Abstract: Does Pornogprahy Silence the Voices of Women? This evasive question has been a hot topic in legal jurisprudence, as the connection between the two seem tangible, yet is difficult to pinpoint. In this article I briefly outline Rae Langton's account Pornogprahy, Speech and Silence. Then, I suggest narrowing the scope of pornographic material that Langton’s argument is best served against. Following, I explore the unintended consequences of Langton’s argument, focusing on Nellie Wieland, who argues that Langton’s scenario entails consent is correctly interpreted, thereby defending a rapist's lack of mens rea. Where my overall aim is twofold: (I) resolving a causal issue of Langton’s argument, (II) vindicating Langton from the moral issues furnished by Wieland.
Langton’s illocutionary Silencing
Rae Langton (1993) has famously declared that pornography is a speech act that illocutionarily silences of women. By extending Austin’s intuition that words do things, Langton argues that ‘silencing’ is primarily meant to capture a failure to act. It’s not simply, that pornography may prevent women from producing loculations, rather, it undermines their capacity to do things with those locutions. Specifically, pornography makes it extremely difficult for women to refuse unwanted sex. Although Langton acknowledges the Austian threefold distinction to silencing and how pornography silences along these dimensions. Her primary focus is emphasizing how pornography can silence the intended illocutionary act. Part of the reason, is this directly ties with her wider aim, that pornography impinges on the right for free speech of women, and can, in the real sense silence women[1].
An important component to this argument is ‘uptake’ [2], which is, the appreciation by the audience of the intended illocutionary speaker. The basic idea is that (in certain circumstances) if uptake for a certain locution cannot be secured, the intended illocution will not occur. Pornography, Langton argues, creates a climate whereby the locutions of women do not secure the intended uptake by men and hence fail to be the illocutions by those women. Thus, the question to ask is how does pornography shape the climate, in a way, that distorts uptake and lead to illocutionary disablement? Langton’s answer- pornography is law like- it can set norms, and silence because it has authority [3]. The authority of porn is informal and relative to the domain of sex, exacerbating myths that “No” means “Yes’, erotises sexual violence and rape in a way that legitimizes them.
In this way, pornography undermines a women’s authority to refuse by twisting a felicity condition of a successful speech act. Specifically, men’s ability to uptake a women’s refusal as ‘no’ meaning ‘NO’ in a sexual context, resulting in the speech act to misfire[4]. Pornography thus creates conditions in which men do not recognise a women’s refusal to have sex as a refusal. Her attempts to say no in such conditions, her refusals, are thus thwarted. Precisely, it is not that she has refused, and her refusal have been ignored, but rather, it’s as if she has not spoken at all. Refusal is a speech act she cannot perform. In this sense Langton argues women are illocutionarily silenced.
Causal issues: tightening the scope of pornography
A related difficulty with arguments against the protection of pornographic speech is distinguishing what class of pornographic material ought to be censored. Where my aim here is to tighten up Langton’s account by furnishing a class of pornography where her critiques are best served. Proceeding, Wieland notes that Langton “hitherto provides little justification for the conclusion that some pornography silences women” and is ‘imprecise’ here [7]. Although I believe this charge to be uncharitable and gratuitous, given Langton’s aim is to defend Mackinnon, who does provide an extensive definition of pornography (cf. MacKinnon, 1983, p. 176). However, this objection is still insightful, as there are causal issuesthat Langton needs to resolve before defending the moral/legal implications of her argument. Specifically, there are genres of pornographic material that arguably don’t work to silence women in the way that Langton suggests.
To explain, Louise Antony posits a poignant example. She cites a variety of ‘B&D’ porn, in which the domination or violation is depicted as real [8]. In this variety of porn, the essential part of the erotic fantasy is the victim not consenting to be treated in the way she depicts. Importantly, this depiction is still subordinative, deeming women inferior, thus aligning with Mackinnon's definition and, by extension, Langton. However, the erotic charge is dependent on the recognition of refusal, not the fantasy the woman ultimately ‘wants’ to be treated as such; it is explicitly against her will [9]. What is clear within such cases is that the perverse enjoyment of “B&D” porn is reliant on the consumer recognising that the woman has refused. The effect here would not distort the uptake of a woman’s refusal, but the “recognition that a woman is refusing, which is part of the turn on” [10].
Although this objection shows that there are brands of pornography where Langton’s silencing model may not apply. That is not to say it’s never apt. Langton can simply redirect her silencing claims to types of pornography where her claims apply. Thus, this lays the credence for my suggestion. Pornography (+): the systematic portrayal of a woman’s apparent refusals as insincere and may be overridden in a way that invites heterosexual or bisexual males to interpret refusal as illegitimate, on the grounds that the woman ultimately desires sex and will enjoy it. One note here, this is not a complete definition of pornography, but rather a suggested dimension to add. Defining pornography is a notoriously difficult task, which goes beyond the present aims of this paper, but I have tried to narrow down the scope of porn and the target audience that best serves Langton's hypothesis.
Unexpected consequences
Another worry for Langton’s argument is that if, by failing to register their intentions, men prevent women’s utterances during sex from counting as refusals, it follows that women do not refuse sex with men who rape them. For Jacobson (1955), this is the most important consequence of Langton’s argument, claiming that “Langton cannot call this [scenario] rape” [11]. In response, Langton and Hornsby (1998) successfully refute Jacobson by pointing out that he conflates a condition necessary for refusal with a condition sufficient for consent [12]. To put it plainly, a lack of refusal does not imply consent; one can still intend to refuse, intend not to consent, which is sufficient to establish they have been raped.
Although I think Langton and Hornsby provide a convincing response to Jacobson, they are not vindicated yet. Wieland (2007) introduces a more devastating reductio critique, that if pornography is authoritative, in the way Langton suggests, it does indeed create consent where there exists none. The brushstroke of her argument is that Langton treats the rapist and the victims as equally subjected by the conventional power of pornography. If women are illocutionarily disabled, then rapist are interpretively disabled [13]. Subsequently, it follows that if Langton is correct to say women are silenced, then the rapist's claim must also be correct, and thus have obtained the victim’s consent.
The force of the silencing argument is symmetrical in regard to the hypothetical woman and rapist; thus, it is not merely that refusal is silenced, but that it also appears to create consent where none exists. On this basis, Wieland argues that Langton’s argument proves “too much” [14]. This forms the crux of Wieland’s contention that if we accept Langton’s argument in terms of linguistic conventions, it will lead to an “intolerable result” [15]. Namely, runs the risk of defending the rapist's lack of mens rea, leaving no room for personal culpability. But if we contest such an argument – the rapist has not received consent –we concede that women have also not been silenced.
Adjusting uptake.
Wieland’s contention is twofold: a moral issue and a speech-act issue. For if we accept Langton’s argument, we run the risk of ‘defending a rapist's lack of mens rea’, and if we resist the conclusion, we subsequently back away from the ‘significance of the original silencing claims” [16]. My aim is to defend Langton, suggesting that shifting Langton’s perspective of uptake can settle the moral issues dispensed by Wieland, which, conversely, disarms the speech act issues.
Although Langton’s account entails disturbing empirical consequences - that pornography influences refusals to be systematically interpreted as consent- this does not mean that Langton's argument is conceptually false. To preface, although I generally agree with Langton’s claims about pornography, I think its influence on sexual refusals is less monolithic and straightforwardly exculpatory, especially in cases of rape. If pornography influences men’s uptake in the way Langton suggests, it appears to diminish the culpability of the rapist. As it situates the rapist’s mens rea on a misinterpretation, one that is caused by a pornographic linguistic environment, which leaves inadequate space for ‘malice aforethought’. Where, I think Langton’s argument needs some adjustments to make it palatable for our intuition of a rapist’s mens rea.
As such, I argue pornography contributes to a sexually coercive environment by influencing consumers to think that a refusal is not necessarily a refusal. For instance, ‘No does not necessarily mean No’, not that, ‘No means Yes’, there is a stark difference here. My claim is similar to conceptions of Bird (2002) and Caponetto (2021) formulation of “insincere uptake” and “speaker’s sincerity”[17] but slightly divergent. In that the refusal ‘No’ may be interpreted as insincere, but more precisely, illegitimate as well. The keyword here is illegitimate and needs furnishing. What I mean by illegitimate is that a refusal is interpreted as defeasible, can be overridden and adjusted. That ‘no’ does not constitute a necessary ‘NO’; refusal is malleable to change, such that the women could inevitably like sex, rather than want it right now. This picture is partly depicted in pornography +, which is pushing the ledger here.
Importantly, this perspective does not lead us to “back away” [18] from the original silencing claims as the man isn’t simply ignoring the refusal (perlocutionary) nor claiming that the rapist is notinterpretively disabled, only insofar as consent is correctly recognised. But rather the refusal is interpreted as ‘a coy invitation’[19] that is up for debate, reversible on the matter of persistence, and not necessarily a ‘No’. Women are silenced, as they cannot illocute a refusal the way they ought to; it fails to have the intended effect; their refusals are rendered illegitimate and defesable, thus failing to perform the action it was intended to do.
With this distinction in mind, two things become clear. First, in sexual encounters where a partner ‘feigns’ discomfort and a refusal, asking to clarify if their consent is genuine, and simply proceeding without such clarifications are morally distinct actions, which allows us to adequately capture a rapist’s mens rea. This is nicely summed by Johnson (2023): “Morally, he ought not to take her 'no' to be a coy consenting... Her intention to refuse and her desire not to have sex with him matter more, morally, than his uptake" [20]. In sum, this conception of uptake allows a Langtonian to have it both ways: women are illocutionarily silenced, whilst allowing space to adequately account for a rapist’s mens rea. In this vein, I argue that pornography contributes to a sexual coercive environment where women cannot express legitimate refusals, thus silenced in this aspect, which Wieland’s critique obfuscates.
Conclusion
Ultimately, I argue that an adjusted account of Langton’s argument can show that pornography, in the illocutionary sense, silences women. However, I am cautious to render this conceptual account conclusive. For one, it lacks empirical evidence that rapist, in fact, do interpret refusals in such a manner. However, all things considered, my aim here is to resolve the causal and moral issues the argument faces. In this regard, I think Langton can succeed by adjusting her conception of uptake and definition of pornography.
[1] Langton, 1993, p. 327
[2] Langton, 1993, p. 324
[3] Langton, 2017, pp. 270- 76
[4] Langton, 1993, p. 321
[5] Langton, 1993, p. 321
[6] Langton, 1993, p. 327
[7] Wieland, 2007, p. 440
[8] Antony, 2011, p. 398
[9] Antony, 2011, p. 398
[10] Antony, 2011, p. 399
[11] Jacobson, 1995, p. 77
[12] Hornsby and Langton, 1998, p. 31
[13] Wieland, 2007, p. 452
[14] Wieland, 2007, p. 452
[15] Wieland, 2007, p. 435
[16] Wieland, 2007, p. 455
[17] (cf. Bird, 2001, p. 7; Caponetto, 2021, p. 195)
[18] Wieland, 2007, p. 455
[19] Johnson, 2023, p. 15
[20] Johnson, 2023, p. 15
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