Child pornography law presents the opportunity for a case study of how censorship law responds to and shapes a cultural crisis. We have two corresponding events. On the one hand, we have the “discovery” in the late 1970s of the twin problems of child sexual abuse and child pornography, and the continuation of the problems to the point where they have reached the level of an ongoing, “ever-widening” crisis. On the other hand, we have child pornography law. Born in the same period, created to solve the problem of child sexual abuse, child pornography law too has grown dramatically in the past two decades, expanding and proliferating along with the underlying problem that it targets. Yet, curiously, the law’s expansion has not solved the problem, but only presided over its escalation. As child pornography law has expanded since the late 1970s, so has a “culture of child abuse,” a growing “panic” about the threat to children.
What, if any, is the relationship between these two concurrent phenomena – the expansion of child pornography law and the growing problem of child sexual abuse, including child pornography? Does their correlative temporal connection allow us to draw any conclusions about a possible causal relationship?
There is a standard, conventional explanation for this correlation. This account casts law in a reactive stance: As the sexual exploitation of children, or at least our awareness of the problem, has risen, legislatures and courts have responded by passing and upholding tougher child pornography laws. As the crisis has surged, so has the law. In this view, cultural horror drives law to play a game of catch-up. Law is always a step behind the problem, racing to keep pace with a burgeoning social crisis.
I am sure that is at least part of what is going on. But in this Article, I propose two alternative readings – readings that do not exclude the conventional account described above, but supplement it. In the first reading, I explore the possibility that certain sexual prohibitions invite their own violation by increasing the sexual allure of what they forbid. I suggest that child pornography law and the eroticization of children exist in a dialectic of transgression and taboo: The dramatic expansion of child pornography law may have unwittingly heightened pedophilic desire.
I then turn to a second reading, which reveals the previous one to be an only partially satisfactory account. In the second reading, I view law and the culture it regulates not as dialectical opposites, but as intermingled. Child pornography law may represent only another symptom of and not a solution to the problem of child abuse or the cultural fascination with sexual children. The cross purposes of law and culture that I describe above (law as prohibition, which both halts and incites desire) may mask a deeper harmony between them: The legal discourse on prohibiting child pornography may represent yet another way in which our culture drenches itself in sexualized children.
Child pornography law explicitly requires us to take on the gaze of the pedophile in order to root out pictures of children that harbor secret pedophilic appeal. The growth of child pornography law has opened up a whole arena for the elaborate exploration of children as sexual creatures. Cases require courts to engage in long, detailed analyses of the “sexual coyness” or playfulness of children, and of their potential to arouse. Courts have undertaken Talmudic discussions of the meaning of “pubic area” and “discernibility” of a child’s genitals in a picture at issue. But even when a child is pictured as a sexual victim rather than a sexual siren, the child is still pictured as sexual. Child pornography law becomes in this view a vast realm of discourse in which the image of the child as sexual is preserved and multiplied.
The point of this Article is that laws regulating child pornography may produce perverse, unintended consequences and that the legal battle we are waging may have unrecognized costs. I do not doubt, however, that child pornography law has substantial social benefits. In fact, I do not doubt that these benefits might outweigh the costs detailed. I nonetheless focus on these costs as a means to unsettle the confident assumption of most courts, legislators, and academics that the current approach to child pornography law is unequivocally sound. I question their conviction that the more regulation we impose the more harm we avert. Ultimately, I raise questions about the nature of censorship itself.