The internet makes pornography readily available, with the majority of Australians having internet access in their homes and businesses. (1) Whilst pornography in general contributes to women's unequal position in society through the use of gendered hierarchies of dominance and submission (2), much internet pornography is also violent in nature with many web sites depicting rape, torture and sexual abuse in a sexual context. The internet brings these violent depictions, which encourage and promote sexual violence, into women's homes like never before.
The amendment of the Broadcasting Services Act 1992 (Cth) in 1999 to regulate internet content (3), does little to address these harms because its focus is to protect Australians from moral harm. In other words, the Australian legislation operates to protect Australians by censoring material that may harm or corrupt the viewer's moral fibre. Importantly, it does little to address the role pornography plays in promoting and encouraging violence against women, and does not empower women to take action against their abusers and against pornographers who promote the abuse. An approach that does directly address these harms is the civil rights ordinance formulated in the United States by feminist writer Andrea Dworkin and Law Professor Catharine A. MacKinnon which took the form of an amendment to existing sex discrimination legislation. This approach could be adopted in Australia as an amendment to the Sex Discrimination Act 1984 (Cth).
In arguing that Australia should adopt this approach, this paper will commence with an examination of the provisions of the ordinance. This analysis will illustrate how the ordinance was designed to address specific harms to women caused by pornography such as rape and sexual abuse (as opposed to the traditional approaches to regulating pornography via the criminal law of obscenity or censorship which have their basis in morality (4). This paper will then address why Australia needs the ordinance. Firstly, Australia needs the ordinance because there is significant anecdotal and scientific evidence that pornography causes specific harm to women in the form of sexual violence. Secondly, the internet contains a proliferation of pornography that promotes this violence against women. This paper will then outline what Australia has attempted to do about internet pornography, namely the Broadcasting Services Act which focuses on protecting society from moral harm, rather than protecting women from pornography's specific harms, such as sexual violence. In conclusion, some of the problems in adapting the ordinance to the internet will be highlighted.
MacKinnon and Dworkin's civil rights ordinance
The civil rights ordinance originated in the United States in 1983. (5) Law Professor Catharine A. MacKinnon and feminist writer Andrea Dworkin, both well known for their strong opposition to and activism against pornography, were approached by residents of two working class areas of Minneapolis who were concerned about the prevalence of pornography in their neighbourhoods. The residents asked MacKinnon and Dworkin to help them draft a zoning ordinance which would only permit pornography to be sold in specified low income neighbourhoods. (6) MacKinnon and Dworkin persuaded the relevant Zoning and Planning Committee that this would only legitimise pornography by confining its sale to specified areas (7) and convinced them that the ordinance should adopt a sex equality (civil rights) approach instead. (8)
Consequently, the ordinance drafted by MacKinnon and Dworkin sought to deal with pornography as an issue of sex discrimination. The ordinance empowered those harmed in or by the production and distribution of pornography by allowing them to sue the makers and distributors of pornography, to obtain damages, and to obtain injunctive relief to stop pornography being sold, exhibited and distributed. As part of the legislative process, public hearings were held in the United States in which members of the public could voice their support or opposition to the proposed ordinance. …