20th-Century Changes in Pornography
For many centuries, pornography took the form of poetry, novels, drawings, photos and sketches, serving a relatively small market demand. The vast majority of its content was descriptions, pictures, stories and discussions about nonviolent heterosexual and homosexual activity. In the latter half of the 20th century, however, the market and the content of pornography significantly changed. Mass marketing became the order of the day through new formats consisting of glossy magazine photos, home video, film and computer images. The content changed from pictures of soft focus nudes and suggestive language to more explicit forms, often linking sex with violence. Brutality, degradation and humiliation of women as well as sex with children were presented as socially acceptable, sexually satisfying and entertaining in much of the "new" pornography. These developments gave rise to considerable controversy in Canada with respect to the legal prohibition and regulation of pornographic speech.
For hundreds of years, most Western societies, including Canada, held to the conservative view that OBSCENITY should be legally controlled for reason that the organizational structure of society and its moral fibre needed to be protected. Conservatives think pornographic materials are harmful because of their undermining effect on common moral principles believed to be the "glue" holding societies together. In particular, pornography must be legally sanctioned because of its impact on valued societal institutions such as the family, where sex is only normal and proper within the context of deep commitment, loving concern, restraint and repression of sexual pleasure.
Contrary Libertarian Views
A contrary view is held by libertarian thinkers. They argue that the conservative value of moral cohesion assumes the existence of a universal, eternal truth, which they reject. Libertarians say that by stifling sexual expression, a facade of "correct" sexual behaviour is constructed that is a hypocritical and an unnecessary form of social control. Furthermore, they posit that when morality is enforced by law, greater evils than the erosion of public morality occur; namely, restrictions on individual freedom which go far beyond the restriction of sexual expression. They argue that the only way any forms of speech can be legitimately restricted by law occurs when it can be shown to cause direct and immediate harm to others. Moreover, even if it does cause direct harm to others, libertarians believe that it is defensible if it has artistic, educational or scientific merit.
Homosexual libertarians further argue against restrictions on sexual expression because they say such laws have a different, more adverse impact on them than on the heterosexual community; that sexual expression is an integral part of their social culture; and that laws prohibiting sexual expression are often enforced in a discriminatory way against the gay and lesbian community.
The Human Rights View
A fourth view is presented by those who analyze pornography as a human rights issue, seeing it as a form of discrimination, particularly against women and children. This perspective focuses on harm, but characterizes it differently than the libertarians do. Where the libertarian notion of harm is direct and linear (ie, a fist in the face), those holding the human rights view would say the harm is more nuanced and subtle. They say pornography consumption leads to attitudinal changes which are detrimental to women and children, including acceptance of violence against them, acceptance of rape myths (ie, that women liked to be raped), and desensitization to sexual violence. They point to studies which indicate pornography consumers' increased willingness to rape, their incitement to maltreat women and children and downgrade them to a lower status, to regard them as mere sex objects and to elevate male dominance to a superior position on the scale of values.
The humanitarian perspective challenges both conservative and libertarian orthodoxies for their narrow, male-centered approaches. They say conservatives focus on the need to protect male expression. The humanitarians, on the other hand, take a rights-centered approach which requires that any interpretation of the relationship between the law and pornography take into account the unequal distribution of rights in society in light of the content of pornography. They point out that it is almost exclusively women and children who are exploited to their detriment in pornography, for the sexual pleasure of men. In a society that believes in equality of all citizens, as Canada does, such exploitation is discriminatory because the sexualized subordination promotes and perpetuates their inequality.
Judicial Thinking: What's Acceptable and What's Not
Deciding precisely where the line is to be drawn between acceptable and unacceptable pornography is a challenge for law makers and the courts. Legal history shows that the views of legislators and judges have been primarily driven by either the conservative or the libertarian points of view. Recently, however, the view has changed to favour a human rights approach.
Judges favouring the conservative view interpreted obscenity to mean lewdness and offensiveness to modesty or decency. Because obscene materials caused or were intended to cause sexual excitement or lust for the purpose of entertainment rather than for procreation, it was thought that they undermined the sexual morality of individuals and corrupted the social order generally. Nudity, explicitness, excess of candour, prurience and unnaturalness were qualities judges looked for when assessing the legality of sexual expression.
A "community standards test" was used by courts to determine how much harm to morals the community could tolerate. But until the late 1980s, no judicial or legislative attempts were made to assess or analyse the harm pornography may cause to women or children.
The first indication of a fundamental change in judicial thinking with respect to the underlying rationale of obscenity law was in 1983, when a trial court in Ontario recognized that some pornographic material degraded and dehumanized women as a class. This realization, in the case of R. v Doug Rankine Co., (1983), 36 C.R. (3rd) 154 at 172, started a movement away from viewing obscenity as a threat to the community's sexual morality and towards seeing it in relation to human dignity and equality. Instead of using sexual explicitness as the touchstone of obscenity, the court said violence and cruelty in conjunction with sex, particularly where the performance of indignities degrades and dehumanizes people upon whom they are performed, was a better approach. By tying the obscenity standard to violence and cruelty, the Rankine court opened the door to many new considerations. Unlike the explicitness rationale, which ignored harm, the human rights rationale allowed for judicial reflection on how pornography presents human sexuality and what it says about women and children. The new approach enabled judges to think about pornography in the broader context of sexual violence in the society and its relationship to discrimination.
The Erotic, The Obscene
The Rankine court also broke new ground by being the first decision in over 200 years of obscenity jurisprudence to specifically contemplate community standards from the point of view of women, by saying, "I can think of very few women in this country who would tolerate the distribution of motion pictures portraying indignities to other human beings, particularly women, in the name of entertainment." A subsequent precedent-setting case was R. v Wagner, 43 C.R. (3rd) 318, where an Alberta court analysed obscenity entirely through a contextualized, rights-centered approach. The judge said that the manner in which sexual interaction is portrayed must be examined, not just the degree of explicitness. For the first time, a court made a distinction between erotic material and obscenity, laying to rest explicitness as the test for illegality. Erotica was defined as sexual expression portraying "positive and affectionate human sexual interaction between consenting individuals participating on the basis of equality," and that the contemporary Canadian community will tolerate erotica "no matter how explicit it may be."
On the other hand, the same court described illegal pornography as sexual expression combining sex with violence or sex with degrading and dehumanizing portrayals of women. The judge accepted expert evidence that such expression causes increased callousness towards women and less receptiveness to their legitimate claims for equality and respect. He described this form of pornography as containing verbal abuse of women, the portrayal of women as having animal characteristics, and false representations of female sexuality which reduce women to mere objects of sexual access.
A third court, this time the Court of Appeal of British Columbia, adopted the human-rights-based approach to pornography in the case of R. v Red Hot Video, 45 C.R. (3rd) 36. The court found that the "degrading vilification of women is unacceptable by any reasonable Canadian community standard." Degrading vilification was held to occur where sexual behaviour is portrayed with crime, horror, cruelty or violence, or where there is an "unduly exploitive" representation which degrades the participants by "portraying them as having animal characteristics." The court in this case was clearly of the view that the purpose of obscenity laws is to achieve equality and prevent harm, rather than to enforce a moral code of sexual behaviour. The court concluded that the materials were obscene because "they constitute a threat of real and substantial harm to the community" because "they approve [of] the domination of women by men as an acceptable social philosophy."
A Constitutional Challenge: Freedom of Expression
These lower court decisions set the stage for the Supreme Court of Canada in the case of R. v Butler,  1 S.C.R. 432. The case came before the Supreme Court on a constitutional challenge alleging that the obscenity laws violated freedom of expression guarantees in the Canadian Charter of Rights and Freedoms. Being the first opportunity for the court to determine the constitutionality of obscenity laws, it also provided the court with an opportunity to delineate the underlying rationale for the regulation, or lack of it, for sexual expression.
The challenge arose from the seizure and prosecution of the entire inventory of a pornography store in Winnipeg. The accused was charged with numerous counts of obscenity infractions, including possession of obscene materials to public view. After differing decisions in the courts below, the case eventually reached the Supreme Court.
The court limited its deliberations to an examination of the definition of obscenity in the Criminal Code, which states that obscenity is "the undue exploitation of sex or of sex and one or more of the following subjects; namely, crime, horror, cruelty and violence." The court said that the meaning of "undue" must be determined by a community standard of tolerance. "This determination must be made on the basis of the degree of harm that may flow from such exposure, harm of the type which predisposes persons to act in an anti-social manner." In explicitly finding pornography to be harmful, the court said it harms women's rights to be equal, their sense of self-worth and their physical safety. The harm is exacerbated, the court said, by the burgeoning pornography industry, making the objective of Parliament more pressing and substantial now than when the obscenity provisions were first enacted.
The court ruled that the type of sexual material at which the statute aims is the portrayal of sex coupled with violence or explicit sex which is degrading or dehumanizing and which creates a substantial risk of harm. Explicit sex which is neither violent, degrading or dehumanizing will not be considered obscene unless it involves the use of children in its production. The court recognizes an exception to the law where the obscene depiction is necessary for artistic purposes or for the serious treatment of a theme.
The ruling that the purpose of obscenity provisions is not moral disapprobation but rather avoidance of harm of the type that potentially victimizes women is historic. For the first time, the Supreme Court of Canada linked the obscene with that which subordinates or degrades women rather than that which offends some notion of sexual morality.
Author KATHLEEN MAHONEY
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