I remember the first time I spoke publicly about the Robin Sharpe affair. I was disguised as a TV-talkinghead, my paunch perched frog-like in a TV chair on-set. The venue was one of those local Vancouver chat shows that always seem to be titled On The Edge or At The End or Apocalypse Now–i.e., “urban edgy,” meaning that the viewer demographic aimed at is 19-34, and the ultimate
point seems to be to get in the host’s pre-discussion stand-up monologue in which he demonstrates to the TV execs that he’s ready for prime time, hopefully in New York City.
This one took place shortly after B.C. Supreme Court Judge Duncan Shaw’s early 1999 decision that the section of Canada’s hastily-drafted child pornography law making simple possession of dubious and/or disgusting materials a crime was
unconstitutional because it violated free speech rights. Shaw issued his decision, and then had to duck for cover as lynch mobs, right wing radio hotline programs, and various other wingnuts across the nation bayed and brayed for his head.
The TV talk show I was on was an unexceptional mishmash of half-informed opinions, minor insights, and time-fill typical of the genre. But there was one moment–a punctum, as the late Roland Barthes would say–that got my attention.
As I was coming onto the set, I recognized one of the three cameramen working the show, and said hello. It turned out he had an opinion about the matter at hand and thought that I was the appropriate audience for it. I don’t remember his exact words as much as I recall the visceral emotion that he conveyed. It went something like, “If I ever caught that sonofabitch pervert fucking around with my kids, I’d cut off his nuts and ram a hot poker up his ass,” or something more graphic and profanity-laced than that.
What surprised me was how enraged the guy was, and how much he felt the need to demonstrate his righteous indignation for me. Since almost everybody, including civil libertarians, is officially against child pornography, offenses against
children, and all the rest, why the need to announce this to me on the basis of our vague acquaintance, or to anybody else? Since such a declaration is redundent in a situation where everybody agrees, what exactly is its political and/or pyschological
Anyway, I did the show, collected my souvenir coffee mug, and went on being a citizen and public intellectual peripherally involved in the Robin Sharpe case. Then last summer, after the B.C. Appeal Court agreed that there was something dangerously unconstitutional about the child pornography law, and the Supreme
Court of Canada agreed to hear the case in January 2000, my publisher proposed that I co-author, with teaching colleague, friend, and former president of the B.C. Civil Liberties Association, John Dixon, a book about the issue. We’ve done that book, or at least 4/5ths of it, then sat back to await the Supreme Court’s last word before penning the final chapter.
Yesterday, when the Supreme Court decision came down, I dutifully pondered it for a weekly column I write for the Vancouver Sun, and then turned to the now less appetizing chore of finishing the book, which Dixon and I are calling On
Kiddie Porn: Sexual Representation, Free Speech and the Robin Sharpe Case.
In the book, and whenever I’ve subsequently appeared in public to speak about the issues involved, I’ve presented myself as a moderate, reasonable, concerned citizen-intellectual. My main aim has been to show that I recognize that this is a
delicate, volatile, terribly important matter, and to argue that we should avoid getting over-excited, hysterical, or kneejerk reactionary about it, maintaining instead our composure so that we can balance our genuine concern about the evils of child pornography against the need to remember that we’re living in a democracy. Every time I catch a glimpse of this public persona, by inadvertently clicking onto a TV re-run, or by deliberately re-reading a page of something I’ve written about the case, I immediately see through this stranger, and say to myself, “Aw-oh, he’s doing his reasonable thing, again.” There’s a gap between my reasonable, do-gooder, public persona, and my private experiences and thoughts about the whole thing. It isn’t a gap I like or enjoy.
Before I try to figure out what it is I think privately about the issues raised by the Robin Sharpe case, let me give the shortest possible account of Canada’s child pornography law, Robin Sharpe, and the Supreme Court of Canada’s recent decision.
There are two important features of the child pornography law originally passed by Parliament in 1993. The first is that it creates a novel crime: possession of child pornography. Nowhere else in Canadian law is there a prohibition against the mere possession of expressive materials. You can possess revolutionary tracts,
plans for an A-bomb, denials of the Holocaust, manifestos for and/or against homos, violent denunciations of your in-laws, etc. But you can’t possess child pornography. Before 1993 it was already illegal to make, distribute, sell, or possess for the purpose of distributing or selling any obscene matter (including child pornography), but after 1993 possession itself was the new, gotcha element.
The second important feature of the 1993 law was the definition of child pornography–crucial because it defines exactly what can’t be possessed. Here’s the definition:
“(1) In this section, ‘child pornography’ means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) 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; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under [the Criminal Code].”
If the child pornography law simply said, “It’s illegal to possess any photographic representation of children engaged in explicit sexual acts where a sexual offense against actual children was required in the production of the
representation,” there wouldn’t be (so) much of a problem. That is, if we need a possession law at all (an arguable proposition), it ought to be one that is extremely precise (given the novelty of criminalising possession of expressive materials) and that catches representations of actual children being abused, not imaginary children, or adults who look like children, or dubious nude photos, or teenagers doing what teenagers eventually do, or writings that say this or that. The narrow definition (pics of actual sexually abused children under 14) was, roughly, the
definition proposed within the federal ministry of justice when the law was being crafted, and the definition endorsed by various civil liberties organizations.
But instead the law went much further than that. The reason it was so broad was because that’s what conservative parliamentarians (of all political parties) wanted. As a result, you can be arrested, tried, and convicted for writing down a
thought in your diary that could be construed as advocating sex with children, even if you never show your diary to anyone else. Or, even though the age of consent in Canada is 14, if you’re a teenager between 14 and 17 (inclusive), you could be involved in a perfectly legal sexual activity–say, jacking off, or having sex with your teen girlfriend–but if you’re 16 and you make a Polaroid of your hard-on, or if you’re a 17-year-old couple and you videotape your honeymoon night, even if you never show the pics to anyone else, you’ve just become a child pornographer.
I’m not going to go through every possible permutation here. The short version is: the law is crazy. It’s also unconstitutional.
Along comes Robin Sharpe. He’s a 60-something, semi-retired, semi-literary, Vancouver resident who got nailed for possessing a manuscript he wrote that allegedly consists of fictional stories portraying sex with kids, and for possessing
photos allegedly of naked kids (whether the kids have erections or whether they’re engaged in any explicit sexual activity is unknown, despite confident journalistic claims about the content of the pics). Instead of plea-bargaining the charges down to
community service time, Sharpe decided to challenge the constitutionality of the possession section of the law (the rest of the law about making, distributing and selling child pornography remained unchallenged and in force). Surprisingly, the B.C. Supreme Court and the higher B.C. Court of Appeal agreed with Sharpe’s contention that the possession clause in the child pornography law came perilously close to thought control, and indeed violated constitutional guarantees of free speech, thought, expression, and all the rest. So they struck it down.
In the wake of the decisions, the right wing in this country went bonkers, demanding that the government practically declare a state of emergency and impose martial law–or at the very least, invoke a never-used parliamentary constitutional
power to overturn the court decisions it disagreed with and reinstate the full force of the law. We must protect our children, predators lurking in every bush, and so on.
The Supreme Court heard the case, and a year later, on Jan. 26, 2001 rendered a clever decision that appears to satisfy everybody. Chief Justice Beverly McLachlin, who wrote the 6-3 majority decision, decided that the possession-of-child-pornography clause was indeed “overbroad,” as they say in legal circles, but that the overbreadth wasn’t as terrible as Sharpe and the law’s critics claimed. So, the court upheld the law, but “read into” it two exceptions that allow you to write private thoughts, as long as you keep them to yourself, and to take private pictures of legal sexual activity, as long as you keep them to yourself as well. The court also bound Sharpe over for trial on the four original charges laid against him.
Almost everybody has said that it is a good decision, except Sharpe. And while police, civil libertarians, “family values” types, and governments all publicly praised the decision, some of the enthusiasm was public relations designed to make the commentators appear reasonable. Civil libertarians privately believe that the Supreme Court decision, despite doing a lot of jawing about the importance of free speech, privacy, and democracy, really ignored the substance of all those things. A Globe & Mail editorial argues that the “criminalization of material that ‘advocates or counsels’ illegal sexual activity with someone under 18 crosses the line from the protection of children to the suppression of offensive arguments… Any attempt to criminalize speech should have to scale a much higher hurdle than this law sets.” The same editorial also points out that the court actually struck down part of the possession clause, even though it said it was merely “reading in” a couple of exceptions to an otherwise sound bit of legislation.
Some family values groups have also endorsed the decision, but there’s reason to believe they’re in agreement with what three of the court’s nine justices wrote in a dissenting opinion. The dissenters agreed with the majority decision to uphold the law (thus making the decision technically unanimous), but argued that there shouldn’t be any exemptions, exceptions, fine-tunings, or anything less than 100 per cent zero tolerance. In their view, if you write down a dirty thought in your diary, the police should have the right to get a foot in the door and a foot into your computer. This is the closest thing to advocacy of Orwellian thought control that I’ve encountered in a Canadian legal decision.
As for Robin Sharpe, he now faces two charges (stemming from two separate busts) of simple possession of child pornography, and two charges of possession for the purposes of distribution or sale. The charge involving possession of the stories he wrote might get dropped, but the charge involving possession of the pictures he took and any other visual material the police scooped up will go ahead, and so will the charges of intent to distribute or sell, even though they’ll probably be hard to prove. Sharpe could probably plea-bargain the case down to a single charge of possession of dirty pictures in an effort to reduce or minimize jail time, but he’s a stubborn man who says he’s going to plead not guilty because he sincerely believes that whatever he’s done shouldn’t be a crime.
Now we’ve come to the place where I don’t know what I’m going to say because I’m not quite sure what my private opinions truly are. On the day of the decision, I rattled away as a citizen/public intellectual on a Calgary radio show, assuring parents that everyone in the house could sleep more easily tonight. But in my role as me, I’m not sleeping at all. In addition to feeling intellectually disappointed by the decision, I also feel strangely sad.
So let me offer my private thoughts as numbered provisional theses, thus:
1. I have an almost natural flair for, and interest in, being a citizen, but there are moments, such as this one in the wake of the Supreme Court decision, when I realize how estranged I privately am from the society of which I’m a member. I’m no longer sure I want to be a citizen of this or any other known society, since every one of them is filled with sizeable moral minorities that don’t quite fully control the
machinery of government. What they don’t control is controlled by business, which has itself already displaced most of politics in the same way that entertainment has displaced art. I’m no longer sure what I’m doing in this strange land in which I wasn’t born, and where more than half the provincial electorate I live among voted in the last federal election for people who plan to oppose abortion, homosexuality, gun control, the CBC, public health care and education, and the independence of the judiciary. These people believe in fundamentalist religion, creationism, and the co-existence of dinosaurs and humans on an earth they say is only 6,000 years old rather than the 4 billion years any sensible person recognizes. And it’s not a temporarily reactionary British Columbia or the Canadian Alliance party that I’m thinking about, now. I’m also talking about the first person who ever said to me (I must’ve been 6 years old), “Well, if we let you do it, we’d have to let everybody do it,” and who couldn’t understand the logic of my reply, “But not everybody wants to do it”. Instead of pretending to be a polite, reasonable citizen, why don’t I just admit that I’m a stateless Wandering Jew, homosexual semi-outlaw, and compulsive and irremediable practitioner of the obsolete art of reading and writing?
2. I’m a little scared by all this, not just by the Sharpe decision. As a homo I can feel the chill, and I thank the god I don’t believe in that I’ve been spared the slightest sexual desire for children and only want to sleep with adults. But my several proximities make me capable of imagining the nightmare of pedophilia (even though I know it’s not safe to write down those nightmares), and I know how easy it is for these sizeable and vitriolic moral minorities to decide that all homosexuals are pedophiles.
3. I’m asking myself whether child pornography is a serious issue. Apart from sexual offences against actual children, and photographic representations of those offences, I don’t think so. Whenever child pornography is being discussed, I invariably find myself struck by the air of relentless earnestness everyone involved apparently feels obliged to assume, as well as the heat of inappropriately inflated emotion regularly injected into such conversations. I suspect that a lot of the furor about child pornography in the public forum is exaggerated in relation to the real danger, and is some sort of psychological displacement whose sources I don’t fully
understand. There seems to be an insistence on conducting such talk in tones of unctuous seriousness and sincerity, as though permitting the slightest sign of irony would delegitimate one’s right to say anything.
Along with just about everyone else, I believe that pedophiles should be prevented from diddling kids, but my suspicion is that pedophiles are much more rare than is generally thought. I think there are about as many pedophiles out there as there are people who like to fuck goats. And most of the pedophiles are not lurking in the bushes, but are ensconced in respectable family dwellings The percentage of child pornography available on the Internet amounts to less than one per cent of the total pornography available. I think the category of “abuse” has been so irrationally enlarged that its use is ideological rather than factual.
From the research for the book, I’ve become familiar with the inside story of the crafting of the child pornography law and I’ve seen all the internal justice department documents involved in its crafting. The 1993 law was created largely by Conservative party pragmatists to pacify the right wing of a fractured movement; which is to say, the law was never a serious undertaking.
I think the public response to the issue of child pornography, like that of the cameraman I described above, is wildly out of proportion to the threat involved, and constitutes a form of moral bullying designed to make the rest of us conform on a
larger scale to a moral agenda that the self-proclaimed moralists are unwilling to divulge the full implications of. A friend of mine said to me recently that the reason “decent” people are so outraged by child pornography is that it’s a projection of their guilt at abandoning their children to TV, to the mall, and to popular culture while they’re busy making money. Well, that sounds too clever by a quarter, but
at least it’s an effort to make sense.
4. I’m wondering about Robin Sharpe. Just as I peripherally know the justice minister who helped craft the child pornography bill in the first place, I also know Sharpe in a peripheral way. I’ve met him in person, mainly at literary events. I think he’s harmless generally and no threat to public safety. But I don’t like knowing that some people would regard me as an accomplice of his simply for judging that he’s harmless. He’s an eccentric, which everyone ought to have a right to be as long as they aren’t breaking any credible laws. Sharpe is the sort of man who doesn’t have a clue about how anything will play in Peoria, which is to say, when he says what he’s thinking, he engages in virtually no public relations. Since my view is that public relations is the original sin, that may be the source of some of
I have some idea of what Sharpe’s general desires are about, although I have no knowledge of his practices other than that he hasn’t, in the course of a long life, been charged with any offences against actual children, and in fact, still must be presumed innocent of the child pornography charges he’s facing. But when he talks about kids, in his wonky, eccentric way, I almost understand what he’s saying: He’s trying to expose the hypocrisy of how children are treated by the
commercial system, by the education system, by the parenting system. He may be wrong about a lot of it, but he ought to have the right to say what he thinks. His freedom of speech is both more valuable and less dangerous than is generally understood. And of course, finally, he’s a writer. Some of what he’s written
is art, even by the definition of the courts. In a sane world, none of his writing should be prohibited.
5. I’d like these numbered provisional propositions to go on indefinitely and infinitely until I got to the absolute bottom of the abyss they point to, but my energies are finite. I’m tired. It’s the middle of the night. At least, for a moment, I’m
not an image of myself on a TV. I’m a person.
6. Tomorrow, it’s likely I’ll be a nice, polite, reasonable citizen and public intellectual again. At least for part of the time.
7. It’s my considered opinion that the Supreme Court of Canada decision on child pornography isn’t good enough. It prevents citizens from exercising free speech notwithstanding its claims that the law has been framed with the best of intentions. Free speech may not be, as its backers suggest, the most important
thing in the world. But without free speech, there’s no democracy.
January 28, 2001 3485 w.