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The shortcomings of Canada’s porn laws

Youthful sexuality, censorship & Canada's child pornography law

Credit: John Webster

Imagine this. You are 17 and you’ve just met an amazing guy who is five years older than you. You’ve been dating for a few months and you have great sex. You flirt by sending text messages and erotic pics by email or instant messaging. You send him pics of your self with a hard-on and you can’t wait to get together with him again on the weekend.
 
You are 16 and live in a small community. You are out to your parents but find it hard to meet others in your small town. You are using gay chat rooms to make Internet friends and one buddy of yours is 30 years old. You think that’s cool. After all you’ve been chatting with guys from a range of ages and you seem to get on well with him. You are sexually attracted to him and both of you have exchanged erotic images of each other, including masturbating together by webcam once. You might meet some day but there’s no rush, for now, this is fun. You feel good about yourself.

In both of these cases Canada’s child pornography law has been violated, yet any actual sexual activity in the scenarios mentioned above would be perfectly legal. This is so because since August 1993, when Canada’s first child pornography law was enacted, any image which depicts the “undue exploitation of sex” or depicts, “for a sexual purpose, the anal region” of a person who is 18 or younger, or who appears to be under the age of 18, is considered child pornography. If the images came to light through email or Internet surveillance or by parental or school authorities, you, and more likely your older friend could be up on serious charges of possession, distribution and production of child pornography. It could land your friend five to ten years in jail not to mention the stigma that the child pornography label carries. You could be sent to a psychiatrist to uncover how your “victimization” impeded your heterosexual development; your friend could be undergoing invasive treatment for sex offenders and could be labeled a paedophile by medical and court authorities.

In areas of sex crime the courts work closely with medical and psychiatric authorities. Homophobic attitudes and assumptions are built into the operating protocols for medicine and psychiatry especially when the subject of child and youth sexual activity is interpreted as an “outside” interference of heterosexual development. All in all it signals bad news for queers, both young and older.

The prevention of experience

Child pornography is a difficult topic to discuss critically. The way the problem is conceptualized in public and professional life cements absolute claims about child protection, sexuality, sexual danger and pornography. This is a set of social phenomena that elicits intense emotions, lends itself to absolutist reasoning and raises suspicion in those who question its conceptual frameworks. The way the problem is envisioned sets out specific ways for enacting solutions. As a form of legislation that was largely initiated through the context of a moral panic, it organizes relationships between the police, the public and legal and governmental practices under the unimpeachable emotive registers of ‘children,’ ‘abuse’ and ‘pornography.’

The advent of child pornography laws was accompanied by what sociologists have described as classic moral panics. A moral panic sets in when a relatively new activity is uncovered, the media are ablaze with indignation and institutional actors launch into action. Activists and scholars Patrick Califia and Gayle Rubin for instance, analyzed how the first US federal child porn law was spurred by inflated claims about the quantity of child pornography and the tireless campaigning of ambitious police, moral crusaders and journalists. Embedded in a wave of right-wing anti-gay activism in the late 70s, claims of a multi-million dollar commercial industry of child porn, and up to a million children used in production circulated in the press and became solidified as fact in other government commissions, including international organizations. In Canada, even after a 1992 government commissioned report found no evidence of large-scale child porn production or importation, police claims and organized citizens’ groups provided unsubstantiated testimony to the effect that a huge industry of child porn existed and that large numbers of children were being abused as a direct result.

Society has a legitimate interest in regulating and preventing the sexual exploitation and abuse of anyone, at any age, yet how this is accomplished is another matter. Children are perceived as needing special protection and there are a spate of existing laws that criminalize a range of offenses including sexual interference, abuse and exploitation of the young, invitation to sexual touching, and age-related offenses. Child sexual abuse is an issue that was brought to much needed public attention by individual women and the feminist movement. About forty years ago, women began speaking out against incest calling attention to structural problems in families, and the power bequeathed to men over girls’ and women’s bodies as the main source for the exploitation and abuse.
 
Widely known, yet hardly made into a social panic, is the enduring fact that children’s violation is predominantly caused by those within the family circle, mostly not involving the use or production of images. Yet, all too often, the traditional male governed pattern of family structures, gendered inequalities and the lack of power that children have in private families are left unaddressed. In incest cases, courts and police place emphasis on individual problems as excessive drinking or stress, coded as “dysfunctional family dynamics,” or disorders of desire as the root cause of child abuse. In familial incest and child abuse cases, courts and child protection agencies often mandate a renewed attention to securing the family as a stable unit for the healthy development of children. Traditional family forms are deemed naturally healthy settings for children while patterns of power among parents, guardians and children are ignored. In law the child is deemed an inert object to be ministered to, a “naturally” powerless part of the private family.

Changes in the legal landscape have produced a unique moment where the protection of children and the prevention and prosecution of child sexual abuse is now largely tethered to the regulation and eradication of erotic expression (images and text) that falls under the purview of child pornography laws. And this is problematic for a number of reasons. Most saliently is the fact that after three decades of child porn laws (the first such law was instituted in the US in 1978), there is very little evidence that their enforcement has led to a corresponding overall decline in reported cases of child sexual abuse and incest. It also moves us even further away from recognizing and acting on the structural roots of child abuse. Other reasons for the problematic nature of child pornography laws are more specific to the actual legal provisions it sets out in the definition and interpretation by courts and law enforcement agencies.
     
Regulating the public sphere
 
Child porn laws have a history and their provisions are based on former rulings of obscenity laws and the way they regulate the public sphere. Historically, the regulation of pornography and other materials considered “scrurrilous,” “treasonous” or “blasphemous” was intended to quash dissent against the religious and political authorities of the day. Later on, in the 19th century, erotic materials were regulated in order to prevent them from falling into the wrong hands and “poisoning the minds” of those deemed vulnerable to “moral corruption,” namely those with virtually no political power of the day—women, youth and working people. The 1868 English case known as the Hicklin obscenity test resides in this attempt to prohibit material that endangers standards of public decency tied to the idea that bad thoughts lead to bad actions. The 1959 amendment to the Canadian Criminal Code attempted to specify obscenity provisions and interpreted moral corruption exclusively in terms of the “undue exploitation of sex as a dominant characteristic” of the material in question. The idea of the representation of violence as an obscenity was exempted on this ruling.

Canada’s landmark 1992 ruling known as the Butler decision shifts the legal interpretation of obscenity from a moral to a harm-based standard, representing for some, the culmination of years of work by some feminists. However, this ruling, which has been called “morality in drag” by other feminists, enshrines in law the idea that pornographic representations can enact harm. This revivification of the shaky causal link between viewing and enacting harm was stated as “reasonable” by the presiding judge. This ruling set the stage for the today’s intractable idea that images that contravene the definition of child porn in law constitute child abuse. The problem remains that much social science evidence continues to cast suspicion on any causal link between the viewing of representations of pornography or violence and its commission as an act.

 After several attempts to reform laws against adult pornography failed, Canada’s 1993 Child Pornography Law (section 163.1 of the Criminal Code) instituted erotic expression and images as constituting a direct harm to children, and as a spur to the activities of paedophiles. The law was rushed through Parliament in the summer of 1993, a mere six weeks from its introduction into the House to Royal Assent during the waning days of the last federal Conservative government. The link between the production, possession, and viewing of erotic imagery that depicts those under the age of 18, (or who merely appear to be under 18) and child abuse was cemented in law and in the public imagination. In a legislative move that is predicated on this uncontested linkage between images and actual abuse, Manitoba, just this year passed a mandatory reporting law that makes it a crime, punishable by up to two years in jail, to fail to report child pornography. Family Services and Housing Minister Gord Mackintosh commented that we are “all enlisted and deputized” under this law. Nova Scotia and Ontario are considering similar legislation.

During the first two years of the Federal law’s existence, a coalition of artists, anti-censorship feminists, queers, youth workers, sex workers and others launched a campaign to repeal what they more accurately called the “Youth Sexuality Law.” They called attention to its deleterious effects on youthful erotic expression, artistic and activist expression and sex education materials. During this time arrests of sex workers, artists and a queer/feminist erotic materials were vigorously pursued by the police, armed with an overbroad interpretation of what constitutes illegal material. In a sensational case, Toronto’s Mercer Union Art Gallery was raided by police in December 1993. Based on complaint by a person who had not seen the show but read a review in the Globe and Mail, Eli Langer’s paintings and drawings were seized and the gallery owners charged under the child porn law. Langer’s paintings, evocative of familial settings of child nudity and incest, were brought up on forfeiture hearings deemed to be destroyed if found to contravene the law.

In addition, changes brought down in July 2006 under Bill C-2 raised Canada’s age of consent from 14 to 16, and includes a provision which criminalizes “luring” over the internet. The changes also institute a reverse onus on the defendant to prove that any materials in his possession do not pose an undue risk of harm to persons under the age of 18. This will be the case even if the materials are deemed to have “a legitimate purpose related to the administration of justice or to science, medicine, education or art.” This provision is inconsistent with the principle of innocent until proven guilty.

Inciting the public imagination
   
Police and child protection advocates have turned their attention to the Internet in recent years and have claimed its potential to put children and teens at risk for unwanted solicitation, as well as facilitating a trade in child porn images. Due to the overbreadth of the definition of child pornography and the often vague language used to describe sex acts, there is a lack of specificity attributed to the cases that emerge from internet child porn investigations. A recent national survey on teen sexual health concluded that internet communications and social networking sites did not result in an elevated risk to teens. The Internet can afford a space of safety, where young people can practice their identities, chat with others and find information.

Recent child porn investigations often refer to tens of thousands if not more, child porn images residing on a person’s hard drive. Yet, these headline grabbing claims, employing an expansive definition of what constitutes child porn, makes no distinctions among the acts depicted, the context in which the images reside, nor the simple fact of the infinite reproducibility of digital media. A vast range of what could possibly contravene a law employing an expansive definition of child porn is thereby collapsed under the rubric of “child abuse images” or “crime scene photographs.” The distinction between real harm, or contact offenses, and the mere possession or viewing of an image evaporates.
 
Complicating this picture is the fact that teens, who are more sexually savvy than previous generations, and who are leading the way in the use of new communication technologies, may be using the internet to transmit erotic images of themselves to others as a commonly accepted dating practice just like many adults do. In the dour Gothic landscape of child porn policing all images of young people that depict nudity or that has an affinity with the erotic is evidence of a crime committed. As English professor James R. Kincaid suggests, writing in Salon.com about child porn arrests for family snapshots of nude kids, we are encouraged to fantasize action outside the frame of the photograph in order to determine if it is child porn. In the courtroom and in the media we are continually invoking the gaze of the paedophile.

The image cannot be viewed
     
It is interesting to note that independent assessment of the evidence the police uncover is nearly impossible to mount since it is deemed a crime to view such images. Yet police reporting of these offenses often rely on inciting the public’s imagination about the kind of images that exist. Authorities regularly discuss in the media the most extreme kind of images, that of babies being molested, as representative of the bulk of images they uncover. Authorities label all images that fall under the legal definition child pornography, as evidence of the most deleterious harm. Compounding this state of affairs is that the harm that is attributed to the image is associated with its production (which may very well be the case), but also with its dissemination, and even its mere possession or viewing by someone far removed from the context of its production. In this volatile climate nuanced discussions of young people’s sexual agency, the kinds of practices depicted or the mere nature of the images that land people in jail are almost impossible to pose. The evidence is secreted from public view. Lawrence A. Stanley, a US attorney who has defended those charged with child porn offenses, suggested that the police are worried that making the evidence available for public scrutiny may actually undermine the public’s trust in how these cases are handled.
 
However, there are cracks in this edifice. Where actual content analysis of pre-internet child porn images was possible, European researchers Jan Schuijer and Benjamin Rossen, in a 1992 article, “The Trade in Child Pornography” found that a majority of images (62%) found in magazines and videos can be classified as a single child or teen posing clothed, nude or, when depicted with others, engaged in hugging or kissing which may include touching the other’s genitals. Depiction of actual penetrative activities accounted for a much lower percentage, 9% for boys and 26% for girls. Although their research did uncover some instances of images that included evident distress, and what appeared to be coerced activity, these constituted a very small percentage of the images they studied. Although they note the inherent bias and subjective nature involved in studying facial expressions in the material they assessed, Schuijer and Rossen also note that “in almost all the films we have seen, the children were either indifferent or were laughing and entering into the activity with gusto.”

Although coming to any conclusions about child pornography images at this time is near impossible, (since access to the images is banned) this one study suggests at least a studied skepticism to police accounts. What the police uncover may well represent a wide array of depictions, ranging from simple nudity to a variety of sexual practices. It may also suggest a range of material that could easily not be deemed child pornography under the law, but included in the accused person’s “dossier” about the range of interests someone labeled a paedophile is purported to have. Currently, Canadian psychologists are claiming that possession of child porn is a reliable indicator for diagnosing paedophilia.
 
Proponents of the law claim that a wide ban is necessary due to the likelihood of even “softer” images used to entice children into sex. These regulatory controls aim to prevent the emergence of a commercial child porn industry, which would organize the use of young people in erotic performance under the spur of profit. Although these controls may be necessary, regulating this kind of activity by policing the product or the image is like trying to catch wasps with a hammer. A lot of damage can result from a few successful hits. Even police sources admit that a commercial child porn industry was effectively stamped out by the mid-1980s, if not sooner. US law enforcement authorities also admit to re-distributing cached child porn as part of their sting operations. Legal critics of the law have pointed to the lack of distinctions made between the image and the act, a collapsing of a range of ages from young children to older teens, and the absolute inadmissibility of the possibility of erotic agency that children and teens may, at times, exhibit.
 
This regulation of youthful erotic expression is capturing practices and lawful speech, negatively affecting the lives of young people. The Internet has opened up a new space for performing identities and the sharing and dissemination of knowledge and experiences. The Internet can often be one of the few spaces left available for teens whose gender presentation and sexual desires are deemed threatening to their mainstream school and family environments which largely remain extremely normative and hostile spaces for queer kids. Hooking up to individuals and online communities that provide support for queer and trans teens is often coded as teens accessing pornography, and deemed “inappropriate” material. Regulating online access for everyone is another aspect of regulating youthful sexual expression that gets tied to the dangers of child pornography and internet predators. Child porn laws are being used as a giant lever to effect much wider social regulation and especially internet surveillance and censorship.

Child porn laws institute a radically decontextualized approach to a complex social world of young people, digital technology and sexuality. Undoubtedly we will see more cases where teens will be charged as producing and distributing child pornography for merely sending nude images to one another. Adding to this picture is a series of arrests, trials and prosecutions of artists whose art has reached the attention of authorities. Critically acclaimed artists and photographers like Jacqueline Livingstone, Jock Sturges, Sally Mann, Robert Mapplethorpe, and Alice Sims have all come under judicial scrutiny, their art work confiscated and their homes and places of work raided. In some cases their children have been taken into custody. Taken together, their art is a subtle exploration of issues of family dynamics, gender and bodies, race, vulnerability, eroticism, relationship to authority and violence in its depiction of nude children. The artists have produced statements about how their child models have indicated consent, mutual understanding and participation in the photo shoots.

In an era of the expansive definition of what constitutes child pornography, and a general social panic which views children’s vulnerability to sexual harm as the presiding concern, it has become difficult to imagine that images of nude children have been with us for a very long time, both in the plastic arts and in photography. Indeed, it can become so hard to imagine that a progressive sex education manual known as Show Me! originally published in Germany in 1974, depicted nude children and teens exploring each others’ bodies, some depicted with erections. The book was intended as a sexual education manual for parents and children, and was produced with the cooperation of the kids, which includes their discussions during its production as an accompanying text. When, in 1976, the book was brought up on obscenity charges in Canada, the presiding Judge Graburn Co. Ct. J. found that the book’s production in no way constituted harm to the young people involved, finding that it was not “callous to the rights and dignity of children.” That was in 1976.

There has been a sea-change in how images of youth are understood and the lens of perception applied to the young nude form in jurisprudence and in public discourse. Since 1993 in Canada, and it seems, especially after the 2006 changes to the child porn law, the mere possession of a copy of Show Me! may constitute a crime in Canada. It is doubtful that it would be exempted under the educational or artistic provisions. Such material, once deemed to be socially valuable, is now seen merely as an erotic spur to the imagination of paedophiles. A situation has been constructed where it is absolutely perilous to recognize the erotic in children. Denials and discomfort abound; we imagine that no “normal” person can ever have such desires. And we imagine that those feelings lead directly to action in individuals that are perceived to be more like Pavlovian dogs than human beings. The image of the paedophile, that we so fastidiously construct only to expel from our midst, as it turns out, may say more about us as a culture than we’d like to admit.
 
Fundamentally, it is our ambivalence about children’s sexuality that drives the incoherence and contradictions in the law and in public reactions to the issue of erotic images of youth. For instance, some may find the thought or the image of a 12-year-old boy nude or with an erection to be disturbing or disgusting. It violates their sense of what the “ideal” child is or should be. We imagine that some outside interference must have provoked him into that activity, assuming that children are innocent of desire. Others may find such images beautiful, it may elicit a corresponding erotic feeling, or they may indeed be indifferent. The problem is that child porn laws attempt to magically displace the social phenomenon of children and youth sexuality onto another site, provoking paradoxical discussions of innocence and the erotic child as it does so, while busily constructing a monstrous other as the only figure that dares to recognize children’s sexuality. We are constructing a Gordian knot indeed.
     
Regulating youthful sexual expression
     
Completely self-generated archives such as what I have mentioned at the outset are being criminalized. Self produced erotic representations have become the new barometer of abuse, a new threat to the emotional integrity and developmental pathways that are deemed to structure young people’s experiences in our culture. Contemporary culture is hyperactively sticking a poisoned needle into a perpetually festering wound—the child at risk and the possibility of infinite trauma—which accompanies the clarion call for legal regulation, intensive policing and perennial policy debates. Yet, we need to pause and ask what the relationship is between protectionist policies and the maintenance of oppressive norms and structures. What exactly are we protecting?

In this sense the child porn laws are repressive. Apart from the overbreadth of its definitions of what constitutes obscenity, and the absurdity of defining a child as 18 conflicting with the age of consent provisions which, only recently, set the age of consent up from 14 to 16 years of age, the law sidesteps how children are put at risk in more mundane ways that generate very little press. Child sexual abuse constitutes a minority of cases in the overall patterns of abuse, with physical abuse and neglect leading reported cases. Rates of economic insecurity, poverty and lack of access to health care affect children and their families. The US has one of the highest infant mortality rates in the developed world.
     
Newly visible
     
It is not that youthful erotic representation is wholly new but it has gained a new form of visibility with the advent of the internet. The Internet and digital culture is reshaping social relations and forming new ways of narrating the erotic self. New netporn cultures of amateur, self-produced and innovative micro-porn sites democratize the erotic image and the participation of those in erotic cultural production. For young people, who increasingly find their worlds circumscribed by the pressure of norms around behaviour and what’s deemed “helicopter” parenting styles, the Internet can afford a virtual space in which to practice identities at a remove from parental authority. The Internet provides a virtual escape route from these demands; a route that blurs the precarious line separating private and public spheres. Incensed reaction to erotic youthful representations may, in part, be due to the fact that young people are gaining a measure of autonomy in some aspects of their lives, especially when it comes to the body, desires and their sexuality.

Troubling the dominant image of youthful vulnerability and the way the law defines childhood capacities is the case of Justin Berry, a young entrepreneur who ran his own internet porn site featuring images of himself. When his activities came to light in 2005 by an ambitious New York Times reporter Kurt Eichenwald, the 18-year-old had already been producing his own images for sale for five years and had recently begun to employ gay teens as models. Eichenwald, who is currently being investigated for unlawful practices related to the way he pursued the story, found Berry a lawyer and got him immunity from prosecution in return for turning state’s evidence against his former underage porn actors. This story garnered intense media scrutiny and the details of the case are still evolving. Nevertheless, Berry’s former netporn activities serve to highlight a complex landscape about how erotic images of the young are produced, complicating questions about the degrees of control and ownership over self-produced images, issues of harm, the conditions of production, and the notion of capacity and consent in the young.

Queering childhood
     
There are sets of overriding cultural narratives that create the particularly intense reactions to erotic images of the young in our culture. This profound cultural engine works to create the perfect victim in the form of innocence traduced tied to a cultural mythos where children hold the place markers for cultural stability and human reprieve in an increasingly volatile world. Children hold the key to the future and this future is inviolable. This cultural myth of the Child must repeat the imagined stability of the past or the future will not hold. With so much emotional and cultural energy riding on this image of the Child we can begin to see how our vituperative reactions to images of the erotic child is cemented by our fear, our anger and nostalgia for an image of the innocent child that is inherently unstable.
  
But child pornography laws, and other draconian ways of regulating expression, never attend to the cultural dynamics that make normal ways of being men, women, adult and youth at the root of inequalities and oppression. We are told it is normal for a child to defer to adult authority. Yet, children’s own desires and autonomy are left unaddressed. We are afraid of children’s sexuality, but we are even more afraid, it seems, of young people understanding their own power.
     
The regulation of youthful erotic expression has been effective in controlling transformative ideas and practices that aim to disencumber the young from the shackles of homophobic environments. Child porn laws, with their overbroad reach, their radically decontextualized and reductionistic way of imagining youth and sexuality, is about restricting social possibilities for the young to gain a measure of self-determination. The network of institutionalized adult power residing in schools and families are almost never taken to be the very thing that needs to change. If the young were enabled to learn and explore more about their bodies and desires in the absence of sexual shame, if they were allowed to be queer, then maybe, just maybe we can raise a generation of youth and adults who can look upon their own sexuality without fear, and choose, with clarity of mind, with fun and responsibility what it is they chose to do with their bodies and their own erotic power.