Porn, Rape and Justice - The Libertarian Alliance

www.libertarian-alliance.org.ukA series of New and Archived articles from the WebsiteLA-11 - 15 th April 2001Porn, Rapeand Justiceby: David Ramsay Steele(An answer to a letter fromRoderick Moore)A man views somepornographic material.Subsequently he goes out andcommits rape. I hold that heshould be punished. Anotherman never views anypornographic material, butwithout its assistance he takesit into his head to rapesomeone, and does it. I holdthat he should be punished.Assuming the attendant circumstancesare the same (injuries to the victim andso forth), I hold that the punishmentshould be the same. In other words, ifanyone commits rape he should bepunished for the rape and not forsomething he did earlier, even though theearlier action predisposed him to commitrape. Similarly, if a man spends themorning watching the women whohappen to pass by his window, and thencommits rape, he should be punished forcommitting rape, and the fact that hespent the morning watching femalepedestrians should not modify thetreatment he receives, even though thatfact did predispose him to commit thecrime. Or, if a woman spends a lot oftime looking through catalogues andsubsequently steals from a shop, sheshould be punished for stealing, not forlooking through catalogues.I use the word 'punished' in the broadsense, to refer to anything which is doneto a person regardless of his consentbecause he has broken a rule, and notnecessarily to imply any element ofretribution. In my view 'punishment'should be based oncompulsory restitution bythe aggressor to thevictim.I take it that so farRoderick Moore is inagreement, only hewould add that when theman viewed pornographyand committed rape, heshould perhaps bepunished for two separateoffences, rape andpornography. I say'perhaps' because Roderick Moore hasnot committed himself to the view thatpornography should be criminalized. Heargues that if it were ever demonstratedthat pornography predisposed to rape,then pornography should be outlawed.He thinks that this has not yet beendemonstrated, so presumably for the timebeing he is opposed to any furthermeasures against pornography, andsupports the repeal of those restrictionswhich exist.Suppose that psychologists did come tothe conclusion that pornographypredisposed to rape. A man views somepornography. Subsequently he commitsno rape, nor does he hurt anyone in anyway. Roderick Moore recommends thatthis man be punished. Why? Becausealthough he has not harmed anyone, hehas joined a class of people statisticallymore likely to commit rape. The peopleThis article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 1 of 9

The Libertarian Alliance is an independent, non-party group, with a shared desire to work for a free society.who supplied him with the pornographicmaterial will also be punished, thoughthey too have not raped or otherwiseattacked anyone.In case Moore intends to take thisdiscussion any further, it would be agreat help if he committed himselfdefinitely on the following questions.Suppose it were demonstrated thatpeople who consumed pornography wereless likely to commit rape, shouldeveryone he compelled to consumepornography? Suppose that meat-eatingpredisposed to violent assault, shouldmeat-eating he prohibited? Suppose thatwatching football predisposed toviolence, should watching football heforbidden? Suppose that a particularreligion predisposed to crime, should thatreligion be outlawed? Since men are farmore likely to commit crimes ofaggression than women, should men beeliminated from the species, as describedin Edmund Cooper's novel, Who NeedsMen? If it were shown that there was agenetic element in the causation ofcrimes of violence, should all convictedof these crimes be automaticallysterilized? If it were shown thatconsumption of any drug or food (suchas alcohol or sugar) predisposed toaggression, should that substance beoutlawed? If there were found to be acorrelation between aggression andcertain hormone levels or other bodilystates, should chemical or surgical'treatment' be compulsory for thoseindividuals with those states? (Or inother words, should wilful persistencewith high hormone levels, when themeans are available for 'correction', he acrime?) If it were found that the sight ofbra-less women wearing tight sweatersraised the incidence of rape, should thisattire he banned? (Perhaps even greatereffect could be achieved by enforcing thewearing of veils and shapeless robes,Khomeini-style). If attractive shopwindows increase the occurrence ofshoplifting, should dull shop windows hecompulsory? Since implementation ofthe doctrines of bolshevism, fascism,nationalism and social democracy hasresulted in enormous 'harm', faroutweighing a slight increase in thefrequency of rape, should disseminationof these doctrines he banned?Another example of 'causation' whichRoderick Moore might like to consider isthe example of a young man driving ahigh-powered sports car. There is nodoubt that such a person is considerablymore likely to injure someone in a roadaccident than the average motorist,although a particular young man withsuch a car might be the safest driver onthe roads (just as a particular consumerof pornography might be the least likelyperson in all the world to attack anyone).Does it follow that young men should beforbidden to drive high-powered sportscars, or to drive at all? In a free market.and in present-day circumstances, such ayoung man has to pay a higher insurancepremium. It seems that in RoderickMoore's world, all cases of differentialinsurance premiums would have todisappear, at least where there was anyelement of choice on the part of theclient. Those formerly liable for higherpremiums would simply be forbidden toengage in the activities in question. Theinsurance companies can supplyRoderick Moore with a long list ofactivities statistically correlated with'harm', and he can expand his horizonsby seeking to have them all banned.Maybe Mr. Moore is different, but mostpersecutors of pornography do not seemvery interested in alternative kinds of'harmful' cultural influences. At the timeof the 'Yorkshire Ripper' killings, mobsof feminist fanatics demonstratedaggressively outside porn theatres in theNorth of England. When Sutcliffe wascaught, it turned out that he was notespecially influenced by porn, but veryheavily influenced by Christianity. Thedemonstrators did not transfer theirattentions to churches.This article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 2 of 9

The Libertarian Alliance is an independent, non-party group, with a shared desire to work for a free society.Roderick Moore's justification for antipornographylegislation does not apply tosome sections of the population. Take aparalysed or severely crippled person,lacking the physical strength or mobilityto force anyone else to submit. Moorecould have not objection to permittingsuch a person to consume pornography.However, the list could he extended:individuals shortly to die, lighthousekeepers or those set on lone voyages ofexploration in space and why not theentire female sex? Furthermore, it mightbe that consumption of pornographyincreased the likelihood of rape, but thatfurther statistical work showed somesub-classes of porn consumers to beimmune from this effect, or to display theopposite effect. The young man with thehigh-powered sports car has willy-nillyto pay a higher premium because it is toocostly for the insurance companies to getfigures for all the sub-classes. He has nolegitimate gripe against the companies,because he is not entitled to insurance.Insurance companies may, in alibertarian society, discriminate amongclients on any grounds at all: commercialpressures ensure that they will usuallydiscriminate on grounds of risk, insofaras the required information is cheapenough. But under Moore's Law, theperson being prosecuted for the crime ofconsuming porn could presumably payfor the statistical research needed toestablish his membership of a sub-classwith zero or negative correlation,whereupon the action would hewithdrawn, and the prosecution sent thebill for the research. (If for his sub-classpornography consumption werenegatively correlated with rape, thensubsequently members of that sub-classwould be liable to punishment if they didnot consume porn).AMBIGUOUS ARGUMENTI raised some of these questions in myfirst reply to Moore, but he has not reallyfaced up to them. The only reasonpresented by Moore for outlawingpornography is that it might predisposepeople to commit rape, admittedlywithout determining that any one of themcommits rape. It is quite easy to showthat thousands of innocent activities maywell predispose people to commit crimesof aggression. Will Moore now swallowthe totalitarian hook, and extend coercivecontrol 'over everyone's lives, governingtheir recreations and lifestyles in theminutest degree? Or will he flinch fromthis conclusion, and in that case will heagree that prohibition of pornographycannot be justified, or will he seek tojustify its prohibition on altogetherdifferent grounds, the nature of which hehas yet to disclose?The first two paragraphs of his secondcontribution (above) seem to provide asort of answer, but actually glide over theissue. My remarks about "changingconsciousness" were intended toencompass changes in any alleged"unconscious part" of the mind. I did notmention "free will", and the "strongelement of chance and uncertainty" is notcontested by Moore. No one disputes thatthe majority of consumers ofpornography never commit rape (just asthe majority of window shoppers do notbecome shop lifters), and that under theregime contemplated by Roderick Moorethese innocents would be punishedbecause of rapes they had nevercommitted nor had a hand in committing,simply because the minority of rapistsconstituted a slightly larger percentage ofthe class of pornography-consumers thanof the class of pornography abstainers.Nor is it seriously open to question thatsome people will never commit rape, nomatter how much pornography theymight consume.Moore contends that pornography can be"distinguished" from the other cases, andthat it effects its influence in a different'way'. But that is not the point. Whatmatters for Moore's stated argument arethe results. Does pornography makepeople more likely to commit rape? DoesThis article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 3 of 9

The Libertarian Alliance is an independent, non-party group, with a shared desire to work for a free society.being a Roman Catholic make someonemore likely to become a criminal? Doeswatching football make people morelikely to attack other people in the street?Does beer make people more likely toget into fights? As a matter of fact, theprima facie case for an affirmativeanswer to the last three questions is quitestrong, whereas Moore volunteers thatthe present verdict on the first questionmust be 'not proven'. The 'way' in whichthese practices bring about the statisticalresults has no bearing on Moore'sargument as he has stated it.Moore's reasoning in these first twoparagraphs is ambiguous. It could mean(a) that pornography works in adistinctive 'way', therefore the other casescited by Steele are unlikely to be true, or(b) that it is not sufficient for somepastime to increase the likelihood ofaggression for Moore to advocate itsforcible suppression; the pastime mustaccomplish this in a particular 'way'.Now (a) is false, because these othercases are manifestly quite plausible, andMoore has not disputed any of them. Buteven if they were unlikely, it would beinteresting to hear whether Mooreaccepted the consistent conclusion inthose hypothetical cases. As for (b), I amstruck by Moore's dragging in 'free will',which is immaterial to his first argumentor my reply. It seems that Moore mightnow be arguing that influences whichpredispose to aggression ought not to beoutlawed, unless they do so byinterfering with 'free will', and thatpornography interferes with free willwhilst football does not. This wouldintroduce a new element into Moore'sargument. No longer would resulting'harm' be a sufficient reason forprohibition, although the way he hasexpressed him self suggests thateverything hangs upon consequentialharm and naught else.I find the reference to "basic humaninstincts very deeply rooted in theprimitive parts of the brain" quiteincredible, and none the less so for beingquoted from a book. Moore disclaimsthat it means that someone who has seena porno-flic is helpless to prevent himselfcommitting rape, but if it does not meanthat, exactly what does it mean? Isuppose that someone with a history ofsnatch-and-run raids on jewellers' shops,who intends to give up this occupationand turn over a new leaf, might be illadvised to amuse himself by hangingaround jewellers' shops fantasising aboutthe beautiful raids he could carry off.The argument attributed to Eysenck andNias incidentally exhibits a verycommon fallacy: the assumption which ismost innate is also that which is mostpowerful, basic or physical. The idea thatculture modifies our more deliberateintellectual processes, leaving unaltered aseething mass of unconscious "instincts"is false. Culture modifies physiology,and some of our most basic, spontaneousand irresistible urges are due to what wehave learned.I did not suggest that the application ofRoderick Moore's definition would raise"insuperable" problems, but merely thatit would conform equally well to hisdescription of our present "chaotic antipornographylaws, with their subjectiveand emotionally loaded terminology". Hehas said nothing to refute this. ConsiderThe Romans in Britain, Delta of’ Venus,The Story of O, Lolita, Last Exit fromBrooklyn, and Lady Chatterly’s Lover.Now, one by one, Mr Moore, are these"material produced for entertainment asan end in itself", lacking "communicativecontent"? Or are they "made lively andinteresting as a means of conveying ideasmore effectively"? No shilly-shallying;yes or no! Come now, is it really sosimple?No entertainment "lacks communicativecontent" and it is impossible tomanufacture a piece of entertainingnarrative which does not communicatefacts and value judgements. There is aThis article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 4 of 9

The Libertarian Alliance is an independent, non-party group, with a shared desire to work for a free society.the broad sense of being able to do whathe wishes. Some of the slaves in theAmerican South were better fed, betterhoused and generally more prosperousand secure than some of the wageworkers in the North, that is, they were'more free' in the sense that variousconstraints on their actions were less. Yetthe poorest wage-workers weresubstantially free, and the 'richest' slavesnot free at all. Consider a country whichis suddenly afflicted by frequent showersof deadly meteorites, randomly killingand maiming people. People wouldbecome less secure, but they would notnecessarily be any less free. Nor doesliberty mean minimum likelihood thatone's rights will be infringed. Consider acountry where some trace elementdisappears from the soil, causing peopleto become more short-tempered, andleading to a higher incidence of deathsand injuries from violent quarrels. Therisk of being attacked rises, but thesociety is not necessarily any less free.Opponents of liberty often confusefreedom in the two senses. They thinkthey have made a profound observationwhen they say that in the free marketindividuals are 'free to starve'. Theconsequences of liberty for security andprosperity are relevant to decidingwhether we want liberty. But risk isinherent in life, and there will always beinnumerable kinds of risk which can bediminished by curtailing liberty.to attack people who consumepornography but have never hurt anyone.SUSPENSION OF FREE WILLIf violations or rights are punished andthus deterred, it is left to individuals tochoose for themselves how they will runtheir lives within that constraint. Ifreading James Bond stories makespeople more likely to commit murder,then people who read James Bond storiesdo so at the risk of committing murderand thereby receiving punishment forthis violation. But what of cases wherefreedom of choice is over-ridden?It is sometimes claimed that someoneunder hypnosis can be given aninstruction, activated by some signalafter emerging from hypnosis, which thehypnotic subject will then be incapableof resisting. For instance, A could give Bthe command to strangle C upon hearingthe world "adhesive". B emerges fromhypnosis, and a few days later Atelephones B and says: "My Ming vase isbroken. Do you know a good adhesive?"B has forgotten all about the hypnosisand the order, but nonethelessimmediately strangles C, and could notpossibly do otherwise. A hypnotist, inother words, is a wizard who can putspells on people. This sounds like a tallstory to me, but suppose that it is true, Ido not think that it poses any difficultyfor libertarian justice.Roderick Moore seems to interpret "theprinciple of freedom from sexual assault"to mean the desirability of anythingwhich diminishes the likelihood ofsexual assault. If all males had theirgenitals and right arms amputated at theage of five, that would greatly diminishthe likelihood of sexual assault, thoughI'm afraid it would be too modest ameasure for some feminists. Thefundamental principle is the prohibitionof aggression. But it is aggression toamputate people's arms and genitalswithout their consent, and it is aggressionFirst, take the case where A puts B underhypnosis without B's knowledge orconsent. (Assume this is possible). In thatcase, morally and legally, it is A who hasstrangled C, B was just an instrument,and is guiltless. In fact B is also a victim,and A is more culpable than if he hadstrangled C with his own hands, becausein addition to that offence of murder, Ais also guilty of an offence against B.Now, take the case where B goes to Aand agrees to be put under hypnosis as anaid to abandoning the smoking habit. Asays: "Upon waking, all desire forThis article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 6 of 9

The Libertarian Alliance is an independent, non-party group, with a shared desire to work for a free society.cigarettes will have vanished. Oh, and bythe way, when you hear the word'adhesive' you will go up to C, put yourhands round his neck and throttle him.Now wake up. That will be two hundredpounds please". This is basically, like theprevious example, only A is nowadditionally guilty of defrauding B of£200.Next consider the case where B goes toA with the intention of being hypnotisedto kill C. (Suppose that B thinks he willdo the killing more efficiently if he ishypnotised). In that case, B is fullyguilty. The fact that he 'could not helphimself' at the time of the killing does notexonerate him. His visit to A is part ofhis preparation for the murder, like doingwrist exercises to improve his stranglingability. A is also culpable of assisting Bto commit the murder much as if he hadknowingly sold B a murder weapon.None of this would be altered inprinciple if hypnotic suggestion workedonly some of the time. Even if it workedonly once in a thousand, A and B wouldstill be culpable if that one in a thousandshot materialised. (If the hypnosis doesnot work, and no killing occurs, it isquestionable whether there could beanything punishable in a libertariansociety. Be that as it may, it seems thatthe matter should be treated as analogousto shooting at someone with a revolver.with only one of the chambers loaded).If a prospective rapist deliberately wentto see some pornography, intending thatit would get his steam up so that hewould he a more effective rapist, thepornography would be part of hispreparation for the rape. Arguably,someone who provided facilities fortarget practice knowing that it waspreparation for an assassination would beimplicated as an accessory in the murder,and someone providing pornographyknowing that it was preparation for rapewould be implicated in the rape. It isimmaterial here whether the 'preparation'suspended the subsequent operation of'free will' or not. The legal doctrine ofresponsibility should extend back to thepoint of decision. It is the individual'sresponsibility to avoid courses of actionwhich will subsequently lead to a declinein the efficacy of his 'free will'. Someoneliable to strike at others if he loses histemper is responsible for seeing that hedoes not lose his temper in the companyof others. It is a matter of indifferencewhether, in the second or two beforestriking out, he was capable ofcontrolling himself. Though that isinteresting philosophically, it ought to beof no interest legally. Recent cases inBritain where women were let off murderand other offences because they sufferedfrom pre-menstrual tension are grossmiscarriages of justice. A woman knowswhat pre-menstrual tension is, and it isup to her to arrange her affairs so that sheavoids situations likely to lead to murder.If necessary, she should live alone eitherall the time or several days out of every28. If she does not, she is responsible forthe consequences. (Even moreremarkable was the case in San Franciscoa couple of years ago. A member of thecity council killed another councilmanand the Mayor, in a carefully plannedway. His defence was that he was "highon sugar", having eaten a lot of "junkfood". The jury accepted that defenceand the killer was acquitted of murder,though convicted on a lesser charge).Now let us return to the hypnosisexample and take the final step whichmakes it closely analogous with Moore'sview of pornography, by removing anyintent to cause murder on the parts ofboth hypnotist and subject. Suppose thatit is just an unfortunate side effect ofhypnosis as an aid to stopping smokingthat it causes a suspension of free willand an uncontrollable impulse to commitmurder, a random once in a thousandtimes. Neither the hypnotist nor his clientwant murder to result. What then? Incases where no murder results, there isno offence, and neither hypnotist norclient are punishable. In the case where aThis article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 7 of 9

The Libertarian Alliance is an independent, non-party group, with a shared desire to work for a free society.murder does result, the subject ispunishable, but not the hypnotist. Aknown risk was incurred, and the killer isresponsible.Even if viewing pornography makes onein a thousand individuals incapable ofresisting the urge to rape, this is a risk theconsumer has to accept. Only in the casewhere the porn vendor knew about hiseffect, the porn consumer could notreasonably be expected to know about it,and the porn vendor concealed it, couldany responsibility for the rape attach tothe vendor. In that case the rapist wouldbe able to bring an action against thevendor, as well as the rape victim againstthe rapist. It is analogous to the casewhere a motorist injures a pedestrian, themotorist suffering drowsiness due to amedicine which the physician haddeclared to be free of side-effects.The examples of the porn-controlledrapist and the hypnosis-controlledstrangler are peculiar because at the timeof the aggressive acts, there existed adefinite intention to commit them, yet itis argued that the actors could not helpthemselves, that their actions were notwilful, and perhaps even not 'actions'.The common theory is that an intentionalact is a wilful act, and I believe that thistheory is true. But I do not think thatjustice depends upon acceptance of thiscontroversial position in philosophicalpsychology. Supposing that the humanmind was unlike my view of it, and likeRoderick Moore's view of it, or J.K.Galbraith's, I would hold that in somecases legal responsibility should beimputed despite the absence ofpsychological responsibility at the timeof the offence.DOES PORN ENCOURAGE RAPE?Even if pornography could suspend freewill, I do not think a libertarian societycould countenance makingpornographers in general liable foractions arising out of rape. In conclusion,though, I cannot refrain from sayingsomething about the supposed linksbetween pornography and rape. "Pornography" is a world of infinitevariety. There are page three girls and theMiss World contest. There are portrayalsof people swyving in all positions,combinations and settings. There arenumerous categories of porn forindividuals with specialised tastes. Butmost pornography is consumed by men,and most deals with quite 'normal'heterosexual behaviour without anysuggestion of violence. Pornographyreflects fairly accurately the distributionof sexual preferences in the malepopulation. It does not present anyparticular "view" of sex different to thatprevailing generally. Roderick Mooresuggests that it might "encourage men toview sex in a dehumanised andimpersonal way". But there is no reasonwhy pornography should do that, andmost of it does not. Roderick Mooremight retort that the very notion ofenjoying pornography comes under thatdescription, because the consumer ofpornography is interested only in thesexual thrill gained from contemplationof images, and not in whether, forexample, the woman depicted groaningin the throes of an orgasm collectsstamps or likes Ibsen. If that is what ismeant by dehumanised and impersonalsex, than I am afraid that this is merely adisapproving description of male sex.The human male sex drive is typicallyvisually-oriented, easily triggered,indiscriminate, roving and predatory. It isconcerned with images quite dissociatedfrom any intimate acquaintance with thelife and thoughts of the sex object. Theonly way you will ever change that is bygenetic engineering.If pornography does dehumanise anddepersonalise sex, then salvation fromrape is at hand. All sex shops sellinflatable, life-sized, though somewhatcrude and unlifelike, replicas of women.Candidate rapists will instead purchaseThis article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 8 of 9

The Libertarian Alliance is an independent, non-party group, with a shared desire to work for a free society.these simulacra, which will be enjoyableat much lower cost than rape. The rapeincidence should decline. In case menhave not been encouraged sufficiently toview sex in a dehumanised andimpersonal way, the simulacra couldeasily be programmed to discourse onphilately and Ibsen, not very well, butbetter than most women. Can rape be cutin this way? I suspect not. As Karl Krauspointed out, making love to anotherperson is a poor substitute formasturbation. The objective of sexuallove is a certain kind of interaction withanother intelligent consciousness.Physical sensations are merelyinstruments. From the standpoint ofphysical sensations as ends inthemselves, the other person is liable tobe a hindrance. It seems to me that mostrapes are attempts at love-making ratherthan masturbation: the presence ofanother mind is crucial. One no moremakes love in order to experiencephysical sensations than one climbs amountain in order to exercise one'smuscles. So a simulacrum would not do,if the human partner knew her to be asimulacrum, at least until a simulacrumwere developed to the android levelenvisioned by the late and grievouslylamented Philip K. Dick, with a genuinemind and emotions of her own.Acquiring these, however, she wouldacquire rights.Although in one sense dehumanised sexis nothing but male human sex, andineradicable, in another sense it mayprove impossible to dehumanise sex.From the Darwinian point of view it iseasy to see how the demand for contactwith another mind would be adaptive(vetoing diversion of the sex drive ontoobjects other than living humans), just asinsistence on an affinity with the precisecontents of that mind (philately andIbsen) would not have been conducive toreproductive success.somebody else, without that person'sconsent. It is not a sickness, any morethan robbing banks is a sickness. Like allcrime, it is rational pursuit of a goal.There is nothing unnatural or inhumanabout it; very likely the human specieswould have died out several times overbut for rape. In a civilised and highlypopulated world, this biological functionhas become unnecessary. Rape is a formof aggression which frequently imposesterrible mental suffering upon the victim.It is up to us to organise society in such away as to discourage rape by raising itscosts to the rapist.The economic relations betweenpornography and rape are complex. Onthe one hand, pornography is a substitutefor rape. More effective substitutes areopportunities for voluntary sex withpartners, such as prostitution, swingingsingles clubs and marriage. On the otherhand, I certainly would not rule out thepossibility that pornography predisposedto rape, by exciting people's sexualappetites. Anything that stimulatesindividuals' sexual urges will ceterisparibus increase rape. Supposing thatpoor diet diminished the sexual drive, animprovement in diet would increase theincidence of rape. Yet it is possible thatpornography might also exert acountervailing influence, by making iteasier for the sexually hungry person toengage in some of the non-aggressivesubstitutes for rape. It is also possiblethat pornography might have varyingeffects on different sections of the malepopulation. There are some simpleempirical tests that could easily becarried out. For instance: does theincidence of rape increase during thehours following the broadcasting of theMiss World Contest?Rape is theft of private property. It istaking what rightfully belongs toThis article is written by David Ramsay SteeleFor further details please visit www.libertarian-alliance.org.ukLA-11.pdf Page 9 of 9