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26 Mich. J. Int'l L. 993 (2004-2005)
Pornography as Trafficking

handle is hein.journals/mjil26 and id is 1011 raw text is: PORNOGRAPHY AS TRAFFICKINGt
Catharine A. MacKinnon*
In material reality, pornography is one way women and children are
trafficked for sex. To make visual pornography, the bulk of the
industry's products,' real women and children, and some men, are rented
out for use in commercial sex acts. In the resulting materials, these
people are then conveyed and sold for a buyer's sexual use. Obscenity
laws, the traditional legal approach to the problem, do not care about
these realities at all. The morality of what is said and shown remains
their focus and concern. The injuries inflicted on real people to make the
materials, or because they are used,2 are irrelevant to what is illegal
about obscenity.3 Accordingly, as the trafficking constituted by the
exhibition, distribution, sale, and purchase of materials that do these
harms is ignored. Laws against sex trafficking, international and
domestic, criminal and human rights laws-specifically their concept of
t    This talk was given at the conference entitled Pornography: Driving the Demand
in International Sex Trafficking, co-sponsored by Captive Daughters and the International
Human Rights Law Institute of DePaul University, Chicago, Illinois, on March 14, 2005.
Time for its revision was provided by the generosity of the University of Michigan Law
School and the Center for Advanced Study in the Behavioral Sciences (CASBS) at Stanford.
Valerie Hletko, Emma Cheuse, and Anna Baldwin provided superb research assistance when
it was needed most. This work is dedicated with love to the memory of Andrea Dworkin.
*    Elizabeth A. Long Professor of Law, University of Michigan Law School; Fellow,
Center for Advanced Study in the Behavioral Sciences (CASBS), at Stanford, California,
2005-2006.
1.   Paul Fishbein, founding president of Adult Video News, estimated to CBS News
that some 800 million so-called adult videos are rented each year in the United States alone,
earning an estimated $20 billion annually in a global industry estimated to earn $57 billion
annually. See Richard Corliss, That Old Feeling: When Porno Was Chic, TIME, Mar. 29, 2005,
http://www.time.com/time/columnist/corliss/article/O,9565,1043267,00.html. Much of the
pornography industry remains organized crime, making it unlikely that all earnings are re-
ported anywhere. See U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S COMMISSION
ON   PORNOGRAPHY, FINAL   REPORT   277-98  (July  1986), available  at http://
www.communitydefense.org/lawlibrarylagreport.html [hereinafter FINAL REPORT].
2.   As to pornography, these injuries are documented in testimony in IN HARM'S WAY:
THE PORNOGRAPHY CIVIL RIGHTS HEARINGS (Catharine A. MacKinnon & Andrea Dworkin
eds., 1997) [hereinafter HARM'S WAY]. As to prostitution, they are documented in Prostitu-
tion and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress
Disorder, in PROSTITUTION,. TRAFFICKING, AND TRAUMATIC STRESS 33 (Melissa Farley et al.
eds., 2003) [hereinafter Farley I]. See also NOT FOR SALE: FEMINISTS RESISTING PROSTITU-
TION AND PORNOGRAPHY (Christine Stark & Rebecca Whisnant eds., 2004) [hereinafter NOT
FOR SALE].
3.   This analysis is argued in Catharine A. MacKinnon, Not a Moral Issue, in FEMI-
NISM UNMODIFIED 146 (1987). Canadian obscenity law provides a partial exception,
criminalizing the undue exploitation of sex, or of sex and any one or more of the following
subjects, namely, crime, horror, cruelty and violence, Canada Criminal Code, R.S.C., ch. C-
46, § 163(8) (1985). This provision and has been interpreted on a gendered harm theory. See
Regina v. Butler, [1992] S.C.R. 452.

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