Elder and Disabled Porn Targeted By Massachusetts Lawmaker – Proposal Goes Too Far

Banned in Boston (and all of Massachusetts) if Kathi-Anne Reinstein gets her way.

Banned in Boston (and all of Massachusetts) if Kathi-Anne Reinstein gets her way.


Massachusetts State Rep, Kathi-Anne Reinstein (D) is targeting adult entertainment involving models over the age of 60 as well as private sexual communications between the elderly (if you can call 60 “elderly” anymore) and private sexual communications among the disabled. See State Puts Porn Pervs in Sights, Boston Herald. The measure misses the mark and as it is an affront to the dignity of the elderly and the disabled alike with a heaping helping of unconstitutionality to round out the bad legislation buffet.

The proposed legislation reads:

Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability, or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.

Mass law defines an “elder” as anyone over the age of 60 (that includes Sylvester Stallone) and a “person with a disability as “a person with 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.

There are nightmare scenarios where people, due to mental infirmity, might not be able to give truly informed consent — and in those cases, I too would support measures to punish those who might exploit them. Illinois, for example, reportedly prohibits porn production involving the “severely mentally retarded.” Set aside the fact that we don’t call the mentally disabled “retarded” anymore, and such a law makes perfect sense. I am sure that, more likely than not, someone in such condition would lack the mental capacity to give their consent – and thus we should be jealously protective of their dignity and personal autonomy. C.f. New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech).

But, Reinstein’s law goes way too far.

Believe it or not, there is a market for “elder porn,” as well as “disability porn,” and those markets are served by consenting, healthy, elderly and disabled models. Naturally, some of this market caters to fetishists, but before you start saying “ewwww,” consider that there also happen to be many healthy members of society who don’t believe that sexual desirability ends at 60, nor at any other age, and it’s not just big in Japan. Just as “elderly,” is not necessarily inconsistent with “sexy,” (Sofia Loren and Sylvester Stallone are both over 60) neither is “physically disabled” necessarily inconsistent with “sexiness.” Just ask this wheelchair-bound porn actress.

One of the most utopian things about the internet is that anyone, and I mean anyone, can (no matter what they look like) find a porn site that features models that look just like them. Madison Avenue is gives 17 year old girls deep seated anxiety about their weight to the point that they kill themselves with anorexia and bulimia, because they don’t look like airbrushed and photoshopped lingerie models. On the other hand, any woman who thinks that nobody would find her attractive could get over that with 10 minutes of porn surfing. Sure, you can find airbrushed and surgery-enhanced models in porn, but the “natural” look is just as prevalent these days. If there is one thing I’ve learned for from representing adult entertainment clients it is that nobody should ever feel unattractive, because there isn’t just someone for everybody out there. Oh no, its much better than that — no matter what you look like, you are so central to the desires of a large enough group of people that you, (again, no matter what you look like) can easily make $200,000 a year selling nude photos of yourself on the internet. All you need is a thimbleful of business savvy and the right adult entertainment lawyer.

Yes, the state of internet porn is proof that we really are all beautiful. Sniff.

But don’t tell that to Rep. Reinstein. Her constitutionally-sloppy legislation doesn’t simply target exploitation of the vulnerable. It targets my parents who are, by any measure, still pretty damn good looking — even if they are both over 60. Dare I say that my mother is still knockout gorgeous, and strangers still oogle her. I’m proud to say that she and my dad certainly still do it. But you know what? My mom does have a bit of a disability (as defined by Massachusetts law). She has a lung condition that is a “long-term physical … impairment that prevents or restricts the [her] ability to provide for … her own care or protection.Uh oh.

I’m not lamenting the fact that this legislation might prevent my mom and dad from becoming the next internet porn sensation. I do think that I would need to gouge my eyes out with a fork if that ever happened.

But, Reinstein’s law is not limited to commercial porn. In fact, it doesn’t have to be porn at all – since I’d venture to guess that the elderly women who posed nude for this calendar don’t consider it to be “pornographic” or “perverted.”

The worst part is that Rep. Reinstein’s law equates nude photos of the elderly or disabled with child pornography: You can’t make it for any reason whatsoever, not even for private enjoyment, no exceptions, no nothing. Under this law, If my mom and dad want to set up the ol’ video camera in their bedroom and make some in-home entertainment, they would be looking at 10 to 20 years in prison. Scroll back up and read the text of the law — there is no exception for personal use, no exception for someone who is clearly mentally capable of making a decision for themselves, no an exception for someone who truly wants to appear in a state of undress for a lascivious purpose.

Over 60? Check. Need help taking care of yourself? Check. Dumb law? Check.

Lets not go getting silly by thinking that we can simply trust Massachusetts’ finest to enforce the law with a degree of common sense. The child porn laws, nationwide, are being used in a manner for which they were never intended by placing kids on the registered sex offender lists for “sexting” photos to each other. In Massachusetts, consenting adults have been arrested for spanking one another — with the police interpreting that as criminal battery. Genarlow Wilson, a 17 year old male got a blowjob from a 15 year old classmate at a party, and not only was he arrested, but a peckerwood prosecutor from Georgia fought tooth and nail to try and make sure that he served every day of his ten year sentence for “child molestation.”

When it comes to dumb sex laws, the last person I’m going to trust to apply it intelligently is a law enforcement officer or a prosecutor. Not even in my beloved Commonwealth. Even noble and intelligent legislation becomes an unpredictable monster in the hands of fools who refuse to think while enforcing it. When a law is an obvious Constitutional quagmire as soon as the legislator’s pen hits the paper, it doesn’t take a clairvoyant to see that it will produce nightmarish results.

I’m certain that Rep. Reinstein meant well. I’m also sure that it never occurred to her that there just might be a healthy reason for the elderly and the disabled to appear in racy photographs. To be fair to her, I’m sure that she isn’t regularly exposed to the panoply of sexual expression that runs across my desk every day. Nevertheless, her legislation must be smothered, lest it be added to the patchwork of nonsensical laws that, taken alone might not mean much, but taken together they act as black coal dust in the atmosphere of freedom.

The “elderly” and the disabled have a right to express their personal sexuality, and those who may want to view such materials have a right to receive them. The purported legislative intent of this law, protecting the vulnerable, could easily be accomplished by using the existing laws. Or, if Rep. Reinstein insists on sponsoring a new bill, it could be drafted far more narrowly and intelligently, and without trampling anyone’s personal liberties.

H/T: Volokh

25 Responses to Elder and Disabled Porn Targeted By Massachusetts Lawmaker – Proposal Goes Too Far

  1. Terrie says:

    Ugh. The saddest part is that it would be so easy to narrow it down to target those who are exploiting someone else. How about limiting it to those hwo are mentally inompetent? Or, I believe, some states have a definition for “vulnerable adult”?

  2. Tanner Andrews says:

    ) I’m certain that Rep. Reinstein meant well.
    I’d love to see a scintilla of evidence in support of that certainty.

    Usually legislators do this out of bad intent, expecting that it will draw the protect-the-children idiots and help their odds in the next election. There are lots of such idiots — so many that the legislature cannot hold them all — so this sort of thing can draw a substantial vote.

  3. Perhaps I’m being too charitable.

  4. Tatiana says:

    200K you say?

  5. You could probably make more.

  6. [...] The law also criminalizes nude or sexual photography of the physically disabled—again, regardless of mental capacity. Apparently, in Massachusetts you lose control over your sexuality when you lose control over your legs. And don’t forget the small matter of the U.S. Constitution; Marc Randazza covers the legal issue of the law quite well. [...]

  7. [...] legs. And don’t forget the small matter of the U.S. Constitution; see Marc Randazza’s excellent coverage of the legal aspects of this [...]

  8. m says:

    I am over 60, and I resent that anyone would tell me that I am not competent to decide that I should pose nude. Not that I have any reason to believe that Playgirl and Manly Studs are rushing me or my body.

    There are already laws in place to prevent the exploitation of those who are not competent to make such decisions for themselves. But the proposed legislation is nothing but age discrimination on its face, as there is absolutely no reasonable basis for it other than ageism.

  9. I’m thinking maybe we need to send Ms.Reinstein a copy of our latest film, “Bill and Desiree: Love is Timeless”

  10. ILLYRIAN says:

    What is the problem?
    If that Rep. Reistein wants to show how thick, stupid and blatantly idiotic she is, then she should be allowed to be. If she chooses to make a similarily unintelligent comment like that again, I know a good place near the north pole where she can make the statement from.

  11. Mekhong Kurt says:

    Help, help!!! In just 2 years and 80 days, I’ll turn 60 years old!!!

    Now, I’m not the least bit interested in appearing nude in a photo or video, and never have been. But I damned sure reserve the right to do so, if for some reason I decide that’s just my cup of tea at the moment — even for a commercial sex film (or photo shoot).

    Yes, the representative has the right to make an ass of herself (which she is doing with remarkable skill). And we have a right to mock her.

  12. [...] persons with prison terms between ten and twenty years, plus fines ranging from $10,000 to $50,000. Legal Satyricon notes that not only is this law an assault against constitutional protections of speech, but it’s [...]

  13. [...] the legal blog The Legal Satyricon: Massachusetts State Rep, Kathi-Anne Reinstein (D) is targeting adult entertainment involving [...]

  14. Madonna Long says:

    I am not sure if this law is working against what some of the ADA laws state is discrimination. I think using the term “disabled” is too broad.

    I am a very attractive disabled woman, and now this bill has brought our magazine “Chloe Magazine http://www.chloemagazine.com, (which is not porn) into this issue. Chloe Magazine was listed with this legislation in a recent article in the Massachusetts Herald; Chloe Magazine is about amazing disabled women and is meant to empower them. Via the misinformation from the Massachusetts Herald paper, which stated we are like a playboy. Hard to do that when your first publication is not out and you have no nudity or anything close to it.

    Women who are disabled are beautiful and sexy and I think that this bill or law does not need to limit them because they am disabled or state that someone (gov) needs to make a woman’s decision because she is disabled. That is called discrimination in my book.

    Also it goes to show that someone reporting on disabled porn may think because “we say we are sexy and beautiful disabled women” that they list us as Playboy like or a porn publication, when in fact we have no nudity or anything close. Not good reporting, let’s try to do our homework, or is that just for the disabled people in the media???

    Disabled women can be lovely, sexy and there is no need to think otherwise.

    I think this legislation needs to have a more concise definition of disability or who they are protecting. I am 45 years old, have raised 4 awesome kids in my wheelchair, and am a business woman. I do not need anyone restricting my liberties as the law states that I am of legal age just because I use a wheelchair. And for the record, disabled women or men over the legal age can take care of themselves.

  15. Jack says:

    Old hags sholdn’t be in porn.

  16. Tom Allen says:

    Jack’s insightful comment notwithstanding, the popularity of broadband internet service has been partly responsible for a huge increase in amateur picture trading; if this bill passes, suddenly thousands of otherwise law-abiding citizens will suddenly be pornographers.

    Aren’t there already laws on the books about elder abuse? Assault? I can well imagine that the local law-enforcement agencies will go for the easy arrests (e.g., targeting the electronically inept who don’t know how to anonymize their picture-taking habits), and that actual elder abuse will continue along just as it has been.

  17. [...] as someone who lived there for a decade) wants to protect the over-sixty set from being exploited-by themselves. Oh just click the link and soak in the absurdity for [...]

  18. Liz says:

    Wow, I’m not a big fan of porn or disability-fetishists, but I’m disabled and I’ll do as I please with my body and images of it. I’m writing to Reinstein now.

  19. [...] rolls out a law trying to show just how concerned and empathic they are. A bunch of conspiracy theorists goes into a tizzy saying the law is ‘vague and overly broad’ and could get used to [...]

  20. LOL @ the old hag comment. Solid.

  21. Ove Kristian Furelid says:

    I think the law is very stupid and so the people who made the law. Why people think a disabled person are like underaged?

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