Because only younger, fully able-bodied people deserve the rights to sexual expression
Older people and the disabled, children, same difference.
From The Volokh Conspiracy:
Yup, the law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection."Put aside everything else for a moment. This is basically telling older people and the disabled that they don't have the same rights regarding their sexuality that the rest of us do. They'd be treated the same way as children.
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The operative provisions cover people over 60 and the disabled whether or not they are incompetent.
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Note that the law isn't limited to making pornography for commercial purposes (since the child pornography law that it builds on covers noncommercial child pornography, too). That means that if 60-year-old spouses or lovers — or spouses or lovers of someone who is disabled — decide to photograph each other naked with "lascivious intent," they would be committing a crime
See, but for children, it makes sense. They're not capable of giving legal consent for things like this. It has to do with mental and emotional maturity. Are we honestly going to suggest that a 60 year old lacks the mental and emotional maturity to give consent to his/her partner to take nude pictures or video of them? Or that a 35 year old amputee is somehow less mentally able to consent? How about a blind person?
From my perspective, all this truly does is discriminate against the elderly and the disabled, under the guise of protecting them. In the absence of mental impairment, I see no reason that age or physical disability should be a trigger for a legally-enforced curtailing of sexual rights.
1 Comments:
You bring up the strongest logical and rational arguments against the law. But even at the periphery, does the law make sense? Do we really need to be legislating against sexual fetishes?
The beginning and the end of the inquiry should be whether the person having sex in the video is able to give consent. If the mental handicap is so severe that this ability is in question, perhaps we should leave their sexuality to the private sphere, where exploitation is not likely to complicate further the extremely complicated issue of how such people are able to live out their own sexuality.
Aside from such cases, the law makes no sense. It seems to be an attempt to legislate against a perceived mockery or demeaning, which perhaps stems from a misunderstanding of fetishism in the first place (I have not studied it, so I am not sure).
At the end of the day, it seems to be an attempt to legislate taste. Even Scalia recognized the futility of that.
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