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The laws governing obscenity and child pornography has been viewed as oppositional to the freedom of expression guaranteed as written in the Charter of Rights and Freedoms. This essay will seek to assess the impact that the three defences of “public good”, “education, scientific, or medical purposes”, and “artistic merit” had upon balancing society’s desire to restrict access and people’s freedom of expression by exploring the evolution of obscenity and child pornography laws.
First, it is important to frame the terms “obscenity” and “child porn” in a criminological context.
While pornography is consumed by millions of people on a daily basis, what constitutes as pornography varies from individual to individual.
With the exception of the 1993 amendment regarding child pornography, The Criminal Code of Canada chooses to use the word “obscenity” in lieu of “pornography” (Casavant, 2007). With regards to sex, obscenity is defined in the Criminal Code as material where the primary characteristic is the “exploitation of sex”, or the combination of sex and at least one of crime, horror, cruelty, or violence (Summer, 2004).
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“ She followed all my directions. It was really easy to contact her and respond very fast as well. ”
This broad description of obscenity has received a broad interpretation in the courts, as reflected, for example, by a decision stating that the display of sex objects in plain view within a store amounts to publication of undue exploitation of sex (Summer, 2004). Due to the rise in the popularity of the internet over the last decade, pornographic material has become even more accessible than in the past. It has created a borderless platform that allows for limitless and often private opportunities for downloading, exchanging, and distributing material.
For this reason, the internet presents a unique challenge for both law enforcement and legislators (Casavant, 2007). With regards to obscenity, people do not seem to have an issue with the content of consensual sexual activity itself, but rather, material where one or more participants are demeaned, degraded, or abused.
While consensual adult pornographic material is legal and can easily be consumed via the internet, books, and magazines, the same cannot currently be said of child pornography, as its status is much more taboo in modern day society. To the average person, child porn is nearly undetectable because like other illegal trades in Canada, its ability to thrive depends on how well it flies under the radar. Child pornography is defined as the visual representation of a sexual nature of persons under the age of 18 (Casavant, 2007). It is also defined as any written material or visual depictions that advocate or counsels illegal sexual activity involving persons under the age of 18. Where child porn differs from adult porn is that it is recognized to bring about issues that are of no concern when dealing with porn exclusively for and of adults - the role of children in production of material and their exposure to it. Research has shown children who participate in the production of child pornography are more often than not, sexually abused or hurt during the process (Nair, 2010). It is assumed in society that adults choose to be involved in or view porn productions, whereas children are deemed incapable of giving the informed consent necessary to participate. As a result, people argue that the use of children in porn should be outlawed and that any sexually explicit display involving children should be deemed obscene (Casavant, 2007).
With regards to sex, obscenity is said to have a harmful effect on society for two specific reasons. First, researchers have asserted that there is a direct causal link between consuming violent porn and being violent towards women. Therefore, watching the material can trigger an increased aggression towards women (Casavant, 2007). And second, people tend to think that porn contributes to myths about sexuality and women in a way that makes violence and degradation more acceptable to society (Casavant, 2007). However, it has been difficult finding objective proof of the harmful effects of porn based on statistical evidence and experimental evidence. Researchers who conducted experimental studies claim that there is a proven link between violence and porn (Nair, 2010). And while a couple of experimental studies completed on this topic have all come to the same conclusion, researchers themselves have admitted in their findings that their results are not readily transferable from the lab to the real world (Nair, 2010). This is primarily because of the fact that experiments take place in extremely artificial settings. Therefore, no conclusive evidence is available that points to any serious harm caused by pornography (Nair, 2010). And as such, we currently cannot gage the effects of consensual adult porn as the mere possibility or perception of harm itself does not mean that there is any clear and present harm or danger. Conversely, research indicates that the production of child porn almost always involves the sexual abuse of the children used; and with the rise of new communications technology, the market for child pornography may hold the potential for greater production in the future (Nair, 2010).
What actions are appropriate then, in order to regulate obscenity and child pornography? Some people argue that despite there being no conclusive scientific proof of a direct causal link between porn and violence, it should not deter the public from being proactive in suppressing the material. The nature of the beast innately makes it difficult to regulate and thus, proof of wrongdoing is very difficult to obtain (Casavant, 2007). On the other hand, some people argue that the government should only be able to impose limitations on the rights and freedoms of the people if there is definitive proof of wrongdoing leading to actual harm. They also note that legal sanctions in itself will be largely symbolic rather than material; and therefore will not be enough to effectively deal with the problem (Casavant, 2007). Laws regarding obscenity, while broad, are generally accepted in Canada while laws regarding child porn have proven to be rather contentious since its introduction in 1993. While both topics will be explored at a greater depth throughout this essay, the child pornography laws will be discussed in even greater detail.
The first controversial obscenity case arose in Winnipeg when Donald Butler, who sold pornographic videos, magazines, and sexual objects in his store, was charged with possession and distribution of obscenity, crimes under section 163 (then section 159) of the Criminal Code of Canada. He was charged with selling obscene material, possessing obscene material for the purpose of distribution, and one count of possessing obscene material for the purpose of sale. The court unanimously decided that the obscenity law was constitutional, and that although the ban against porn violated the freedom of expression provision in the Charter of Rights, it could be justified under section 1 of the Charter where asserts itself as a reasonable limit prescribed by the law (R. v. Butler, 1992). Justice Sopinka wrote that the main purpose of the law is not moral condemnation, but in order to prevent and minimize harm done to society. Essentially, the court had decided that moral standards was not an objectively important enough reason to justify overriding the essential rights that the Charter grants the people (Ryder, 2003). This is a prominent statement as this sentiment has been carried to modern day society and is seen in modern day landmark Charter rulings. In order to judge whether the representation of sex was obscene, the Supreme Court of Canada performed a community standard test to see what the people would be willing to tolerate from others (Sharpe, 2013). Then, Justice Sopinka differentiated porn into three different categories based on the content and type of harm inflicted upon society: explicit sex with violence, explicit sex without violence but is degrading or dehumanizing, and explicit sex without violence that is neither degrading nor dehumanizing (Sharpe, 2013). He noted that while he believed the first two categories would lead to exploitation of sex, the third category would generally be tolerated in society. This is notable because this was the first of many attempts in court to try and narrow down the definition of pornography. As will be discussed later, judicial rulings would prove to have an enormous impact on the discourse of obscenity and child porn laws. Although the Supreme Court helped to clarify the Criminal Code provisions, there was still confusion over what would qualify as obscenity.
The first controversial child pornography case arose in 1993 when Eli Langer - a Toronto artist, displayed his work - depicting children performing various sexual acts, at the local art gallery (Casavant, 2007). This case was significant because it raised questions of whether or not there should be an exemption for works of artistic merit. Advocates of tough-on-child porn measures expressed a deep concern about the definition of “art” and the ambiguity of the term “artistic defence”, as well as the possibility that it could be used to justify child pornography (Casavant, 2007). At the same time, art groups expressed concerns that it would discourage artistic endeavors because of the potential loss of time and money in litigation, as well as the notoriety and the stigma that follows violating laws. In 1995, Justice David McCombs came to the decision that Langer’s art, while “shocking” and “disturbing”, were not illegal because they had artistic merit and was doubtful as to whether or not it posed a realistic harm to children (Casavant, 2007). Similar to the Justice Sopinka’s verdict in 1992 regarding the Butler case, Justice McCombs also rejected the constitutional challenge by the art interest groups, stating that child pornography was a reasonable limitation on the artist’s freedom of expression (Casavant, 2007).
Four years later, a Vancouver man – Sharpe, was charged with possession of child pornography. He possessed pictures of boys as young as seven, engaged in sex as well as a collection of his own writings titled “Kiddie Kink Classics” (Summer, 2004). In the 1999 case of R. v. Sharpe, the contention around child pornography hinged on the need to balance the protection of children from sexual exploitation with the need for freedom of thought, belief, and expression. The Supreme Court of BC ruled that the law limiting the possession of child pornography was unconstitutional and the case was eventually taken to the Supreme Court of Canada – where they decided the law on child pornography presented a constitutional balance between freedom of expression and the prevention of harm to children (MacAlister, 2014). Upon deliberating, Justice Shaw noted that under Section 163.1(6) of the Criminal Code, representations of child pornography can be defended if it has “artistic merit.” The Supreme Court found that the definition of the term “artistic merit” must be determined by the trial judge each time a new case appears (R. v. Sharpe, 2001). This determination would be made on a basis of a variety of factors, such as the intention of the creator, the content and style, and even expert opinion. Other than artistic merit, the defences of medical, education, and scientific purpose should also be considered when addressing what is regarded as child pornography. In this particular case, the Supreme Court defined artistic merit as “possessing the quality of art, or having artistic character.” When analyzing his work, two of the three English experts recognized that Sharpe’s portrayal of people, events, and scenes were reasonably well written, included literary devices such as parody and allegory, contained imagination and characterization, as well as reasonably complex plots. Upon deliberation, the justices acknowledged that the law, as currently interpreted, was dangerously close to criminalizing “objectionable thoughts” (R. v. Sharpe, 2001). And as such, the Supreme Court read into the law two exceptions relating to the possession of such materials. Firstly, the justices noted that any written material or visual representation created by the accused alone for his or her own personal use presented no reasonable risk of harm to children, and was therefore exempt (MacAlister, 2014). Secondly, private recordings of lawful sexual activity taken exclusively for private use also presented no reasonable risk of harm to children either, which also meant it was exempt (MacAlister, 2014). Additionally, they ruled on the wording of Section 163.1(1) (b) – which prohibited any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18 years. In order to meet the standard of “advocates” or “counsels”, the Justices decided that the material must be viewed objectively and seen as “actively inducing” or “encouraging” the described offences with children (MacAlister, 2014). Therefore, the mere description of the act was no longer enough to infringe upon the law.
To put the level of outrage that resulted from this verdict into perspective, concerns over the implications of striking down part of the prohibition against child porn possession resulted in the House of Commons holding a vote on whether or not to invoke the notwithstanding clause to ensure that the law remains in force (Casavant, 2007). The initiative was eventually defeated, but the acquittal on the grounds of artistic merit still provoked a tremendous political uproar, which eventually led to the introduction of Bill C-2 in 2005. This bill prohibits the production, distribution, sale, and most significantly, possession of child porn. A conviction carries with it a maximum of ten years in prison for production and distribution, and five years for simple possession. As a result of Bill C-2, the definition of child porn is now expanded to include audio formats as well as written material whose “dominant characteristic” is the description of sexual activity involving a person under 18 (Summer, 2004). One of the more important changes includes the addition of prohibition of advertising child porn and the introduction of a one year mandatory minimum sentence for all child pornography charges. It is interesting to note that if the Sharpe case were decided today, Sharpe would likely have been found guilty of possessing child pornography with the intent of distribution. While the trial judge at that time found that the writings did not advocate or counsel sex with children, it would no longer be necessary as he would be found guilty under section 163.1(1) of inducing and encouraging the offences with children. In order to address the broad interpretation of the term “artistic merit” defence in R v. Sharpe, Bill C-2 changed the defences of “public good,” “artistic merit,” and “education, scientific or medical purpose” and instead replaced it with an objective, two step harm based test. First the accused must have a legitimate purpose related to the administration of justice or to science, medicine, education, or art (Casavant, 2007). And second, the accused’s materials must not pose an undue risk of harm to people under the age of 18 (Casavant, 2007). There have been many concerns that Bill C-2 may interfere with individual charter rights, particularly freedom of expression. It remains to be seen whether the amended criminal code will be upheld by the Courts today.
With regards to current obscenity laws, section 163(8) stipulates that any materials where the main purpose is perceived to be the “undue exploitation of sex” is obscene. However, it should be noted that “undue exploitation” can mean quite a number of things and will most likely be determined by reference to local norms that dictate acceptable conduct. For example, would the community tolerate the publication of the information presented? If not, then the material would likely be deemed obscene. Often, the community standard is not simply based on what people don’t want themselves to be exposed to, but what they believe other Canadians ought not be exposed to as well. This standard is a social construct and will flex and shift depending on the profile of Canadians at that time. Variables such as ethnicity, gender, political views, social class, and age will inevitably come into play.
The current child pornography law has referred to as a jumble of forward thinking and regressive developments (Ryder, 2003). On one hand, the law contributes positively to the prevention of child sexual abuse by targeting the entire supply and demand chain. On the other hand, the law causes harm to society by suppressing expression of art and thoughts and criminalizes a large variety of creative expression even in areas where there is no persuasive evidence of a risk of harm.
ADEQUACY OF THE “PUBLIC GOOD”, “EDUCATIONAL, SCIENTIFIC OR MEDICAL PURPOSE”, AND “ARTISTIC MERIT” DEFENCE IN BALANCING FREEDOM OF EXPRESSION AND SOCIETAL REGULATION
To a moderate extent, the defences of “artistic merit”, “education, scientific, or medical purpose” and “public good” helped balance society’s desire to restrict access to obscene materials while looking after the people’s right to freedom of expression. The defences in itself are worded in a fairly vague manner and therefore, needs to be defined more succinctly. However, the general premise has value in that it takes artistic freedom into consideration in the context of a court of law, whose purpose, according to Justice Sopinka, is to prevent and minimize harm done to society (R. v. Butler, 1992). This strikes me as a fairly balanced, albeit loosely worded part of the law. Although, as Justice Sopinka noted during his deliberation, it is perhaps intentionally left that way so trial judges can use their own discretion when defining terms. In R. v. Sharpe, the Supreme Court of Canada said in the deliberation that the intention of the creator, the form and content of the work, its connections with artistic conventions, traditions or style may all be be relevant in judging whether work qualifies under the “artistic merit” defence (R. v. Sharpe, 2001). While those traits are all somewhat arbitrary and relative, Justice Shaw went on to say that other factors, like the way it was produced, displayed, and consumed by the public would help the courts figure out whether the depiction of writing possesses artistic value (R. v. Sharpe, 2001). Those comments suggest that rather than replacing the three defences with the harm based test, it may have been possible to implement three limitations in order to regulate what is defined by “artistic merit”. For example, is the way that the artwork is displayed shown to children for the purposes of sexual gratification or abuse? Or is it displayed in an enclosed part of the art gallery to which attendees are told ahead of the time the content they are viewing?
When comparing the three defences to the harm based test, it becomes evident that the courts have shifted the argument away from whether or not the artwork has good intentions and shows a reasonable caliber of creativity and artistry, to whether or not the material presented is a form of art at all. Proponents of preserving the artist’s freedom of expression have argued that the statute is overly broad for a number of reasons. First, the prohibition against child pornography is not simply restricted to representations of actual children, but now includes representations of people who are not children, but are merely depictions (Ryder, 2003). As noted earlier, one of the reasons why child pornography is so highly frowned upon is because children are often abused and hurt during the production. However, if no children were actually involved in the production process, then where is the harm from which the law is protecting the people from? When a particular form of expression cannot be shown to cause harm, then there is no basis for its suppression. With that being said, where harm can be demonstrated, then it must be balanced against the harm that would be done by suppression. Therefore, it is very logical to repeal the defence of artistic merit if the material produced involved harming children. However, it would not make sense to repeal the defence of artistic merit when simply considering imaginary representation of children, as there is no harm in its production. Secondly, possessing a legitimate purpose is not an appropriate criterion for art. It is undemocratic of a government to require that artwork be legitimized by reference of an external standard of value, or else face governmental suppression.
The strength of our commitment to the freedom of expression, or in some scenarios - the lack thereof, has been put to the test throughout the last two decades and has had an enormous impact on the public discourse. The slow progression towards balancing freedom of expression and community expectations has been halted by the recent regressive policy changes that minimizes the artist’s voice in a court of law. The three defences of “public good”, “education, scientific, or medical purposes”, and “artistic merit”, while not perfect, was moderately successful in balancing society’s desire to restrict access and people’s freedom of expression by exploring the evolution of obscenity and child pornography laws. If the courts were to attempt narrowing down the definition of such terms, I believe it would become even more successful.
The Infringement of Personal Freedom Through Children Pornography Laws. (2024, Feb 25). Retrieved from https://studymoose.com/the-infringement-of-personal-freedom-through-children-pornography-laws-essay
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