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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Every so often, I forget what it's like to read the kind of faux intellectual treatises that exist at the edge of the social studies in universities and colleges. Then, I read a book like Pornland and it all comes crashing back upon me.

PornLand is a feminist attack on the effect of porn on society. Fine, porn's bad; got the message. However, the book suffers from mixed plots and a fractured philosophical base. The mixed plot lines are (1) the sexualization of society at large leading to the unsatisfactory objectification of women, and (2) the rise of the internet leading to the greater availability of "gonzo" porn (extreme kink). She tries to tie these together, but does not do so very successfully. The first is her actual argument while the second is an emotionally charged overlay. Often, it feels as though she is making an argument based on the first plot line and heavy-handedly beating down any argument against her by pointing to gonzo porn in an attempt to put opponents in a position that objection would require them to be seen as defending gonzo porn. As an intellectual exercise it fails. The crux of its failure comes from her perception and treatment of the male.

In the Beginning: In order to analyze this sort of subject, some sort of model should be developed. There are two obvious models which could have been adopted for this analysis. The first is the competition for male attention model.


No self respecting feminist is going to adopt this model for analysis because (1) it implies a need for the male, and (2) because women win in this analysis, thus negating the need for the anti-porn argument in the main. Porn may draw male attention, but the continuing large scale presence of marriage, child birth, and even prostitution in society indicate that the draw to actual women is stronger.

The second model is the overlapping influences model.


This is the model that I expected to see in this book. Instead, what we get is a fractured view of this which presents the female and porn, but leaves a big hole where anything inherently masculine would be. This can be seen thru this passage in her introduction:
[A]cts that are part of many people’s sexual experience, such as kissing, caressing, cuddling, and fondling, are noticeably absent in pornography. This forces us to ask why men who view porn are so attracted to images that depict types of behavior so at odds with the real world. One obvious answer could be that men go to porn as a way to play out a fantasy, a way to conjure up mental images that are not real but nonetheless pleasurable. But if it were as simple as this, then why isn’t there an equal amount of porn that depicts women and men having great sex that involves deep connection and intimacy, with women having fabulous orgasms brought about by a highly skilled male lover who has an intuitive understanding of women’s bodies?"The obvious answer to this is that that is a stereotypically female view of sex. Note that the majority of that scenario would be found in most porn portrayals of sex. Sex in porn is portrayed as "great" and women almost invariably portrayed as "having fabulous orgasms" brought about by a male sex partner who gives the woman what she wants. The feminine perspective involves the "lover" and sex involving a "deep connection and intimacy." At core, her argument is that porn lacks these elements and society has sympathetically adopted this lack thru porn.

However, she refuses to admit to any core "maleness" which allows or encourages porn's existence. This failure is a core part of her worldview. We are told that porn portrays men "as soulless, unfeeling, amoral life-support systems for erect penises who are entitled to use women in any way they want.' In other words there is no there there. Males are empty vessels except that they are attached to their sexual organs. It's a fairly accurate portrayal of the way that men are depicted in sex films. Sadly, she adopts a very similar stance as her personal view of men in her 4th chapter. There is no male there; there is only cultural training. it is only because men are trained to be that they are competitive and aggressive and through this training they become anti-female and therefore mutually turn to porn and are drawn by it. Males are empty vessels except as society trains them to be evil.

Into this massive failure of understanding (the blank male) she wants to pour her value laden depiction of how sex should be (the fulfilled female). The blank male should be directed away from porn and instead be filled with a "counter-ideology to porn . . . disrupt[ing] and interrupt[ing] its messages, and . . . as powerful and as pleasurable as porn, telling men that porn’s image of women is a lie, fabricated to sell a particular version of sex. This alternative ideology would also need to present a different vision of heterosexual sex, one built on gender equality and justice."

At a certain point, having established porn as the evil that corrupts blank males and denies females of their fulfillment through their version of sex, the author begins the bait and switch parts of the book. In particular, she begins this in earnest in chapter 6.

Here, she switches from porn to a discussion of dominant sexual mores as sexual repression of women that have become internalized and destructive to women, but continues to describe this as arising from porn without establishing more than a tenuous connection. The modern mores (which she calls the hookup culture) come from TV, movies, magazines, celebrities, &cetera that push women toward attempting to make their bodies attractive to men sexually and participating in sex (hookups) thus falling far short of her proffered stereotypical female ideal of sex.

[RANT]
A seriously disturbing part of this chapter is where she misdefines rape as "unwanted sex." This is an egregious and purposeful distortion of what rape is. Rape is sex without consent. Lack of consent occurs when (1) the victim is incapable of consent due to (a) age or (b) mental incapacity (to include extreme intoxication), or (2) the victim's resistance is overborne by (a) force or (b) threat of force. ACQUIESCENCE AGAINST PREFERENCE IS NOT RAPE. Having sex "because that's what you do when you go back to a guy's apartment" or "because he wouldn't stop bugging me about it" or "despite the fact I had a headache" or "because I thought it was my one shot at starting a relationship with him" or "because my friends pressured me into it" or "despite the fact that he stunk after he took his shirt off" and a vast multitude of other situations where the sex was unwanted, but consented to, IS NOT RAPE. To be fair, the author is not the creator of this myth, but she is supposed to be a professional in this sociological area and therefore should not be spreading the myth.
[/RANT]

This chapter is where we see the author's true grievance break through. "When feminists in the 1960s and ’70s fought for sexual liberation, they fought for the right to want, desire, and enjoy sex—but on their own terms. They argued that their sexuality had been defined by men, and they wanted it back." The simple phrase "on their own terms" gives the masquerade away. It also explains her strong preference for the blank male. She sees a society wherein women broke free from sexual norms of the society so that they could become the sole actors in determining sexuality. However, in order for her sexual paradise to occur there can be no push back, no Hegelianistic dialectical materialism. The thesis of sex on feminine terms can only succeed if there is no male antithesis and thus no synthesis. This requires the blank male. But here we also see a breakdown in her assertion of the entirely socially programmable blank male.

Immediately after her assertion of the goal of female sexual utopianism, she acknowledges the synthesis (if not the antithesis). "One of the men interviewed by Bogle said he saw hookup culture as a 'guy’s paradise.' Yes, Pornland is indeed paradise for these men, as it is sex with no strings attached. And for women it is business as usual: men defining our sexuality in ways that serve them, not us. Only now this sexuality is sold to us as empowering. A new twist on an old theme."

In both the assertion that women in the 60's and 70's broke free from sexuality defined by men and in the assertion that the modern era's sexual mores are a "paradise for men, as it is sex with no strings attached" there is an admission that men have pushed sexuality in a direction because of something other than the blank male's programmed interest. There is an internal actor within the male. This internal male in the older paradigm would probably be described as competitive / possessive (socially acceptable sex for females restricted to marriage) and the internal male in the current paradigm would probably be competitive / abandoning (the hookup culture). However, this is something of inference on my part because the internal workings of the male as she obliquely admits to them can only be seen through the shadow their antithesis casts on the synthesis.

After having made her point there are two more chapters in the book, both of which feel as though they were added as an afterthought or filler (maybe her publisher told her more pages were needed). In chapter 7 the author talks about racism within the porn industry, in the advertising and sale of interracial porn, and in its consumers. This last point is highlighted in a direct comparison of blackface minstrel shows with interracial porn because both let the white man perceive himself as a black man acting in a manner unacceptable for white men. She scores solid points in pointing to the racism rife in the industry and consumption, but seems to be out on a limb with the minstrel comparison.

Chapter 8 is about the youthification of porn. It is about the porn wherein young women dress and act like underage girls. She tries mightily to tie this to actual child porn, but doesn't quite get there. The best she can do is interview men convicted of downloading child porn and paint all males with a broad brush based upon their answers. Then she goes on to point out connections between child porn and child sexual abuse. This weak connection backed by powerful emotional images is good propaganda, but not well reasoned argument. Mind you, my gut tells me she is right - I just don't think she proved it. Then, at the end of the chapter she shoots herself in the foot by trying to connect all this to the clothes which are sold for young girls. Much like chapter 6 this is a bait and switch. All this near child porn, actual child porn, and sexual abuse of children is abhorrent, but there's no connection between them and the clothes being sold for young girls (unless we are to believe that manufacturers producing the product, merchants selling the product, and parents buying the product are all avid child porn watchers). More likely, the clothes fashions are influenced by music videos, television shows, celebrities and a variety of other sources which do not tie into child porn.

She concludes that women should fight porn, offers a couple of programs she has been involved in and then turns again to the male role.
A movement that resists the porn culture needs to include men as they, too, are being dehumanized and diminished by the images they consume. Men’s refusal to collaborate with the pornographers will not only undermine the legitimacy of the industry, it will also drain it of its profits. For too long women have been the only ones fighting this predatory industry, even though we have long argued that porn also hurts men. What to porn offers men is a sexuality that celebrates connectedness, intimacy, and empathy—a sexuality bathed in equality rather than subordination.In other words, males should abandon porn in order to perfect sexuality in its stereotypical female perception. It's not exactly a strong, primal incentive.

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This book suffers from several flaws. The worst of these is the blank male. The author proffers a stereotypical female perspective on sex, but does not try to address that within the male which draws him to porn. Her stereotypical female perspective is that sex is about becoming connected, intimate, and co-empathetic; in other words, it has a relationship orientation. A corresponding stereotypical male perspective on sex is that it is success in a competitive act (getting the female to choose him over other males) which sees the female as an objective and a means of hedonistic fulfillment. Inherent in both these stereotypical perceptions is a flip side. For the female sex is not only relational, it is also physically pleasurable. For men success in the competition and the completion of the sexual act opens the door to connection, intimacy, and empathy which were not its initial goal.

The ignoring of any viable male perspective in this book is its major flaw. The assertion that the blank male only pursues porn because he is programmed to do so fails on its face. The lack of consideration of a male perspective also means that there is no realistic means offered to counter the male draw towards porn and objectification of the female.

As for me, I think I'd start any serious argument against the objectification of women by reference to the call to moral duty found in Mulieris Dignitatem.
The dignity and the vocation of women - as well as those of men - find their eternal source in the heart of God. And in the temporal conditions of human existence, they are closely connected with the "unity of the two". Consequently each man must look within himself to see whether she who was entrusted to him as a sister in humanity, as a spouse, has not become in his heart an object of adultery; to see whether she who, in different ways, is the cosubject of his existence in the world, has not become for him an "object": an object of pleasure, of exploitation.You may disagree with the conclusions of Mulieris Dignatatem, but it provides a more solid groundwork to have this argument than Pornland ever could.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

You'll all recall that back when the United States Supreme Court declared dog sniffs not to be searches I took umbrage. In fact, I even wrote an article for the NYU Journal of Law & Liberty. Interestingly, the greatest proponent of the infallible dog sniff, Justie O'Connor, and the author of the opinion, Justice Stevens, have both retired from the bench and now the US Supreme Court has accepted two dog sniff cases to be heard next term. I am curious to see whether the Court will take this opportunity to prune off the dog sniff branch of 4th Amendment Jurisprudence because it is so out of kilter with Kyllo, or if it is going to use it as an opportunity to defend and expand dog sniff availability. It could also split the baby and find that Kyllo is a protection of the home, not vehicles, and therefore no dog sniff or electronic device can be used outside a home, but that both could be used in other circumstances (cars, luggage, etc.).

In any event here are my summations of the two Florida cases on appeal:

Jardines v. Florida, APR11, SCtFla No. SC08-2101:

In Jardines, the Florida Supreme Court finds that a dog sniff at a house is a search (in contrast to a dog sniff of a car or luggage). The Court points to two factors: (1) The special emphasis the Home is given under the 4th Amendment as the place where a citizen's 4th Amendment right is strongest, and (2) the amount of intrusiveness involved in a dog sniff of a home.

The second factor is the actual point of the opinion. The Court points out that in all the luggage and vehicle cases there was minimal intrusive activity and potential for public embarrassment. Then it describes the activities the government undertook at this house:
Based on the foregoing, we conclude that the dog "sniff test" that was conducted here was an intrusive procedure. The "sniff test" was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement departments. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity—i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines' home—lasted for hours. The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident.The Court goes on to further reason that because, unlike a vehicle sniff, there is no initial reasonable articulable suspicion required a home sniff "raises the specter of arbitrary and discriminatory application."

I think this has a good chance of surviving the US Supreme Court. It is well reasoned and sets out exactly why there is a difference between a home sniff and a vehicle or luggage dog sniff. However, the US Supreme Court could distinguish it on factual grounds. It could say, "Yes, this amount of activity was too much, but less obvious activity could make it valid."

Harris v. Florida, APR11, SCtFla No. SC08–1871:

In this case a dog alerted on a door of a vehicle and when the vehicle was searched the vehicle contained items which are used to make meth, but none of which the dog was trained to alert to. The officer did not keep records of any times when his dog had alerted and drugs had not been found. In this case, the officer insisted that the dog did not falsely alert, but that someone must have touched the door handle after handling meth and left an odor.

The Supreme Court of Florida rejects this as violating the 4th Amendment and sets out what the government must provide to establish probable cause in the courtroom after a dog sniff has been used on a vehicle:
we adopt a totality of the circumstances approach and hold that the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State's presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs [neither in Florida or the United States], the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog's reliability.The Florida Court also goes on to state that the State cannot just say "The dog is trained and certified" and then require the defense to provide proof it cannot possibly have to disprove the dog's infallibility.

Remember, as long as the US Supreme Court sticks by its position that a dog sniff can't possibly reveal anything which isn't illegal, we're talking about probable cause here. While there is no exact definition of probable cause it is clearly less than 50% probable (otherwise the courts would be saying preponderance). I agree that the dog's record both in training and on the street should be introduced. However, if the dog is correct 5 out of 10 times, I think that probable cause is established. Then the question becomes, how far below 50% accuracy can a dog's record go before we decide it is too low? 40%? 35%? 20%?

Unless the US Supreme Court decides to scrap Cabelles completely, I think the fact that the dog was trained and yearly certified will probably get a stamp of approval for probable cause purposes and the Florida Supreme Court will be overturned on this case.

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Of course, like everyone else, my ability to prognosticate the results from the US Supreme Court goes on the fritz some times. So, I guess you will all have to wait until next year to find out the exciting conclusion to the next step in the never ending dog sniff ain't a search saga.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Maryland police are brave enough to pull over Batman.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

In honor of the U.S. Supreme Court's acceptance of two dog sniff cases (Jardines and Harris), I thought I'd publish some pictures of our brave four legged friends with a badge.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Last week there were a couple of interesting cases about plea agreements fro the U.S. Supreme Court. In
Missouri v. Frye, MAR12, USSC No. 10-444, the prosecutor sent an offer to the defense attorney to reduce Frye's charge from a felony driving offense to a misdemeanor if Frye agreed to spend more time in jail. The attorney never took the offer to his client and subsequently Frye got convicted of the felony.

Sometimes while you are wandering around the statutes you find some interesting things.

Over at Sentencing Law and Policy, Professor Berman has pointed to a practice in a few Alaska courts of "Circle Sentencing." It's an unfortunate name, but there's not much new to the concept. It's being sold as something that is somehow uniquely applicable to Native Alaskans. Nevertheless, anyone who has been going to CLE's or reading academic tracts over the last few years will recognize the concept. For identification purposes, I'm going to call it "community mediated sentencing."

Community mediated sentencing calls for the defendant to be put in a community group consisting of family, victims, community leaders, &cetera which explain to him the problems he has caused in the community.

Yep, W&L Law is number 24 on the new US News ranking. That keeps W&L the highest ranked private law school in Virginia although there is a *sniff* public university somewhere in the Commonwealth which is ranked a little higher.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com