This hurts. It really does. In the matter of the "PornographyVictims Compensation Act of 1992," Senators Kennedy, Metzenbaum, Biden, Simon, et al, are right. The bill is a bummer. It's a feel-gooder.
I never expected to agree with these gentlemen on anything, and the experience is painful. Wonders never cease. Their objections to the bill are well-founded. The measure is stamped from a familiar pattern: good intentions, bad law. It ought to be quietly shelved, but in an election year the thing may pass.
This is what it would do. It would permit the victim of a sex offense to sue anyone involved in the production, sale or rental of particular child pornography or other obscene material.
At first glance, the idea appears attractive. This stuff is sickening, and the weirdos who produce it are creeps, but the bill is predicated upon such an array of contingencies and circumstances that it actually would accomplish nothing.
Politically the bill might accomplish something. It would enable those who vote for it to feel good. Members would be on the side of the angels. "See how virtuous we are!" Six weeks before an election is a great time to oppose "pornography."
To win damages under this bill, a plaintiff must establish by a preponderance of the evidence that the "exposure of the offender to obscene material or child pornography was a substantial cause of the offense." This is a tall order.
Psychologists and criminologists disagree on the causality of sexual crimes. There is some evidence that almost all men arrested for these offenses are habitual viewers of hard-core obscenity. If good books promote good behavior, surely bad books must promote bad behavior. The correlation makes common sense.
Common sense in a court of law is not enough. The hypothesis behind the pending bill is to this effect:
A 10-year-old girl complains that her uncle has engaged her in oral sex. Her story is so convincing that police obtain a warrant and make their arrest. They search the man's apartment. There they find a videotape showing naked little girls having sex with middle-aged men. Police seize the tape and other obscene material also.
Uncle is convicted. This is a necessary predicate to suing anyone. The child's family retains counsel. With some effort, and at considerable expense, counsel learn who produced the tape, who distributed it, who sold it or rented it.
It is likely that "Super-Porn Producers" are part of a criminal mob. The company operates in a fog of box numbers and aliases. Tracking down the distributor and seller would prove especially difficult.
Suppose all these people may be identified. Within one year after uncle's conviction, the child's family brings civil suit in the local, federal or state court. Damages are sought against the producer, distributor and the video store (or mail-order house) involved in the chain. The bill does not permit punitive damages. It is limited to "actual damages, including compensation for pain or suffering."
Now comes the hard part. The plaintiff family must prove to a civil jury that the tape was "a direct motivating factor in causing the sex offender to commit the sex offense."
Not one victim in a thousand will be willing to go to court and to testify again to the offense. Not one lawyer in a hundred would take a case promising so much distasteful work for so small a contingent fee.
The dissenting senators object that the bill cannot properly be compared to dram shop laws. In most states it is possible for the victim of a drunk-driving accident to sue the bar where the driver got drunk, but no state allows suit against the distiller who made the whiskey. The bill constitutes a dangerous expansion of tort ,, liability.
Senator Kennedy and his colleagues are right on this, too. It remains fearfully difficult to define "obscene material or child pornography." Vladimir Nabokov's "Lolita" appeared in 1955. It described the erotic travels of a middle-aged man with a 12-year-old girl. France banned the novel; it was the subject of obscenity prosecutions in the United States. Now the novel is widely acclaimed. Suppose a copy of "Lolita" were found in uncle's apartment. Substantial cause? Direct motivating factor?
Neither the senators nor I could fairly be charged with sympathy for child pornographers. Come off it. But it is wrong in principle to pass huff-and-puff laws that are all show and no substance. Kill the bill.
James J. Kilpatrick is a syndicated columnist.