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The arc of child pornography law closely tracks the cultural crisis mapped out above: Since their "discovery" in the late 1970s, the problems of child sexual abuse and child pornography have reached epidemic proportions. [201]
Child
pornography law arose in the same time frame and grew apace. Its lifespan and development correspond to the rise in awareness of child sexual
abuse more generally.
What are we to make of the correspondence between a spreading
cultural crisis and a growing legal structure? The conventional interpretation
is obvious: Law exists in a reactive mode; child pornography law has expanded
because it has responded to an expanding crisis.
In this Part, I cast aside this interpretation, not because it is
wrong, but because I think it is incomplete. Instead, I offer the first of two
readings that supplement the
conventional account. Although I believe the first reading offered here is
legitimate, in the end, I find it only partially satisfactory. I will explain
why when I turn to my second reading in Part IV, which I believe is a deeper,
albeit more troubling, interpretation of the problem.
Inherent in all regulation, but particularly in regulation of
sexual desire, there is the possibility that legal taboos will invite their own
violation. The desire to transgress a prohibition, indeed the thrill of
transgression for its own sake,
[202] is a familiar story. In fact, it is a foundational one. The most basic
myths of western culture tell of contravening prohibitions: Think of Adam and
Eve, or Prometheus, or Psyche.
Does this way in which interdiction can conjure desire play a role
in the puzzling relationship
between an expanding law of child pornography on the one
hand and an escalating crisis of child sexual victimization on the other?
Has legal regulation of child
pornography invited its own contravention, a rise in sexualized depictions of children?
I do not argue that the desire to transgress is a ubiquitous problem conjured up by all legal regulation. The dialectic between prohibition and transgression is not universal. This is so in two important ways:
First, even assuming that there is a sector of people who desire to violate a prohibition simply because activities are forbidden, we need not suppose that this sector represents more than a minority of the general population. We can further assume that not all of those who feel desire to transgress will in fact do so. Based on these assumptions, therefore, it is possible to suppose that more people will be driven to obey a prohibition than
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defy it. On this analysis, prohibition would do more good than harm
(in terms of achieving its stated ends).
Second, this dynamic is not present in all realms. Rather,
the sometimes dialectical relationship between prohibition and desire plays
itself out in different ways in different domains. Its relative power varies
according to the situation. As I will explain below, it is especially relevant
in sexuality. Its significance is even more urgent in the context of our current
crisis over child sexual abuse.
First,
I explore the contours of the relationship between prohibition and
violation.
Second, I argue that the nature of sexuality [203] renders this dialectic
particularly forceful in the context of sexual regulation, as opposed to
regulation in general.
Third, I propose that the current climate surrounding child
pornography law, described above, has made it especially likely to encourage
this perverse effect.
In short, there is something special about child pornography law.