Dept. of Miscellaneous Follow-Ups
In comments to the "rape culture" post, Avram offers a grand synthesis of recent themes:
This reminds me: Remember that BSG post a few days back in which you mentioned status work, Jim? Did you notice how much the markers of high status (maintain eye contact, take up space, invade partner’s space, stand tall) resemble a list of things a man is expected to do when flirting, or to appear attractive to women? While the markers of low status (short eye contact then look away, tilt head while talking, touch face and hair, giggle) resemble classic female flirting cues?
Um, no I didn’t? But, good point!
In the LP convention thread, jkc declares:
Absolute NO to Mary Ruwart. Anyone who can’t forcefully deny the legitimacy of child pornography needs to be kept as far away as possible from anything called “libertarian.” That’s not the publicity we need. She could do real damage.
I agree. For me the analogy between pornography prohibition and child-pornography prohibition breaks down because child pornography involves children. Same as any attempt to transfer the arguments for the legalization of adult prostitution to child prostitution. One involves people society considers capable of informed consent and the other does not.
There are all kinds of problems that exist or can creep into the legal strictures against child pornography and child prostitution: garden-variety civil liberties violations regarding standards of evidence; setting penalties so high it incents perpetrators to kill their victims because a live witness is greater jeopardy than a corpse. There’s a real argument about whether child porn involving artistic renditions "should" carry the same penalties as work depicting real children. But these issues are a whole order of magnitude less than arguing that people should be free to make and consume pornography involving children.
I realize there’s a "children’s rights" faction of libertarianism that argues that children should not be legally distinct from adults. But to the extent that outlook leads you to favor legalizing child porn made with child subjects, it should encourage you to check your premises. As we all know, babies are stupid, and parents know that most of them only gradually get smarter.
Even the harm-reduction argument seems suspect. The commonest prohibition apologetic is, "If we legalize X, more people will X." In the case of drugs and adult prostitution, we can respond that we already have quite a lot of X, thank you. Whatever marginal increase in activity we’d get from legalization, we’d get a lot more relief for the already existing business: milder drugs replacing hard drugs; existing sex workers enjoying contract enforcement and lawful protection from on-the-job violence. But scare stories aside, there’s relatively little child pornography today. The marginal increase in production from legalization could be large in percentage terms. So you could end with a net worsening of welfare.
Beyond that, in terms of pragmatic politics, the legality of child porn is about the millionth thing on the list of top million priorities any liberation program worthy of the name should have, and the billionth thing on the list of top million (sic) things a political party trying to build its identity and following needs to focus on.
Comment by Micha Ghertner —
May 20, 2008 @ 5:54 pm
Jim,
I think you (and by extension, the people you are quoting) are being really unfair to Ruwart, for all the reasons Roderick Long gives here.
Look, Ruwart’s comments were taken out of context. Now, one can criticize a public figure/political candidate for speaking (and writing) in such a way that one’s comments are likely or at risk of being taken at of context, but the only alternative then is to speak only in soundbites, where nothing of actual substance is ever said.
If libertarians primary and overriding concern is getting elected without any risk of scaring the public, then I agree: stay as far the hell away from people like Ruwart as possible. By even agreeing to analyze and address issues surrounding age of consent, Ruwart risks courting controversy. The only way to avoid that possibility is to refuse to discuss difficult issues; most politicians choose this safer route.
But if our concern as libertarians is not merely to attain political power, but to educate and improve the quality of political discussion, then there is no getting around the fact that in depth discussions do not always make for safe soundbites.
If libertarians are content with letting anyone and everyone get away with using “for the children” as a catch-all excuse, because challenging that rationale means risking being portrayed as “not for the children,” then so much the worse for libertarianism.
Comment by Nell —
May 20, 2008 @ 9:44 pm
Micha Gertner: If libertarians are content with letting anyone and everyone get away with using “for the children†as a catch-all excuse, because challenging that rationale means risking being portrayed as “not for the children,â€
Jim is not using “for the children” as a catch-all excuse; he is explicating a particular case — a case in which applying libertarian arguments for pornography to child pornography has a great potential to harm children.
Comment by Mona —
May 21, 2008 @ 1:40 am
Nell sez:
Exactly. Children are directly victimized and sexually assaulted in porn involving real kids. An unconscious woman cannot give consent to sex, and having intercourse with her — whether she is passed-out drunk or under medical sedation — is rape. She cannot consent, and neither can a child.
No pre-pubescent child raised in anything like a normal household understands sex and is able to consent to it — certainly 5-year-olds cannot under all circumstances. Any “libertarian” argument to the opposite is absurd.
This is not about crying “for the children” vis-a-vis some law probibiting consensual activity for adults, because it is directly about children.
Comment by Thomas L. Knapp —
May 21, 2008 @ 2:20 am
Here’s (one of) the problem(s):
What the hell do you mean when you say “child?”
What the state means when it says child is: “We have drawn a number out of a hat. Certain activities shall now be arbitrarily and capriciously declared illegal if they involve individuals whose age is less than this randomly drawn number.”
The notion that everyone under age X, where X is “a number within the currently fashionable range” (Illinois raised its female age of consent in the late 19th century … from 10 to 14) is incompetent to consent to — for example — sex or participation in the production or pornography is absurd on its face, as is the notion that everyone over X is competent to do so.
If someone is not competent to meaningfully consent to these activities, then by definition imposing those activities on him or her is rape, assault, etc. … REGARDLESS OF THE PERSON’S AGE.
If someone IS competent to meaningfully consent to these activities, then by definition that person is not a child … REGARDLESS OF HIS OR HER AGE.
So, instead of legislators draw numbers out of hats and patting ourselves on the back for having “protected the children” when we’ve done no such thing, how about returning to presumption of innocence and prosecutors having to actually prove their damn cases to the satisfaction of juries?
Enforcing age of consent laws and child pornography laws has largely become a substitute for prosecuting real crimes … even more ridiculous and counterproductive than “sting” operations which result in people being arrested for thinking about having sex with non-existent children.
Comment by Micha Ghertner —
May 21, 2008 @ 12:56 pm
Guys,
It’s called an ANALOGY. I know Jim isn’t using “for the children†as a catch-all excuse. My point is that in both cases, it is made impossible to take an opposing or even slightly more complex position because doing so risks being portrayed as “not for the children.” This leads to overly simplistic political rhetoric, soundbites, and fearmongering.
Except this is precisely what’s at issue here. You are essentially saying that to even talk about child pornography is to cause harm to children. This immediately shuts off any form of intelligent analysis at the outset – the same way that “for the children” justifications always do.
Again, no one, including Ruwart, is defending coercive child pornography. Rather, she is pointing out that the central issue here is not “child” but “ability to consent” and one does not go from one category to another over night.
Comment by b-psycho —
May 21, 2008 @ 3:55 pm
Knapp has a good point about the age of consent rules. For the most part, the reason we have those kind of rules seems to be that a more direct enforcement — say, determining by IQ whether someone is mentally capable of deciding for themselves — is not only unfeasible on its face but inherently so nanny-state-ish that even most nanny-staters would never openly support it. Instead, we just assume that an average of people before age X tend to not be mature enough, and establish the cutoff point there.
I think the problem with Ruwart isn’t that she considers this, but that she phrases it in a way where all anyone hears is “blahblahkidshavingsexblah”, and that this is, like Jim says, the textbook definition of Not That Important politically speaking. I’m not one anybody would say is particularly pro-kid, but even I’ve met some that if there were a “maturity waver” of some sort I’d say they deserved one. Such a distinction is just, currently, more hassle than we’re willing to put up with, and barring a huge change in that, this is an issue that’s going to be floating in “eh, close enough” territory long past our time here.
Comment by Micha Ghertner —
May 22, 2008 @ 11:28 am
b-psycho understands the problem. Though I disagree that an alternative, case-by-case focused system would be any less feasible or any more nanny-statish. There is already going to be a trial in any case; the question is which direction the burden of proof falls and what sort of evidence is deemed exculpatory.
It’s ironic that those most concerned with the welfare (and welfare includes freedom) of children are systematically barred from getting their point across by the self-proclaimed Protectors of Children, who won’t let a word in edgewise. If you truly are concerned with children’s wellbeing, and not just with winning elections, then you should be willing to discuss the subject.
Comment by Mona —
May 23, 2008 @ 4:51 pm
Thomas Knapp, you raise a good point and one I largely agree with. I advocate that age of consent be set at when human beings hit the age of puberty, i.e., approximately 13. (Tho I’m willing to entertain a two-tiered approach in which 13-15 can only consent to sex with a person no more than, say, ten years older than they are.)
But I would not describe it as arbitrary to say that certainly ten and below are and should be jail bait, except for peers. (That is, a ten year-old-playing doctor with a 9-year-old is not rape.)
However, child porn that depicts actual children — that is, pre-pubescents — should be criminal. Oh I suppose one niggle around the edges as to whether the age of consent should be 12, 13, 14 or 15. But anyone who tho thinks 2-10 isn’t “child,” is nuts. Or, a member of an ancient culture or a current one that does not share our Enlightenment values.
Comment by DLB —
May 23, 2008 @ 6:37 pm
I have to disagree with you, Jim. Porn ain’t what is used to be. Most of what could legally be called “child pornography” today is actually made by 14-17 year olds for others in their age range. The internet is absolutely flooded with pictures of half-nude teenage girls photographing themselves in front of the bathroom mirror for an internet boyfriend half-way across the country. Thanks largely to the internet and cheap digital cameras, our current generation of teenagers is much more familiar with pornography, and much more open about producing it themselves.
Would you argue that a 16 year old who makes nude pictures of herself for her boyfriend is producing child pornography? That her boyfriend is a criminal for possessing them? And if they break up, and her angry ex-boyfriend posts the pictures on an image forum in revenge?