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Kiddie Porn and The Public Good

Even literate Canadians can be excused for not paying much attention to federal Justice Minister Martin Cauchon’s introduction last week of new legislation designed to plug alleged loopholes in the nation’s child pornography laws. It is not just the press of seasonal events–from the incessant thumping of American war drums over Iraq to the permanent crisis in Ottawa, a.k.a. the Chretien government–that accounts for the inattention.

Kiddie porn is simply one of those uncomfortable topics that most of the distracted public is happy to avoid. After all, just about all of us, minus a few sociopaths, are opposed to child pornography, very few people are even marginally involved in it, so, why worry about the fine points or whether such laws infringe on our free speech? Leave it to the experts and the cops is the prevailing attitude. To make matters murkier, the mixed motives of those most interested in the subject–politicians, enforcement authorities, therapists and child porn users/consumers–are largely the source of the moral and legal confusions that have bedevilled this section of the Canadian Criminal Code ever since its introduction a decade ago. The latest proposal doesn’t get it right either–and the wrongheadedness of the reform once again makes the child pornography law a matter of public interest.

It’s not possible to make even rudimentary sense of Cauchon’s proposed amendments–an obscure move to eliminate an existing “artistic merit” legal defence in favour of a “public good” defence–to the child pornography law without a brief survey of the law itself and the debate that has arisen as a result of its implementation. There is, I think, an intellectual payoff for doing so that justifies the effort.

The place to begin is the one area that almost everyone–from Canadian Alliance porn fundamentalists to civil libertarians of diverse political stripes–agrees on. It’s this: visual sexual representations of actual children and young people that require the commission of a crime for their creation ought to be prohibited. For example, any depictions of actual children under the age of 14 (that’s the age of consent in Canada) engaged in sex with an adult (someone over 18) is the result of a criminal act–since sex between adults and children under 14 is illegal– and such representations can be regarded as an extension of the crime that made possible the depiction and thus ought to be made illegal themselves.

Beyond this area of agreement, almost every other aspect of the child pornography question was and is in dispute. Porn fundamentalists wanted to go far beyond the kiddie porn basics of protecting actual children and restrict a whole range of images and acts involving not children but young people between the ages of 14 and 17. Porn civil libertarians, by contrast, argued that anything beyond the core restrictions would be an infringement of democratic rights and, anyway, it would be better to direct resources to preventing acts of child abuse rather than to worrying so much about images of it. In the end, the fundamentalists won.

The child pornography law (section 163.1 of the Criminal Code) was passed in 1993 by the Mulroney government, as an add-on to the existing law against obscenity (section 163). The law was created mainly to salve internal political differences between factions of the Conservative Party of the day rather than to address pressing new dangers putting children at risk. Indeed, critics pointed out that the existing obscenity law already covered child pornography, and there was little evidence at the time of a significant increase in the availability of child porn.

The 1993 law had two notable features: first, it defined child pornography as any visual representation “that shows a person who is or is depicted as being under the age of 18 years and is engaged in… explicit sexual activity; or [any visual representation] the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years,” and “any written material… that advocates or counsels sexual activity with a person under the age of 18 years that would be an offense” under the Criminal Code.

Second, although the law included the standard prohibition against manufacturing, distributing, selling, or possessing for the purpose of distribution or sale any child pornography, it also created the unique offense of simply possessing any child pornography–for the first time in Canadian law the mere possession of some “expression materials” was made a crime. (Although the obscenity law makes it a crime to make, publish or possess for the purpose of distribution or sale any obscene material, it’s not a crime to possess obscene material that you don’t distribute or sell to anyone else.) The new and unique possession offense was meant to show that child pornography, however defined, is such a danger that its prohibition overrides constitutional guarantees of freedom of thought, speech and expression.

The new child pornography law had barely been rushed through a closing session of Parliament (the job was done with less than three hours of committee and parliamentary debate in spring 1993) before it was subject to thorough-going criticism. The objections were pretty obvious. First, the law reached far beyond the protection of children and criminalized the representation of legal sexual acts involving youth. Thus, a picture of two 16-year-olds engaged in perfectly legal sex now became a kiddie porn crime. How can an act that is legal become a crime simply through its photographic representation, critics asked. And why should everyone under 18 be regarded as a child? Second, although it’s legal under free speech constitutional guarantees to publicly advocate crime–including sex with children–written advocacy of sex with children was now defined as child pornography and banned. Further, the advocacy didn’t have to be published, distributed, or sold. A simple diary entry that fell into the hands of the authorities was sufficient for a prosecution. Third and finally, the possession offense raised all sorts of problems. What if someone under 18 made a sexual photograph of himself? Even though he may not have shown it to anyone else, mere possession of the self-portrait could be a crime under the child pornography law. Ditto for a diary entry. Wasn’t the possession offense trenching dangerously close on freedom of thought? Didn’t the whole law, with its overbreadth, smack of thought-control?

It was almost inevitable that the law would face constitutional challenges. Along came Vancouver writer and political activist Robin Sharpe, who was charged in 1995 with, among other things, being the author (and possessor) of a series of pornographic fictional stories that described sex with children, and which authorities interpreted as advocating acts that would be crimes under the Criminal Code, and thus in violation of the child pornography law. Sharpe went to court and immediately challenged the “advocacy” and “possession” sections of the law as constitutional violations of the freedom of thought, speech and expression provisions of the Canadian Charter of Rights and Freedoms.

Two lower courts, to the surprise of porn fundamentalists, agreed with Sharpe that the possession section of the law was unconstitutional, and struck it down. Although the rest of the law stayed in force, child porn fundamentalists nonetheless loudly complained that it was open season for pornographers, and their Canadian Alliance representatives in parliament called for an unprecedented legislative overturning of the court decisions. The constitutional part of the case wasn’t settled until 2001 when the Supreme Court of Canada, to the relief of the government, upheld the child pornography law and ordered Sharpe tried on the original charges.

Although Chief Justice Beverley McLachlin saved Parliament the trouble of having to fix a flawed law, she did recognize its imperfections and attempted to remedy them by reading a couple of exceptions into the law. Thus “self-created expressive material” and “private recordings of lawful sexual activity” were exempted from possession prosecution; furthermore, McLachlin broadened the existing defence of “artistic merit” that the law already recognized, by lowering the technical hurdles a work had to clear before being sanctified as art.

Thus, as a result of McLachlin’s decision, “private journals, diaries, writing, drawings and other works of the imagination, created by oneself exclusively for oneself,” even though they might be about sex with children, were exempted from prosecution. So were “privately created visual recordings of lawful sexual activity,” such as photographs of sex between two 16-year-olds that they kept in their own possession. The reason for the exemptions and for the broadening of the artistic merit defence, the chief justice made clear, was because of the importance of the values of freedom of thought and self-fulfillment. Of course, the Supreme Court decision hardly solved all problems. Anomalies remained. Written advocacy of sex with children was still considered child pornography, people under 18 were still regarded as children, and a variety of representations involving neither actual children nor actual sex could fall afoul of the law. The two 16-year-olds with the sexual photos of themselves, if they showed the pics to friends at school, would be guilty of distributing child pornography and their friends would be guilty of possessing it.

Our potted survey concludes with Sharpe finally going to trial. Although convicted of one count of possessing sexual photographs of persons under 18, the spotlight of the trial fell on Sharpe’s acquittal for possessing his self-authored pornographic stories, on the grounds that they had artistic merit.

Ever since, child porn fundamentalists have petitioned the state to “plug the loophole” created by Sharpe’s acquittal. This is where federal Justice Minister Martin Cauchon comes in. Last week, as part of one of those hodgepodge omnibus bills designed to clean up loose ends in the Criminal Code, Cauchon introduced two significant changes in the child pornography law and a new sex crime involving young people.

Here’s what Cauchon proposes to do. Under the child porn law prior to Cauchon’s amendments, “the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.” Cauchon wants to scrap the artistic merit defence entirely, and replace it with a much-diluted defence that provides that “no person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence, or if the material related to those acts that is alleged to contain child pornography, serve the public good and do not extend beyond what serves the public good.” This is particularly involuted legal language, even by Ottawa standards. Perhaps the legal vagueness of the notion of “public good” is so exposed here that the drafters felt the need to swathe it in layers of legalese.

But that isn’t all. Sharpe’s stories may no longer be protected by some minimal notion of artistic merit, but what about the fact that they don’t explicitly advocate anything, that they’re just stories that describe illegal acts? Cauchon is prepared to solve that, too, with an expanded definition of child porn that includes “any written material the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of 18 years that would be an offence under this Act.” So, once again, as in the days when “decency” and “morality” rather than actual harm determined judgments of obscenity, written descriptions of imaginary acts by imaginary persons could fall under the child pornography law.

One other proposal in Cauchon’s omnibus bill is worthy of note. It’s already illegal for anyone (such as a teacher, counsellor, or priest) who is in a position of trust or authority towards a young person (aged 14-17) to have sex with that person. The same goes for someone (such as a guardian or employer) who is a person with whom the young person is in a relationship of dependency. It’s also illegal for adults to induce people between 14 and 17 to have sex, as in prostitutional circumstances, and the same proscription of inducement holds for making youth pornography. Despite those protections, Cauchon proposes to add to the existing law a new category of “sexual exploitation,” making it illegal for someone “who is in a relationship with a young person that is exploitative of the young person” to have sex with that person. Exploitation, the bill goes on to say, will be determined by a judge on the basis of a) the age difference between the two, b) “the evolution of the relationship,” and c) the degree of control or influence by the person over the young person. These clear-as-mud vagaries discourage attempts at explication. I suppose one can say that while teenage fans will still be permitted to swoon over boy band idols, 20-something members of ‘N Sync and Backstreet Boys had better arrive at backstage trysts accompanied by their lawyers.

A Globe and Mail editorial on Dec. 10 gets some of what is wrong with the refinements to the child pornography and sexual exploitation laws proposed by the government. Noting that Parliament has reason “to tread carefully when making laws in response to the public’s strong feelings on the subject,” the Globe says the government didn’t do that “in putting forward a child-protection bill last week. Instead, it introduced a fatal vagueness into laws against child pornography and sexual exploitation–a vagueness that gives too much power to the state…” The offence, observes the editorial, “includes fictional writing and drawings from the imagination–activities that… do not involve the abuse of real children. Artistic merit and an educational, scientific or medical purpose are out as defences; the sole remaining defence would be the ‘public good.'”

The Globe asks, “Could there be a vaguer term, especially in the context of free expression, than the public good? In a democracy, free expression itself is supposed to be a public good, yet that does not seem to be what is contemplated by this law.”

Once the amendments become law, as they most likely will, we might find ourselves scratching our heads over sundry works. Vladimir Nabokov’s Lolita, Margeurite Duras’ The Lover, Bernhard Schlink’s The Reader, and a host of films from Agnieszka Holland’s Total Eclipse to Franco Zeffirelli’s version of Shakespeare’s Romeo and Juliet all contain depictions of persons under 18 engaged in sex with adults (excepting only the Bard’s star-crossed teen lovers). Since these works of possible child pornography are no longer protected by an artistic merit defence, do they really all serve “the public good”? Gee, I’m not so sure about Humbert Humbert’s adventures with Lolita, or even Holland’s Total Eclipse, a portrait of the rambunctious relationship between the poets Verlaine and Rimbaud (the latter played by an often in-the-all Leonardo Dicaprio). What if I happen to be in possession of Zeffirelli’s </>Romeo and Juliet? In the famous “’tis the nightingale/ no, ’tis the lark” bedroom scene, Zeffirelli’s camera lingers long on the naked “anal region of a person” who is or is depicted as being under 18, namely, Romeo, played by Leonard Whiting. Whether that anal region is displayed for “a sexual purpose” or to “serve the public good,” or even the claim of some hapless artist that it’s there because it’s beautiful, can be left to the courts for resolution.

I suppose the common-sense of the courts will probably rescue most of the above, notwithstanding the lust of fundamentalists to clean up dirty art. But Cauchon’s amendments simply make a bad, often illogical, law that much worse.

The motivation for the improvements is not entirely self-evident. Artistic merit defences are generally considered a modern legal milestone–more than one magistrate has solemnly intoned that freedom of artistic expression is at the heart of democratic life–and it’s not clear why a Liberal government would want to go backward on this matter. Since it’s most unlikely that another Robin Sharpe is going to surface in the courts, rewriting the law simply to forestall a rather unique defendent seems like a waste of time. The reasons must be political. “Protecting children” is such a sacrosanct matter that any government can count on scoring points for making even the vaguest gestures. And in its dying days, the Chretien government is in need of any points it can get. What’s more, the move gets the Canadian Alliance momentarily off the government’s back. Finally, the government can be fairly certain that any criticisms of such legislative proposals, like this one, are unlikely to garner even minimal public attention.

So, we remain with an incoherent child pornography law. Sexual representations, real or imaginary, of persons under 18 are illegal child pornography, even though persons between 14 and 17 can legally engage in sex with each other or adults. Persons between 14 and 17 can make legal sexual representations of themselves if they keep them in the closet, but if they show them to anyone, both they and the viewers are guilty of child porn crimes. A work of art that includes written descriptions of sex involving those under 18 is not protected by the fact that it is art. The absurdities are such that one wonders if the proponents of such legislation are really concerned with protecting actual children from sexual abuse and exploitation, or if the aim, as some critics have suggested, is primarily the control of youth sexuality by religiously-motivated zealots.

If I were a cynic–alas, I’m not, I’m merely an ironist–I suppose I could take comfort in being stoned while I’m protected, thanks to our dubious definition of kiddie porn, from eyeing evil images. Apparently not all sacred cows remain so. The same government extending the reach of the child pornography law is also contemplating the relaxation of the prohibitions on marijuana.

Dec. 11, 2002, Vancouver

Stan Persky teaches philosophy, including philosophy of law, at Capilano College in North Vancouver, B.C., and is the co-author, with John Dixon, of On Kiddie Porn: Sexual Representation, Free Speech and the Robin Sharpe Case (New Star, 2001), which won a Donner Prize for best Canadian books on public policy.

Stan Persky

Stan Persky

Stan Persky taught philosophy at Capilano University in N. Vancouver, B.C. He received the 2010 B.C. Lieutenant-Governor's Award for Literary Excellence. His most recent books are Reading the 21st Century: Books of the Decade, 2000-2009 (McGill-Queen's, 2011), Post-Communist Stories: About Cities, Politics, Desires (Cormorant, 2014), and Letter from Berlin: Essays 2015-2016 (Dooney's, 2017).

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