REGRESSION NOT THE SUBSTITUTION FOR REGULATION: IN CONTEXT TO PORNOGRAPHY BAN

Pornography industry needs to be regulated because it can hamper the society in numerous ways. Radical feminist, a school of feminism, were the first ones to discuss about the negative impact of giving to much freedom to the people in general. Prior to 1960’s there was a distinction between private and personal sphere. The law did not regulate one’s personal sphere because people’s freedom was to be respected. This gave people in the 1900’s a lot of freedom but it came with a cost. Unregulated personal sphere was very problematic because domestic violence and marital rape fell under the personal sphere and it could not be regulated by law. Violence occurred inside the closed doors of people’s homes in the name freedom. Radical feminist argued that personal sphere needs to be regulated and we need to put an end to the violence at once.

Similarly, in the context of pornography, Cathrine A. Mackinnon a quintessential radical feminist argues that pornography in the private sphere occurs in guise of protected speech, which creates a situation where women involved in it are treated as second-class citizens. According to her perspective, fantasy is a term used to legitimize sexual abuse. Pornography is often labeled as fantasy and it not being real. However, in reality sexual abuse was real, sex happened and it was in the form of abuse. Thus, sexual abuse should not be tolerated in the name of fantasy making it essential to regulate the pornography industry.

Further, Cathrine A. Mackinnon relied on trustworthy primary accounts in order to depict true social realities and to bring in light the negative impact of pornography. She has compared report of rape victim and women’s report on sex and concluded that they look a lot alike. They look alike with what pornography say’s sex is. If rape is unacceptable then sex in the form of rape in pornography should not be acceptable.

In addition to other criticisms, pornography strengthens generalization which can be problematic. For instance, resistant to sex is thought to be a general behavior of women which is reinforced through pornography. It is because of this distorted reality that some men don’t understand no means no. Further, pornography perpetuates other problematic ideas for example a school girl is considered to be sexually appealing. Uniform of a school girl should be a symbol of protection and not a sign of sex appeal.

In Nepal instead of regulating pornography the government has completely banned pornography. While there is a need for regulation, regression is not the solution. Completely denying people freedom of speech and opinion is against the Constitution and it can threaten the very corner stone of democracy. In Nepal people’s freedom of speech and opinion is not respected at all. The government is empowered under the law to act regressively.

The Country Penal (Code) Act, 2017 (the “Penal Code”), section 121 prohibits anyone from producing obscene book, pamphlet, film, picture, record or any other item that is lascivious. Advertising, importing and exporting such obscene item is prohibited. Anyone in contravention of this provision can be punished with imprisonment for a term not exceeding one year or can be fined with ten thousand rupees or both fine and imprisonment can be levied, on a case to case bases. Pornography in Nepal was banned by virtue of section 121 of the Penal Code.

This section is very problematic because it is ambiguous and its applicability is too wide. Firstly, obscene content is not defined giving the authorities wide discretion in determining what constitutes obscene content. Secondly, this section can apply to any song, book, video or article that is sexually enticing. The authorities have arbitrary power in determining what extent of sexual language is permissible. When a law is this ambiguous, it increases arbitrariness. There is an urgent need to amend our law to stop arbitrary and ambiguousness.

Thus, while it’s understood that giving too much freedom comes with a cost. Completely denying freedom comes with a cost of its own i.e., the countries governance inclining towards an autocratic rule. The law must balance autonomy and regulation, because either of the extreme side is very problematic.

Author: Darshna Rana, , Prashna Nepal