3 min

Telling fantasy from reality

According to the law, sex is worse than violence

Sexualized nudity? Guido Reni's depiction of the martyrdom of Saint Sebastian has long been considered homoerotic. Does that, plus the protruding arrows make it obscene?

When it comes to horror films and run-of-the-mill violent extravaganzas, we’re all trusted to understand that no one is being killed or maimed. When it comes to porn, however, it seems we can’t be trusted to know the difference between fantasy and reality.

Obscenity has been defined as the undue exploitation of sex, which includes explicit sex and violence; so any coupling of explicit sex with violence runs the risk of criminal sanction. But straight-up violence – regardless of how explicit or over the top – runs no similar risk. This means that, according to the law, representations of sex with violence are really, really dangerous. Representations of violence are not.

It’s a rather curious distinction. Why is it that, when it comes to representations, explicit sex makes violence worse?

The courts have never really directly addressed the question. But they have said that the harm of obscenity is “attitudinal harm?” meaning it creates bad attitudes, particularly bad attitudes toward women.

Consensual sex between adults is not a criminal act. There is no harm. But when we represent that sex act a new potential harm emerges. Explicit sex with violence or explicit sex that is degrading and dehumanizing creates the possibility of attitudinal harm.

This was the alleged harm in the case of a pay website offering up written and visual materials depicting acts of violence perpetrated against women, mostly by men. In 2002, Donald Smith was convicted of making and distributing obscene material. The audio-visual material didn’t depict sexual acts, but they did include images of topless women with digitally added knife wounds or arrows. In July the Ontario Court Of Appeal ordered a retrial of the charges related to the images found on the site on the grounds that the sexual content of the material was unclear.

There was no suggestion that the models were in any way abused in the making of the violent images. No one was actually stabbed or killed or punctured by arrows. But, because the images were deemed to be sexual, well, there could be attitudinal harm for the viewers.

Now, if we took out the sexual dimension, if we partially dressed the women and put them in slightly less provocative positions and had an alien serial killer stalking them, they would be indistinguishable from images taken from a horror blockbuster. No one would believe that the women were really stalked and killed by an alien serial killer and the law would not be worried about attitudinal harm.

Fantasy, regardless of how violent, is understood as fantasy – unless you add sex, in which case it becomes toxic. I am no fan of horror films or graphically violent films. Nor is slasher porn my cup of tea. I don’t see a big difference between them. No one is hurt in the making of either. Consuming that much violence either does or doesn’t make its viewers more tolerant of violence – there’s a whole debate about that. It’s not the sex that makes the difference.

But according to the law, sex makes all the difference. That’s why in Smith’s case the court had to spend a lot of time figuring out whether the violent images were “explicit sex,” because if they don’t depict explicit sex, no crime has been committed. There was no sexual contact or sexual touching of any kind occurring in any of the images. The Crown tried to argue that explicit sex includes “sexualized nudity,” and that the images were sexualized nudity. The Ontario Court Of Appeal said no, that definition was too broad.

The court then set out an elaborate test for deciding whether a representation is explicit sex. It depends on whether a reasonable viewer would consider the material to be sexual in nature. This would involve considering a range of factors, including the body parts, the nature of the picture, its context, any accompanying words or dialogue and all other surrounding circumstances.

It is an important determination, because the criminality of the representation stands or falls on it. If it’s sex with violence, it’s criminal. If it’s not sex, then it’s just violence.

Which comes back to suspended disbelief. When we watch movies or look at pictures, we suspend our disbelief to enjoy the narrative. Unless we are watching the news or a maybe a documentary, we don’t actually believe that we are watching something real.

The same idea of suspended disbelief is not extended to pornography, because our laws are still haunted by the idea that sex itself is somehow terribly dangerous. When it comes to sex, we apparently are more likely to believe that it’s really happening and we are more likely to run out and do the same thing.

Sex or violence? Which one actually hurts, maims or kills more people in the real world? According to our antiquated, sex-obsessed criminal laws, the answer is sex.