Hideous Attack on Hideous Problem : Films, TV must not be scapegoat in sex assaults

Sexual assault and child molestation are hideous crimes. No civilized person countenances them, and most would gladly “do” something to prevent them, whenever possible. But the answer to the collective tragedy these individual catastrophes represent, if there is one, lies in legislative measures to punish and rehabilitate the perpetrators and to treat and compensate the victims. The answer is not to punish the producers of movies or the publishers of books that depict such crimes.

Yet that is exactly what two U.S. senators appear willing to do through a bill that would allow victims of sexual assault to sue the producers and distributors of material they contend influenced the perpetrator to commit assault. Hearings on the bill--dubbed the Pornography Victims’ Compensation Act--are scheduled for next month.

Sponsored by Sen. Mitch McConnell (R-Ky.) and included in the omnibus Women’s Equal Opportunity Act, sponsored by Sen. Bob Dole (R-Kan.), the bill would hold the producers, distributors, exhibitors and sellers of sexually explicit material liable for damages resulting from any sexual offense that was even partially caused by an alleged offender’s exposure to the material. The federal courts would determine civil liability based on “the preponderance of evidence.” That means a judge or jury could hold defendants liable based on no more than a rapist saying that a certain book or film influenced him to act. And the victim could seek civil damages even if the alleged perpetrator was not prosecuted for the crime.

The net cast by this bill is profoundly chilling and more than likely unconstitutional. The bill’s language encompasses material that is obviously sexually explicit and much that is not, such as “beatings or bruises.” That could mean potential liability for the producers or sellers of a tremendously wide range of material that an assault victim claims to be “sexually explicit and violent” and to have “incited” or even “influenced” the alleged perpetrator.

This terrible vagueness opens the door for a myriad of interpretations, a slippery slope of sexual incitability where one man’s pablum becomes another’s pornography. Moreover, blaming television or records for crimes committed by emotionally disturbed people is contrary to the historical notion that civil liability is determined by personal conduct. It is also contrary to a long record by the courts that has held that the First Amendment bars liability for harm allegedly caused by expressive conduct.

In reversing a civil damage award not unlike those that McConnell’s bill would encourage, a federal court held in 1988, “The constitutional protection accorded to freedom of speech . . . is not based on the naive belief that speech can do no harm but on the confidence that the benefits society reaps from the free flow . . . of ideas outweigh the costs society endures by receiving reprehensible or dangerous ideas.”

That’s the problem with McConnell’s bill. It addresses a situation everyone finds contemptible by proposing a solution that devastates fundamental freedom.