Contracts And Clintons And Courts . . Oh My !

by Wendy McElroy

[This appeared in AVN 'Adult video News' -- the main periodical of the pornography industry. It was reprinted in The Spectator.]

When the Moral Majority lost the ear of those in power, people in the adult entertainment industry sighed with relief and let down their guard. They said to themselves, "The Clintons are pro-gay rights, which means they are sexual liberals," They assured each other, "Bill evaded the draft and puffed on marijuana -- he's probably one of us." When Tipper Gore renewed her crusade to censor song lyrics, they dismissed it as an aberration. Trouble was, times haven't changed that much, and people in high places that we expected to be friendly toward the industry, aren't.

When Janet Reno, a Clinton appointee, threatens to impose unparalleled levels of control on TV unless it controls itself, people shrug that she is only concerned about violence. Meanwhile, the Bugs Bunny cartoons that all of us grew up with are due to be reviewed by a panel of experts to see if they're "safe" for children. Reno's reasoning: people imitate what they see on the tube. Ironical1y, this was the same point Dan Quayle made when he claimed that Murphy Brown inspired women to have illegitimate children. For this, he was almost laughed out of office; it certainly didn't help his reelection campaign. Janet Reno, on the other hand, has encountered mainly silence and tacit approval from the entertainment industry, including the adult section.

I am a feminist who fights for the rights of sex workers and, from where I stand, the adult entertainment industry faces the greatest threat it has encountered in decades. The danger to sexual liberty no longer comes only from the right; there's a sizeable number of people on the left, including Andrea Dworkin and Catharine MacKinnon, who are also plotting the industry's demise. They do not seek to destroy pornography because it is immoral or against the teachings of God (although some believe that as well); they want to destroy it because they claim it subjugates women and leads to violence against them. The new censors on the left do not hold up a Bible, but the photo of a battered woman. Bush's Moral Majority is merging, on this issue, with Clinton's followers' "Political Correctness Squad", and neither camp will allow the XXX video makers to peacefully co-exist.

For over a decade, the politically/sexually correct have persistently battled to have pornography classified as violence against women per se by asserting two claims; 1 ) pornography leads, in a cause-and-effect relationship, to violent acts such as rape, and 2) women in the adult entertainment industry are coerced into performing sexual acts, if not at the point of a gun (though such "white slavery" rumors persist), then as the result of the psychological damage they sustain from white-male dominated society at large.

These are the assumptions behind the infamous Minneapolis Ordinance of 1983, which is again about to be taken up in a slightly revised form by the Minneapolis City Council, and which was reborn in 1992 as the Pornography Victims Compensation Act. This so-called "McConnell Bill" was defeated, but is likely to be reintroduced - and versions of it have been and are being considered by various state legislatures around the country (the latest is Florida's S.B. 214). Proponents of free speech in Canada were defeated by their Supreme Court's decision in the Butler vs. Her Majesty case, which adopted the Dworkin/MacKinnon definition of obscenity nearly word for word. And let us not forget Holly Ryder's crusade which, while apparently no longer newsworthy, still has its supporters in California's smaller cities and rural areas. The basis of all these political and judicial movements is that pornography is no longer considered to be an aspect of sexual choice, even by those involved in making it, but of sexual coercion.

In the '90s, the campaign to censor pornography will be waged on two battlefields: in print, where pro-sex free speech advocates will slug it out intellectually with the new censors; and in the civil courts, where an increasing number of producers and distributors of adult product may end up defending themselves against charges of victimizing women. Use of the civil courts will be a preferred strategy of the new censors, since there is no presumption of innocence therein, and much looser rules of evidence. Defendants may not go to jail; they may simply lose their businesses, their homes and everything they hoped to leave to their children through civil forfeitures. The doorway to such civil suits would be flung wide open if any of the above-mentioned legislation were to become law!

How can the adult industry protect itself? First and foremost: contracts. The issue confronting the industry in the '90s will be violence against women and coercion of women, and producers of XXX tapes may well be called upon to produce contracts to protect themselves against these very charges; that is, the charge that a woman did not give true or informed consent to pose or perform. To be effective, these contracts should be executed before, not after, the shooting; they should be witnessed by two parties (who may be other actors, stage hands, even the director himself); they must explicitly state the scope of sexual activities being agreed to and the purpose of the performance, namely to produce sexually explicit material for distribution. In addition, the contract must explicitly name all the rights - national/international distribution, use of etc. - transferred to the producer. The document should also specify remedies for breach of contract on either side (e.g. binding arbitration to resolve differences). Each and every contract should include the standard model release and photocopied documentation of the actress' age.

Among Hollywood types, and anyone else who deals regularly with contracts, this may seem to be nothing more than common sense, but a woman being put under contract is actually news in the adult industry. When I attended the Winter CES '95, in order to learn more about the industry, l was dumbfounded to discover that most producers treat contracts with performers and even directors so cavalierly that they do not even bother with them. In a sense, the industry's way of dealing with the makers of XXX material is patterned by its years-gone tradition of functioning outside the judiciary, and the suspicion (sometimes justified) that the police and the court system can be expected to be either hostile or irrelevant to internecine industry concerns: The whole way of doing business is reminiscent of Bob Dylan's line, "To live outside the law you must be honest." But the days of ignoring the niceties of paperwork are over; today's carefully-worded contract may be the only defense against a lawsuit two years down the line. (Remember: it took Holly Ryder only about eight months to go from self-admitted "willing performer" to self proclaimed "coerced victim".)

Yet producers remain almost criminally naive about the need to document informed consent. One of my first encounters with the XXX industry was over an Italian dinner I shared with noted directors John Stagliano and John Leslie, both of whom patiently put up with my questions. But when I asked what constituted the terms of a "standard" contract, a friendly disagreement arose between these two veterans. Leslie, who considers contracts to be necessary but irritating paperwork, said he "took care of them" at the beginning of the project just to get them out of the way.

"So far, I haven't needed contracts," Stagliano shrugged. "What if you end up in court?" I asked. "lf you don't have an enforceable contract, what are you going to do?"

"Why would I go after these people, Wendy? They don't have anything," he replied with a puzzled frown. I suggested that someday people might want to go after him. Later in the convention, I again brought up the subject with him. The generally affable Stagliano snapped, "l borrowed some forms. I'm getting contracts, okay?"

I hope to similarly irritate other directors/producers into operating only on the basis of signed contracts.

As an outsider looking in, I would suggest two steps the XXX industry could take to protect itself from the growing threat of lawsuits. First lawyers involved in the Free Speech Coalition, or some other trade organization, could produce a model contract which would emphasize informed consent, detail the transfer of rights, and set forth the forum for remedies in case of a breach by either side. This contract would be made available as a standard for the industry. For a nominal yearly fee, the law firm drawing the contract, or the Free Speech Coalition, or some other organization or individual could take on the job of registering signed contracts, so that the parties could assure themselves that they are dealing with companies who would be unlikely to involve them in a messy lawsuit. Registering the contracts would also preserve a record of agreements.

Certainly, there is a legitimate concern in the industry about "paper trails", and contracts would, after a1l, constitute business records easily traceable to a finished product - a product which might be busted in any jurisdiction around the country. However, the type of contract involved here would bear no relation to an obscenity bust, since the finished tape is what's under question, not whether the actors were paid to per- form; their performance in the feature is a given -- though a contract would establish that the performance wasn't coerced.

Second, a trade organization should establish procedures by which the industry can regulate itself against genuine abuses, such as refusal to pay on a contract, last minute cancellation of a shoot, or actress/actor "flake-itis". Most industries and professions have some method of regulating themselves. Lawyers have the Bar Association. Doctors have the AMA. Writers have the Guild. Although these trade associations often do not carry the force of law --- or even of licensing -- they do wield great power in terms of exposing and publicly censuring abuses. Obviously, few in the XXX industry have any wish to "air their dirty laundry in public" but peer pressure alone can cure many situations. More extreme tactics, like boycotts by performers of a director or company, are always available.

The purpose of such voluntary procedures is to keep the police and the court systems out of pornography. If breaches of contract (or even actual incidents of force) cannot be remedied within the industry -- and as things stand now, such remedies have been haphazardly applied at best -- victims will naturally seek legal recourse.

But manufacturers and distributors are not the only ones who need to defend themselves against the growing tide of political correctness. Women who choose sex work are being dismissed by the general public (let alone the Religious Right and other censors) as psychologically damaged and incapable of giving informed consent when asked to perform sex acts for pay. The very basis of the McConnell and Minneapolis bills, as well as current Canadian law, is that it is impossible for a woman to give informed consent to perform in a sexually explicit feature; that if she were in possession of all her faculties, she would know that sex-for-pay is a "bad thing", and therefore, the courts and police must protect women from their own "unhealthy" choices. COYOTE Executive Director Norma Jean Almodovar defined the same problem as the current rationale for arresting prostitutes -- and she also came up with the only "adult" way to answer such a situation. She admonished attendees at a recent meeting that, if arrested, the best psychological approach to take with judges and the police is to insist that it is your own body and your right to choose how best to use it. Almodovar counseled women to refuse to give up what those in power, by use of law, are trying to take away: pride in who you are and what you choose to do with your life. Put them on the defensive. More than one porn star has said that she's embarrassed to be recognized in the supermarket. I'm sure Almodovar (and any psychologist worth her salt) would say, "Be proud of your life choices - or examine them and find out why you're not happy."

The conflict between political/sexual correctness and open access to sexually explicit material is irreconcilable and, perhaps, inevitable. In this battle, pornography occupies the moral high ground, because it defends the right of a woman to choose her own lifestyle. And it is on the issue of choice that the battle will be won, by articulate women who refuse to be paternalized (or even maternalized) into sexless slavery. The adult industry should rush to do its part by making women's choices explicit -- in contracts and in establishing procedures that protect women from abuse by unethical producers.

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