Winning the Obscenity War

Alex Henderson
In 2006, the adult entertainment industry is bigger than ever. But adult entertainment also is a convenient target for politicians in some countries. U.S. Attorney General Alberto Gonzales has been quite vocal about his desire to greatly increase the number of obscenity prosecutions — and in Great Britain, politicians have been considering a proposal that could make it a felony to download sadomasochistic erotica on the Internet. Meanwhile, in Japan, the conviction of animé/hentai publisher Motonori Kishi in 2004 demonstrated that even sexually explicit cartoons can become a target of obscenity prosecutions.

Obscenity laws can vary from country to country, and sexually explicit material a jury finds obscene in Tokyo might get a pass in Barcelona or Paris. But several people interviewed for this article — including San Francisco-based attorney Gregory Rutchik of the firm Idell, Berman, Seitel & Rutchik and the presidents of Kick Ass Pictures and MeanBitch Productions/ — offered general advice for erotic entertainment providers living in countries where obscenity prosecutions are on the rise.

MeanBitch/ president Glenn King, whose company specializes in softcore female domination films, stressed that however mild one's erotica is, hiring an attorney who knows his/her country's obscenity laws inside and out is absolutely essential. King noted that even though American obscenity law can be vague, U.S.-based adult companies can at least have a general idea of what types of erotica Gonzales and the FBI are more likely to go after.

"I don't think the U.S. government wants to put Playboy-type material in front of a jury and try to prove obscenity," King said. "That would be a waste of time and money. So they're more likely to prosecute material that is on the extreme fringe. They have stated that they are going to go after sex that contains violence, scat, urination, extreme masochism. I'm sure that bestiality is in there somewhere."

No Bullwhipping, Paddling
King noted that MeanBitch/'s often humorous offerings don't include hardcore sadomasochism. The vixens in his productions aren't bullwhipping, paddling or caning the men they dominate, but he is concerned about the civil liberties of companies that are making more hardcore BDSM films.

"Some of the BDSM guys are going to have to be careful, especially if they are filming sexuality mixed with violence," King asserted. "Obviously, what they're filming is a fantasy, and all of the actors want to be there. But at the same time, that seems to be an area that the U.S. government is interested in targeting for prosecution. And being prosecuted would be a big disaster for smaller companies in the industry; even if you are acquitted of obscenity charges, you don't get to recover the money you spent on legal fees."

Mark Kulkis, president of the Los Angeles-based Kick Ass Pictures, stressed that if a company is providing sexually explicit material — be it S&M/bondage videos or vanilla gonzo films — it is important to avoid coming across as misogynous.

"I think that doing things that are seen as abusive to women is the biggest no-no in adult entertainment," Kulkis said. "Attorney Paul Cambria always told me, 'Imagine yourself in front of a jury of women.' Material that is seen as abusive to women is more likely to rub a jury the wrong way and result in an obscenity conviction."

Kulkis added: "If you do interviews before making a porn movie, you can make sure the women are really into what you're doing. The key is to show that the women are willing, enthusiastic participants. Even if the girl is getting chained up and whipped, the audience should know that she really enjoys that."

Rutchik tells young adult-oriented entrepreneurs that whatever the political or social climate — be it liberal, conservative or in between — they need to learn as much as possible about how government operates.

"Adult businesses need to know who their local and state representatives are," Rutchik said. "Adult businesses should call their representatives, write to them and be able to describe — in a respectful way — the business they are in so that the representative can know that adult businesses are legitimate businesses and legitimate constituencies. The issues of adult businesses need to be on the front burner — issues about copyright, issues about privacy. Those issues should be articulated to representatives because people who operate adult businesses are voters just like everyone else."

U.K. Prosecutions
In the U.K., one person who isn't shy about letting government representatives know how she feels is BDSM activist Demolition Red, media spokesperson for the organization Backlash. Red and others at Backlash have been very outspoken in opposition to a proposal that would make it a felony for Internet users in the U.K. to download what some British politicians are loosely calling "extreme pornography." Red fears that if the proposal actually becomes a law, people in England, Wales or Scotland could be sent to prison for downloading something as harmless as an amateur spanking or tickling video.

"This proposal is incredibly badly drawn up," Red told XBiz. "We paid for a human rights expert to look at the proposal and give his judgment - and he pointed out that under this proposal, looking at a picture of light BDSM here in Britain could see you go to prison for three years. The maximum penalty they are proposing is five years, which is more than you would get here for actually committing an act of bestiality. Looking at a picture of light BDSM could carry a higher penalty than actually having sex with a dead body. This would be an extremely far-reaching piece of legislation if it were to go ahead."

Red believes that the proposed legislation that Backlash is fighting is exemplary of a climate of anti-sex hysteria that is plaguing both England and the U.S. in 2006 — and she believes that some "Puritans" at both 10 Downing St. and 1600 Pennsylvania Ave. are hoping to intimidate the adult industry as much as possible.

Red asserted: "I think that what is happening in America is the well-known chill effect — just the suggestion that there will be legislation is enough to make people who own sites, star in movies or participate some other way in the pornography industry withdraw voluntarily because they don't want to risk going to court. And the suggestion that there will be legislation in Britain will have a similar affect here as well. When you say there may be prosecutions, that can scare people enough to make them alter their behavior."

Red's contention that "Puritanism is taking over global politics" is echoed by The Baroness, a well-known fetish fashion designer who holds fetish-themed parties in New York City. Although The Baroness is a dominatrix and a veteran of the BDSM scene, her site is far from a hardcore BDSM site; it is primarily a fashion website. But The Baroness fears that even the mildest erotic expression could become a target of the Christian Right.

"This Puritan trend is quite frightening," The Baroness told XBiz. "Because we sell clothing in addition to hosting parties and lecturing, we have always been aware of keeping our site and links as PG as possible. However, with this new political climate, I've considered dropping some of our more racy party pictures — and the fact that I'm even considering that offends me, as I'm loath to allow others to dictate my actions."

The Baroness added that the George W. Bush/Gonzales/Christian Right alliance has the mentality of a real witch hunt. "Once you get into witch hunts, they can really catch fire — and the witch hunts can be random and brutal," The Baroness said. "You could be completely innocent of anything and still get caught up in it, and I don't think this is a cycle that this country is going to get out of too quickly. Once a religious witch hunt gets started, it is hard to stop it."

But despite the Bush administration's call for more obscenity prosecutions and the Christian Right's war on erotica, 1st Amendment attorney Paul Cambria seems generally optimistic about the future of adult entertainment in the U.S.

Cambria contends that the Christian Right's bark is much worse than its bite and that a series of recent victories in obscenity cases suggest that American jurors have become more and more tolerant of adult entertainment — at least vanilla porn.

'Explosion In Consumption'
"The last several cases that I have tried have all resulted in acquittals in very conservative places in America with very explicit movies," Cambria said. "There has been an explosion in the consumption and availability of adult material; that explosion has educated the adult population to adult material, and it has also removed any feelings of guilt about consuming adult material. As a result, the average adult now feels that, within reason, people are clearly comfortable with adult material — and they have no problem saying that in their verdicts. And I say within reason; there may be communities that would have a problem with scatological subjects and things that are far off to one side of the spectrum."

Cambria said that one of his recent acquittals came from a jury in St. Louis that was comprised of women over 40 — an acquittal the Christian Right was not happy with. And Cambria believes that the Christian Right can look forward to many more disappointments in the future.

"The religious conservatives would like to see this wholesale slaughter of erotic material coast to coast, and it's just not happening," Cambria asserted. "They're dying because we've been knocking the shit out of them all across the country."

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