and the quality of the evidence before us both in testimony at our hearings and on the public record elsewhere. Then we examine the main outlines of what that evidence reveals about the nature of the performers' reasons for participation in producing pornography, and their experiences once the decision has been made.
In setting forth the types of evidence we have considered on this subject, it is important to note first the limitations which have been imposed on our fact-finding efforts. Above all, we have not had the power to issue subpoenas summoning reluctant witnesses to appear; thus all information at our disposal was presented to us voluntarily or obtained through our review of materials on the public record. In addition, the severe time constraints imposed on our work were particularly damaging in this area because, as discussed earlier, this aspect of the pornography "industry" has received only the scantiest attention in the past. We, therefore, did not have the benefit of knowing from the outset what were the most likely avenues to discovery of pertinent evidence about activities that are largely underground. Finally, both the difficulty of locating witnesses and the pressure of time meant that we were not able to spend substantial time in cross-examination of their testimony or in background investigations to corroborate their statements.
Caution is dictated, too, because there have been to our knowledge almost no "scientific" investigations into the background of participants in pornography or its effects on them afterwards.[965] Such investigations would certainly be extremely difficult-perhaps impossible-to design and conduct given the clandestine character of the pornography industry. Reliable conclusions about the number and characteristics of performers in pornography will likely remain as difficult to reach as, for example, solid estimates of the number and characteristics of illegal aliens.[966]
What we have been able to discover, however, is deeply disturbing, and, we think, based on substantial evidence from a variety of generally credible sources. Somewhat to our surprise, the testimony of law enforcement officers, of current and former performers in pornography, and of those involved with pornography "behind the scenes" has rarely been in conflict. Further, significant and useful information is available from court cases, from books and "adult" magazines, and from "adult" film industry publications. If on the whole we believe our understanding of the problems faced by performers in pornography is incomplete, and that our findings and recommendations must be largely tentative, we also view the state of the evidence as highly suggestive. And we think it points to the need for action as well as for further study.
The most basic questions about performers in pornography-who they are, and how they came to appear in sexually-explicit material-are unfortunately the most difficult to answer decisively. For reasons that are largely obvious but will be explored later, anonymity is a valued commodity among pornography performers: apparently even the best known models frequently do not use their real names for their appearances.[967] And in much pornography (such as that shown in video arcades) the performers are not identified at all. Thus it would have been difficult to conduct independent investigations of their backgrounds even if resources permitted it; instead we have relied on testimony and other information in the public record. What that evidence shows about their age range, background, motivations, and path of entry into modeling is a crucial backdrop to examination of what the sex industry demands of them.
Perhaps the single most common feature of models is their relative, and in the vast majority of cases, absolute youth. As one law enforcement officer who has extensively investigated the production of commercial pornography told us, "they [the producers] are looking for models that look as young as possible. They may use alt eighteen-year-old model and dress her up to look like she is 15."[968] Female models appearing in "mainstream" commercial pornography appear rarely to be over thirty years old or even in their late twenties; indeed, most whose age we have been able to gauge began their careers in their late teens.[969] Indeed, one former model who now works in the front office of an "adult" video company explained her decision to retire thus: "Good roles for women over nineteen years old have become few and far between."[970] William Margold, a leading figure in the "adult" film industry, described it simply as "essentially an overage juvenile hall."[971] While male models apparently can enter and remain in the industry at a somewhat older age,[972] on the whole we find Mr. Margold's imagery particularly apt.[973]
Along with their youth, models in sexually explicit media seem to share troubled or at least ambivalent personal backgrounds. Although many described or implied unhappy experiences during childhood, we are not able to say with scientific certainty whether their family backgrounds were worse or better than "normal."[974] One model recently declared before a Senate subcommittee that it is a "myth" that models have "unhappy childhoods."[975]
Despite this claim, many other models have painted a drastically different picture of their families-broken marriages,[976] early parental death,[977] and intense family conflict.[978] Many-including the model who denied the "myth" of unhappy childhoods reported having suffered early sexual abuse.[978] Professor Russell, moreover, has found a "highly statistically significant relationship between incestuous abuse and being asked to pose for pornography."[980] In her study she found that "girls and women who are being asked to pose for pornography ... are those who have already been seriously sexually abused by a relative."[981] Sketchy as the evidence is, we are struck by the relative rarity in the material and testimony we have studied of claims regarding positive features of families of models.[982] If anything, the balance of the evidence suggests that models have typically grown up in circumstances of parental deprivation, abuse, or both.[983]
If it is not possible to speak with certainty about the family backgrounds of the young women and men who become "models," it nevertheless seems clear what chiefly motivates their decision to appear in sexuallyexplicit material: financial need. As one former model put it when asked why most women enter nude modeling:
A lot of women are hurt or crazy women under stress. Yes, most women come in under a lot of stress. They're usually desperate when they first come in-maybe they need money for some emergency, like I did, or they've gone as long as they can doing odds and ends or working at (menial) jobs, and they finally just have to pay their bills. I met a woman whose kid was in the hospital, and I met lots of women who were financially strapped. There were also many illegal aliens there who couldn't work regular jobs even if they had the skills because they didn't have their green cards.... [T]hey certainly know how to get you to do what they want. Some women are so bad off that they just go immediately into hard-core films.[984]
One prominent model recently described her entry into the business in similar though less sympathetic terms.
I had a sugar daddy who was, you know, keeping me. Paying for everything. I didn't need a dime of my own and never had to work. Then I guess his wife found out, and he ran back to her, breaking it off with me. I was out in the cold. Then a friend of his asked me if I was interested in doing some masturbation stuff on video. I needed the money and said okay.[985]
Although not a universal feature of models' accounts,[986] with striking regularity they speak of money and dire financial need as critical factors in their decision to model.[987] In the words of one now famous former model who was "literally starving" when he made an X-rated film: "It was either make that movie or rob someone"[988] As a representative of United States Prostitutes Collective put it: "For women working in the sex industry, prostitution and pornography are about money, not sex "[989] Not surprisingly, Professor Russell found that women who had been asked to appear in pornography were significantly poorer than other women in her sample.[990] From what we have learned about the rigors and risks of sex modeling, it is difficult to imagine any overriding motive other than serious economic need for such a momentous decision.[991]
When that decision is made, and for whatever reason, the model enters a world averse to public scrutiny and almost wholly unconcerned with public accountability. In our own examination of the commercial "adult" film and magazine industries we received little information from the industries themselves regarding the position of performers, although we did find at least one industry spokesman, William Margold, remarkably candid and forthright on the subject. Fortunately, a substantial amount of information in this area is available from knowledgeable law enforcement sources, court cases, and, of course, performers themselves. The view of performers' lives which they provide is invaluable and grimly fascinating from the methods of recruitment to the experience of performing to the likely aftermath in personal career directions.
For most young women in commercial pornography, entry into "modeling" seems to occur almost without serious thought. One now famous model described her own initiation in surprisingly casual terms:
Well, I answered an ad in the paper. It was for a modeling job. It did not say, "adult modeling," or "nude modeling" or anything such as that. I went in and it turned out to be nude modeling. The first day, I took shots for Penthouse. So I kept on going and before I knew it, three months later I was doing adult films. [992]
Typically young women and men answer advertisements seeking "models," and only later discover nudity or sexual intercourse is involved in the work.[993] Often, the "model agencies" placing the ads apply strong pressure to convince prospects, as one former model has recently described it:
The majority of people in this business, they're heartless. They take a little girl off the street, fresh out of high school. They sit there and keep pushing it in her face and asking her if she'd like to do porn, and she keeps saying "No" and "No" and they keep on pressing.... [994]
Others enter from nude dancing[995] or prostitution.[996]
Whatever their entry route, however, well established, profitable enterprises exist to provide the services of female models to producers of "X" rated material.[997] "Model agents" receive a flat daily fee for each model provided, and provide producers with books containing pictures of those models available.[998] One such agent, William Margold, described to us the "legitimate ad" he regularly places in a Hollywood publication that, in his words, "lures, literally lures people in on the guise of getting [a legitimate acting] job. "[999] After they arrive at his office, Mr. Margold tells the prospects, who "are all filled with the idea of becoming a star," what his agency actually wants, and then warns them of the hazards of sex modeling.[1000] "Many people," he continued, "years later, would call and thank me for not letting them into the industry, because I would warn them out. I didn't need that on my conscience."[1001] In view of the overall tactics employed by him and other agents, Mr. Margold's "conscience" on this point seems somewhat overnice.
With regard to men involved in "modeling," by contrast, recruitment practices seem far more straightforward. Males have a substantially more difficult time breaking into pornographic modeling; where men are concerned, according to Mr. Margold, "[t]his is a closed shop" with only a few "superstars" who "end up in all the videos."[1002] Those who are able to enter the business often do so through the good offices of a new or established female performer.[1003] Some male models, on the other hand, drift into pornography in ways similar to women-through nude dancing, prostitution, or clever persuasion .[1004] Recruitment of men may be easier because of what many male performers describe as the ego gratification of working in pornography.[1005]
Efficient as it is, the normal recruiting process for pornographic models is apparently not fully adequate to meet producers' needs. It is an unpleasant, controversial, but in our view well established fact, that at least some performers have been physically coerced into appearing in sexually-explicit material, while others have been forced to engage in sexual activity during performances that they had not agreed to beforehand. We heard direct testimony from three unrelated women who each described how brutal force was used to push her into pornography.[1006] The credibility of that testimony was strongly reinforced by the testimony of representatives of "sex workers,"[1007] by a victim counselling agency;[1008] and extrinsic evidence on the public record.[1009]
We also find highly credible the assertion of law enforcement officers that models more often face coercion to get them to perform specific sex acts that were not contracted for.[1010] As one of them put it:
Coercion comes in, especially like some of these witnesses have testified, in the area of anal sex, which many of the models don't want to get into. It really comes into a factor in the bondage and S&M type films. I have talked to models and I have seen films where it's quite obvious that the model had no idea as to what they were getting into. Part of an S&M film, when they start torturing the victim, tying them, whipping them and putting cigarettes out on their body, is the showing of pain. This is what sexually excites some people.
Obviously we are not dealing with people that can act, so they can't act the pain. Therefore the pain is very real. It's quite apparent these people do not realize what they have gotten into once they start the filming.[1011]
Certainly their pain may not be lightly dismissed.
At the same time we may not dismiss the strong assertions of producers, agents, and models in the sex industry that performers are generally safe from physical coercion.[1012] Actual force or threat of force does not, indeed, appear to be a normal part of "mainstream" pornography production.[1013] Rather it seems concentrated in the fringe areas of bondage, sadomasochism, and home-made, noncommercial pornography. Force used to induce young women to enter "mainstream" pornography appears to be applied most often not by filmmakers but by dominating "boyfriends" who in fact play the role of pimp.[1014] All this said, it is nevertheless troubling that the Adult Film Association of America nowhere includes in its "unofficial credo" a pledge to eschew all forms of coercion in recruitment of models.[1015]
Those models who enter pornography voluntarily-that is, without having been physically forced-can expect to enter their new employment under contractual terms quite unlike any others we know of. They will by most standards be well paid-from $250 a day for established models[1016] but they will be paid strictly in cash[1017] and normally by the number and type of sex acts performed.[1018] Fringe benefits such as medical insurance are unknown.[1019] Models sign a standard release form which gives the film producer or the photographer complete ownership of, and unlimited rights to the material produced.[1020] Once the leave the movie set or the film studio, they have no guarantee of future employment and no ability to control the use of the material in which they appear.
During a typical day of filming an "X" rated movie or video a performer is expected to engage in at least two sex scenes,[1021] in a manner pellucidly described by Mr. Margold to prospective male "stars":
You have to be a machine. You have to get it up, get it in and get it off on cue. You have to be able to completely divorce yourself from your surroundings and be able to function in any situation. For example, if you're working on location for a film shoot and staying at a motel for seven days, you have to cope with being in unfamiliar surroundings, getting irregular sleep and living on McDonald's and Kentucky Fried Chicken, and still be able to perform sexually no matter what else is on your mind.[1022]
Workdays are twelve to fourteen hours long, with videos requiring three and films seven days to shoot.[1023] During the filming of sex scenes it appears to be standard practice to restrict access to the set to the models and film crew; one actor is reported to have "hastily [covered] his private parts" when a reporter could see onto the set.[1024] In mainstream pornography females, but not males, are normally expected to engage in homosexual as well as heterosexual sex,[1025] while in male homosexual pornography women do not perform at al1.[1026]
Precisely because sex is their job, models face health hazards of forbidding intensity. Working three to four days a week, with two sex scenes each day,[1027] any one model may have twenty-four to thirty-two different sexual partners every month, just through work. Even though some performers state that they receive regular medical check-ups,[1028] the odds of contracting sexually transmitted diseases are very high-particularly because performers do not even have the option of using condoms or other "safe sex" techniques.[1029] Not surprisingly, even the rumor that a model is infected with a sexually transmitted disease can ruin his or her career,[1030] but just as obviously such a rumor will often fail to spread before the disease has. Further, it is only the established "stars" who can be choosy about their partners.[1031] One of the best known male models described his own experiences in illuminating terms:
When you're a nobody, it doesn't occur to you to be brave and ask, even though you have a lot at stake. I didn't worry too much about that until the Herpes stuff started to become real. Up until 1982, I had one clap scare. I went and received shots for it. I don't know if I ever had it or not. But I had contact with a known carrier. In '82, we got pregnant for the first time, and having Herpes was the difference between a vaginal birth and a Caesarian section which made a significant difference to us. And I didn't have Herpes and I saw no reason to get it. So I began saying categorically that I wouldn't work with anyone that had Herpes. I had to do this one part with someone who had an active outbreak of Herpes, and we cheated the scene. The person put a towel in her thighs and I ended up f...ing the towel. We had no physical contact. Ironically enough, it turned out to be a beautiful scene."[1032]
When asked who the Herpes carrier was, the model replied that he had "kind of shielded it."[1033]
The advent of Acquired Immune-Deficiency Syndrome (AIDS) might have been expected to produce drastic changes in sex industry practices, but the prevailing attitude seems best reflected in the following, recent comments in a Hustler interview of Amber Lynn, a leading "porn star":
Hustler: You're f...ing so many men these days, aren't you afraid of AIDS? Many actors in the business are bisexual.
Amber: There's an incredible fear of AIDS sweeping through the X-rated-film business right now. All of my girlfriends are talking about it. We're scared to death that we'll find out in three years we've only got a few months left.
Hustler: Why do you continue your promiscuous career then?
Amber: I get a blood test regularly and am very. careful about the people I work with. Hey, life's a f...ing gamble anyway, and there is where I want to be. I can't think of doing anything else. That's not to say I'm reckless. For instance, I won't f... some guy I know has been f...ing a bunch of other guys not for a lousy thousand dollars. It's not worth it to me, because if I get AIDS, then everyone I come in contact with [will] get it and not just the people I work with, but the people I love and care about too.[1034]
Of course, even an occasional sexual contact with a member of a high-risk group carries such a substantial risk of exposure to AIDS[1035] that the gamble Ms. Lynn embraces seems a peculiarly misguided one.
Along with the insidious threat of infectious disease, models face a more overt challenge to their physical health: drug use, and in particular, use of cocaine. Few aspects of the world of pornographic modeling seem less free from doubt than the dependence of most performers, at one time or another, on cocaine. The view of one prominent model that in her world "everybody goes through a drug stage"[1036] is perhaps overstated; but involvement of a substantial majority of performers in the use of cocaine seems highly probable.[1037] In the opinion of at least one model, drugs are necessary in her work because "you have to hide, you have to keep your feelings and emotions from being completely destroyed. Each day [in the industry] erodes them away."[1038] It is true that Mr. Les Baker, President of the Adult Film Association of America labelled the problem of drug abuse in his industry a "misconception," contending that such abuse "is a universal problem and we of the A.F.A.A. just a small part thereof."[1039] For him drug usage by pornographic models is simply part of an infection spreading through the whole "entertainment industry."[1040] William Margold put it somewhat more positively:
I know that drugs are in my industry. I know that drugs are in almost any form of creative people. Some people seem to need them to do whatever they have to do.[1041]
We of course are in no position to compare the severity of drug abuse in the pornography industry with that in other fields; it is sufficient simply to note that by all accounts such abuse exists and inflicts serious damage on those it touches.[1042]
The reference of Mr. Margold to the "creative people" performing in mainstream pornography raises for us, quite apart from the issue of drug abuse, a question of substantial importance in attempting to describe the role and the lot of models. To what extent is their work in fact "creative"? More bluntly, to what extent are they actors as opposed to glorified prostitutes? More than aesthetic judgments hang in the balance: for if the performing in sexually-explicit films can be called truly creative, it is possible to imagine it bringing intangible, subjective benefits to models that scrutiny of contract terms, working conditions and the like could never reveal. Fortunately, it is an issue on which models themselves seem largely in agreement. Mr. Margold, himself a model, recently was asked, "Is acting ability and training an important factor [in breaking into "X" rated films]?"[1043] His answer was simple and instructive:
No, I don't think so. I think what's most important is being in the right place at the right time, having the right connections and getting the right roles.[1044]
Mr. Margold went on to explain that the reason some male models "get their foot in the door" but "fail to make it to superstardom" is not for lack of creative drive or talent, but because they "cannot keep functioning reliably shoot after shoot."[1045]
One former model who testified before us was even more careful about distinguishing "modeling" from "acting":
That also reminds me somehow, what I really wanted to say is when you are paid, to 'act' in these videos and films and stuff, you know, a lot of them say that I am an actor, I am an actress, or something, I am getting paid to act.
When the producer or director pays you, after you leave, and before the shooting, you are paid not by how many lines you have or by what part you have you may have five lines or you may have 107 pages of dialogue, but you are paid per sex scene and that's how they quote it to you. If you have one sex scene a day you get like two hundred to two hundred fifty dollars for that, if you have two sex scenes, there's three or four hundred for two sex scenes. You are paid more for anal or girls are paid more for when they are working with two guys.
So the models that say they are getting paid to act are only doing that to pretty much preserve their job security because, you know, anybody in the industry knows you are paid per sex act and not for acting.[1046]
Several former models have made similar public assessments, declaring flatly that "the market today is just not conducive to anyone who takes their acting seriously."[1047] Adult filmmakers shoot with only the barest of scripts, desperate simply to get the requisite number of sex scenes on film with an alluring title and package.[1048] The result for performers is that, in the words of a leading model:
You never really forget the sex, you forget the movie. There's a lot of movies on the market that are exactly the same.[1049]
When asked to remember a movie she was proud of, she tellingly replied:
Yeah, I think one of the films I am most proud of is 'Sex Waves.' There was acting in it, a story to it ... it wasn't an excuse to have sex.[1050]
As one knowledgeable observer told us, sex scenes are normally shot in one take, and dialogue scenes in two or three:
They do not spend a lot of time on the dialogue. They do not look for perfection. If they [looked] for perfection, most of the porn movies would still be in production. The people they are using are not well known actors and actresses and they are not very skilled in this area.[1051]
From our limited direct observation of "X" rated material we must agree: skilled acting seems irrelevant to what is depicted.[1052]
There are, of course, those who disagree. One model speaks of always performing "within the character" he is portraying, even in sex scenes;[1053] another of how "the voice changes" while he plays the character he has portrayed through ninety-seven "features";[1054] a third (more dubiously) of the "ultimate acting challenge" involved in managing to "fool the public" into thinking she enjoys the sex, which she considers pure "exploitation."[1055] Clearly it is impossible to draw a bright, unwavering line between legitimate "acting" and pornographic "modeling."
Yet, ultimately we are faced with the simple fact acknowledged even by one of the most partisan of the adult film industry's fans: "Jealousy and most other human emotions (except fear and lust) are rarely expressed in adult films."[1056] Worse, as another sympathetic critic has conceded, "hard-core guarantees realism.... yet it remains incapable of showing pleasure."[1057] In a medium where virtually no human emotion (not even sexual pleasure!) can be expressed, and where, moreover, the performers are chosen neither for training in acting nor for natural acting talent, it seems to us all but ludicrous to call them "actors." We do not, therefore, consider it even the mildest paradox that the performers in live or filmed pornography are not treated on an equal footing as other performers by such organizations as Actors Equity and the Screen Actors Guild.[1058] Nor do we consider one of the rising male models to be wholly misguided in describing his job as, simply, f...ing pretty girls for a living."[1059]
just as sex modeling appears to offer few opportunities for creative expression, so too it seems to allow only sparse chances for longterm employment and remuneration. The life of a typical model's career is extremely short, usually not more than a few months or years. Of twenty new male "stars" each year in "adult" films, only about half a dozen will remain in the business for over a year.[1060] One of the few women to survive long in the industry, when asked what advice she would give to new female models, replied:
I would tell them not to burn themselves out so fast. What happens is that they become big names and everyone wants them. A couple of years down the line, these girls are going to find people telling them they're overexposed. The typical line is something like we can't pay you a great deal of money because you're not a name yet. Then when they use you in every damn thing around and you become dependent on the income, they tell you we can't pay you very much because you're overexposed. They're setting themselves up for a really had experience. I had a six year career. I think the reason it was that long is because I would only do three or four films a year. I tried to be choosy. These new stars shouldn't depend on hardcore as a full-time income. The directors are gonna grab them, chew them up, and spit them out real fast.[1061]
Some models manage to remain for longer periods in the "X" rated world, but after they reach the age of forty almost never appear naked, and only rarely appear in sexual intercourse."[1062] Women can almost never expect to hang on in any but minor roles after age thirty,[1063] although a few women have successfully moved into production and management roles.[1064] As for switching to legitimate acting, Mr. Margold has said bluntly, "if someone thinks he's going to get into mainstream through porn, he's deluding himself."[1065] Whether in films or traditional modeling, his observation seems to hold fast.[1066]
As for money, models in the sex industry collect none of the residuals on which professional actors expect to survive through lean years.[1067] One angry former model was quoted at the time she left the business as follows:
And they deserve it. Do you know what it's like to have somebody pay you five hundred dollars to do two sex scenes, considering the money he's gonna get back? If you want to know something, I've got nothing really to show for it.[1068]
Her experience seems common, and her current dilemma wrenching.
As a job, sexually-explicit modeling has dramatically serious defects-from poor working conditions to disease, drugs, economic insecurity, and exclusion from mainstream acting. Modeling, however, appears to have consequences for its participants that extend deeply into their personal lives as well. Limited as our inquiry could be with regard to the world of modeling in general-and to the personal lives of performers in particular-we would be remiss if we failed to take into account what evidence does exist. On the whole, we believe the evidence before us to be highly suggestive in this area-suggestive as much of the attitudes of others as of the feelings of the performers themselves.
A few of the performers in this field, to begin with, speak in glowing terms of the experience. One of them, a former "Pet of the Year" in Penthouse, described to us how her marriage had remained strong and happy after her selection for the honor and then during her subsequent career at the magazine in management positions.[1069] Another, speaking before a Senate subcommittee "not only for myself but for every woman that I know in the sex industry," declared:
We do not see ourselves as victims. We do not need to hide in the shelter of being somebody's victim. We accept responsibility for our own lives.[1070]
And a third related how he had maintained a happy marriage and fathered two children during his career adding that, in his words, "I've made the decision that I will abide by the incest taboo, completely."[1071]
Reassuring as these comments are, they stand in a clear minority. William Margold once again offered the most straightforward summation of what modeling means for the personal relationships of models:
Whenever I'm interviewing someone who wants to get into porn, I always ask them, "Do you have anybody that you will hurt by doing this?" It would be ideal if someone had no relatives-disenfranchised human being devoid of any past that would haunt them and any kind of present or future that they could destroy. If it's a man, he also better be single because, unless he's married to the most magnanimous of women, it will tear her insides Out.[1072]
He went on to point out its effects on the personal reputation of women involved.
And I'd like to point out that for a woman, there's even more of a stigma than for a man. She'll be called a prostitute and a whore and thought of as sleazy, cheap and slutty. And she has to understand that what she does now will haunt her the rest of her life.[1073]
Mr. Margold's view, bleak as it is, has the weight of his thirteen years' experience in the field behind it; it is, moreover, continually echoed in the testimony and public statements of others who have knowledge of the industry.
Personal relationships, to begin with, appear to be severely threatened by modeling in pornography. Romances as well as family ties are often strained or broken.[1074] One young man, who had been lured into making "adult" films at age seventeen, told us about his feelings after leaving modeling and entering a drug rehabilitation program:
I don't know, I feel scared to have a sexual relationship with a girl. I don't know what it's going to be like or if I am going to be too rough.[1075]
Candida Royalle, a major "star" (and now producer) in the industry, told Forum Magazine recently that after her marriage she had ended her performing because "once wed ... she couldn't quite bring herself to do the sex scenes."[1076] Even that may be of little avail: as one "X" rated film producer put it, "A man getting involved with an ex-porn star will always shove it back in her face."[1077]
What relationships do continue for models are often highly negative. Thus many female models live with highly abusive husbands or boyfriends, whose relationship to them is that of pimp to prostitute.[1078] Others report suffering rape[1079] or demands that they service agents or producers.[1080] Indeed, some may drift directly into "call girl" status.[1081]
I was never viewed as a human being.... Most people, right off the bat, assume I am a piece of meat, a porno star, a floozie.[1082]
"Adult" publications even those which are "soft core," view models as products.[1083] In the midst of that environment a young female performer said that she "just hated [herself] every day"[1084] and a young male told us it "made me feel worthless."[1085] As Andrea Dworkin has explained, that valuation is a central element of contemporary pornographic modeling.[1086] And it is a valuation we strongly reject.
In sum, then, we have found, within the admittedly severe limitations of the evidence, the following propositions to be generally true of commercial pornography's use of performers: (1) that they are normally young, previously abused, and financially strapped; (2) that on the job they find exploitative economic arrangements, extremely poor working conditions, serious health hazards, strong temptations to drug use, and little chance of career advancement; and (3) that in their personal lives they will often suffer substantial injuries to relationships, reputation, and self-image. We acknowledge that exceptions exist to all these findings, and we concede, as well, that extremely thorough investigation might prove one or more of them untrue. Unhappily the power to conduct such an investigation is not in our hands. And the industry itself, which of course knows the full truth of the matter, has shown little interest in sharing that knowledge with us. We are, therefore, left with the unattractive but firm obligation to make recommendations in this area based on what we in our limited way have been able to uncover.
The approach we propose in this area is a cautious but urgent one. Caution we believe to be required from the incomplete character of the evidence currently available. Urgency, however, arises from the extremely serious nature of the harms apparently being inflicted on many young and vulnerable people. Both of these interests will be best served, we believe, if federal and state governments initiate thorough investigations-by agencies or committees possessed of substantial resources and full subpoena powers-of the use of "models." Those investigations should, in our view, proceed from three related, but distinct perspectives: pornographic modeling as (1) a subset of prostitution; (2) a form of sex discrimination; and (3) an invasion of performers' personal rights. Briefly we will consider the parameters of each of these perspectives and possible concrete courses of action available under each.
It seems abundantly clear from the facts before us that the bulk of commercial pornographic modeling (that is, all performances which include actual sexual intercourse), quite simply is a form of prostitution. So much was directly asserted by representatives of prostitutes' organizations who testified before us,[1087] as well as representatives of law enforcement[1088] and effectively denied by no one. Every court which has examined the questions from this standpoint has agreed, reasoning that where persons are paid to have sex it is irrelevant that the act is for display to others.[1089] As prostitution is conduct which the state has a strong interest in regulating, the First Amendment does not preclude that regulation merely because it is labelled "speech" or is filmed.[1090] It is also readily apparent that the interests which have in the past most powerfully justified the state's concern over prostitution-exploitation of the young and the weak, prevention of diseaseare just as strongly implicated by pornographic "modeling."
If upon further study our equation of prostitution and "modeling" proves to be true, it is incumbent upon the federal government and the states to consider carefully how to respond. Some of our witnesses have in fact urged legalization of pornographic modeling, and of all prostitution, as a means of eliminating its clandestine character and allowing "sex workers" to improve the conditions under which they labor.[1091] Insofar as that proposal would permit the recruitment of men and women into prostitution, the promotion of prostitution, or the living on the avails of prostitution-all characteristics, so far as we can tell, of the producers and distributors of commercial pornography-it flies in the face of established international mores[1092] longstanding national policy,[1093] and simple good sense.[1094] We agree with the International Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, adopted by the General Assembly of the United Nations in 1949, that the State should punish any person who "procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person" or who "exploits the prostitution of another person, even with the consent of that person."[1095] Lifting sanctions against the "employer" seems no more attractive a solution with regard to exploitation in pornography than it would, for example, with regard to child or subminimum-wage labor. "Legalization," if extended to producers and others currently considered "panderers" under state laws, would only make it easier for them to persuade more vulnerable young people to participate in a world that seems to us inherently abusive.
With regard to penalties directed at models themselves, however, the argument for decriminalization seems much stronger, on several grounds. First, it is not uniform policy in the District of Columbia to make the simple act of prostitution (without accompanying "solicitation") a crime.[1096] Second, those who are misguided, desperate or frightened enough to turn to pornographic modeling are unlikely to be deterred by the relatively light sentences typically imposed on those convicted of prostitution.[1097] Third, models are often so badly harmed by their experience that the addition of criminal penalties to their suffering-which includes a never-ending fear that humiliating photographs or films will be publicly exhibited-may seem superfluous and cruel.[1098] Finally, fear of prosecution may make such models less likely to come forward and provide evidence against those who exploited them.[1099]
While we do not believe, therefore, that prostitution laws are a perfect weapon in every respect for protecting models from procurement and abuse, their application at least to producers and agents seem fully justified. The experience of Los Angeles, where pandering prosecutions and "red-light" nuisance abatement actions have been successfully brought by police and prosecutors, deserves careful study in other jurisdictions. There seems little warrant for a state or locality to tolerate the production of commercial pornography that is as exploitative as that discussed above unless its basic approach to prostitution itself is radically different from the national norm.
Quite apart from the use of pandering statutes, however, an approach that seems to us worthy of careful study is imposition of sanctions on any persons trafficking in products or materials which they know or have reason to know were manufactured or marketed through the use of persons engaging in prostitution.
Such legislation would parallel existing legislation which forbids trafficking in products manufactured through child labor or through certain oppressive adult labor practices.[1100] Because not directed specifically at speech,[1101] and because clearly grounded in legitimate governmental interest in controlling prostitution, it would seem likely to survive constitutional attack.[1102] Given the federal government's long commitment to use its powers to regulate interstate commerce to attack prostitution in every form, we are, indeed, somewhat surprised that such a proposal has not been seriously studied before now. Nevertheless, the idea is sufficiently novel and could affect so much commerce not directly within the purview of our charter that we merely offer it for consideration and debate.
Along similar lines we urge careful study by the Department of justice of the extent to which producers of sexually-explicit photographs, films, and video tapes are acting in violation of federal civil rights laws, and in particular of Title VII of the Civil Rights Act of 1964.[1103] That law provides, in pertinent part:
It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex.[1104]
This provision has been interpreted widely to protect employees from having to prostitute themselves to supervisors or submit themselves to sexual intercourse or harassment to keep their jobs.[1105] One court declared flatly, "An employer may not require sexual consideration from an employee as a quid pro quo for job benefits."[1106]
On its face this principle would seem to make illegal the requirements that a performer engage in sexual activity as a condition of his or her employment. There are, however, two limitations on its scope that are at least arguable relevant to production of pornography. The courts have ruled that sexual demands (1) must be "unwelcome,"[1107] and (2) must include disparate treatment of the sexes.[1108] The first of these limitations does not seem a serious one: the overwhelming factor motivating the sexual conduct of pornographic models is financial need, certainly not a desire to have sex with the partner assigned to him or her for the scene.[1109] The sexual act is thus in no way "welcome" in the sense we understand the law to exempt.[1110] With regard to the "disparate treatment": requirement, we note simply that women and men are normally paid different rates in the industry for the same sex acts,[1111] and that women in mainstream pornography are expected to engage in homosexual activity while men are forbidden to.[1112]
We therefore believe it likely that much of the commercial production of pornography runs afoul of Title VII, even considering the techical limitations on its reach. Further, we believe that Title VII embodies a principle that should not be strangled by technicalities: no one in this country should have to engage in actual sex to get or keep his or her job.[1113] To the extent that Title VII and comparable state statutes do not currently reflect that principle, we urge serious and rapid consideration of proposals to broaden their reach.
During the course of our review of the position of performers in pornography, we have encountered evidence that they suffer physical coercion, damage to health, serious economic exploitation, and virtually complete loss of reputation. The pornography which they helped create will live on to plague them long after they have extricated themselves from modeling. Its effects subject performers to long-term effects potentially worse than any other form of sexual abuse, a fact noted tellingly by Dr. Ulrich Schoettle in the context of child pornography.
Pornography is a graphic form of exhibitionism. Unlike prostitution where a degree of "privacy" exists during the sexual acts, pornography literally makes the child's body "available" for anyone willing to pay the price anywhere in the world.
The "privacy interests" of performers in pornography seem to us real and compelling[1114] while the value of the material itself is often indisputably minimal.
It, therefore, seems important for judges and lawmakers to carefully consider how performers may be protected from the unsavory characters who exploit them, and in particular what civil and equitable remedies performers may have in court. There has been disagreement in what we have heard over the current status of the law in this regard;[1115] we know only that they have been exceedingly rare.[1116] If new remedies are needed, as we are inclined to think they are, they should be framed in ways to encourage plaintiffs to come forward: perhaps by providing for treble damages in certain types of cases (such as coercion or fraud) and reasonable attorneys' fees.[1117]
We hope, too, that in studying the availability and desirability of such private remedies, courts and legislatures will be sensitive to the issue of "consent." Because of their youth, their economic desperation, and their troubled backgrounds, we submit that few performers are fully able to appreciate the meaning and the magnitude of their decision to engage in sexual performances-and throw away all control of the resulting material for the rest of their lives. Just as it is appropriate to provide consumers with extensive government protections against the consequences of their ignorance, so every adult needs special safeguards against making a decision which even the pornography industry's strongest booster admits "will haunt her the rest of her life."[1118]
Otherwise she may find that photography's freedom from time and space, so heartily welcomed by Bazin, has become her dungeon.
See, Hill-Link Minority Report, supra note 927, p. 457 (grounding dissent on need for "protection for public morality" rather than demonstrable individual "harms").
Few male centerfold discoveries are fashion model material. Carl Garrison and the select others who have put their clothes back on to forge a career all possess the requisite suit size-40 regular or thereabouts-as well as a special look and a special drive. On the other hand, the requirements for nude modeling, as one auditioner for a male flesh magazine explains, are "body, face, cock," not necessarily in that order.
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