Crush Porn Before SCOTUS

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The United States Supreme Court has granted certiorari in US v. Stevens, 533 F.3d 218 (3rd Cir. 2008).   The usual report is that the case is about videotapes of dog-fighting and whether their sale can be criminalized under the First Amendment.   Indeed, Stevens, the defendant, was convicted under 18 U.S.C. § 48, which provides that

“Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.”

But as the Third Circuit noted, Congress was not necessarily primarily interested in the protection of animals:

Resort here to some legislative history is instructive, not as a device to help us construe or interpret the statute, but rather to demonstrate the statute’s breadth as written compared to what may originally have been intended. The legislative history for § 48 indicates that the primary conduct that Congress sought to address through its passage was the creation, sale, or possession of”crush videos.”A rush video is a depiction of”women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”H.R. REP. NO. 106-397, at 2 (1999). Testimony presented at a hearing on the Bill, and referenced in the House Committee Report, indicates that”these depictions often appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.”Id. at 2–3.

In short, this is a case about”pornography”or”sexual expression”(choose your label) as well as about the abuse of animals.

–Ruthann Robson

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