Making Pornographers Pay
New bill would compensate victims of crimes directly linked to pornographic material
A BILL designed to compensate victims of pornography, dubbed "the Bundy Bill" for the serial killer who blamed pornography for making him act out what he'd seen, is kicking up a fierce controversy.
The bill, sponsored by Sen. Mitch McConnell (R) of Kentucky, is called the Pornography Victims' Compensation Act. It was written to provide a "cause of action" for victims of sexual abuse, rape, and murder against producers, distributors, and sellers of hard-core pornographic material. Publishers are also included as targets in the bill.
"My guess is that these kinds of assaults would carry prohibitive money damages," says Senator McConnell. "I make no bones about it. I think what this is designed to do ... may discourage some people from peddling this kind of material for fear they might have a significant lawsuit." The bill calls for a civil lawsuit if the victim can prove the material was a substantial cause of the crime.
Concerns about of pornography have been responsible for bills in Massachusetts, where victims-of-pornography legislation is proposed; in Jacksonville, Fla., where a woman welder was found to have been harassed by male workers with abusive and pornographic posters (the case is now on appeal), and in Canada, where the Canadian Supreme Court has decided that pornography can cause violence against women. The United States Senate Judiciary Committee is now considering the McConnell bill and its revisions.
The bill's critics say it tampers with the First Amendment. But standing behind the bill are conservative Republicans, feminist anti-pornography groups, and groups that focus on family values.
Even the National Organization for Women is divided; 200 local chapters support it, but the California and New York chapters oppose it on the grounds of censorship. Formidable opposition
Eighteen business and professional organizations representing the film, publishing, recording, and cable TV industries have joined to prepare a legal analysis of its constitutionality.
Senator McConnell says, "Believe it or not, I'm a very strong believer in the First Amendment and I don't like some of the criticism that's been leveled against me that I somehow want to be the nation's censor.
For McConnell, this is a long-standing issue that goes back to his work as a county executive in Kentucky, when, he says, "We set up the first missing and exploited child unit in the country."
He explains, "The possible nexus between hard-core, violent pornography and crime occurred to me in the last two or three years, based on observations of Ted Bundy and on the 'Corridor Killer' [who murdered and tortured a series of women in Delaware]."
In that case, the senator says, "The Court of Appeals found the murderer had a hard-core pornographic film, 'The Taming of Rebecca,' in his possession, [cued] to the murder scene that was carried out.... The victims' families might have had a real shot at a lawsuit even though the victims did not survive.... I mean in that case, he basically used that film as a how-to manual."
Another major opponent of the bill is the American Civil Liberties Union. "We oppose it because it's unconstitutional," says Robert Peck, legal counsel for the ACLU. "There are many flaws in it: It purports to target obscenity, but doesn't do it in the manner the Supreme Court has said make sure you don't punish free speech as well.'... His bill does not define what's obscene, that's one of its flaws," Mr. Peck says. Higher standard required
The revisions and substitute bill offered by Sen. Charles Grassley (R) of Iowa and Sen. Hank Brown (R) of Colorado made some changes, says Peck. The original bill did not require criminal charges to be brought against the alleged criminal before a lawsuit could be brought. Now the alleged criminal must be indicted. And the original bill only required a civil standard; the revised bill requires the higher criminal standard of "beyond a reasonable doubt."
And the revised bill calls for a statute of limitations of 7 years, instead of 20.
A spokesman for the Motion Picture Association of America says that because of recent changes in the bill the organization, which had been basically opposed, "has not come out with a position now." Hollywood films
This bill is important because it could hit at Hollywood films. "If a judge doesn't throw the bill out as unconstitutional, a mainstream Hollywood film could be found liable under this bill if passed," says Peck.
"[McConnell] has very clear ideas in mind of what it's going to apply to and what it doesn't. It truly does threaten all sort of films he does not have in mind."
McConnell said, "Any film that depicted child pornography or obscenity regardless of whether it came from abroad or [was] produced here could potentially be the subjects of these kinds of civil suits, provided there has been a criminal act against the victim."