I remember Judge Sweet from when I clerked for a Southern District judge in 1981-82. How old is he? 95! Amazing to work to such an old age. I've always liked Judge Sweet, not because I've followed him over the years, but because of one case he decided in the year when I worked in the same courthouse.
In United States v. Various Articles of Obscene Merchandise, he had said that since the movie "Deep Throat" was playing all over the Southern District of New York, it must fit "community standards" and therefore could not be obscene within the First Amendment doctrine.* I was no fan of "Deep Throat" (never saw it, never cared to see it), but I've always hated censorship, and I loved the idea — my personal translation of the meaning of the case — that nothing could ever be obscene in New York City.
Anyway, in this new case, Judge Sweet is now being asked to certify an appeal of his decision about what is a "commercial sex act" within the meaning of the Justice for Victims of Trafficking Act of 2015.
In his decision, Sweet acknowledged navigating "unchartered waters"** on this issue and even paused a moment to consider —if quickly reject — Weinstein's hypothetical about an individual who treats a person to a free dinner, promises future gifts, and then attempts to engage in activity which he construes as consensual sexual activity.Weinstein's lawyers want a more limited meaning to "commercial sex act." Note that Congress passed the statute using its Commerce Power, and courts will normally interpret a statute to avoid a constitutional problem. But it was a commercial setting, the movie business, not some personal date. Weinstein's lawyers are just stressing that there was "no actual exchange of value," just "a fraudulent 'promise.'"
Is that sex trafficking? "Notably absent from this hypothetical are the necessary elements of force, fraud, and commerce, all of which have been established here," responded Sweet.
The judge added, "The contention... that Noble was given nothing of value — that the expectation of a film role, of a modeling meeting, of 'his people' being 'in touch with her' had no value — does not reflect modern reality. Even if the prospect of a film role, of a modeling meeting, and of a continued professional relationship with [The Weinstein Co.] were not 'things of value' sufficient to satisfy commercial aspect of the sex act definition, Noble's reasonable expectation of receiving those things in the future, based on Harvey's repeated representations that she would, is sufficient."...
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* After the Second Circuit Court of Appeals was boring enough to reverse, Judge Sweet still reached the same result, finding the material not patently offensive under contemporary community standards. In that later opinion, he wrote this about the value of pornography for old people:
[A]t an Address to the American Psychological Association on August 23, 1982, the behavioral psychologist, B.F. Skinner, cited the theologian Paul Tillich and his defense of "pornography on the ground that it extended sexuality into old age." Meyer, B.F. Skinner on Behaving His Age, The Washington Post, Aug. 24, 1982, at Bl.Judge Sweet was 60 when he wrote that, 35 years ago.
Much of what we call aging, he said, is not an inexorable biological process, but a change in the physical and social environment. As vision, hearing and taste fade, and erogenous tissues grow less sensitive, the elderly become bored, discouraged and depressed. They no longer receive powerful reinforcement from the environment, and fewer things seem worth doing. But that can be changed, he said. Foods can be highly flavored, pornography can be used to extend sexuality into old age, those who can't read can listen to book recordings.N.Y. Times, Aug. 24, 1982, § C, at 2. The remarks of Skinner and Tillich suggest the beneficial utility of pornography and to that extent serve to modify this court's prior conclusion that these materials lack serious literary, artistic, political and scientific value.
** I'm not looking at the original text of the opinion, but I doubt that Sweet wrote "unchartered waters" instead of the correct "uncharted waters."
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51 comments:
They picked the wrong definition of commercial sex act, if it's a commercial sex act.
A prostitute wants your return business.
By coincidence I watched the 2005 documentary Inside Deep Throat last night and agree with a reviewer, "Bailey and Barbato aren't as interested in the picture itself as they are in the people who made it, a collection of hustlers, crackpots, cranks and stooges colorful enough to inspire Elmore Leonard."
Now Ann, didn’t all the SDNY law clerks get an invite to see “Deep Throat?”
The existential problem here is that women have long, and maybe even primarily, traded access to their bodies, and esp their wombs, for something of value from males. And it is this desire, drive really, by males, that is the major force for advancement in our species. Outside of maybe half the counties in NV, we have outlawed the strict trading of money for sex, on a quid pro quo basis in this country. On the flip side, we are far from outlawing marriage. But the line must be drawn somewhere, and maybe it is moving, just as prostitution was made progressively more illegal during maybe the second half of the 19th Century (not sure of the actual timing there, but here in the west, with a shortage of women, it was tolerated my ch later than in the rest of the country).
Let me add that most of the women involved very likely knew what they were getting into with Weinstein and show business. If not, they only have their mothers to blame. My partner grew up as a dancer in Vegas, with a mother who choreographed shows there, and taught dance on the side. Which meant that she could easily get an interview for her daughter with one of the producers. After telling the daughter he liked they way that she danced, he asked for a little T&A. My partner was 15 at the time, and learned a life lesson that day - these jobs are highly competitive, and the only thing, on many occasions, that separates the girls that get the jobs from those that don't is what they are willing to give up to the gatekeepers (like Weinstein), and that very often meant sex. Most mothers don't have those resources, but do owe their daughters a frank discussion about the facts of life. But on a philosophical basis, trading sex for access to a highly paid career is little different from prostitution on one side, and showing appreciation for dinner and a show with a little sex. Or maybe even accepting support from a man for having his kids. All really on a continuum.
"Now Ann, didn’t all the SDNY law clerks get an invite to see “Deep Throat?”"
The only time I've ever watched real pornography was in the judge's chambers. It wasn't "Deep Throat," just some weird little story about an ugly man calling up a bunch of women, who all come over and minister to him and then leave, at which point he says the punchline, "I guess that ought to hold me for another 7 years."
It was kind of sad, the boxes of videotapes the government was seizing and forcing federal judges to check for obscenity so the addressee of the box would never receive what he'd mail-ordered. What a waste of everyone's time and money!
I did get to see the movie "Altered States" (in a beautiful screening room) when my judge had the trial over whether Paddy Chayevsky had a co-author of the book.
Women would not have gone by themselves to see a porn flick at the time. They'd need a boyfriend so that they're with somebody already.
"A prostitute wants your return business."
Not if you didn't pay her.
"The existential problem here is that women have long, and maybe even primarily, traded access to their bodies, and esp their wombs, for something of value from males. And it is this desire, drive really, by males, that is the major force for advancement in our species. Outside of maybe half the counties in NV, we have outlawed the strict trading of money for sex, on a quid pro quo basis in this country. On the flip side, we are far from outlawing marriage. But the line must be drawn somewhere, and maybe it is moving, just as prostitution was made progressively more illegal during maybe the second half of the 19th Century (not sure of the actual timing there, but here in the west, with a shortage of women, it was tolerated my ch later than in the rest of the country)."
Well, you know my solution. I've said it many times. Understand and embrace the ideal that sex should always be a sex-for-sex exchange. If either party to the exchange has to add a non-sex sweetener, you're doing it wrong.
I don't mean wrong in the legal sense. I'm not asking for the government to enforce this. I'm just saying this is the ideal that people should apply to sex. Don't give your body or take another person's body unless the sex itself is a desirable exchange.
"A prostitute wants your return business."
What is the relevance of that to the statute under discussion which protects victims of sex trafficking? Do you understand the problem Congress was addressing?
I read a book several years ago on the shape of occupations. Most of them have fairly little inequality. For example, a top carpenter may earn $50 an hour, and entry level may pay $12.50, which is a 4/1 ratio. Compare this to show business, where top talent may make $10 million per film, while most actors are lucky to do much better than minimum wage when they are lucky enough to get acting work. So call it a 1,000,000/1 ratio in pay, with tens of thousands, if not more, toilets big at the bottom, for their chance at the big money, which statistically will never come for them, and a handful at the top. The bigger the disparity between the top and everyone else, the steeper the income curve, the bigger the role of gatekeepers, like Weinstein. I just don't see this changing, because there are inevitably, in such industries, women, in particular, willing to trade sex for advancement, to get advantage over other women, when all else is even.
If a promise of a film role is a thing of value for this, would a man promising to marry a woman and then not also be offering a thing of value?
I think you can make this argument, but I feel it may get super broad. But may be that's ok.
"Women would not have gone by themselves to see a porn flick at the time. They'd need a boyfriend so that they're with somebody already."
The thing at the time was that couples would go to the movie together. It was considered adventurous and modern to go to that one particular movie, which was supposedly good enough to go see as a real movie (as opposed to a sleazy activity for men).
I think my parents went. As I remember the time, people my age — 30 and under — saw "Deep Throat" as something older people would go see and think they were cool when they were really embarrassing.
The idea that women just really wanted to go to a porn movie... I never noticed that happening.
BTW, when the porn movie was shown in my judge's chambers (without the judge), I watched with 2 student who were interning as clerks, and we just found it funny and laughed a lot. My co-clerk, a male, stayed with us for a short time, but then left. The effect on him was (I guess) entirely different, perhaps because of the live women in the room, but I think it was our laughter.
" So call it a 1,000,000/1 ratio in pay, with tens of thousands, if not more, toilets big at the bottom, for their chance at the big money, which statistically will never come for them, and a handful at the top."
What? Toilets big at the bottom? I'm lost.
would a man promising to marry a woman and then not also be offering a thing of value?
Breach of promise (to marry) was actionable at common law. Despite the term, I believe it was treated in tort, not contract.
toiling?
There also used to be, back in those dark unenlightened times, the tort of seduction, in which a woman could obtain damages if her consent to sex was based upon a misrepresentation regarding marriage.
Greeeeaaat. Now prosecutors are going to have to charge all the women who gave it up to Weinstein for a valuable film role with prostitution.
I mean, if he’s guilty, why aren’t they?
There also used to be a principle in the law that if a woman "gave it up" - consented to and had sex - upon the promise of some future pecuniary benefit, that it was deemed a meretricious relationship, that is, one akin to prostitution. As such, there were no damages and the law left the parties where they were.
Could a street prostitute sue a John who didn't pay her under this law?
I'm not clear on what the difference is.
On the street, hookers often have a pimp to deal with collection problems. Is Noble simply asking the government to play the role of pimp here?
I'm pretty sure the outright assaults and rapes should be enough to put him away for good either way.
Our Professor says: Understand and embrace the ideal that sex should always be a sex-for-sex exchange. If either party to the exchange has to add a non-sex sweetener, you're doing it wrong.
hmmm seems, at the least, to be like solar power; demand and supply times might not (probably not) always align, so you need a bank to hold the difference. What i'm saying is that Even If two people are Ideally matched in sexual desire, it's unlikely that they will always be matched in time schedules. If you ONLY give sex when you want sex, you're probably not going to Get sex when you want sex. Either there is going to have to be roaming for finding interested parties, or there is going to have to be a banking system where you receive a hamburger today that you will gladly pay back next tuesday.
And if delayed reciprocation is okay, what if you really Really like having sex with your wife; but not quite as often as she does? Should she roam for the rest? Should she be denied the rest? .
Obviously, in a perfectly perfect world, both partners would orgasm at Exactly the Same Time, and stop and hug each other and fall asleep in each others arms.
BUT, in Reality; one person needs/wants more sex time than the other and accommodations must be made.
I think Linda Lovelace (star of Deep Throat) basically came out and said she was repeatedly drugged and raped during most of the production of Deep Throat. Not to get overly moralistic, but I wonder if adventurous movie going couples of that era ever appreciated that.
"Well, you know my solution. I've said it many times. Understand and embrace the ideal that sex should always be a sex-for-sex exchange. If either party to the exchange has to add a non-sex sweetener, you're doing it wrong."
I think that is fairly naive and utopian. Or that you could get to where you wanted to go on brains and talent alone, which you did, and were happy with it. When my partner was in college, in Vegas, she could have had dinner (and often, a show) with a different guy every night, with no requirement of sex in return (though that was, in the end why the guys wanted to go out with her). Her girlfriends thought that she was a fool not to. They would have if given the choice. At one level, it is a morality decision, but another, maybe it is just white upper middle class privilege. You were able to get what you wanted without needing to trade sex to get there. Most people are never given the chance of a career like yours. Most weren't blessed with your brains or upbringing and drive, that got you graduating well from college, at the top of your class from law school, that SDNY clerkship, etc. And most of the women that my partner was competing with for dates back then, in a city that worshipped beauty, hadn't inherited her good looks, that she had, from parents who were equally good looking. Maybe you are saying that we should all be happy with what we can achieve without violating our own morality, but few can obtain the type of professional position that you did, with what they were given.
The idea that women just really wanted to go to a porn movie... I never noticed that happening.
I took a gf who asked that we go, just curious whether it was erotic or what.
Answer no. Guys are done at the first pussy, girls want a plot.
"" So call it a 1,000,000/1 ratio in pay, with tens of thousands, if not more, toilets big at the bottom, for their chance at the big money, which statistically will never come for them, and a handful at the top."
What? Toilets big at the bottom? I'm lost."
Sorry - AOS spellcheck throwing words in there and my not proofing well enough afterwards. This older iPad is esp bad. Typing too fast and proofing too little. Just drop out those two words, and it reads much better.
" So call it a 1,000,000/1 ratio in pay, with tens of thousands, if not more, at the bottom, for their chance at the big money, which statistically will never come for them, and a handful at the top."
Bob Boyd said...
"A prostitute wants your return business."
Not if you didn't pay her.
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Payment comes first. Always.
You should watch Deep Throat, professor.
Its sexual thesis is correct and has long since been confirmed by its wholesale adoption in porn.
Granted, the notion that a woman would demean herself to give men what they want is horrifying. But, oddly, it leads to full orgasm for women.
The "whoregasm" is trigged by DP with deep throat. Every woman should try it at least once.
And God laughed.
Every whore I met in this life first claimed that she got into whoring at the point of a gun.
I think a few of them were telling the truth.
It should be "uncharted waters".
The climactic and brilliant dinner scene in Philip Roth’s “American Pastoral” features the couples at a 1970s party in an affluent suburb in New Jersey discussing their respective viewings or decisions-not-to-view “Deep Throat”. It’s so, so good.
This post is the first time I’ve encountered the idea that old people “no longer receive powerful reinforcement from their environment” which leads to boredom and depression. That’s so interesting. My experience is that everything seems more vivid, not less vivid. Everything I encounter that is even remotely interesting fires off a lot of neurons of context and remembrance.
I know that it's supposed to be uncharted waters, but unchartered waters makes better sense to people nowdays.
People are more likely to charter a boat to explore a body of water than they are to chart a body of water.
This real life case reminds me of a fictional one from Law and Order SVU. A guy was pretending to be a college administrations official in order to bed women who were thinking it’d help their son or daughter get into the ivy leauge school he claimed to represent. For this deception, the man was charged with rape, and within the episode there was controversy over the decision to charge it as a rape because of the seemingly consensual quid pro quo aspect of it. Interesting idea. Looks like in some way life is imitating art here.
"The climactic and brilliant dinner scene in Philip Roth’s “American Pastoral” features the couples at a 1970s party in an affluent suburb in New Jersey discussing their respective viewings or decisions-not-to-view “Deep Throat”. It’s so, so good."
I need to go back and find that. Thanks. I've read the book but forgot that.
"I know that it's supposed to be uncharted waters, but unchartered waters makes better sense to people nowdays. People are more likely to charter a boat to explore a body of water than they are to chart a body of water."
But you don't charter the water.
Good for rhyming though... for those of use who say "warter."
Woman without hot box will never see the world the way woman with hot box sees it.
Old proverb.
My wife was taken to a showing of "Deep Throat" by her first husband.
She told me she thought, "I can get through this if they just don't have a close up."
Then the closeup.
Sounds like Judge Sweet still has his common sense intact.
Weinstein's behavior was reprehensible but it was not sex trafficking--that's akin to calling Trump a Nazi.
gilbar said... "hmmm seems, at the least, to be like solar power; demand and supply times might not (probably not) always align, so you need a bank to hold the difference."
Yeah. The bank is your own mind and body. Respect it. You can have desires that are not immediately fulfilled. You never learned about delayed gratification?
"What i'm saying is that Even If two people are Ideally matched in sexual desire, it's unlikely that they will always be matched in time schedules. If you ONLY give sex when you want sex, you're probably not going to Get sex when you want sex."
Right. You don't always get what you want at the first tickling of interest in it. And you shouldn't. I'm trying to help you be a good person with some moral substance.
"Either there is going to have to be roaming for finding interested parties, or there is going to have to be a banking system where you receive a hamburger today that you will gladly pay back next tuesday."
If you find a partner who likes to play that way and it's as good for her as it is for you, you can make that deal.
"And if delayed reciprocation is okay, what if you really Really like having sex with your wife; but not quite as often as she does? Should she roam for the rest? Should she be denied the rest?"
She should be denied the rest. She probably can't eat all the ice cream she wants either. To whine about that is babyish. And no sex at all for babies. Grow up.
"Obviously, in a perfectly perfect world, both partners would orgasm at Exactly the Same Time, and stop and hug each other and fall asleep in each others arms. BUT, in Reality; one person needs/wants more sex time than the other and accommodations must be made."
No accommodation is needed. You don't get every whim fulfilled. It's not a problem. It may even be the opposite of a problem. Think about it. And good luck.
"Understand and embrace the ideal that sex should always be a sex-for-sex exchange"
Yesterday I mentioned my first boyfriend's grandfather who had a mistress/companion. I was told, by an uncle of all things, that this was because the grandmother (obviously the uncle's mother) had her four children and then informed her husband there was no longer any reason to have sex. Sex was for procreation and she was finished procreating. She also didn't believe in divorce.
Grandfather lived in New Jersey and traveled for work. A few years after grandmother's edict grandfather met and fell in love with a very nice woman in California. They were together for decades.
Maybe grandfather was horrid at sex? Maybe grandmother had serious issues? Was the sweet companion a prostitute? Maybe grandfather was better at sex with the sweet companion? These were all questions my boyfriend did not want to dwell on in thinking about his grandparents.
Grandmother refused to travel to California. That is the reason that I met grandfather and never met grandmother.
The Alrhouse theory works well for people in their twenties. Maybe even for people in their thirties. It fails utterly when applied to millionaires and Hollywood producers in their forties and fifties.
Interesting argument from the Weinstein team:
Your Honor, if my client had been telling the truth to the woman, and actually got her a job because she let him screw her, that would be a commercial sex act, and the case could go forward.
But, because my client is a lying hag of a sleaze bag, and lied to her about jobs so he could screw her, there's no case, and no redress for her.
Yeah, no.
Gilbar:
"And if delayed reciprocation is okay, what if you really Really like having sex with your wife; but not quite as often as she does? Should she roam for the rest? Should she be denied the rest?"
Althouse:
"She should be denied the rest. She probably can't eat all the ice cream she wants either. To whine about that is babyish. And no sex at all for babies. Grow up."
So then if I understand correctly here, the Althouse view is that is one person decides they do not want sex anymore that the spouse should not have sex anymore.
Because it is good for them.
It is not a problem, it is the opposite of a problem.
Wow, from legalizing "Deep Throat" to criminalizing the casting couch, we've gone a long way. It's like how we went from legalizing "F--- the Draft" to criminalizing dancing with headphones at the Lincoln Memorial.
I have a follow up question.
Althouse says:
"If either party to the exchange has to add a non-sex sweetener, you're doing it wrong."
What if the non-sex sweetener is viewed by one party as a physical way to say "I love you", or alternatively viewed by them as "this is how I know the other person loves me"? Is that still doing it wrong?
Because the non-sex sweetener rule taken to it's logical conclusion would indicate yes, that is wrong.
If "I love you" is not wrong then please explain how "and now I get that new refrigerator" is also not wrong.
I promise it is an honest question.
My name goes here; you ask "So then if I understand correctly here, the Althouse view is that if one person decides they do not want sex anymore that the spouse should not have sex anymore."
Well, you know, this marriage could continue with sex, if the party-wanting-sex thought it was in some way fun or rewarding or necessary to have sex with someone who doesn't want to have sex.
I mean, sure, that happens.
If the two of them manage that situation by some kind of arrangement where the party-not-wanting-sex agrees nevertheless to have sex because the party-wanting-sex gives them desired material possessions or, at least, stops pouting, other married people who follow the Althouse rule, I'm sure, don't judge them but they might feel sorry for them and wish they could have something better. I expect that the couple in this situation also wishes that they could have something better.
Dr Ruth or somebody, long ago, took a call from a woman about the sex problem. Sex just isn't a priority any longer for her, the woman said.
Dr Ruth said, Is your marriage a priority?
Sounds like Meade doesn't get very much. Oh well, he still gets that sweet state subsidized pension money, so I don't feel too badly for him.
I understand what Althouse means by her sex-for-sex standard, and that's fine. But that's not enough. Sex can and should be part of a committed relationship between two people. If it's not part of that kind of relationship, then it's a failure, no matter how good the orgasms.
The Godfather said...
I understand what Althouse means by her sex-for-sex standard, and that's fine. But that's not enough. Sex can and should be part of a committed relationship between two people. If it's not part of that kind of relationship, then it's a failure, no matter how good the orgasms.
8/29/18, 5:18 PM
Althouse skips right over the subject of lice in all its forms. She maintains, "sex-for-sex." In other words, she makes man and woman into two literally rutting animals, whose only moral imperative is that each of them be in heat on the same cycle.
Unfortunately male 🐶 do not operate on an estrus cycle but are promiscuous-as Clavell said of rats, the male'll screw any female irrespective, and there ain't no season. Sometimes to negotiate all this dogs use physical attributes to negotiate consent, such as well-modulated bite pressure.
Yes, Animals are jerks. And we are animals, right? So everyone has and must likewise expect to suffer, jerk nature (as opposed to Buddha nature).
The closer you get to striving to *garner* equity or equality, is the closer you get to whoredom.
It's not just sex. In all your years you haven't learned that? What's your damage?
BTW that's a pointed question. ISTM that in offering your judgment as testimony, you open yourself to cross on your sexual and sexuo-economic background.
There is also truth that could only be extracted with the rack, if then. You knew perfectly well, but will never admit and I can never prove it so there, why your male clerk companion left early. I'll spare you the fishing for compliments and assert that you knew you were very beautiful, very attractive to men.
Unless your colleague was gay, which is relevant info you haven't disclosed, he understood quite well that it was improper for him to be there with you, watching this dramatically, obscenely erotic cinema art, injurious to your mutual continued commerce, and potentially to his reputation and indeed his career and life.
In other words, he was a gentleman.
You wouldn't understand.
Lice>>love
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