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Any person aggrieved by violations of this law may enforce its provisions by means of a civil action filed in a court of competent jurisdiction. No criminal penalties shall attach for any violation of this law.
The evidence that supports the Ordinance might well justify criminal penalties under existing legal standards, and some may be appropriate. In order to empower women, however, the Ordinance as currently designed operates civilly. This means that no police seize materials and impound them while legal proceedings drag on. No prosecutors decide whether or not a woman's case is valid. While it might be advantageous at some point to engage the help of the state apparatus against the pornographers, it is clear that the entire structure of state, federal, and local government, with all the resources and power at its disposal, has not managed to do anything significant about the pornography industry.
It is time to place the power to remedy the harm in the hands of those who are hurt, rather than to enhance the power of those who have done so little with so much for so long. Currently, there are laws against rape, domestic battery, and sexual abuse of children, and prosecutors and police do virtually nothing effective about these problems. Too, pornographers are in the pornography business largely to make money. After a rare conviction for obscenity, many continue to run their businesses from jail. They cannot, on our analysis, continue their business without hurting women and children. Therefore, empowering those that the pornographers must hurt to do business by making it possible for their victims to target a reason the pornographers do that business seems like the most obvious, best, perhaps only chance of ultimately eliminating them.
Any person who has a cause of action, or their estate, may seek nominal, compensatory and/or punitive damages without limitation, including for loss, pain, suffering, reduced enjoyment of life, and special damages, as well as for reasonable costs, including attorneys' fees and costs of investigation.
In claims for trafficking or against traffickers under the assault provision, no damages or compensation for losses shall be recoverable against maker(s) for pornography made, against distributor(s) for pornography distributed, against seller(s) for pornography sold, or against exhibitor(s) for pornography exhibited, prior to the effective date of this law.
The purpose of money damages in lawsuits is to compensate the victim for the injury. While it is impossible truly to compensate anyone for the harm of pornography, it is impossible truly to compensate for the injury of libel, wrongful death, dismemberment, medical malpractice, and most other personal injuries that are compensated all the time. The particular point of damages under the civil-rights law is twofold: to recognize that something that belonged to the victim was wrongly taken from her, and to provide restitution in the same terms that provided the pornographers with an incentive to take it in the first place. Pornographers are in the pornography business to make money. As a matter of policy, any scheme to stop them must recognize that a major motivation to abuse is financial.
Any person who violates this law may be enjoined, except that (a) no temporary or permanent injunction shall issue prior to a final judicial determination that the challenged activities constitute a violation of this law, and (b) no temporary or permanent injunction shall extend beyond such materials that, having been described with reasonable specificity by the injunction, have been determined to be validly proscribed under this law.
The civil-rights injunction is a recognized tool for relieving civil-rights abuses in schools, housing, employment, prisons, mental-health facilities, and countless other settings. Yet, applied to pornography, this provision is often mischaracterized as a "ban." It works the same way all civil-rights injunctions work: once a practice is shown to injure its victims, a court can issue an order to stop it. In a case of coercion, the court could stop the coerced materials from being sold. In a case of force, the court could stop the forcing of pornography from continuing. In a case of assault, the court could stop the material proven to have caused the assault from being distributed or sold further. In a case of trafficking, the court could stop materials proven to subordinate on the basis of sex from being made, circulated, sold, or shown. None of these steps could be taken until all the appeals in the case were through, and it could be taken only against materials that have been specifically described.
Should any part(s) of this law be found legally invalid, the remaining part(s) remain valid, if consistent with the overall intent of this law.
Most laws have a provision that invites courts to uphold some parts of the law even if it finds other parts of it invalid. The Indianapolis Ordinance was particularly careful to permit a reviewing court to uphold the law against actual presentations of a woman being subordinated, even if other parts of the law were invalidated.
Complaints under this law must be filed within six years of the discriminatory acts alleged.
Abuse through pornography often occurs over a long period of time, ending only when the victim can find the resources or means or self-respect to escape. The impact of the abusive process, coupled with the fact that the society protects and defends the abuser and ignores and stigmatizes the abused, undermines the victim's sense of personal efficacy, trust, belief in political action, and faith in the legal process. By the time individuals recover sufficiently to act, the time period within which they must complain before the injury expires has long elapsed. Discrimination laws customarily allow a disgracefully and uniquely short several-month period within which to complain. The six-year period provided by the Ordinance is more like the usual period allowed for personal injuries the law takes seriously. The time period would start to run from the last date the injury was done, except when it was argued that there was a good reason to start it later-for example, because the victim was a child when the abuse ended, or because an adult victim remained under duress or threat although the forced pornographic performances had ended.
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