Mirkin Footnotes 

1 Department of Political Science, University of Missouri, Kansas City, MO 64131 (hgm@microlink.net )

2 The methodology of the article has been attacked, but it was reviewed both before publication, in the normal peer review process for a highly controversial article, and after publication by the American Association for the Advancement of Science (AAAS). It is safe to assume, therefore, that the superficial methodological criticisms raised against the article in the press and in Congress are invalid. Of course there may be more valid criticisms raised in subsequent publications, but these have played no part in the political reaction to the article.

3 The controversy over the article has been well covered in the press and on the Internet. A particularly interesting paper on the controversy is Rind et. al. (1999)

4 I'm using this term loosely, as it is used in the popular culture. Recent scholarship has demonstrated that the Puritans were nowhere near as puritanical as we make them out to be.

5 Herbert Marcuse (1955, 1962) Norman O. Brown (1959), and others like Paul Goodman and Wilhelm Reich, were sexual radicals wrote major books and articles advocating sexual and erotic freedom and decrying the capture of sexual energy by capitalism. The triumph of the economic perspective in the 80s and 90s led to the eclipse of these arguments. Authors like Pat Califia (1994) and others have continued the tradition, but have not had the cultural impact of the earlier writers.

6 There was some scholarship that disputed this claim but it was rarely published in mainline journals or by the major presses. It was largely ignored and dismissed as special pleading. There is also a sprinkling of studies, discussed in the Rind report on pp. 25 & 26 that cast doubt on the invariable association of child/adult sex and harm to the child. These were small studies and had been largely ignored.

7 A discussion of a study in the 1997-1998 school year in which 30 public elementary school teachers were asked to report all incidents of sexual behavior that they observed. The report and discussion took place at the 1999 SSSS conference. Moglia (1999)

8 Though it is outside of the scope of this article it is worth noting that art, images and other popular media are carefully censored too. The Supreme Court has given federal and state governments a great deal of discretion in censoring images that they view as child pornography, and any image that portrays a child as erotically interested or interesting is likely to be banned. Even possession of these images is largely illegal. Of course the absence of any erotic images of children strengthens the cultural concept of the sexually innocent child. The lead cases are New York v. Ferber (1982) and Osborne v. Ohio. (1990). See (Mirkin 1999a) or a discussion of this issue.

9 Articles in the race area, that suggest that there are innate intelligence differences between blacks and whites sometimes solicit a similar reaction from the left, so neither side is ideologically pure. On issues of great intensity groups tend to lose confidence in John Stuart Mill's arguments for freedom of speech (in which he defends the value of incorrect statements because in refuting them we strengthen the belief in correct arguments). That argument expresses a faith in human reason, that the truth will win in the end. Today many groups are concerned that erroneous statements will corrupt others, less wise than themselves. Therefore they think that these arguments need to be forbidden.

10 One interesting exception to this rule concerned bestiality. There was a general concern that sex with animals would lead to strange offspring.

11 The relationship is clearly illustrated by the Comstock laws. These asserted that there would be great social harm from pornography and other sexual material, but made no attempt at proof - the projected harm was a matter of faith and assertion. In the campaign against child pornography and sexual or violent images that might be available to children, the Supreme Court shows a similar pattern. In an interesting 1948 case involving a New York State law that forbad the sale of comics containing violent images to children (the great fear in the post-WWII period) Justice Frankfurter said that no proof was necessary in this area. Though he dissented in this case (Winters v. New York, 1948) Frankfurter's opinion on proof has become the majority opinion in child pornography cases.

Frankfurter's dissent argued that the Court failed ``to give enough force to the influence of the evils with which the New York legislature was concerned.'' He claimed that the state could have justified the bill with the following preamble. It sets out the ideological argument for special censorship of children's material and hits the traditional theme of weak character. Frankfurter succinctly sets out the standard of harm that will later become accepted as adequate for censoring material available to children.

Whereas, we believe that the destructive and adventurous potentialities of boys and adolescents, and of adults of weak character or those leading a drab existence are often stimulated by collections of pictures and stories of criminal deeds of bloodshed or lust so massed as to incite to violent and depraved crimes against the person; and

Whereas, we believe that such juveniles and other susceptible characters do in fact commit such crimes at least partly because incited to do so by such publications, the purpose of which is to exploit such susceptible characters; and

Whereas, such belief, even though not capable of statistical demonstration, is supported by our experience as well as by the opinions of some specialists [333 U.S. 507, 531] qualified to express opinions regarding criminal psychology and not disproved by others; and

Whereas, in any event there is nothing of possible value to society in such publications, so that there is no gain to the State, whether in edification or enlightenment or amusement or good of any kind; and

Whereas, the possibility of harm by restricting free utterance through harmless publications is too remote and too negligible a consequence of dealing with the evil publications with which we are here concerned;

Be it therefore enacted that--

Frankfurter goes on to argue that deference needs to be paid to legislative beliefs, claiming that ``[s]urely this Court is not prepared to say that New York cannot prohibit traffic in publications exploiting 'criminal deeds of bloodshed or lust' so 'as to become vehicles for inciting violent and depraved crimes against the person.' Laws have here been sustained outlawing utterance far less confined.''

Similarly in the Osborne and Ferber cases the Court did not demand strong evidence of harm from legislatures as a justification for wide and vague prohibitions of sexual images of children. Assertion and common belief was sufficient. That type of test is not used in other free speech areas. And the ban goes to possession, which is unique in the speech area.

12 The claim is similar to the Marxist argument on false consciousness. ``Middle-class Protestant women already involved in benevolent associations to help the poor, widowed and orphaned soon recast the attack on licentiousness. Unlike male reformers, who usually portrayed the prostitute as a source of depravity and a threat to men's health, these women claimed sympathy with the prostitute.... Adopting a model of female victimization, they argued that seduction by a licentious male led to many a woman's fall into prostitution.'' It cannot be concealed,'' reformers wrote, ``that the treachery of man, betraying the interests of ... woman, is one of the principle causes, which furnishes the victims of licentiousness. Few, very few... have sought their wretched calling.''

13 It is interesting how the formulas in the sexual area remain the same, but are applied to different victims. Age-of-consent legislation rested upon the belief that men initiated unwitting young women into sexual activity that led to prostitution. Its purpose was to deny men their youngest victims. DEmilio and Freedman note that during the white slavery panic crusaders against vice had so internalized nineteenth century assumptions about female purity that they even discounted the testimony of prostitutes themselves about why the engaged in sex for sale. For example, when George Kneeland studied prostitution in New York... he found woman after woman who gave plausible reasons for entering the life. A former domestic said that she was tired of drudgery as a servant.... Id rather do this than be kicked around like a dog in a kitchen by some woman who calls herself a lady. A one-time factory worker told him, there is more money and pleasure in being a sport. In response, Kneeland wrote that few girls ever admit that they have been forced into the life as white slaves. DiEmilio and Freeman observe that apparently, it was easier for him and others to believe in a vast underground traffic in women than to accept that working class women might choose sex either for money or the excitement it brought.(Chapters 7 to 9 in DEmilio 1997) In the twentieth century the claim that groups are, by definition, unable to consent has primarily been applied to children.

The question of when consent is or isn't granted has been enormously important in the womans movement, of course. In the nineteenth century it was assumed that respectable white women would never consent to illicit sex, so the onus in any sexual liaison was on the male - especially if he was black or foreign. In the late 20th century arguments about consent have been central to feminist discussions of sexual harassment and date, marriage and acquaintance rape.

In the case of children an argument similar to the womans argument about being forced to accept sex is usually made. Thus D. Finkelhor, (1979) one of the intellectual leaders of the CSA movement, has argued that children can never give true consent to sex with an adult. They might appear to consent, or even cooperate. But the consent isn't legitimate. Children lack the information that is needed to make an informed decision, since they usually know neither the mechanics of reproduction nor are they likely to be aware of the social rules surrounding sexual intimacy. They don't know how to pick a good partner, nor about the course that sexual relations are likely to take. Finally they don't know how other people are likely to react to the experience and what consequences it is likely to have for them in the future. They may know that they like the adult, the physical sensations feel good, and on this basis may make a choice. But they lack the knowledge the adult has about sex and about what they are undertaking. This is something that stems from the very fact of being a child and being inexperienced.

Further, Finkelhor argues, a child does not have the freedom to say yes or no. This is true in a legal sense and also in a psychological sense. In a legal sense the child is under the authority of an adult and has no free will. But in a more important psychological sense, children have a hard time saying no to adults since adults control all of the essential resources. Childrens lack of knowledge and lack of power means that in relationships with adults they are both uninformed and unable freely to say no. By contrast, in relationships with their peers, children are uninformed, but at least there is no inherent power differential. While relationships between adults often involve subtle coercion, adults have great knowledge about the social meanings of sexuality or at least have access to that knowledge.

Finkelhor is a sophisticated scholar, but of course there is much that can be debated in this definition. Here it is sufficient to note that the idea that children cant consent is largely definitional, and is predicated on the belief that sexual acts will result in harm that the child is not aware of. Rinds finding that measures of the level of consent produced statistically significant differences gravely undercuts the definitional argument that consent is impossible. Finkelhor, to his credit, recognizes that arguments from consequences are not sufficient and, at the end, brings in the argument that adult/child sex is morally wrong regardless of the consequences.

14 Kincaid (1998) and others have pointed out that we both eroticize the child and put him/her off limits. He argues that our culture has enthusiastically sexualized the child while denying just as enthusiastically that it was doing any such thing. We have become so engaged with tales of childhood eroticism (molestation, incest, abduction, pornography) that we have come to take for granted the irrepressible allure of children. We allow so much power to the child's sexual appeal that we no longer question whether adults are drawn to children. We see children as, among other things, sweet, innocent, vacant, smooth-skinned, spontaneous, and mischievous. We construct the desirable as, among other things, sweet, innocent, vacant, smooth-skinned, spontaneous, and mischievous. There is more to how we see the child, and more to how we construct what is sexually desirable - but not much more. To the extent that we learn to see the child and the erotic as coincident, we are in trouble. So are the children. (pp. 13-14)

15 The Rind study noted that problems of scientific validity of the term CSA are perhaps most apparent when contrasting cases such as the repeated rape of a 5-year-old girl by her father and the willing sexual involvement of a mature 15-year-old adolescent boy with an unrelated adult. The tendency by researchers to label cases such as the latter as abuse reflect the slippage of legal and moral constructs into scientific definitions. (p. 23)

16 The Rind study actually found that, contrary to common expectations, penetration was not correlated with outcome. Although these results should be interpreted cautiously because they were based on a small number of samples, we found that only force and incest moderated outcomes. Penetration, duration and frequency did not moderate outcomes. The near-zero correlation between penetration and outcome is consistent with the multiple regression analysis finding that contact sex did not moderate adjustment. The result provides empirical support for Finkelhor's (1979, p. 103) observation that our society's view of intercourse as the most damaging form of CSA is a well ingrained prejudice unsupported by research. (Rind, 1998, p. 45)

17 Psychology often plays a different role in regard to children than it does for adults. For adults the primary role of psychology is to free people from neuroses and problems that they already have. For children psychology is often used to project future ill effects that aren't immediately visible. Since the bad effects are a future prediction, psychologists have a relatively free hand. Often they project dire future ills for any event that violates present norms, and the prediction then becomes the basis for strong enforcement of the social rules.

18 Results of the study indicate that CSA does not cause intense harm on a pervasive basis regardless of gender in the college population. CSA has no inbuilt or inevitable outcome or set of emotional reactions. (p. 46) There are gender differences, and girls experience more severe psychological consequences than boys. However the effects aren't severe for either group, and are greatly outweighed as a predictor of psychological symptoms by family environment factors.