Young Actresses in the Pornography Industry - Xiyuan Feng
Trigger warning: this blog mentioned sexual activities and pornography.
Imagine this: a young girl turns 18 or 19 years old and finds a job posting on Craigslist one day. With social media’s influence of being famous, the legends about no harm in the pornography industry, and the lure of the salary, one starts the journey as a porn star. She does not know what she is facing nor her rights to protect herself. Along with earning money, she faces fear and cruel sexual activities. Besides, her family would know her job within one month. This happens in reality; Hot Girls Wanted, a documentary released by Netflix in 2015, zooms in the daily life of the pornography actresses aged 18 to 25. Problems are reflected in this documentary, including:
potential obscene content;
lack of sufficient protection for actresses; and
easiness to access pornography through the internet.
To solve these problems, attention from society and law is required in Canada.
Jade, aged 25 at the time of filming. “[In the video, repeat] I am a … whore…”
Facial abuse is a kind of oral sex aimed at making an actress vomit. During the process, an actress is also forced to say something “sexy”, which usually contains discriminatory meaning towards women. Nowadays, “facial abuse” in the pornography industry is not uncommon. For example, in 2014, the combined hits of websites that included facial abuse averaged over 60 million times per month.
However, some of them may not be legal in Canada since they can be categorized as “obscenity” under section 163(8) of the Criminal Code (“the Code”). The legal standard for obscenity was set in R v Butler (“Butler”). The Supreme Court of Canada (“the Court”) set a three-prong test to distinguish legal and obscene pornography:
“community standard of tolerance";
“degradation or dehumanization"; and
“internal necessities test" or "artistic defence”.
The community standard of tolerance means that a Canadian cannot tolerate others to be exposed to such kind of pornography. The Court also stated that the audience is relevant to the standard of tolerance. In my view, facial abuse is obscene pornography.
First, to see a young lady blow up and slurp it up when she is forced by a male can make people very uncomfortable and even have some negative physical reactions, e.g., increasing heartbeat. Furthermore, the videos show discrimination regarding gender and race. For example, actresses are forced to repeat words, e.g., “I am a whore”, which degrades women. The title of the website and words in the introduction of the video are also racism-related, e.g., “Latina Abuse”. Therefore, actresses bear more than sexual activities. As for the group of audience, most websites containing facial abuse can be accessed freely by persons of any age, gender, or social roles, and no screening tools are available. A broad range of audiences as such requires a higher standard of tolerance, and facial abuse ought not to be in the scope.
Second, obscene pornography exploits sex in a degrading or dehumanizing manner. In Butler, the Court stated three standards relevant to our topic here:
obscene pornography runs against the equality and dignity of a person;
obscene pornography links sex with cruelty and can be determined by the consequence in public; and
the consent in the pornography cannot save it from obscenity.
Facial abuse has met the requirements. First, gender equality is violated. When making an actress blow up, the actor forces the actress to kneel, grabs her hair, and slaps her face. It portrays a male with coercive and dominant force and a woman with no power; the inequality is obvious. Second, besides the performance of the actor, the actress’s reaction, in which the actress’s eyes turn to red, indicates the cruelty of such behavior. The video may also reflect the distorted tolerance of a woman’s body and thus stimulate a sexual abuser to cause more severe harm to their victims. The consent, as the Court said, exaggerates the degrading nature. Finally, the purpose of this video is not about art at all. As the documentary stated, the number of websites with facial abuse is proportionate to the needs of the audiences.
Rachel, aged 18 at the time of filming. “I was terrified … I don’t know if I could tell him, no, or we already recorded for 15 minutes of it if I could just leave”.
Rachel, an actress, described her experience in the documentary. She accepted a blowjob scene, which she thought required no sex and only vomit. But when she arrived, she was told it was a “forced blowjob”, in which she would have sex and be forced to vomit. She was afraid and wanted to leave. With all these feelings, she completed the job and got her salary. In this scenario, is there a potential for sexual assault? Would she breach the contract if she walked away?
First, no contract existed because the other party tricked her by words and thus no consensus of mind was present. “Blowjob” and “forced blowjob” point to two different kinds of performances. Rachel only consented to the term “blowjob”, which did not involve any sexual behavior. Therefore, she did not consent to part of the sexual activity. Furthermore, the filmmaker took advantage of the slight difference between terms and induced her to accept the job. He had been in the industry for a while, and he knew or ought to have known the differences between terms. He also knew the situation of Rachel: she flew to California, and she needed the money from this job to cover all the costs. Thus, she had no choice but to accept the performance. Since no consensus ad idem is proven, no contract regarding sexual activity existed.
Second, since no consent is included in the contract, can consent be implied from the nature of her job? In my view, it cannot because propensity consent is prohibited, as stated by Justice Moldaver in R v Barton. Propensity consent is to infer the complainant to be more likely to consent to the sexual activities based on the complainant’s prior sexual activities. It is a mistake of law to infer that pornography actresses are more likely to consent to sexual activities because of the job. In fact, in R v Ewanchuk (“Ewanchuk”), the Court stated clearly that there is no defence of implied consent to sexual assault. Therefore, no consent to the sexual behavior is attached to the job.
Third, even though Rachel may have consented to the sexual activities when she arrived, she was in fear. Ewanchuk mentioned that the consent must be freely given and had no legal effect if one is in fear of the application of force when giving consent. The reasonableness of the fear or explicitly expressing fear is not required. In Rachel’s situation, her consent should be vitiated by fear. The differences regarding physical volumes between genders can cause a woman’s fear, especially when only one male is present with the possibility of force and a tripod, in an unfamiliar place. If she refused the job, she believed that this male could cause her physical or psychological harm. She might not ask for help, as no bystander was present, nor could she call anyone since she was new to California. With fear, she consented to the sexual activities. In my view, consent should be vitiated.
Finally, if the actress consented to the job properly, can she leave before or during filming? She can. In section 273(2)(e) of the Code, no consent is obtained when one has consented to the sexual activity but then refuses to continue the sexual activity expressly or implicitly. Rachel might have given consent to the sexual activity, but later she could revoke the consent. The dilemma for the actress is whether she must pay for it. In my perspective, the answer is no. The contract requires consent. Consent to the sexual activity must be given “at the time” that the sexual activity occurs. In this sense, there must be consent at each moment of the sexual activity. When an actress stops consenting to the sexual activity, no consent exists at that moment and moving forward. No contract exists between parties from that point forward. Therefore, in my view, no breach of the contract occurs if an actress walks away during the sexual activity.
Regulating Pornography in the United States and in Canada
This documentary shows the situation in the United States, so how does it influence Canada? The concern is that pornography now posts online, and thus the production in the United States can be accessed in Canada freely. However, the laws in Canada and the United States are different. Canada’s definition of obscenity is more specific than that of the United States. The regulation in Canada is under both freedom of expression and equality rights, especially sex equality. In Butler, the Court found that the interest of regulating pornography in the name of equality outweighed the interests of protecting pornography under freedom of expression because pornography disproportionately harms women. However, this idea does not exist in the United States, since only free speech is available to regulate pornography. Therefore, “importing” pornography on the Internet requires more regulation in Canada.
Recently, the law in Canada has decriminalized sex work. On the one hand, the law, like in Bedford, protects the sex worker’s Charter rights and normalizes sex work. On the other hand, with the prevailing of the internet, young people can access pornography more easily. Everyone can access pornography online without screening. Moreover, on social media or the news, the normalizing process of sex work may deliver distorted meaning to young people. On the news, for example, Belle Knox has described how she used her salary from the pornography industry to pay for her post-secondary education. However, her success may contribute to the thought that no harm was brought by this industry. Unfortunately, the reality may be the opposite. As Jade stated in the documentary, “[Knox] wants to be notoriety but not be scared. Not everybody can come from that”. The harm to some people is long-term and irrecoverable. Furthermore, social media may exaggerate the no-harm belief and stimulate young ladies to enter this industry. “[T]he Internet, Instagram, Facebook, Vine, it’s all about getting your name out there”. With the colorability as such, sex work becomes an optimal choice to access quick money and celebrity. Therefore, many young people think “if it has the dollar sign in front of it, sign me up”. Finally, the “opportunity” is easy to access. All girls in the documentary stated that they met the agent online, responded to the job posting, and that was all that was required. The agent mentioned that, within 24 hours after the job posting, he can receive at least 5 responses. Because of the age and the influence of society, it is not hard to take advantage of an 18-year-old person. “Every day, a new girl turns 18, and every day, a new girl wants to do porn”. How to direct and regulate pornography and social media requires society’s attention. Balancing the needs of the audience and the protection for the actresses needs contribution from the social and legal field.