Tuesday, November 13, 2012

The Dignity of Risk

In my guest column yesterday on Justia, I discussed “The Safer Sex in the Adult Film Industry Act,” an initiative approved by Los Angeles County voters that will mandate the use of condoms on adult film sets.  As I discussed in the column, if viewed as a content-based restriction of non-obscene speech, the Act cannot survive strict scrutiny.  In my view, the Act also visits serious dignitary harms on the workers of the adult film industry.  Required condom use, I suggested, is problematic because it deprives workers in the adult film industry of the “dignity of risk.”

The “dignity of risk” is a phrase that grew out of the experience of those who advocated the deinstitutionalization of the developmentally disabled during the 1970s.  Today, the phrase is often used by those who advocate allowing elderly patients to continue to live independently as long as possible.  At its core, the concept reminds us that part of the richness of the human experience is the ability to make decisions with the information we presently have, and to move on.  Sometimes, we’ll succeed, and other times we will fail.  That’s just life, and it is part of being human.

As a philosophical concept, I believe the “dignity of risk,” has particular salience where the government seeks to regulate consensual sex acts.  Of course, the law generally protects individuals from taking every manner of risk known to man.  Seatbelt laws, helmet laws, and vaccination laws deprive individuals of the ability to take certain risks, and few people oppose these types of regulation.

But sex is different, in part because the ability to seek consensual sexual gratification is a human dignitary interest of the highest order.  In the column, drawing on an essay by Professors Ian Ayres and Katharine Baker, I offered a hypothetical statute that would mandate condom usage in every sexual encounter unless and until the couple married.  Putting to one side the fact that not every couple desires to marry or yet has a right to marry, the hypothetical statute would be abhorrent because it would deprive individuals of the dignity of risk in their sexual lives.  

The risks associated with sexual activity should not be understated.  Pregnancy, communicable disease, and perhaps even death may well occur.  But sexual activity also brings with it the potential for some of humanity’s greatest joy, including allowing one’s self to be completely vulnerable to another person.  Or, in the words of Justice Kennedy, “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”  Condom use therefore, reduces the negative risks associated with sexual activity, but it might also diminish the possible richness of the human experience.

For these reasons, I am tremendously skeptical of any governmental attempts to mandate condom usage.  There is inherent dignity in enabling individuals to determine the types of risks they are willing to accept in their sexual lives.  Sometimes this may mean using a condom, and other times, it may mean accepting a certain amount of vulnerability.  The individual and not the government should be able to navigate these types of sexual risks.  

It bears noting here, that at least in heterosexual sex, women may bear more of the risk in deciding to have sex without a condom.  Only the woman may be become pregnant and in some instances, she may be more susceptible to communicable disease.  Respecting women’s dignity, it seems to me, requires acknowledging their ability to navigate these risks on their own terms.  Indeed, to the extent that mandatory condom usage may be seen helping and empowering women, a few prominent women in the industry have said that the regulation might actually cause them greater physical harm.  For example, the presence of condoms may cause the sex to be much more abrasive, and thus more likely to damage the women’s genital mucosa. 

One response is that whatever the validity of these concerns, they must yield in this context because adult film stars are engaged in a commercial venture.  They are not seeking to experience human joy, but are merely seeking a paycheck.  Just as the government can require that firemen wear masks, surely the government can require that adult film stars wear condoms.  Adult film stars are free to do whatever they want off the screen, but on camera, they need to wear protection. 

The problem with this critique, however, is that adult film stars provide a commercial service that is itself different from other types of commercial services, precisely because the service is sexual.  Viewing adult films may be the only source of sexual gratification for some individuals, who, for myriad reasons, do not have physical sexual contact with others.  In other words, the fact that adult film stars provide a commercial sexual service means that there is an even greater danger that government mandated condom use will deprive some individuals of sexual gratification—an interest, I have argued, is a human dignitary interest of the highest order.  The film industry tacitly acknowledges this fact when it maintains that many of its customers will not purchase films that contain condoms. 

The commercial nature of the sexual activity, in my view, is therefore not enough to rebut the presumption that governmental regulation of consensual sex is nearly always problematic.  As Martha Nussbaum has argued, our “insecurity about sex and the lack of control involved in sex” often causes governing majorities to constitute themselves as a dominant group of sexual “normals,” and others as a group of sexual deviants.  The deviants, in turn, become not only the subjects of regulation, but also the repositories of shame.  I do not believe that adult film stars are sexual deviants.  And like the rest of us, they are entitled to the dignity of risk in their sexual lives, commercial and otherwise.  


Paul Scott said...

Honestly, I think the only deprivation that is going to occur is that Los Angeles County is going to be deprived of its porn industry. My guess is it will move to Nevada.

Apart from that I am not sure I follow your reasoning vis-a-vis sex being special. There are all sorts of activities, single, couple or group, that society deems "too risky" to allow. My strong libertarian streak finds at least some fault in all of these laws, and a lot of fault in most of them. But I don't see the special distinction being drawn for sex as compared to, say, scuba diving (where a license is required to fill a tank) or driving or even flying, where a license is required to participate in the activity at all and where there are a number of mandatory safety devices required. To finish off a nearly endless list - helmet laws for cycling. I find riding without a helmet far more enjoyable than with one, but some municipalities allow me to be fined if I choose otherwise.

Maybe you make no distinction between all of these activities and sex, but if you don't then it seems that boat has long sailed and the comment is just a rage against the machine (nothing wrong with that). If you are making a distinction, and I am assuming you are, then I just don't see it.

Antonio M. Haynes said...

Paul, the Supreme Court itself has suggested that sex activity is special in a long line of cases, even if it has not used the term fundamental right. See Griswold, Roe, and Lawrence just to name a few.

In contrast, the recreational activities you name are simply not constitutionally protected conduct. See, e.g., Virginia v. Hicks ("The rules apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer players, and others not engaged in constitutionally protected conduct"); see also City of Dallas v. Stanglin (holding that "recreational dancing" is not constitutionally protected conduct).

Paul Scott said...

If I can, I'd suggest that none of those cases suggest sex itself is special. In fact, I think a fair reading of Bowers and Lawrence combined suggests quite the opposite.

All of those cases have to do with intimate relationships. The LAC proposition, foolish as it was, is sex in the context of workplace safety.

More importantly, though, I was referring to your "dignity of risk" position. You are using it in a context of workplace activity. So the work itself happens to involve sex and among work that involves sex happens to be among those that we decided were legal. The industry is already highly regulated, including mandatory STD testing. Is there a reason that the "dignity" is offended by mandating condoms but not when mandating the partner provide evidence of lack of sexual disease?

I just think this entire argument is misplaced. Further I think it is being used as a proxy for the real issue - the quality of the product will be reduced. That is, there are going to be people with no interest in seeing porn that involves condoms. Mine own guess is that product issue will be significant enough to drive the porn industry out of L.A. But regardless of what happens to the industry, none of this has anything to do with respecting the sexual choices of the actors.

Sherry F. Colb said...

Hi Antonio and hi Paul. I think I have to agree with Paul here. If we are going to rely on the Supreme Court's having elevated sex to a special constitutional status, then we may have to take "the bitter with the sweet," to quote the late-Chief-Justice Rehnquist. This Court's precedents support an important distinction between intimate sexual relations between private people and commercialized sex work, of which work in the pornographic industries constitutes just one example.

In a state in which prostitution were legal, for example, I cannot imagine anyone on the existing Supreme Court (or any prior Supreme Court, with the possible exception of Justice W.O. Douglas) voting to strike down a regulation requiring patrons of prostitutes to use condoms. And to the extent tnat we reject the Supreme Court's line between private and commercial sexual activity, it becomes unclear why we would then turn around and uncritically accept its treatment of sexuality as constitutionally unique.

Even if we do so, however, there are reasons to distinguish fundamental rights to contraception (which represent a means of protecting ourselves against unwanted risk that the government might seek to impose) and a right to have unprotected sex to gratify a customer's (i.e., viewer's) desires.

One other thought that occurs to me is that if some people get their only sexual gratification from pornography, that does not entitle them (through the customer demand that they are prepared to express with their money) to have actors engage in unprotected sex, any more than the fact that some people may be unable to get aroused in the absence of blood entitle those people to dictate with their dollars that sex workers in film injure one another with knives.

Like other individuals with less bargaining power than the customers for whom they labor to create products, the sex workers who perform sex acts for a camera in exchange for money are entitled to have the government protect them from the freedom to risk HIV infection, just as they are entitled to be protected from taking on the risk of otherwise working in an unsafe labor environment filled with toxins.

Antonio M. Haynes said...

Paul and Sherry,

I think I have to concede that you're both obviously right that the government has an interest in providing safe working conditions to all workers, regardless of the industry. And I will also concede that a fair reading of the cases supports a distinction between private sexual relationships and commercial ones.

But the intimate/commercial distinction seems to make very little sense in sex work. All sexual relationships are necessarily intimate in a way that others are not. Think about how elusive the private/commercial distinction is even in pornography. There are of course a few mega-studios with big named stars, but with the rise of sites in which everyday individuals and couples can just upload a few videos to make a few extra dollars, I don't see how it's sustainable. Would you really be prepared to apply the LAC ordinance to every couple who uploads videos to Xtube and gets a wide enough viewership to make a few dollars? I wouldn't.

And more fundamentally, though, I am skeptical that the government can fairly and objectively define a category of sex that is "too risky," or "not sufficiently intimate" without simultaneously discriminating against people with nontraditional sexual practices. The "commercial distinction," seems fairly obvious here, but what about bathhouses or swingers clubs, that require paid admissions? The participants there wouldn't necessarily be prostitutes or adult film stars, yet there is a strong argument that the relationships would not be sufficiently intimate and thus closer to the commercial line, and certainly closer to the not sufficiently intimate line. Should we really accept the government mandating condom use in these situations? Again, I would not.

My tentative thought is that once the the basic parameters for the quality of consent and the decision-making capacity of the consenter have been set and are unquestionably met in the sexual realm (as they are here), any additional restrictions on sexual autonomy require some greater justification than we currently do. The dignity of risk compels this result.

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