The philosophical, political, and legal impact of Catharine MacKinnon's groundbreaking work Toward a Feminist Theory of the State (1989) is discussed, specifically the merging of consciousness-raising of subordinated groups with critically informed scholarship, producing a problem-driven approach engaging in informed policy-making. As a comprehensive political theory of the relationship between male dominance and the state, one of Toward's central features was to draw from consciousness-raising as a feminist research method to further ground its approach to equality, particularly in its prescription for substantive equality laws. The article illustrates how such central concepts have influenced real changes in the world, specifically using legal challenges to pornography and prostitution as examples.

Parts I and II demonstrates how Toward departed from conventional epistemologies, in part explaining its revolutionary appeal to students, practitioners, and scholars. Part III continues the analysis by using real world applications of its approach to pornography and prostitution, beginning with the anti-pornography civil rights ordinances drafted by Catharine A. MacKinnon and writer Andrea Dworkin in 1983, six years before the publication of Toward. Part III illustrates how the ordinances mobilized MacKinnon’s same cutting-edge approach to advancing women’s legal substantive equality about which she later theorized. A similar approach was instrumental in grounding a substantive equality prostitution law, proposed by MacKinnon in a public speech in Stockholm, Sweden, November 2, 1990, situating that law within her broader approach to equality. The Swedish national umbrella organization for women’s shelters, ROKS, lobbied for the law and rallied other actors to support it, precipitating its passing in Parliament in 1998, with the law taking effect in 1999. Similar laws have now been adopted by many more countries (attesting to MacKinnon’s extraordinary influence as a legal and social theorist), although not until ten years or more after Sweden’s law, which makes Sweden’s unique data availability a “revelatory case.” Part III concludes by analyzing its comparative impact in terms of reducing sexual exploitation and abuse and offering an exit for people in prostitution, thus promoting substantive equality.

Until recently, Canada criminalized anyone who lived "wholly or in part on the avails of prostitution of another person,” and anyone who kept, controlled, or knowingly permitted a “bawdy-house” for prostitution. The Supreme Court of Canada found that these laws prevented brothel management, escort agencies, bodyguards, or drivers from enhancing the safety and well-being of prostituted persons in indoor locations. This article assesses the evidence relied on by courts to strike down the laws, finding that evidence was misrepresented and misevaluated, thus did not support their decision. Empirical evidence shows that prostitution is an unequal practice of sexual and economic exploitation to which prostituted people generally lack real or acceptable alternatives. Pimps and brothel-owners in general make their situations worse, not better. The two invalidated provisions facilitate prosecution of pimps and other third party profiteers more effectively than existing trafficking laws. By invalidating these provisions, Canada will expose prostituted people to predators while protecting their exploiters. Their decisions overturn previous precedents that shielded prostituted people from abusive pimps, and violate Canada’s commitment to promote equality among historically disadvantaged people, such as those in prostitution. Charter principles of substantive equality call for retaining laws that put exploiters — pimps and brothel-owners — out of business, while invalidating any fines or criminal laws imposed on prostituted persons, measures that preclude their opportunities and exit. Civil damages actions on behalf of prostituted people and effective criminal laws against purchase of people for sex would also promote their substantive equality.

Pornography is a deeply polarizing issue. Its critics raise concerns of sex inequality, sexual violence and exploitation – in other words, that pornography causes harms of discrimination, in particular against women. Its defenders invoke freedom of expression and sexual freedoms, focusing on the dangers of regulation. Differences in opinion are particularly strong if we compare men and women as groups. Opinion surveys in countries such as Sweden and the United States have long shown that at least half of all women want to see stronger regulation to limit pornography – not infrequently a “total ban.” By contrast, significantly fewer men share that view, even if around 35–40% may similarly wish to see stronger regulation.

Yet the reason pornography is an important issue for women’s shelters and other organizations working to prevent and combat men’s violence against women is not primarily that it gives rise to differences in opinion between men and women. Historically, pornography has often played a part in the shelters’ work with clients; their experience shows that it acts as a catalyst and inspiration that contributes to men’s sexual aggression and negative attitudes toward women. These experiences are further corroborated today by a large number of international scholarly studies and public inquiries into pornography’s link to men’s violence against women that have been conducted in various countries since the 1970s.

Rapport om kopplingarna mellan pornografi och könsbaserat våld mot kvinnor, inklusive rättspolitiska förslag för Sverige med jämförelser med USA. Del I (s. 1-30) är skriven av Unizon (paraplyorganisation för svenska kvinnojourer m.m.) och baseras på primärdata från deras medlemsorganisationer. Del II (s. 31-108) är skriven av Max Waltman i samarbete med Unizon. De fyra kapitlen i del II baseras på Waltmans doktorsavhandling (2014) och presenterar en analytisk sammanfattning av existerande forskning som följs av rättspolitiska förslag. Genom ett problemdrivet teoretiskt angreppssätt analyseras pornografins reella skadeverkningar. Kunskap och evidens visar att dess produktion exploaterar existerande ojämställdhet och ojämlikhet bland personer som typiskt sett rekryteras från andra former av prostitution och som lider av en multipel problematik, t.ex. extrem fattigdom, sexuella övergrepp under barndomen samt ras- och könsdiskriminering som försvårar alternativa sätt att överleva. Konsumtionen är uppdelad på grundval av kön. En majoritet av unga män konsumerar ofta pornografi; kvinnor gör det sällan, såvida de inte initieras till det av andra. Efter konsumtion visar studier hur många normala män blir betydligt mer sexuellt aggressiva och i ökande utsträckning trivialiserar och främjar våld mot kvinnor. Utsatta grupper — t.ex. misshandlade, våldtagna och prostituerade kvinnor — blir som resultat mest skadade. Rapporten avslutas med ett kapitel som presenterar rättspolitiska förslag. Det analyserar deras såväl reella som imaginära hinder och potential i bemötandet av verkliga empiriska skador genom lag.

I huvudsak föreslås först börja tillämpa kopplerilagarna på produktion av pornografi då pornografer bokstavligen "främjar" och vanligtvis också "otillbörligt ekonomiskt utnyttjar" att personer har sex mot ersättning. Praxis visar att yttrandefriheten inte sätter upp hinder så länge en tillämpning av vanlig lag på brott utförda under produktionen inte direkt riktar in sig på spridning av annars yttrandefrihetsskyddat material (jfr domen mot Anna Odells konstaktion 2009 samt domar mot våldtäktsmän som systematiskt filmat övergrepp för att göra pornografi). I ytterligare led föreslås anamma lagstiftning mot spridning via liknande tillägg i den svenska grundlagen som för barnpornografi eller alkoholreklam, men baserade på en mer preciserad och snäv definition av den grafiskt sexuellt explicit underordnande, avhumaniserande och objektifierande pornografin som evidensbaserad forskning visar orsakar mer könsbaserat våld. Civilrättslig lagstiftning mot sådan könsdiskriminering rekommenderas bl.a. då studier av tillämpning av straffrättsliga pornografilagar visar på allvarliga brister alternativt frånvaro av aktivitet när initiativet inte ligger hos de drabbade -- ett angreppsätt som ej effektivt tillvaratar deras perspektiv och intressen. De senare kan företrädas av representanter med starkare incitament (t.ex. kvinnojoursorganisationer) än ointresserade, avtrubbade eller överbelastade poliser och åklagare.

This book offers a cutting-edge, cross-disciplinary analysis of how the explosive spread of pornography contributes to violence against women, including prostitution, while presenting a political and legal theory on how to stop it effectively. It guides the reader through fifty years of significant empirical research on the harms, including a vast array of different studies illuminating pornography’s powerful impact on men, a majority of whom consume it. A comparative analysis of legal challenges in Canada, Sweden, and the United States demonstrates why civil rights, not criminal laws, can empower those hurt, subordinated, and exploited while efficiently dismantling the sex industry, consistent with free speech guarantees.

This paper analyzes the core reasons for the Swedish law from 1999 which criminalizes purchase of sex and decriminalizes the prostituted person, passed as part of an omnibus bill against violence against women and recognizing prostitution as a form of it. Further, it documents the law’s impact by comparing data from several recent Swedish studies with the situation in other relevant countries, concluding the law has significantly reduced the occurrence of prostitution manifolds compared to its neighboring countries. Crucial obstacles to effective implementation are also addressed, particularly in current case law. Some of the critique against the law and disinformation about the law’s effects are also commented. Finally, to realize its full potential to support escape from prostitution more efficiently, it is argued that the civil rights of prostituted persons under current law should be strengthened to get damages paid for directly by the tricks/johns for the harm they have contributed to. An additional consideration is for individual states to extend the use of the Palermo Protocol (international law acknowledging connections between prostitution and sex trafficking) to charge tricks for trafficking when they “receive” persons who are effectively pimped.

The Swedish prostitution law from 1999, now followed by Norway and Iceland, criminalized the purchaser and decriminalized the prostituted person. This is analyzed as a cogent state response under international trafficking law, particularly to the obligations set forth in the United Nation’s Trafficking Protocol from 2000. The Protocol states that a person is regarded a trafficking victim when, e.g., someone abuses her “position of vulnerability” in order to exploit her. International jurisprudence and social evidence strongly suggest that prostitution, as practiced in the world, usually satisfies this definition. Further, the Protocol urges states to reduce the demand for prostitution and to protect and assist victims, for instance by adopting laws deterring purchasers of sex, and by supporting those exploited in prostitution. Policy makers, such as the U.S. Department of State, are criticized for taking an inadequate position in face of the growing evidence from the Swedish law's impact.The article shows that Sweden has significantly reduced the occurrence of trafficking in Sweden compared to neighboring countries. It also scrutinizes some misinformation of the law's impact, showing for instance that claims alleging a more dangerous situation for those still in prostitution after 1999 were unfounded. In addition, the article addresses remaining obstacles to the law's effective implementation, arguing that in order to realize the law's full potential to support escape from trafficking, the civil rights of prostituted persons under current law should be strengthened to enable them to claim damages directly from the purchasers for the harm to which they have contributed, and for the violation of the prostituted persons' equality and dignity - a position now recognized by the government to some extent by clarifying amendments made in 2011.

Why are democracies unresponsive to well-documented injuries in the production and by the consumption of pornography? Legal challenges to pornography in Canada and the United States in which sexual subordination, not moral notions of "obscenity," were the driving rationale, show democracies inadequately recognizing gender-specific harms. Changes in Canadian obscenity doctrines to account for harm and inequality, in contrast with the U.S. reign of "free speech," did not deliver a corresponding change on the ground. Developments in democratic theory, international law, and the particular U.S.–Canadian legal trajectory, and consideration of the void of institutions articulating the interests of those victimized in and by pornography, suggest the need to adopt empowering civil remedies.

In 1999, Sweden passed a law criminalizing the purchase of sex and decriminalizing the prosti­tuted person. The law was part of an omnibus bill against violence against women, recognizing prostitution as related to such violence. This article analyzes the reasons for the Swedish law and documents the law’s impact, concluding that the law has significantly reduced the occur­rence of prostitution in Sweden compared to neighboring countries. In addition, it addresses some important remaining obstacles to the law’s effective implementation and responds to vari­ous common critiques of (and misinformation about) the law and its effects. Finally, this article argues that, in order to realize the law’s full potential to support escape from prostitution, the civil rights of prostituted persons under current law should be strengthened to enable them to claim damages directly from the tricks/johns for the harm to which they have contributed.

I USA har överlevare lämnat in stämningar mot Pornhub. Den svenska sexköpslagen erbjuder en unik möjlighet att kunna åtala också Onlyfans ägare för koppleri, eftersom uppsåt inte behöver bevisas. Även prenumeranterna kan åtalas för sexköp. Max Waltman förklarar hur lagen kan användas.

Prostitution is a social practice where money is paid for sex. Social science research and other evidence suggest that the sex in pornography is generally supplied by persons who share similar unequal, exploitative, and coercive life circumstances as those who are prostituted generally share. Given that these conditions are similar, there appears to be little reason why the pornography industry should not be subjected to the same legal scrutiny as prostitution per se, as it could have extremely important implications for the population who are exploited in the sex industry. Thus, this paper inquires into the legal, political, and ideological obstacles to address the harmful exploitation of persons in the pornography industry by applying prostitution laws against pimps and other third parties to its production, finding that the obstacles to application are not legal but ideological and political. The paper takes a political science approach to constitutional issues, laws, legislative and judicial politics, drawing from political theory by authors such as Kimberle Crenshaw (intersectionality), Iris Marion Young (groups and inequality), Jane Mansbridge (representation), Ian Shapiro (constitutional politics), Laurel Weldon and Mala Htun (social movements and inequality). Sweden is selected as a case study, having been the first jurisdiction (1999) in the world that identified prostitution as a form of sex inequality related to gender-based violence, with pimps and johns as central in the cycle of exploitation and abuse - a legal approach more consistent with empirical evidence than conventional approaches viewing prostitution per se as either a moral crime of indecency, or a non-exploitative and tolerable work. Some comparative discussions are entertained throughout, with references to Canada, the United States, and international law.

Pornography production exploits social disadvantages, often while using prostituted people who have endured poverty, childhood sexual abuse, race and/or sex discrimination. Over time, consumers become more sexually aggressive, adopt more attitudes supporting gender-based violence, and buy more sex than non-consumers. This study finds that challenges to pornography’s harms will be more successful in democracies that better recognize substantive equality, and where the harmed groups’ perspectives and interests are centered in law. Civil rights appear more responsive and remedial than state-implemented criminal laws, with similar implications for other problems disproportionately affecting disadvantaged populations.

The dissertation analyzes obstacles and potential in democracies, specifically Canada, Sweden, and United States, to effectively address empirically documented harms of pornography. Legislative and judicial challenges under different democratic and legal frameworks are compared.

Adopting a problem-driven theoretical approach, the reality of pornography’s harms is analyzed. Evidence shows its production exploits existing inequalities among persons typically drawn from other forms of prostitution who suffer multiple disadvantages, such as extreme poverty, childhood sexual abuse, and race and gender discrimination, making survival alternatives remote. Consumption is also divided by sex. A majority of young adult men consumes pornography frequently; women rarely do, usually not unless initiated by others. After consumption, studies show many normal men become substantially more sexually aggressive and increasingly trivialize and support violence against women. Vulnerable populations—including battered, raped, or prostituted women—are most harmed as a result.

The impact of attempts to address pornography’s harms on democratic rights and freedoms, specifically gender equality and speech, is explored through the case studies. Democracies are found to provide more favorable conditions for legal challenges to pornography’s harms when recognizing substantive (not formal) equality in law, and when promoting representation of perspectives and interests of groups particularly injured by pornography. State-implemented approaches such as criminal obscenity laws are found less effective. More victim-centered and survivor-initiated civil rights approaches would be more responsive and remedial—a finding with implications for other politico-legal problems, such as global warming, that disproportionately affect disadvantaged populations traditionally largely excluded from decision-making.

The Swedish prostitution law from 1999, now followed by Norway and Iceland, criminalized the purchaser and decriminalized the prostituted person. This is analyzed as a cogent state response under international trafficking law, particularly to the obligations set forth in the United Nation’s Trafficking Protocol from 2000. The Protocol states that a person is regarded a trafficking victim when, e.g., someone abuses her “position of vulnerability” in order to exploit her. International jurisprudence and social evidence strongly suggest that prostitution, as practiced in the world, usually satisfies this definition. Further, the Protocol urges states to reduce the demand for prostitution and to protect and assist victims, for instance by adopting laws deterring purchasers of sex, and by supporting those exploited in prostitution. Policy makers, such as the U.S. Department of State, are criticized for taking an inadequate position in face of the growing evidence from the Swedish law's impact.The article shows that Sweden has significantly reduced the occurrence of trafficking in Sweden compared to neighboring countries. It also scrutinizes some misinformation of the law's impact, showing for instance that claims alleging a more dangerous situation for those still in prostitution after 1999 were unfounded. In addition, the article addresses remaining obstacles to the law's effective implementation, arguing that in order to realize the law's full potential to support escape from trafficking, the civil rights of prostituted persons under current law should be strengthened to enable them to claim damages directly from the purchasers for the harm to which they have contributed, and for the violation of the prostituted persons' equality and dignity - a position now recognized by the government to some extent by clarifying amendments made in 2011.

GÖTEBORGS-POSTEN 10 Maj, 2011, Debatt

I sexköpsmål betalar köparen i dag främst böter till staten och prostituerade personer kallas endast som vittnen. Möjligheten för prostituerade människor att yrka skadestånd finns, men har aldrig använts sen lagen kom till. Vi vill se en utredning som ser över hur deras förutsättningar för skadestånd kan förbättras, skriver bland andra Carina Hägg (S).