Legalization of porn will expand personal freedom: interview with lawyer Mykhailo Yudin

Recently, the Verkhovna Rada registered a draft law on the decriminalization of pornography. The draft law “On Amendments to the Criminal Code of Ukraine on Ensuring Freedom from Interference with Private Life” was registered under No. 9623 on August 18.

A lot of controversy and counterarguments have already erupted around the initiative of MP Yaroslav Zhelezniak.

What are the main arguments for decriminalization or at least legalization of porn and why it should be allowed – here are the thoughts of Mykhailo Yudin, partner at Axon Partners, who has been studying the problem and promoting the legalization of the industry for more than a year.

Mykhailo Yudin, partner at Axon Partners Law Firm

The main argument in favor is freedom of creativity and economic activity

What is the main argument for legalizing the porn industry?

There is no social danger in the production, distribution, and consumption of pornography. After all, the basis for assessing an action as a crime is that the state and society believe that some things pose a public danger.

If you open the Criminal Code, you don’t have any questions about why murder, terrorism, and rape are socially dangerous. What is socially dangerous about the production and distribution of ordinary pornography? Hundreds of thousands of people and I do not understand.

The Constitution gives me freedom of economic activity and freedom to dispose of my intellectual work in a broad sense. That is freedom of creativity in general. I can make any videos, including porn if I want to.

For example, why porn is not only allowed in the United States, it cannot be banned there because there is a First Amendment to the Constitution that prohibits Congress from passing laws that restrict freedom of speech. They interpret this broadly. For them, freedom of speech means, among other things, freedom of creativity. We have similar provisions in our Constitution. We also have provisions for freedom of speech and the press. It’s just that our political culture does not attach such fundamental importance to them.

What is your concept of porn legalization: what should remain prohibited and what should be allowed?

I would absolutely agree that we should decriminalize so-called normal porn, that is, porn that is not created with violence against people, without their consent, that does not contain minors, necrophilia, bestiality, and all these things. In fact, this concept is embedded in the draft law No. 9623.

These things should be excluded from the scope of decriminalization, obviously, because they harm other people and they actually contain elements of other crimes. Everything else that can be found on PornHub should be legalized.

Do you reject morality and ethics as a source of law in the modern world?

I don’t reject the existence of morality and ethics; I reject them as objects of legislative regulation. I do not believe that the state should regulate morality and ethics in cases where they do not concern the harm that may be caused to individuals. The production and consumption of normal sexual content is a matter of morality and ethics that should be resolved at the level of the family, personal relationships, etc., and not by the state.

Decriminalization is not legalization

It is worth reminding you that decriminalizing porn does not equal legalizing it, as some media outlets report. Decriminalization is the repeal of laws that impose liability for porn on actors. At the same time, legalization implies building new rules for all workers in the porn industry at the legislative level, not just abolishing the very responsibility for participating in filming.

Why the risk of child trafficking and violence is not a counterargument to legalizing porn

With legalization and decriminalization, there will be many more risks of human rights violations, forced involvement in porn, and human trafficking. What to do about it?

This is an understandable argument against decriminalization, but on the other hand, look: we are now talking about the fact that some activity can lead to other crimes that are not directly related to this activity. For example, I can hit people with my car, and this happens. I can drink alcohol and harm others while drunk. Let’s ban cars, alcohol, and knives.

There is no evidence that countries that have legalized pornography have been overwhelmed and unable to cope with the invasion of these crimes, and before that, they supposedly did not exist. That is, they exist now, and they are likely to continue. This is a question of the effectiveness of law enforcement the judicial system, and the trust of citizens in law enforcement. The fact that porn is now criminalized does not exclude the existence of all the crimes you have listed.

What can be done to prevent these risks?

There are different approaches. If we look at the world, there are about three legislative positions on pornography:

• Simply allowed
• Prohibited or restricted (our current option)
• Regulated

We can allow porn and at the same time pass a law, for example, that will regulate some problematic aspects, or we can just allow it and do nothing else. It is not clear which way the legislator will choose. It largely depends on the political culture: obviously, countries like the United States are more inclined to a liberal approach. While countries in the eastern part of Europe may be more inclined to regulate.

I’m not saying that I’m against regulation. Maybe we should really pass a law on sexual services to regulate the risky aspects and make the period of the industry coming out of the shadows less stressful for society.

The country needs a broad discussion about porn and sexual services

How do you currently assess the law promoted by Yaroslav Zhelezniak? For example, one of the problems mentioned by other lawyers is that there is no separation between studios and individual content makers.

Why they haven’t developed a larger draft law is not really my question. I think they want to start a serious discussion, not just at the level of political slogans. Of course, given the issues you have raised, this draft law cannot be considered sufficient.

By the way, if we recall Taras Siromsky’s petition to legalize pornography, the Ministry of Justice responded by saying that the legalization of pornography is possible in Ukraine, but the approach should be comprehensive. Of course, this is a certain formality of the answer, they had to write it that way, but on the other hand, there is a rational grain in it.

Indeed, if it is a studio, it already acquires the features of an organization. Perhaps, from a criminological point of view, the existence of studios carries more risks in terms of the fact that it is a certain organized group of people, and it is not known how they work with models, whether there is voluntariness, whether they take away documents, whether they force them to appear in porn, where they take those people, and so on.

Decriminalize or legalize porn

Are you in favor of decriminalizing or legalizing porn? Should we take into account, say, the greater European experience than the United States and prescribe certain rules and standards?

Here, again, there is one aspect: the effectiveness of law enforcement agencies. If I was sure that the police, the Ministry of Internal Affairs, the prosecutor’s office, and then the courts could be relied upon 100% in this matter, that is, that any complaint and statement about a crime would be properly considered and the perpetrators would be brought to justice, then I would say that we could try to simply decriminalize and see how this market exists in such a sphere of freedom.

Unfortunately, this is not the case in Ukraine so far. Of course, ideally, I would like to see fewer laws. I don’t like it when there is a law for every sneeze because it increases the possibility of pressure and reduces freedom. However, perhaps we need to go through a period of maturation when there will be some regulation, and then we will see. Maybe someday it will be possible to let go a little bit.

Is society ready to legalize porn?

There are churches and feminist movements that will oppose it, and judging by the comments in the media, society seems not very ready to support such changes. What do you think?

We were at the iForum IT conference. There was a panel discussion on the issue of decriminalizing porn. It seems to me that everyone from the moderator to the last listener was at least not against it but rather supported it.

It will be impossible to please everyone. Plus, a person has the right to treat it as they want. But it’s also not very democratic to ban something because someone doesn’t like it. In a democracy, something is allowed, and you can say you don’t like it, but you have to accept it.

I also don’t think that everyone will immediately rush to make porn. Look, I could have become an IT guy, but I became a lawyer, and I don’t take courses on how to become an IT guy now, even though it’s very popular and attractive. It’s the same with porn. Many people are attracted by the possibility of earning money in this way because it can be solid, but not everyone can overcome certain social prejudices or their own principles.

And the way you treat yourself, your children, your family, your girlfriend in the context of such an occupation as making porn is absolutely your relationship, your morality. Because I repeat, I am not for an immoral society, I am for freedom.