Cooling Off

I discuss this a bit in the post below, but I think this part of Jill’s post is worth emphasizing. She proposes a narrowly tailored remedy that that avoids the overbreatdth of Garance’s in a way that I think gets at the heart of the problem:

As Ezra points out, there are ways to combat that exploitation without focusing on the age issue. He suggests implementing some sort of informed consent standard, so that if an 18-year-old wants to be in a GGW video, she can be — she just has to consent to it when she’s sober and not being pressured in the heat of the moment. Someone elsewhere suggested some sort of 24 or 48-hour consent window — anyone who participates in the making of pornography (male or female) would have to sign a consent form 48 hours before or after filming, in addition to the release that they sign at the time of filming. I don’t see anything problematic about requiring that consent be given while sober and without pressure, either by having what Ezra describes as a “no recruiting for same-day porn videos at bars” rule, or a waiting period for consent. Several states have a waiting period for marriage licenses. Many states require some sort of waiting period for a birth mother to consent to adoption (generally three days, but as long as 15).

The idea of a “waiting period” raises red flags for me primarily because I associate it with abortion — but a waiting period for a medical procedure, which places substantial burden on individuals, is a little different from a pornographic image waiting period. Waiting periods, as far as I can tell, serve two purposes: (1) to guard against spur-of-the-moment decisions which may have extremely negative consequences if binding, and (2) to allow people time to think about a decision when the circumstances surrounding that decision change. Waiting periods for a valid marriage license make sense to me — they still let you get married, don’t impose a huge burden, but put guards in place against people who want to get married because they’re drunk and/or stupid. Waiting periods for adoption allow a birth mother to reexamine her situation when the circumstances of that situation change — i.e., when she gives birth and is faced with the reality of handing over her real live baby to another person/s. Abortion doesn’t fall into either of those two categories — people don’t get wasted and decide to abort for fun; nor are abortion waiting periods contingent on some sort of situational change. A waiting period for consent to have your image used or captured for pornographic purposes seems to fall under the first model of waiting periods — to recognize that the decision is a significant one, and should be made with a clear mind and without situational pressure. So it makes more sense to me than simply upping the age of consent, when 18 is already widely established as the age of adulthood for practically everything.

The correct analogy here is not to abortion waiting periods, which are 1)targeted towards a particular class of people assumed to be irrational, 2)are usually not really about informed consent but are part of broader regulatory schemes trying to prevent some classes of women from obtaining abortions altogether, and 3)biology makes time delays burdensome when it comes to abortion, whereas people’s private parts generally don’t vanish if people have to wait to photograph them. The right analogy is to the “cooling off periods” that are often applicable to high-pressure, seller-initiated transactions like telemarketing and door-to-door sales. These don’t necessary assume a priori that any class of people are irrational, but rather recognize that under pressure people will do things they will not do when given time to reflect. Combine with other measures like permitting people to void contracts to appear in sexually explicit material made when intoxicated or with otherwise impaired consent, this basically calls the bluff of the Joe Francises of the world. If this is simply women making a free choice–if not an “empowering” choice–it shouldn’t be necessary to ply women with alcohol, pressure them to sign unbreakable contracts under duress, etc. And if after 48 hours to reflect a woman still believes a contract signed with informed consent to be in her interest, that’s her right.