17 December 2014

Engagements with Normative Porn Law

Engaging with legal policy once seemed ‘easy’. It’s almost impossible to make a legal mistake simply because although one is (hopefully) grounded in positive law, one actually deals with the normative. Not only does that make it entirely different from the contentious or advisory matter where missing that one stray notification or one piece of case law can have almost immediate and unpleasant consequences for one’s clients but it also makes oneself little more than yet another conversationalist in a discussion of ideas about what should be, a discussion where each idea is often more outlandish than the next. And, of course, living (or practising law) in the world of possibility (rather than that of fact) can diminish fear of the consequences of having missed a vital detail.

Legal mistakes, though, I’m learning are the least challenging issues to contend with when one discusses normative law. Normative law is not, as I’d once imagined of content law, non-emotional. It is involved, and can invade the personal in ways one might not have anticipated. When it comes to normative content law, I’ve spent much of 2014 looking at pornography in the context of free speech, the reporting of VAW, and the curtailment of online abuse — it’s been a long year which, ideally, I’d prefer to forget. They’re all issues I’ve dealt with both in professional and personal arenas, and would have preferred not to revisit.

Over the course of 2014, I’ve lost ‘friends’ because I haven’t tempered, or been able to temper, expressions of the horror I’ve felt in response to some of the legal proposals I’ve heard. I haven’t understood how it is possible for people to often feel confident of opining on issues which involve human experience that they haven’t had the slightest contact with themselves. And I’ve had trouble responding to those opinions (which are based upon nothing but, possibly, a citation to an arbitrary law review article) with anything but the deepest scorn especially when they’ve been presented as being more ‘objective’ and more valuable than the ‘subjective’ opinions of those who have had some experience with the issues involved. Because it’s hard to see how the opinions of the patently clueless can legitimately override the opinions of those who are not.

I’ve also wondered where the voices of those who are affected by the issues involved have disappeared when it comes to legal policy discussions in India. I’ve seen no shortage of people —men, mainly— talking about the free speech right to access pornography, their right. I cannot remember having seen men or women who feature in pornography being asked for their opinions although I have been asked what my ‘locus’ to speak on the subject is and whether I’m a ‘porno actress’ myself. I’ve decided that I will run an appraising eye over the next man who asks me that question and inform him that while I could be one, he probably couldn’t — not one man who’s asked me inconvenient and sexist questions has ever been even minimally aesthetically appealing to my eye.

I’ve been bored silly learning about the endless opinions of porn consumers to the exclusion of the opinions of those who feature in porn. I’ve heard from men more times than I have kept count of that they watch porn and that they themselves do not rape which, apparently, makes the idea that porn could cause rape nonsensical even though studies on the subject do not arrive at a consensus. I’ve also heard far too many men claim that they can’t differentiate between filmed-rape-as-porn and consensually-created-porn when they speak in public because the differentiation is too nuanced. I hadn’t been aware that ‘Don’t call filmed rape porn’ is a nuanced legal argument and, prior to having had numerous men enlighten me, would have been inclined to argue that anyone who believes that ‘Filmed rape is not legitimate porn’ is a nuanced argument which has no place in public porn law discourse is incompetent.

I’ve told men, when all else has failed, about having been raped and filmed simply to highlight to them that there is little more than one step from rape to rape-as-porn, and to attempt to ensure that they cannot counter the possibility of porn being filmed rape with an entirely extraneous argument about the free speech right to watch porn without constraint and without reference to consent or labour rights. I’ve found that most men (though not all), if they know you, will not tell you about their having a free speech right to watch and to enjoy watching you being raped, or about the right they would have had if they had not known you and had not known that they were watching rape. I’ve also learnt that even if men do not tell you all about their supposed rights in private, they will probably intentionally ignore, amongst other things, the possibility of porn being filmed rape in public statements they later make because, after all, public discourse can’t be nuanced.

Despite having chosen, at times, to exemplify the legal using the personal, I’ve been furious about having ‘needed’ to do so at all. I haven’t understood why men who engage with legal policy often seem to lack both the empathy and good sense to be able to grasp and articulate the obvious unless it’s presented to them in terms they can neither escape nor evade. And it is mainly men who seem to be dealing with policy issues relating to porn law — in my experience, women seem to have almost entirely disappeared from the scene possibly because talking about porn for any length of time is not what a woman does (in India, at any rate). For me, it’s been exhausting. It’s left me disappointed in many of the men I’ve spoken to on the subject. It’s also left me having to deal with having had the personal come crashing into the professional in ways I’ve not always found easy to handle.

And, at the end of the day, I’m far from certain that it’s been worth it. Especially since normative porn law is not the only subject in relation to which I’ve had the personal and the legal collide.


(This post is by Nandita Saikia and was first published at Indian Copyright.)

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