APPROACHES TO PORNOGRAPHY: A CONSIDERATION OF HARM BEYOND THE

MORALIST/CIVIL LIBERTARIAN DICHOTOMY

Mary Jane Henry
B.A. (Honours), York University, ~ownsview, Ontario 1984
THESIS SUBMITTED IN PARTIAL FULFILLMENT OF
THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF ARTS (CRIMINOLOGY)
in the Department
of
School of Criminology
a Mary Jane Henry i 9 8 7
SIMON FRASER UNIVERSITY
1987
All rights reserved. This work may not be
reproduced in whole or in part, by photocopy
or other means, without permission of the author.
APPROVAL
Name: Mary Jane Henry
Degree: Master of Arts (Criminology)
Title of thesis: Approaches to Pornography: A Consideration of
Harm Beyond the ~oralist/Civil Libertarian
Dichotomy
Examining Committee:
Chairman: Robert J. Menzies
I
Neil T. Boyd
Senior Supervisor
Associate Professor
Mary-Lou McCausland
External Examiner
i
Director
Film Classification Branch
"
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Approaches to Pornography: A consideration of
Harm Beyond the ~oralist/Civil Libertarian ~ichotomy
Aut hor :
,--
( s i gnat ur e)
Mary-Jane Henry
(name 1
-
.
.. i o* .',
, '\- 4 - .. .- 1 . b
( dat e)
ABSTRACT
The "problem" of pornograph1 is analyzed here through an
examination of published literature and Canadian case law and
legislation. Feminist analyses of the harms associated with
pornography and corresponding feminist remedies are presented as
attractive alternatives to traditional moralist and civil
libertarian approaches.
The history of obscenity legislation is traced from its
earliest focus on heresy and sedition to the law's contemporary
consideration of sexual materials. The relationships between
federal obscenity restrictions and provincial and municipal
Pornography controls are outlined. The "community standards"
concept is discussed in terms of its central role in the
circumscription of pornography in Canada. The controversy
Surrounding its ambiguous nature and arbitrary application is
profiled. The validity of the standard of intolerance as a basis
for criminal law is questioned.
Feminist analyses of the existence and function of
Pornography address the unequal power relationships within a
patriarchal society. Anti-pornography and anti-censorship views
"re contrasted to illustrate the diversity of approaches which
coexist within the feminist camp. The incoherent state of the
"pornography effects" literature militates against the
possibility of an empirical answer to the harm question.
i i i
The moralist, civil libertarian and feminist strategies for
the legal control of pornography are reviewed, and are evaluated
on their respective strengths and weaknesses, given Canada's
constitutional framework. A focus on the problem of harm,
freedom of speech and equality rights demonstrates an
incompatibility between civil libertarian thought and some
branches of feminist theory.
The Badgley Report, the Fraser Report and ill C-54 are
discussed as examples of potential draft legislation. various
anti-censorship measures are considered as adjunct rather than
alternative solutions to the question of pornography's legal
control.
I t is concluded that educational, social and legislative
reforms are necessary, and that pornography be considered hate
literature under s. 281. 2 of the Criminal Code. The enactment of
provincial civil rights legislation is proposed to complement
the Suggested federal provisions.
DEDICATION
f o r my f a t h e r ,
William Joseph Henry
I t i s n o t q u i t e t r u e t h a t y o u c a n ' 1 g o home a g a i n . T h e
d e e p e r t r u t h i s t ha1 y ou n e v e r 1 e a v e t h e p a r t o f home
1 har b e c o me s r he mo v a b l e f e a s t o f y o u r i ma g i nar i o n .
Aut h o r Un k n o wn
ACKNOWLEDGMENTS
The author would like to acknowledge the guidance and direction
provided by her Senior Supervisor, Neil Boyd.
TABLE OF CONTENTS
. .
Approval .................................................... 1 1
Dedication ................................................... v
Acknowledgments ............................................. vi
.................... I . Pornography: Definitions and Devices 1
............................................ Introduction 1
The Federal Approach: From Heresy and Sedition to
.................................... Sexual Obscenity 10
Provincial Censorship as Prior Restraint: Regional
Differences ......................................... 30
......................
Municipal ~egulation: See No Evil 41
......................... 11 . The Community Standards Debate 46
Tapping the Pornographic Pulse: Public Opinion Surveys
................................. and Expert Evidence 55
In Quest of Consensus: Researching Community Standards . 70
...............
Dissent from Within: Judicial Discontent 7 7
Inherent ~imitations: Challenging the Community
...................................
Standards Concept 80
.......
.
111 Feminist Analyses and the Effects of Pornography 89
Images of Women in Pornography: Objects. Animals and
Masochists ........................................ 92
The Function of Pornography: Oppression as Sexual
Liberation .......................................... 94
Effects of Pornography: The Good. the Bad and the ugly 107
................ Participants in Pornography production 108
...................................... The Elusive Link T I 0
................................. International Concern 112
Positive Effects of 'Erotica' ......................... 117
Harmful Effects of Pornography ........................ 119
............................ Problems with the Research 123
~efinitions ........................................ 124
~deological Positions .............................. 125
............................ ~ethodological Problems 129
New Areas of Research .............................. 136
Is Research Necessary? ................................ 137
The New Wave: Feminism I1 ............................. 139
IV . . Legal strategies in Competition ....................... 149
....... Moralism and Pornography: Blanket Condemnations 153
........ Liberalism and Regulation: A Focus on Freedoms 155
Zoning Ordinances .................................. 157
.............................. Licensing ~egulations 162
.................................. Nuisance Statutes 165
Civil ~djudication ................................. 169
The Problems of Harm. Freedom of Speech and Equality
Rights ............................................. 171
Freedom of Speech .................................. 172
................. Feminist Theses: Perspectives on Harm 180
.................... Tne worki in-Mac~innon Ordinance 181
............................. Civil Causes of Action 192
....
Common Law Civil ~ction for Violent Pornography 194
Taxation and Corrective Funds ...................... 198
Human Rights Commissions ........................... 201
.................................... \--.Hate Literature 209
Prior Restraint and ~urisdictional Considerations .. 221
................ Community Standards and Direct Harm 228
.....
Legal Control: Balancing Incompatible ~ssumptions 234
V . Legislative Reform: Choosing Allies and Taking Sides .. 242
................ The Badgley Report: Parental Overtones 244
.-
............... The Fraser Report: Progressive Insights 251
Children And Pornography ........................... 251
Adults And Pornography ............................. 254
........................ Bill C-114: orali ism Revisited 266
........................ Anti-censorship: Common Ground 278
...................... Adjunct vs ~lternative Solutions 292
Conclusions and Prescriptions ......................... 294
vI . Bibliography .......................................... 306
References Cited ...................................... 306
.................................. Cases and Acts Cited 324
CHAPTER I
PORNOGRAPHY: DEFINITIONS AND DEVICES
Introduction
The pornography problematic has engendered considerable
discord among various factions of the Canadian community in
recent years. In Canada no laws exist for the specific
prohibition of pornography, yet legal controls on pornographic
materials are effected at all three levels of government. The
municipal strategy is basically one of regulation, while
provincial measures entail the practice of prior restraint.
Federally, a variety of legal alternatives are available,
although the longstanding Criminal Code obscenity provisions are
by far the most commonly employed.
The single most important variable in judicial
interpretation of the present legislation is the community
Standards test. pornography is deemed obscene when the material
is considered to exceed the national community standard of
tolerance. The standard has been severely criticized on legal,
p~litical, practical and social grounds. A fairly unanimous
voice denounces the legitimacy and utility of the concept as a
legislative device, although ideological and philosophical
Positions determine the nature of proposed solutions.
Constraints imposed by the ~anadian Charter of Rights and
-
Freedoms and the existing constituticnal paradigm gauge the
respective efficacies of various propositions. isc cuss ion
concerning the most appropriate approach to pornography has
developed into a heated debate.
The examination of a controversial issue often commences
with a definition of the subject matter. A consideration of
pornography is atypical in that regard. The term is afforded no
one definition. ~doption of a specific interpretation of
'pornography' would ultimately cause one to disregard a large
range of material, and narrow an analysis considerably.
Even within one understanding of the concept, various types
of pornography can be addressed. Researchers have identified
homosexual, lesbian, transsexual and child pornography.
Pornographic expression may contain racist elements or political
and religious criticisms. It can cater to a diversity of
interests through many media, reflecting common fantasies or
unusual fetishes. Perhaps most commonly, it is designed for a
heterosexual audience. Therefore, the discussion of pornography
will be restricted to a consideration of heterosexual material.
One interesting manner in which to structure the pornography
argument is in terms of t.he harms that are associated with it.
-.
Individuals from different political and philosophical platforms
tend to identify and focus on different types of harm in
Pornographic material. The brand of harm perceived determines
the conditions for control.
The traditional opponents of pornography, sometimes called
'moralists', object to the continuing existence of
pornography.
As the name implies, these individuals believe that pornography
both encourages and promotes moral decay (~urcher, Kirkpatrick,
Cushing & Bowman: 1973: 80). Their opposition to pornography
stems from the belief that any public exposure of the human body
is immoral in itself. This relates back to the conservative
Judeo-Christian notion that sex should be confined to the
purpose of procreation (~acobs 1984: 23). Moralists contend that
the government should prohibit pornography and that such
proscription is rightfully determined by majoritarian
intolerance.
At the other end of the continuum, the civil libertarian
group can be identified. This group determinedly pits itself
against censorship and is dedicated to the preservation of
freedom of expression and free choice. The civil libertarian
perspective is often not concerned with a discussion of harm or
the content of the material (Jacobs 1984: 24). This stance in no
way condones unlawful coercion, or the use of children in the
Production of pornography, however (B.C.C.L.A. 1984: 31). The
views espoused by the civil libertarian group are heavily
reliant on John Stuart Mill's analysis. Mill felt that truth is
best sought in the open exchange of ideas and that a censorship
of those ideas could distort the truth (~acobs 1984: 24). The
restriction of pornography undermines the condition of
unfettered expression, which is viewed as necessary to the
preservation of a free and democratic society. Mill believed
that the only justification for preventing a person from
exercising his or her right of freedom of expression was if the
action posed some demonstrable harm to others ( ~ o p p 1983: 2 8 ) .
Liberals acknowledge that the criminal law should address
culpable conduct that causes or threatens serious danger to
individuals, yet they do not recognize evidence indicating that
the effects of pornography are hazardous. Regardless, many
concede that some regulation is reasonable. Civil iibertarians
suggest that the prohibition of pornography is unnecessary and
concentrate on restricting its circumstances of exposure
according to the offence principle.
Definitions of 'pornography' are presently the subject of
social negotiation (Palys et al. 1984: 1 1. The definition of //
Pornography now assumes a radically different meaning from what
it once did. This is due largely to the efforts of the feminist
movement. ~lthough feminism is a political movement, all
feminist groups do not share the same conception of pornography.
1" fact, feminist thought on pornography has become so
diversified that it has been described as tending towards a
Continuing state of dynamic instability (~ahey 1985: 6 4 9 ) .
' \----__ However, the various feminist definitions do overlap to a ,
considerable estent. These definitions do not recognize the)
moralist/civil libertarian dichotomy, and define pornography in
terms of social and physical harm to women (Jacobs 1984: 2 4 ) .
Social justice is granted precedence over individual rights
Susan Brownmiller helped to promote discussion between
liberals and feminists of the nature of pornography. She felt
that pornography "like rape, is a male invention, designed to
dehumanize women, to reduce the female to an object of sexual
access, not to free sensuality from moralistic or parental
inhibition" (Brownmiller 1975: 394). Brownmiller further
describes pornography as "the undiluted essence of anti-female
propaganda" (1975: 394). Longino shares a similar definition of
pornography, stating that pornographic material is that material
which "explicitly represents or describes degrading abusive
sexual behaviour so as to endorse and/or recommend the behaviour
as described" (~ongino 1980: 44). She carefully distinguishes
between the feminist and traditional moralist opposition to
Pornography in the statement "What is wrong with pornography,
then, is its degrading and dehumanizing portrayal of women (and
not its sexual content)" (Longino 1980: 45). The feminist
definitions indicate a political phenomenon, not a moral one
(Hughes 1985: 101).
Andrea Dworkin defines pornography in terms of harm to
women :
It is physical injury and physical humilistion and
physical pain: to the women against whom it is used
after it is made; to the women used to make it.
As words alone, or words in pictures, moving or
still, it creates systematic harm to women in the form
of discrimination and physical hurt. It creates harm
inevitably by its nature because of what it is and what
it does. The harm will occur as long as it is made and
used yy work in 1985: 1 1 ) .
She feels that the oppression of women occurs through sexual
subordination, stating:
I t is the use of sex as the medium of oppression that
makes the subordination of women so distinct from racism
or prejudice against a group based on religion or
national origin (Dworkin 1985: 15).
Subordination, in Dworkin's terms, involves objectification,
submission and violence.
The feminist movement was successful in identifying violent,
coercive and degrading sexual activity as pornographic. It
identified the power imbalance that exists within pornography as
well as the controversial separation between erotica and
Pornography (~alys et al. 1S84: 5).
Gloria Steinem distinguishes between pornography and
erotica, ~lthough all feminists do not view the two concepts as
mutually exclusive, the distinction has been well received.
Steinem sees some similarities between pornography and erotica,
in that they both identify the possibility of sexuality being
Separated from conception. Her definition of the erotic
emphasizes that the individuals involved are powerful enough to
be there by their own accord and demonstrate a mutually
pleasurable sexual expression. A pornographic work's message
however, is "violence, and conquest. It is sex being used to
reinforce some inequality, or to create one, or to tell us that
pain and humiliation... are really the same as pleasure"
(Steinem 1980: 37). Steinem clearly states that "erotica is
about sexuality, but pornography is about power and
sex-as-weapon" (1980: 38). Faust expands upon this distinction,
stating that pornography records the acts rather than presenting
an attempt to understand or interpret them. Erotica, she
suggests, "presents sexuality according to either the current
artistic taste or current values, or the artist's personal
vision" (Faust 1980: 19).
Other feminists see the difference as rather arbitrary, and
unimportant to the pornography debate. The distinction may serve
no practical purpose. Kostash (1985: 33) suggests erotica may
not even presently exist, unable to flourish in a patriarchal,
capitalist culture. It can be argued that erotica is merely well
Produced, artistic pornography, and the distinction becomes one
between 'good1 erotica and 'bad' pornography. It reduces the
distinction to "What turns me on is erotic; what turns you on is
Pornographicw illis is 1981: 223). In any event, few feminists
contend that pornography is only concerned with violence and
aggression, with no resemblance to erotica (~iamond 1980b: 144).
Feminists view pornography as causing harm to women, but the
I
effects of pornography are not the sole concern. Many feminists
regard pornography as a symptom of a misogynist society.
Pornography A as been defined as the sexually explicit depiction
of the subordination of women (Arbour 1985: 5). It is considered
to be an expression and reflection of our society and the
position women hold within it (Check & Malamuth 1982: 7 ) . Today
a growing number of feminists feel that pornography is not the
proper focus of attack. This is due to the fact that many of the
images feminists object to which are common to pornography are
found in many other aspects of our daily lives (coward 1982:
19). There is growing concern that new laws to curb pornography
will be used in the moralist tradition to suppress alternate
views of sexuality and feminist concerns. Feminists have no
assurance that legislative reform will be interpreted or
enforced in the manner in which it was intended ( ~ i n g 1985: 90).
This faction of the community argues that the specific
feminist approach to pornography is a political one, rather than
a morai or social one. Moral interpretations concentrate on the
degradation of women, while social understandings isolate
pornography as a causal factor in rape. The feminist analysis
examines the impact of pornography on the feminist movement,
conceptualizing pornography as part of a greater symbolic system
which devalues women (McCormack 1985b: 282).
k few common threads can be identified in the feminist
perspective, despite its mosaic nature. The harms feminists
identify can be reduced to physical and psychological harm to
individual women, as well as a more general social harm.
Feminist theories for the control of pornography can be
translated into two main principles, known as the provocation
principle and the direct harm thesis. The provocation principle
States that woman suffer discrimination and abuse as a
consequence of male pornography consumption. The second thesis
involves direct harm, whereby women themselves suffer
psychological harm as a result of the existence of pornography.
Both principles recognize pornography's damage to women's
equality rights.
The framework which can be assembled around the notion of
harm lends coherence to the sometimes confusing pornography
debate. It clarifies the positions of the various social groups,
and directs an understanding of their respective approaches. As
a consequence of the groups' interpretations of the relationship
between law and morality, different legal strategies are
\
available to them. Moralists promoye statjinterventio to curb
T -. 2
expressions of sexuality. The conservatives are not threatened
by the present situation where criminal sanctions are predicated
upon a nation's intolerance. In practice, they may advocate any
approach which will function to further their aims. Liberal
notions are consistent with regulation based upon the offence
principle. Therefore, at least on a theoretical level, liberals
concur with municipal proposals such as licensing by-laws and
zoning ordinances. The nuisance and civil adjudication
strategies share a regulatory purpose, explaining their similar
acceptance. When any approach functions to prohibit expression
it is incompatible with civil libertarian doctrines, however.
Feminists have suggested a wide variety of approaches.
Different branches of the perspective have considered taxation,
civil rights proposals, human rights strategies, civil remedies,
changes to the hate literature provisions, emphasis of the
provincial role and reinterpretation of the existing obscenity
legislation. Anti-censorship strategies have included many forms
of conduct which do not necessitate state restrictions, such as
alternative imagery, affirmative action programmes and
educational measures.
All of the approaches have their respective strengths and
limitations. Given widespread dissatisfaction with the community \
standards approach, legislative change is imperative. ~heref ore-
approaches which reflect contemporary concerns must be analyzed
to determine their feasibilities within the Canadian dynamic.
Devices for pornography control can be seen within the
parameters of the federal, provincial and municipal roles. I t is
necessary to trace the history of these controls and the nature
of their proscriptions. The most powerful strategy is
illustrated in the current Criminal Code obscenity legislation.
It is a curious fact that pornography has come to be
circumscribed by obscenity legislation. A consideration of the
relevant terminology, history and case-law is a prerequisite for
the comprehension of the present obscenity approach.
The Federal Approach: From Heresy and Sedition to Sexual
- - -
Obscenity
The distinction between obscenity and pornography is not a
clear-cut one. In many cases the two terms have been used
interchangeably, yet they are not synonymous. The criminal
concept of 'obscenity' can be conceptualized as both over and
underinclusive of 'pornography' (~ahey 1985: 665). As a result
of the distinction which has developed between the two terms the
word pornography can no longer be substituted for 'obscenity'.
The two ideas approach a certain class of materials from
different directions and, therefore, mandate discrepant demands
on social policies and state intervention (Arbour 1985: 3). Much
of the controversy over obscenity and pornography finds its
roots in definitional difficulties.
The origin of the word 'obscenity' is debatable. The Latin
word for obscenity translates as 'ill-omened' or 'inaus~icious',
and originally the English term shared this definition. During
the Shakespearian Era it meant 'offensive to the senses, filthy,
foul, disgusting'. Only a supplementary meaning identified
obscenity as offensive to modesty or taste art et al. 1975:
8 ) . An alternative explanation is that 'obscene' was derived
from 'ob' and 'scaena'. 'Ob' means 'in the way of', and 'scaena'
refers to a stage, supposedly used for religious rites enyo yon
1975: 2 2 7 ) . Still others feel that our word obscenity was
derived from the Latin word 'caenum'. This word appears to have
a variety of meanings which range from 'dirty' to 'genitalia',
and in the plural form can refer to buttocks (~ullough and
Bullough 1977: 1 5 9 ) .
Our expression 'pornography' is derived from Greek and
translates as writing of or about prostitutes and their patrons
(Wilson 1973: 8) . Although it was derived from the Greek words
meaning 'harlot' and 'writing', the word 'pornography'
apparently was not in use until the 1800's. The meaning of the
word evolved to refer to literature about "unchaste or obscene
subject matter" (Hart et al. 1975: 8 ) .
Censorship in Western civilization has only fairly recently
become directed at sexual depictions (~ilson 1973: 8 ) .
Censorship was common to early English law, but was connected
with heresy and sedition, rather than obscenity C~art et al.
1975: 8). Obscenity consisted of "primarily derogatory
statements about the established religious and political order"
(wilson 1973: 19). Occasionally it referred to literature
concerned with excrement or excretion. It was not until the
eighteenth century that obscenity was prosecuted, and even then
it was in the context of anti-religious works.
The first prosecutions, occuring in the early 1 7 0 0 ' ~ ~ were
the cases of R. 5 Read (1709) and - R. - v. Curl1 (1727) (~utes
1974: 30). During the eighteenth century in England more
attention became focussed on the issue of sexual obscenity. This
was due in part to the widely extended use of printing. Before
this time books were a luxury that many could not afford, and
few individuals could read (Bullough & Bullough 1977: 161). A
larger percentage of the population began developing literacy
skills (Wilson 1973: 9). This produced an uneasiness on the part
of the elite about the morals of those individuals. The
Qpper-class had previously wielded most of the iniluence in
England. Yet, the growing power of the middle-class, had an
effect on the attitudes towards obscenity (Bullough & Bullough
1977: 1 6 7 ) . The upper-class had been much more liberal than the
rising, work-oriented middle-class.
Combined with these factors are the many other social
changes of the period, inciuding the changing scientific
attitudes towards sex, the development of privacy and the
different attitude towards the notions of women and family which
were emerging (Bullough & Bullough 1977: 1 6 7 ) . It was within
this social context that common law, and sometime later
legislation, developed concerning obscenity.
The case of -- R. v. - Read ( 1 7 0 9 ) was the first case that
addressed the issue of cbscenity in English common law. James
Read was indicted after the publishing of a book called The
Fifteen Plagues - of - A aid en head. The ecclesiastical courts were
not effective in dealing with indecent literature at that time.
Mr. Justice Powell stated in 1708:
This is for printing bawdy stuff, that reflects on no
person or persons, or against the Government. I t is
stuff not fit to be menti~ned publicly. If there is no
remedy in the Spiritual court, it does not follow there
must be a remedy here. There is no law to punish it: I
wish there were: but we cannot make law ( ~ y d e 1964: 25).
It has been suggested that the sanctions the religious courts
had at their disposal, the most severe being excommunication,
were rapidly losing their deterrent effect. Hence the move to
try these types of cases in the secular court (~ullough &
Bullough 1977: 1 6 5 ) . At this date no criminal sanctions existed
for the control of literary obscenity (Hyde 1964: 25). An
obscene book could be published without the danger of
prosecution ( ~ y d e 1964: 2 6 ) .
In 1727 this changed with the case of -- R. v. Curll. The
judiciary created the law, while Parliament refused to pass
legislation curtailing the printing of obscene or salacious
literature (~ullough & Bullough 1977: 165) . Edmund curl1 was a
notorious printer and book-seller who was arrested for
publishing two books, entitled Venus -- in the Cloister or the Nun
-- -
in her Smock, and Curll's version of a translation of
- -
Meibomius's -- De usu Flaqnorum in re Medical et Venera by Dr.
-- -
George Sewille of Hampstead. During the course of the trial the
Lord Chief Justice of the King's Bench at Westminster Hall
stressed that a matter in writing could not be the concern of
the Spiritual Court. The Attorney-Generai emphasized that
corruption of the morals of the King's subjects was an offence
to common law. After a great deal of argument among the judges,
Curll was convicted and subsequently fined (Hyde 1964: 2 9 ) . The
case of --- R. v. Curl1 represented a turning point for English
common law concerning obscenity. It determined that the
publication of an obscene libel was a misdemeanor at common law
(Hyde 1964: 32).
Subsequent to Curll's conviction, pornographic works were
easily attainable in England and literary obscenity stood as a
member of the libel family (Hyde 1964: 33). During the 1700's
the use of the lax of obscenity was "generally in the role of a
hanger-on to its more substantial cousins, seditious and
blasphemous libel" (Hyde 1964: 3 4 ) . The law rarely was
successfully invoked unless it was directed at obscenity in
conjunction with religion or religious slurs and had political
overtones (Bullough & Bullough 1977: 165-166).
In the mid-nineteenth century the law of obscenity passed a
milestone in its development with the approval of the obscene
Publications - Act of 1857, commonly known as the Lord Campbell's
Act (Lutes 1974: 30). Previous to this there were a number of
-
less important acts such as Section 4 of the Vaqrancy Act of
-
1824, and an amending Act of 1838. The sale of obscene books was
attznded to in the Metropolitan Police Act of 1839 and the Town
-
Police Clauses - Act of 1847. It can be argued that until the Lord
Campbell's - Act obscenity law did not disturb 'serious
literature' or the reading material of the wealthy (Hyde 1964:
38).
During Queen victoria's reign the pornographic trade grew
considerably, perhaps as a reaction to the severe repression and
inhibition that were indicative of this period ( ~ y d e 1964: 40).
Kenyon recognizes this explanation, but suggests that the
increase in pornography could have been a result of a reaction
to the emerging female emancipation of the era enyo yon 1975:
226). Lord Campbell was the Lord Chief Justice of England at the
time. His introduction of this act changed the law of obscenity
because the law became directed at the literature, which was to
be liable to summary destruction by the magistrate, rather than
directed at the publisher. It was assured that this law would
only be used to suppress 'gross pornography' and not serious
works, yet this assurance was never substantiated. The Act
addressed only those materials "made to corrupt morals of youth
and calculated to shock the common feelings of decency in any
well-regulated mind" (Hyde 1964: 4 2 ) . The Lord Campbell's - Act
( 1 8 5 7 ) made the test of obscenity indictable under the present
laws of the time ( ~ y d e 1964: 4 2 ) .
It must be stressed that
This Act did not become the basis of law concerning
literary obscenity. It created no new offence, but was a
preventative measure which sought to forestall the sale
of obscene books by destroying them (Hyde 1964: 4 2 ) .
Lord Campbell himself emphasized that the act did not alter the
existing law. It did, however, provide for extremely effective
enforcement (Bullough & Bullough 1977: 1 7 0 ) .
In 1868 English common law witnessed the development of the .
first test of obscenity. The case concerned a man named Henry
Scott,jwho was accused of distributing a Protestant pamphlet
that was designed to discredit the Catholic Church. It was
entitled The Confessional Unmasked and basically 'exposed' the
depravity of the priests. Scott's copies of the pamphlet were
seized in accordance with the Lord Campbell's Act. enj jam in
-
Hicklin was a Wolverhampton magistrate who ordered that the
pamphlets be seized and destroyed (~ullough & ~ullough 1977:
1 7 0 ) . Scott appealed to the ~ecorder at the Quarter Session, who
quashed the order of the justices, subject to the opinion of the
Court of Queen's Bench. It was at the Queen's Bench where Lord
Chief Justice Cockburn reversed the decision and presented his
definition of obscenity. Chief Justice Cockburn wrote in & 5
Hicklin (1866) at page 371, that the test of obscenity was
"...whether the tendency of the matter charged as obscenity is
to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this
sort may fall." According to the Hicklin test, obscenity became
defined by focusing on the effect such material has on
individuals (Fox 1974: 224). This pronouncement was not binding
as law, however, because the issue of obscenity was not in
question at the appeal where Cockburn was presiding. The
Recorder had already found the pamphlet obscene, yet decided in
Scott's favour since his motive was to expose the Church of
Rome. Regardless of this fact, the definition was adopted and
accepted in future judgements of obscenity (Hyde 1964: 43).
The 1892 Criminal Code contained the first Canadian
statutory prohibition to control the publication of obscene
material. Section 179 "provided that the public sale, or
exposure for sale of any obscene book or printed matter would
constitute an indictable offence" (FOX 1974: 203). The Draft
Criminal Code of Indictable Offences was created ifi 1879 by an
English Royal Commission directed by Sir James Stephens.
Although rejected in England, the code was passed in 1891 in
Canada and became law a year later (~utes 1974: 31). The word
'obscenef was not defined on the grounds that "the commission
felt the word should be allowed to adopt the meaning that the
word itself conveys" (Lutes 1974: 31). The courts saw fit to
adopt the definition of obscenity as proposed by Chief Jus~ice
Cockburn in the case of -- R. v. Hicklin (1868) (FOX 1974: 203).
This definition of obscenity proved to be problematic for a
number of reasons. Perhaps the main concern was that the judge
would be forced to speculate on the possible effect of some
material on a group of unidentified persons. Since the ~icklin
decision, courts have based a number of decisions of obscenity
on the possibility that youths or emotionally unstable people
will obtain the material, making the standard of censorship
unreasonably restrictive. The vast majority of the population
should not be deprived of some material for the sole reason that
a small percentage of people could possibly be effected. Another
important concern regarding the Hicklin decision is that
isolated passages of the books in question are focused on, not
the work in context (Charles 1966: 245). Other criticisms
include the fact that the test concerns the effects of the
material on the audience, yet no evidence from experts showing
the impact of the material is allowed. The tendency of the
materiel to corrupt is decided by a consideration of the
publication itself (FOX 1974: 204).
There existed only five obscenity cases between the years
1900 and 1940, and all reinforeed what came to be known as the
'Hicklin Test'. They were The King - v. Mc~uliffe ( 1 9 0 4 ) ~ The
Queen - _ v. Jourdan (1904), R. 5 Beaver ( 1 9 0 4 ) ~ - R . - v. MacDouqall
(1909) and -- R. v . St.Ciaire (1913). his trend was upset in 1944
with the case of Conway 5 the Kinq (1944) and the introduction
of the element of 'mens rea' into the test (~utes 1974: 31). The
case concerned a production of Spin - - - A Web of Dreams, in which
young women appeared to be partially nude ( B O Y ~ 1984: 19).
Lazure J. overturned the previous conviction on the grounds that
"the object was not to suggest obscenity ... the intention was to
create an artistic background and not an immoral scene" (536).
Changing attitudes in the post World War I 1 period
-- -
influenced the degree of sexuality in the public sphere. The
Special Senate Committee on the Sale and Distribution of
Salacious and Indecent Literature "was forned as a consequence
of public reaction to this new prominence" (Boy6 1984: 19).
There was a concern over the proper approach to control of the
literature. Mr. Stewart S. Garson, the Minister of Justice in
1952, felt that the real problem was one of enforcement, however
( F O ~ 1974: 204). Law enforcement agencies had given him no
indication that the law was unenforceable (Charles 1966: 252).
Garson was of the belief that the Hicklin test was adequate and
effective, as was the Special Committee (Boyd 1984: 22). ~h'e
Conservative government replaced the Liberal government and
placed E. David Fulton in the position of Minister of Justice.
When the Minister of Justice, Mr. Fulton, introduced the new
obscenity bill in 1959, he suggested that the Hicklin test was
one of two measure^'^ to be employed for different types of
material in assessing "obscenity". Mr. Fulton stated that the
Hicklin definition "is not superseded by the new statutory
definition" (Fulton 1959: 5 5 1 7 ) ~ and that the Hicklin test was
to be applied to publications and productions that were
to have literary merit (Lutes 1974: 35). Cases
initially supported this distinction. -- R. v. Munster (1960) and
R. V. Standard News (1960) both considered s.150(8) not to be an
/ -
-
--__a
exhaustive definition of obscenity (Barnett 1969: 10). The
Supreme Court of Canada had the opportunity to decide if the
~icklin test could still be employed in obscenity cases. A
discussion of the status of the Hicklin test was avoided in
~echow v. The Queen (1977), however. The Supreme Court merely
- - -
broadened the definition of 'publication' to include the sex
devices in question (~erdun- ones 1984: 39). Dechow v. The Queen
(1977) determined that the section 159(8) definition was
exhaustive where it applied, that is when publications are the
focus of the case. The four dissenting judges were of the
\
opinion that the Hicklin test had now been replaced by the \
s. 159(8) definition, even wher; non-publications were alleged to
\
-
be obscene. c ~ h e issue has ' not been put to rest, and
theoretically, the Hicklin test can still be employed today.
Canadian courts do. not recognize the ~icklin rule in practice
however; it has apparently been "completely swept away" (Getz
1964-66: 216). In this sense judges seem to have ignored the
original intentions of Parliament when formulating the current
legislation (~utes 1974: 39).
The second approach available for &efining obscene material
is by "reference to its contents and its internal
characteristics" (FOX 1974: 224). This approach is seen In our
present obscenity legislation in Canada, s. l59(8) of the
canadian Criminal - I Code which Fulton intended to be used to
-
eliminate "trash" from the newsstands (Lutes 1974: 35). This
section became law in 1959 and has not been altered since, with
the exception of a section number change in 1970 (Lutes 1974:
40)
There are a number of offences in the Canadian Criminal Code
-
that deal specifically with published obscene material. These
offences are lodged under the heading 'Offences Tending To
corrupt Morals'. Section 159 is concerned with obscene
materials, objects and indecent shows, and constitutes the main
element of Canadian obscenity legislation. It prohibits the
sale, display or possession of obscene
judgments s i p e 1959 have functioned to clarify the 8
subsections which divide s.159. Subsections ( 1 ) and (2) set out
the substantive offences. Section 159(l)(a) declares it is a
crime for any person to make,- print, publish, distribute,
circulate or possess for those purposes any obscene written
matter, picture, model, phonograph record or other thing
whatsoever. Every person commits an offence under s.159(l)(b) if
they make, print, publish, distribute, sell or have in their
Possession for those purposes, a crime comic. Section 159(2)(a)
makes it an offence for any one to sell, expose to public view
or possess for that purpose the obscene material addressed in
S*159(l)(a). Interestingly, s.159(2)(a) is only applicable to
Offences which are committed knowingly. Therefore, conviction
could be obtained under s.l59(l)(a) if the accused had no
knowledge of the obscene material. Because of this, s.159(l)(a)
was declared to contravene the Canadian Charter of Rights - and
Freedoms. Subsection ( 6 ) dictates that an individual can make or
-
circulate obscene matter, not knowing that it is obscene, and
still be convicted. It was argued that subsection (6) was
unconstitutional because it attempted to make s. 159( 1 an
absolute liability offence in R. v. St. John News Co. Ltd.
- - - - - - -
(1984). However, R. v. Red Hot Video Ltd. (1984) stated that
- - ----
subsection (6) just removed the defence that the accused did not
know the material was obscene. Therefore, the Crown must still
prove knowledge over what is supposed to be in the accused's
possession (Greenspan 1985: 142).
The remaining aspects of s.159(2) deal with exhibiting
disgusting objects or indecent,shows and advertising drugs or
-,,\5'c.t4s?LQ
articles for miscarriages, abortions, restoring sexual virility
or curing venereal diseases and diseases of the generative
organs.
Subsection (3) applies to both the first subsections, and
4 4
states that no one will be convicted under these section$ if he
or she establishes the public good was served by the alleged
acts. Subsection (4) declares that it is a question of the law
&v. RC' > > d & ' I
whether/ the public good,was served, whereas s-s.(5) states that
I
Wer--this act the motives of the accused are irrelevant. It is
I,
not sufficient to prove that a person attempted to serve the
Public good. The court restricts its concern to the consequences
of the action. Subsection ( 7 ) defines a crime comic and s.159(8)
defines an obscene publication.
section 160 of the - Code addresses a specific procedure
suited to obscene matter. It provides for 'in rem' proceedings,
that are against the publication itself. Fulton, and others who
proposed the law, believed that by avoiding the prosecution of
, * individual, and the resulting damage to his or her
,--putation, judges would be less reluctant to prosecute (Charles
1966: 255).
section 161 prohibits 'tied sales', meaning that the sale or
supply of one publication must not be contingent upon the
I
purchase of other allegedly obscene publications. Section 162
involves the publication of judicial proceedings, and section
163 addresses presenting or permitting the performance of an
immoral, indecent or obscene theatrical performance. Section 164 -." ' \
is directed at the mailing of obscene matter and, lastly, s.165
addresses the punishments associated with obscenity (~ewett &
Manning 1985: 519)' These are not the only legal alternatives
which function to suppress erotic literature in Canada, however.
Charges of conspiracy to commit an indictable offence, the Post
-
Office Act, the Customs Tariff - I Act - The ~roadcastinq Act, and
the Trade Marks Act could all theoretically be invoked (FOX
Although eleven different Acts are currently available,
S-159(8) of the Canadian Criminal Code is by far the most
-
frequently implemented (Kenyon 1975: 228). Section 159(8) of the
canadian Criminal Code states "For the purposes of this Act, any
/
pblication a dominant characteristic of which is the undue
exploitation of sex, or of sex and any one or more of the
following subjects, namely, crime, horror, cruelty and violence
shall be deemed to be obscene."
Both the Hicklin test -and s.159(8) have been severely
criticized for their vagueness and arbi trar'iness (~raser
committee 1983: 151, despite the fact that this section was
acclaimed in 1959 by Fulton as producing a situation where
obscenity could be assessed with 'speed and certainty' by using
a series of supposedly simple and non-subjective tests (Hunter
1975: 488).
Because the written law is so vague and imprecise, the law
has been 'created' through the hearing of individual cases,i It
is interesting that this process of 'legislation through
litigation' (Stern 1969: 54) harkens back to the authors of the
raft Criminal Code of 1879, who neglected to define 'obscenity'
in the belief that "the word should be allowed to adopt the
meaning that the word itself conveys" (~utes 1974: 31). This
'evolving contemporary usage deserves further consideration.
&he Canadian cases in the area of obscenity have focused on
two major elements of the s.159(8) formula: the terms 'dominant
characteristic' and ' undue exploitation'. The words
'characteristic' and 'exploitation' have posed no real
v
I
difficulties, but the words 'dominant' and 'undue' have been
highly prcblematic (Fox 1974: 206).-3
., c, as,& d .
Some preliminary guidelines were laid down by Mr. Justice
judson and three concurring judges at the Lady Chatterly's Lover
hearing (R. -- v. Brodie; R. 5 D a n s k R. V. Rubin [1962]).
- -
~lthough the 'judgements have not since been questioned, it
should be noted that they are not binding, since this was not a
majority decision (Barnett 1969: 12). Judson, J.'s judgement was
only one of the nine judgements which culminated in a 5-4
decision. It was never endorsed or adopted by the Supreme Court
of Canada.
The judges' formula argued, firstly, that a book need not be
limited to one dominant characteristic. Further, the 'undue'
exploitation of sex' was to be determined by a consideration of
i
the work as a whole, and not just of specific sections. The1
author's purpose and the "literary or artistic merit of the
work" were to be simultaneously focused upon (FOX 1974: 206). In
- _-
_ - -I " - ---I- -----
other words, +exploitation of sexual themes per se is not
-
author's purpose, the merit of the material 1
and I -
whether the piece offends community standards of decency1
determine whether the exploitation is undue (For 1974: 2 0 6 ) P y I
Of course each of these terms, and the relationships among
them, have been subjected to further scrutiny in other cases. As
outlined in - R. - v. Fraser (1966), the contemporary and local
standards of the community are measured against the concepts of
purpose, merit, and the work in context. Although - - - R. v. Adams
( 1366) dictated that community standards determined merit, this
was overturned in a decision by O'Hearn, Co. Ct. J., who felt
that community standards were decided by a consideration of
merit and purpose. Lastly, -- R. v. Cameron (1966) suggested that
merit was important for determining 'obscenity' and 'purpose'.
If material contravened contemporary community standards, it
could not be vindicated by a finding of serious purpose, however
(Barnett 1969: 12)(Fox 1974: 207).
The purpose of the author is important to the issue of ,'
i *
obscenity. In Brodie (1962) Judson J. separated the notions of
different types of purposes. He identified a base purpose as
distinct from a serious literary one; obscenity being associated
with the former and non-obscene publications with the latter
(Barnett 1969: 13). -- R. v. Duthie Books (1967) identified base
-
----
purpose as that which vilified sex and treated it as something
---" -----.- --
less than beautiful or involving material written in a manner
calculated to serve aphrodisiac purposes (FOX 1974: 207). The
case of -- R. v. Coles (1965) illustrated the point, however, that
it was impossible to distinguish between merit and purpose. If
the purpose was base, arguing that a work had artistic merit
would be to no avail. Barnett (1969: 15) asserts that the cases
have shown that serious purpose in isolation will not prevent a
finding of obscenity, if some other elements identify material
as obscene. But if a base purpose is discovered other redeeming
criteria are not useful. Such was the case in Cameron (19661,
where it was decided that serious purpose alone is not
sufficient to save a work which is thought to offend community
standards (Fox 1974: 207).
Although merit is considered to some degree intertwined with
i
purpose, it does have an effect of its own. It has been
recognized that authors must have a certain amount of artistic
freedom to create works with genuine artistic or literary merit./
If it is decided that a work has artistic or literary merit, a
finding of obscenity is still possible if the purpose is
considered base and an offence against community standards
exists. Lack of merit however, could outweigh a serious purpose'
?
in the event of no offence to community standards (Barnett 1969:
16). Regardless, a determination of undue exploitation must be
made on all of the evidence having regard to the purpose,
artistic merit of the work and the community standard of
tolerance, as was demonstrated in R. 5 Times Square Cinema Ltd.
( 1971) (Greenspan 1985: 142) . In determining whether a
publication has a dominant characteristic which is the undue
exploitation oi sex, consideration must be given to the work as
a whole, not to isolated portions of it, and also to the
expressed or implicit purpose of its author.
If only to eschew obfuscation, community standards are now
judged to be the most 'weighty consideration in the negative'
(~arnett 1969: 18) . A finding of an offence to community
standards can negate the effects of merit and purpose. Community
standards cannot make a positive contribution, however. The
defence will not profit by merely showing that some material
will be tolerated by the prevailing standards. Proof that
naterial does contravene existing standards can be extremely
deleterious for the defence, however.
Community standards can be considered a rather elusive
concept, due to its fluid nature. Because of the confusion
surrounding the interpretation of our obscenity laws, the
constitutionality of the legislation was challenged. In the case
of ----- R. v. Red Hot Video (1985) it was decided that section 159(8) -=..
was an infringement on freedom of expression as guaranteed by
s.2(b) of the Canadian Charter of Rights - and Freedoms, but it
was nonetheless declared constitutional. It was appealed to the
Supreme Court of Canada. The appellant acknowledged that his
three videotapes were indeed 'obscene', yet pressed the issue on
two grounds. Firstly, he believed that s.159(8) of the Canadian
Criminal - Code is "so vague, uncertain, overbroad and incapable
of definition that it violates the principles of fundamental
justice guaranteed by s.7 of the Charter." Secondly, s.159(8)
was accused of not being a "reasonable limit" upon freedom of
expression following s.1 and 2(b) of the Charter.
The Canadian Charter of Rights Freedoms is a
constitutional document which outlines the basic rights and
values of Canadians. Within the Charter, section 2(b) guarantees
the right to freedom of expression. It declares:
2. Everyone has the following fundamental freedoms:
(blfreedom of thought, belief, opinion and
expression ...
section one of the Charter outlines the limits that
are placed
,,pn this freedom. It states:
1. The Canadian Charter of i t and Freedoms
guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.
The freedoms Canadians enjoy are entrenched in the Charter
to ensure that these rights will be protected. These rights
(section 2) are not absolute and can be constrained under the
'notwithstanding clause' in section 33, and as previously
stated, section one (Magnet 1985: 901)./'Section 33 allows
parliament and the Provincial legislatures the power to override
the fundamental freedoms in s.2, the legal rights in sections 7
through 14, and the equality rights in's.15.
The second legal argument in ---- R. v. Red Hot Video ( 1985) was
quickly dismissed, with the explanation that Canadian courts
encountered minimal difficulties deciding what is obscene in
Canada. The first argument required more attention, but it was
not accepted either. It was the opinion of the court that one
can 'demonstrably justify' restricting the guaranteed right of
freedom of expression when material causes, or threatens to
cause, real and substantial harm to the community. Anderson, J.
referred to s.28 of the Charter, which ensures that the rights ,/
I
of men and women are equally protected, before declaring:
If true equality between male and female persons is to
- be achieved it would be quite wrong in my opinion to
ignore the threat to equality resulting from the
exposure to male audiences of the violent and degrading
material described above. As I have said, such material
has a tendency to make men more tolerant of violence to
women and creates a social climate encouraging men to
1
act in a callous and discriminatory way towards women.
$The judiciary are obviously willing to adopt the findings of
some of the recent research concerning the effects of
pornography, although critics might argue that problems with the
may not 'demonstrably justify' the conclusions that
have been drawn. Regardless, this decision laid to rest many
concerns that the Charter, and its 'freedom of expression'
provisions, would be used to shield the producers and
distributors of even the more extreme forms of pornography.
,/---y
Federal obscenity legislation has been the major mechanism
by which obscene material has been controlled in Canada. The
provincial censor boards do complement these powers to some
extent, although the two approaches often do not present a
%-if ied front.
Provincial Censorship as Prior Restraint: Regional Differences
-
Obscenity legislation, and the prior restraint known as
censorship, present two different avenues for controlling
obscene materials in Canada. They can function either
simultaneously or alternatively. censorship is the act of
proscription (price 1979: 302). Prior restraint prevents
expression before it occurs. Price (1979: 302) distinguishes
between obscenity legislation and censorship. Censorship
generally controls the existence of material, while obscenity
legislation controls the circumstances of its exposure.
Obscenity legislation is under federal jurisdiction, whereas
censorship is generally the prerogative of the individual
provinces. There is no federal legislation which endorses
censorship, although it could be argued that elements of the
Criminal Code and the Customs Tarrif - Act do just that. They
1
effectively preclude expression by preventing material from
1 crossing the Canadian border (Fox 1974: 116) .
\
I
Legal authorities have been divided into provincial and
1 federal jurisdictions under the Constitution g, 1982, formerly
known as the British North America Act, 1867. The Criminal Code
I is responsible for matters tending to corrupt public morals.
Section 92 (13) of the B.N.A. Act concerned provincial property
( and civil rights. Dean (1981: 173) states:
Film censorship became and has remained a provincial
jurisdiction in Canada for one of the strangest and
least appropriate of reasons: film has been viewed
solely as property and as a business, and such matters
fall within provincial jurisdiction and direction.
( Although film censorship may have been the responsibility of the
provinces for curious reasons, there are justifications for
I
preserving the present practice. The diversity of the Canadian
population is such that the provinces, and their boards, may be
I
]more in tune with changing attitudes and levels of tolerance
/ within the individual provinces than a federal body could be.
/Provincial legislation is able to apply a local standard of
morality, while federal legislation applies a national one
w-
(price 1979: 307). The provinces are apparently radically
different in their approaches to censorship, prohibition and
(Boyd 1985: 51). This can be viewed both
positively and negatively. On the one hand, this flexibility
between provinces could more easily reflect the attitudes of the
people within that province. Unfortunately, it is not always
clear that this
is the case.
The issue of community standards is heavily emphasized in
the notion of provincial censorship (Boyd 1985: 47). All of the
provinces do give some consideration to the public sentiment or
community standard, yet only Ontario has made an attempt to
study the attitudes of the individuals in the province (Boyd
1985: 55). There is some disagreement over the rationale behind
the provinces relying on community standards. Dean (1981: 218)
states that 'community standards' is:
a theory of censorship which permits the vast, non-film
going public to censor the tastes of those who do attend
films, on the grounds that 'the majority' has a right to
determine what goes on in 'their community'.
It is arguable that with an absence of information as to what
the inhabitants of the different provinces feel offends the
community standard, we are not relying on the majority opinion
in provincial censorship.
The flavour or climate of each of the provinces is largely
determined by the attitude of the different chairpersons,
yielding sometimes discontinuous models of censorship and
classification (Boyd 1985: 38). Since the provinces' respective
enso or boards operate independently of each other, they must be
focused on individually.
0mri J. Silverthorne headed the Ontario Board of Censors for
just under forty years. He was considered quite modern, and his
policies and decisions reflected his liberal approach. Ann Jones
has recently become the new Director of the Theatres Branch in
Ontario. It is too early in Ann Jones' career as chairperson to
evaluate her position on censorship, although her most recent
predecessor, Mary Brown, was often criticized for her
conservative approach.
Alternatively, Quebec's early censors could be considered
quite restrictive. This trend was reversed with the appointment
of Andre Guerin in 1962. British Columbia and Nova Scotia
appeared to follow the same route as Quebec, where "a
restrictive area of censorship resulted in increasing criticism
and was followed by entrance into a more liberal era" (~oyd
1985: 40). The catalysts for these changes in policy were Ray
MacDonald in British Columbia, and Gerald Doucet in Nova Scotia
(Boyd 1985: 40).
The provinces began their practice of prior restraint in
1911, with Ontario's Theatres and Cinematographs Act although
- - I
Manitoba and Quebec had their legislation assented to on the
same day (price 1979: 318) . Both British Columbia and Nova
Scotia enacted film legislation shortly afterward (~oyd 1985:
40). The Ontario Act authorized the appointment of a Board of
-
Censors, giving them the power to permit, prohibit or reject any
film. All films had to be shown to the board. Provisions made in
1953 and 1960 allowed for new classifications, and in 1975 the
Act was amended and 'exhibit' was defined. This restricted
-
censorship, depending on the circumstances of exposure.
Nine of the provinces have enacted legislation that deal
with either, or both, film classification and censorship (Fox
1974: 2 1 5 ) . Quebec, Ontario and Saskatchewan address the same
problems in literature (Fox 1974: 215). Film classification is
the process whereby the films submitted to the various boards
are separated into different categories according to the age of
the audience. Some of the provinces now emphasize film
classification and theatre licensing, rather than their
censorship functions (Fox 1974: 216) . Laskin J. has recognized
that the more recent censorship legislation passed by the
provinces has been directed at classification and advertising
control (Price 1979: 318) .
Within the individual provinces and territories, each
censorship authority operates under a Provincial Act. In British
Columbia and Quebec the censors operate under the
Attorney-General's office. In New Brunswick and Nova Scotia the
Provincial Secretary is the ministry responsible for censorship,
and in Ontario it is the Ministry of Consumer and Commercial
Relations. The Department of Culture and Youth in Saskatchewan
was created especially for the purpose of focusing on art and
culture in that province, and censorship is practiced under this
P
body (~ean 1981: 253).
Ontario, British Columbia, Saskatchewan, Alberta, Quebec,
New Brunswick and Nova Scotia all have censor boards and
classification schemes. Only Prince Edward Island and the Yukon
do not have some form of film legislation (Dean 1981: 253) . This
does not mean that controls are not provided in these areas,
however. They simply are not challenged. For example, movies
that are shown in P.E.I. reflect the same user-classification
ratings as those in Nova Scotia (Dean 1981: 257) . Interestingly,
if a film is rejected for exhibition in Nova Scotia, it is
simply not shown in Prince Edward Island.
The Yukon provides an exception to the film censorship and
classification process in Canada. The Canadian Criminal Code is
-
considered to be the mechanism for film control in that
territory. Age restrictions are posted outside cinemas, as they
are in other provinces, yet if they were objected to, no paying
customer could be refused admittance. The B.C. classification
scheme is followed mainly to give consumers an indication as to
the content of their product (Dean 1981: 170).
The Northwest Territories can adopt the same classification
as any other province for a particular film. Because of
geographical considerations, the western provinces'
classifications are often employed. In the event of the film
classification officer disagreeing with a certain decision,
another province's scheme could be used (Dean 1981: 132) .
The ~anitoba experience is especially relevant to the debate
over the provincial role of prior restraint. Neither Manitoba
nor ~uebec has the power to request that changes be made to
films, although the Quebec Bureau de Surveillance du Cinema is
effectively involved in cutting the films to be shown in that
povince (Fraser Committee 1975: 206) . In 1972 the Manitoban New
Democratic Party eliminated the powers of film censorship, but
not classification, in that province. Surprisingly, theatre
owners were not overjoyed with this development, and felt that
their somewhat limited protection from prosecution was being
withdrawn (Dean 1981: 128) . The new classification procedure
merely helped the Attorney-General's office in launching
prosecutions, and forced the theatre owners to be more selective
over which films were chosen for exhibition (~ean 1981: 128) .
Indeed, one of the main problems with the somewhat tenuous
relationship between the provincial and federal approaches to
pornography is that although a film may be passed by provincial
censorship authorities, it can still be prosecuted for obscenity
under the - Code (Fox 1974: 216) . The Saskatchewan Court of Appeal
decreed in - R. Dayliqht Theatres Company ~imited ( 1972) that
the classification a film received from a provincial censor
board had no relation to the Criminal Code, and individuals were
justly answerable to both these legal processes (price 1979:
307) . This leaves distributors and theatre owners in something
Of a dilemma. A film that could be exhibited in one province
could be prosecuted for obscenity there. ~lternatively, a film
found 'not obscene' federally may be refused exhibition by a
provincial censor board. There is no guarantee that both forms
of proscription will address the same material, or raise issue
with the same circumstances of exposure (price 1979: 305).
As federal obscenity legislation has been condemned for
allowing a great deal of discretion and inconsistent
application, so too have the policies of the various censor
boards. It is this lack of strict criteria among the various
boards that has currently been an issue in Canadian courts.
One of the first important cases in the censorship domain
was the much cited Re Nova Scotia Board of Censors et al. and
-- -- - - -
~ c ~ e i l (1978). The case began with the Nova Scotia Amusement
~egulation Board banning the exhibition of a film entitled Last
-
Tango In paris. As was usually the case, the movie was banned
-
without explanation or reasons. This interesting case highlights
the jurisdictional problems in the area of obscenity. The case
addresses the questions of who defines obscenity, and who is
responsible for creating a censorship board. The discussion
revolved around the constitutionality of a provincial
legislation establishing a film censorship board, and whether
the Theatre - and Amusement Act could
-
in that an offence was outlined and
.the Court of Appeal found the Act
proper authority of the provinces),
be considered criminal law,
a penalty provided. Although
ultra vires, (beyond the
the Supreme Court overturned
this decision. The Doctrine of Federal Paramountcy states that
in the event of a conflict between federal and provincial
legislation, the provincial legislation will be declared ultra
. vires.
-
Ritchie, J., speaking for the 5-4 majority, referred to the
fact that sections 92(13) and 92(16) of the Constitution - Act of
1867 empowered the provinces to control their property and civil
rights, and all matters of a local or private nature. The
Theatre and Anusements Act was found to prevent, not punish,
--
-
crime. Section 32 of the - Act was struck down, however, because
it was found to be practically identical to s.159(2) of the
criminal - 1 Code which identifies the offence of publicly
exhibiting an obscene show (Verdun- ones 1984: 22-24).
Therefore, it is clear that provincial censorship and federal
obscenity legislation generally do not interfere with each
others' practices.
Other more recent cases have addressed the constitutionality
of the prior restraint practices of the provinces. These cases
are based on Canada's new Charter - of Rights and Freedoms.
7
The recent case of - The Ontario Film and Video Appreciation
-7 -
Society the Ontario Board - of Censors (1983) has raised the
question of the constitutional validity of 'prior restraint' or
censorship under the Ontario Theatres Act. The court was
requested to decide whether the censorship provisions of the
Theatre Act, as well as the standards and procedures used by the
Ontario Film Review Board limit the guaranteed freedom of
expression and do not meet the test outlined in section one of
m\
the Charter.
Section 3(2)(a) and ss. 35 and 38 of the Act allowed for the
=ensoring of any film, stating that all films exhibited in
ontario must be submitted for approval, or they could not be
shown. The court accepted that the sections of the Theatres Act
- 1
do impose limits on the freedom of expression. The court was
satisfied that some censorship of film is permissible in a free
and democratic society. The position that was taken was that it
was not necessary for the judiciary to discuss whether the
'Standards' the Board of Censors provided were reasonable
limits, stating:
our courts will exercise considerable restraint in
declaring legislative enactments, whether they be
statutory or regulatory, to be unreasonable.
'On the next issue, whether the limits were 'prescribed by
law', the court took a firm stance. It was of the opinion that
it was not sufficient to authorize a Board to censor or prohibit
the exhibition of any film of which it does not approve. This
regulation must not be considered 'law' because it depends on
the discretion of an administrative tribunal.
Since the Ontario Board is not legally bound to adhere to
the standards it outlines in its brochure, it was declared the
guidelines "have no legislative or legal force of any kind.'
Although the standards have no effect, it was suggested that
they could be operable if regulations were passed or statutory
amendments were enacted thereby imposing reasonable limits and
7
standards.
The Ontario Court of Appeal dismissed the appeal and agreed
with the Divisional Court. They suggested that s. 3(2)(a) is
ultra vires, as well. The case is being appealed to the Supreme
-
Court of Canada, and to this date the issue has not been
resolved.
Traditionally, the provinces have only been concerned with
the public exhibition of film. This trend has recently been
upset, with Ontario and Nova Scotia including the sale and
rental of videotapes for private consumption in their regulatory
schemes and British Columbia taking steps to enter into the
private domain (Fraser Committee 1985: 203). This is not
inherently problematic, however. There is nothing in the concept
of censorship which necessarily restricts its operation to the
public exposure of material (Price 1979: 318) . Videotapes,
because of their increasing popularity and accessibility, have
become a major focus of concern. Many Canadians object to being
told by the provincial censorship boards what is unavailable for
viewing in the privacy of their own homes. Other individuals
identify the paradox of being denied access to a film in a
theatre, while being permitted the rental of the same film from
a video store.
The future of the provincial censor boards' powers are yet
to be determined, yet some insight into the direction the
judiciary may be taking has been provided. Anderson, J. quoted
,-om Clare Beckton in the Red Hot Video (1985) trial, when he
If freedom of sxpression is to be a valuable right, a
moral sense of indignity is not a sufficient reason for
prohibiting access to allegedly obscene material. Any
censorship which is not clearly justifiable interferes
with the right of free expression. Clearly there are
legitimate interests to be protected, particularly as
they pertain to access by minors to material described
as obscene or pornographic, but the danger is ever
present from legislation that is overbroad, and from the
lack of clear standards against which to measure the
material (Magnet 1985: 957).
perhaps
the provinces will be required in future to make their
standards and criterion for censorship, prohibition and
classification public, and be bound to them, to eliminate some
of the arbitrariness that surrounds not only federal obscenity
legislation, but the provincial legislation as well.
~unicipal Requlation: --- See No Evil
Attempts at controlling pornography have likewise been
identified at the municipal level. Municipalities are
corporations which are created by the various provincial
gbvernments (Fraser Committee 1985: 3 7 ) . Rather than defining
what is deserving of the criminal sanction, municipalities
regulate the pornography in their communities through municipal
by-laws and zoning ordinances. This practice complements the
federal and provincial measures, allowing communities some
latitude in monitoring their neighborhoods.
A municipality's authority to regulate and control the
pornography within its borders is determined by three factors.
Those factors are the Charter - of Rights Freedoms, the
division of powers within the constitution and the
municipalities' powers as assigned to them by provincial
legislators (Fraser Committee 1985: 217).
The Charter - of Rights and Freedoms constrains a
municipality's powers through s.2(b), which guarantees the
fundamental freedoms as limited by section 1. The Constitution
Act (1867) allows the provinces to create laws concerning
-
"Property and Civil Rights in the Province", and "Shop, Saloon,
Tavern, Auctioneer, and other licenses inorder to the raising of
a Revenue for Provincial, local, or Municipal purpose". It
consequently allows the provinces the power of fine, penalty or
imprisonment if their laws are transgressed (Badgley Committee
1984: 44343.
The provinces have municipal acts which outline the power of
the municipalities. The various provinces generally enact very
encompassing legislation that allows their municipalities the
power to license, regulate and govern specific types of
businesses and occupations. Furthermore, municipalities
determine zoning and land use, they have limited control over
the highways and other public places and have control of
nuisances within their boundaries (~raser Committee 1985: 217).
They are able to legislate for the health, safety, welfare and
morality of their inhabitants (F'raser Committee 1985: 3 7 ) .
Each municipality, as a consequence of this legislation, is
enabled to enact municipal by-laws to indicate exactly and
precisely how the municipality intends to regulate specific
types of enterprises (Badgley Committee 1984: 1134).
~unicipalities are able to regulate the manner and conditions of
display of pornographic materials in advertising and retail
outlets (Badgley Committee 1984: 1084). Common by-laws are those
which prohibit access of pornographic materials to children and
demand that sexually explicit images be shrouded by an opaque
covering. Zoning by-laws dictate where shops catering to certain
wants can locate within a municipality. Municipalities are
capable of levying licensing fees, although those should not be
prohibitive. Often, regulations are employed to effect the
nature of businesses conducted within the municipality, their
hours and advertising practices.
Clearly worded by-iaws that seek to regulate pornography,
and not eliminate it, are generally upheld by Canadian courts.
By-laws have been struck down by the courts, but this has been
due to the fact that the by-law was overly vague or trespassed
on the federal power to determine criminal law (Fraser Committee
1985: 217).
Many municipalities across the country have designed by-laws
to regulate pornography within their borders, despite the fairly
prohibitive potential for challenges as to their legality.
Although court can be very expensive (Fraser Committee 1985:
220), municipalities generally do not have to fear this
response, provided that they abide by three general rules
-regarding municipal by-laws. Municipalities must be aware that
they have no greater power than those which are awarded to the
provinces. Furthermore, their legislative capabilities must be
outlined within provincial enabling legislation under a
municipal act, or the by-laws will be considered invalid.
~ortunately, the provinces have been quite generous in their
delegations of authority to the municipalities (Fraser Committee
1985: 37). Lastly, a municipal by-law must be clearly worded so
that an average individual will understand his or her
obligations under it (Badgley 1984: 1135). Zoning regulations
must likewise adhere to fairly strict rules concerning zoning
ordinances. They must concentrate only on the land uses within a
municipality.
By-laws and zoning ordinances at the municipal level have a
limited impact on the large North American pornography industry.
They are able to compensate for the diverse interests and
regional variations within Canada, however, and in that sense
complement provincial and federal measures addressing sexually
explicit imagery. While municipalities do not directly determine
or restrict expression, they do have some ability to manipulate
it through regulation. The municipal approach reflects the
attitudes and dispositions of a community concerning the
dissemination of pornographic materials within its jurisdiction,
while preventing over zealous individuals from enacting criminal
law from within municipal boundaries.
The issues surrounding pornography have changed dramatically
over the years. Variations in the social climate have been
accompanied by differences in attitudes towards pornography. The
feminist viewpoint enhances the pornography debate, providing an
alternative perspective to the traditional moralist/civil
libertarian dichotomy. Feminists, moralists and civil
libertarians have formulated their own definitions of
pornography, reflecting their ideologies and concerns. Many of
these groups have been particularly critical of the federal
obscenity laws and provincial practice of prior restraint. Some
individuals have tried to compensate for the inadequacies of the
federal and provincial strategies with municipal by-laws,
notwithstanding the fact that this reflects a misinterpretation
of the municipal role.
In Canada, dissatisfaction with the state of pornography
control resides. Community standards are at the heart sf the
federal, provincial and municipal approaches. The debate
concerning the appropriateness of the community standards model
is unquestionably most intense at the federal level, however.
Individuals representing a variety of perspectives, armed with
practical, theoretical and political arguments, are now engaged
in challenging the validity of this strategy.
CHAPTER I I
THE COMMUNITY STANDARDS DEBATE
A considerable jurisprudence has developed surrounding the
community standards concept. It continues to be an integral
element of Canadian obscenity law, despite the confusion it
engenders. The standard's fluid and dynamic nature translates to
ambiguity and obscurity in practice. Film and magazine
distributors, the police and even the judiciary have difficulty
.determining its parameters. Social scientists have had to enter
the debate in the capacity of expert witnessess, proffering the
results of public opinion survey evidence. Although statistical
techniques may offer the best approximation of this elusive
concept, the criterion is intrinsically problematic. Judicial
criticisms of its legal impracticalities flourish. Other members
of the Canadian community thoroughly reject the concept on
theoretical grounds, demanding that criminal law be based on a
firmer foundation than mere intolerance.
Section 159( 8) of the Criminal Code has been interpreted to
mean that a finding of obscenity is necessarily precluded by a
determination that the undue exploitation of sex is a dominant
characteristic of a publication. It will not suffice to prove
that the exploitation of sex is the exclusive characteristic,
however, it must be undue. Yet, it need not be the main
characteristic, for more than one dominant characteristic may be
in evidence. Mewett and Manning ( 1985: 513) state that:
"A dominant characteristic of which is the undue
exploitation of sex" has become a test of whether the
community at large would consider that the sexual
elements of the publication are unnecessary to pursue
its artistic or literary purposes but are, on the
contrary, so pervasive as to amount to no more than an
appeal to the prurient interests. If obscenity must be
defined at all, and it must, in terms of changing social
mores, this seems to be as good an approach to the
difficulty as any.
This view is by no means unanimously accepted in the literature.
A brief examination of the history of the concept is useful to
an
understanding of the confusion and controversy which engulfs
it today.
It is interesting that the community standards concept
predated our current legislation, and was borne from the New
Zealand case of - R. - v. Close in 1948, in a consideration of
'undue emphasis'. The judge in that case, Fullagar J., had
instructed the jury to determine whether exploitation was undue
according to community standards.
R. v. Prairie Schooner News Ltd. and Powers (1970) indicated
-- ---
that the test of undueness is determined according to
contemporary community standards in Canada. The purpose of the
author, and regarding the book as a whole, seem to now be
subsumed under a broader heading of 'internal necessities'.
According to R. 5 MacMillan Company of Canada (1976) 'undue' is
-
to be measured against the 'internal necessities' of the book
itself, and the contemporary Canadian community standards.
It was Judson J. in -- R. v. Brodie, Dansky -- and ~ubin (1962)~
who quoted from Fullagar J. in - - - R. v. Close (1948)~ when he
stated that "There does exist in any community at all times--
however the standard may vary from time to time-- a general
instructive sense of what is decent and what is indecent, of
what is clean and what is dirty" (p. 465). In sum it was
proposed that 'community standards' is a fluid, dynamic concept
which does in fact exist at any one point in time in Canada
(Lutes 1974: 4 3 ) .
Others have elaborated on the concept. ~ustice Freedman
asserted in R. and Gifts (1962) Ltd. v. The
-- - 7 -
ere, conservative or
habit of mind. ng a general average of
-_--- -
vered." He contended that a
large readership does not offer a solution to the obscenity
question, although it may be noted (Fox 1974: 200).
As stated in - R. - v. Goldberq and Reitman ( 1 9 7 1 ) , the
-
community standards cannot be those of one community, such as a
university community, but must refiect the view of the whole
community. Community standards are also considered to be
contemporary and local. The observation that Canadian standards
are 'contemporary' suggests that as social conditions and
influences change, so too may attitudes concerning sexuality and
erotic or pornographic materials. The notion that these
Standards must be 'local' is misleading. By 'local' it was
intended that regardless of standards and attitudes in the
united States of America, Canadian standards must be assessed.
In sum, 'local' implies a national, Canadian standard.
Furthermore, this standard is one of tolerance, not acceptance.
~mplicit in this statement is the assumption that there is a
distinction between what adults are willing to view themselves
and what they would permit others to watch, or hear. The issue
is what material adults would allow others to view, regardless
of whether they themselves have any interest in viewing the
material.
The issue of tolerance has been expanded upon. R Sudbury
News Service Ltd. ( 1978) specified that if certain publications
- -
are available to the general public the standard of tolerance is
based upon that. Jt was accepted that Canadians would tolerate
different levels of explicitness, depending on the audience and
the circumstances involved. The manner and circumstances of
distribution are relevant considerations for tolerance
(Greenspan 1985: 143). Price ( 1979: 316) explains that the
operation of obscenity legislation is confined to the public
exposure of material where the advertising and other
circumstances do not restrict the audience to those adults who
choose to be exposed to it. Therefore, the community standards
test of undueness does not oscillate depending on the group to
which material is exposed, but in accordance with the manner in
which the material is shown or disseminated.
The audience to which a film is exposed is not relevant to a
consideration of whether the film is obscene, although
consideration should be given to the fact that some films are
restricted to adults who choose voluntarily to view them. Judge
Dickson, C.J.C., of the Supreme Court of Canada dictated at page
194 in Town Cinema Theatres - - Ltd. v. The Queen (1985)~ that "The
trial judge also erred in failing to give consideration to the
fact that the film was restricted to adults only and only those
who chose to see it could be exposed to it." Thus, it appears as
if the characteristics of the audience and parameters of the
viewing situation are stilJ important considerations when
determining the issue of tolerance.
Of course it is the judge who ultimately decides if the
material brought before the court offends community standards.
In October of 1983,
Co. Ltd., and Act I11 Video Productions Ltd. (1983)
- ----
1 -
\
It remains the task of the trier of fact who is assumed
to have his finger on the 'pornographic pulse' of the
nation, to assess objectively whether or not the
contemporary Canadian community will tolerate the
destruction of the motion pictures before the Court.
There is some irony to this requirement. The judge, who
by the very institutional nature of his calling is
required to distance himself or herself from society,
for the purposes of the test of obscenity is expected to
be a person for all seasons familiar with and aware of
the national level of tolerance.
The policy whereby the judge alone determines whether or not
an offence to community standards has been committed has been
severely criticized. As Hunter (1975: 5c3) stated "Who could be
less qualified than judges, uniformly drawn as they are from the
same background, education and career to discern it?" In the
- --
absence of evidence on the contemporary community standard it
would be extremely difficult for a judge to determine if a
community standard, that is national in character, has been
breached. Lamont (1972-73: 141) asserted ''...it is foolish to
assume that a single judge, or even a panel of twelve jurors
drawn from one locality, and limited in their range of exposure,
could adequately represent that standard". He further criticized
~anadian courts for being "under the illusion that judges and
juries are so knowledgeable and so well attuned to the ever
fluctuating mood of the nation that they can perceive, almost by
intuition, what the level of tolerance of the Canadian people is
at any given point in time" (Lamont 1972-73: 141).
It would seem naive to operate on the assumption that one
person, without the benefit of evidence on Canada's community
standards, is able to monitor the attitude of all adult
Canadians on that subject, despite that person's intellect,
knowledge, ability or degree of exposure. Fox argued that "The
test of obscenity as interpreted by Canadian courts, may be
little more than, 'Does the publication shock the judge?' If it
does, it will be interpreted as being in conflict with community
standards" (Fox 1974: 209).
A jury is also limited in its ability to assess an offence
against the standards of a nation, but perhaps less so than a
judge. Nonetheless, Hunter advocated the use of a jury in
Obscenity litigations, stating that "moral judgements of a
society must ultimately be decided by its citizens" (~unter
1975: 503). Hunter argued that a jury is more representative
than a judge. Those individuals in a jury are identified as
being in closer contact with the norms of a community. Iiunter
viewed jurors as having a better ability to be 'practical and
sensible' in applying the 'community standards test than a judge
(Hunter 1975: 5031, and suggested that twelve heads are better
than one. Although the jury, like a judge or other individuals,
is capable of making wrong decisions, "For sensing and applying
the shifting and moral standards of a community, we have no
better alternative" (Iiunter 1975: 504) .
Getz recognized the arguments that a jury is best able to
, comprehend and apply moral standards, and that the jury reflects
the community ethic (Getz 1964-66: 219) . He did not support
Hunter's propositions, however, and stated the "use of the jury
as a technique for ascertaining the permissible level of
exploitation of sex is at best unsatisfactory, and at worst
highly dangerous" (Getz 7964-66: 2 2 1 ) . This statement was based
on the observation that the jurors must be capable of applying
the standards of a nation, not just the community from which
they were extracted. The jury is put in the awkward position of
having to make assumptions about what other individuals would
feel about a specific piece of work if they were exposed to it
-
( ~ e t z 1964-66: 219) . In no other area of the law does the court
request that members of the jury, as representatives of the
community, apply the conscience of other individuals. The jury
is habitually instructed to follow the law and their individual
consciences (Robson 1985: 18) . Jurors would be better prepared
to apply their own standards to the material.In any event, there
is "no basis for assuming that community standards take
precedence over personal standards when jurors decide on the
degree of objectionability of an erotic presentation" errma man &
Bordner 1983: 363). The danger exists that jurors might not even
inappropriately use their own standards of tolerance, but see
their role as one of 'protectors of society1 (Getz 1964-66:
Bell (1977)~ like Getz, does not share Hunter's confidence
in the abilities of a jury. Bell asserts that individuals living
in larger communities are likely to separate themselves into
various subgroups on the basis of income or daily activities.
The lpseudo-communitiesl that are a result of these subgroups
&
could be very homogeneous, in contrast with the heterogeneity of
the'larger community. The juror is handicapped by viewing only a
segment of the community and "the juror may think his or her
pseudo-community is representative, when in fact it is not"
"I
ell 1977: 1207).
A large readership, or the popularity of a publication could
be viewed as one type of indicator that could possibly gauge the
tolerance of a community, although there are a limited number of
advantages to this notion. Certainly the market would be fairly
easy to assess, compared to the complicated prospect of
determining the attitudes of a nation. Distributors of 'eroticv
films and magazines promote this method of determining an
offence to community standards. Some distributors feel their
product and its "sales dictate what current standards are"
(Kraite 1984: 23).
In the United States, using the market to help determine
tolerance levels has proven to be problematic. Since pornography
is so easily available in cities like New York, and so few
complaints are received, it is assumed that the community
tolerates, as well as supports, the blossoming pornography
industry. Prosecutors are unwilling to bring many obscenity
cases to trial for fear of difficulty of conviction (Sansfacon
1984: 26).
Use of the market as an indicator of the level of community
tolerance is perhaps the worst alternative available to the
judiciary. When evidence of the availability of pornographic
materials on the market is employed to designate tolerance, the
test becomes circuitous (~oonan 1985: 320). The 'market places
analysis is unworkable because the vast majority of Canadian
pornography is imported and much violent pornography is smuggled
over the border. ~merican distributors could flood the Canadian
market with increasingly more violent and degrading pornography,
washing away new boundaries of tolerance.
Furthermore, the great majority of the consumers of
pornographic materials are males (~raser Committee 1983: 12).
Application of the market analysis to determine tolerance to
this material would be negligent since less than half the
national population would be represented. he courts would
I
ultimately be catering to those individuals who desire this
- material, not finding an average of Canadian thinking. Mahoney
(1984: 67) argues that most of those individuals associated with
the manufacture, but also control, of pornography are male,
including the police, expert witnesses, prosecutors and judges.
heref fore, judicial acceptance of the 'market place analysis1 in
an ascertainment of community standards of tolerance entails:
imposing the standard of the man in the Clapham omnibus,
but not that of the woman sitting beside him. Women are
forced to accept a standard that does not consider their
views, but victimizes and exploits them instead.
In any event, Canadian courts are not willing to recognize the
market as an adequate measure (~oyd 1984: 26). The information
can be considered, but it is not decisive.
Given the problems associated with each - of the above
alternatives as a means to gauge contemporary community
standards, various individuals have suggested that expert
testimony based on public opinion surveys might offer a
desirable and viable alternative.
Tapping - the ~ornoqraphic Pulse: Public opinion Surveys
Expert Evidence
There have been a number of attempts to determine existing
community standards. The courts have suggested that the notion
of community standards is a phenomenon that is amenable to
empirical testing, and that public opinion research surveys are
the most appropriate way to assess this phenomenon. Public
opinion surveys are increasingly being accepted in Canadian
courts as evidence of Canada's community standards of tolerance
(Coons and McFarland 1985: 30).
Fox (1974: 222) discusses three cases in Canada where expert
evidence concerning the results of public opinion surveys had
been introduced. These surveys were directed at the issue of the
community's level of tolerance to sexually explicit material.
until this time it was the judge's opinion which decided the
issue of obscenity. Mr. Justice Jessup clearly indicated that
survey evidence is not admissible per se, but only when it forms
the basis for expert opinion testimony (Fox 1972: 321). The
expert's role is not limited to providing evidence on the
validity of a survey, however. It is often necessary for the
interpretation of the results of the survey as well (Fox 1972:
325). The professional witness testifies concerning a particular
application cf his skill and knowledge (orensen and Sorensen
1953: 1221). Expert opinion evidence can be introduced in
defence of the public good for s.159(8). One of the ways it can
be used is to illustrate the state of community standards. It
can also be introduced to prove the author's purpose, and
literary, artistic or scientific merit of the material under
scrutiny (FOX 1974: 221). The Canadian approach is to allow the
tribunal of fact to hear expert evidence. This approach
acknowledges that community standards can be tested empirically,
and some scientifically obtained evidence is preferable to other
methods that have been used in the past, such as relying on
judicial notice or ordinary experience.
There are some basic rules which govern the admissibility of
expert evidence in Canadian courts. It is acknowledged that in
some instances jurors and judges may require some expert
assistance in specific matters. Judges and jurors are not always
properly prepared to draw inferences from the facts as stated by
witnesses. For this a legal expert is necessary. An opinion is
considered to be "any inference from observed facts" (McCalla
1981: 7 4 ) . Witnesses can only comment on that which they
themselves have observed. The judge or jury has the opportunity
to draw inferences. The basic rule concerning the opinion
evidence of experts is "A witness may not give his opinion on
matters which the court considers call for the special skill or
knowledge of an expert unless he is an expert on such matters,
and he may not give his opinion on other matters if the facts
upon which it is based can be stated without referenee to it in
a manner, equally conducive to the ascertainment of the truth"
( ~ c ~ a l l a 1981: 7 4 ) . In other words, if special skill or
knowledge is necessary, a legal expert may be called. There are
no specific rules as to what qualifications an individual must
possess to be considered an 'expert witness'. The judge must
decide if the individual is qualified through some special
course of study or some special experience. One need not be a
professional in the area. An expert is qualified as such if he
or she has "firsthand knowledge of the situation or transaction
the ability to draw inferences that a jury would not be able to
draw competently from the facts.
Courts have, in the past, been rather lenient in admitting
individuals into the expert witness category (McCalla 1981: 76) .
The court listens to evidence for and against the qualifications
of an individual as an expert witness, and proceeds with a
cross-examination. If the members of the court wish to object to
the expert evidence, it must be done directly after the person
has listed qualifications and before the evidence is heard by
the court (McCalla 1981: 7 8 ) .
Historically, expert evidence was employed when it was
determined that a correct decision could not be made without the
help of individuals who had special capabilities and experience
in certain areas (~cCalla 1981: 78) . The criteria for when
expert evidence is necessary are now quite specific. Expert
evidence is deemed necessary on issues necessitating specialized
skill or knowledge. The two issues which arise in this sphere
are whether the subject matter in focus demands some expertise,
and whether the individual is qualified to be an expert (McCalla
1981: 7 4 ) . It is the rule that the evidence must be associated
with some business, occupation, science or profession so as to
be beyond the scope of the ordinary individual. The expert
witness must possess enough ability that his inferences benefit
the court in its quest for truth. Basically, if the court feels
it is in need of assistance in some area the expert witness's
testimony will be allowed. It is considered appropriate for an
r
pinion research expert to present the results of a survey,
notwithstanding that he or she may not be an expert in the
" ~ubject area that the survey addresses (Sorensen and Sorensen
1953: 1227; McCalla 1981: 75) .
The proper method for accepting expert evidence is still not
clear. As a result many judges are uneasy about accepting this
important evidence (FOX 1972: 315) . Two of the greatest barriers
are the ultimate issue doctrine and the hearsay rule (Fox 1972:
315) . The ultimate issue doctrine states that evidence should
not be accepted when it concerns the issue that judges and
juries are supposed to decide (McCalla 1981: 82) . McCormick
asserts that the courts have begun to reject this barrier to
admissibility, although it still stands regarding opinion as a
matter of law. Ontario courts in particular have demonstrated a
willingness to overlook the ultimate issue doctrine. It is felt
that regardless of whether the expert witness evidence addresses
the exact issue the courts are to decide, that evidence is a
valuable and valid part of the proceedings (~cCalla 1981: 8 4 ) .
There is "no rule that opinion evidence touching on the very
issue the court has to decide is not permitted" (FOX 1972: 326) .
Perhaps the more problematic, yet not insurmountable barrier
to the use of expert witnesses' testimony based on public
opinion research surveys is the hearsay rule. All surveys must
technically be considered hearsay since they are presented to
prove the truth of an aggregate of responses from individuals
who are not present for questioning at the trial (~amont
1972-73: 146). The legal argument of hearsay proves especially
challenging in the case of certain methodological problems, as
when respondents are asked to indicate not only their viewing or
reading habits, but also those of their families. A statement is
recognized as hearsay if opinion research evidence is presented
to prove the truth of the statements contained "in the
~nverified statements or opinions of persons not called as
witnesses" (Sorensen and Sorensen 1953: 1231). The expert
witness is presenting the opinions of people who are not present
and are therefore not subject to oath or the test of
cross-examination (FOX 1972: 322).
There are two situations under which survey evidence can be
admitted and not considered to be hearsay. The first is the
situation where the evidence is given as proof that opinions do
exist, but not to prove the validity of those statements. In the
second situation a number of conditions must be met. First it
must be demonstrated that survey evidence is the best
alternative to present public or mass opinion. An example of
other alternatives would be to allow innumerable witnesses to
come before the court to state their views on community
standards. This is obviously not a viable or possible
alternative, and would succeed only in lending to the court the
atmosphere of a circus. Second, the opinions that are offered
must present the state of mind of the public, and cannot be a
result of shock or some temporary effect of an unusual event or
circumstance. Last, and perhaps most important, the evidence
I
must be obtained by research scientifically conducted with
sampling procedures which produce an accurate representation of
ifd
the community (Lamont 1972-73: 149). It is possible with the use
of expert witnesses to determine at the time of trial whether
the last condition has been met.
One can accept that the first situation is not hearsay at
all. The second situation has come to be known as the 'state of
mind' exemption to the hearsay rule. It has been asserted that
the state of mind of a community can be assessed precisely in
the same manner as the state of one's health (Fox 1972: 319).
This principle allows that as a psychiatric doctor can indicate
the mental condition of a person, so too can an expert in
another area testify to the state of mind of a community.
Jessup J. stated in R. v. Times Square Cinema Ltd. (1971)
7- -
that "no question of inadmissible hearsay arises because the
survey or poll is not offered to prove the truth of the
statements it contains, but merely to show the foundation of the
expert on community standards" (Lutes 1974: 44). This line of
reasoning neatly sidesteps the hearsay argument, but
unfortunately poses other disadvantages. In the case where it is
desired to enter a survey concerned with facts, the 'state of
mind' exemption is not useful. It has been posited that this
line of reasoning may allow the courts to woverlook technical
pitfalls which are more likely to occur in state-of-mind surveys
than in other types of surveys" (Stern 1969: 333). This
criticism does not pose any real threat since a review of the
cases that have accepted these types of surveys demonstrates
very stringent, perhaps 'harsh, criteria for survey evidence.
The theory behind surveys is that through the examination of
a representative part of a population one can gain knowledge
about the whole (Fox 1974: 222) . Opinion can be defined as "a
tendency to believe certain things about a given person, object
or event as well as the response to stimuli (questions) in terms
of the particular belief" (Sorensen and Sorensen 1953: 1215) .
opinion research surveys glean knowledge about subjective facts.
These subjective facts are a result of their holders' opinions
and personal experiences and backgrounds.
8 There are four general types of surveys. They are population
ZI
a
i, and sampling surveys involving verbal statements, and population
$
$ surveys and sampling surveys not involving verbal statements.
92
R
! The type of survey of concern to public opinion researchers is
6
1
the sampling survey involving verbal statements, and
nfortunately it is this type which suffers the most
ubstantially from legal difficulties (Zeisel 1960: 323) .
Scientific advances and the use of computers in the area of
ublic opinion research and statistical analysis have made this
pproach very useful to the courts. In recent times there have
een advances in survey techniques as well as in interpretive
kills necessary to understand the results (~amont 1972-73: 143;
Utes 1974: 45) . Whether or not public opinion polling is
tually a science has been questioned. More important questions
62
I seem to be whether proper statistical, social research and
interview techniques were employed in the research (Pox 1972:
321). Survey evidence was introduced through the ~anitoba and
Ontario
Ltd. and
--
(1971).
properly
Manitoba
Courts of Appeal in both R. v. prairie Schooner News
-- -
Powers (1970) and 5 5 Times Square Cinema Ltd.
This indicates a willingness by these courts to accept
introduced survey evidence (Fox 1972: 315). The
Court of Appeal has rejected evidence on the grounds
that did not have an adequate sample (FOX 1972: 318). It is
imperative that the sample reflect the 'proper segment of the
population' whose characteristics are to be studied (FOX 1979:
319).
Sample surveys are an attempt to measure the whole by
focusing on one part, which is to be representative of the
whole. Many methods are available for choosing this sample. Two
general categories of sampling methods can be identified. The
first is non-probability sampling, where the probability of a
person being chosen is not known. This approach is of limited
value to a public opinion researcher. The investigator cannot
generalize his or her findings beyond the sample studied or
claim that the sample is representative of the larger
population. The sampling error cannot be estimated either
The second type of sampling is known as 'probability'
Sampling. These methods yield samples which are useful because
sampling is the most common form of probability sample (Bailey
1978: 91). Random samples are involved when each person in the
has an equal chance of being chosen for participation
in the survey.
The ideal survey design would be a random probability sample
of all Canadians, with concentrated efforts in the larger
communities from each different major regional area (wallace
1973: 54). This would allow the researchers to detect any
possible differences between regions, between communities, or
between communities within a given region (Wallace 1973: 55). A
design of this nature is not always practical or feasible
because of time considerations and financial constraints.
Experts can determine whether distortion of a survey's
findings exists due to an improper sample selection. They are
also knowledgeable enough to determine the effect of a survey's
sampling error and how much of a distortion results (Fox 1972:
324). Buffer questions and lie scales are available to the
researcher to be used in assessing and balancing the effects of
distortions due to unintentional or purposeful incorrect
responses. The surveyor can respond to questions during trial to
justify the construct validity of his survey and prove that his
instruments do in fact measure
ther phenomenon (FOX 1972:
esign and methodology aspects
o satisfy the requirements
what is intended and not some
325). Both the results and the
of the survey can be scrutinized
of reliability and probability
1227). Proof of randomness is
easily established through the application of well known tests
- (sorensen and Sorensen 1953: 1247) . Scientific principles exist
~hich can be presented to determine if the research was
~onducted, evaluated and reported appropriately (Sorensen and
Sorensen 1953: 1221) .
There are some problems that accompany the use of any survey
evidence presented by an expert witness. Judges can use their
own verdict to decide if the survey has no probative value due
to bias or lack of representativeness. He or she can choose to
totally disregard the evidence if either is the case. It is not
necessary to throw out survey evidence altogether if problems
are identified. If defects are recognized they affect the weight
of the opinion of the expert because they are presumably what
the opinion is based on. One must always have a certain degree
of uncertainty with the use of samples. The degree of
uncertainty can be reduced to a very minimal amount. Rarely in
law do judges demand perfection. This is reflected in the
concept of 'beyond a reasonable doubt' (Stern 1969: 330) . Census
operations are considered acceptable as evidence, regardless of
the fact that they too are based on sampling techniques. The
Canadian population is one of great heterogeneity. Adequate
sample measurements are still possible with the use of a larger
sample (Stern 1969: 330) .
Small samples can be adequate, but the range of error will
change with the size of the sample. Freedman J.A. has
acknowledged that a very large sample might prove so expensive
that only very few could afford it. He emphasized that the
sampling size may affect the weight, but not the admissibility
of the evidence (Lamont 1972-73: 150).
It is the expert's task to enlighten the court on the
shortcomings of the surveys presented as evidence. If the survey
is directed at the wrong universe or an inadequate sample is
used it is the expert's responsibility to identify these
inherent problems. He or she can also comment on the manner in
which respondents were chosen and the effect of non-response.
The expert can direct the court's attention to difficulties
encountered in the interview situation and possible factors
which could have influenced the results (Stern 1969: 342).
The presentation of survey evidence is preferable to
bringing a number of laypersons before the court to testify to
their own personal standards of tolerance. A multitude of
witnesses would be required to adequately represent the
community. Surveys more accurately measure community standards
at the time of the alleged offence. Often there is a long delay
before a case comes to court, and the opinions or attitudes of
witnesses could change. Questionnaires can be distributed soon
after the time charges are laid. The recorded responses of the
survey respondents will not change, regardless of the
espondents' changes in attitude over time. Respondents can also
afford to be more candid in their responses than witnesses
before the court, since they can be assured of anonymity or
7
I
The production of surveys can be extremely expensive and
time consuming. The expense alone may prove prohibitive to many
individuals. It has been suggested that the court should appoint
or hire researchers for the express purpose of designing and
conducting opinion research surveys on the issue of community
standards. These referees could be retained as consultants for
the court (Sorensen and Sorensen 1953: 1231). Surveys conducted
by other individuals should still be considered acceptable. The
organizations whose business it is to conduct opinion research
are reputable and suitably impartial.
The courts should specify the standards for sampling size
and sampling error that they feel are acceptable (Stern 1969:
331). All survey staff should be available at the trial for
questioning on how the survey was conducted, and all survey
materials should be available as evidence, including the
sampling plans, questionnaires and other survey instruments
(Stern 1969: 345). An expert witness should present the survey
evidence, and if the survey is conducted during a litigation the
defence and prosecution should both be allowed to monitor the
development and execution of the survey. The identities of the
individuals who gave certain answers should be protected to
ensure that the questionnaires are answered truthfully with the
guarantee of confidentiality (Stern 1969: 338).
The fact that evidence is admitted and accepted by the court
does not guarantee that it will affect the decision. The judge
court and the judge's decision. In R. v. Great West News ~td.,
-----
Mantell - and Mitchel (1970) evidence used to describe community
standards of tolerance was judged to be admissible, but it was
stated that this was not the sine qua non of conviction (FOX
-
1974: 221). In R. 5 Prairie Schooner News Ltd. and Powers
---
(1970) Dickson J.A. stated that it is the function of the
judge
to consider expert evidence and then, if he feels for any reason
that it does not aid in a finding, he can dismiss it completely
(McCalla 1981: 81). Lawton J.A. stated that on many issues
concerning normal human nature and behaviour judges and jurors
are as capable as any 'expert' (McCalla 1981: 82). In the case
of -- R. v. pipeline - News (1971), Legg, D.C.J. held that evidence
submitted by the defence could be admitted, because it was based
upon surveys which met the strict requirements demanded by the
court. He subsequently attached no weight to them, however,
because the prosecution's expert witness suggested that a
suitable statistical methodology and research design were not
employed. The judge chose, instead, to apply his own subjective
standard. This had the same practical effect of holding the
evidence inadmissible (~amont 1972-73: 159).
Coons and McFarland (1985: 35-36) reviewed the shortcomings
f the research presented in these cases and stated "The courts
uite properly challenged the methods used in obtaining the data
nd the qualifications of the witnesses proffering them. Social
cientists, if they are to make a contribution in this area,
ust pay closer attention to the quality of the evidence they
68
,
propose to tender, and do a better job of persuading the courts
of the value that properly conducted scientific research can
have in the decision-making task."
In -- R. v. Pipeline News (1971) it was decided that the "judge
must in the final analysis, endeavor to apply what he, in the
light of his experience, regards as contemporary standards of
the Canadian Community" (Fox 1974: 222). The legal climate may
be changing however. Chief Justice Brian Dickson stated that the
trial judge had erred in --- R. v. Towne Cinema Theatres Ltd. (1980)
in applying his own subjective standard. It was suggested that
expert opinion was available from the provincial censorship
boards, and that those individuals associated with the boards
offered valuable advice on the issue of Canadian tolerance.
Although the judge has the option of rejecting any testimony, he
or she must have good reason for doing so. Dickson stated in
Towne Cinema Theatres ---- Ltd. v. The Queen ( 4985) at page 211 "this
inquiry, though involving judgments about values, must be
distinguished from the application of the trier of fact's
subjective opinion about the tastelessness or impropriety of
certain publications." It appears that the courts are more
willing to entertain expert evidence than they have been
previously. ~ickson's statement demonstrates that they are not
inclined to rely on the personal tastes and opinions of the
judiciary.
In Quest of Consensus: Researching Community Standards
C -
The courts have declared that we cannot look to the United
States to define current Canadian standards of community
tolerance. This means our Canadian researchers cannot follow
~merican findings in a determination of Canadian community
standards of tolerance. Nonetheless, it is still a useful
exercise to examine American attempts at determining community
standards in the U.S., since many of the difficulties
encountered by American researchers are shared by their Canadian
In one early effort, Wallace (1973) conducted a survey of
1,083 adult volunteers from the Detroit ~etropolitan Area. Using
hotographic stimuli, he discovered that no single standard was
sed to determine offensiveness. Respondents were subdivided
nto four groups: the church group, the social service group,
he professional group and the student group. Wallace's findings
upported the contention that in a community one could not
dentify a common attitudinal position with respect to erotic
aterials. If this was the case, Wallace predicted, he would
ave obtained greater between category agreement for his
ttitude items (wallace 1973: 60).
Wallace suggested that although a certain number of
ndividuals may label a particular portrayal offensive or
exually arousing, it is a different investigation altogether to
ind the degree of arousal or offensiveness of an image (wallace
70
,
1973: 61). Wallace stated that "any sample which is
heterogeneous with respect to age, education, religion,
religousity, sex, and sexual attitudes is unlikely to respond to
erotic stimuli with any unanimity" (wallace 1973: 65) . A mean
score could be statistically generated, but it would be
meaningless, given the between group differences in attitude and
rating of erotic stimuli. While theoretically one could create a
group of people who could arrive at a consensus in their
evaluation of visual erotica, or the dimensions relevant to the
legal concept of obscenity "the probability that such a
consensus will be obtained will decrease in a non-linear manner
as the size of the group increases linearly" (wallace 1973: 66).
Therefore, it appears as if the group size is positively
correlated with the degree of heterogeneity existing in a
community. The greater the heterogeneity, the lower the
likelihood of obtaining one community standard.
Brown, Anderson, Burggraf and Thompson (1978) used a sample
of 114 Americans who resided in a town in Idaho with a
population of approximately 43,000 people. They discovered that
various individuals used differing standards for what they
believed to be pornographic. Scores on a conservatism scale were
found to be the best predictor of judgements on pornography
(Brown et al. 1978: 94). Brown and his associates also found
that church attendance, an increase in age, and negative
attitudes towards sex and sexual materials were associated with
C pornography (Brown et al. 1978: 92-93). This is in accordance
p
with recent Canadian findings which suggested that variability
in age, education, geographical location, social sexual
attitudes and awareness are associated with variability in
judgements of acceptability of pornography (peat and Marwick
1984:17). Glassman (1978) discussed studies by Massey (1970) and
wallace, Wehmer and Podany (1970), and suggested that, when
taken together, these studies indicate that community standards
"follow a gradient of perceived sexual deviance" (Glassman 1978:
163). Although not inconsistent with the Brown et al. (1978)
findings, Glassman suggested that because of problems with the
sampling technique (nonrandom samples) the validity of both
these studies he has referred to is unknown.
In his own research, Glassman had difficulty determining a
community standard. The method he employed to determine the
omrnunity standard was simply to use majority opinion in each
ommunity type, or the median or fiftieth percentile. In doing
o, he discovered that the community standard was largely a
unction of the level of urbanization of the community (Glassman
1978: 167). Adults in urban areas were found to have the least
estrictive attitudes towards sexual materials. Glassman offered
touffer's (1955) explanation that this may have been due in
arge part to the diversity of social life that inhabitants of
ties enjoy (Glassman 1978: 167). Glassman found that suburbs
ere more restrictive than urban areas, yet less restrictive
han the rural community. This community type was identified as
72
,
the least liberal type.
Given the restrictions the courts have placed on the use of
survey evidence in obscenity litigations, researchers must use a
sample representative of the universe, which in this instance is
the Canadian population. Two rather extensive surveys have been
completed recently, one with the express purpose of determining
a community standard of tolerance for Canada.
Check, Heapy and Iwanyshyn (1985) designed a survey in an
attempt to determine the Canadian national contemporary
community standards. In addition to showing sensitivity to the
legal differentiation between standards of tolerance and
acceptance, the researchers paid particular attention to both
non-violent and violent pornography, in keeping with recent
theory and research emphasizing this dichotomy. An innovative
strategy was employed, whereby the survey was embedded within a
CBC diary on television viewing habits that was distributed
after telephone contact was made, employing the random digit
dialing procedure. Of the 2,104 respondents who agreed to
complete diaries, 1,079 (or 51.2%) were returned. This study
revealed a 30% difference between levels of tolerance and
acceptance of violent and degrading sex in the media. Ninety
percent of the sample found violent and degrading sex to be
unacceptable for their personal viewing, yet only sixty percent
wanted it completely banned. A similar differential was observed
concerning levels of tolerance and acceptance for consenting,
nonviolent sex (Check et al. 1985: 9). Over half of the
respondents did not find consenting sex acceptable, yet
three-quarters of the sample were willing to tolerate viewing by
other individuals. Levels of tolerance and acceptance were,
therefore, higher for consenting than for nonconsenting
depictions. The authors concluded that Canadians appear willing
to accept consenting sexual activity in the media, but not
sexual violence and degradation.
Indeed, definitional difficulties would seem to hamper
interpretation of the results considerably. The respondents'
answers to how often they watched sexually explicit programmes
on television reflects an apparent lack of consensus regarding
what is considered 'sexually explicit'. Six per cent of the
respondents reported that they watched sexually explicit scenes
on television several times a week, 9% viewed these programmes
several times a month, and 15% report watching them once a month
or so. This would seem to indicate a definitional problem with
'sexually explicit' because it is doubtful that any individuals
viewed sexually explicit material on Canadian television.
Check and his associates concluded that they had found
evidence for a community standard of tolerance. Sixty per cent
of their sample wanted violent and degrading material banned
completely. In contrast, only a quarter of the population would
ban consenting explicit portrayals of sexual activity that
involved no degradation or abuse of men and women (Check et al.
1985: 9 ) .
A second Canadian study in the community standards realm was
completed in 1984 by Peat Marwick and partners for the Special
committee on Pornography and Prostitution. These researchers
used a sample of 2,018 men and women aged eighteen and over,
utilizing scientific probability techniques "allowing unbiased
inferences to be drawn from Canada as a whole and for various
domains within Canada" (peat Marwick 1984: 1.3). This was
accomplished through stratification by geographic region and
community size, selection of interviewing locations, selection
of census tracks and selection of blocks. The researchers were
interested in the five issues areas of public concepts, use,
exposure, legal knowledge and policy options concerning
pornography. In contrast to Check et al. (1985)~ no negligible
difference was found between people's levels of acceptance and
their levels of tolerance (peat ~arwick 1984: 10).
Peat ~arwick discovered that the portrayal of sex combined
with violence was the least acceptable. Homosexual intercourse
was considered the next most objectionable (peat ~arwick 1984:
1 9 ) . Equal numbers of people accept pornography as do not accept
pornography. ~cceptability was found to be little influenced by
the media type, whether it be television, magazines or films.
The type of scene and the audience who was exposed to it were
factors that had the greatest influence on judgements of
acceptability. Peat and Marwick did not define 'pornography'.
The rationale behind this was that standards of acceptability or
offensiveness were inextricably entwined in what is defined as
pornographic. Terms such as 'adult entertainment magazines' and
'adult-only video cassettes' were used to denote sexual
materials or pornography (Peat Marwick 1984: 111.1). This poses
major interpretive problems, since 'adult' material could have
implied a wide range of materials.
In sum, surveys that have been done in recent years in the
hopes of obtaining a clear notion of community standards have
posed more questions than they have answered. It appears as if
one of the major difficulties of interpretation concerns the
lack of consensus as to the criterion that is to be applied.
Would a 51% majority intolerant of certain portrayals suffice to
have the material subject to criminal conviction? Herrman and
Bordner (1983: 356) claimed that the collective agreement
implied by consensus suggests more than a simple majority and
utilized the 'convention' of a two-thirds majority. Bell (1977)
argued t h a t the finding of a 50% agreement and a 50%
disagreement illustrates a perfect dissensus of opinion. He
stated that an agreement rate of over 75% is necessary to
demonstrate the existence of a consensus on any issue.
Another inconsistency among the research results prevails.
Some researchers are willing to accept results identifying
certain levels of tolerance, yet other social scientists insist
that one must look beyond the responses given to the
psychological processes involved. These individuals feel that
the same reasons or criteria must be used to decide the issue of
tolerance before a community standard can be stated. This
conflict in approaches must be resolved if we are to have any
consensus over the community standards issue.
The judiciary recognizes social scientific problems with the
concept. They, too, are dissatisfied with the community standard
of intolerance and have begun to voice their legal objections to
its continued implementation.
Dissent from Within: Judicial Discontent
Noonan ( 1 985: 320) contends that growing judicial
disenchantment exists with regards to the community standards
test of tolerance. The judiciary does not have an unanimous
opinion on the most appropriate method of deciding whether the
standard of 'undue' sexual exploitation has been breached.
Borins, Co. Ct. J. stated in -- R. v. ~icols (1984) at 57:
with due respect to those who have considered the
subject in the past... the time may have come when the
appellate courts may wish to reconsider the
interpretation of s.l59(8). .. It is, in my view,
significant that in interpreting "undue" the courts have
stepped away from the plain meaning test of statutory
interpretation.
Borins, J. elucidated upon his position that it is incorrect to
adopt the community standards test. He suggested that he was
unable to ascertain what the standard is or how to discover it.
The judge stated that he would rather adopt the plain meaning of
the word, yet he felt the community standards test was so deeply
ingrained in Canadian precedent that it would be necessary for
Parliament or the Supreme Court of Canada to change it. Other
judges have not considered these measures to be necessary.
Millard, Co. Ct. J. in -- R. v. Pereira-Vasquez (Martinez)
(~enegas) (1985) delineated:
where there is no difficult issue such as the balancing
of artistic integrity with the concept of undueness of
exploitation, it is unnecessary to deviate from the
plain meaning of the words.
He considered the ordinary meaning of undueness to be 'going
beyond what is appropriate, warranted or natural' or
'excessive'.
New Brunswick's Harper, P.C.J. made even greater motions
towards abandoning the community standards test of tolerance. He
introduced his view in -- R. v. Neil's Ventures Ltd. (19851, and
further developed and expanded on his position in R. 5 Lynnco
Sound Ltd. (1985). Harper, J. steadfastly refused to accept the
community standards of tolerance interpretation of s.159(8),
stating in -- R. v. Neil's Ventures Ltd. (1985) at 57:
There is absolutely no statutory foundation for the
"community standards" rule and this arose purely as
" judge-made" law.
With all due respect, trial and appellate courts
should perhaps reorient their thinking and in the future
abide by the clear wording of the statute.
Any publication ... which is entirely concerned with
the undue exploitation of sex should be ruled per se
obscene.
In R. v. Lynnco Sound Ltd. the same judge explained that
-- --
when the test was initially outlined by Judson, J. in R. v.
--
Brodie (1962) it was neither adopted or endorsed by the Supreme
court of Canada. Brodie's judgement was only one of the nine
judgements which culminated in a 5-4 decision. The test remains
without solid foundation based upon binding precedent.
heref fore, the New Brunswick Provincial Court held that the
'accepted standards of tolerance in the contemporary community'
should not exist as a test to determine obscenity.
~udicial criticisms of the community standards test revolve
around legal issues, such as the fact that the test is not
supported by precedent, but also rely on more pragmatic ones.
The test has been regarded as completely impractical and
impossible to objectively apply. Judges argue that exercise of
the test results in the removal of the judicial function of the
courts and completely disregards the plain and unambiguous
wording of the statute.
Notwithstanding these reproofs, it is unlikely that Harper,
J.'s notions will be widely adopted, given the jurisprudence in
this area. General, practical and ideological criticisms have
been directed at the community standards concept from other
segments of the Canadian community, however. Perhaps the
combined weight of these criticisms will be effective in
limiting the perpetuation of this legal strategy.
Inherent Limitations: Challenqinq - the Community Standards
Concept
The community standards concept has been
number of grounds. Many of the criticisms can
present obscenity legislation in general, but
to the notion of community standards.
If we are willing to recognize the use
standards test, potential distributors
criticized on a
be levelled at our
some are specific
of the community
and producers of
pornographic material must have the results of community
standards surveys available to them. It is not fair to assume
that they should be able to distinguish the obscene from the
tolerable. The present situation is inadequate, where no
consistent guidelines are available under which to operate. The
authorities do not work together on the issue of obscenity.
Knowledge that censor boards or customs officials have approved
sexual materials offers no guarantee that the holder of that
material will not be subject to raids and charges by the local
police department (~aite 1984: 20) . Although our obscenity laws
are federal and apply to all of Canada the laws enforced across
the provinces are not uniform (~arnett 1969: 27). The community
standard concept is subject to considerable regional variation.
The policies of the local police departments and the crown
attorneys' offices are the best predictors of whether charges
will be laid. This poses real problems for distributors, who are
undecided over what can be distributed in Quebec as opposed to
Ontario, for example, the latter of which has notoriously
stricter enforcement practices (~arnett 1969: 27).
Alternatively, Verdun-Jones (1984) suggested that the
community's dissensus of opinion over the proper role that
criminal law should assume in regards to obscenity is
responsible for the court's difficulty with the application of
community standards.
A contrasting but more plausible explanation for the
confusion that surrounds obscenity legislation has been
presented. It can be argued that the main problem with the
community standards concept is that we are not trying to
determine standards of decency at all. The meaning of obscenity
cannot be determined from the s.159(8) formula (Barnett 1969:
2 7 ) . The real use of the obscenity legislation is the protection
of the community from the harmful effects of pornography. But
because of the tremendous difficulty that has been encountered
in attempts to prove or disprove the harmful effects of
pornography, we must rely on other justifications, such as
preventing an offence to public decency. Barnett (1969) and
Price (1979) have both proposed that the actual issue of
community standards is the tendency of the material to deprave
and corrupt. The courts cannot clarify the issue of community
standards because the material's effect is of ultimate concern
(Price 1979: 324).
Hunter states that the s.159(8) definition of obscenity and
its interpretation avoids and does not directly address a more
important area of concern, which is not obscenity but
pornography (Hunter 1975: 488). Hunter distinguishes pornography
from obscenity by identifying pornography as that material whose
subject matter portrays other than consenting noncoercive
sexuality between adults. Obscenity, he asserts, concerns sexual
activity between consenting adults, regardless of the level of
explicitness (Hunter 1975: 482).
The community standards test could theoretically be
considered a flexible enough instrument to accommodate Hunter's
definition of pornography, given recent judicial acceptance of
feminist philosophies. Yet, King (1985: 1 ) submits that there
are serious problems with even the most 'feminist' of decisions.
She contends that these difficulties will recur as long as
material must be judged within the parameters of present
obscenity laws.
In other areas of the law, legal sanctions have been used to
influence public sentiment, not merely reflect it. There is some
support for the notion that community standards may not be the
most appropriate test for obscenity, because this is one area
where the law could be used to 'morally educate' rather than
just reflect the morals of a nation. This has been the case with
laws concerning areas such as racial discrimination (Glassman
1978: 1681, and most recently sexual discrimination (Dworkin
1985: 20). The prejudices which exist in our society should not
r
be reinforced by the criminal law. Pornography is regarded by
many as supporting a misogynist ideology. The purpose of the
law, it is proposed, should be to help eliminate, not
legitimize, that prejudice against women.
Community standards are recognized to be fluid and
contemporary. The argument has been raised that an increase in
hard-core material in our society could be accompanied by
individuals being able to tolerate greater deviance over time,
as a function of exposure. The distinction between hard- and
soft-core material is not well defined, yet 'hard-core material'
generally involves implied sexual activity with a focus on the
genitals, while 'soft-core' material is usually less explicit
(Gray 1982: 388) . The Ontario Area Caucus of Women have voiced
the concern that if hard-core sexually violent o r j
sado-masochist ic depict ions became more commonly portrayed, the ' P
I
community standard of tolerance would increasingly accept them \
(~oyd 1984: 33). Sometimes called 'creeping gradualism', this
phenomenon has been recognized and used by some publishers. More
extreme materials are presented because, by comparison, the,
publishers' usual wares seem less worthy of the criminal,
sanction. In this way the boundaries of the community standards,
test are stretched more widely over time (Fraser Committee 1985: l
269) .
Alternatively, community standards have been accused of
being merely another arm of the social control mechanism to
preserve the status quo. It is a means by which the 'moral
majority' protects traditional depictions of sexuality. Lawrence
submits that there is a tendency for censorship laws to attack
the work of serious artists who do not express ideal models
(Robertson 1979: 20).
A reflection of the contemporary values of a people is
undoubtedly an important consideration when dealing with such a
dynamic issue. One must question the appropriateness of such a
concept, however, when it is revealed that scenes of homosexual
activity are rated as highly unacceptable by Canadians, second
only to scenes of sex combined with violence (Peat Marwick 1984:
\
111.5). The community standards interpretation can be viewed as
a manner of preserving current sexual mores and norms by: /
1
preventing the dissemination of materials promoting or!'
j
describing non-conformist sexual behaviour, notwithstanding any
theoretical harm (Fox 1972: 193; McCormack 1983: 221).
1
1
1
1.
Willis claims the purpose behind (bscenity laws has been to i
reinforce cultural taboos on sexuality and suppiess feminism, ,
homosexuality, and other forms of sexual dissidence (1981: 226).
Hannon (1979: 7) agrees, stating "Obscenity laws are laws
k 7
without content. ike vagrancy laws they exist to be used for)
'-.
\P , I
political purposes only, to harass unpopular groups and censor
divergent opinion. "
Feminists contend that the community standards concept is a
- 7
i
sexist and discriminatory instrument in terms of gender and I
I
I
class (McCormack 1985: 278). The standard is determined by male 1
I
i
P
,
judges, and is typically based upon the experience of other men.
~t is not consistent with feminist notions of morality and
social harm (~ahoney 1984: 65).
McCormack suggests judicial recognition of the distinction
between hard-core and soft-core pornography represents a class
distinction and provides one law for the rich and one for the
poor. McCormack (1983: 221) contends:
Hard-core pornography is pornography that the critics
have declared is without artistic merit; it is
pornography of the inner city, of the slum and of the
deviant subcultures.
An elitest approach is problematic, yet an average of uninformed
i
attitudes may have a limited utility as an indicator ofi
\
community standards of tolerance (Shannon, J. 1985: 3 3 3 ) . \
I
i
McCormack questions whether the community standard criterion can'
be used "to counteract the tendency toward elitism and(
discriminat ion without acquiescing to the Philistine majority" 1
i ,
(1983: 221).
It has been suggested that the use of community standards
cannot be condoned. It is "not a proper function of criminal law
to suppress attacks on existing morality, when there is no
positive utilitarian justification for doing so" (Fox 1972:
193).
At the heart of the controversy concerning the
appropriateness of the community standards concept is the
question of whether community intolerance provides a legitimate
basis for criminal control (~oyd 1986: 277) . The concept has
r
r
been accused of lacking a principled foundation. The reasons
behind peoples' decisions on the tolerance issue are not
communicated. Therefore, it is difficult to determine if these
decisions are valid (Fraser Committee 1985: 269). It is proposed
that "decisions in respect to criminal charges should be made on
i
the basis of clearly articulated principles and not on the basis 1
i
L
of majoritarian impulses" (Fraser Committee 1985: 269). 1
consequently, serious challenges to the community standards
concept in the form of legislative alternatives are being
proposed. These approaches are deeply rooted in and reflect
specific ideologies and philosophies.
It remains true that in contemporary Canadian law, the
single most important variable in the Supreme Court's
interpretation of our present obscenity legislation is the
community standards test. Community standards are stated to be
contemporary national standards of tolerance. They are
empirically testable, and although fluid in nature, can be
measured at any one point in time. The results of public opinion
research surveys cannot be considered completely accurate with
zero probability of error, but, done properly, they are the most
comprehensive and representative method available to the courts
at this time for determining an average of Canadian thinking. If
the law of obscenity could be modified, it would prove
beneficial if the laws for accepting evidence were made less
restrictive.
I The legal definitions should be analyzed and perhaps
reformulated to allow for a more systematic assessment of
community standards. Judges should be advised that by making the
requirements for survey evidence too stringent they are
effectively preventing the courts from receiving the benefits of
scientific techniques. Social scientists can be very useful in
obscenity litigations in the capacity of expert witnesses. There
is a great need for more research to be completed determining
community standards of tolerance to obscenity. Social scientists
should make every effort to improve upon the quality of evidence
that has been introduced, and familiarize themselves with the
. standards the courts have adhered to concerning survey evidence.
Guidelines for the design and production of public opinion
surveys concerning community standards of tolerance should be
created and presented to help eliminate the confusion in this
area.
Yet cosmetic modifications dedicated to enhancing the
accuracy of assessment of community standards will not redress
the inherent limitations in the test. Fundamental changes must
be instigated. Legislation concerning sexually explicit
materials must address contemporar concerns and isolate the
problematic aspects of pornography. he standard of intolerance
4 I i
as a basis for criminal law is intrinsically problematic, anq
I
yet the abolition of it would do little to improve the vague and
I
I
subjective nature of s.159(8). Criticisms of the communityi,
standards concept and our present obscenity legislation are
i
shared by many individuals with diverse interests. A major
overhaul of the existing legislation has been advocated by
various factions. Convincing alternative interpretations of the
<
existence of pornography in our society and methods to combat it
have been presented by proponents of the feminist perspective.
his political division tends to emphasize the consideration of
individual and social harm in its strategies. Feminists
reformulate the notion of pornography and provide an interesting
2
framework in which to scrutinize this phenomenon. ..
/
\ A discussion of pornography inevitably leads to a discourse
\
on harm. This harm can be conceptualized in a number of ways:
harm to society,
--'--- -.,-
~roduction of pornography, and harm to those rho consume it. The
A " -
research that has been conducted in this area is confusing and
contradictory. t is unclear what the effects of pornography
are, and whether they are, in fact, danger0 Moralists, civil
libertarians and feminists present different arguments
concerning the harm that is allegedly produced by pornography.
The tradit
C__
often called the Right,
/ promotes the belief that pornography is portrayal of sex for
.I purpose& other than procreation, and is therefore inherently
evil.. Pornography leads to, and signals, the terioration
\S\f;l
of society. Diamond ( 1981: 192)Ggests e traditional
: view purports that the problem with pornography is that it
destroys the virtue of the reader or consumer. ~oralists believe
it is a base pleasure which is improperly substituted
for more
oble ones. The potential 'victims' of pornography, focused on
in the fednist perspective, are not of primary importance to
he traditional moralists. For this group, a discussion of
ornography is strictly a discussion of sexually explicit
aterials, and their effect on
argue that the research has not
demonstrated a definite link between pornography and
aggressive
behaviour. Until this link can be be firmly established, civil
libertarians assert that a graver concern is the harm that would
result from constraint of the free dissemination of ideas.
pornography is considered an expression of ideas and values and
must not be prohibited. The feminist perspective agrees that
pornography expresses ideas and values, but isolates these
representations as dangerous and harmful to women (Jacobs 1984:
9).
rspe~tive'~shares some commonalities with the
n that feminists concur that pornography is
\"
damaging$ Feminists are interested, however, in the effect of
pornography on individuals other than the consumer (Diamond
1980: 192). ower and coercion, not sex, are the central issues
The similarities between the two groups are concluded upon this
point, as the feminists have developed a philosophy and ideology
of the condition of women which identifies pornography as an
important issue. Dworkin states that a discussion of pornography
is crucial because pornography "completely perpetuates the 9
/
sexual possession of women by men. It is propaganda for and a
tool of sexual suppression of women" (~ilson 1980: 26).
Pornography is, it is suggested, a by-product and device of
patriarchy and male domination to keep women subservient.
@ornography dehumanizes, objectifies and degrades women for this
purpose. The result is an inferior status for women in our
i*
t $
I
society. 'some feminists contend that the research that has been
conducted concerning the effects of pornography is supportive of
,
a link between pornography and aggression. A growing number of
feminists feel that scientific verification of the link is not
essential to demonstrate that pornography causes harm to women.
pornography reflects the position of women in our society. It
can be perceived as a microcosm of the power imbalance and
systematized coercion and violence that is routinely practiced
upon women.
z
>, Even this analysis of pornography is being questioned. A new
-
w3ve eL.femin.ism-- i s rejecting the traditional feminist 1
interpretation of pornography/~exist representat ions and the /
/ J
relationship between fantasy and pornography are offered as
subjects deserving investigation. Pornography may not be the
most appropriate focus for the feminist movement. It distracts
attention from real violence against women, and increases the
likelihood of a misl erpretation between feminist concerns and
p'
goals of the right\~he new wave of feminism does not regard the
censorship of pornogra "b hy as providing any ineluctable solutions
C
to sexist representations or sexism. This
posture is not due to an alignment with the civi
but a fear that within a patriarchal society, any censorship
laws will ultimately be used against women and their political
I
objectives.
L".-./
Images of Women in
Feminists have
medium of communication that harbours specific misogynist,,,
Pornography: Objects, Animals - and Masochists
posited that pornography is a particular"
themes. It is an important focus of concern for it promotes andJ
s violence against women. Rape and wifebattering are
' 1
u
crimes that demand immediate remedies, yet long term solutions
are unavoidable if we are to improve the condition of women. The
images which feminists rebel against promote a climate in which
these criminal acts are made possible (Lederer 1980: 16).
Although the films, books and pictures may have different
packaging, they share some common characteristics.
theory objects to the images of women; the way women and their
bodies are portrayed. Women are described as objects, animals or
masochists, and do not exist outside the whore/madonna duality
in the pornographic image3
As objects, they do not exist in and of themselves, but only
,'
to serve men. They have no purpose other than a sexual purpose
/
(Griffin 1981: 38). Griffin advances that "For what the:
\
pornographer's mind believes he loves is the body of a woman and,)
not the woman. It is her flesh alone he prizes" (Griffin 1981:
37). Russell (1980: 24) describes objectification as the
portrayal of women not as human beings but as things. Women are
merely commodities within pornography, and reduced to their
various body parts, whether genitals, buttocks, legs or mouths
workin in 1985: 10). (Woman are represented in pornography as
objects to be sexually exploited, manipulated and enjoyed
(~acobs 1984: 24).
Feminists assert another characteristic of pornography is
that women are depicted as bestial. Women are illustrated as
animals, they are not denoted human status. Griffin (1981: 26)
proposes that by seeing women as animal we are seeing them as
closer to nature, therefore lacking a spiritual dimension. Women
are given animal names, such as bunny, chick and beaver. They
can be pictured as tame pets or wild creatures. Animals can be
chained, caged and trained. They can be whipped and bezten.
Frequently women are portrayed as engaging in sex acts with
animals, reinforcing their bestial nature (Jacobs 1984: 17).
Not only are women characterized as existing solely to be
W e d by men, they are shown as enjoying the situation. Women are
Portrayed in pornography as masochistic. Dworkin addresses the
masochistic myth as "the most enduring truth of pornography"
(1979: 166). The average woman is presented as warranting,
enjoying and encouraging sexual violence against herself.
Dworkin considers female masochism in pornography to be "the
ideology that justifies force against women, and at the same
time makes that force invisible" (1979: 1 4 8 ) . I f a woman
encourages violence against herself then she vindicates all
those who aggress against her. Women are depicted as basically
masochistic and in need of male domination (Eart b Jozsa 1980:
2 1 5 ) .
Susan Brownmiller (1980: 3 2 ) contends that "females in
pornographic genre are depicted in two clearly delineated roles:
as virgins who are caught and "banged" or as nymphomaniacs who
are never sated." She discerns that the most popular image is
the blending of these two characterizations. The innocent
female, once raped, becomes the dependent sexual slave through
choice (1980: 32). Dworkin feels the catchwords '~adonna/~hore'
or 'Good ~oman/~ad Woman' do not correctly address the message
of pornography. The terms are not mutually exclusive, nor do
they refer to two sides of the same coin. Dworkin argues they
"are not really distinct because they are applied simultaneously
or sequentially in any proportions to any woman in any
Circumstance" (Dworkin 1979: 1 4 8 ) . Griffin (1981: 21)
acknowledges the same images. The virgin in pornography,
although 'pure', has rejected men through her chastity. Her rape
is punishment or humiliation, and thereafter she develops into
her real self, the whore. The virgin was actually a whore all
along.
The Function of Pornography: oppression as Sexual ~iberation
- - -
The feminist perspective relates a particular purpose to
pornography. Women are objectified, degraded and humiliated in
Pornographic materials as a function of male domination. ~iamond
(1980: 192) suggests that feminists do not view pornography, and
t he depiction of females within ir, as a male fantasy. She feels
i t has a basis in reality and is a reflection as well as a
mechanism "that has sustained the systematic domination of women
by men throughout history" (Diamond 1980: 192).
The image of woman as whore is a predominant theme in our
culture, and central to the concept of male donination. Dworkin
states:
The ideology of sexual domination posits that men are
superior to women by virtue of their penises; that
physical possession of the female is a natural right of
the male; that sex is, in fact, conquest and possession
of the female...that the use of the female body for
sexual or reproductive purposes is a natural right of
men; that the sexual will of men properly and naturally
defines the parameters of a woman's sexual being, which
is her whole identity. The metaphysics of male sexuai
domination is that women are whores (Dworkin 1979: 203).
This feminist formulation of the pornography experience is a
relatively recent phenomenon. One of the first theorists to
Present this analysis of pornography, and its roots in our
Culture, was Kate ~illett. Her book, Sexual politics ( 1 969), has
been touted as the catalyst for the recognition of the primacy
of patriarchal power and the violence in pornography (Diamon?
1980: 190). Millett regards patriarchy as a status category with
Political implications (Millett 1969: 2 4 ) . Millett defines
Politics as "power-structured relationships, arrangements
whereby any group of persons is controlled by another" (~illett
1969: 23). The relationship between the sexes can be seen as a
relationship of dominance and subordinance, with females
Occupying the latter position (1969: 2 5 ) . Because our society is
a patriarchyr men rule women as i f i t was some assumed
birthright.
The assumption of patriarchy in our society is problematic
for feminist theorists. Millett describes the extent of the
difficulty with patriarchy:
Perhaps patriarchy's greatest psychological weapon is
simply its universality and longevity. A referent
scarcely exists with which it might be confuted. While
the same might be said of class, patriarchy has a still
more tenacious or powerful hold through its successful
habit of passing itself off as nature. Religion is also
universal in human society and slavery was once nearly
so; advocates of each were fond of arguing in terms of
fatality or irrevocable human "instinct" even
"biological origins". When a system of power is
thoroughly in command, it has scarcely need to speak
itself aloud; when its workings are exposed and
questioned, it becomes not only subject to discussion,
but even to change (1969: 58).
The departure point for feminists, then, is the examination
and scrutinization of patriarchy, and one of its major devices
of male domination, pornography. Pornography works as a device
to objectify and liken women to beasts, thereby dehumanizing
them. or in pornography, to be female is to be less than human.
The major theme of pornography can be identified as male
Power, and the degradation of the female as the means of
in Pornography is a subordinate ref rain, because the degradat ioc
Of women prevails for the intention of affirming, and triumphing
in male power (Dworkin 1979: 2 5 ) .
Dworkin states:
Male power, as expressed in and through pornography, is
discernible in discrete but interwoven, reinforcing
Strains: the power of self, physical power over and
againstothers, the power of terror, the power of
naming, the power of owning, the power of money, and the
power of sex (1979: 24).
Men possess a self, an autonomy, an identity, while women lack
it. Men harbour physical strength, and are rewarded in our
society for strength. Women are not valued for being strong. The
female cultural ideal is a slim, frail female who lacks
Strength. Through man's possession of self and strength, he has
the capacity to terrorize women. This power of terror is
realized in the potential for, and actuality of wife abuse,
battery and rape. Men also maintain the power of naming. The
Power of naming includes the ability to define, and give meaning
to, as well as the power to ridicule. Men have the power of
owning, while women traditionally have been owned as chattel.
The power and control of money is predominantly a male domain,
while the power of sex is expressed in virility. Through sex,
men conquest and express their power. All these eiements of
Power combine to constitute male power, and are expressed
throughout pornography.
From an economic perspective, pornography is considered a
Primary manifestation of sexist attitudes responsible for
slow integration into the economic framework. An
economist discussing women's devalued station in the economy
insists:
Only an intrinsically sexist society could
wholeheartedly support (financially and legally) the
vclume of pornography available. Pornography is the most
visible/virulent form of sexism that may continue to
Segregate women's abilities from the economic mainstream
long after legislation protecting equal pay for work of
equal value, or prohibiting sexual harassment or even
encouraging affirmative action is in place and being
protected (~raser committee 1985: 69).
Sexism can be defined as "attitudes and social practices based
on the assumption that sexual inequality is a natural,
biological universal phenomenon rather than a social and
historical one. This assumption supports a sexual division of
labour and a wide range of discriminatory legal, political, and
economic practices, policies, and traditions" ( ~ c ~ o r m a c k 1978:
545). The sexism which is evident in society is reportedly
manifested in pornography. It may be argued that in a society
where women were indeed considered equal to men, pornography
would not flourish to the same degree. Equality in the economic
framework would be translated and reflected in alternate images
of women, changing the form of sexually explicit materials
irrevocably. Longino postulates that pornography invites
tolerance of the social, economic and cultural oppression of
women, Longino insists that " A cultural climate which tolerates
the degrading representations of women is not a climate which
facilitates the development of respect for women" (Longino 1980:
5 4 ) .
Male sexual domination is visible in pornography, but i t is
identifiable within many other institutions of control. within
l aw, marriage, prostitution, health care, tne economy, organized
religion and and systematized physical aggression against women,
experience and learn male domination wo work in 1979: 203).
can be conceptualized as a social control mechanism
suppressing women in a subordinate posit ion (~iamond 1980:
188). Diamond maintains that pornography functions as a means of
preserving the status quo. I f this were indeed the case,
pornography would be expected to increase at a time when women
were becoming more socially mobile in our society, and improving
their status. Feminists assert that this has been realized. An
increase of pornography was documented in the late eighteenth
century. Kenyon asserts this phenomenon was at least partly due
to the beginnings of the emancipation of women. As the social
status of women improved, pornography committed to the
degradation of women flourished. Kenyon suggests that the
further threat of the women's movement may be responsible for
the recent increase in pornography enyo yon 1975: 2 2 6 ) . Ellen
Willis views aggressive pornography, in particular, as a
Political phenomenon that results in a form of backlash against
Women (willis 1981: 219). Diamond (1980: 192) submits that not
only the quantity, but also the quality, of pornography is
altered by women's attempts to modify the status quo, with an
increase in vioient depictions. Diamond concedes that she is not
able to offer any systematic quantitative evidence to prove her
contention, yet she argues that i f we refuse to accept a sexual
hierarchy in which women are subordinate, no answer exists in
which to explain women's continual victimization (~iamond 1980:
2 0 1 ) . Pornography survives as an instrument to reassert male
dominance.
With the sexual revolution of the 1960's and 1970's there
Was a great increase in the amount of pornography being
introduced into the market. Sexual freedom was being equated
with a lack of control on representations dealing with
sexuality. At the same time however, women were beginning to
form feminist groups and lobby for increased determination over
their lives. Wilson asserts the women's liberation movement
originated as a rebellion against stereotypes. Even within the
revolutionary movements of the left, women were not confered a
status equal to that of the men (Wilson 1983: 171). Dworkin
identified the misogynist attitudes the counterculture of the
sixties inherited from the previous generations, and Robin
Morgan was responsible for drawing public attention to the
anti-female expressions in the hippie underground papers
(~iamond 1980: 190). ~ o b i n Morgan (1970: 123) objected to the
sexism which she saw as pervasive among her associates, and
Stated " A genuine Left doesn't consider anyone's suffering
irrelevant or titillating." Dworkin maintains that the women's
movement was formed on the recognition that men commit acts of
forced sex against women systematicall-y (~ilson 1982: 24).
One explanation that is proposed for the resurgence of
Pornography in response to increased social standing by women is
that men are really in fear of women. Women are supposedly
Portrayed as helpless in pornography because men are terrified
Of female power in society ( ~ u r i e 1980:171). Susan Griffin
(1981 : 13) identifies our culture as possessing a pornographic
mind. That mind is in terror of woman, nature and eros or love.
Men desire women, but deny that part of themselves. Men dread
and deny that part of themselves which is part of nature. They
project their desire onto women. Women are, therefore,
considered evil and wanton. They tempt men, and are responsible
for men's lust for them. Griffin suggests that men try to
separate themselves from the fear and desire they experience,
and therefore project those feelings onto women. He hates those
elements of himself, and gazing upon them in the image of women,
his rage is incited. Women's images become degraded, humiliated
images as a result of man's initial fear of himself and his
helplessness (Griffin 1981: 19). Women are viewed by Griffin as
being silenced by pornography, for the images of women are not
communicating the language of nature and eros. Pornography
becomes culture's revenge against nature, of man humiliating the
nature in himself. upon the embodiment of nature: the image of
woman (Griffin 1981: 13).
The utility of pornography is not restricted to social
control. Chesler analyzes the sex fantasies in pornography. She
identifies the common rape fantasies as supporting men's
superiority and women's unconstrained availability. But the
fantasies within pornography also become a way of denying and
Preventing violence towards other males (Chesler 1980: 1 5 7 ) .
Dworkin presents this alternate conceptualization of the
function of pornography. ~t cannot be completely separated from
the all encompassing function of preserving male domination, but
contributes to it.
Dworkin contends that men do not aggress against other males
in the same manner as they do against woman. This behavior is
not reinforced by society, and could be detrimental to the
continuation of male domination. Aggression against other males
could damage male power, because other men have the ability to
retaliate, while women have been effectively silenced. work in
states "one to one sexual combat between fathers and sons would
rend the fabric of patriarchy" (Dworkin 1981: 59). Dworkin
questions why the sexual abuse of male children within a
household is relatively uncommon compared to the sexual abuse of
young girls by fathers, stepfathers, near relatives and friends
of the family. Male children develop into potentially dangerous
adversaries, and men would jeopardize their own positions by
aggressing against them. This is not to say that the criminal
sanction is not available to deal effectively with violence
against women. Dworkin comments:
Rape of women, battery of wives, forcible incest with
daughters, are also proscribed by male law but are
widely practiced with virtual impunity by men. The k?y
is not what is forbidden but in what is sanctioned,
really and truly sanctioned. Sexual violence against
women and girls is sanctioned and encouraged for a
purpose: the active and persistent channeling of male
sexual aggression against females protects men and boys
rather effectively from male sexual abuse (Dworkin 1979:
57).
This interesting argument implies that the abuse of women
augments, shields and protects male interests.
Pornography accommodates this aim by advocating violence
against women. ~n a climate in which women are viewed as objects
Or things, rape and violence against women are the result. Men
are educated to have this perspective on women. It is more
difficult to aggress against a human being than an object.
People become desensitized to the images of women being harmed.
It becomes less abnormal when the violence occurs in an
individual's life usse sell & Lederer 1980: 25). Dworkin (1985:
15) states "those who can be used as i f they are not fully human
are no longer fully human in social terms; their humanity is
hurt by being diminished."
Clark fortifies the argument that pornography is
intrinsically offensive to the dignity of women (1983: 53). Like
Dworkin, she regards pornography as a method of socialization
and a type of morality stressing female passivity accomplisned
through male violence. pornography can harm men "because it
encourages men to combat feelings of inadequacy and low
Self-esteem by being aggressive and sadistic" lark 1983: 56).
Men are also demeaned in pornography, but they have many
more positive images to use as reference ( ~ c ~ o r m a c k 1985: 199).
Garry maintains:
it is generally harder to degrade men sexually or
nonsexually than to degrade women. Men and women have
grown up with different patterns of self-respect and
expectations about the extent to which they will be
respected and the extent to which they deserve respect
or degradation. The man who doesn't understand why women
da not want to be treated as sex objects (because he'd
sure like to be) would not think of himself as being
harmed by it (Garry 1978: 4 1 2 ) .
Few individuals would deny that pornography is demeaning to meR,
although the effect and meaning of that degradation may be
different than the exact degradation of women, due to the
relation between the sexes.
Longino (1980: 43) maintains that many representations are
degrading to women, but one must look beyond this point to the
contextual features in an ascertainment of pornography. Material
is pornographic when it represents or describes sexual behaviour
that is abusive to the participants, in a manner designed to
endorse or recommend the degradation (~ongino 1980: 43).
According to Robin Morgan, "Pornography is the theory, and rape ,'
is the practice" (Morgan 1968: 169), and pornography is no more
than sexist propaganda. Susan ~rownmiller conceptualized the
philosophy of rape and the philosophy of pornography as
virtually indistinguishable and identical. In Brownmiller's
terms "Pornography is the undiluted essence of anti-female
Propaganda" (Brownmiller 1980: 32).
Propaganda can be defined as:
2. any systematic, widespread dissemination or promotion
of particular ideas, doctrines, practices, etc. to
further one's own cause or to damage an opposing one.
3. ideas, doctrines, or allegations, so spread: now
often used disparagingly tc connote deception or
distortion (Guralnik 1984: 1138).
La~elle (1980: 175) defines propaganda in an attempt
women. She argues that pornography employs eight techniques to
discredit.
women and promote solidarity among men. These methods
include the use of stereotypes, name substitution, selection,
lying, repetition, assertion, pinpointing the enemy and an
appeal to authority. The use of stereotypes refers to the way
women are portrayed. They are seen as unintelligent, bestial
whores at nature, who are no more than a sum of their body
parts. These themes are repeated constantly, and pedantically.
The name substitution involves the slang derogatory names that
are reserved for women in pornography, such as tramp, whore,
slut and bitch.
Selection and assertion are similar techniques which are
employed in the creation of propaganda. Selection is where only
certain chosen 'facts' are presented to the consumers, such as
information on why pornography is good for people and why women
do not necessarily mind being raped. Assertion is a more
Straight-forward technique where the marketplace is flooded with
the presence of pornography, thereby legitimizing itself. Legal
action, such as the protection of free speech, is invoked to
defend pornography's presence. An 'appeal to authority' is
illustrated by Playboy's interviews with influential persons and
legitimization through serious articles. It is also accomplished
by using history or science to prove why pornography's view of
sexual relations is the correct one. Feminists strongly object
to attempts by some disciplines to support notions that sexual
is normal, or that it is natural for women to occupy
a subordinate position. Some sociobiologists endeavour to draw
Parallels between animal behaviour and human social behaviour.
Steinern ( 1980: 3 6 ) suggests that the purpose of these
'ndividuals becomes illuminated by the animals and behaviours
they choose to focus upon. Dworkin rebuffs sociobiologist
arguments with the statement "a multitude of insects may be seen
to indicate either a new militancy or a new desperation on the
part of those who look to other species to justify male
domination" (Dworkin 1979: 135).
Lying is yet another technique used to develop the
misogynist propaganda. Pornography tells lies about women ( ~ i c h
1980: 316). It misrepresents women's sexuality and encourages
rape myths and other mistruths about women's masochistic nature.
LaBelle contends that although misogynist propaganda is familiar
to all in our culture, it is rarely recognized as such. The
ideas pornography promotes are so insidious and common, they are
accepted as entertainment and not as contributing to the
Propagation of male supremacist ideology (La~elle 1980: 178).
Pornography has been referred to as an $8 billion trade in
sexual exploitation in the United States alone worki in 1985:
10). By any standards it is considered a lucrative industry.
Pornography is created for a profit, and what sells in a sexist
society is lies about women and sex usse sell & Lederer 1980:
2 7 ) .
Pornography is not only charged with advocating and
engendering violence. worki in (1985: 9 ) holds pornography to be
an act. Susan Griffin conceptualizes pornography in the same
manner. She views pornography as a harm in itself, whether cr
not it results in violence to women. She identifies pornography
as equivalent with sadism. ~umiliation is recognized as the crux
of sadism. Degradation is the essence of pornography, and its
images degrade and humiliate women. Therefore pornography in
itself is a sadistic act ( 1981: 1 1 1 ) .
There is no consensus concerning the status of pornography
as sadism. There is, however, general agreement among many
feminists that pornography is an antecedent to harm against
women. This sentiment is reflected in much of the feminist
literature. Some authors defer to the results of research in the
area to support their arguments.
Effects Pornography: Good, the Bad
--
and
-
the
- Ugly
During the last twenty years concern has grown over the
impact of pornography. The effects of pornography are registered
upon the consumers of pornography, society, and upon the
Participants themselves. There is a paucity of research dealing
with the participants in pornography's production, while a
number of federal commissions from Canada, the U.S.A. and
England attest to the interest in the effects on consumers and
society.i,~n examination of the empirical studies on pornography
reveals an inconsistent body of research which produces
*
inconclusive results. The central concern is that porno9raphy
consumption will lead to violence against women. No definite
link can be ascertained between pornography and aggression, or
Pornography and rape, notwithstanding many provocative studies.
Researchers have generated considerable interest in the
effects of pornography. There are indications that pornography
may have positive consequences as well, but these arguments are
even less convincing. Sexist research, inadequate models and
methodological problems have plagued the enquiry into
pornography's effects, shouldering the blame for the incoherent
state of the research.
Participants - in Pornoqraphy Production
Little is known about those who participate in the creation
of pornography. Organized crime is sometimes implicated or
considered responsible for much of the production. It is often
difficult to substantiate this claim, given the limited body of
knowledge concerning pornography's manufacture (McKay & Dolff
1984: 5 2 ) .
The effects of the production of pornography on the models
is another vastly underresearched area. There are suggestions
that being involved in pornography production is physically
damaging to participants (MacKinnon 1985: 3 3 ) . Feminist ideology
is highly concerned with the condition of women in general, but
theorists do identify the participants in pornography as subject
to many potential and actual harms. It is suggested that models
are often coerced into participating in the production of
Pornography, not only economically, but physically (Russell &
Ledersr 1980: 28). The exploitation that these women are subject
t o can result in adverse effects on their mental health, and
lead to social ostracism and alienation (Fraser Committee 1983:
30). Lederer (1980:57) presents an interview with a former
pornography model and documents the abuse this woman
experiences. She advances that this woman's ordeal is not
atypical, and that new evidence and research is available to
support her testimony. There is every indication that this group
of persons is subject to a great deal of harm, yet no
systematically collected data is available to support the
proposition. The nature of this avenue of employment increases
the opportunity for the contraction of disease and also the
potential for violent coercion, yet:
Although a number of retrospective, anecdotal and
(auto)-biographical accounts of individual participants
have appeared in various popular media during the past
decade, it is not entirely clear as to the
generalizability of this qualitative material to the
experience of other participants (Mc~ay & Dolff 1984: 53).
Hopefully, future research will illuminate the condition of the
men and women who are involved in the production of pornographic
material, and provide some insight into their experience.
Yaffe (1979: 91) cautions that a peculiar kind of moralism
i s in operation when individuals discuss exploitation in
Pornography production. One runs the risk of assuming that all
models must have been victim to coercion, because involvement in
Pornography appears so distasteful. Researchers must refrain
from projecting their own value judgements onto those they are
attempting to 'help'. The issue of coercive tactics and
in pornography production deserves further
but must be accompanied by an open-minded approach.
More intensive study has been focused on the effects of
pornography on consumers and their potential victims.
The Elusive Link
-
A great deal of research has been concentrated on the
elusive effects of pornography. Many researchers feel that this
attention to the impact of pornography is unwarranted. It is
suggested that the majority of the population does not
incorporate pornography into their daily lives. Any contact with
it is usually an uncommon, unimportant event, compared to the
many other forces that act upon individuals. McCormack (1984)
displays bewilderment with regard to the fascination that the
pornography issue attracts. Many other critics have echoed this
sentiment, and have remonstrated that the concern enjoyed by the
Pornography issue far outweighs any proven or potential effects.
An absence of any strong evidence of behavioural consequences
Persists (McKay & Dolff 1984: 40).
Public attention could be partly due to the recent
augmentation of sexual violence in pornography. There are
indications that the levels of violence and sexual violence in
Pornography, and more mainstream entertainment, are on the
increase. Smith (1976: 19) observed a definite increase in the
explicit sexual content of paperbacks that were available to the
general public. ~n approximately one third of the episodes some
degree of force was utilized to persuade the, usually female,
victim to acquiesce to the aggressor's intentions (Smith 1976:
22). Malanuth and Spinner (1980: 226) documented a significant
increase in sexually violent pictorials in popular magazines.
This increase should not be exaggerated, however. By the last of
the five years of the study, only 5% of the pictorials were
regarded as sexually violent. McKay and Dolff (1984: 96) did not
find adequate evidence to support the contention that the
violent content in pornography had significantly increased,
although public sentiment may not reflect the vigilance of these
researchers. Violent pornography may be increasingly available,
but there is very little evidence to justify this assertion
( M C K ~ Y & Dolf 1984: 9 5 ) . The development of technology nay have
swayed the public's view on the extent of the 'pornography
problem'. A 'playboy' channel, bringing pornography into
people's homes, as well as the popularity of video cassettes,
may have added to the perception. Electronic transmissions,
inzluding satellite or telephone 'dial-a-porn' have been
described as significant problems (~overnment 1986: 61). The
suspected increase in media sexual violence, combined with a
variety of recent studies implicating pornography as a causal
element in aggression, may have helped to heighten interest in
Pornography effects.
International Concern
Various countries have recently demonstrated an interest in
the impact of pornography on consumers, and concern regarding
the resulting impact of these consumers on others. Among those
countries are Canada, the United States and England; producing
the Fraser Report, the Badgley Report, the U.S. Report of the
Commission on Obscenity and Pornoqraphy, the Meese Report, the
Longford Report and the Williams Report. All the committees were
partial responses to a fear that pornography is a noxious
substance in society. There is a certain anxiety that one of two
things will happen i f people view pornography. There is a belief
that exposure to pornography will increase the likelihood of an
individual engaging in violent behaviour, or that people will
become sexually aroused by the material they are studying, and
try to imitate the depictions, resulting in an increase in
crimes pertaining to sexual assault (Fraser Committee 1984: 22).
A discussion of the research concerning pornography
inevitably leads with a reference to the findings of the 1970
U - S . Commission on Obscenity and Pornography. The U.S. Congress
felt that the pornography problem was an issue of national
concern in 1967, and made provisions for the formation of a
to assess and comment on the extent of the problem.
The report states that pornography actually has few proven
@ffects. Concerning exposure, the report states:
In general, established patterns of sexual behaviour
were found to be very stable and not altered
substantially by exposure to erotica (Commission on
Obscenity and Pornography 1970: 25).
The connection between pornography and violence was explored
by
the commission. They state:
In sum, empirical research designed to clarify the
question has found no evidence to date that exposure to
explicit sexual materials plays a significant role in
the causation of delinquent or criminal behavior among
youth or adults. The Commission cannot conclude that
exposure to erotic materials is a factor in the
causation of sex crime and delinquency (Commission on
Obscenity and Pornography 1970: 27).
The methodological problems encountered in the research prepared
for the report have been well documented. Critics of the report
often isolate the liberal, permissive social climate which
Prevailed at that time, as a contributing factor to the report's
findings. Also cited is the fact that. this report purposefully
avoided an examination of sexually violent materials art &
Jozsa 1980; Lederer 1980). Regardless of the inadequacies of the
methodology and conclusions, and a suspect relevance to the
Pornography of today, the report remains the first large scale
investigation into the belief that pornography engenders crime
and violence. ~n the interim, a myriad of projects have been
embarked upon to investigate the possible link between
Pornography and negative effects in the community and society.
The Lonqford Report was completed in 1972 in ~ngland. I t
[ound that a causal connect ion between pornography and
anti-social behaviour could be conclusively proven in few cases,
i f only because of the undesirablity oi using humans in that
of research. The Longford Committee challenged that "Nc one
can confidently deny that a connection between pornography and
behaviour, whether promiscuous, deviant or aggressive, can
sometimes be demonstrated" (Longford Committee 1972: 413).
Another English committee, responded to the pornography effects
question in 1979. The material examined in the Williams Report
was more similar to that which is available today, including
both sexually violent and sexually explicit material. This
committee was unable to find evidence supporting a link between
pornography and aggression, although the possible connection was
not discounted. The committee relied on the clinical experience
of medical witnesses, and a report prepared for them by Yaffe
(1979). They determined that no strong evidence exists that
exposure to sexually explicit material triggers anti-social
sexual behaviour (~illiam Committee. 1979: 6 6 ) . The ~illiams
R$port was unable to provide proof of socially harmful effects,
commenting "We consider the only objective verdict must be one
of 'not proven'" (Williams Committee 1979: 68; .
Two Canadian efforts have added to the body of research
concerning the effects of pornography in recent years. The 1983
Badgley Committee, which addressed sexual of fences against
children, did not offer conclusions entirely consistent with the
Previous report. Relying on the data assimilated from a national
Population survey and a national police survey, the committee
felt that their findings indicated:
for a number of persons, pornography had served as a
stimulus to committing sexual assaults against children.
The findings do not elucidate, however, why exposure to
Pornography may affect some persons, but not others, in
this way nor do they indicate the nature of the
circumstances in which incidents of this kind are more
likely to occur (~adgley Committee 1984: 1283).
Although the Badgley Report seemed to be suggesting a cause
and effect model, the Fraser Report reversed this trend. The
Fraser Report ( 1985) , officially known as the Report of the
--
Special Committee - on Pornography and Prostitution, more directly
-
addressed the causal nature of pornography in a consideration of
violent criminality. The Badqley Report focused largely on chiid
pornography and offences against children. Although many of the
indiviouals who presented information before the Fraser
Committee felt strongly that pornography has many deleterious
effects, the committee did not come to the same conclusion. I t
proffered no proof of a relationship between crime against
individuals and pornography, declaring:
The Fraser Committee is not prepared to state, solely on
the basis of the evidence and research it has seen, that
pornography is a significant causal factor in the
commission of some forms of violent crime, in the sexual'
abuse of children, or the disintegration of community
and society. I t may be a prime factor but we cannot
conclude this is the case (Fraser Committee 1985: 99).
The Fraser Committee indicated an understanding that there were
results suggesting positive and negative effects of pornography,
yet no reliable conclusions could be drawn.
In July of 1986, the latest of the pornography comnissions,
known as the Meese Commission, presented its report. he U. S.
Commission on Pornography asserted that a cause and effect link
existed between pornography and sexual violence. Conversely,
however, the committee refrained from maintaining that
pornographic materials could be considered dangerous to the
American people. Although two of the eleven committee members
could not endorse the findings, the majority agreed that
substantial exposure to pornography begets sexual violence,
sexual coercion and unwanted sexual acts (Austen 1986: 42). This
commission has received considerable criticism in the brief
period since its release. Allegations that the committee was
less than impartial, and that some members were anti-pornography
activists before their appointment, must be weighed against the
credibility of the findings (Shachat 1986: 11) .
The national commissions from these three countries failed
to produce any homogeneous results. Dealing with essentially
identical information, the Canadian Fraser Committee and the
American Commission on Pornography exhibited irreconcilable
differences. With the exception of the Meese Report uste ten
1986: 4 2 ) , all commissions apparently approached the subject
with appropriate academic caution. The resulting discrepancies
testified more t.o the inadequate state of the research, than the
incompetency of the various committees' members.
Given the lack of conclusive results, and the contradictions
inherent in the research, it is astonishing that proponents of
either side of the effects debate are so steadfast in their
views. Individuals seem to be divided over whether the research
is strong enough to prove there are harmful effects, or whether
it is not. NO serious attempt is made to say that pornography
Serves some ultimate good, although isolated positive benefits
have been identified.
Positive Effects - of 'Erotica'
Often, when positive effects of pornography are discussed,
the term erotica is used. Although different studies use various
types of stimuli, 'erotica' usually alludes to nonviolent
sexually explicit materials, which may or may not objectify
women.
McKay and Dolff (1984: 14) found no legitimate endeavour in
the related literature or public forum to announce a
pro-pornography stance. A number of benefits due to pornography
use have been suggested, however.
The 1970 U.S. Commission on Obscenity and Pornography and
the 1979 Williams Committee both discussed the educational
potential of erotic materials. Wilson argues that female
sexuality is construed so incorrectly within 'erotica' that this
material cannot be conceived of as the ideal educational device.
Wilson seconds ate Millet's argument, that it might be
educational for some individuals to view others' genitals, but
that is not equivalent to the statement that pornography is
educational (Wilson 1983: 155). Dr. P. L. Gailwey suggested that
Pornography could be useful by creating a sense of security.
This is accomplished through a lessened sense of exclusion, and
a reduction in the violent feelings which could be related to
that exclusion (Williams Committee 1979: 6 3 ) . Along similar
lines, it has been suggested that pornography could serve as a
useful therapeutic tool in behaviour modification programmes for
individuals suffering from sexual dysfunction. Those who
consider pornography to be in opposition to women's interests
disagree. Understandably, feminists object to misogynist
material being used to modify behaviour. This is especially due
to the consideration that many feminists classify pornography as
hate literature against women (McCormack 1984: 186).
This is not to say that pornography could not, in theory, be
educational. Raboch (1976) argues correct information concernins
sexual difficulties could be conveyed through pornography,
thereby helping to establish sound attitudes toward sexuality.
Similarly, Check and Malamuth (1984), believe that some types of
pornography could conceivably be produced which could
demonstrate negative response for the maltreatment of others,
following a social learning perspective (McKay & Dolff 1984:
40).
Susan Gray advances the proposition that pornography allows
people ts decide what they do like, as well as what they do not,
revealing exploitive and non-exploitive options open to
individuals in their sexual lives (Gray 1982: 394).
Some positive results from pornography consumption have been
documented in laboratory studies. Zillman and Bryant (1982: 15)
discovered that their subjects' predictions of the popularity of
certain sexual practices became more realistic after exposure to
pornography, yet the reverse was found for unusual sexaal
practices. Indications exist that married couples were able to
exhibit more openness an2 renew interest in past sexual
2ractices after viewing 'erotica' (Masterson 1984: 2 5 0 ) . One
line of research found that pornography could reduce aggression
under some circumstances, and perhaps dispel beliefs that force
can be justified to obtain sex (Masterson 1984: 2 5 0 ) .
Although these benefits to pornography consumption are
encouraging, they must be accepted with caution. Some
pornography, under certain circumstances, consumed by specific
individuals may be considered to have positive consequences.
This does not lead to the assumption that pornography in general
is advantageous to everyone, regardless of context. The problems
associated with the pornography research, demonstrating harmful
effects, are equally applicable to this avenue of enquiry. The
possible detrimental effects of pornography have received
substantially greater scrutiny, however.
Harmful Effects - of Pornography
Considerable attention has been focused on the harmful
effects of pornography. In fact, most of the studies on
Pornography have concentrated on the harms associated with
Pornography (Fraser Committee 1985: 9 9 ) . McCormack identifies
five areas of research which comment on pornography and its
impact. These areas include aggression studies, pornography
studies, studies of sexual offenders, a combination of
aggression and pornography studies and media influence studies
(McCormack 1985: 184). The results from these different branches
of enquiry yield limited opportunity for substantial
conclusions. This is not to say that harmful effects have not
been demonstrated, however.
A variety of studies have produced frightening results.
Zillman and Bryant (1982: 18) demonstrated that massive exposure
\ - - ---
to pornography clearly promotes sexual callousness towards
women, particularly emphasized in subjects' trivialization of
rape and callousness toward the plight of the victim.
Surprisingly, the material used was not extreme sadomasochistic
pornography, but was rather judged to be of a standard, common
variety. Yaffe and his associates instructed their subjects to
v
read erotic passages, thereafter allowing them the opportunity
to shock other individuals. The results demonstrated that
sexually aroused subjects chose to deliver significantly more
intense shocks than subjects who were not sexually aroused
( ~ a f i e et al. 1974: 763). M-Check, (1980) presented
the disturbing finding that over half of college males, on the
assurance that they would not be caught, indicated some
likelihood of raping (Malamuth L ~onnerstein 1982: 109). Check
and Malamuth's research has suggested that individuals, who held
beliefs that were highly sex-role stereotyped, showed high
levels of arousal to rape, which were indistinguishable from
convicted rapists (1983: 352). The mass media may affect the
perceptions of the meaning and consequences of rape, increasing
men's self reported likelihood of rape (~alamuth 1981: 150).
~onnerstein and Malamuth (1982: 129) found that exposure to mass
media stimuli that have violent and sexual content increases the
subjects' aggressive-sexual fantasies, acceptance of aggression,
belief in rape myths and aggressive behaviour.) Results have
indicated that aggressive erotic stimuli can lead to increased
aggressive behaviour towards women (~onnerstein 1980: 275). Even
~utchinsky's monumental finding that a complete lack of
governmental controls over pornography led to a decrease in
sexual crimes in Denmark has been partially discredited by
Court's (1976: 142) re-evaluation of the findings, suggesting an
actual increase in reported rapes. Although Court's analysis has
received intense criticism itself, it has tainted Kutchinsky's
concl~sions to some degree (Williams Committee 1979: 8 5 ) . In
light of these findings, the public's fears of an association
between pornography and sexual violence seem warranted. These
results are not presented as a testament to the dangerousness of
pornography, but rather to serve as an illustration of the kind
of evidence which urges a condemnation of pornography. For a
comprehensive review of the literature see McCormack, 1985; and
McKay & Dolff, 1984.
A discussion concerning the effects of pornography is, in
essence, a debate over the effects of pornography on men's
treatment o f , and attitudes towards, women (Gray 1982: 387). The
central issue remains whether a link can be proven between the
consumption of sexually violent pornography and actual
anti-social sexually violent behaviour, or a greater tolerance
of this behaviour by society. Considerable recent research has
made suspect the allegation that erotica is harmless, yet has
not confirmed the intuition that it causes harm. Masterson
emphasizes that although many of the pornography experiments are
convincing, they are measuring changes in attitudes, and not
necessarily changes in behaviour (Masterson 1984: 250). Yaffe
(1972: 465) reviewed the literature and found no evidence that
pornography use resulted in anti-social behaviour. Yaffe states
that there exists "no consensus of opinion by the general
public, or by professional workers in the area of human conduct,
about the probable effects of sexual material" (~illiams
Committee 1979: 4). Kenyon (1974: 232) states that, after
regarding present evidence, "pornography does little harm to
mental health and cannot be held responsible for initiating
anti-social behaviour in those not already so pre-disposed."
Susan Gray, in her review of the literature, found that the
Studies (laboratory) that had been completed commented
extensively on male anger, but had relatively little to say
about pornography (1982: 389). McCormack (1985: 192) states "As
things stand at present there is no systematic evidence to link
either directly or indirectly the use of pornography (soft core
or hard core) with rape."
McCormack discusses the somewhat tenuous relationship
between pornography and rape, asserting:
Rape is a complex social act which is the culmination of
many influences. And pornography, like any other
symbolic text, is multi-dimensional, encoding a number
of messages. It is not, therefore surprising that there
is no empirical evidence of any relationship between
pornography and rape, despite the parallels that exist
between them (McCormack 1980: 8 ) .
Rape and pornography are not simple discrete entities. To
" suggest that one causes the other is to ignore the variability
in, and complexities of, human behaviour. Although McCormack
does not identify direct cause-and-effect models as being
applicable to the pornography issue, she acknowledges the
possibility of similarities between the concepts of rape and
pornography.
McKay and Dolff (1985: 92), after a thorough review of the
research, uncovered no persuasive evidence that viewing
pornography causes harm to the typical adult individual, or
causes the average individual to harm others. Any final
resolutions concerning the effect of pornography are at this
time not plausible. The results, despite intense efforts to
prove otherwise, are inconclusive. Problems with the research
are largeiy responsible for the confusion and uncertainty which
engulfs the pornography debate.
Problems with the Research
--
Addressing the effects of pornography is a difficult
endeavour. Those seeking straightforward answers t a the harm
issue will be frustrated. The existing body of research is
incomplete and contradictory. Methodological issues assume a
certain responsibility, and yet definitional confusion and
ideological biases are also responsible. New theoretical
approaches are considered necessary for a more complete
consideration of the problem.
Susan Gray (1982: 388) identifies the task of defining
pornography as the key problem in the debate concerning
pornography effects. The terminology is confusing and confounds
an adequate interpretation of the results. 'Erotica',
'pornography' and 'sexually explicit materials' are used
synonymously art & Jozsa 1980: 216). This ignores the
theoretical distinctions that are sometimes made between the
terms.
McKay and 3olff (1984: 6) observe that pornography attracts
extremes in definitions. ~eminists have been criticized for
defining pornography by its effects. McKay and Dolff (1984: 16)
complain that:
Both pornography and anti-social behaviours are seen as
equivalent consequences of some other supraordinate,
antecedent event (rape myth, male dominated culture).
Drawing parallels between pornography and rape may be a fruitful
enterprise, but suggesting the two are dependent on patriarchy
and manifestations of a common evil may not be very productive
from an empirical perspective.
The different definitions adopted by various social groups
may be problematic, yet equally misleading are the operational
definitions invoked by social scientists. Researchers use
various stimuli in individual experiments, yet their
miscellaneous 'pornographies' may be highly dissimilar.
Pornography may be simply explicit sexuality in some
experiments, sex and violence in others. Without specific detail
of the written or pictorial stimuli used, complications emerge
u us sell 1980: 218) . The examination of a large body of
literature which purports to explain one concept may result in a
canvassing of literally hundreds of different issues. Therefore,
attempts at making comparisons, detecting trends or drawing
conclusions between the results is hampered by the fact that
'pornography' is not a constant phenomenon (Fraser Committee
1985: 99; Fisher 1986: 326) . The lack of conceptually based
definitions has similarly been blamed for the inadequacy of the
research. The findings of particular studies must be placed in
some type of theoretical framework in order tc lend the results
meaning (Fisher 1986: 3 2 6 ) . Definitional difficulties are an
impediment to the formation of a coherent body of information
pertaining to pornography effects. Definitions, however, are
often dependent on the ideological position one maintains.
ldeol ogi cal Posi l i o n s
Divergent theoretical stances are available by which
Pornography can be analyzed. The conflict over the
appropriateness of the various ideological positions has
attracted researchers to study pornography's possibly harmful
nature ray 1982: 387). McCormack argues that traditionally,
two models have been employed to ascertain the relationship
between pornography and aggression. These models are known as
the imitation model and the catharsis model. English ( 1 9 8 0 )
structures the controversy over pornography as a conflict
between two social views, namely behaviourism and psychoanalysis
(Gray 1982: 3 8 7 ) . Behaviourists promote the imitation model,
while psychoanalytic tradition endorses the catharsis
explanation. The imitation model suggests that people learn
patterns of violence from role models. The assumption is made
that all social habits, including anger and aggression, are
learned as a cultural phenomenon art & Josza 1980: 2 0 6 ) . This
model, proposed by Bandura, suggests that people imitate what
they view in the media. These patterns of response, once
established, become very resistant to change, and can be
reactivated in the company of certain environmental cues
(Mc~ormack 1985: 1 8 6 ) .
The catharsis model is very controversial, and does not
enjoy the support it once did. The catharsis model is heavily
based on Freudian assumptions about the nature of the psyche. I t
states that "art, literature, religion, and other synbolic
Systems serve as "safety valves," reducing the tension created
by sublimating "antisocial" forces in the psyche" art & Jozsa
1980: 2 0 6 ) . This model assumes a rather negative view of human
nature, whereby man is innately aggressive. In the interests of
preserving social order and harmony, his real wishes and desires
must be sublimated. Pornography, therefore, serves a positive
role, allowing dangerous urges and wishes to be experienced
vicariously. The catharsis perspective would not view the
consumption of pornography as a contributing factor in sexual
assault, as would the imitation model. Instead, pornography can
be seen as one form of "safety-valve" which effectively aids in
the prevention of sexual assault and other crimes of violence.
McCormack contends that the catharsis model may have more
value than it is given credit for. Although both models are
flawed to some extent, they may each be operative in different
situations and contexts (~ccormack 1985: 186). As McCormack
asserts, studies demonstrate that:
there can be both an increase and decrease of a tendency
toward aggression as a direct result of exposure to
aggressive stimuli. Second, there are a variety of
hypotheses about the effect of aggression stimuli on
behaviour and attitudes; we are not, as is sometimes
said in semipolar discussions of the pornography issue,
restricted to a choice between imitation or catharsis
(~ccormack 1985: 188).
Although imitation and catharsis do not represent the only
alternatives in a theoretical debate on pornography effects
(Mc~ormack 1978: 547), these two possibilities do help define
the parameters of the discussion. Bart and Jozsa (1980: 217)
consider the imitation and catharsis models to be highly
inadequate. These researchers caution that the paradigms that
social scientists use reflect their biases, and, in turn,
support a sexist status quo.
McCormack states that research pertaining to pornography is
predicated on sexist assumptions. Both pornography and violence
reseai-ch reflect their sexist biases at the problem
conceptualization and research design stages, manifested in
their methodologies. Men are responsible for the direction of
the majority of the experiments, which usually enlist male
subjects. Where women are used as subjects, it is frequently in
the company of their husbands. This could radically alter the
women's responses. The research instruments utilized in the
studies are often designed with no regard for the female
experience (McCormack 1978: 5 4 9 ) . Perhaps the most fundamental
problem with pornography research is the fact that men are
considered to be the active party in the sexual and aggressive
domains, determining and assuming responsibility for the
consequences of their actions. Women are no more than passive
pawns, thus reinforcing the sexism which is so pervasive in
violence and pornography research (~ccormack 1978: 5 5 1 ) .
Feminists suggest research based on a sensitivity to sex
roles must be instigated. Interest and attention in female
subjects is necessary. Knowledge of the effects of pornography
on women is scarce. Especially scant, is information concerning
the effects of pornography on women in society art & Jozsa
1980: 2 1 6 ) .
Unbiased pornography research is difficult in a patriarchal
Society. Feminist social scientists could offer a new
Perspective to the study of pornography effects, avoiding some
of the inherent pitfalls with a majority group studying its own
culture (Bart & Jozsa 1980: 213). Feminists have remarked that
less biased research could be instituted i f the conflict model
or reference group theory were adopted. Conflict theory,
promoted by theorists such as Andrea Dworkin, identifies the
sexes as social groups in conflict with each other (~ccormack
1978: 548). McCormack promotes the reference group theory, which
suggests "our perceptions of, and responses to, inequality in
life or art, are structured by our own positions in the social
structure, as these are modified by our reference group
identification" (McCormack 1978: 548). It concentrates on the
inequality between the sexes in the social structure. McCormack
submits that this approach may provide a superior theoretical
framework from which to conceptualize research problems.
Pornography would be seen as an ultimate form of sexual
inequality in which women are sex objects designed to arouse and
satisfy men. If one uses the conflict model or reference group
theory to comprehend the issue, the sexist bias in pornography
research is more readily apparent. McCormack (1978: 5 5 1 )
isolates the significant feature of these approaches as the
assumption that social phenomena necessitate social, rather
than, biological explanations.
Met h o d 0 1 o g i c a l P r o b l ems
Pornography research is particularly vulnerable to
methodological criticisms. Studies are constrained by the nature
of the responses one wishes to measure. Concern over pornography
stems from the fact that pornography has been implicated in sone
sex crimes. People fear that pornography is a precipitating
factor in crimes, such as rape against women. Obviously, one
cannot examine this situation in a laboratory environment.
Ethical and legal considerations aside, other avenues of enquiry
must be established. For this reason experiments measuring
changes in attitude toward women, social indicator studies and
retrospective analyses have been embarked upon. Critics have
reproved pornography researchers on a number of grounds.
The relationship between pornography and sex crimes has
received limited investigation. Correlational studies focussing
on pornography effects usually involve attempts to illustrate an
increase or decrease in sex crimes following a loosening on
restrictions concerning pornography availability. ~utchinsky
(1971: 263) presented Copenhagen police statistics demonstrating
a dramatic decrease of reported sexual offences. He asserted
that this decrease was partially the result of the increasing
availability of pornography in Denmark. Court (1976: 1 4 3 )
re-evaluated the data in question and declared that increases
for more serious crimes, such as rape, existed. These findings
remain questionable, however, given that Court's work has
received ample criticism (Williams Committee 1979: 85). Abramson
and Hayashi (1984: 178) found that movies in Japan are much less
explicit than those in the U.S.A., yet the themes of bondage and
rape are quite common in Japanese pornography. Japanese rape
statistics are not at a correspondingly high rate, however,
shedding doubt on a direct connection between the occurance of
rape representations and actual rape (~bramson & Hayashi 1984:
1 8 1 ) .
Correlational studies have enjoyed considerable reflection
and scrutiny. The 1970 U.S. Presidential Commission on Obscenity
and Pornography and the Williams Committee appraised
correlational research. Unfortunately, no correlational research
is available using Canadian data. Regardless, this type of
research is not very indicative of the effects of pornography.
Among the many criticisms of correlational research is the fact
that definitions of sex crimes vary over time. Police reports
are often not good indicators of the actual incidence of sexual
offences, due to an epidemic of under-reporting. These factois
contribute to a plea for caution when monitoring the rise and
fall of sex crimes. Correlational results offer limited
information on the effects of pornography, because the method
used prohibits the possibility of making cause-and-effect
Statements (Fraser Committee 1985: 100). A more beneficial
investigation of the link between the use of pornography and
Sexual offences would be an analysis of the behaviour of sexual
offenders. This relationship has not been adequately addressed.
Many critics call for the study of the long-term effects of
Pornography, yet this information would be difficult to
assimilate. Retrospective studies do not allow extrapolation to
causal relationships, and the problems due to forgetting or
inaccurate memories introduce new difficulties (~iamond 1980:
195). Little is known about the cumulative effects of
pornography. The most common experience of pornography is in
small doses over long periods of time. Social psychology uses
the opposite approach, whereby subjects are saturated with
pornographic stimuli over a short period of time. Consequently,
an inappreciable amount of information can be gathered, since
subjects are often surveyed immediately following, or shortly
afterward presentation of some pornographic stimuli (Fraser
Committee 1985: 1 0 0 ) .
Numerous pornography studies have been condccted in the
social psychologist's laboratory. Fisher (1986: 337) proposes
that research suggesting a relationship between pornography and
anti-female thoughts, fantasies and perceptions has been fairly
well received by the academic community.
Many of the standard criticisms which are levied on social
psychologists' experiments are applicable to pornography * ,
studies. The stimuli used in the experiments may be highly
unrepresentative of the pornography an individual has access to.
While Palys (1984) found violent pornography to be the
exception, not the rule, recent research has employed very
extreme stimuli.
Generally, young college males are employed as subjects.
Critics are disturbed by the fact that any demonstrated changes
in the subjects may be the result of other impinging stimuli
external to the pornography stimulus. There is justified concern
that these subjects may not be representative of the population
as a whole, and the results obtained couid not be generalized to
a less homogeneous audience (~raser Committee 1985: 1 0 0 ) . The
reactions of college males may not be equivalent with the
responses of men in society.
Fisher ( 1 9 8 6 : 3 4 2 ) suggests that college males may possess
greater internal constraints than the average adult male. This
instance would result in an underestimation of aggression
subsequent to pornography exposure. In addition, college males
familiar with the university environment might simply 'play
along' with the study and not take the research seriously.
Some critics argue that there should be greater interest in
those disturbed individuals more likely to commit crime, and one
should not worry about generalizing to the male population as a
whole (Gray 1982: 3 8 9 ) . ~thical constraints prevent researchers
from studying the effects of pornography on individuals more
susceptible to the messages within pornography. I t is felt that
by doing so with potential sex offenders, we may be legitimizing
their aggressive tendencies toward women. studies of pornography
effects have involved sex offenders, albeit incarcerated ones.
There is a contention that these people may not be
representative of the many rapists outside of institutions who
manage to evade detection.
Experiments addressing the impact of pornography on children
are too unethical to be seriously considered (Fraser Committee
The experimental demands and the devices used in experiments
measuring sexual arousal may confound the results. Subjects may
be reluctant to report their actual responses. There may be
major incompatibilities between what subjects indicate they
believe, and what they actually do believe, taking into account
the delicacy of the subject matter (Bart & Jozsa 1980: 201).
Physiological arousal might not be equivalent to psychological
arousal. Devices such as the plethysmograph may be arousing in
themselves. Simply asking subjects to attend to their levels of
arousal may be stimulating to some degree (Gray 1982: 3 8 9 ) .
Bart and Jozsa (1980: 201) discuss a major criticism of the
laboratory research. They address the gap between attitude and
behaviour. It is difficult to ascertain the exact relationship
between what subjects say they will do, and what they actually
will do. Given the complexity of human behaviour, researchers
need to understand the environmental constraints on people, and
how various circumstances alter responses.
It is imperative that context be regarded as a crucial
variable in pornography research. The circumstances of exposure
may manipulate the interpretation of pornographic stimuli. A
consideration of context entails a recognition of those aspects
of the situation which provide meaning for the behaviour or
phenomenon in question ( ~ a l y s & Lowman 1984: 4). Palys and
Lowman (1984: 8 ) argue:
research for policy requires a special emphasis on
situational representativeness or contextual integrity
in order to ensure that one's results bear relevance to
more than just artificially generated and delimited
behaviour of an insular laboratory context.
These authors are objecting to the use of the supposedly
'context free' classical laboratory experiment as a determiner
of social policy. They suggest that contextual relevance is a
more important variable deserving attention in pornography
research.
Fisher argues that laboratory experiments share few
commonalities with natural settings. In everyday life,
individuals may choose to aggress against a woman or not,
although in some experiments decisions are limited to how
intense a shock to provide. The varied response alternatives
available in social life are innumerable. Restricting response
alternatives effectively restricts the generalizability of
experimental results (Fisher 1986: 340).
Subjects volunteering for a social psychological experiment
examining aggression towards women do not expect or foresee
retaliation or meaningful punishment for anti-social actions.
The scbjects may not recognize their responses as causing
legitimate harm, regardless of how their actions are interpreted
by an experimenter. Fisher (1986: 3 4 2 ) reminds us that fear of
Punishment in natural settings may not be an overwhelmimg
consideration, but it generally engenders some degree of
concern.
N e w A r e a s o f R e s e a r c h
Feminists have detailed many harms associated with
pornography, not directly related to past laboratory
investigations. There are contentions that pornography impedes
women's equality rights. These issues have not been addressed by
the research (~raser Committee 1985: 99). Correspondingly, many
studies are preoccupied with the distinction between
pornographic and erotic materials. This distinction continues to
be highly problematic for social scientists because of its
methodological imprecision (Nelson 1982: 1 7 4 ) . Russell (1980:
218) advocates that research pertaining to sexist versus healthy
behaviour deserves consideration. A deficiency of information in
reference to possible alterations in values regarding human
dignity and equality subsequent to pornography exposure remains.
Literature addressing those aspects of behaviour most vulnerable
to influence is inadequate (Fraser Committee 1985: 102).
Feminists point to the anecdotal accounts of husbands using
pornography on battered wives. his assertion remains, to date,
uninvestigated by research. Similarly, accounts of children
forced ta accommodate adults' sexual demands, subsequent to the
consumption of pornography portraying those behaviours, have not
been focussed on by the research (Fraser Committee 1985: 101).
In fact, the whole dilemma over pornography as a precipitating
factor in anti-social behaviour has not been demonstrated.
Although arousal and aggression are popular topics for study,
Russell (1980: 218) suggests more pertinent research
necessitates a study of pornography and violence against women.
Many problems with the research concerning pornography
effects have been documented. Criticisms range from sexism at
the problem conceptualization stage to specific denunciations of
the methodologies of different experiments. The results of the
study of pornography effects are not able to support the
contention of a causal relation between pornography and violence
against women. Peculiarly, some feminists have effectively
ignored the research to date.
Is Research Necessary?
-
Theoretical discussions founded in assumptions of a causal
connection between pornography and violence against women are
seriously threatened by the literature's inability to support
their contentions. Russell ( 1980: 2 2 1 ) questions:
Do we really need research to tell us that such material
reinforces or even fosters dangerous myths about rape?
Material such as this not only encourages men to rape,
but also serves to undercut the credibility of the
victims, thereby contributing to their isolation and
victimization by society.
Russell has legitimate concerns, but i f stances against
pornography are to be predicated on assumptions of harmfulness,
these assumptions must be verified empirically.
Brownmiller similarly avoids the conclusions to be inferred
fron the social sciences. Brownmiller (1975: 444) queries:
does one need scie~tific methodology in order to
conclude that the anti-female propaganda that permeates
our nation's cultural output promotes a climate in which
acts of sexual hostility directed against women are not
only tolerated but ideologically encouraged?
Hughes (1985: 105) submits that individuals are more eager ta
censor pornography i f they can be assured with evidence
implicating pornography in instances of sexual assault. She
believes, however:
the very existence of pornography is the problem and
that while there is evidence to suggest a correlation
between exposure to porn and the commission of brutal
sex acts against women, the connection is not necessary
to justify controlling pornography ... At the least ...
we must recognize that the factors which allow ever more
brutal pornography also encourage sex crimes against
women and children; and we can go further: pornography
invites imitation because, like the cigarette and beer
ads, it promises pleasure and success.
Russell, Brownmiller and Hughes recognize the inability of
social science to empirically demonstrate a causal connection
between pornography and violence, yet refute this information.
They argue that pornography does cause harm and defer to
anecdotal police reports. This approach weakens thier position.
A causal relationship is not a necessary precursor for objection
to pornography. Garry (1978:400) feels the disturbing feature of
these positions is that they "have succumbed to the temptation
to disregard empirical data when the data fail to meet the
authors1 expectations." An acceptance of the current literature
is revealed in McCormack's posture on the effects issue.
McCormack contends:
everyone agrees that experimental data cannot be the
basis for social policy. These studies add to our
knowledge about human behaviour, but they are designed
in a very special way and for particular theoretical
purposes. ~n short, we could not establish any reliable
statistical association between pornography and acts of
sexual violence (McCormack 1985: 182).
Experimental research is not very helpful in suggesting the best
approach to pornography. Mzny feminists feel that the effects
issue is largely irrelevant to feminist concerns. Ultimately,
one cannot look to research on the impact of pornography to
provide much insight into the most suitable approaches to
pornography. Feminists acknowledge the inability of empirical
investigations to determine social policy. A branch of feminism,
separate to the one previously discussed does not promote more
scientific research as the answer to the pornography problem.
The New Wave: Feminism I 1
-- -
Like many political movements, the women's movement appears
to present a unified front. Internally, theoretical differences
reside. Bitter disagreements have erupted between feminists over
the effects and meaning of pornography (Wilson 1983: 135). This
issue appears to have divided feminists into mutually
incompatible groups. A new branch of feminism has emerged,
critical of the focus on pornography and the theories employed
by the anti-pornography campaigners. This group, rather thar
focusing on depictions of women being mutilated and objectified
in a dehumanizing manner, seeks to comprehend the meaning of the
imagery in representations (Wilson 1983: 166). Sexism is the
ultimate problem, while pornography in itself is infantils and
demonstrates an inability to address sexual issues in our
society. A more useful discussion of pornography focuses on the
concept of fantasy, and avoids the anti-pornography campaign,
which inevitably leads to a call for censorship.
Stern (1982: 39) argues that the pornography issue initially
served to prevent the disintegration of feminism, as the
movement was losing support:
It is a response to something that is evident, that is
noticeable, and it arrived at precisely the time when
the Women's Movement was losing energy and coherent
organization. Because pornography is there, can be
pointed to, shown, because it appears to be explicit in
a way that sexism is usually not, it has been seized
upon as a target.
Pornography became a symbol for female defeat (Snitow 1985:
112). By the late 1970's, women were becoming aware that social
progress was an extremely tedious process. his awareness
witnessed the enthusiasm of the time being replaced by
frustration. The anti-porno~raphy campaign gave new energy to a
cause that was losing momentum (snitow 1985: 1 1 1 ) . The
dissension which is now evident in feminism, is a result of that
factor which initially created cohesion (stern 1982: 47).
Coward (1982: 9) believes that anti-pornography campaigners,
such as Dworkin, Morgan, Brownmiller and theorists adopting
similar perspectives, are mistaken in their perception of
pornography. It is not part of a spectrum of male power, which
is, at the end of the continuum, physical violence against
women. She contends that equating porncgra~hy and violence
effects no practical purpose and evades important issues. I t
makes complex human behaviour appear rather simplistic. The
majority of pornography is not violent (Wilson 1983: 137; Willis
1981: 2 2 2 ) . Pornography is not the same as violence against
women. I t is not sexaal sadism (~ilson 1983: 1 6 3 ) . Conflating
the imagery of pornography with actual violence is an
oversimplification and is an exercise in reductionism. Women
will not benefit by pursuing this avenue of thought. This
approach suggests that images of sex are the same as real sex.
It blames images for the position of women in society (~iamond
1985: 4 1 ) . Social strategies and policies cannot be founded in
this theoretical framework. This anti-pornography approach
remains ahistorical. The categories of 'male' and 'female' are
structured as fixed and timeless within this approach (Snitow
1985: 1 1 2 ) . The fatalism of Dworkin's 'male supremacy'
perspective preempts proposals for change, relating a "rhetoric
of despair, not of liberation" (Wilson 1983: 162; Coward 1982:
1 0 ) . This focus on pornography avoids other more pressing issues
in society, which involve major social changes, such as
preventing real violence against women, aiding battered women
and improving women's economic position in society. The problem
of violence, and representations of violence in this culture
must be faced. Male hostility is a pressing social problem, and
male hostility causes violence to women, not pornography (willis
1981: 2 2 1 ) .
I we are not willing to accept patriarchy and male
supremacy as sufficient explications for the proliferation of
Pornography, other reasonable answers must be proposed.
Feminists contend that pornography thrives because it is
considered illicit (coward 1982: 52; Stern 1982: 4 0 ) . It
requires a social context of ignorance and shame (snitow 1985:
116). Wilson (1983: 159) believes the main problem with
pornography is that it is extremely infantile. Sex is considered
an 'adult' game. By keeping it hidden, we are reinforcing its
naughtiness. The illicit nature of pornography encourages its
popularity as a forbidden fruit, which promises pleasure through
male arousal. Although pornography may appear immature and silly
it does provide some valuable information. Perhaps the most
important message that pornography relays is a comment on the
state of human relations. It exemplifies the problems we have in
dealing with sexuality (~ilson 1983: 221). It focuses on the
obsession men have with male arousal, and illustrates sexual
stereotypes (Coward 1982: 53). Wilson contends the proliferation
of pornography is indicative of a society which is not dedicated
to the open discussion of sexual matters (~ilson 1983: 154).
The anti-pornography mcvement is criticized for being
divorced from a larger feminist perspective (willis 1981: 22).
Pornography must not be conceptualized independently from other
social phenomena. The theories used by feminist anti-pornography
campaigners are inadequate because they operate independently
from larger issues (~ilson 1983: 213). Pornography, as a
distinct category, is the wrong focus of attack (coward 1982:
19). The new wave of feminism dictates that pornography is
problematic, because it forms part of a larger phenomenon of
sexist representations. Pornography shares its sexist images and
codes with other depictions. Romance fiction, Cosmopolitan
Magazine, Vogue, Bazaar, soap operas and advertisements all
provide images of women that are disturbing to feminists. A
comprehensive discussion must address sexist codes in general,
and negotiate how their meanings are produced. Ros Coward (1982:
13) suggests that the meanings of a representation can be gauged
through a consideration of its contexts and uses. The way in
which the different elements of an image are arranged elucidate
its message. Coward disputes traditional interpretations of
pornography, implying that cultural codes allow a picture to be
understood. Codes of availability, fragmentation and submission
prevail, and are mobilized to effect a certain meaning. Repeated
images of female availability serve to reinforce ideologies that
female sexuality functions to meet depersonalized male needs
(coward 1982: 18). ragm men tat ion can be defined as a tendency to
concentrate on areas of women's bodies in a very fetishestic way
(coward 1982: 1 7 ) . Although fragmentation is not always a
negative practice, it can be an accomplice to the 'death
effect', which has become popular in representations. Codes of
submission relegate women to passivity, illustrated in female
submission to male force. Women's sexual pleasure is represented
as passionate death (Coward 1982: 18). It is futile to assault
these sexist codes and images in pornography, yet embrace them
in areas such as advertising and fashion.
Pornography has little more to add to a discussion of sexism
than other portrayals. It may present a good medium to analyze
the function of fantasy, however. Wilson suggests that an
understanding of fantasy must be prefaced with the statement
that fantasy is not the same as real violence (Wilson 1983:
1 6 4 ) . The relationship between fantasy and act, between desire
and sex, and between representations and acts deserves further
exploration (Coward 1982: 20).
Those feminists arguing that pornography must be contained
and censored are not necessarily oblivious to the concerns of
the new feminist camp. They concede that censorship will
undoubtedly drive pornography further underground, accomplishing
little in the way of restricting availability. They feel,
however, that censorship laws must be invoked to demonstrate
society's intolerance of, and will to prevent, the abuse and
humiliation of women. The feminists objecting to censorship
suggest that this approach may prove more detrimental to the
women's movement than is presently foreseen (Callwood 1985:
1 2 3 ) .
The new current which flows through the feminist group is in
vehement opposition to the censorship of pornography. The
Sentiment which holds censorship strategies to be impractical,
and in dangerous opposition to feminist aims, is widely shared.
Censorship provides the wrong approach because "it offers a
Paternalistic, catchall solution to our problems and distracts
our attention from less visible but more insidious injustices we
suffer by focusing on symptoms rather than disease" (Gronau
1985: 97). Censorship of pcrnography is an ineffective
'band-aid' solution to the cultural problem of sexism. I t does
little to effect changes in socialization processes and
childrearing practices, where individuals develop many of their
attitudes and prejudices. Censorship contributes to the
traditional notion that sex itself, not just sexist
representations, is objectionable (~ilson 1983: 153).
By adopting a pro-censorship position, feminists would be
broaching on an unfortunate alliance with non and anti-feminist
forces. Stern (1982: 47) alerts us to the futility of an
alignment with the Right, predicting a deleterious effect on
feminist and gay interests. Recognizing these obstacles, Burstyn
(1985: 15) argues for a greater selectivity in the type of power
women bestow upon the state. She acknowledges that state
institutions compose part of a larger system that harbours the
objective of preserving the status quo. A maintenance of the
status quo translates to an affirmation of sexism. Laws that
3 .
serve to empower women, such as equal pay and opportunity laws, I
are much preferable to censorship laws which remove women's
power (Diamond 1986: 295).
The people who are relegated the responsibility of enforcing
censorship laws are selected by a system which does not advocate
feminist aims, and often proceeds in direct opposition to those
goals (King 1985: 9 0 ) . Gronau remarks that "there are already
too many impediments to our being heard; we must not be
complicit to another barrier" (Gronau 1985: 96). Censorship laws
will undoubtedly be exercised by those refuting feminist
concerns. The laws which many anti-pornography campaigners
construct will be employed to prevent future expressions of
feminism. In this sense, censorship approaches are admonished
for falling into patterns of traditional conservatism, and being
sexist in themselves. McCormack (1980: 6) warns that censorship
"places power in the hands of men to look after the interests of
women, thus replicating the powerlessness of women." The
creation of policies which are contingent upon censorship
strategies cause women to be accomplices to their own
oppression.
Willis states that in a "male supremacist society the only
obscenity law that will not be used against women is no law at
all" (Willis 1981: 226). The belief that pornography censorship
will be used as yet another device to silence women's voices,
persists. McCormack contends "Dissenting views will inevitably
suffer, and thus we will deprive ourselves of the social forces
that act as catalysts for change. Censorship undercuts the
democratic conditions that make change possible" (~c~ormack
1985: 181). The censorship of pornography is conceived of as a
superficial response to a complex problem. Deceivingly promising
an improved social environment, it nonetheless detracts from
feminist ambitions. Within a patriarchal society, censorship
will function to strangle non-sexist images of sexuality.
Feminists warn that investing greater power in institutions that
traditionally suppressed their concerns cannot be considered a
progressive strategy. The censorship of pornography provides yet
another barrier to the feminist goal ~f equality becween the
sexes and the eradication of sexism.
A feminist perspective has upset the traditional moralist/
civil libertarian dichotomy which previously defined the
parameters of a pornography discussion. Feminist theory demands
a social justice, distinct from the moral outrage of the Right
or the civil libertarian plea for individual freedoms. Feminists
argue pornography is a symptom of patriarchy. Pornography
functions as a social control device to maintain the
subordination of women by dehumanizing and objectifying them. I t
not only condones, but encourages, violence against women.
Decades of research have failed to provide empirical support for
this contention. The information regarding pornography effects
is inconclusive and contradictory. Regardless, empirical
investigation cannot provide the basis for social policy.
A new branch of feminism has emerged, critical of the
concern over pornography. This perspective concedes that
pornography is the wrong focus of attack. Pornography should not
be conceptualized outside of theoretical constructs, or serve as
an impetus for the women's movement. The serious problem
pornography shares with other forms of media and advertising is
in its sexist representations. The context and ccdes particular
to each representation determine the nature of the imagery and
direct a certain comprehension. Pornography does not cause
violence against women, male hostility does. Simplifying complex
human interactions to a pornography equation is reductionistic.
New theories which address women's issues and incorporate them
into a model of change are required. A descriptive fatalism
usurps the need for social responsibility. The pornography issue
is dangerous to feminism because it risks an obliteration of the
boundaries between feminism and the Right. Ultimately,
censorship would only silence women's voices.
New approaches to the pornography issue are necessary.
Feminists from the anti-censorship camp suggest various
electives to censorship, while other feminists have been
instrumental in drawing attention to alternative legal
interpretations of the pornography problematic and proposing
strategies which moraily educate and serve to empower women.
Their interests are in competition with the concerns of other
social groups. A general dissatisfaction with the current
community standards approach is expressed. Many proposals for
change are, therefore, currently available, reflecting the
definitions, conceptualizations and ideologies of the
individuals and groups that harbour a vested interest in the
Pornography issue.
CHAPTER IV
LEGAL STRATEGIES IN COMPETITION
Ideological and philosophical positions regarding
pornography hinge on individuals' perceptions of the
relationship between law and morality. Approaches to pornography
are premised on the 'harms1 it may produce. Many moralists,
civil libertarians and feminists, as a function of their
ideologies and notions of harm, believe that under specific
circumstances pornography must be legally curtailed. The
competing values of the social groups determine the necessary
circumstances for control. Alternate views of harm are presented
by the groups, including harm to society through moral decay,
harm to individuals either psychologically, morally or
physically, and harm to groups of individuals, where the harm is
manifested through injury to equality rights, notions of
integrity and social status. These diverse notions of harm can
be translated into three main principles: the offence thesis,
the provocation thesis and the direct harm thesis.
The various theses are justifications for legal restrictions
on specific types of pornography. The offence thesis regards
legal restrictions to be necessary "where the public
Presentation of pornography might cause an individual to suffer
harm through disgust, shock or embarrassment" (~akan 1984: 9 ) .
The offence principle is only applicable in cases where the
Pornographic material is unavoidable and it has been objectively
ascertained that the display is offensive (Bakan 1984: 9). Those
who accept the offence thesis as a basis for restrictions on
pornography must recognize disgust, shock or embarrassment as
substantial enough harms to warrant legal control.
Both the provocation thesis and the direct harm thesis are
feminist theses. The two justifications for pornography
restrictions are founded in the belief that pornography is
.
harmful to individual woman (Bakan 1984: 1 1 ) . The provocation
thesis states that:
certain types of pornography prejudice the right of
women to liberty, security and equal opportunity, since
such pornography provokes misogynist behaviour on the
part of those who use it (Bakan 1984: 30).
This principle regards the harm produced by pornography to be
realized through the material's potential ability to provoke
aggressive or discriminatory behaviour in men. Women may be
assaulted and discriminated against as a consequence of men's
consumption of pornography. The provocation thesis does not
consider moral evaluations or the shocking or offensive nature
of the pornography. The capacity of a certain article of
pornography to cause men to harm women is the only justification
for restriction under the provocation principle. Consequently,
the ir,ability of researchers to resolve the debate over the
causal link between pornography and aggression is a considerable
impediment to the adoption of legal restrictions based upon this --
thesis.
The direct harm thesis is not concerned with the effect of
pornography on men's behaviour. The harm, according to this
principle, emanates from the material itself. The direct harm
thesis suggests that the existence of certain types of
pornography constrains women's right to liberty, security and
equal opportunity because such material presents an affront to
the dignity and integrity of individual women (~akan 1984: 30).
The injury is, therefore, conceptualized in terms of
psychological harm. It:
may be suffered by individual women by virtue of their
awareness of a societal practice that systematically
degrades women as a group (Bakan 1984: 1 1 ) .
The psychological harm may take the form of a distorted
self-image and lowered self-esteem (Bakan 1984: 18) . The direct
harm principle is based on the notion that psychological harm is
as likely to endanger the security and autonomy of the
individual as is physical or economic harm (Bakan 1984: 25).
Acceptance of the direct harm thesis is contingent upon evidence
that pornographic material has such effects, and a belief that
affronts to a person's dignity and the subsequent psychological
I
injury create severe enough harms to merit legal sanctions -
(Bakan 1984: 19).
Legal solutions to the pornography problematic are
Predicated upon these three assumptions. While the moralist
approach does not require any proof or demonstration of harm,
the liberals and feminists pose more stringent restrictions.
Moralists concur with and propose any approach which will serve
to throttle expressions of sexuality. Consistent with the
liberal approach is the offence thesis, which is reflected in
the practices of many municipalities. Municipal remedies include
licensing, zoning regulations and nuisance statutes.
Elements of the provocation thesis and the direct harm
thesis coexist within the feminist camp and are, theoretically,
compatible with liberal principles. Many civil libertarians
refuse to support the manifestation of the feminist theses in
law, however. Liberals do not acknowledge evidence of the harm
discussed by proponents of the provocation principle.
Furthermore, it is debatable whether they would ever recognize
the psychological harm addressed by the direct harm principle as
constituting a serious enough injury to form the foundation for
criminal sanctions.
The provocation thesis is reflected in many remedies, among
them strategies such as common law civil action, the
Dworkin-MacKinnon Ordinance and the existing Saskatchewari Civil
Rights Code.
Those feminists who propose that legal control be predicated . .
Upon the direct harm assumption advocate the use of hate law
Provisions within the Criminal Code. This thesis is manifested
within both the Saskatchewan Human Rights Code and the Canadian
Charter -- of Rights - and Freedoms. Provincial film boards could
incorporate feminist notions of harm into their policies with
relative ease. At the federal level, evidence indicating that
the judiciary has begun to recognize the direct harm principle
is available in the form of recent judicial interpretations of
the community standards of tolerance test. Althcugh this
direction is qualitatively different from the traditional
community standards approach, various individuals, including
many feminists, do not feel that this strategy offers any
meaningful solution to the problems associated with pornography
in our society. Therefore, evaluation and exploration of other
innovative strategies is necessitated.
Moralism - and Pornoqraphy: Blanket Condemnations
Moralists do not regard proof of harm as a necessary
prerequisite for criminal sanction. The conservative position
states that the morals of society are shared by the majority of
individuals. Individual actions may serve to destroy the purity
of the moral environment, however. Another moralist perspective
states that unless the law protects a society's morals this
neglect could lead to the moral decay and deterioration of
society. These noti'ons are known as the 'moral environment' and
'moral cohesion' views. Both share the belief that pornography
is used to produce feelings of lust and to encourage sexual
activity outside the bonds of marriage (Fraser Committee 1985:
1 8 ) . Pornographic material is, therefore, identified as
inherently bad or evil because of its focus on sexuality. It is
Considered to be detrimental to the institutions of marriage and
the family. Sexually explicit material may be banned on the
grounds that it poses a threat to the organizational structure
of society. Obscenity is "judged from the point of view of the
intrinsic wickedness or virtue of the material in question"
(Mahoney 1984: 37). Therefore, harm to individuals is a
sufficient but not necessary condition for legal control.
The community standards interpretation of obscenity
legislation is supported by the moralist position. Harm to
individuals is not at issue since "the law in this area...
appears to be concerned with protecting society from that which
it will not tolerate" (~akan 1984: 5). The law deals with the
protection of public morals (Bakan 1984: 7). The obscenity
approach to pornography is a consequence of the traditional
moralist perspective (Jacobs 1984: 29).
Moralists believe that the question of whether adults should
have access to certain sexual materials is appropriately
determined by community intolerance to those individuals being
exposed to such material. They urge the tightening of controls
and stricter enforcement of the law by police and the courts.
They contend that control of pornography is rightly governed by
obscenity legislation, nested within the 'Offences ending To
Corrupt Morals'. They similarly support the prior restraint of
Pornography at the provincial level, and will generally agree
with any law which may further their aims, notwithstanding the
original intention of those laws. Proposals promoted by
feminists may enjoy the support of moralists, because the
conservative approach realizes laws can be interpreted various
ways to preserve the status quo.
Liberalism and Regulation: - X Focus - on Freedoms
The liberal approach is the antithesis of the moralist
position. Civil libertarian views are deeply rooted in the
writings of a nineteenth century Englishman named John Stuart
Mill. Mill's emphasis was on the rights of the individual and
individual liberty, rather than on the rights of society (BCCLA
1984: 5). Mill objected to the moralist notion of majoritarian
'wisdom' and argued that the truth could only be obtained
through discussion within an open marketplace of ideas. This
ideology holds that individuals are most qualified to determine
their own actions (~raser Committee 1984: 15). The civil
libertarian perspective has evolved to the position where it can
accommodate the offence principle, and yet it can be argued that
restrictions on individual freedoms in the form of prohibitions
against pornography cannot be justified in the absence of proof
of harm to individuals (Bakan 1984: 8).
The prohibition of pornography is an abhorrent phenomenon
for the civil libertarians, as any form of censorship restricts
the free flow of ideas in a democratic society. Censorship
Prevents the unhindered current of information which allows the
true to be separated from the false. Social change is precluded
by restrictions on the dispersion of ideas. Liberals maintain
that the suppression of speech negates the possibility of
dissent and functions to preserve the status quo (Clark 1983:
5 3 ) . Civil libertarians do accept that the curtailment of
pornography woald be compatible within the context of the
provocation thesis and the offence thesis.
The offence thesis facilitates regulation, as opposed to
censorship. Therefore, it does not necessitate modification of
liberal tenets. Sometimes referred to as the 'adults only'
model, this view would cease the absolute state repression of
sexually related materials with respect to consenting adults
(~unsaker 1974: 9 3 9 ) . One avenue that has received a great deal
of support from the liberal community is the municipal by-law
approach. As a consequence of constitutional constraints,
municipalities have no authority to ban that pornography which
has not been declared obscene within their jurisdictions, but
they may regulate it.
Approaches to pornography at the municipal level are
advantageous because they allow communities some flexibility
with regards to the display and access to pornographic materials
in their community. An affront to its inhabitants may be
prevented, while an individual's right to produce or consume
Sexually explicit material will not be refused. ~unicipalities
in different locations express dissimilar concerns over
Pornography as a function of community size, culture and
regional variation. Municipal by-laws can effectively address
specific problems peculiar to a given community. Occasionally
municipalities invoke by-laws because of a shared sentiment that
federal measures concerning obscenity are ineffective. This
reason for the employment of by-laws is most likely to encounter
constitutional challenges. Municipalities have an important, yet
limited, role to play in the regulation of pornographic
materials. Zoning approaches, licensing regulations and nuisance
statutes are at their disposal.
Z o n i n g Or d i n a n c e s
There are two varieties of zoning ordinances. One type seeks
to disperse certain businesses dealing in pornography over a
specific area, while the other approach is to concentrate those
businesses within the same region. Both approaches zone
different areas of a municipality, outlining the land uses that
are permitted within those areas. Rules exist which govern the
breadth of zoning regulations. A zoning code must have very
accurate definitions of specific land uses. Municipalities
create zoning ordinances by creating a list of uses that will be
regulated, identifying each by its main characteristic. I f the
proprietor of an establishment uses his business in a different
manner than is outlined by the zoning ordinance, his or her
permit may be revoked. The purpose of zoning ordinances is not
to prevent pornography per - se, but to minimize the negative
influences which sometimes accompany the concentration of
businesses servicing the pornography market (~oner 1977: 1 2 ) .
City planners and community groups object to the pcrnography
trade because of the well documented negative effects that are
associated with a high percentage of pornographic uses in a
given area. These include a decrease in property values, higher
crime rates, traffic congestion and depressed neighborhood
conditions (Toner 1977: 2).
The 'divide and regulate' approach is designed to eliminate
the 'skid-row' effect evidenced in many neighborhoods of large
metropolitan areas. This form of zoning mandates that specific
types of businesses must be a set distance from any area that
has been zoned as residential. Similar businesses cannot be
within a specified distance from each other, such as 1000 feet.
The advantages to this model are that like uses are separated,
the 'public costs' of pornography are spread out over a much
wider area and the number of new pornographic establishments
within a community is effectively limited (~oner 1977: 1 2 ) .
Critics of this strategy contend that dispersal allows
'distasteful' businesses into sections of the city that would
not normally be polluted by them ('Tushnet 1970: 7 4 5 ) . This
approach has little impact on the existing retail distributors
of pornography.
Both types of zoning ordinances usually have 'grandfather
clauses1, whereby previously established businesses are not
effected by the ordinance (~eese Committee 1986: 3 8 8 ) .
Therefore, the problem remains static. Those municipalities
interested in 'cleaning up' their cities will be frustrated by
this barrier. The 'grandfather clause' is not as detrimental to
the clustering approach.
The clustering model concentrates like uses in a specified
area, creating an adult entertainment district. his approach
was adopted by the city of Boston, because many pornographic
businesses were already in existence in a specific area in that
city. To prevent the skid-row effect, this alternative must be
accompanied by other positive measures such as renovations,
increased police surveillance and environmental measures, such
as better lighting and general maintenance. Adoption of this
model legitimizes the businesses which do exist, and allows for
easy access by consumers. Although people in the immediate area
might complain, the rest of the municipality is protected from
offence by pornography and the problems that have become
associated with it. Uniform district standards can apply to the
whole area, so that all businesses are treated equally. This
model ensures lower administration costs, and helps entice
estab1ished.businesses from other parts of the city to this area
(Toner 1977: 7) .
The disadvantages of this model include the fact that
non-pornographic businesses may not be able to compete and stay
in the area. Alternatively, there may be a great deal of
pressure to expand the area into other zones. Tushnet ( 1 9 7 0 :
745) argues this strategy will be malproductive because it will
gather the consumers of socially disapproved material together,
and allow people access to more bizarre, extreme f o r m of
Pornography. Women who live in neighborhoods where pornography
is concentrated have complained that the number of pornography
consumers draws prostitutes into the area. Many of the women who
live in the community are mistaken for prostitutes and harassed
(MacKinnon 1985: 41 ) .
The clustering model can also be objected to on ideological
grounds. Some critics have maintained that this approach results
in a city subsidy of sex businesses (Toner 1977: 7 ) . Perhaps
more importantly, the concern remains that zoning may be another
instrument of power which protects the neighborhoods of the
politically influential at the expense of economically
disadvantaged areas (Meese Committee 1986: 390; Friedman &
Yankowski 1976: 2 9 ) . The poorer sections of the city may lack
the ability to deal with the increase in pornography. From this
perspective, pornography can be viewed as a class issue
( ~ a c ~ i n n o n 1985: 4 1 ) .
The success of both types of zoning models is contingent
upon very concise definitions of pornographic uses. To avoid
challenges, municipalities must be very specific about the types
of businesses named in a particular classificatory scheme. The
utility of the zoning approach lies in the fact that it is not
based on the content of sexually explicit materials. That
usefulness is only maintained through precise definitions of the
different uses. The most feasible method of zoning for
Pornographic uses is through age restrictions ( ~ o n e r 1977: 6 ) .
I f the recommendations of the Fraser Report and the Badgley
Report concerning access of children to pornography were
implemented, municipalities would not run the risk of
trespassing on the federal prerogative to legislate on criminal
matters. I f laws existed which criminalized the dissemination of
pornography to minors, the stores would effectively define
themselves for fear of prosecution. Children would be protected
from offencive advertising, signs or views of the interior of
the stores by the issuance of conditional use permits.
Jacobs (1984: 51) objects to the fact that businesses which
have a partial trade in sexually explicit material will have all
their wares and services determined by the zoning ordinance,
constraining protected expression in attempts to control
'obscene' material. This is a legitimate problem with the zoning
approach, but it is not insurmountable. Toner (1977: 12)
advocates the use of waiver provisions in ordinances. These
provisions allow the municipality to grant exemptions from the
zoning restrictions in specific circumstances, such as for movie
theatres which occasionally show an explicit movie. The waiver
provisions are a reasonable way of ensuring that the zoning
ordinances do not present too great of an obstacle to different
enterprises, providing their effects do not contribute to
community decay.
Zoning approaches must relate tc the planning effects of the
use. I f a municipality cannot offer evidence that certain types
Of uses will have negative effects on the city through noise
P~llution, unsightly signs, traffic problems or crime the zoning
Strategy may not be the most appropriate measure. Many
communities prefer the licensing approach, and the leeway which
accompanies it.
Li c e n s i n g R e g u l a t I o n s
Licensing ordinances often outline specific rules governing
the operating practices, facility standards and development
standards for businesses. The conditions of the license are
concerned with the operation of the business, and not its
content or the actual products it provides. Therefore, adult
entertainment stores are often confined to particuiar hours of
operation, must restrict their window displays and advertising
and must not provide minors with pornographic materials (City of
Vancouver 1984: 5 ) . Some municipal regulations state that
sexually explicit materials must be placed a certain height off
of the ground, out of the reach of children, or be wrapped in an
opaque covering.
Municipalities have been accused of creating licensing
procedures that are unnecessarily strict. Some applicants are
required to provide detailed background histories and are denied
licenses i f they have been convicted of a criminal offence
(~oner 1977: 16). Many municipalities charge licensing fees or
Special deposits. These fees should apply equally to all similar
businesses, and not be designed to prohibit trade in sexually
explicit materials. I t should be expected that the fees caver
the costs incurred by the municipality. They should, therefore,
not be exorbitant. Municipalities may perceive thac licensing
approaches are quite flexible, and are preferable to zoning
strategies for that reason. The licensing approach is much more
vulnerable to legal challenges, however. Municipalities must be
certain that their by-laws are not vague and that they do not
prevent any legal enterprises (Fraser Committee 1985: 2 1 7 ) .
Licensing power cannot be used as an indirect method of
suppressing pornography. Licenses can only be revoked on the
basis of the faulty operation of a business (~achtel 1979: 8).
Municipalities are not responsible for legislating morality and
must bow to the federal power to do so.
The aims of municipal zoning ordinances and licensing
regulations are not to prevent commerce in obscene materials.
They do not usually restrict the market, and in the event that
they do, they will be considered unconstitutional (Tushnet 1970:
7 4 5 ) . Moralists disagree with this regulation approach because
it allows access to sexually explicit materials. ~eminists are
critical of using this strategy in isolation from other
controls. Municipal by-laws rarely address the problem of
violent materials within the community, and focus exclusively on
sex (~ughes 1985: 1 1 0 ) .
Some municipal practices receive more criticism than others.
Placing magazines five feet off the ground, for instance, does
littie to protect women or tall children from the materiai
(working Group 1984: 60). Although the strategy does minimize
the amount of insult suffered by women, it does not question the
existence of pornography within society (~acobs 1984: 5 1 ) .
Regardless, it remains a feminist assumption that women do not
escape the effects of pornography i f they have not been forced
to view it or have not been sexually assaulted. Pornography is
estimated to defame all women, irrespective of individual
exposures (~obson 1985: 13).
Feminists and civil libertarians fear that municipal by-laws
will be misused and applied to non-sexist sexual material. They
cite similar situations in the united States, where licensing
and zoning regulations have been used to control the
availability of birth control, feminist, gay and lesbian
information (Burstyn 1985: 1 6 0 ) . Fahringer and Cambrian (1978:
555) caution that zoning ordinances can be manipulated to
suppress sexually oriented material that has never been
judicially declared obscene, stating "Vague statutes and
administrative classifications affront the due process clause by
permitting and encouraging the arbitrary prosecution and
enforcement of zoning laws" ahri ringer & Cambrian 1978: 561).
Many liberals argue that "regulating a forum is not
inconsistent with the maintenance of its freedoms" (BCCLA 1984:
2 7 ) . These individuals may feel that specific by-laws border on
censorship but they still support the offence principle as
justification for regulation. Other civil libertarians object to
zoning ordinances and licensing provisions because the
consequences of such strategies may be indistinguishable from
moralism.
Liberals react even more strongly to the prospect of control
of pornography by nuisance statutes. The employment of nuisance
statutes for the control of obscenity has not been successfully
upheld in Canadian courts, although it has been proposed as one
alternative to our Criminal Code obscenity provisions.
iVui s a n c e St at ut e s
Many liberals believe that criminal penalties are too severe
for regulating obscenity. Nuisance statutes are conceptualized
as one viable alternative. Legislatures are able to formulate
statutes that define public nuisances. Public nuisances can then
be zoned against and abated (~einberg 1979: 569). Conceptually,
this strategy is consistent with the view that pornography is a
nuisance, like aversive noise, but not dangerous. It is,
therefore, subsumed under the offence principle. The public
nuisance tort doctrine is a non-criminal process used to protect
unwilling audiences from contact with public displays of
pornography (Vivar 1982: 67). The nuisance approach is
distinguished from the zoning strategy because it regulates the
content of expression. Its aim is prohibition as opposed to
relocation. Civil libertarians object to the procedures involved
in abating a nuisance and their consequences, yet not the
philosophy underlying the nuisance approach.
Nuisance statutes developed from the common law nuisance
Offence. Any activity injurious to the safety, health, or xorals
of the public was considered a public nuisance and could be
abated by judicial injunction !Catlett 1984: 1617) . Nuisance
statutes are widely used in the United States. The many statutes
differ to some extent but maintain some commonalities. The
courts have not unanimously agreed that obscenity is properly
defined as a common nuisance. Therefore, many statutes define a
nuisance to include obscenity. The statutes authorize the
prosecutors to initiate a civil action to abate the nuisance.
Some statutes allow enforcement by private citizens (~acobs
1984: 4 9 ) . Abatement hearings are provided for, whereby the
court decides whether some person is actually maintaining a
nuisance. It must be ascertained whether the material is
obscene, and therefore a nuisance. If the material is considered
a nuisance, an injunction will be issued to abate it. The
injunctions have two main sections. The first is a specific
injunction which bans the material that has been declared
obscene. The second part of the typical injunction is
responsible for the majority of the controversy surrounding
nuisance statutes. It is known as a 'blanket' or 'standards'
injunction outlawing the future display or distribution of
obscene materials. I f a person does not concede to the
injunctions, contempt proceedings can be instigated for the
violation. In essence, this becomes a criminal obscenity trial
(Catlett 1984: 1619) .
This approach is very enticing to some liberals. Nuisance
regulatory methods are considered more effective and less
stigmatizing than regular criminal obscenity proceedings
(~atlett 1984: 1 6 6 ) . Injunctions offer a more efficient method
than Criminal Code options because they take precedence over
other matters and can prevent the dissemination of obscene
material very swiftly. The nuisance approach recognizes that
context as well as content effects the determination of
obscenity (Milligan 1970: 6 4 3 ) . It is consistent with the
liberal approach and is not predicated upon a link between
pornography and aggression. It acknowledges that communities
suffer from a concentration of pornography in economically
disadvantaged areas, and protects individuals from unwanted
confrontations with pornographic displays.
I it was decided that pornography constituted a public
nuisance it would be a strict liability offence, requiring no
proof of intent. The application of fines upon violation of an
injunction could arguably aid in removing the profitable aspect
from pornography (~illigan 1970: 6 4 5 ) . The injunctions help to
regulate future conduct, not penalize past conduct. They are
created on an individual basis and, therefore, are very
applicable and precise. The sanctions available are much more
flexible than criminal sanctions. In the event that a violation
does occur, the court may impose compensation requirements for
the wronged party, or effect compliance through coercive
Sanctions (Rendleman 1977: 5 1 1 ) . These could take the form of
Special taxes to be levied, void leases or a closing of theatres
or businesses (Cherry 1973: 1 7 1 ) .
The legal procedures invoked by a public nuisance statute
are much less onerous than the corresponding criminal
procedures. The burden of proof is not as strict, with no
requirement of proof beyond a reasonable doubt. I t is lowered to
that of a 'preponderance' or of 'clear and convincing' evidence
(~acobs 1984: 4 9 ) . Other barriers for protecting the defendants
are not applicable to civil proceedings, including the guarantee
of trial by jury (~endleman 1977: 5 1 1 ) . These are certainly
questionable advantages from a civil libertarian perspective.
Although they ensure quicker actions they destroy the
procedural safeguards which are built into the criminal system.
The public nuisance statutes have been criticized for their
overbreadth and vagueness, granting them a questionable
constitutionality (Rendleman 1977: 5 2 5 ) . The 'blanket'
injunction is highly controversial because it operates against
materials that have not been declared obscene, severely
endangering the freedom of expression (~atlett 1984: 1 6 1 9 ) .
Known as 'padlock statutes', the injunctions do not inform
individuals about what is proscribed. Liberals complain that one
piece of pornographic material should not condemn a whole
business. The injunctions do not distinguish between protected
Speech and pornography ahri ringer & Cambrian 1978: 5 7 6 ) . Store
owners and theatre managers, wary of penalties for commerce in
obscene materials, may resort to a self-censorship which is
effectively much more restrictive than any obscenity law. A
nuisance approach to pornography becomes a form of prior
restraint. Prior restraint preempts the possibility of public
scrutiny and acccuntablity. Fahringer and Cambrian ( 1 9 7 8 : 577)
warn of the high potential for abuse inherent in a nuisance
strategy. Powerful individuals can use this device to prohibit
ideas contrary to their own.
Canadian law does not recognize 'commerce in obscene
materials' as part of the definition of 'nuisance' (Bakan 1984:
10). The aim of nuisance statutes is prohibition. This approach
is not very feasible within the Canadian context. An
implementation of public nuisance statutes would constitute a
trespass on the federal power to create criminal law.
C i v i l A d j u d i c a t i o n
Another strategy very similar to the nuisance approach is
the civil adjudication of obscenity. Civil adjudication can
proceed before, with, or separately from any criminal
prcceedings. The procedures available for the civil adjudication
of obscenity are outlined in enabling legislation (Schmidt 1977:
146). In brief, if a prosecutor believes any material ta be
obscene he or she is able to file a suit against the publisher
or distributor. Subsequent to an advisory hearing, a temporary
injunction can be issued, preventing further dissemination or
display of the suspect material. A civil trial would normally
ensue and a finding of obscenity would result in the surrender
and destruction of the obscene material. I f the distributor or
retailer violated a permanent injunction against sale or
dissemination of the material he or she would be subject to a
fine and possibly prosecution according to other statutory
provisions (Vivar 1982: 6 8 ) .
This approach suffers almost all of the weaknesses of the
nuisance strategy. The civil adjudication process questions the
principles of due process, right to trial by jury, and similar
constitutional restrictions. It depends on existing definitions
of obscenity. In addition, this avenue increases the potential
for abuses by over zealous prosecutors (Vivar 1962: 68; Schmidt
1977: 1 4 7 ) . This is due to the fact that the prosecutor
initially uses his or her own discretion in the decision to
initiate an action against material that he or she believes to
be obscene (Schmidt 1977: 1 4 6 ) . The main advantages of civil
adjudication are the relatively short period of time the process
requires, as well as the fact that distributors and retailers
can avoid the stigmatizing effects of criminal conviction.
Liberals reject this approach however, contending that this form
of control would cause non-pornographic works to be jeopardized
because the material would be shunned by cautious distributors.
Although the civil adjudication approach is an expression of the
offence principle, its consequences are similar to those of
moralism.
The Problems of Harm, Freedom of Speech and y quality ~ights
- - -
Liberal ideology is theoretically congruent with the
provocation thesis. In the event of a systematic causal
connection between pornography and demonstrable harm to an
individual, civil libertarians would champion state attempts to
legally control specific types of pornography. The bone of
contention between feminists and civil libertarians exists in
the type of harm necessary and the required standards of proof
of this harm. The B.C.C.L.A. (1984: 27) argues:
There is no evidence which suggests any systematic
causal link between the production and viewing of any
variety of pornography and the commission of criminal
acts against women or anyone else. In the face of the
absence of such evidence, a democratic community is
bound to protect the freedom of expression of those who
produce pornography, and the rights of those who wish to
view it.
Liberals contend pornography is speech and a proper response to
objectionable speech would be more speech. From this perspective
the good would triumph over the bad. This conclusion is preceded
by the conviction that harm from speech is categorically
different and less serious t h a ~ physical harm. Harm engendered
by speech is considered possibly avoidable and withstandable
(BCCLA 1984: 12). Civil libertarians, therefore, have a powerful
investment in free speech. Liberals argue that all obscenity
laws should be repealed and free speech should reign. he free
speech approach is entire1.y unacceptable to some strands of
feminist theory.
F r e e d o m of S p e e c h
The legal control of pornography is threatened by the idea
that pornography is political speech, and should therefore be
protected. Hughes (1985: 1 1 3 ) disagrees, maintaining that
freedom of speech has never been awarded the status of an
absolute freedom. Pornography is not a judicially recognized
form of protected political speech in the United States, despite
the fact that feminists consider it to have a political
function. It remains to be seen whether this issue will assume
the same controversial nature under the provisions of the
Canadian Charter of Rights and Freedoms.
- -
The free speech debate seriously endangers the viability of
approaches to pornography within the feminist community. Critics
contend that anti-pornography campaigners are contradicting
themselves by stating that pornographic speech contains no ideas
or expressive interests, while simultaneously fearing it for the
power of its misogynous messages (Duggan et al. 1985: 1 4 6 ) . Some
types of pornography may be regarded as a form of political
Speech, such as representations created by oppressed sexual
groups. Duggan et al. presents the view that:
for some sexual minorities, sexual acts can be
self-identifying and affirming statements in a hostile
world. Images of those acts should be protected more for
that reason, for they do have political content. Just as
the personal can be political, so can the specifically
and graphically sexual (1985: 1 4 6 ) .
Rather than asserting that pornography is not political, many
Prominent American feminists, such as Andrea Dworkin and Susan
Griffin, maintain that pornography is an act. MacKinnon ( 1985:
65) agrees that pornography is more act-like than thought-like
and, therefore, does not deserve protection as free speech.
MacKinnon states:
The fact that pornography, in a feminist view, furthers
the idea of the sexual inferiority of women, which is a
political idea, doesn't make the pornography itself into
a political idea. One can express the idea a practice
embodies. That does not make that practice into an idea.
Both positions are difficult to defend, because pornography does
not fit neatly into either category. Hard-core pornography
scarcely resembles what one would normally regard as speech, and
yet it is not an act in the true definition of the word. It is
perhaps safest to claim that pornography has elements of speech
and conduct within it. Its message is undoubtedly political, but
many contend that outdated notions of free speech have a dubious
bearing on the pornography issue.
Consistent with the provocation thesis, both liberals and
feminists believe that speech must be restricted i f it causes
serious harm. Feminists regard civil liberties and individual
rights as secondary to equality rights and social justice
( ~ c ~ o r m a c k 1980: 7). Feminists do not believe that pornography
must cause acts of violence against individuals before it can be
Considered harmful. Clark (1980: 10) argues that pornographic
materials do not directly cause crimes of violence against women
and children, but must be objected to because they reinforce a
system built upon the unequal status of the sexes.
Liberal harm demands proof of a 'clear and present danger'
with the onus on the would-be censors to substantiate its
existence. A clear and present danger must be:
a compelling and overwhelming threat of harm that is
tangible and immediate and that can only be avoided by
suppressing speech (~ahoney 1984: 4 5 ) .
Mahoney (1984: 45) submits that the 'clear and present danger'
test is not applicable to obscenity. The test was initially used
in the United States to examine repression of political speech
by the government. The test has been modified to some extent,
but it essentially states that freedom of speech should not be
constrained unless it presents a clear and present danger to
society (Linz et al. 1984: 284). I t has not been used
successfully in either Canada or the U.S.A. with respect to
obscenity. It never had to be considered in the U.S. because
obscenity has never qualified for first amendment protection. It
is doubtful that the 'clear and present danger' exemption, as it
applies to the welfare of women, will ever qualify as a
reasonable limit upon freedom of expression in Canada (Arbour
1985: 1 1 ) .
Feminists assert that civil libertarians must re-evaluate
their position concerning pornography and free speech for two
reasons. Firstly, Mill's nineteenth century principles have
little practical relevance and applicability to contemporary
circumstance. Secondly, liberal notions of the necessity of a
clear and present danger must be reformulated to include other
types of harm. Contemporary sexual representations share few
commonalities with nineteenth century pornography. Technologj~
and photography have radically altered the nature and quantity
of pornography. Modern pornography serves to subordinate women.
The goals of nineteenth century liberals were to loosen the hold
of the church and the state on expressions of sexuality (Clark
1980: 1 1 ) . Today's pornographers do not share those liberals'
intentions. Pornography has radically changed in content, form
and function.
Mill's 'free marketplace of ideas' is based on equality, so
that truth or good will naturally overpower negative ideas.
Women do not have the power to combat capitalism and the power
of the pornographers. Letters to the editor do little to combat
the many faceted abilities of modern technology. Pornography
functions to silence women and deny them the right to object to
their oppression (~ahoney 1984: 49). MacKinnon (1985: 63)
believes pornography to be incompatible with more speech for
women because it "strips and devastates women of credibility,
from our accounts of sexual assault to our everyday reality of
sexual subordination." unconstrained free speech translates to
civil inequality and guarantees that women's voices will not be
heard.
McCormack (1980: 8) criticizes the civil libertarians for:
Using eighteenth century rhetoric to defend nineteenth
century economic laissez-faire in the cultural monopoly
of capitalism of the twentieth century.
A free 'market place of ideas' will only be meaningful for
feminists with the help of affirmative action progranmes and
policies mandating and subsidizing preferential access for
women. This avenue will allow an opportunity to correct the
one-sided market by giving women a voice to object to their
oppression (McCormack 1985: 271).
Feminists enjoin that Mill's principles and utopian notion
of an open forum of ideas is not possible in a patriarchal
society dedicated to sexism. Feminists maintain that pornography
is not dissent, and actually supports the status quo. It is
consistent with the notions of marriage and the nuclear family
6 within our society. ornography reaffirms the social values of
I
male domination and the oppression of women. Pornography is a
prejudice rather than a protest (Mc~ormack 1985: 274).
Clark (1983: 50) argues that liberalism must rethink its
concept of harm so that it will be consistent with equality. She
states:
the liberal principle behind opposition to censorship is
based on a recognition that desirable social change
requires public access to information which challenges
the beliefs and practices of the status quo, what it
does not acknowledge is that information which supports
the status quo through providing materials which
'advocate the use or threat of coercion as a technique of
social control directed at a clearly identifiable group
depicted as inferior, subordinate, and subhumzn, works
against the interest both of desirable social change and
the members of the subgroup so identified (1983: 57).
Clark asserts that liberalism assists the dominant sex and
class. She argues for a reinterpretation of its principles to
account for equality rights and a greater liberty for all.
One of the greatest barriers to restrictions on pornography
is the liberal contention that any control of pornography would
amount to a denial of freedom of expression. The protection of
free speech is a crucial element to the maintenance of
democratic systems. Bakan (1984: 30) argues, however, that an
acceptance of feminist principles of harm would necessitate a
protest that the law fails to provide women with equal
protection of their rights to liberty and security. He
contemplates the imposition of a positive duty on Parliament to
amend the existing obscenity provisions to guarantee that women
will be equally protected from harm engendered by pornography.
This motion is premised on the assumption that pornography
differentially harms women. His proposal is in congruence with
ss.15(1) of the Canadian Charter of Rights and Freedoms which
- -
states:
Every individual is equal before and under the law and
has the right to the equal protection and equal benefit
of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.
Bakan (1984: 31) emphasizes the tentative nature of his
proposition. This possibility is not inconsistent with the
recent judicial trend in Charter considerations, however.
Although the Charter is relatively new and untested, there is a
great optimisr~ concerning its potential. The members of the
Fraser Committee share this anticipation, stating:
Signs are that courts are prepared to take seriously the
task of balancing individual rights and social concerns,
and pay attention to other community members' rights
which are at the root of the broader social concern with
pornography (~raser Committee 1985: 1 4 3 ) .
Many individuals are fearful that Canadian courts will
eventually follow the American tradition with respect to
pornography control. American courts regard 'obscenity' as
speech which is not constitutionally protected. The ~merican
approach is to maintain a fairly narrow interpretation of speech
so as to exclude pornographic expression. The Canadian term
'freedom of expression' is considerably broader than the
American 'freedom of speech', however, making it more difficult
for courts to deny that pornography falls within its ambit.
Regardless, freedom of speech has never been held to be absolute
in the U.S.A. Some restrictions have always applied (~ughes
1985: 114). Therefore, the American instance tenders an improper
categorization, disregarding the feminist critique of
pornography as the sexually graphic depiction of the
subordination of women (Arbour 1985: 2 0 ) . Many feminists
advocate allowing 'speech' or 'expression' a wide enough berth
to include pornography and subsequently limiting that speech
under section 1 of the Charter. Therefore, the preferred
interpretation is that the curtailment of pornography is a
restriction on the freedom of expression guaranteed in s.2(b) of
the Charter, but one that is demonstrably justified in a free
and democratic society, given the Charter's commitment to the
Preservation of equality rights.
Pornographers and others defying feminist pornography laws
will inevitably challenge that the legislation restricts their
freedom of speech under the Charter guarantees. The legislators
responsible for enacting the legislation will undoubtedly
respond that the law is a reasonable limit on freedom of
expression, because the government is dedicated to eliminating
sex discrimination. The state could defend its legislation with
the argument that clause 28 creates an overriding exception to
clause 2 freedoms, because clause 28 explains that the guarantee
of sexual equality imposes a positive duty on the state to
create an 'exception' to free speech for the elimination of sex
discrimination (Lahey 1985: 682) . Lahey reduces the 'free
speech' issue to a consideration of clause 28. She states:
Viewed within the Canadian constitutional paradigm,
then, the ultimate constitutional issue is the meaning
and effect of clause 28. Immune from the limitations
language in clause 1 , insulated from the provincial
overrides in clause 33, and even exempt from the three
year moratorium on equality rights under clause 32,
clause 28 stands as a strong statement that Canadians no
longer believe that sex discrimination is justifiable,
defensible, or tolerable (Lahey 1985: 684) .
Canadian proposals for pornography laws are, therefore, more
likely to escape Charter battles i f they are presented in the
form of sexual discrimination legislation.
Feminists advocating the control of pornography face the
challenge of reconciling the problems of harm, freedom of speech
and equality rights. They accuse liberals of being unduly
reticent concerning the exercise of the provocation principle.
Feminists do not consider the 'clear and present danger' test to
be applicable to the pornography issue. Mill's notion of a 'free
patriarchal society marked be sexual inequality. Freedom of
expression challenges can be countered with the feminist
argument that pornography is an act. Yet, stronger rebuttals are
available within the Canadian context. Feminists exhorting new
controls on pornography are banking on Parliament changing
Canada's existing obscenity laws. Bolstered by the emphasis on
equality rights within sections 15 and 28 of the Charter, many
feminist approaches to pornography are now being subnitted.
Feminist Theses: Perspectives Harm
~ 0 t h the provocation thesis and the direct harm thesis are
feminist theses. Although both notions focus on harm to
individual women, the provocation thesis conceptualizes men as a
mediating variable between pornography and harm to women. The
direct harm principle asserts that the harm emanates from the
pornography itself. Women suffer psychological harm as a result
of the existence of pornography. This is a function of the
recognition that pornography systematically degrades women as a -
group. ~t must be remembered that a feminist discussion of
Pornography does not hinge on the issue of sexual explicitness.
Many approaches to pornography are compatible with feminist
Principles. The human rights approach, civil actions based on
the provocation principle, civil rights legislation, and
Proposed amendments to hate literature provisions are all
manifestations of the provocation thesis or the direct harm
thesis, Often the proposals have elements of both theses within
them.
The human rights approach has assumed a very popular
position within the anti-pornography movement. Different
procedural options are available under this strategy. One could
argue for a broader and more liberal interpretation of the
existing human rights codes, consistent with the Charter.
Alternatively, one could create new civil rights legislation or
draft and enact a separate, distinct amendment to existing human
rights codes, specifically restricted to pornography. The
Dworkin-~acKinnon Ordinance employs this approach assel el 1985:
9).
T h e Dwor k i n- MacKi n n o n O r d i n a n c e
Perhaps the most famous manifestation of the human rights
angle can be found within the anti-pornography ordinance, which
was drafted by Catherine MacKinnon and Andrea Dworkin for the
city of Minneapolis. The by-law was borne from the understanding
that obscenity laws and zoning ordinances did not directly
address the harm that pornography does to women (~lakely 1985:
40). The by-law combines a civil rights approach with class
action. ~ 1 1 three levels of government can enact civil rights
legislation of this variety (Cole 1981: 1 1 ) . The only American
municipality to actually adopt it was Indianapolis, ~ndiana,
despite the fact that it, and versions of it, were proposed in
many other communities (Duggan et al. 1985: i 3 3 ) . The ordinance
has been declared unconstitutional in the United States, because
it attempts to reach material other than sexually violent or
degrading material which is legally obscene (Meese Commission
1986: 3 9 4 ) .
The by-law identifies pornography as an evil which is best
addressed by legislation drafted to ensure human rights and
dignity. The by-law illuminates pornography as a form of
discrimination on the basis of gender (~raser Committee 1985:
305). It makes pornography a violation of women's civil rights
by declaring that it harms women's rights of citizenship through
sexual exploitation and torture (Dworkin 1985: 22). It provides
that the use of men, children or transsexuals in the place of
women does not avoid the definition of pornography for the
purpose of the ordinance.
The civil rights law that Dworkin and MacKinnon framed
identifies pornography as a "systematic practice of exploitation
and subordination based on sex that differentially harms women"
( ~ w ~ ~ k i ~ 1985: 24). The harms that these theorists identify
mainly support the provocation thesis. The harms include
physical injury, coercion, and econonic and social
discrimination. The injuries are presented in the ccntext of
harms that 2re caused by men as a consequence of their
Pornography use.
Some of the by-law's harms could arguably be attributed to
the direct harm thesis, because basic civil rights include the
right to dignity and bodily integrity (~ughes 1985: 1 2 0 ) . Yet,
this interpretation of the ordinance stretches its intent to
some degree. Although it may acknowledge the direct harm thesis,
the ordinance is basically designed as a tool to combat the
harms laid out in the provocation thesis. Dworkiri and
MacKinnon's ordinance could only be considered a manifestation
of the direct harm thesis if women suffered direct psychological
harm which became transferred into damage to their civil rights,
as a result of the existence of pornography.
Since the by-law is more directed at harms to women
engendered by the male consumption of pornography, it is largely
an expression of the provocation principle. The human rights
approach identifies pornography as a form of hate literature
which promotes misogyny in our culture. Pornography, therefore,
is discrimination against women on the basis of sex.
The anti-pornography ordinance states that actions could be
brought against the pornographers, distributors of pornography
and users of pornography. The anti-pornography statute is aimed
at trafficking in pornography, coercing someone into a
Pornographic performance, forcing pornography upon a person and
assault engendered by pornography. An individual bringing an
action under this ordinance could file a complaint with the
city's civil rights commission which could then file a lawsuit,
or the person could file a lawsuit directly. Remedies at court
could include a monetary award and the issuance of an injunction
(hggan et al. 1985: 1 3 4 ) .
The by-law defines pornography in very explicit terms. It
defines pornography as "the graphic sexually explicit
subordination of women through pictures and/or words that also '!
includes one or more of the following: workin in 1985: 25).
The by-law provides a very exhaustive list of behaviours. This
approach was adopted in the hopes that the general public would
be able to distinguish the pornographic from the
non-pornographic, thereby minimizing the likelihood of the
'chilling effect' of self-censorship (~acKinnon 1985: 24).
The anti-pornography ordinance has received considerable
scrutiny since its conception. On the positive side, it empowers
women to fight pornography. I t frames pornography as a civil
rights issue, and allows for action to be taken through civil
rights commissions. The by-law permits a civil remedy,
redistributing some of the power from the state to individual
Women. The Dworkin-MacKinnon Ordinance does not rely on the
community standards benchmark in a determination of liability.
It disconnects pornography control from the sexist and
heterosexist overtures of obscenity laws and censorship
regulations (Cole 1985: 2 3 4 ) .
Remedies can take the form of an injunction or monetary
awards for damages. This avenue could potentially remove the
Profit factor from the production and distribution of
Pornography. Supporters of this approach applaua it for
Procedural reasons. I t could be much less expensive than private
Prosecution, and the burden of proof would not be as strict
(Fraser Committee 1985: 307).
Section 3 of the municipal by-law outlines the Unlawful
Practices. The most controversial section is the trafficking
offence. I t states "It shall be sex discrimination to produce,
sell, exhibit, or distribute pornography, including through
private clubs" workin in 1985: 26). Any woman could bring an
action under the trafficking provision on the behalf of women as
a group. This section requires no proof of harm caused by
pornography. It was specifically designed that way because the
law has traditionally suspecte? women's words. The trafficking
provision is interesting because "women's lack of credibility
cannot be relied upon to negate the harm. There is no woman's
story to destroy" (~acKinnon 1985: 6 0 ) . Landau (1985: 8) argues
that legal difficulties with class actions in Canada may preempt
any meaningful consideration of this section. There is confusion
over what damages could be awarded and how the damages could be
Proven.
The coercion provision mandates that it would be sex
discrimination to coerce any person into a pornographic
Performance. Laws already exist in Canada which prohibit this
conduct, such as laws against assault and fraud. The notable
element of this provision is that it is accompanied by a list of
thirteen defences that could not be used by pornographers,
including that a person signed a contract or was paid for a
Pornographic performance. The list of inapplicable defences was
compiled by Dworkin and MacKinnon. They made a record of all of
the excuses that were used in court to undermine the credibility
of sexual assault victims. They incorporated these excuses into
the ordinance, in the hopes of preventing similar abuses by
pornographers (~lakely 1985: 120). Landau (1985: 8) suggests
that the trauma of suing under this provision and the
accompanying cross-examinations by the defence counsel could be
more unpleasant than the indignities suffered by women during
rape trials. Further, she feels the section is not necessary
because Canadian women can already sue for crimes associated
with coercion into pornography.
Section 3(3) provides for forcing pornography on a person.
It is unclear how 'forcing' would be interpreted by a court. In
any event, sexual harassment laws now prevent that behaviour in
the workplace. This section may help prevent the open display of
pornography in corner stores and drug stores, but anti-display
by-laws can effect the same purpose. This section would not
affect the producers and distributors of pornography, but
largely the small retailers. The pragmatics of the provision are
Called into question when one contemplates suing a small
business person for 'forcing' pornography. Any damages awarded
on the basis of mental suffering would be too minimal to justify
the court case (Landau 1985: 8).
The last provision is clearly a form of the provocation
Principle. ~t allows for the makers, distributors, sellers and
distributors of pornography, as well as the perpetrator, to be
sued or enjoined in the event of a physical assault as a result
pornography consumption. It would be very difficult to prove in
court that an attack was a direct consequence ~f the viewing or
reading of a specific piece of pornography. Remedies are already
available which can address this circumstance, such as under the
negligence principle, but they would encounter the same problem
of proof.
The practicality of this section is questionable. Much of
Canada's pornography is imported, and yet it would be difficult
to reach American producers within the ~anadian framework. There
would be problems involved in bringing actions against retailers
as well. I f a magazine was purchased in one location, and a
crime committed in another, a plaintiff would have to show
evidence concerning which retailer sold the magazine (~andau
1985: 9 ) . This could prove to be a very difficult process.
Arbour (1985: 14) observes that federal-provincial clashes
might develop i f the discrimination approach is to be adopted at
the provincial or municipal levels. She suggests that the
remedies created by provincial legislators may determine whether
or not such legislation could be deemed -- ultra vires. As long as
remedies remain within the asymptotes of 'property and civil
rights' the legislation may remain constitutional. However,
anything beyond compensation in the form of damages may
be found to amount to an attempt to legislate with
respect to criminal law by using remedies more suited to
the protection of a public interest than to the
vindication of a private right (Arbour 1985: 13).
Many feminists do not share Dworkin's and MacKinnon's
enthusiasm over the effectiveness of their municipal approach.
It is unclear why the ordinance restricts its focus to sexually
explicit depictions (Blakely 1985: 120). The harms the theorists
cite would most probably apply to non-explicit depictions. There
is a danger that by focussing exclusively on extreme images, one
can legitimize the remaining sexist images (Manion 1984: 75).
Although the authors purposely provided exhaustive
definitions of pornography, critics submit that the definitions
are still vague, and in practice revert the focus from sexual
violence back to sexuality itself. Terms such as 'subordination'
and 'whores by nature' can be interpreted in many different ways
by the individual bringing the action, as well as the judge
hearing the case (Duggan et al. 1985: 134) . MacKinnon (1985: 2 3 )
explains that 'subordinates women' focusses on the sexually
explicit which subordinates women, and not on all of the
Sexually explicit depictions of the subordination of women. The
court need not interpret the by-law in the intended manner,
however. Phrases such as 'whores by nature' are equally
Problematic because, according to some points of view, women who
have a variety of sex partners are indeed whores by nature.
The criteria used to identify pornographic images within the
ordinance are very ambiguous. The by-law operates independently
from a consideration of context and the role of audience
interpretation of images. Individuals use culturally and
historically specific codes in an effort to decipher a
representation (Diamond 1986: 3 0 6 ) . Fragmentation and
objectification in isolation cannot provide a recipe for
pornography. Context remains the deciding factor.
Boyd ( 1986: 2 1 ) maintains that the ordinance is just too
broad in its scope, although Emerson ( 1984: 132) insinuates that
this is not accidental. It is because virtually all of the
products of our culture reflect the inferior status of women.
Regardless, one cannot attack the objectification inherent in
pornography without fighting it in more mainstream images, such
as those found in advertising or fashion.
There is concern that i f this approach were adopted in its
present form, publishers could be open to a multitude of legal
battles (Meese Committee 1986: 395). Artists and writers could
conceivably be restricted from being able to exhibit their work
because the by-law is so broad in its scope. Wary publishers
would refrain from publishing borderline works, victims of the
'chilling' effect of too repressive a legislation.
Although the proponents of this by-law claim it is directed
at misogynist, sexually explicit and violent representations the .:
Sexually explicit and sexist can easily come under fire (~uggan
et al. 1985: 1 4 0 ) . Dworkin and MacKinnon undoubtedly did not
foresee explicit consensual representations as being within the
ambit of their ordinance. The presentation of women as sexual
objects "through positions of servility or submission or
displayv might accomplish this purpose, however, making explicit
sexuality a target of the by-law.
The argument is also made that the by-law is not a radical
device for righting the wrongs of patriarchy. In fact, the
ordinance has been accused of presenting women in the same
manner that pornography has traditionally. Because of its
adherence to the provocation principle, the ordinance views
women as passive creatures, while men assume the role of the
aggressor and actor. The ordinance is also misleading because it
implies that sexuality is male and not female, and that sex is
dangerous for women. It alludes to the fact that penetraticn is
synonymous with submission and that heterosexuality is sexist
(~lakely 1985: 40). The coercion clause implies that women
cannot consent to pornography and must be awarded protection.
Women are conceptualized only in terms of their victimization.
The ordinance, therefore, cannot be considered an empowering
weapon. Critics question the pragmatics of women initiating
actions and challenging pornographers. In the end the argument
must be settled in court, by a usually male judge, reflecting
non-feminist concerns (~uggan et al. 1985: 134).
Many feminists, sensitive to the oppression of any group on
the basis of sexual preference, feel the ordinance
inappropriately strikes at sado-masochistic depictions. Duggan
and associates argue that the "legislation would virtually
eliminate all SM pornography by recasting it as violent, thereby
attacking a sexual minority while masquerading as an attempt to
end violence against women" (1985: 140). Sado-masochistic
presentations present a particular dilemma for the feminist
community, which is divided on the issue of how one is to
distinguish between sexual violence and sado-masochism.
Feminists are worried that this type of legislation presents yet
another barrier to feminist goals, because "further narrowing of
the public realm of speech coincides all too well with the
privatization of sexual, reproductive and family issues sought
by the far right" (~uggan et al. 1985: 147). Despite Dworkin's
contentions that the by-law is not censorship and that it will
not result in a black market effect, critics identify it as yet
another form of control that will limit expressions of sexuality
and thwart feminist aims.
I the by-law was not adopted in its entirety it would lose
much of its effect as a legislative tool and defeat the purpose
of its authors (Emerson 1984: 138). The Meese Commission
considered using the c work in-MacKinnon Ordinance at the federal
level, but only after it was tailored to their aims (1986: 395).
Different versions of the by-law have become popular in the
United States. The ordinance has been adopted by right-wing
groups who see elements of this approach as supportive of their
goals. Dworkin and MacKinnon themselves fought a mutant version
of their bill in Suffolk County, New York where right-wing
forces were attempting to use the bill in the moralist tradition
(~ac~innon 1965b: 40). Duggan et al. (1985: 133) warn cf the
repressive potential of the anti-pornography bill, suggesting
the attempts to co-opt this feminist intent illustrate the
danger of any alliance with right-wing forces. This brand of
censorship could be used by powerful concerns in our society to
further their own causes.
Cole (1985: 2 3 5 ) does not respect this argument, however,
identifying it as a scare tactic which supersedes needed reform.
She counters that:
The cooptive potential of the ordinance is a much
smaller present threat to feminists than are the present
powers of the police or of the film censors.
Furthermore, the right wing in Canada is not embracing
the strategy at all. Canadian moral majoritists trust
the police far more than they trust women.
The ~inneapolis Ordinance was created to empower women. I t
treats pornography as sex discrimination and as a violation ofi
women's civil rights. In this sense, it is not a conventional
form of censorship. It offers no reassurance to those who have
traditionally relied upon the State to enforce their politics.
Currently, this approach is being investigated by feminists
working towards its implementation within the Canadian context.
Although their Bill is not yet public, many individuals are
hoping that the guarantees of equality within the Charter will
advance the civil rights strategy, making it a practicable
option in this country.
C i v i l Ca u s e s of A c t i o n
The enactment of civil rights legislation has been promoted
as yet another human rights approach which would be feasible in
Canada, his civil action remedy retains the spirit and intent
of the human rights proposal. This approach does not negate the
possibility of other strategies, and it does avoid many of the
definitional pitfalls endemic to the Dworkin-MacKinnon
ordinance.
The Fraser Committee (1985: 3 1 4 ) was impressed with this
strategy. The committee suggested designing provincial
legislation similar to the Civil Rights Protection - Act of B.C.
The Act now identifies hatred or contempt of a person or a class .
of persons, or maintenance of the superiority or inferiority of
a person or class of persons as a prohibited act. A prohibited
act "is a civil wroag (tort) that can be subject of a claim by a
person or class of persons, without the necessity of the
complainant proving that any actual damage was suffered" (Fraser
Committee 1985: 3 1 3 ) . The court is empowered to award damages
and issue injunctions under this - Act. The committee was
attracted to the concept of identifying sex as one of the
prohibited bases.
The section of the B.C. legislation dealing with the
"superiority or inferiority of a person or class of persons in
comparison with another or others" may be problematic.
Television advertising and other mainstream images often
Succeed, with or without intent, to portray women as inferior.
This section may be overly inclusive. Feminist attempts to
Promote the value and worth of women could similarly be accused
of notions of superiority. Correspondingly, feminist criticisn!
of masculinity, although not a condemnation of males, could be
interpreted as such and be attacked for promoting female
superiority. Arguably, however, the cost factor may prevent many
unnecessary or inappropriate actions from reaching court.
The cost factor is naturally also one of the drawbacks to
this strategy. Individuals would be responsible for the expense
of these actions. Other difficulties may present themselves as
well. Unfortunately, passing legislation does not ensure that
judges will recognize pornography that is not blatantly violent
as hate literature. Landau (1985b: 36) suggests the inclusion of
examples as to what material the law can address be incorporated
into the legislation to help alleviate this problem. The
advantages of the civil action approach over other human rights
approaches that are directed through human rights commissions
include the fact that this avenue allows for a relatively
accelerated process and the plaintiff retains control over the
case.
C o m m o n Law Ci v i l Ac t i o n for Vi ol e n t P o r n o g r a p h y
Civil actions based on common law principles could
complement actions under civil rights legislation. Common law
civil actions for violent pornography are an illustration of the
Provocation principle. Tort principles could be applied to the
case in which a plaintiff claims injury through a third party as
a result cf exposure to violent pornography. This approach would
be similar to the provision in the worki in-MacKinnon ordinance
which allowed for individuals to bring an action i f it could be
verified that some harm was caused to an individual as a result
of a specific piece of pornography. The limitations involved in
the two approaches are identical. It would be very difficult to
prove in court that some piece of pornography, and not an
offender's mental disorder or lack of socialization, was
responsible for a sexual assault. An individual would have to
.
prove in court that a causal link does exist between pornography
and acts of violence.
Actions of this nature are theoretically possible under the
negligence principle. In the American case of Olivia - v. National
Broadcasting Co. a young woman brought an action against a
television network after she was victim to an attack which was
very similar to a scene that had recently been aired. Her suit
was not successful, primarily on the grounds that the judge did
not feel that traditional negligence concepts could be applied
to television programming. He did imply that similar actions
could be successful i f it could be proven that a broadcast is
"directed to inciting or producing imminent lawless action
and... likely to incite or produce such action" (~akan 1984:
15). The outcome of this particular case might have been
different i f the plaintiff had not focussed exclusively on the
negligence of the company, but on incitement to advocate and
encourage violent acts (Jacobs 1984: 53). The case was dismissed
because the plaintiff could not prove that the television
network intended for its viewers to imitate the assault.
Linz et al. (1984: 278) argue that empirical research on the
effects of exposure to violent pornography could be used by the
plaintiff in a civil suit to help establish that media
portrayals of sexual violence represent acts of foreseeable or
predictable harm. These authors contend that plaintiffs should
be able to refer to social science research to indicate what
type of pornographic materials are the most dangerous, who is
most likely to be affected by the material and which individuals
are most likely to be victimized by a third party as a result of
exposure to violent pornography. Linz et al. (1984: 3 0 1 ) also
contend that social scientific research could be used to prove
that these injuries were foreseeable by the distributors and
producers of these materials and could have been prevented i f
films were altered or modified to eliminate the sections most
likely to engender negative consequences.
Social psychological research, however, usually involves
comparing the behaviours of groups. In a tort action against a
media corporation the plaintiff would have to ascertain that a
causal link existed in the particular case before the court.
Linz et al. (1984: 290) contend a lawyer would be responsible
for convincing the jury that a movie scene so closely resembled
an assault in its characteristics and severity that causation
could be assumed. It would have to be shown that the film had an
instructional effect accompanied by an incitement effect.
Admittedly, only bizarre or unusual crimes closely resembling
specific scenes in detail could be found to have 'movie
liability1. This provides little consolation for the thousands
of women who are assaulted 'normally' in our society, even i f a
causal link could be verified. Pornography's most damaging
effects may be cumulative. Indeed, it need not be the case that
the harm to which pornographers contribute is identical to the
harm depicted (Clark 1978: 4).
The application of the 'clear and present danger test' for
civil damage actions has been regarded as unworkable in Canada.
This approach has been considered destined for failure because
social science research is not able, in its present state, to
prove the connection between pornography and the resulting
physical or social injury to individuals (~ahoney 1984: 5 5 ) . The
effects of pornography are far more subtle than are implied by
this strategy. Secondly, this civil approach alludes to the
notion that only violent pornography is problematic. Thirdly, i f
it could be verified that some material caused specific
predictable acts of violence to be perpetrated against women,
society would be ethically bound to prevent these crimes through
prior restraint. Otherwise victims would have to initiate
actions and assume the legal fees necessary for their own
compensation. Many individuals would find the prospect of
challenging large corporations, such as NBC, very prohibitive,
limiting the feasibility of this approach. Lastly, it must be
remembered that real men rape women, not films or programmes.
Adoption of this perspective could serve as a potential defence
or excuse for individuals who choose to victimize others in this
manner.
Proponents of this strategy find it appealing because, legal
limitations aside, it removes the profit factor from
pornography. The producers or distributors are sued and the
victim receives some compensation for his or her injuries. The
burden of proof is not as severe in civil actions as it is in
criminal ones. Rather than providing proof beyond a reasonable
doubt, the plaintiff need only have his or her case proven on
the balance of probabilities (~raser Committee 1984: 3 0 7 ) .
Unfortunately, problems of proof and causation and the necessary
financing may negate this positive feature of a civil action to
redress the harms of violent pornography.
Linz et al. ( 1 9 8 4 : 300) discuss a situation where civil
actions could pose such a threat to pornographers that the
corporations would consider raising the price of their product
to effect loss spreading of liability to the consumer. This
approach could have the result of making pornography less
attractive to the consumer because of its increased price.
Taxation could have the same consequence and could contribute t~
the possibility of civil actions.
T a x a r i on a n d C o r r e c r I v e Funds
The taxation of pornography has been suggested to alleviate
the financial burden of civil cases through the formation of a
Corrective fund (Linz et al. 1984: 300). The taxation of
Pornography would necessitate that it be considered as a
Potentially harmful drug such as cigarettes and alcohol. This
would allow the government to extract higher taxes, because the
taxation wouid be based on the need to regulate dangerous
enterprises (~acobs 1984: 54). Taxation of pornography could be
implemented at the municipal and provincial levels (~idington
1983: 53). The revenue gained from the sale of pornography could
similarly be used to help mitigate the effects of male violence
against women and provide shelters and resources for women in
crisis (Cole 1981: 1 1 ) . The monies provided could fund research
exploring the relationship between pornography and violence
(Ridington 1983: 53). The taxation approach is also attractive
because it contributes towards removing the profit factor from
pornography. Some pornographic materials would be so overpriced
that the demand for them would drop considerably. Cole (1981:
1 1 ) suggests taxation not only of the products, but also of the
pornographer's income. I f profits were defrayed to a great
degree the pornographer might find other business endeavours
more lucrative.
The taxation approach provides a blend of both liberal and
feminist concerns. Civil libertarians regard regulation as a
necessary evil in a democratic society. Pornography can be
Considered a commodity for which there is a high demand.
Taxation's goal is regulation not prohibition, so in theory the
liberals might not voice loud objections to its instigation. The
taxation approach also attempts to decrease the demand for
Pornography, however. The formation of a corrective fund
suggests that the taxation supports the feminist provocation
principle, because it attempts to reduce some of the suffering
created by men as a function of their consumption of
pornography.
Feminists do not regard taxation as a viable alternative on
a different basis. The taxation of pornography could legitimate
its presence in our society. It is arguable that the state
should not profit from the exploitation of women's bodies. The
government may be less dedicated to the promotion of women's
dignity given its potential reliance on revenues from the
pornography industry (~acobs 1984: 54). The taxation and
corrective fund approach is problematic because it recognizes
pornography as a vice on the same level as cigarettes and
tobacco and simultaneously identifies it as engendering violence
against women.
If the state were to predicate its taxation on the view that
pornography is simply another vice or bad hsbit, it could not
distinguish between pornography and erotica. ~rotic art and
other sexual representations would be similarly taxed out of the
market. Boyd (1986: 286) suggests that a taxation strategy is
elitist, in that it allows access to pornography as a function
Of income. Taxation does not focus on the problem with
Pornography (Boyd 1986: 286). ~lternative approaches, such as ,.
the human rights approach, are premised on a consideration of
Pornography as gender based hate literature.
Human Rights Commissions
The human rights approach to pornography conceptualizes
pornography as a form of hate literature or hate propaganda
against women. Proponents of this approach consider pornography
to be a human rights question. Because pornography is considered
to be an affront to the dignity of women and a purveyor of
misogynist messages in our society, many individuals believe
that human rights commissions are the most suited to a pursuance
of this issue. The roots of obscenity legislation make it
incompatible with an appreciation of pornography as a human
rights issue. In Canada, human rights legislation at both
provincial and federal levels was initially motivated by a drive
for racial equality (Task Force on Public Violence Against Women
and Children 1984: 73). Feminist efforts have succeeded in
making it a consideration of sexual equality as well. The
Canadian Human Rights Act, the Manitoba Human ~iqhts Act, and
the Saskatchewan Human Rights Code all address the issue of hate
messages and protect against exposure to hatred on the basis of
sex (~raser Conmittee 1984: 1 9 8 ) . The Saskatchewan Human Rights
Code contains provisions which are more inclusive and
2_
encompassing than the Canadian or Manitoban approaches.
Subsection 1 4 ( 1 ) of the Saskatchewan Human Rights Code is
the only existing Canadian illustration of the provocation
principle. It also supports the feminist direct harm principle,
and is therefore considered quite a triumph for ~anadian
feminists who often complain that their views are not recognized
by our patriarchal legal system.
The Saskatchewan Human Rights Code explicitly states its
objects as the promotion of "recognition of the inherent dignity
and the equal inalienable rights of all members of the human
family" and "to further public policy in Saskatchewan that every
person is free and equal in dignity and rights and to discourage
and eliminate discrimination". Part I 1 of the Human Rights Code
concerns the prohibition of certain discriminatory practices.
Section 14(1), 'Prohibitions Against Publications', is
applicable to the pornography issue and has been heralded as
progressive legislation incorporating the feminist theses.
S.14(1) states:
No person shall publish or display ... any notice, sign,
symbol, emblem or other representation tending or likely
to tend to deprive, abridge or otherwise restrict the
enjoyment by any person or class of persons of any right
which he is or they are entitled under the law, or which
exposes, or tends to expose, to hatred, ridicules,
belittles, or otherwise affronts the dignity of, any
person, any class of persons or a group of persons
because of his or their race, creed, religion, colour,
sex, marital status, physical disability, age,
nationality, ancestry or place of origin.
Section 14(2) states:
Nothing under subsection ( 1 ) restricts the right to
freedom of speech under the law upon any subject.
This section of the Code recently became the focus of a case
concerning pornography as a human rights issue. The 1984 case of
The
2_
Saskatchewan Human Rights Commission The
-
Engineering
Student's Society, University of Saskatchewan - et. - al. was
initiated by a complaint made to the board alleging that an
issue of the students' newspaper, - Red Eye, contained
representations of women which ridiculed, belittled arid
otherwise affronted the dignity of women in Saskatchewan. The
complaint did not maintain that the newspaper promoted hatred
against women although the board found that the representations
they examined often included the "allegedly humorous description
of the violent destruction of women's bodies through
intercourse" (49). The Board held that two issues of - Red Eye
interfered with women's rights to equal enjoyment of education,
employment and security of the person.
In its final decision, the members of the board rejected the
argument that section 14(2) makes the right to freedom of speech
paramount to other rights. The board was of the opinion that the
right to freedom of expression could be abridged without a
violation to Constitutional rights. When there is no redeeming
social interest evident in material, the freedom of expression
guaranteed under s.2(b) of the Charter and s.5 of the Code can
be abridged. I t acknowledged that when "representations infringe
upon the rights of others such as their egalitarian rights the
freedom of expression will be restricted" (28).
The board, therefore, supported the direct harm thesis and
the provocation thesis. The board framed their arguments in
terms of an affront to women's dignity. The decision supported
the direct harm principle because the newspaper "discriminated
against women by ridiculing, and belittling them, and affronting
their dignity" ( 2 0 9 4 ) . Affronts to dignity included:
material suggesting that women in educational
institutions are less than human; that they are inferior
beings; that they are there to satisfy male sexual
desires; that they have no independent motivation or
capacity to participate in social and intellectual
activity ... material further affronts the dignity of
women by trivializing and deriving humour from material
which promotes sexual violence and the objectification
of women.
The board accepted that the material promotes either sexual
violence against or the sexual harassment of women, stating:
the newspapers promote violent and demeaning treatment
of women because of their sex... Discrimination like
this jeopardizes their opportunity to obtain equality
rights including employment, education, and security of
their persons on an equal footing with the dominant
gender grouping ... The effect of such material is to
reinforce and legitimate prejudice against women. It
prolongs the existence of hangovers of prejudice against
equal female participation in education, work, aspects
of social life and the professions ( 5 1 - 5 2 ) .
These statements support the provocation principle, asserting
that pornography causes men to either discriminate or aggress
against women (Bakan 1984: 2 8 ) .
Although the argument was not raised that the paper was a
form of hate literature, the provision does exist within the
Saskatchewan Human Rights Code, keeping the door open for
complaints consistent with the provocation principle. The board
acknowledged that the complaint did not refer to the tendency of
the newspapers to expose women to hatred, but indicated that
S. 14( 1) is the only vehicle available to women in Saskatchewan
t o pursue this avenue, since no requirement of intent is
necessary. The board accepted analogies to racial discrimination
and commented on the similarity of Criminal Code hate law
provisions ( 3 4 ) . The board did not treat as two distinct issues
the potential of the paper to provoke discriminatory attitudes
and the potential of the paper to cause psychological harm to
women through an affront to their dignity. Therefore, it is
unclear how much effect is to be accorded to the harms
associated with each of the two feminist theses (~akan 1984:
30).
Feminists commend the human rights approach because it is
one area of the law which recognizes the social harm done to
'minority groups' and the importance of balancing equality
rights and individual rights. Human rights legislation is one
vehicle which allows controls of pornography to be versed in
feminist terms, such as 'dignity to women', and not puritan
ones. The language need not be coached in terns of sexual
explicitness. The appeal of embedding anti-sexist legislation
within the human rights strategy is that the restriction of
pornography can be conceptualized as a propaganda exercise. It
does not compel a blend of the feminist perspective and the
'pro-familial, rightwing, anti-sex position' (Coward 1982: 2 0 ) .
This strategy concedes that sexism is akin to racism and
Provides a 'sex discrimination' alternative to
'anti-pornography' advances (~ilson 1983: 2 2 0 ) .
The approach is a practical, realistic option for many
individuals. It is not necessary in a complaint of this nature
to prove intent to affront a person's dignity (~raser Committee
1985: 3 1 0 ) . Contrary to the procedure in civil actions, the
board takes responsibility for the costs incurred, and not the
individual. Therefore, regardless of financial circumstance, the
human rights approach can be investigated by all.
Many individuals are supportive of the human rights approach
because it does not have to maintain a consistency with the
existing federal obscenity laws. The Human Rights boards need
not recognize or adhere to the principle of community standards.
Furthermore, the human rights strategy does not maintain the
highly elastic nature of obscenity legislation. It is not as
dangerous to oppressed, unpopular groups as obscenity
legislation has been traditionally. The bureaucratic and
administrative screenings circumvent abusive complaints. Lahey
states "the screening process in a civil/human rights procedure,
taken in conjunction with a more clearly defined legislative
purpose, is less susceptible to being turned against the very
people it has been designed to protect" (~ahey 1985: 680).
The human rights approach has many positive features, but
there are also some limitations inherent in the nature of the
human rights process. The human rights codes do not cover all
types of discrimination that may be desired by women pursuing
this avenue (Landau 1985: 8). Once the commission becomes
involved in an investigation of a complaint, the complainant
loses control over the direction in which the commission will
proceed. If the commission decides not to pursue the issue, the
individual has very little recourse available to him or her
through the Human Rights Board. The human rights approach was
not suggested by the Fraser Committee for these reasons, and
also because an inquiry by a human rights commission is a long
drawn out process, and its aims of reconciliation may not be
shared by the complainant. Similarly, the boards are not
adequately prepared or funded to manage the bulk of complaints
which could ensue if this became a popular approach to
pornography in Canada (Fraser Committee 1985: 3 1 2 ) . The
commissions are notoriously overworked, understaffed and slow
(~raser Committee 1985: 312; Landau 1985: 8 ) . The outcome of the
human rights commissions' enquiries may not be satisfactory for
all parties. Common remedies include injunctive relief, damage
awards and counselling and educational workshops. While these
remedies may be effective on an individual basis, they may be
trivial to a large corporation. The arbitraters in human rights
cases traditionally give very small awards. These awards will
have a limited utility and deterrent effect on a billion dollar
industry like the pornography industry (~andau 1985: 8 ) .
Feminists continue to be wary of additional legislative
endeavours. Coward ( 1 9 8 2 : 2 i ) recapitulates a familiar theme,
asserting "who implements the law and to what end it is put is
no less of a problem for anti-sexist legislation than it is for
anti-pornography legislation." Burstyn ( 1 9 8 5 : 1 5 9 ) agrees,
submitting that "When there is a fundamental clash in values and
goals, even ideas about hate are not free from misinterpretation
and manipulation." Susan Cole is concerned that despite their
potential, human rights approaches will absorb the outdated
concept of community standards, because in a sexist society
standards are bound to be sexist (~ughes 1985: 120). he - ~ e d Eye
case seemed to dispel some of these fears, but the triumph was
short lived.
Human rights legislation, like any other approach to
pornography, must be sensitive to the constraints imposed by the
Canadian situation. Legislation in this area must respect the
legal statement of basic rights and values within the Canadian
Charter - of Rights - and Freedoms and the division of powers
delineated by the Constitution Act (Fraser Committee 1985: 31).
Although the Red Eye (1984) case was instrumental in drawing
attention to the practicality and feasibility of approaches of
this nature, the decision was overturned.
Milliken J. stated in Engineerinq Students' Society,
Unversity of Saskatchewan --- et al. v. Saskatchewan Human Rights
Board of Enquiry (1986):
--
unless there was evidence before the board to show that
the effects of the material which the board felt fell
within the category of notices, signs and symbols or
other representations which were published in either
issue cf "the Red Eye" under review, would be to enhance
discrimination against all women resident in the
province of Saskatchewan because of their sex in ways or
by means prohibited by the code, then the particular
portion of s.14(1) being applied to the board would be
beyond the power of the legislature as being criminal
law in view of the provisions in the criminal code
covering dissemination of hate literature and public
defamation (28).
Therefore, Milliken J. declared that the board erre? in law and
the interpretation of s.14(1) given by the board was declared
Ultra vires as an invasion into criminal law. The board was
found to have erred at law on other grounds as well. '~rticles'
and 'editorials' were not addressed by s.14(1! and the
unincorporated society could not be considered a 'person' under
the definition in the Code. Other problems included the fact
that the appellants were not given sufficient notice of the
hearing in accordance with principles of natural justice. The
issue of whether s.14(1) of the Saskatchewan Human Rights Code
is repugnant to the Charter was not decided, due to the fact
that the two editions of the newspaper were issued before the
Charter came into effect (49).
This decision can be considered very discouraging for
proponents of the human rights perspective. I t emphasizes the
fine line between provinciai and federal domains, and reinforces
the notion that attempts to control pornography outside of the
bounds of criminal law must respect the inherent limitations in
the process. Amendments to the hate literature provisions of the
Criminal -- Code have been contemplated as one alternative to the
human rights approach.
' I
)
Ha r e L. 1 r e r a t u r e I
1 , I ) j
Feminists have been instrumental in having pornography
regarded as a form of hate literature. Fundamental to the idea
of pornography as hate literature is the belief that pornography
causes, or at least reflects, a societal tendency to hate women
(I?raser Committee 1985: 3 1 7 ) . Modern pornographers are accused
Of using techniques of the hate propagandist in their portrayals
of sex ask Force 1984: 70). Proponents of this perspective
identify more commonalities between the notions of racial and
sexual hatred than they do between modern pornography and the
legal concept of obscenity. The misogyny intrinsic in
pornography is denunciated for provoking harm and causing direct
harm to women. This strategy therefore supports both feminist
theses. The hate literature provisions are conce2tually
indistinct from the human rights approach, excepting the fact
that they are considered a much stronger measure since they have
the weight of the criminal sanction behind them.
, I
Hate propaganda laws were initially conceived as a measure
to be employed to cease the dissemination of racist material. In
1970 the Canadian Parliament added the hate propaganda offences
to the Criminal Code. These offences included advocating
genocide, the public incitement of hatred and the wilful
promotion of hatred (LRC 1986: 7). The present Criminal Code
also includes a fourth offence which could be considered
applicable to hate propaganda, spreading false news. Section
281.2 has been deemed the most appropriate section with which to
address pornography.
Section 281.2(1) makes it an offence to incite hatred
against any identifiable group where such incitement is likely
to lead to a breach of the peace, by communicating statements in
any public place. Section 281.2(2) makes it an offence to
communicate statements, other than in private conversation,
which wilfully promote hatred against any identifiable group.
Conviction under subsection two will be impossible if the
accused establishes that the statements made were true; i f he
expressed or attempted to establish by argument an opinion on a
religious subject; i f the statements were relevant to any
subject of public interest, the discussion of which was for the
public benefit, and if on reasonable grounds he believed them to
be true, or; if, in good faith, he intended to point out, for
the purpose of removal, matters producing or intending to
produce feelings of hatred towards an identifiable group in
Canada. 'Identifiable group' refers to any section of the public
distinguished by colour, race, religion or ethnic origin.
In its present state, this legislation would not be very
practicable for the goals of feminists. They propose to amend
this legislation by adding gender to the list of identifiable
groups, by removing the element of intent in 'wilfully'
promoting hatred and by no longer making prosecutions contingent
on approval by the Attorney General. There has also been some
suggestion that s.281.2(7), which defines 'statements', may not
be applicable to pornography. This subsection may need some
expansion to accommodate feminist concerns (~raser Comnittee
1985: 324).
The hate literature approach to pornography has been awarded
a great deal of approval from the feminist community, The
attraciiveness of this strategy lies in the fact that it
addresses violent or degrading material, and not sexually
explicit depictions, consistent with the feminist perspective
(~raser Committee 1985: 324). The hate literature approach
recognizes that pornography is contextual. It does not include a
list of objective behaviours which are considered pornographic.
It forces the judge to consider the representation within its
context and decide i f it indeed promotes hatred. It forces one
to use the codes one takes for granted in deciphering an image
and decide if, in context, they contribute to a finding of a
tendency to promote hatred. It makes one aware of what is
problematic in a representation and why.
Perhaps one of the most important aspects of the proposed
amendment is its symbolic value (Fraser Committee 1985: 324). I t
clearly distinguishes the notions of sexual immorality and
gender based hatred and more clearly reflects pornography's true
nature. In this sense, the hate propaganda section serves as an
educational tool (~ndrew et al. 1984: 61). It elevates the
position of women to that of the minority groups and presents
the promotion of hatred toward women as equally intolerable to
that hatred directed at other peoples.
8
conversely, some individuals are concerned that adding
'gender' to the existing hate law provisions will be an exercise
in futility. S.281.2 remains virtually unused at the present
time (Hughes 1985: 1 1 1 ) . The Fraser Committee (1985: 323)
Suggested that the provisions would only apply to a limited
range of material. A considerable amount of 'criminal' and
'repellentf material will remain unscathed by this legislation.
Landau (1985b: 30) doubts the courts and police will be willing
to recognize pornography as hate literature. Feminists and other
groups lobbying to get pornography recognized as a form of hate
propaganda are not promoting an exercise in symbolism. They are
interested in this section in terms of its utility as a
legislative device. Critics doubt such an approach will be
effective.
McDonald (1984: 9) does not consider the issue of
pornography to be properly addressed within the range of hate
literature provisions. He argues that even the most violent
pornography is fundamentally different from racist or
anti-religious material. Pornography may depict generalized
aggression against women, but this is categorically different
from material which attempts to promote specific animosity
against a race or religion. The Law Reform Commission (1986: 46)
was similarly perturbed by the proposal that pornography be
controlled through a revised version of s.281.2. They do not
accept the analogy between racism and sexism, quoting Ryan
(1985: 349), who submits that although hate may sometimes be a
motive, the motivation behind pornography is complex and
distinct from that behind racial and religious hatred. Ryan
Contends that pornography is tied to the sexual urges of man.
Thelma McCormack (1983: 2 2 3 ) is similarly unimpressed by the
argument that pornography should be considered gender based
hatred. She contends that important differences exist between
racial or religious hate and misogyny. The message of true hate
literature is genocide. Pornography communicates the message of
sexual compliance. She illustrates her position with the comment
that even sado-masochistic depictions emphasize the voluntary,
consensual participation of women. I f some minority group was
depicted enjoying and participating in its own abuse, would that
negate the finding of hate propaganda, however?
The Law Reform Commission of Canada did consider including
'sex' as one of the identifiable groups in s.281.2. They
suggested that if the proposal was accepted the requirement of
'wilfulness' would be maintained, however. They explained that
this was to ensure that only the most vicious forms of
pornography, those which were done intentionally, would be
affected. Interestingly, they were concerned that hatred
directed against homosexuals and lesbians would be captured by
the amendment if 'sex' was made one of the identifiable groups
(LRC 1986: 32). Members of the commission were concerned that
'sex' would be interpreted as 'sexual orientation'. Feminists
would not regard this as a detracting feature, but would tend to
identify this event as a positive element of the legislation.
Members of the Fraser Committee k7ere opposed to the retention of
the requirement of wilfulness. They felt that the section would
not be unduly broad because the requirement of general intent,
which is an element of any criminal offence, would still be
present. The committee suggested that retaining the wilfulness
requirement would merely provide a loophole for pornographers
who would contend they were not trying to promote hatred, they
were trying to make money or provide entertainment (Fraser
Committee 1985: 322).
The Law Reform Commission was moreover critical of the
proposal that s.281.2 be amended in the manner outlined above,
because they predicted that this approach would address
non-pornographic statements of misogyny (LRC 1986: 46). This
concern reflects the opinion that the Law Reform Commission is
not dedicated to the same goals as is feminism. Presumedly, the
commission is upset that non-sexually explicit depictions
promoting women-hating will be included in the enforcement of
this legislation. It is arguable that the promotion of hate
within, or separate from, a sexually explicit context is
appropriately a target for prohibition.
The hate propaganda approach has been criticized for the
same reasons as was the human rights proposal. It is argued that
laws designed by feminists will inevitably be used against them
and other groups bartering for equitable treatment within a
patriarchal society. Diamond states:
Fundamentalist groups with money and resources may well
persist in orcjanizing against gay and feminist images
more successfully than feminists will be able to defeat
commercial pornography.
Burstyn (1985: 159) and the Law Reform Commission (1986: 46)
foresee a potential situation where ardent feminists, and their
viewpoints, will be interpreted as man-hating. his is a
legitimate worry, and yet it encourages feminists to be specific
in their terminologies. Indeed, the biological differences
between men and women are not responsible for the subordination
of a gender. The social interpretation of the biological
distinction within the constructs of a patriarchal society
dictates a language of misogyny. Radical feminists must be
careful to identify clearly that which is problematic and avoid
a condemnation of all men. Arguably, men as a group do merit
protection from the promotion of hatred. For all practical
purposes, however, they are already awarded that consideration
under the existing social and legal structure.
Jacobs (1984: 47) questions the basics of using a form of
criminal law to combat pornography. She insists that
corporations engaged in the pornography business are not
amenable to criminal sanctions such as jail sentences. Using the
criminal law to attack pornography would perhaps only deter the
very small pornographers.
Other critics urge that the hate law approach not be
implemented, yet they propose other criminal approaches. They
claim that specific pornography offences offer a superior ,
strategy because offences can be tailored to focus on the most
objectionable aspects of pornography, Criminal law can, in that
manner, better define the target of proscription. Defences for
artistic merit or scientific purpose could be built into
legislation of that nature. otherwise, a possible circunstance
could arise whereby prosecutors eager for a conviction are able
to undercut the safeguards provided in the interests of art,
education and science (LRC 1986: 47). Furthermore, subjective or
ideologically impelled motivations would then be less likely to
inspire suits against certain images (Diamond 1986: 305).
Individuals presenting these concerns are wary of a situation
which could have a 'chilling effect' on the freedom of
expression. Proponents of this perspective cite a 'chilling
effect' on women's equality rights, however.
Some corners of the pornography debate have suggested that
the constitutionality of the hate propaganda approach could be
in jeopardy. These individuals argue that freedom of expression
under s.2(b) of the Charter - of Rights - and Freedoms "extends to
all but the most repugnant ideas, so long as nothing is done to
incite violence or illegality during that expression" ( ~ c ~ o n a l d
1984: 1 0 ) . McDonald contends that the issue remains one of
whether pornography incites violence, and therefore, before one
accepts the hate propaganda approach one must ascertain the
harms engendered by pornography.
There is considerable disagreement over which harms the hate
propaganda approach recognizes. Many theorists contend that it
is a pure manifestation of the provocation principle. Others
identify the hate literature strategy as the most illustrative
prototype of the direct harm thesis.
Thelma McCormack (1983: 223) assumes the position that the
hate propaganda approach is misdirected. She considers it to be
a straightforward manifestation of the provocation principle.
The feminist argument for conceptualizing pornography as hate
literature is stated as:
in a sexist society, rape or other forms of
life-threatening violence are a "clear and present
danger". Pornography contributes directly or indirectly,
as a causal or a contributing factor, to the probability
of rape or other forms of assault to body acd/or mind.
She objects to the hate literature approach because she believes
it to be based on the misconceived linear relationship between
pornography and rape.
Bakan ( 1984: 18) identifies the hate literature approach as
a classic example of the direct harm thesis. Vivar ( 1982: 63)
describes the potentially dangerous effects of the presence of
pornography in terms of injury through direct harm. She
parallels women's position with that of other oppressed groups.
Women would fall victim to the phenomenon whereby slaves engage
in behaviours which their captors expect of them. Women run the
risk, as a class', of accepting the degrading, denigrating images
of themselves which are so predominant in our culture. This
could eventually culminate in extreme psychological harm to
individual women. The direct harm principle is said to be
expressed in many other areas of the law, such as civil
judgements awarding damages on the basis of psycho?ogical harm,
our current sexual assault laws and sexual harassment cases.
Therefore, Bakan contends that the legal acceptance of the
direct harm principle would not be a radical or innovative move
for legislators. The direct harm principle has been incorporated
into our justice system in many legal areas ( ~ a k a n 1984: 22).
There are indications that the direct harm principle forms
the basis of existing hate law provisions. Bakan suggests that
an investigation of the motivation which initially created the
offence reveals that the enactment was intended to serve to
prevent minority groups from experiencing derogation and
stereotyping. A belief existed that hate literature could have
the effect of altering the personalities, attitudes, opinions,
and actions of minority group members. A member could identify
with his or her stereotype and eventually practice self-doubt
and self-hatred (Bakan 1984: 20). Subsection 281.2 of the
Criminal Code is, therefore, designed to prevent harm to members
of minority groups ensuing from the dissemination of materials
that affront their dignity. Bakan does not regard it as
consistent with the feminist provocation principle. It is not
"concerned with the behaviour that pornography may provoke, but
is concerned instead with the direct impact that it may have
have on individual members of the group it attacks" (~akan 1984:
24).
The hate literature offence can be considered as 2
combination of the direct harm thesis and the provocation
principle. Proponents of this philosophy believe pornography is
\
not simply hate literature, "It is that and more... Pornography i
not only promotes hatred it promotes sexual aggression"
(~idin~ton 1983: 44). Lorenne Clark assumes this perspective.
She aptly describes the harm of hate literature in provocation
terms. She identifies it as causing a situation where men view
Women as inferior and inherently masochistic. It attempts to
encourage feelings of wishing to contribute to women's misery by
doing things to women which men would not think of doing to
those they perceive as similar to themselves. Women become the
victims of discrimination and violence. They become a group that
is both hated and despised (Clark 1983: 52).
Yet the hate literature approach similarly supports the
direct harm principle, according to Clark. Pornography is an
example of the direct harm thesis because it:
encourages women to combat insecurity and low-self
esteem by becoming passive and masochistic... it creates
the conditions for their own victimization lark 1983:
56).
Pornography is hate literature which is responsible for causing
psychological harm to women. It is intrinsically offensive to ,
the dignity of women and an infringement on the rights of women.
The psychological harm elicited by pornography is translated
into an infringement of their rights which serves to undermine
the community. The important aspect of the test of hate
literature, according to the Fraser Committee, is whether the
impugned material does injury to the community and individual
members or identifiable groups. They assert "one of the group of
community values which is harmed by pornography is the
constitutionally entrenched equality of women, in that the
message of pornography is that woman are inferior and
subordinate" (Fraser Committee 1985: 320). Mahoney (1984: 54)
conceptualizes pornography as causing just this type of harm.
She asserts that because pornography is hate propaganda it harms
society. Any hatred within a community detracts from, and
actually operates in direct opposition to, the goals of a free
and democratic society. Therefore, pornography as hate
propagailda has goals which are subversive to those of democracy.
The popularity of the hate literature approach arises, in
part, from its flexibility. It allows pornography to be viewed
as contributing to a harm to society through its exercise of the
provocation principle and the direct harm principle. The hate
propaganda strategy addresses harms which stem from both
feminist theses. The proposal is, as yet, only a possibility.
Law reform is a lengthy, time consuming process. Many feminists
are searching for pliable approaches which can reflect their
principles in the mean time. Provincial censorship an6
classificatory boards are potentially flexible instruments
amenable to modifications which reflect contemporary theories.
P r i o r R e s t r a i nt a n d J u r i s d i c t i o n a l C o n s i d e r a t i o n s
Feminists have endeavored to reframe the federal obscenity
legislation in attempts to address the more contemporary notions
of harm with which pornography has become associated. Another
approach involves persuading provincial film review boards to
incorporate feminist notions of harm in the creation of their
guidelines. This approach did not prove especially effective in
Ontario, where feminist groups struggled unsuccessfully to have
violent non-sexual material proscribed and condemnatory material
exempted (Lahey 1985: 6 6 7 ) . This avenue could be mobilized,
however, to reflect the feminist notions of harm.
A majority of the provinces have legislation which
authorizes the classification and often the censorship of film.
At the present time the boards function to reflect community
tastes and attitudes. They operate on the offence principle.
This is not intrinsically problematic from a feminist
perspective, however. Although the community standards concept
is inappropriate at the federal level, it can accommodate for
regional variation at the provincial level. Feminists are
confident that the provincial review boards can represent their
theses, but they are highly critical of the way many of the
boards function. Civil libertarians harbour even more serious
concerns, stemming in part from their complete rejection of the
practice of prior restraint.
Provincial classification procedures receive a limited
amount of criticism. Even civil libertarians often accept that
some regulation is necessary and classification aids in
protecting young children who may not be able to make
responsible choices regarding the material they wish to view.
Provincial censorship practices function on the basis of prior
restraint, however. Many of the provinces have the capability to
prohibit films, make cuts themselves or request that cuts be
made, in addition to their powers of classification. Liberals
are fundamentally opposed to prior restraint because
communication is precluded before expression takes place. There
is no opportunity for positive ideas to triumph over negative
ones in the free market-place of ideas. Furthermore, prior
restraint is more likely to bring a wider range of materials
under governmental regulation than would be the case if criminal
controls were operating in isolation. Although a greater variety
of expression is constrained, fewer safeguards are maintained.
The protection associated with principles of due process is not
ensured. Many of the provinces do not make public the reasons
for their cuts or prohibitions. Therefore, limited opportunities
for public scrutiny are afforded by the various systems. Many
individuals maintain that the prior restraint process leads to
excesses, due to the nature of its operation ask Force 1984:
7 1 ) .
Despite these criticisms, other groups support prior
restraint for ideological reasons, as well as procedural ones.
Moralists, according to their traditionally conservative nature,
believe that the state should properly determine what should be
seen for the public good. Moralists, but also many individuals
from other social groups, speculate that the present obscenity
laws and enforcement practices are ineffective. Therefore, they
Suggest that prior restraint practices function to prevent the
dissemination of dangerous material which could evade the
criminal sanction. Other justifications revolve around the fact
that Criminal Code provisions are only implemented after an
offence has been committed. Due to the nature of our system,
unless the film has been confiscated or prohibited it can be
shown pending a verdict from the trial. A final motion in favour
of prior restraint is the suggestion that Criminal Code changes
are very slow in occuring. Even if amendments are made, it could
take a considerable period of time before jurisprudence could
develop to determine the effectiveness of the changes.
Supporters of prior restraint maintain that this practice could
compensate in the interim ask Force 1984: 72).
The Fraser Committee had an opportunity to comment on the
provincial practice of prior restraint. They were unimpressed
with the provincial banning or cutting of films. While they
recognized the importance of protection from offence, they
submitted that the classificatory powers of the boards were
sufficient to control for unwanted exposure (Fraser Committee
1984: 332). The committee suggested that i f the various boards
were unwilling to abandon their powers of prohibition and
cutting of films, they should incorporate them and their
classificatory schemes in provincial legislation. Many feminist
groups believe these guidelines could incorporate feminist
concerns and could address issues of violence and sexual
violence while attending to context. Specific rules and
guidelines could be entrenched in the legislation to minimize
arbitrary decisions and ensure that contemporary notions of harm
are respected. Entrenchment of the guidelines would function to
make the policies of the boards more public, and prevent Charter
challenges on the grounds that the powers of cutting and
Prohibition are not reasonable limits which are prescribed by
law (Fraser committee 1985: 323).
Boyd (1985: 38) has observed that the flavours or climates
of the provinces' film boards are largely determined by the
different chairpersons. This phenomenon offers no reassurance to
feminists who wish to ensure that their views are consistently
represented. Drafting specific guidelines would reduce the
ambiguity, yet Andrew and associates (1984: 61) suggest further
measures are necessary. They are concerned that the various
boards' members become desensitized, isolated and suffer from a
lack of accountability. They suggest that the chairperson and
board members should be appointed by a ~egislative Committee to
make them accountable for their decisions. Terms should be
limited to reduce the risk of embedding one perspective and
compensate for the effects of desensitization (~ndrew et al.
1984: 6 1 ) .
The operation of the individual boards is an issue of
concern, and yet so is the relationship of the boards to each
other and to the criminal law. Many distributors submit that
classification or approval for display by the provincial boards
should forestall any conviction under the Criminal Code
obscenity legislation. The present situation is problematic,
whereby films are prohibited in some jurisdictions and not
others. A circumstance where provincial approval of a film in
one province prevented conviction throughout Canada should not
be encouraged. Distributors would undoubtedly approve, yet this
approach is not acceptable on a number of grounds.
Firstly, the criminal law presently suffers from the
negative attributes associated with regional variation. Although
our obscenity laws are federal and apply to all of Canada, the
laws enforced across the provinces are not uniform (~arnett
1969: 27). This suggests that obscenity is, to some extent, a
function of geography. Making conviction contingent upon
provincial approval or classification would introduce even more
variability into the criminal law and augment its ambiguous
nature in the area of obscenity. For this reason, some
individuals advocate a national classificatory system, whereby
the provinces cooperate to create common standards or actually
form a national board with representatives from each province
and territory (Fraser Committee 1985: 3 2 7 ) .
This approach is not inviting. The national board would be
too removed from community sentiment. The community does have a
valuable role to play in determining classification based upon
the offence principle, and provincial decisions can most
adroitly reflect the views of its inhabitants (Fraser Committee
1985: 3 2 7 ) . ~ o y d ( 1 9 8 6 : 287) maintains that independent
decisions on the part of the individual provinces should be used
as defences to criminal prosecution. He submits that the
proposals made under the provisions of Bill C-19 would be
advantageous. Critics oppose this strategy because they
believe
it would entail elevating the censor boards' positions to that
of the judiciary. The board members would effectively be
determining criminal law (Fraser Committee 1985: 3 3 5 ) . It has
been argued that the provinces would not be challenging federal
supremacy, however, because criminal proceedings could still be
instigated with the Attorney General's consent and the Supreme
Court could always function to safeguard abuses ( ~ o y d 1986:
288) .
Despite these redeeming features, criminal law should not
properly follow the decisions of the provincial boards. The
provincial boards function to reflect community attitudes and
operate under the auspices of the offence principle. Given the
tremendous difficulties and conflicts created through
appiication of the community standard of tolerance test at the
federal level, effort should not be made to further entrench the
concept in criminal proceedings.
The provincial boards could be used to represent feminist
concerns while simultaneously reflecting community sentiment.
The classificatory decisions of the boards could provide an
educational, as well as an informational, function. The
decisions could identify the problematic aspects of
representations and afford consumers the opportunity to avoid
displays which they find offensive. Provincial film board
decisions should not preclude criminal conviction, however.
Motions are being made to replace the federal obscenity
legislation. Legislative change is a slow and tedious process,
however, The traditional community standards approach may offer
some remedy consistent with feminist theses in the interim.
Cornmuni t y St a n d a r d s a n d Di r e c t Har m
Many feminists are wary of any new approach to pornography,
suspicious that progressive intentions may be transformed into
restrictive practices. These women are unwilling to invest yet
more power in a legal system which has traditionally operated
oblivious to the concerns of feminist theory. It is therefore
with extreme astonishment that the feminist community is
witnessing the incorporation of the direct harm principle into
that moralist stronghold known as the community standard. The
community standards test of tolerance has begun to emphasize the
variables of violence and degradation and to reflect the popular
distinction in feminist literature between pornography and
erotica. Every feminist does not applaud this new direction for
the community standards test, however. Many feel that its
negative attributes far outweigh any positive influences it may
have. Others are hopeful that the community standards test will
principle.
The concepts of degradation and dehumanization in the
context of sexual depictions were first introduced in the case
of -- R. v. Doug Rankine Ltd. ( 1 9 8 3 ) . Borins, 0nt.C.C.J. stated at
54:
While the contemporary Canadian community is prepared to
tolerate the distribution of video-cassette tapes for
use in the home which consist substantially of scenes of
people engaged in "run of the mill" scenes of sexual
intercourse and other sexual acts, films which consist
substantially or partially of scenes which portray
violence and cruelty in conjunction with sex,
particularly where the performance of indignities
degrade and dehumanize the people upon whom they are
performed, exceed the level of community tolerance.
Borins, J. hastens to add, however, that violence and
degradation are not necessary elements for a finding of
obscenity ( 5 4 ) . Mahoney ( 1984: 62) praises the decision as
representing "the first time a Canadian court has examined an
allegedly obscene depiction specifically from the view of the
victims of the sexual abuse, rather than that of the
sensibilities of the observers."
The case of -- R. v. Ramsinqh -- et al. ( 1984) is interesting in
that Ferg, J. did not emphasize that violence must be in
evidence with the degradation or dehumanization. He stated at
240:
I think where violence is portrayed with sex, or where
there are people, particularly women, subjected to
anything which degrades or dehumanizes them, the
community standard is exceeded, even when the viewing
may occur in one's private home.
A similar line of reasoning was used in -- R. v. - chin ( 1 9 8 3 ) .
Harris, Pr0v.J. stated at 250:
The general public does tolerate the viewing of explicit
photographs of sexually aroused men and women in various
exhibitions of sexual activity -- However, although
sexually explicit material was not necessarily obscene,
when people were dealt with as objects, with their
humanity removed, the contemporary Canadian community
would not tolerate such degradation.
Noonan ( 1985: 320) contends that the previous cases
"c~ntextualize sexual explicitness by acknowledging that the
9uestions of degradation and dehumanization must also be
analyzed, they nonetheless ... revert to the view that
explicitness can be determinative of the issue of undue
exploitation." ~eminists have stated that the -- R. v. Wagner
( 1985) decision is a landmark decision that heralds the birth of
a new definition for obscenity (~ppleford 1986: 142; Mahoney
1984: 6 2 ) . This case witnesses Canadian courts giving credence
to a feminist analysis of pornography.
The Wagner case does not recognize sexual explicitness as a
determinative factor in the finding of obscenity. Shannon J.
surprised the feminist community by stating at 318:
That which is undue exceeds the contemporary Canadian
standard of tolerance. The contemporary Canadian
community will not tolerate pornography that is sexually
explicit without violence but dehumanizing or degrading.
I t will tolerate erotica no matter how explicit.
Shannon J. continues to explore the difference between obscenity
and erotica at 318:
In sexually violent pornography one finds the overt
infliction of pain and the overt use of force or the
threat of either. Sexually explicit pornography is free
of violence but is degrading or dehumanizing, with men
and women often verbally abused and portrayed as having
animal characteristics. Sexually explicit erotica
portrays positive and affectionate human sexual
interaction between consenting individuals participating
on a basis of equality.
Shannon J., similar to Rankine, allowed expert evidence which
aided in a determination of whether the films were obscene. He
identified that pornography causes social harm to women. Another
important factor in this case is that Shannon J. judged a film
called "Greenhorn" to not be obscene. I t was a non-violent video
depicting explicit footage of male homosexual acts. his
decision has bolstered the morale of many who worried that the
law operated irrespective of feminist and sexual minority
concerns. Noonan states "the determination of community
standards is a process through which the feminist perspective
can be heard. This process is empowering, insofar as the court
allows the community to define what is pornographic and the
nature of the harm produced by it" (1985: 320).
The aforementioned cases were lower court decisions. The
first upper court decision recognizing the importance of focus
on the manner in which the behaviours are presented and the
context of the acts was ---- R. v. Red Hot Video (1985). Anderson, J.
judged the films in front of him to pose real and substantial
harm to the community, stating at 956:
such materials are clearly a threat to society. They
constitute a threat to society because they have a
tendency to create indifference to violence insofar as
women are concerned. They tend to dehumanize and degrade
both men and women in an excessive and revolting way.
They exalt the concept that in some perverted way
domination of women by men is accepted in our society.
Although Anderson, J. recognized this type of pornography as
presenting a "threat to equality" he explained that the court
cannot prevent individuals from reading, seeing or hearing all
material involving the subject of sex which is not harmful to
others. Material must still be explicit to be judged obscene,
however, and that material which can be banned is only "material
which is clearly offensive, explicit, excessive and
substantially harmful" (957).
Anderson, J. stated, however, that brevity or artistic merit
could prevent the exploitation of sex from being regarded as the
dominant characteristic. In fact, 'excessiveness' could be
employed to find positive sexually explicit portrayals obscene.
This position offers no protection to erotica ( ~ i n g 1985: 4 ) .
Those who eagerly anticipated that the courts would follow
the Wagner lead were dismayed by the Supreme Court of Canada's
decision in Towne Cinema Theatres Ltd. v. R. (1985). The court
---
was divided in its consideration of the acceptability of both
erotica and violent and degrading pornography. Although all
seven judges agreed on the result, they attained it through
different lines of reasoning. King submits:
the case is encouraging for feminists in that a clear
majority of the Court expressed acceptance of
degradation and dehumanization as a part of the test for
obscenity. However, by its lack of 'clarity about the
role to be played by the new concept, and by its renewed
emphasis on community standards, the Court failed to
give the concept real judicial force. In this decision,
the Court did not take the opportunity to mark a clear,
new direction in obscenity law.
Appleford (1986: 1 4 2 ) suggests that the above cases have
effectively established a new definition for obscenity. It
remains a debatable assertion. The Wagner decision was not a
Supreme Court of Canada decision, and is therefore not binding.
I t is purported that i f the jurisprudence of the above cases
develops, the direct harm thesis could be incorporated into
Canadian obscenity law.
Mahoney proposes that there is opportunity for a judicial
expansion on the Wagner decision. She (1984: 6 9 ) offers a new
interpretation of 'undue exploitation' in the s.159(8)
definition of obscenity, whereby the sex and any one of the 'sex
plus' categories could be obscene without the requirement of
explicit sex. Therefore, violent, dehumanizing or degrading
representations in conjunction with non-explicit sex could be
obscene. This avenue proffers the opportunity for the courts to
attack more mainstream representations, such as those found in
feature length films and videos, which are degrading or violent.
This strategy is advantageous in that it circumvents the
parliamentary process, for the updating of the obscenity concept
is traditionally within the judicial role. This approach does
not provide examples of acceptable or unacceptable material,
however. The courts are not bound to permit material which
condemns degrading or violent material (~ahey 1985: 667).
Bakan claims that there are two additional problems with
this approach to pornography. Firstly, the term 'obscenity' is
kept intact, with its connotations of moral ideas concerning the
'lewd' and 'dirty', not degradation and dehumanization. This
accommodates a return to the restriction of material on the
basis of offensiveness. Secondly, and perhaps more importantly,
this strategy is merely another manipulation of the community
standards concept. Due to its evolving nature, the standard can
prohibit degrading representations of women. This standard could
easily change, however, as a function of a flux in Canadian
attitude, as monitored by a judge (~akan 1984: 27). I f one is
willing to concede that the increase in violent or degrading
pornography is, at least in part, due to the rising status and
emancipation of women, one must be wary of the community
standards concept. A backlash against women could plausibly be
manifested in a 'community standard' which served to undermine
feminist concerns. This eventuality could render void many of
the advances that have been made in judicial recognition of the
feminist perspective.
As King (1985: 5) states:
The Court is left powerless if frequent exposure to
sexual hate propaganda results in a community standard
of callous acceptance or disregard of the abuse or
degradation of women. As long as the court can only
apply the community standard, and there is no minimum
standard or definition of the kinds of materials that
are unacceptable, women and sexual minorities remain
vulnerable to whatever forces go into the making of
public opinion.
A reinterpretation of the present obscenity provisions does not
appear to offer a feasible solution for the pornography problem
in Canada. his type of law would undoubtedly carry with it
vestiges of its origin ask Force 1984: 68).
Leqal Control: Balancinq ~ncompatible Assumptions
Many different types of approaches to pornography have been
outlined. The natures of these approaches reflect different
ideological and philosophical positions. The various strategies
are predicated upon incompatible assumptions. Therefore, it is
inconceivable that one strategy should accommodate all social
aims within our society. The approach one adopts is inevitably a
reflection of one's definition of pornography. Different
definitions reflect dissimilar narms. The pornography debate,
therefore, can be reduced to a discussion of harm and argument
over whether the seriousness of the harm merits social control.
The moralist position appears to be fairly straightforward
and is consequently awarded limited consideration. Legal and
social controls over pornography are regarded as necessary for
the preservation of society and the protection of its members.
The illicit, explicit nature of pornography makes it a harm in
and of itself. The verification of harm is unnecessary because
pornography's focus on unbridled sexuality makes it abhorrent to
the conservative. Pornography is simultaneously a dangerous evil
which has the potential for great harm. It advocates sexual
activity beyond the sanctity of marriage and for purposes other
than procreation. The sexually chaotic state pornography
encourages leads to the moral decay and eventual destruction of
society, witness Sodom and Gomorrah. One need not provide
evid2nce of such a harm, however, because control of pornography
is considered to be appropriately premised upon community
intolerance.
The liberal position on pornography is more complex, and
arguably more hypocritical and contradictory than the moralist
stance. Liberals consider and weigh notions of harm in their
deliberations. Although they recognize the offence principle,
civil libertarians refuse the direct harm thesis and have a
tentative association with the provocation principle. Many
liberals contend that prohibition is only adequately premised on
incitement. Rioux and McFayden (1978: 8) maintain that social
control is not justifiable unless it can be proven that some
form of pornography actually incites individuals to commit
specific anti-social behaviours. These women contend that within
a democracy suppression of expression can only be justified if
the incitement effect is demonstrated, with the onus for proof
on the advocaters of control. Other liberals are willing to
concede that even i f the influences of some varieties of
pornography are not irresistible and immediate, they may
regardlessly cause harm to women as a function of attitudinal
and dispositional changes. Before a consideration of prohibition
is contemplated it must be shown that this harm is substantial
and demonstrable, however (BCCLA 1984: 1 6 ) .
Many individuals feel that liberals pose unrealistically
strict requirements for proof of a relationship between harm and
pornography. It has been argued that in other areas of the law
we do not have conclusive proof of harm, but fairly strong
indications of a relationship, such as with alcohol and traffic
deaths (Appleford 1986: 1 4 5 ) . Others contest that medical
science as yet does not have conclusive evidence that smoking
definitely causes cancer, only that it may. Boyd suggests that
the debate concerning a causal link between the consumption of
pornography and actual violence is not particularly crucial. He
states "While it is certainly difficult to establish such a
causal connection unequivocally, the criminal sanction is
adequately premised on indications of social harm" ( 1985: 66).
Bakan ( 1984: 32) feels the causal relationship is really a
moot issue since 'conservative' liberals would never accept laws
based on the feminist theses, regardless of levels of proof.
This is especially apparent for the direct harm thesis. Bakan
( 1984: 18) believes that the reluctance to restrict pornography
on the basis of the direct harm thesis is attributable to the
liberal notion that an affront to a person's dignity and the
resulting psychological injury does not justify infringement on
individual liberty by the law. Bakan ( 1984: 8 ) suggests that
civil libertarians should re-evaluate their position, because
their emphasis on freedom of expression and the right to
individual liberty are not jeopardized by the feminist theses.
He argues that pornography laws must be based on the notion that
pornography harms individuals and be presented as a means of
presenting such injury. Bakan ( 1 984: 2 5 ) maintains that
"psychologiczl harm is as likely to compromise the security and
autonomy of the individual as is physical or economic harm."
Liberals are challenged to refute this reasoning, given their
belief that protection of an individual's security and autonomy
is the only lesitimate excuse for limiting the liberty of
another individual (Bakan 1984: 4 ) .
Lawmakers nay be uneager to incorporate the direct harm
principle into legislation because of a concern that it is too
closely aligned with the offence thesis. The two principles
appear diametrically opposed upon closer examination, however.
The former focuses on an offence to a person's sensibilities.
Explicit portrayals can be shocking and upsetting to unprepared,
conservative or naive individuals. The uncomfortableness these
people experience cannot be confused with 'psychological harm'.
A shock is not capable of challenging a person's conception of
him or herself and cannot be responsible for damaging equality
rights and economic opportunities.
The three social groups are divided as to the most
appropriate pornography remedy, and even debate the necessity of
one. ~oralist strategies include the present community standards
of tolerance approach, yet the group also proposes a wide
variety of other measures. Legal restrictions on the
dissemination of sexual materials are welcomed, as conservatives
encourage state intervention in the legislation of morality.
Conversely, civil libertarians oppose any tethering of freedom
of expression in the absence of empirically demonstrable harm.
Although a number of individuals who assume this position stand
in defiance of any form of interference, many liberals are
amenable to some form of regulation, in accordance with the
offence principle. Therefore, provincial classification schemes
and appropriately worded municipal by-laws and zoning ordinances
are acceptable strategies because they protect the young or
uninterested citizens from unsolicited pornographic material and
allow access to consumers. Nuisance statutes and
civil-adjudication devices are less attractive approaches
because they function to restrict pornography, notwithstanding
their purported intentions to abide by the offence principle.
Feminist strategies can often be recognized as
manifestations of the provocation or direct harm theses. A
considerable number of these proposals appeal to equality
guarantees within the Charter. Like any of the other possible
Canadian avenues, these suggestions must respect the rights and
privileges enshrined in that document and its accompanying
constitutional constraints.
Human and civil rights propositions have been granted
substantial feminist recognition in recent years. Canadian
feminists are in the process of developing a bill which would
incorporate the civil rights approach pioneered by Andrea
Dworkin and Catherine MacKinnon. It is not clear how this
instrument would fare in the Canadian context, however.
Furthermore, its tremendous scope threatens proponents of both
the liberal and feminist communities.
Provincial legislation modeled after the B.C. C i ~ i l
Liberties Act retains the spirit of the aforementioned strategy.
I t is not burdened with the exhaustive definitions of
pornography which can function to limit acceptability within the
provincial sphere, however. Although the legislation could be
considered empowering, costs are nonetheless incurred by women,
limiting the practicality of this approach in the absence of
other remedies.
Common law civil actions for violent pornography are
unlikely to be successful, given the fact that social scientific
research is unable to support the contention of a causal
relation between pornography and violence against women.
Taxation is an impractical alternative because it necessitates
state legitimation of the sexual inequality inherent in most
heterosexual pornography.
Human rights commissions frame the pornography question in
terms of sexual discrimination. The approach removes the
financial burden from women, but it is associated with other
drawbacks endemic to the nature of any human rights
organization. Recent judicial considerations have questioned the
efficacy of this non-criminal measure, as well. Consequently,
the stronger hate literature approach is receiving considerable
support from the feminist anti-pornography camp, despite
concerns about its potential utility as a legislative device. It
effectively combines elements of the provocation and direct harm
principles, without emphasizing explicit sexuality. The hate
literature strategy allows for a discernment of context. It
properly addresses the promotion of hatred and elevates the
position of women to that of other 'minority' groups in society.
The instrument morally educates the public and directs a
comprehensicn of the problematic aspects of some forms of
pornography.
The same focus could be reflected at the provincial level in
film classification, although provincial community standards
should arguably also receive some consideration. Federal
maintenance of the concept has been proposed, as a result of the
qualitatively different perspective some courts have taken in
their interpretation of community standards of tolerance. This
approach offers, at best, an interim solution, however. New
strategies, fundamentally distinct from traditional obscenity
approaches, are mandated.
Many groups are presently lobbying within Csnada for change
to the existing obscenity provisions found in the Criminal Code.
An examination of the Fraser Report, the Badqley Report and
proposed Bill C-114 is illustrative of the competing values that
exist within our society. Anti-censorship strategies are given
limited consideration in the government recommendations, yet the
importance of this avenue must be emphasized, given the
conservative Canadian climate.
CHAPTER V
LEGISLATIVE REFORM: CHOOSING ALLIES AND TAKING SIDES
Within the last ten years over forty bills have been
introduced into the house of commons concerning proposals for
reform of the existing obscenity section of the Criminal Code.
The relative number of submissions serves to attest to the
dissatisfaction with the manner in which Canadian courts have
dealt with the pornography problematic. Change in the existing
legislation is long overdue, despite the fact that the community
standards approach has begun to reflect the popular distinction
between depictions of consenting and degrading or violent
sexuality. Although apparently progressive in nature, this
judicial trend has been severely criticized. This avenue, in
itself, will not redress the limitations inherent in the present
approach to pornography. Consequently, alternate strategies have
been considered.
Many of the approaches were examined within two recent
Canadian efforts at alleviating the pornography situation, the
Badgley Report and the Fraser Report. Both offer detailed
recommendations for amendments to Canadian obscenity laws.
Although these reports received considerable criticism upon
release, they enjoyed many positive evaluations. The reviews
these reports engendered are illustrative of the diversity of
interests to which legislators must attend.
The Canadian community eagerly anticipated reforms in the
wake of these reports. Few individuals were optimistic that
amendments would respect the liberal-feminist essence of the
Fraser Report, yet they were nonetheless disappointed with the
introduction of Bill C-114. I t represented repressive
legislation which better reflected conservative political trends
than progressive insights borne from discussion of contemporary
philosophies. Many Canadians, yet especially those espousing an
anti-censorship perspective, reacted strongly to this bill. The
anti-censorship position promotes strategies which are offered
as democratic alternatives to proscription and criminal
sanctions. Meaningful change necessitates that its suggestions
for social and educational reforms be adopted. Yet, the
proposals are better conceptualized as adjunct solutions than
absolute resolutions.
Many feminists contend that legislation canstraining
expressions of sexuality will ultimately hobble women's motions
towards equality. Legal innovations can pave the way for social
modulations, however, and actually contribute in an educational
capacity. Law is a means of realizing certain values and
reflecting different moralities. The feminist conceptualization
of the pornography debate offers valuable insights, which extend
beyond the parameters of the moralist/civil libertarian
dichotomy. Feminist morality focuses on social justice and harm
to women, expressed within the provocation and direct harm
principles. The government has indicated a substantial interest
in the pornography debate. In the present conservative climate,
legislative change to obscenity laws can be predicted with some
degree of accuracy. Censorship may be interpreted as an
ineffective or even dangerous phenomenon, yet it will develop
with or without feminist participation. Feminists must not
assume a passive role in the legislative process, because the
moral conservatives are lobbying for the representation of
competing interests. Laws which do not reflect feminist
perspectives will indeed function to suppress their goals.
The Canadian government's concentrated examination of the
pornography issue is displayed in the 1984 Report of the
Committee - on Sexual Offences - ~qainst Children -- and Youth (~adgley
~eport) and the 1985 Report of the Special Committee On
-
Pornography prostitution (Fraser ~eport). The vag'ueness of
obscenity laws and the problems involved in their application,
combined with feminist pressure, prompted the federal
government's enquiry into this area. The mandates of both
committees stipulated the consideration of alternatives to the
present legislation and recommendations for solutions to the
pornography problem in Canada.
The Badqley Report: Parental Overtones
-
The Badgley Report's consideration of pornography was
secondary to its focus on children. Pornography issues were
discussed mainly in the context of children and sexual abuse,
particularly in terms of child pornography and access by
children and youths to pornographic material (Badgley Committee
1984: 1079).
The Badgley Committee's recommendations have received
considerable criticism. On the surface many of the
recommendations appear quite feasible and reasonable, yet there
may be certain ramifications associated with their enactments.
The main arguments against the Report are a consequence of its
traditional perspective. The committee's proposals, taken as a
whole, do not attempt to significantly alter the status quo. The
Report is criticized for its failure to mandate fundamental
changes which could upset the balance of power in our society,
or seriously challenge the ideology behind pornography.
Although the production of child pornography was assessed to
be virtually nonexistent in Canada, the committee was critical
of the fact that there are no laws specifically prohibiting it.
This is despite the fact that other legislation is available
which can be invoked to address the problem, such as provincial
child welfare legislation, the Customs - Act and various Criminal
Code offences (~adgley Committee 1984: 1 0 8 3 ) . The committee
-
suggested the application of the criminal sanction to those
involved in the production, display, sale or distribution of
representations of a person under eighteen participating in
sexual conduct. 'Sexual conduct' is a very broad term that is
used to denote anything from sexual activity to the lewd
exhibition of the genitals. The proposed legislation's purpose
would be the protection of young people from sexual exploitation
(Badgley Committee 1984: 101). Therefore, only visual depictions
of pornography would be focussed upon, since their production
necessitates criminal conduct (~adgley Committee 1984: 102).
An individual convicted of one of the offences would be
subject to imprisonment and would be guilty of an indictable
offence. It would similarly be considered an indictable offence
to possess material of this variety, punishable upon summary
conviction. The onus would rest on the defendant to ensure that
the representation was not of someone under 18 years of age
(~adgley Committee 1984: 103).
~ccompanying the above proposal is the recommendation that
the importation of pornography under this definition be
similarly penalized. The Badgley Committee requested that the
Customs Tariff, Customs - and Broadcastinq -r Act Canada Post
Corporation - Act and ~rosdcastinq - Act undergo renovations to meet
Criminal Code standards. They suggested that criteria for film
and video classification similarly be developed guaranteeing
that provincial and territorial definitions correspond to the
proposed Code amendments. The Badgely Committee accompanied its
legal reforms with proposals for the strengthening of federal
enforcement services, making the operation of the central
registry of customs seizures more efficient and encouraging
proactive measures on the part of the R.C.M.P. to effect these
maneuveres. The Badgley Committee had a secondary aim in its
focus on children and pornography. The committee was concerned
with respect to the possibility of children being exposed to
visual pornography through that material's open display or
accessibility by young persons. It proposed a Criminal Code
amendment detailed in terms of content and medium be enstated
which address the knowing sale or offers of pornographic
material to anyone under 16, punishable on summary conviction.
Despite the recognition by many feminist theorists and
academics that the pornography problematic is a result of sexist
images and symbolic of the power imbalances in our society, the
Badgley Committee restricted its focus to sexually explicit
images. The committee has been attacked for accepting
uncritically, the existing legal definitions or pornography
(Brock & Kinsman 1986: 2 3 9 ) . It does not recognize the
mainstream media and advertising portrayal of young people as
problematic. Many accepted images of youth in our society are
sexualized as well. A social value system that presents
pubescent girls as the cultural ideal has more fundamental
problems than can be effectively suppressed through rigid
legislation aimed at sexually explicit imagery rock & Kinsman
1986: 240; Clark 1986: 2 1 1 ) .
The Badgely Committee identified children under sixteen as
in need of protection from the pornographic images of our
society. This may indeed be the case, but the pornographic
images the committee is referring to share more in common with a
traditional moralist definition of pornography than a feminist
one. Instead of preventing young people's access to degrading or
violent images, the Badgley Committee would refuse them sexually
explicit material. Brock & Kinsman (1986: 239) warn that this
"blanket condemnation of sexually explicit imagery could be used
ta deny young people access to sex education materials". The
laws could be used as instruments to deny sex education, rather
than as vehicles encouraging exploration of young people's
sexuality and an understanding of their own bodies.
Wachtel (1986: 166) blasts the report for its "striking
ambivalence about children and sexuality". Similarly, Boyd
(1986: 278) suggests that the Badgley Committee draws "overly
definitive lines on the subject of adolescent sexuality." The
committee feared that youths' sexual orientations could be
swayed by pornographic materials. Concerns exist that the
committee's views mask an underlying homophobic reaction which
is shared by much of Canadian society. Boyd argues that the
criminal law should not be responsible for the preservation of
heterosexuality within Canada ( ~ o y d 1986: 278). Brock & Kinsman
are equally perturbed with the fact that visual depictions cf
young people engaged in sexual activity are confused with actual
child abuse rock & insm man 1986: 239). This may be a valid
interpretation of the Badgley Committee's concerns, but
portrayals of sexual conduct involving young people could pose
other problems. It is not necessarily a positive thing for the
young to have permanent public records of their sexual conduct
or early experiences, whether they be intended for sex education
purposes or as a form of entertainment. In addition, legislators
do not want to encourage adults in identifying young persons as
legitimate sexual objects (CAP 1986: 2 5 ) . The restrictions on
the availability of sexually explicit materials may be
unfounded, but the prevention of dissemination of material
depicting the sexual conduct of young people does not
unjustifiably preempt the possibilities for childhood sex
education.
Clark ( 1986: 2 0 0 ) asserts that the Report is written from
the same perspective which has condoned and tolerated the sexual
abuse of children. She recommends substantial changes in
societal structure before any real improvements can be effected.
The Badgley Committee's recommendations can be reduced, in
Clark's terms to "creating behavior specific offences and fine
tuning the sentencing process" lark 1986: 2 0 7 ) .
Brock and Kinsman ( 1986: 2 4 6 ) condemn the Report for
approaching pornography as i f it were an administrative problem.
The committee's conclusions are a consequence of the fact that
the police and other 'experts' in criminal offences were
employed in the development of institutionalized administrative
approaches to pornography. Brock & insi in an ( 1986: 2 2 7 ) ,
similarly criticize that the "Badgley Report advises state
agencies how to organize a much narrower process of
administrative and managerial change ... which cannot account for
the necessity of a transformation in the present organization of
social relations i f the problem of socially organized male
violence is to be overcome" ( 1987: 2 2 7 ) . A sentiment shared by
many individuals, especially those endorsing the feniinist
perspective, states that existing social arrangements and the
relationships between the powerful and the powerless allow
violence and sexual abuse to exist and be maintained. Clark's
solution involves the dismantling of patriarchy and paternalism
(1986: 219). State and social policies which empower, not
'protect' young people are necessary to combat problems of
pornography i~rock & Kinsman 1986: 258).
Clark (1986: 205) is convinced that:
thi
SOC
to
ngs will go on just as they have so long as men are
ialized to regard women and children as property, and
link male sexuality with power, authority and
violence. The system cannot be saved and the problem
simultaneously solved because the problem is endemic to
the system.
The Badqiey Report lacks a certain sensitivity to
contemporary debates regarding sexuality and power. The
committee proceeded with a moralist perspective, which denied
childhood sexuality as it condemned the homosexual orientation.
It addressed pornography as sexually explicit material, thereby
refusing to acknowledge feminist distinctions. The Badqley
Report's unconditional acceptance of the institutionalized power
structures which have enabled violence and abuse in public and
private sectors, does not inspire confidence for any meaningful
change.
The Fraser Report: Progressive Insights
The Fraser Report was the product of the 1985 Special
Committee on Pornography and Prostitution. Within its Report,
the committee made recommendations on how to deal with the
pornography circumstance in Canada. The Fraser Committee
developed upon some of the proposals made by the Badgley
Committee and further explored the pornography issue. Its report
was greeted with more enthusiasm than was the Badgley Report.
Many herald it as an insightful piece of work which provides a
great body of knowledge. Although the committee was acclaimed
for its progressive approach, critics maintain that its actual
recommendations are underdeveloped. The Report demonstrates an
awareness of the extent of the pornography problem, yet does not
indicate a commitment to complete legal and social reforms.
Chi 1 d r e n And P o r n o g r a p h y
The Fraser Committee made 22 recommendations dealing
specifically with those under 18 years of age. These included
rec~mmendations 66 through 68 which instruct provincial child
welfare authorities to review children's involvement in
pornography and encourages provincial and municipal authorities
to continue their attempts to control the access of pornographic
films, materials and videos to minors through provincial
classificati~n and municipal by-laws. Criminal code sanctions
for the production, dissemination and possession of child
pornography were also urged (Fraser Committee 1985b: 45). There
were nineteen additional recommendations made concerning
pornography as related to children. These are amendments and
additions to, or repeals of, the Canadian Criminal Code, and
recommendations concerning the evidency acts of Canada and the
provinces.
Interestingly, the Fraser Committee did not restrict the
imposition of criminal sanctions to visual pornographic material
involving children. The Fraser Committee would criminalize
sexually explicit portrayals of children, but also material
advocating or encouraging the sexual abuse of children,
punishable for production, distribution or possession (Fraser
Committee 1985: 691). Therefore, material that did not involve
any criminal conduct in its creation, such as written material,
would be prohibited. Adhering to this line of reasoning, some
critics comment that pornography involving those over eighteen
years of age, but appearing younger, should be forbidden.
Material which presents models as children, actually or
symbolically, transmits the message that child pornography
should be condoned or that children can be appropriately seen as
sexual objects (CAP 1986: 27).
The Fraser Committee, like the Badgley Committee, would make
the sale or access of visual pornography or sex aids to those
under 18 years of age a criminal offence (Fraser Committee 1985:
638). It is argued that different penalties should be associated
with children in different age categories, with a distinction
being made between those under and over 14 years of age. Even at
the production stage it is suggested that not all children are
equally vulnerable, and the penalties associated with the
offences should reflect those differences (Marshall 1985: 5 ) .
The committee chose to allow the defences of artistic merit, and
educational or scientific purposes, quelling some of the fears
that this would hinder the availability of sex education
materials.
These defences did not prevent the committee from receiving
criticism in this area, however. Kanter (1986: 85) questions the
noti~n that protection of the young denotes less access to
information. He argues that the vulnerable require more access
to sexually explicit materials. Diamond (1986: 3 0 4 ) echoes these
concerns and indicates that tighter restrictions might dissuade
many publishers from dealing with material that could warn
children of the danger of sexual abuse. She criticizes the
Report for its attitude toward youth. Although it recognizes the
child as a sexual being (~raser Committee 1985: 26), it
prohibits access to sexual material and sex aids, thereby
reinforcing the concept that childhood sexuality is
appropriately controlled by adults. No attempt was made by the
committee to explore the feelings and attitudes of children and
youths regarding their sexuality and expressions of it (~iamond
1986: 318).
A d u l t s And P o r n o g r a p h y
Although the Fraser Committee explored the subject of
children and pornography, its main focus was on pornography made
by and for adults. The Fraser Committee indicated that the laws
as they stood had severe limitations. Among those were the fact
that some obscenity laws were difficult to enforce; there was a
lack of uniformity between the Criminal Code and federal acts;
child pornography was not specifically prohibited, and; sex or
gender was not identified under Hate Literature provisions.
The committee made recommendations concerning the policies
involved in sexually explicit live shows, broadcasting and
communications, customs and the mails. They examined many
approaches to pornography including amendments to the obscenity
legislation within the Criminal Code, the provincial role in
pornography control, the hate literature laws and the
possibility of a civil rights approach.
Among the most controversial of the committee's
recommendations was the idea that the present obscenity
provisions of the C.C.C. be abolished and replaced with a
section specifically focussed on pornography. The committee
advocated the abolition of the community standards test and
proposed that a three-tiered test replace it. The committee's
three-tiered test was not premised on offensiveness but rather
notions of harm, both direct demonstrable harm to individuals
and social harm (Fraser Committee 1985: 264). This three-tiered
test would be accompanied by another Criminal Code amendment
recognizing gender as one of the identifiable groups to be
covered under Hate Literature provisions.
The first tier was not accompanied by defences for artistic
merit or scientific or educational purpose and would apply
criminal sanctions to material involving sexuality and children,
as discussed above, and visual pornographic material that
involved physical harm to participants during production (Fraser
Committee 1985: 2 6 4 ) . The making, printing, publishing or
distribution of this material, or possession for such purposes,
would be an indictable offence and would be accompanied by a
prison sentence of up to five years. Someone convicted of
selling, renting or possession for those purposes would be
liable to indictment or summary conviction, and could be
imprisoned for up to two years.
Tier two addressed sexually violent and degrading
pornography. I t specifically criminalized any matter or
performance which depicts or describes sexually violent
behaviour, bestiality, incest or necrophilia. Defences of
artistic merit, scientific and educational purpose would be
permitted in this tier (F'raser Committee 1985: 277).
The third tier concerned material that would only be
prosecuted contingent upon its display, the circumstances of
exposure and access by individuals under eighteen years of age.
The definition of pornographic materials for tiers one and two
included:
any matter or thing in or on which is depicted vaginal,
oral or anal intercourse, sexually violent behaviour,
bestiality, incest, masturbation, lewd touching of the
breasts or the genital parts of the body, or the lewd
exhibition of the genitals (Fraser Committee 1985: 2 7 6 - 2 7 7 ) .
The tier three definition of visually pornographic materials was
identical to the definition of pornographic materials which was
proposed for tiers one and two, except for the fact that
sexually violent material, bestiality, incest and necrophilia
were excluded.
A general consensus mandated that the consideration of
sexual material be removed from the title of 'Offences Tending
To Corrupt Morals'. There was some disagreement over whether the
control of sexual material should be appropriately placed under
an individual section entitled 'Pornography', however. There are
those who submit that replacing the term 'obscenity' with
'pornography' does little to effect change, since the social
definitions of the word vary so widely. Perhaps the term
'pornography' will be as ambiguous as obscenity has been.
The three-tiered pornography offence structure is more
accurately described as a four-tiered structure, if one is to
focus on the penalties accorded to different offences (CAP 1986:
4). Child pornography is associated with greater sanctions than
material in which actual physical harm was caused to those
depicted in it. Critics contend that, objectionable as child
pornography is, material in which actual physical harm
transpires should carry the heaviest penalty (CAP 1986: 5).
It is possible that tier one is simply duplicative. A
variety of Criminal Code offences such as assault and sexual
assa~lt laws already exist to penalize this behaviour. The
proposal may be an aim on the part of the committee to
legitimize complaints by women whose abuse may not be recognized
as such by the police departments uneager to lay charges.
Creating a new law does not dismiss the problem of police
enforcement or make the women any less reluctant to make
complaints to a less than sympathetic body, however.
The Report was criticized for its use of vague terminology
and lack of explicit definitions (CAP 1986: 17). In this area of
the law, vagueness could have important consequences. The Fraser
Committee recommended the abolition of the community standards
test, to be replaced by the tiered system. The committee
reportedly rejected the use of broad terminology which would
leave the characterization of the material to a test, such as
the community standards of tolerance. In tier two, the word
'degrading' was pointedly omitted, although it is stated that
degrading depictions or writings are the focus of tier two. The
committee was of the belief that the ambiguity associated with
the term would detract from its utility as a legislative tool.
As was the case with the 1959 legislation, the reformers have
lauded the objectivity this proposed legislation would ensure.
The committee identified specific acts as deserving of the
criminal sanction, namely those absent of the element of
consent. The justification for specifying different behaviours
is to accomplish the goals of objectivity and uniform
application.
Many of the Report's reviewers maintain that the list of
degrading behaviours is underinclusive. Actions such as
urinating or defecating on someone, ejaculating into an
individual's face or treating someone as an animal for the
apparent purposes of sexual stimulation are arguably degrading
(CAP 1986: 16; Landau 1985b: 13). The tier two recommendations
do not clearly capture the feminist notions of degradation,
dehumanization and objectification of women (Marshall 1985: 3).
Incest is regarded as a degrading behaviour, yet Landau (1985b:
15) questions whether the Criminal Code should identify
depictions of incest between consenting adults as deserving of
the criminal sanction.
The committee defined sexually violent material as that
material whose purpose is the sexual gratification or
stimulation of the viewer. It is unclear how this would be
determined. Will it be the prerogative of the judge to determine
if he, as a viewer is sexually stimulated, or will he rely on an
average of Canadian thinking to determine whether the material
is deserving of criminal sanction? A variation of the community
standards test could conceivably be resorted to, whereby a judge
refers to levels of community tolerance in an ascertainment of
' pornography' .
Appleford (1986: 146) argues that abandonment of the
community standards test is not necessarily a positive step.
Although flawed, it is a potentially flexible response to public
opinion. Its utility is underlined by the fact that the
community standards test has begun to recognize the pornography/
erotica issue and is focusing on it in a determination of
obscenity (Boyd 1986: 277).
Feminists were disgruntled by the fact that the Fraser
Committee's proposals for legislative reform did not recognize
the distinction between pornography and erotica. Objections have
been registered to the committee's use of the phrase 'Visual
Pornographic Material' to identify sexually explicit consenting
depictions. The failure of the Report to emphasize the variables
which distinguish a pornographic representation from an erotic
one reflects an insensitivity to the importance of context (CAP
1986: 18). This underlines the incompatibility between the
committee's and feminist definitions (Landau 1985b: 6).
The erotica/pornography distinction remains problematic,
nowever. Diamond (1986: 297) presents the argument that it is
easier in theory than in practice to distinguish between
pornography and erotica, while McCormack (1983: 278) submits
that the distinction may actually be a reflection of culture and
social class. The argument arises that the erotica concept can
be reduced to a consideration of artistic merit.
The Fraser Committee allowed the defences of artistic merit,
educational purpose and scientific purpose in its tier two
offences. The discussion of artistic merit is highly subjective,
with artists unable to agree on the value of a particular
presentation. It is maintained that allowing a defence of
artistic merit will function to put the focus on the form of the
material and not the content (Landau 1985b: 5). The high quality
of a representation should not necessarily outweigh the impact
of its well done sexist imagery. It is suggested that the
defence be abolished and be replaced by a defence stating that
the work as a whole must clearly condemn the violence and
degradation depicted in it (CAP 1986: 1 5 ) .
Some groups are concerned that the educational and
scientific purpose defences will be misused. These individuals
contend that "material of prurient purpose could also be
produced in a pseudo-scientific or pseudo-educational format in
an attempt to escape sanctions" (Interchurch Committee 1986: 6 ) .
In order to prevent this situation, they suggest that all three
defences be collapsed into one defence of making a demonstrable
contribution to the public good.
The vague or ambiguous nature of some of the terms empioyed
by the committee are often the focus of criticism. Critics
assert that the meaning of the term 'lewd' is controversial. The
committee recognized this fault, but designed it that way so as
to allow the law to discriminate between what is patently
offensive when displayed in public and what is not. Diamond
(1986: 298) objects to 'lewd' on different grounds. She feels
that the term presents the idea that we are dealing with
something dirty or unmentionable. 'Lewd' is defined as
'obscene'. The use of the term can operate to refocus the
emphasis on violence and degradation back to sexual mores (CAP
1986: 9; Marshall 1985: 5). Boyd (1986: 283) argues that
criticisms of the vagueness of the Fraser Committee's
definitions are not valid. He suggests that, due to its nature,
obscenity is decided by the individual case.
The display of visually pornographic material is the concern
of tier three. Critics maintain that the display of written and
recorded material should similarly be regulated. The method of
regulation used by the committee is questionable, however. An
advertisement could easily masquerade as a warning sign, making
that requirement unnecessary (Marshall 1985: 5). The inclusion
of tier three recommendations in the Criminal Code could be
accompanied by certain unwanted ramifications. This occurance
could prevent or inhibit regulation at the provincial and
municipal levels (CAP 1986: 20,). Many communities enjoy the
regulatory powers now available to them and are leery that the
adoption of the Fraser Report's proposals will make municipal
by-laws which regulate display -- ultra vires as a trespass into
federal jurisdiction (~andau 1985b: 20).
The Fraser Committee suggested that the hate literature
provisions of the Criminal Code be modified to include sex or
gender as an identifiable group, along with the other
identifiable groups that were named in the Charter. The
Committee would also remove the requirement of wilfulness from
that section, and remove the requirement that the Attorney
General consent to a prosecution and classification of the
defences (F'raser Committee 1985: 2 7 ) . The identification of
pornography as hate literature can be regarded as a fairly
progressive step.-It is not clear what material would come under
the ambit of pornography laws, however, and what material would
be addressed by hate law provisions. The hate law provisions
seem somewhat redundant. Many authors question whether the
provisions will serve more than a symbolic function (Landau
1985b: 30: CAP 1986: 3 1 ) .
The committee asserted that this section would deal with
material which would not be caught by the pornography offences,
such as violent or degrading material which is not sexually
explicit. It would apparently complement the pornography
offences because no defences of artistic, educational or
scientific merit would apply (Fraser Committee 1985: 3 2 4 ) . The
Law Reform Commission (1986: 4 7 ) argued that not only would the
reform of hate law provisions not provide any substantially new
additions to the law, it "could be used to undercut the
safeguards provided by more specific offences of pornography."
The LRC asserted that using specific pornography offences could
more adequately address the nature of pornography and prevent
misuses or abuses of the law by overzealous prosecutors seeking
the shortest possible route to conviction.
In addition to its other proposals, the committee examined
t ~ e prospect of using human rights legislation to control
p, rnography. A private cause of action could ensue to redress a
p~,blic wrong. The committee stops short of advocating the human
rights approach, by not recommending that a separate
?ornography-related offence be added to the Human Rights Codes,
although the Fraser Committee encouraged Human Rights
Commissions to explore the application of the existing
legislation and jurisprudence on pornography issues (Fraser
Committee 1985: 3 1 3 ) . The committee's approach was rather
confusing, making it unclear whether they were willing to
endorse the approach or not (Landau 1985b: 3 5 ) .
The committee did recommend that provincial and territorial
legislation be enacted to provide a civil cause of action in the
courts with respect to the promotion of hatred by way of
pornography (~raser Committee 1985: 3 1 4 ) . The violation of civil
rights by pornography would be focused upon. No requirement of
proof of damage would be necessary, as the harm would be in the
material itself. This approach illuminates the issue of
pornography as a violation of women as a class, not just
individuals (Fraser Committee 1985: 3 1 4 ) . Unfortunately, the
utility of this legislation has not been demonstrated (CAP 1986:
3 9 ) .
Kanter ( 1986: 1 8 2 ) feels this civil rights approach
introduces new difficulties. Kanter suggests this civil action
poses additional threats to sexual material in Canada. The
Report already advocates use of the Criminal Code for sex and
violence, and human rights legislation and the Criminal Code to
eliminate its display from public places, such as the workplace.
Furthermore, problems of deiinition could surface with its
injunctions, for they must define the objectionable material.
Kanter submits the civil rights option could allow conservative
forces to use their influence to prevent the dissemination of
sexual material.
Many are perturbed that the civil rights approach represents
yet another strategy which wauld would detract from the progress
made by the new-wave of feminism, which recognizes pornography
as a system of representations and judges context to be the
determining variable.
Kanter states:
by promoting the use of civil rights actions, the Report
is adopting the view that it is not mainstream material
which is the most problematic. This view is that it is
other material, for which one can sue the supplier,
which is the main problem. By prosecuting around the
edges, it is suggested that it is the extreme images
which constitute the main problem, which is not the
case. Many media images are erotic in a manner degrading
to women, more subtle, but promoting the values of
pornography. The message should be that main stream
images are objectionable, with a strategy designed to
make people aware of that position (~anter 1986: 183) .
Kanter ( 1986: 186) reprimands the members of the committee
for not emphasizing the need for complete structural reforms and
social change after their recognition that pornography was part
of a much greater problem ingrained into the fabric of society.
Pornography is a microcosm of the power imbalance and social
inequality expressed in sexism. The committee members are
consequently censured for not following through on their own
insights (~anter 1986: 181).
The Fraser Report outlined specific sexual behaviours to be
prohibited. The system offered by the committee does not address
elements of context and manner of depiction (~ppleford 1986:
146). ~iamond (1986: 293) admonishes the committee for
presenting pornography along a continuum of sexist images,
rather than placing it within a framework of oppression against
women. The committee apparently does not identify pornography as
a system of representations within a network of representations,
in the Rosalind Coward tradition.
Although the Fraser Committee considered the Criminal Code
an inept device for confronting sexist attitudes, they chose to
select legal answers to social problems (~iamond 1986: 291). The
Fraser Committee advocated the use of the law over an arguably
more effective, if more expensive, employment of progressive
economic and social policies, despite contentions that the law
is a necessary first step for change ( ~ c ~ a r e n 1986: 1 1 1 ) . The
need for educational and informational reforms was discussed,
but only on the level of generalities. Kanter (1986: 188) argues
that the government must be forced to outline specific
recommendations aimed at removing inequality.
~otwithstanding the fact that the Fraser Report calls for
sex education, its proposals are not particularly progressive.
The Report suggests the financial support of voluntary community
and religious organizations that are already involved in this
area. Diamond (1986: 293) argues that these groups function to
maintain the status quo, which is highly problematic from the
feminist perspective.
Moralists object to the recommendations on the grounds that
representations of explicit adult sexuality would not be
prohibited in the absence of violence and degradation. Liberals
see the implementation of hate law provisions and tier two
concepts of sexual violence and degradation as adding fuel to
the censorship fire. The Fraser Report's perspective has been
described as "liberal with healthy doses of feminism" (~anter
1386: i 7 5 ) . ~espite its recognition of contemporary concerns and
feminist theory, feminist critics contend that the insights were
not illustrated within the legal reforms. The progressive views
conveyed in the main body of the Report were not translated into
many of its recommendations (~andau 1985b: 2).
Bill C-114: Moralism Revisited
John Crosbie proposed Bill C-114 in the June of 1986. Many
individuals interested in the pornography issue were sadly
disappointed with the main thrust of the bill, which did not
attend to the issues and principles presented in the Fraser
Report. Bill C-114 represents repressive legislation which would
reroute the pornography debate to a moralistic consideration of
depictions of sexuality. Although Bill C-114 died on the order
paper when parliament was prorogued on August 28, 1986, it could
be re-introduced as it exists or in an amended version1 (CCAMP
1986: 1). Regardless, it represents an example of overinclusive
legislation which can be identified as a product of our
conservative times.
Bill C-114 creates many new definitions, including those for
degrading pornography, pornography that shows physical harm and
'sexually violent behaviour'. The proposed sections 159 to 159.8
would replace the offences of corrupting morals, the 'obscenity'
and 'crime comic' provisions of s.159 and s.160, the
restrictions on publication of s.162, and make consequential
changes to s.160, 161, 164 and 165. ill C-114 includes proposed
section 162.1 which would deal with ma'terial advocating child
sexual abuse. Section 163 to 163.5 would deal with various
theatrical performances.
Sections 281.1 to 282.3 of the Criminal Code would be
broadened under the bill, with the inclusion of 'sex' as one of
the identifiable groups under the 'hate propaganda' offences,
The Customs Tariff would be updated to reflect the prop~sed
'Subsequent to the submission of this thesis the federal
government presented a bill similar to Bill C-114 in both form
and content. On May 4, 1987 ~ustice Minister Ray Hnatyshyn
introduced Bill C-54 with its proposed amendments to the
Criminal Code. ail1 C-54 included a definition of erotica and a
slightly altered definition of pornography. In addition, some of
the penalties associated with the various offences had been
changed. Despite these deviations, the approaches to pornography
offered by Bill C-114 and Bill C-54 are not fundamentally
different.
changes in the Criminal Code under the pornography section, the
child pornography section and hate propaganda within the
definition of 2 8 1 . 3 ( 8 ) of the Criminal Code.
Crosbie's definitions of pornography have not received
positive comment from the feminist or liberal communities. A
clause by clause analysis best illuminates the essence of the
legislation. Section 138 of the Criminal Code would be amended
to include the definitions. Pornography is defined as:
any visual matter showing vaginal, anal or oral
intercourse, ejaculation, sexually violent behaviour,
bestiality, incest, necrophilia, masturbation or other
sexual activity.
Degrading pornography refers to:
any pornography that shows defecation, urination,
ejaculation, or expectoration by one person onto
another, lactation, menstruation, penetration of a
bodily orifice with an object, one person treating
himself or another as an animal or object, an act of
bondage or any act in which one person attempts to
degrade himself or another.
Pornography that shows physical harm means:
any pornography that shows a person in the act of
causing or attempting to cause actual or simulated
permanent or extended impairment of the body of any
person or of its functions.
Lastly, sexually violent behaviour is defined as including:
sexual assault for the apparent purpose of causing
sexual gratification to or stimulation of the viewer, in
which physical pain is inflicted or apparently inflicted
on a person by another person or by the person himself.
Bercovitch and Busque (1986: 3 ) contend the proposed legislation
may be both under- and over-inclusive. Some of the definitions
have a nebulous nature. I t is unclear what is meant by 'or other
sexual activity' in the pornography definition. It is apparently
a catch-all phrase to legitimize prosecution of any
representations which do not meet with judicial approval. The
pornography definition is overly broad and vague, and yet it
does not affect aural or written material. The authors argue
that the combined effect of the written and visual provides the
greatest impact, yet it is not addressed by the legislation.
They predict a situation in which a relatively neutral picture
could be paired with violent text, producing a highly disturbing
impact. Furthermore, by focusing on only visual matter, which
includes pictures, films and videotapes, the definition would
not include some forms of pornography now available, such as
Dial-a-Porn.
Under the provisions of Bill C-114, all depictions of
sexuality are considered pornographic. The definition does not
distinguish between pornography and erotica. It deals with
depictions of consenting intercourse in an identical manner as
depictions of bestiality and necrophilia. Feminist distinctions
between healthy consenting sexuality and more problematic
behaviours are not acknowledged. Perhaps the most disturbing
aspect of this definition is that it does not address the notion
of context. Depictions of the behaviours from any perspective,
regardless of their connotations, are identified as
pornographic. The definition does not differentiate between the
truly objectionable and the unpernicious.
The definition of degrading pornography may similarly
criminalize many images that, although shocking in the framework
of our culture, are not appropriately subsumed under the heading
of degrading pornography. The manner in which menstruation or
lactation are portrayed would determine whether the behaviours
appeared pornographic. The ridicule of pregnancy, lactation and
menstruation may be a better target for control (~ercovitch &
Busque 1986: 18). In addition, the phrase "any act in which one
person attempts to degrade himself or another" is very
ambiguous. A variety of behaviours may be incorporated under
legislation of this nature. As feminist artists begin to explore
issues of the female condition, their works could conceivably be
restricted on the grounds that actors and actresses within their
skits and films attempt to degrade themselves. Similarly, many
feminists would argue that exploring the relationship between
dominance and submission in depictions of bondage may be a
worthwhile purpose that should not be preempted. Purpose is not
addressed by Crosbie's definition, however. Therefore, the
message a work is supposed to emit would not be necessarily
examined by a court. Although this approach may save the court
from the difficult task of trying to second-guess the motives of
film-makers and producers, it fails to distinguish between
pornographers exploiting the degradation of women and artists
examining the human condition.
The definition of pornography that shows physical harm has
been criticized on the grounds that it may serve to legitimate
other behaviours that are equally problematic (~ercovitch &
Busque 1986: 15). It deals with the depictions of the actual or
simulated and attempted 'permanent or extended impairment of the
body or any of its functions'. Permanent or extended impairment
may not be necessary. Injuries that are of a shorter duration
should debatably be addressea under a section identifying
pornography that shows harm. This section would most probably
affect 'snuff' movies and their simulations. The practicality of
this section is disputable because so few snuff films are
actually found in Canada. It is believed that those films which
are discovered in Canada are produced in the United States and
Europe.
The last definition is the only one that focuses on the
purpose of the representation. Bercovitch and Busque ( 1986: 16)
contend that the section should name aggravated sexual assault,
and even plain assault and aggravated assault in its definition.
Therefore, any assault, with or without consent, for the
apparent purpose of causing sexual gratification to or
stimulation of the reader would be prohibited.
Sections 159 to 159. 3 present the offences of distributing
and displaying, selling or renting pornography. They are
accompanied by a maximum penalty of five years in prison. I t is
obviously an oversight that the display of pornography that
shows ghysical harm is not an offence. With the exception of
that pornography, all of the offences are accompanied by the
defences of a genuine educational or scientific purpose or
artistic merit, given the presence of a warning sign. An
inclusion of the last defence undermines any facade of trying to
respect feminist principles.
The most problematic aspect of the defence of artistic merit
is the notion of balancing the content of degrading and sexually
violent images with their form. The term 'artistic merit' is
vague and it necessitates judicial discretion in an area beyond
judicial training. Furthermore, the necessary warning sign could
be considered no more than an advertisement. Bercovitch and
Busque ( 1986: 2 4 ) argue that i f the work truly has artistic
merit the sign is of no consequence. Such warnings are not
necessary for works of art in museums.
Bill C- 114 includes rather confusing legislation in regards
to conditions of display, exhibition to minors and the role of
the provincial film review boards. Section 159. 4 states that
display to the public of any pornography or other material in
which the breasts or genitals are shown for a sexual purpose is
an offence unless there is a prominent warning notice or the
material is hidden by a barrier or it is covered by an opaque
wrapper. Apparently, either one of the three conditions
precludes a finding of guilt. Sections 159. 5 and 159. 6 make it
an offence to sell, rent or show any pornography, or any
material referred to in the previous section, to a person under
eighteen years of age. Section 159. 6 refers to material other
than visual pornography, including any matter the dominant
contents of which are a description of masturbation or vaginal,
anal or oral intercourse. Section 159. 7 names the defences
available for offences under these sections. The defence of due
diligence in ensuring there was no pornographic material still
applies. It is similarly a defence to show that the material has
a genuine educational or scientific purpose and that it was
sold, rented or displayed for that purpose. The last defence
suggests that i f the material had been classified or rated by
the provincial classification system as acceptable for viewing
by those under eighteen, no offence will have been committed.
These sections appear very incoherent when they are viewed
in conjunction with each other. Firstly, the display offence
addresses 'pornography or other material'. Bercovitch and Busque
(1986: 28) suggest that 'other material' refers to nudity. They
point out the inherent contradictions in the bill, stating:
i f the government did intend sections 159.4 to apply to
pornography, then sections 159.1 and 159.2 would be
prohibiting the sale of the material, and this section
would be determining how it could be sold.
If the material is that which had been allowed by one of the
defences, yet more confusiorl is introduced. Bercovitch and
Busque submit that if a person was found not guilty of the
offence of displaying pornography, the display conditions set
out in 5.159.4 would be redundant. Otherwise, an individual
could be found not guilty of an offence under one section and be
guilty of the same offence because of another section
(Bercovitch & Busque 1986: 28).
I t appears as if the federal government would regard any one
of the measures constraining display as equally adequate.
Traditionally, conditions of display are determined by municipal
by-laws. If federal legislation is going to enter into this area
it is unclear what the powers of the municipalities and
provinces are concerning conditions of display. The legislative
status of the provincial and municipal levels of government are
brought into question. The last of the three defences is perhaps
even more controversial. Because the federal government would
follow the provincial film review boards' decisions,
administrative bodies could carry more weight than the Criminal
Code. Administrative bodies would, therefore, be entrusted to
determine criminal law.
I f the federal government was willing to adopt the proposals
laid out in Bill C-114, the penalties accompanying the offences
would have to be altered. Display, sale or rental of pornography
to adults could be an indictable offence, associated with a
possible term of imprisonment not exceeding two years. The
identical display, sale or rental to minors would only be an
offence punishable upon summary conviction. Presumably, the
young should be afforded more protection than should adults.
Section 159.8 makes it a crime for anyone to sell, offer to
sell or display a sex-aid to a person under eighteen years of
age. This addition to the Criminal Code seems rather arbitrary,
given the fact that persons younger than eighteen can legally
participate in sexual activity.
Sections 162 and 162.1 address child pornography. Anyone who
uses a person under eighteen years of age in the making of
pornography, or imports, makes, or distributes such pornography
can be subject to conviction of an indictable offence and is
liable to imprisonment for up to ten years. Possession of such
visual materials is accompanied by an offence punishable upon
summary conviction. Section 162.1 criminalizes any thing that
advocates, encourages, condones or presents as normal child
sexual abuse. The offences range from indictable offences
accompanied by maximum ten year sentences for importing, making,
printing, publishing, broadcasting or distributing such material
to a summary conviction offence for possession. Therefore,
written, aural or visual material could be addressed by this
legislation.
Bill C- 1 1 4 can be criticized for many of the same reasons
the Fraser Report was censured. The proposals for child
pornography do not distinguish between offences dealing with
young children and older teenagers. Perhaps a graver error,
incorporated in both documents, lies in the fact that the
penalties do not reflect the degree of harm. Section 159
declares that the making or distribution of any pornography that
shows physical harm is an indictable offence and can be
accompanied by a prison term not exceeding five years. The
making or distributing of child pornography, or material
advocating child pornography where no children need be involved,
is associated with a prison term twice that length. 'Pornography
that shows physical harm' can include 'snuff' movies, which are
films that record the actual murder and mutilation of women.
Feminists assert that the degree of harm, whether it be focused
on children or adults, should govern the associated penalty.
~doption of Biil C-114 would entail that subsection 281.4 of
the Criminal Code be amended so that 'identifiable group' would
mean any section of the public distinguished by colour, race,
sex, religion or ethnic origin. Although many corners of the
feminist community have worked diligently for this addition,
Crosbie did not accomplish the extra step necessary to make this
motion effective. Hughes (1983: 107) suggests that adding sex to
the hate propaganda section will be a futile exercise, unless
the addition is accompanied by other changes. I f the government
refuses to remove the 'wilfully' term and does not withdraw the
requirement that the Attorney General consent to every
prosecution, the hate literature provision will be functionally
inoperative as a control against pornography. The hate
literature legislation has never been widely used in the past,
and without the recommended changes it will continue to lay
dormant.
Bill C-114 was destined to be unpopular with all social
groups interested in the pornography issue, with the exception
of the conservative forces. I t has been regarded as sweeping and
Draconian legislation ishe her 1986: 352). Its vague, broad
nature serves to chill freedom of expression. Opposition to the
bill derives from the fact that its explicit denunciation and
condemnation of images of sexuality is considered Victorian in
nature (Vancouver Sun June 11,1986: Al). Louise Dulude,
I ,
president of the National Action Committee on the Status of
Women, suggests that underlying the bill is the notion that sex
is dirty. She submits that the bill has a Puritan flavour,
clearly reflecting the views of fundamentalist religious groups
rather than the feminist community.
Diamond (1986: 314) predicts that if legislation of this
nature is passed, sexually violent fantasies will merely take on
more symbolic forms. Bill C-114 is ineffective in preventing
such violent images as women fellating guns. The bill disregards
the codes that necessarily determine the interpretation of
images. Bill C-114 precludes a consideration of context, for the
essence of an image cannot always be reduced to its subject
matter (Bercovitch & Busque 1986: 6).
Because the bill avoids a focus on context it is unable to
distinguish between erotica and sexual violence. It dismisses
all representations of sexuality to the pornographic realm. The
proposed legislation proffers the notion that sex is bad. It
condones the distortion of women's visions of themselves, and of
women's and men's views of their sexuality (~ercovitch & Busque
1986: 7 ) . The defence of artistic merit condones the attitudes
the bill alleges to condemn (~ercovitch & Busque 1986: 9 ) . The
precedence art is granted over over equality rights is
incompatible with feminist ideology. Bill C-114 apparently does
not accept feminist notions of social harm. Although it does
concede that pornography can be conceptualized as hate
propaganda, the bill does not loosen the bindings that might
allow this provision some utility. Bill C-114 is a product of
moralist attitude and cannot be reconciled with feminist or
liberal philosophy.
Common Ground
Civil libertarians and feminists supporting an
anti-censorship position were not confounded or caught unaware
by the essence of Bill C-114. They were apprehensive that any
state intervention, regardless of its purported intentions,
would operate to deny sexual expression and suppress the
development of groups which are dedicated to the exploration of
sexual issues. Censorship of sexual materials is additionally
disturbing to liberals, because sexual behaviour and attitude
have traditionally been considered aspects of the private realm.
Therefore, the costs of censorship must be balanced against its
goals.
The criticisms against censorship are many. They are largely
directed at state censorship, although many other types of
censorship operate implicitly on a daily basis. Individuals
running corporations, art exhibition organizers and the boards
of film companies are continually employing a form of
censorship, allowing one type of expression precedence over
another. Quality of depiction or design is but one factor which
determines production, display or dissemination. Decisions
concerning allotment of funding, studio time or wall-space in
galleries effectively censor individual expression as
strategically as any government aspiration. Politics on a
global, but also a local and individual level, functions to
silence some forms of thought and give life to others.
Politically viable notions will consistently be represented over
less popular philosophies, whether they be within right- or
left-wing organizations.
Regardless, many individuals identify their greatest threat
as state censorship. It has been appraised as an ineffective
social control vehicle which damages sexual attitudes, silences
divergent thought and destroys the foundations of democracy.
Ironically, censorship is purportedly most dangerous to those
who champion it. Liberals and the anti-censorship branch of the
feminist movement warn that the anti-pornography campaigners are
contributing to their own oppression by relegating their
freedoms to a patriarchal structure which has consistently
opposed their development.
Censorship has been accused of being an ineffective tool as
a function of geography and technology. The argument has been
made that Canadians cannot adequately suppress pornography
because it is so freely available in the United States. The
complexities of modern technology defeat any attempts at
controlling the spread of pornographic materials ishe her 1986:
355). Without the combined attempts of both countries, Canadian
censorship will be ineffectual.
Liberals postulate that censorship will not eradicate
pornographic expression, it will merely drive it underground.
Pornography thrives on its illicit, explicit nature. An element
of pornography's attraction and appeal is that it is considered
naughty. Civil libertarians indicate that the pornography
industry actually benefits from legal prosecution, because this
attention serves to enhance the value of pornography. A
black-market effect will function to raise the market price of
pornographic materials, making the pornography trade an even
more profitable and lucrative business (Diamond 1986: 3 1 4 ) .
Although the black-market has always existed, civil-libertarians
fear it will contribute to the spread of criminality (Fulford
1979: 1 8 ) .
According to proponents of the anti-censorship camp, the
transformation or suppression of the more mainstream images of
pornography would not eliminate the images which critics find
offensive, problematic and harmful. The images would merely
assume more symbolic forms (Diamond 1986: 3 1 4 ) . Even violent or
sado-masochistic pornography would not be circumvented through
censorship because violent pornography is a reflection of social
reality (Robertson 1979: 2 7 ) .
Civil libertarians and many feminists identify any
censorship approach as incompetent in nature because the
strategy does not recognize the fact that society is so
inundated with degrading images of women, that the complete
abolition of pornography would not compensate for the pervasive
sexism in advertisements, education, literature, art and western
culture in general (Fisher 1986: 356). Censorship does not
effect changes upon the socialization processes and childrearing
practices where individuals develop many of their attitudes and
prejudices.
Ultimately, censorship of pornography will not improve the
condition of women. Feminists posit that it is an ineffective
'band-aid' solution to the cultural problem of sexism. King
(1985) emphasizes that laws are never enforced in a social
vacuum. Although they may be predicated upon feminist thought,
the power of the feminist movement determines their efficacy.
Many individuals enjoy pornography. They believe and contribute
to a more general sentiment that pornography is harmless. The
censorship of obscenity is consequently arbitrary and its
ineffectiveness is well documented (~c~ormack 1985b: 281).
Critics are more concerned with its potential dangerousness,
however.
Fisher (1986: 354) speculates that the censorship of
sexually explicit materials may promote negative attitudes
towards sexuality and result in erotophobia. This consequence
could contribute to poor sexual hygiene and less satisfying
sexual relationships. Furthermore, the censorship of sexual
materials teaches a fear and repression of sexuality (Fulford
1978: 1 2 ) . Censorship contributes to the traditional notion that
sex itself, not just sexist representations, is objectionable
(Wilson 1983: 153).
McCormack (1985b: 281) commends the censorship of
pornography because she suggest it is symbolically important due
to its potential consciousness raising effect. She does not
endorse it, however, because she regards the symbolism as
hostile. The practice of censorship may be dangerous because it
promotes intolerance (Fisher 1986: 353). The theory of
censorship works against democracy and refutes the hypothesis
that ours is a pluralistic culture, with competing and
conflicting views (Fulford 1978: 12). It transmits the message
that disfavored opinion and dissent must be suppressed.
Liberals expound the view that censors will not be content
with suppressing the most obnoxious images. Fulford (1978: 12)
suggests that censorship will grow as one feeds it, until it
reaches the dimensions of totalitarianism. It has a reportedly
uncontrollable nature. It will attack the best works and condemn
the worthless with an indistinguishable relish, so that even
classic literature and art will eventually be afforded no
protection (Hughes 1983: 113). Moreover, Fisher (1986: 356)
submits that any support of offical censorship of sexual
material is misplaced because censorship will be used as a
weapon against researchers active in the social sciences, law
and education. This is often referred to as the 'slippery slope'
argument. In the context of the pornography debate, this
argument becomes:
one small step toward interfering with civil liberties
puts all of us onto the slippery slope that leads to
fascism, for i f we surrender one liberty, we have no
moral claim to any others. It is a version of the
'all-or-nothing' argument (Cole 1985: 230).
A new wave of feminists are contending that a strategy of
censorship, such as that adopted by the anti-pornography
movement, distracts the attention of feminists and the rest of
society from needed structural and institutional change (Burstyn
1985: 157) . By prosecuting only a select category of images, one
sanctions or legitimizes the remaining unhealthy portrayals.
Gronau speaks for the new-wave of feminists when she remarks
"there are already too many impediments to our being heard; we
must not be complicit to another barrier" (Gronau 1985: 96). The
censorship device will be used to silence women's voices, and
actually precludes the democratic conditions which are necessary
for social change (McCormack 1985: 181). Women are not empowered
by the weapon of censorship, for it is not their power to
exercise. It is the power of the state. The state has
traditionally ignored the interests of feminists and sexual
minorities, and in many instances, functioned in opposition to
those interests. It is a tool of dominance and repression. The
anti-censorship stance argues that law exists to legitimize
ideology. In this context, censorship is futile because:
The use of the legal system to change social relations
will always degenerate either into utopian idealism (a
form of ineffectiveness) or into gradualist reform (a
form of cooptation) and each apparent gain on women's
behalf will inevitably result in a net loss, as the
power of the state (and of men) increases (Lahey 1985:
669).
Individuals assuming an anti-censorship stance object to
state interference for a variety of reasons. Many of them are
highly disturbed by the content of pornographic expression,
however. They are not advocating a policy of complacency.
Liberals prescribe varioas methods of protest to combat
pornography. Feminist groups similarly employ these tactics, yet
they do not frame the pornography debate as a freedom of speech
issue.
~t one time civil libertarians did maintain that a lack of
controls on pornography would function to decrease its demand.
This logic suggested that individuals would become bored with
pornography and interest in it would consequently wane (Diamond
1980b: 1 4 2 ) . Unfortunately, history refuted this hypothesis.
Pornography has become increasingly popular since the 1960's. It
is estimated to be a billion dollar industry. Rather than
witnessing a decrease in demand, society has observed a great
expansion in the industry. As pornography has become
increasingly violent, civil libertarians are not as eager to
associate it with the progressive and the good. All pornography
is not simply viewed as one medium for sexual expression. The
feminist movement has successfully publicized the other more
insidious elements within it.
Few individuals are now so naive as to assume that an
absence of restrictions on pornography would contribute to its
extermination. The opposite view is more prevalent. ~conomic
interests may function to increase the quantity and degree of
violence in pornography, as entrepreneurs acquire increasingly
bizarre products to maintain their share of the market
(~obertson 1979: 9 ) . Irrespective, civil libertarians do not
perceive censorship as a viable alternative due to their
confidence in the free flow of speech in the market-place of
ideas.
Anti-censorship feminists advocate non-legal approaches for
different reasons. Pornography is sometimes conceptualized as a
medium in which power relationships and cultural codes can be
interpreted and explored. Pornographic products become the
documents of sexual oppression, testifying to the condition of
women (Gronau 1985: 9 7 ) . Other feminists prefer to discuss
pornography in terms of fantasy, symbols or imagery in
representations (Stern 1982; Wilson 1983; Diamond 1985) . These
women advocate an analysis of pornography, with a focus on the
relationship between fantasy and act, between desire and sex,
and between representations and acts (Coward 1982: 2 0 ) . The
anti-censorship position interprets pornography as part of a
larger phenomenon of sexist representation (Coward 1982: 49) . It
entails that a feminist analysis must examine the impact of
pornography and censorship on the feminist movement. Pornography
is conceptualized as part of a larger symbolic system which
devalues rather than degrades women. That devaluation can be
estimated both economically and politically (McCormack 1985b:
2 8 2 ) .
Anti-censorship feminists have strategies which respect
their philosophies. They advise open discussion, demonstrations,
consumer boycotts, education and alternative imagery (Manion
1985: 65). Many of the advocated proposals are suggestions to
improve the position and condition of women within society.
At the individual level, persons can ask their local stores
not to sell pornography. They may write letters to companies
whose advertisements reflect pornographic themes and boycott
products if the commercials or billboards continue. Theatres
which consistently display misogynist material can also be
picketed (Hughes 1985: 110). People can protest particularly
sexist spectacles or events, as feminists did the beauty
pageants (Burstyn 1985: 161). Cole (1985: 237) confronts the
effectiveness of these techniques, however, when it is revealed
that stores may remove 'adult magazines' from their shelves in
efforts to be consistent with their family image, and not in a
recognition of the insidious essence of sexism. She questions
under which auspice more violence against women has been
committed: the family or the state.
Extremist non-censorship approaches have even included the
fire-bombing of pornographic video-outlets (Hughes 1985: 110).
It is debatable whether women promoting anti-censorship would
advocate this strategy, however. If the violence in imagery is
problematic, so too are terrorist tactics. Although the actions
of the Wimmin's Fire Brigade did draw public scrutiny, the deeds
were rather an attempt to gain attention from authorities which
were ambivalent towards pornograpny control.
Perhaps censorship would not be perceived as such a
dangerous weapon by artists, writers, feminists and civil
libertarians if those groups participated in some form of
self-government. The state would possibly be less compelled to
intrude into the domains of art and literature if various
organizations demonstrated some conscience in the absence of
external controls. McCormack suggests that professionalization
may offer some protection from state censorship. She states:
It is precisely the failure of artists to adopt the
model of the professions that leaves them so exposed and
vulnerable to censorship, vigilante groups, and the
least-informed public opinion, not to mentio~ the
tyranny of critics who have their own intellectual
vested interests (McCormack 1983: 212).
Because there is no organized policy of self-policing, the
government assumes authority. Cole (1981: 1 1 ) identifies some
merit in this proposal. She recommends that members of the film
industry collaborate to censure or expel directors from their
associations and academies, contingent upon their conduct. Those
film-makers who continually exploit themes of violence, sexism
or pornography in their work could be reprimanded by their
peers. This notion could reduce state intervention. Furthermore,
an elected board of artists and writers would be more
sympathetic and sensitive to the concerns and limitations of
this group.
Other avenues exist through which the film industry could
contribute to a decrease in pornography. Many feminists assert
that alternatives to sexist imagery could help eliminate
pornography. This strategy focuses on positive energy, without
the negative, condemnatory tones of censorship. Garry ( 1978:
416) suggests meeting the demand for sexually explicit materiai
with nonsexist, morally acceptable material. Burstyn ( 1985: 165)
is attracted to this approach. She expands upon methods which
use the media to combat pornography. Government arts bodies at
all three levels could subsidize cultural producers, enabling
them to promote non-sexist imagery on a wide scale. Funds could
be diverted or increased from mainstream films and art to
artists who are providing alternative visions of sex and male/
female roles and relationships (Andrew et al. 1984: 63). A
women's television network could be established to help give
women equal input into culture (Steele 1985: 74). In this
manner, women could have access to 'speech' and the power to
combat the pornographer.
A growing number of feminists are unconvinced of the
efficacy of this approach, however. Hughes ( 1985: 112) submits
that this strategy demonstrates an obliviousness to the nature
of pornography. There can be no equivalent, non-sexist
pornography because pornography is based on power. Valverde
( 1985: 126) contends that reversing the power relationship in
film would be similarly ineffective. Patriarchy would never be
threatened by this option because fact is so firmly rooted
withifi it. I t would be an exercise in fantasy production, with
no veritable alteration in a corresponding reality. ~lternative
sexual imagery remains as ineffective as censorship, because
neither strategy challenges the sexual regime itself inn 1985:
90). The condition of the viewer would not be altered, and new
images would be interpreted through existing frameworks (Finn
Cole (1985: 2 3 6 ) is not impressed with the increased speech
approach. She states:
I do not think...that women's prose, poetry, eight
millimeter films, and video tapes by themselves will be
able to counteract the effect of an industry that has
more outlets than McDonald's. In fact, in a society in
which money buys speech, feminist dissidents are allowed
a few inroads, but the real beneficiaries of the civil
liberties movement are the pornographers.
An increase in the amount of women's speech through alternative
imagery will not be sufficient to eradicate pornography
(~ccormack 1985b: 274). Affirmative action programmes, and
policies mandating preferential access for women are necessary
to reverse the economic discrimination which translates to a
lack of power in our society. Meaningful change to the existing
system necessitates economic independence for women and youth
and reproductive rights for women and sexual minorities (~urstyn
1985: 171). Women must receive equal pay for work of equal
value. Subsidized day-care will also aid in making various
options a reality for women (Kanter 1986: 188). Family laws must
be reformulated to allow women more economic opportunities in
the event of divorce (~anter 1986: 188). Effective legislation
which addresses sexual harassment, assault, working conditions
and wages for all women must be adopted if the power
relationships reproduced in pornography are to be fundamentally
altered (~urstyn 1985: 159).
~nti-censorship liberals and feminists contend that
education will eventually triumph over pornography. ~ducational
reforms are regarded as providing the most meaningful approach,
for they will afford long term solutions. They will fight the
ideology behind pornography and other sexist material (E'isher
1986: 3 5 7 ) . ish her ( 1986: 358) suggests a process he calls
'educational immunization', whereby individuals will be trained
to detect and reject sexist and pornographic images in society.
They will learn to effectively practice a form of
self-censorship. Many individuals recommend that funding and
research be dedicated to improving educational programmes
s ish her 1986; Andrew et al. 1984; Diamond 1986: 3 2 2 ) .
Social education programmes must be complemented with a sex
education agenda. Comprehensive sex education programmes are
necessary for use in the Schools and communities (Diamond 1986:
3 2 2 ) . Burstyn ( 1985: 163) suggests that they be integrated into
the programmes offered by community colleges, university
extension facilities, libraries, local Y's and other
organizations.
Many theorists are critical of the way sex education
material is traditionally presented. It is usually exhibited in
a dry, informational, documentary tone. Some sex educational
materials have been accused of resembling pornography, because
they seek to merely record sexual activity in the absence of
emotion (Faust 1 9 8 0 ) . Critics have acknowledged that young
people are often drawn to pornography in attempts to gain
information about sexuality. If educational materials are to
seriously compete with pornographic ones, they must be well
produced and interesting. Theoretically, "they should include
expressive and creative work that acknowledges confusion and
pain and validates eroticism and pleasure" (Burstyn 1985: 163).
Educational programmes should be designed in recognition of
various cultures, religions and sexual orientations. Burstyn
suggests that people presently exploring sexuality in the arts
contribute to the process.
Although anti-pornography campaigners and anti-censorship
proponents employ dissimilar tactics, there is a considerable
amount of overlap between their intentions. Lahey (1986: 671)
distinguishes between the anti-pornography and anti-censorship
strategies:
The essential difference... is that some of the
anticensorship feminists are more concerned to regulate
the "soft core" content of the broadcast media, while
antipornography feminists want to regulate the "hard
core" content of films, videotapes, and printed media.
Despite the fact that they are pitted against state censorship,
anti-censorship proponents are often amenable to some variation
of public regulation of media which promotes negative images of
women, such as those found within the CRTC regulations. The
anti-censorship feminists believe that sexism pervades our
culture completely. They contend that one must challenge the
mainstream images found in television, advertising, women's
magazines and feature length films. The censorship of
pornography results in the treatment of a symptom, not a
disease. Anti-censorship advocates support a combination of
approaches which do not necessitate state censorship. Their
policies of social intervention, anti-sexism campaigns, improved
sex education, alternative imagery and grass-roots measures are
actually supported by the wider feminist community, however.
Adjunct - vs ~lternative Solutions
Every feminist position recognizes that pornography cannot
be completely obliterated without fundamental alterations to the
political and social structures which subordinate women (Lahey
1985: 671). Many anti-pornography feminists acknowledge the
dangers of state censorship. These women argue for the
implementation of legal resources, however. Jacobs (1984: 45)
outlines the major concerns which envelop the censorship issue.
She states:
First, feminists cannot rely on patriarchal society to
enforce laws on our behalf, even i f the laws explicitly
protect women. Second, to the extent that pornography is
a product of misogyny, suppressing pornography cannot
cure all sexism but can only stop one, albeit very
effective means of perpetuating it. Third, any
regulation of speech presents the potential for
unacceptable censorship of ideas (~acobs 1984: 44).
Despite these barriers, she contends that legal approaches are
mandated. Legislation must serve women. The concerns of half of
the population should not be suppressed, 3 subjugated to
private remedies. Women cannot wait for patriarchy to be
dismantled (Hughes 1985: 120). A11 action cannot be precluded on
the grounds that sexism is all pervasive. Because it effectively
denies women basic civil rights, pornography must be proscribed.
Pornography laws can institutionalize a promise for equality.
Feminists entertaining the concept of legal control
recognize the importance of the anti-censorship strategies.
These women label the proposals as adjunct, rather than
alternative solutions, however (Hughes 1985: 108). According to
this perspective, approaches to pornography should
simultaneously include legal and extra-legal measures. Social
and educational devices must be implemented, yet one cannot
underestimate the importance of legislation. Cole (1985: 232)
states:
I have never heard of a legal remedy that was intended
to be the sole solution to social problems, or that
would have much impact i f there were no corresponding
changes in perceptions or values. Why do we make these
special demands on pornography law?
Feminists recognize that pornography laws will not eradicate
sexism. Legal controls are never completely effective. They are
relying on the combined weight of legal reform and political
process, however (Cole 1985: 235). Because pornography is a
prejudice, iaws constraining its expression will enlighten the
Canadian population. The law can be used as an instrument of
moral education in efforts to illuminate the public as to the
pathological elements of pornography.
Various writers are cognizant of the conservative climate in
Canada, and the potential for repressive social policy which
accompanies it (Brock & Kinsman 1986: 238; McCormack 1985b:
272). Comprehension of this cultural trend entails a certain
apprehension with regards to the conservative tendency to
deregulate the economy and regulate morality ( ~ c ~ o r m a c k 1985b:
272). Feminists are wise to be distrustful of the powers of the
state, yet they must not retreat from the legislative challenge.
They should make every attempt to have their views acknowledged.
Cole (1985: 2 3 3 ) fears that "if feminists withdraw entirely from
the legislative and legal process, there is an even greater risk
that the law will be used against us." Her concern is that if
Canadian women refuse to contribute to the legal reform of
obscenity laws, proposed legislation will reflect right-wing
ideologies. Lahey (1985: 685) shares her anxiety, arguing:
the time is rapidly approaching when women will discover
that if they do not engage in this struggle, then
publishers, politicians, lawyers, and judges will be all
too happy to put words in women's mouths -- which will
make it even more difficult for women to break through
the silences that men have imposed upon them.
Conclusions - and prescriptions
Recognition of the harms associated with contemporary
pornography precludes the continued proscription cf sexual
material on the basis of its tendency 'to corrupt morals'. The
inappropriate focus of Canada's existing obscenity legislation
is compounded by the vague and ambiguous nature of its
interpretation. Consequently, a consideration of various
creative and innovative legislative alternatives is mandated.
The community standards test is the most important variable
in a determination of obscenity. Community standards are
identified as national standards of tolerance. Although
extremely fluid in nature, this elastic concept is amenable to
empirical testing. Scientific and technological advances have
permitted moderately accurate estimations of contemporary
Canadian attitudes through the use of public opinion surveys and
statistical techniques. The courts need not adhere to the
results of public opinion research, however. Strict
methodological research requirements may render a survey's
results inadmissible, or once they are accepted, they may be
given no weight due to a reliance on judicial notice. The
guidelines for survey evidence are unnecessarily rigid. Even
poor research technique is superior to one person's impressions
of the attitudes of a nation. Regulations must be relaxed to
allow an increased opportunity for expert testimony on the state
of the mind of the Canadian community.
Yet closer approximations to majoritarian inclinations will
not fundamentally alter this misdirected approach to
pornography. The community standards interpretation of the
present legislation does not address the harms pornography
purportedly engenders. Its elusive and dynamic character may
accommodate the process of creeping gradualism, whereby the
Canadian public becomes desensitized to increased violence.
Critics contend that the standard functions to preserve the
status quo and maintain current sexual mores. The community
standards test works as a social control mechanism to stifle
divergent opinion and reinforce cultural taboos on sexuality. It
is considered a sexist and discriminatory instrument in terms of
gender and class. The standard gauges uninformed opinions in an
area where legislators could morally educate. It does not allow
for an evaluation of the validity of the opinions which it
aggregates. The community standards test must be rescinded. The
criminal sanction is improperly predicated upon a nation's
intolerance. Individuals debate the alternatives from many
perspectives, while a lack of consensus presides.
The government has demonstrated a dedication to the
resolution of the pornography issue. It recently released two
reports which focussed on the pornography problematic. The
Badgley Report was reproached for its paternalistic perspective.
-
The recommendations within it represented superficial
improvements on the existing situation, not efforts to eradicate
underlying problems. The Fraser Report was conceived out of a
recognition for the liberal and feminist analyses of pornography
and their respective roles for the state. Its blueprint for
change did not necessitate a fundamental alteration to the
existing social structure and the power relationships within it.
Therefore, many critics felt the Fraser Report did not follow
through on its own insights after correctly identifying the
difficulties endemic to a patriarchal society.
The criticisms are valid, yet not entirely unexpected.
Governmental approaches to the pornography dilemma will
inevitably involve legal remedies. Few individuals are so naive
as to assume that unaccompanied legal measures will adequately
alleviate social problems. There is a consensus on the necessity
of educational and social reforms. Canadians must be confronted
by the discriminatory nature of their attitudzs. Education could
ultimately put sexism into remission. Alternative imagery could
afford consumers the opportunity to acquire sexual materials
which do not contain detrimental messages. Social programmes
could greatly improve the status and condition of women within
our society. Economic parity will allow women the power to
combat pornographic and sexist representations.
All feminists, regardless of their particular persuasions,
agree that pornography will not evaporate when it is strongly
reinforced by other political and social mechanisms which
devalue women. They unanimously concur with the belief that
women need access to more speech and empowering images. Specific
chapters of the feminist movement are too idealistic in their
proposals, however. Change to the existing social structure will
prove to be a slow and tedious process. In the meantime,
pornography continues to be a factor which contributes to social
interpretations. It can undermine women's progresses towards
equality. Legal approaches do have their limitations and
dangers, but the law reinforces a certain morality. Furthermore,
legislative change is inevitable. Liberals and feminists should
not collaborate with the moralists, but they must not be
complacent in the face of the impending legislative amendments.
Moralist proposals, such as Bill C-114, testify to the
conservative climate. Laws which do not respect feminist aims
will undoubtedly be used against them.
The best strategies are those which are not over-inclusive,
yet focus on the most insidious aspects of pornography. The hate
literature approach is very attractive. The Criminal Code is a
federal mechanism. A structuring of pornography as hate
literature will not engender constitutional challenges in
accordance with the Doctrine of Paramountcy. An incorporation of
gender into the list of identifiable groups in s.281.2 and
removal of the present restrictions to prosecution would be
compatible with the Charter of Rights and Freedoms's emphasis on
equality.
The sexism which saturates mainstream media would not be
affected by this legislation, but that does not mean that legal
remedies are not worthwhile pursuits. The law could serve to
morally educate, while social and educational measures
methodically and systematically reshape prejudicial opinions.
The hate literature Section would not focus on explicit
depictions of sexuality, and it would be sensitive to the
importance of context. Sexually violent material would not be
censured i f the main thrust of the material was to condemn the
act portrayed, and not to promote hatred.
Unfortunately, that aspect of the hate literature approach
which allows a sensitivity to context may also introduce
ambiguity into the strategy. One of the main limitations of the
community standards test is its vague and imprecise nature.
There is an apprehension that the proposed legislation might be
applied inconsistently and arbitrarily, thereby introducing yet
more variability Into the criminal law. Approaches which create
specific pornography offences, complete with definitions of
prohibited conduct or material, may be capable of selecting
targets for proscription with greater consistency. The arguments
which can be made for the uniformity and reliability of
legislative devices must not be downplayed, yet they should be
balanced with the importance of context. The message which is
emitted from a particular depiction or description cannot always
be reduced to the sun of its individual elements. The blend of
text and image can have a tremendous impact, although the words
or illustrations may be relatively innocuous when considered
separately. In addition, many of the behaviour-specific
approaches are incapable of addressing uncommon, yet disturbing
images, such as representations which display women's legs
protruding from meat grinders or illustrations of women
fellating guns.
In an effort to preserve the consideration of context and
reduce the subjectivity of the hate literature provisions some
feminists have suggested that the legislation be accompanied by
a statement of legislative intent. This statement could
incorporate a definition of material promoting hatred against a
specific group on account of sex or include examples of the
types of pornography that the section might address. The
difficulty with this strategy is that it forces proponents of
the hate literature approach to be concrete in their
descriptions of objectionable material, making them vulnerable
to the criticisms which are sometimes directed at other
approaches which define pornography on the basis of specific
behaviours or types of conduct.
The potential utility of the hate literature law has been
questioned, for it is rarely employed at the present time. The
federal measure could be complemented with provincial approaches
modeled after the - B.C. - Civil Liberties Act, however. This
strategy would serve to empower women, and allow them a voice in
determining what images are objected to. Provincial film review
boards should serve a totally classificatory function. They
could retain their autonomies, in order to reflect the attitudes
of their inhabitants. The decisions of the boards would not
affect criminal prosecution, however. Community standards should
not be introduced into criminal measures in any capacity.
Municipalities could have the role of regulating conditions of
display and circumstances of exposure through municipal by-laws
and zoning ordinances. They could prevent an offence to the
general public and control access to young persons.
Furthermore, the government would have to update other
legislation affecting pornography, such as customs, postal and
broadcasting measures, SO as to ensure a unified front. An
assortment of other restrictions are also necessitated,
including criminal measures for the distribution, sale, display
or possession of material which advocates the sexual use of
children. If actual children were used in the production of
pornography, other legal mechanisms could still be employed.
Moreover, harms caused to adults during pornography production
could be addressed by existing criminal provisions and civil
remedies. Finally, i f the suggested strategies are to be
successful, they must be accompanied by supporting social and
educational instruments. All of the above recommendations have
received tremendous criticisms on various grounds. The lack of
consensus concerning the most appropriate pornography strategy
is inextricably rooted in the confusion and debate regarding the
proper function of the criminal law. Any approach to pornography
is destined to be controversial, however, given the diversity of
definitions and explanations associated with the subject and the
nature of the corresponding relationships between alternative
views of law and morality.
Pornography is a phenomenon which divides and unites
individuals on many fronts. Groups which provide a cohesive
exterior may be split On many issues. As is sometimes the case,
the most vocal or politically viable section of a group may be
heard at the expense of others. For example, many people
consider the worki in-MacKinnon Ordinance to be the definitive
feminist apprcach, despite the existence of anti-censorship
remedies. ~egardless, it is a useful exercise to make
generalizations about the proponents of certain political,
ideological and philosophical views.
The moralist, civil libertarian and feminist postures are
not mutually exclusive. Many feminists and moralists share the
sentiment that pornography is harmful to some women and that it
is a destructive influence on society. Civil libertarians concur
with factions of the feminist movement which contend that
pornography is not indicative of violence and discrimination.
Forms of sexual expression are regarded as liberating because
they reduce sexual repression, which is identified as a threat
to human freedoms. There is a concern that restrictions could
further intensify the oppression of sexual minorities.
In the interest of clarity, the three social groups can be
investigated as i f they are conceptually distinct entities,
however. The moralist and civil libertarian assemblages are most
easily contrasted because of their divergent philosophies.
Moralists define pornography according to its sexual nature.
They argue from a ~udeo-Christian perspective that pornography
leads to the moral decay of society. It incites lustful thoughts
for purposes other than procreation, and decidedly detracts from
the pursuit of higher pleasures. The moralist strategy can be
differentiated from the feminist and liberal approaches because
it does not require any proof of harm. Therefore, the present
Canadian approach to pornography, as seen in obscenity laws that
preempt the corruption of morals, is considered satisfactory.
The conservatives believe that depictions and descriptions of
sexuality are appropriately legislated against by the state and
ascertained through measures of community intolerance.
Civil libertarians are firmly braced at the other end of the
sexual expression continuum. Their ideology suggests that any
conduct which does not result in demonstrable harm must not be
proscribed, in efforts to preserve the individual freedoms
necessary for a democratic society. The liberals have a fairly
limited notion of harm. They refuse to accept evidence of a
causal connection between pornography and violence due to the
inadequate state of the pornography effects literature. Although
they do express concerns over pornography, they maintain that
its unhealthy images can be combated through more speech. This
optimistic view contends that good will prevail. Many civil
libertarians accede to some form of regulation of pornographic
materials, consistent with the offence principle. They will
abide by regulatory measures, such as municipal by-laws and
zoning ordinances, on the assurance that freedom of expression
will not be precluded.
The feminist analysis adds a new dimension to the
pornography debate. Power, not sex, is the focus and social
justice is given precedence over individual rights. Feminist
conceptions of harm include personal psychological and physical
injuries. Furthermore, they include group harms, which are
manifested in damages to equality rights, bodily integrity and
social status. The provocation principle implies that men will
aggress and discriminate against women subsequent to pornography
consumption. Human rights approaches, civil actions and civil
rights remedies all represent attempts at redressing this
consequence. ~eminists simultaneously identify women's rights to
equality and protection from individual psychological harm which
results because of the existence of pornography, in accordance
with the direct harm principle. Our legal system realizes the
value of shielding individuals from messages which promote or
incite hatred. The direct harm principle regards the position of
women to be similar to that of other minorities, and demands
corresponding measures. Hate literature provisions, human rights
proposals and provincial civil rights legislation could function
to prevent the possibility of women acquiescing to the
denigrating and negative images of themselves which permeate our
culture.
During the late seventies, the feminist movement was
revitalized by the anti-pornography sentiment. Ironically, the
issue which once afforded it impetus and coherence now divides
the feminist community. The anti-censorship faction regards
pornography as contributing to a larger phenomenon of sexist
representations. pornography shares its sexist images and codes
with other mainstream depictions. I t illuminates the conditions
of women's subjugation in a sexual tabloid. Pornography is
defined as a causal or contributing factor to violence, but a
testament to the economic and social oppression of women.
Censorship is considered ineffective, and feminists predict that
it will serve to strengthen the state, making women complicit in
their own subordination. They caution that anti-pornography
advocates must re-evaluate their goals and allocations of
resources if they do not wish to endanger the feminist movement
in an alliance with the right. Anti-censorship feminists
identify the importance of analyzing and exploring sexual
representations, including sado-masochistic depictions. Our
society is so inundated with sexist imagery and attitudes that
complete social, educational and economic reforms are proposed.
They are regarded as the only meaningful approaches to a problem
of this magnitude.
The moralist, liberal and feminist positions serve as
anchors in an understanding of the unpredictable pornography
debate. The recognition of these three social groups allows for
the construction of a framework which helps to separate and
simplify the issues surrounding pornography. The harms
associated with the offence, provocation and direct harm
principles can similarly be accorded different positions within
the framework and serve a classificatory function, organizing
various approaches to pornography. In the process of formulating
ideas around the Structure created, one must acknowledge that
the pornography issue has many dimensions. The notion of harm
provides one interesting way to structure the pornography
debate, but certain harms are not always associated with
specific strategies. Many variables contribute in various
capacities to the determination of social policy.
CHAPTER VI
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A1-A2.
Cases and Acts Cited
----
Amusements Act, R.S.A. 1980, c.A-41.
The Amusement's Act, R.S.M. 1970 c.A70.
An Act Respectinq the Cinema, R.S.Q. 1977, c. C-18.
--
British North America Act, 1867.
The Broadcasting Act, S.C. 1967-8, c.25.
Canada Post Corporation - Act, S.C. 1980-81-82-83, c.54.
Canadian Human Rights Act, S.C.1976-77, c.33.
-
The ~anadian Radio-~elevision and ~elecommunications Commission
- -
Act, S.C. 1975, c.49.
The Censorinq - of Movinq Pictures Act, R.S. Nfld. 1970, c.30.
Cinema - Act, R.S.Q. 1964, c.55.
Civil Rights Protection Act, S.B.C. 1981, c.12.
-
The Constitution Act 1982.
- -1
Conway v. The Kinq, [1944] 2 D.L.R. 530.
--
Customs -1 Act R.S.C. 1970, c.58.
Customs Tariff, R.S.C. 1970, c.6C.
Dechow --- v. The Queen ( 1 9 7 7 ) ~ 35 C.C.C. (2d) 22, 76 D.L.R. (3d) 1
S.C.C.
omi in ion - - - News & Gifts (1962) Ltd. 5 The Queen, [1964] 3 C.C.C.
1 , 42 C.R. 209 revg. [196332 c.C.C.103, 40 C.R. 109, 42
W.W.R. 65 (Man. C.A.).
~ngineering Students' Society, University of Saskatchewan et al.
v. Saskatchewan Human Rights Board of Inquiry [ 1 9 8 6 1 ~ T T
- --
No. 464 Q.B. No. 372 of 1984 J.C.R.
The Kinq v. ~ c ~ u l i f f e ( 1 9 0 4 ) ~ 8 C.C.C. 21 (CO. Ct.).
- -
Lord Campbell's - Act he Obscene Publications ~ c t ] (1857) (u.K.)
20-21 Vict., C. 83.
Motion Picture - Act, R.S.B.C. 1979, c.284.
Olivia - N. - v. National Broadcasting -- Co. Inc. ( 1 9 7 8 ) ~ California
Reporter, 141, 511-515.
Ontario Film And Video A reciation Society v . Ontario Board Of
~e=s(1983),41 SeT-T O.R. 2d 583, 147 D.~.R.)3dj~ic
'-firmed ( 1 9 8 4 ) ~ 45 O.R. (2d) 80, 5 D.L.R. (4th) 766
(c.A.) Leave to appeal to S.C.C. granted April 3, 1984.
Ordinance of the City of Minneapolis Amending Title 7, Chapter
139 of the Minneapolis Code of Ordinances relating to
Civil ~ights, Section 1 (amending Section 139.10 of the
ordinance).
Post Office Act, S.C. 1875, c.7.
The Queen 5 Jourdan ( 1 9 0 4 ) ~ 8 C.C.C. 337 ( ~ t l . Rec. ct.).
--
Re Nova Scotia Board of Censors et a1 and McNeil (19781, 84
- 7 . - 3 d ) -
- - -
R. v. Adams [1966] 4 C.C.C. 42, 48 C.R. 143 (sub nom. R. ex.
- - - 1
- - - -
rel. Murphy v. ~ d a m s ) ( ~ . ~ . Co. Ct.).
--
R. v. Beaver ( 1 9 0 4 ) ~ 9 C.C.C. 415 (0nt. C.A.).
--
R. v. ~rodiei R. v. Dansky* R. v. Rubin [1962] S.C.R. 681, 132
7 -
C.C.C. 16c C.R. I;OTSTT.C.). I
R. v. Cameron, [1966] 4 C.C.C. 273, [1966] 2 O.R. 777, 58 D.L.R.
--
0 6 , 49 C.R. 49.
R. v. Chin ( 1 9 8 3 ) ~ 9 W.C.B. 249.
---
R. v. Close [1948] V.L.R. 445.
- - - 1
R. v. Curl1 ( 1 7 2 7 ) ~ 2 Stra. 788; 93 E.R. 849.
---
R. v. Coles Co. Ltd., rig651 2 C.C.C. 304, 44 C.R. 219, 49
---
D.L.R.(2r34 (ONt. C.A.), revg. 42 C.R. 368 (Ont. Co.
Ct.).
Theatres Co. Ltd. ( 1 9 7 2 ) ~ 18 C.R.N.S. 369 ask.
--
Ma 9
R. v. Doug ank kine Co. Ltd and Act I11 Video ~roductions Ltd.
- -(1984), C.C.~(m3.
R. v. Duthie Books Ltd., [1967] 1 C.C.C. 254, 50 C.R. 55, 58
-
- ~ . r ( 2 d ' ) 2 7 4 ( ~ C . A . ) .
R. v. Fraser et al., [1966] 1 C.C.C. 110, 51 D.L.R. (2d) 408, 52
-- --
W.W.R. 408.
R. v. Goldberq and Reitman (1971) 4 C.C.C. (2d) 187.
-- -
R. v. Great West News Ltd
- - -
Mantel1 and Mitchell, [1970] 4
C.C.C. 30Ti"Gan~~.A.).
-
R. v. Hicklin (18681, L.R. 3 Q.B. 360.
--
R. v. Lynnco Sound Ltd. ( 1 3 8 5 ) ~ 61 N.B.R. (2d); 158 A.P.R. 301.
--
--
R. v. MacDougall (1909), 15 C.C.C. 466 (N.B.s.C.).
--
R. v. MacMillan Company of Canada Ltd. (1976), 31 C.C.C. (2d) at
-- -
p. 322.
R. v. Munster ( 1 9 6 0 ) ~ 129 C.C.C. 277, 34 C.R. 47, 45 M.P.R. 157
--
(N.S.S.C.).
R. v. Neil's Ventures Ltd. ( 1 9 8 5 ) ~ 61 N.B.R. (2d) 42; 158 A.P.R.
--
42.
R. v. Nicols (1984), 43 C.R. (3d) 54.
--
R. v. Pereira-Vasquez (~artinez) (Veneqas) ( 1 9 8 5 ) ~ 43 C.R. (3d)
- -
336.
R. v. pipeline News ( 1 9 7 1 ) ~ 5 C.C.C. (2d) 71 (~lta. Dist. Ct.).
--
R. v. Prairie Schooner ~ e w s Ltd. and Powers ( 1 9 7 0 ) ~ 1 C.C.C.
--
0 1 , 75 w . w . R . 8 8 5 a T c n . K T F
R. v. Ramsingh ( 1 9 8 4 ) ~ 14 C.C.C. (3d) 230 (Man.Q.B.)
--
R. v. Read ( 1 7 0 9 ) ~ 1 1 Mod. Rep. 142; 88 E.R. 953.
---
R. v. Red Hot Video Ltd. ( 1 9 8 4 ) ~ 1 1 C.C.C. (3d) 389, 38 C.R.
--
(3d)275'(B.C.Co.Ct. ) .
R. v. Red Hot Video ( 1 9 8 5 ) ~ 18 C.C.C. (3d) 1 .
------
R. v. St. Claire ( 1 9 1 3 ) ~ 21 C.C.C. 350 (0nt. C.A.).
---
R. v. St. John News Co. Ltd. ( 1 9 8 4 ) ~ 13 W.C.B. 226 (N.B.Q.B.).
-------
R. v. Standard News ~istributors, Inc. ( 1 9 6 0 ) ~ 34 C.R. 54
- -
(Montreal Mun. Ct.).
R. v. Sudbur
- -
service Ltd. ( 1 9 7 8 ) ~ 18 O.R. (2d) 428, 39
c . m ; d ) ? ? c . r -
R. v. Times S uare Cinema Ltd. ( 1 9 7 1 ) ~ 4 C.C.C. (2d) 229, [1971]
---
3 O.R. 91 688 0.C.A.).
R. v. Towne Cinema Theatres Ltd. ( 1 9 8 0 ) ~ unreported.
---
R. v. Wagner ( 1 9 8 5 ) ~ 43 C.R. (3d) 318.
--
Saskatchewan Human Rights Code, S.S. 1979, c.S-24.1.
- -
Theatres - Act, R.S.O. 1980, c.498.
Theatres -- and Amusements Acts, R.S.N.S. 1967, c.304.
- --
The Theatres and Ciriematoqraphs Act, R.S.S. 1978, c.T-11.
- - -
Theatres, Cinematoqraphs - and Amusements Act, R.S.N.B. 1973,
c.T-5.
Towne Cinema Theatres Ltd. 'I&? Queen (1985), 18 C.C.C. (3d)
193.