News
7 min

The wrong kind of child-porn protection

20 years on and we’re still gripped by panic over youthful sexualities

The author's photograph of himself at age 18. Credit: Rob Teixeira

I was 18 years old, home alone, bored and horny when I picked up my Canon SLR and a tripod and started snapping nude black-and-white photos of myself that I’d later print privately in my home darkroom. In that unfinished basement setting my somewhat “arty” nudes soon developed into a more explicit genre, featuring my hard-on in the leading role. I was alone but felt really nervous — I had just come out that year and never posed nude in front of a camera. What I learned, to my surprise, was how much of a boost to my teenage self-confidence my private photo shoot offered me.

Canada's child pornography law (section 163.1 of the Criminal Code) came into effect on Aug 1, 1993. It was, and remains, a controversial piece of legislation. Rushed through in the final weeks of a Progressive Conservative administration, the law stoked fears of predators out of control and the violation of the innocent. The first wave of arrests soon followed, involving a young artist, male sex workers and their clients. The following summer saw the formation of a lively coalition that included lawyers, artists, sex workers, youth, queer people, anti-censorship feminists, and others who organized to fight what many saw as legal overreach that put people at risk of arrest for merely possessing images that ran afoul of vaguely worded and broad legal definitions of child pornography.

Twenty years later, the advent of the internet and social media has expanded the range of information and images available to everyone; it has also meant the intensification of regulation that purports to protect young people from the supposed dangers of erotic images and online “stranger danger.” Young peoples’ online activities encompass a broad range of social experiences, including exposure to the pleasures and risks of erotic visual display. The sharing of such images digitally — thereby breaking the law — is easier than ever. If I were 17 years old or younger today (or even “looked” younger) and staged the same photo shoot I did years ago — and then sent my images to others — I could put any recipients and myself in serious legal jeopardy. Up to a 10-year jail term is waiting for those convicted of producing and distributing "child porn."

Visual culture is becoming more complex, and our critical intellectual and emotional understanding of images may lag behind the speed of technology and the changes it brings. In a culture that promotes the commodification of youthful eroticism and the consumption of representations of the child or teen as sexy objects of mainstream taste, it is easy to forget that young people themselves can be critical consumers and producers of erotic images — and not simply victims of consumer capitalism and exploitation.

Although we're further along when it comes to recognizing the helpful role that comprehensive sexual health education programs play in young people's lives, we've neglected to meet child and youth sexualities on their own media landscape. The criminalization of cyber images and text is pursued by authorities, and in a manner that is jarringly ad hoc, as the laying of child-porn charges on two male suspects in the tragic case of Rehtaeh Parsons illustrates.

Although the Parsons case holds important lessons about the dire effects of sexual assault and bullying, many aspects of how young people become vulnerable to exploitation online is vastly overdrawn. Danah Boyd, an information science and youth culture researcher, has studied how young people use the internet. Her research, based on US population samples, reveals that one out of every seven young people has been solicited online. But 90 percent of these cases were by peers their own age. Of those who were solicited by older people, most were in their 20s and a majority of youth, 73 percent, were able to uncover an online imposter.

The exploitation of the young is an important social problem. Yet the logic of the Canadian law leads us away from examining the conditions that underlie the way young people are made vulnerable to abuse and exploitation. In this case, the pursuit of images online and the forensic analysis of computer hard drives to locate contraband images is ruthlessly pursued at the expense of what careful analysis of child porn enforcement reveals — which even police personnel confirm — that child sexual assault is mostly committed within families and by those whom the child knows.

Studies on child porn arrests and online policing have shown that the most objectionable images of child pornography are linked to the original scene of the child sexual assault. Feminists and survivors have worked to publicize family violence and incest for decades, pointing to the micropolitics of power within the family, yet somewhere in the tremendous noise of the drama over sexual strangers and child pornographers we’ve forgotten this. Instead, child-protection advocates and police prefer to drop the label “child porn” in their public communications in favour of “crime scene images” or “images of abuse,” which they claim is a more accurate description.

Instead of going further into sensitively and comprehensively tackling the complex problem of child sexual assault, we can thank the child pornography law, in part, for obscuring the conditions of production of contact offences and child sexual assault because of its focus on the dematerialized images as the source of the greatest harm. The Supreme Court Sharpe decision of 2001 upheld the law’s constitutionality, providing two narrow exemptions for young people who would not be prosecuted if they produced their own images and didn't share them with anyone. Since then, other amendments have expanded the way citizens can be charged with possession of child pornography under laws that stipulate “accessing” prohibited images and “making available” to others. These laws enlarge the range of criminal “click and find” actions with, however, no evidence of increased harm attributed to these practices.

If this weren't enough, we are seeing the recriminalization of historical images and text that had been previously acquitted of all charges of obscenity or harm to children. For instance, a BC man was convicted of possessing a copy of Show Me in 2001. Originally a German publication from 1974, its English translation was sold widely in Canada, and for a time it was quite popular as a sex education resource for parents and their children. It featured images of children and youths’ bodies interspersed with text of the young participants' questions and comments about bodies and sex, reproduction and pleasure. 

Established artists continue to be targeted under child-porn laws in cases that have come to light in other jurisdictions. In Buffalo, Lawrence Brose, the executive director and chief curator of CEPA Gallery, and a longtime respected gay artist, was brought up on charges by Homeland Security for allegedly accessing and producing child porn related to his art-making activities. Brose denies the charges and will be one of the few to test the possession provisions in the US law.

Such cases illustrate how even exploring child and youth sexuality in art remains severely circumscribed because of the chilling effect of child-pornography laws. When it comes to images of youthful sexualities, it seems, we prefer the hard lessons of the law to anything else.

A number of concerns over child porn legislation and its enforcement:

The publication of names of those alleged to have committed crimes involving child pornography offences.

In many cases, charges brought against those accused of child-porn offences do not involve contact offences with young people. Similarly, they should not be sentenced in the court of public opinion over charges in which a high degree of public opprobrium can be expected.

Overbroad definition of what constitutes a “child” under the child-porn law.

The legal definition of what constitutes child porn under the Criminal Code provisions for Section 163.1 — being or “appearing to be” under the age of 18 — has been criticized for being overly broad as well as contravening other provisions in the Criminal Code that set the basic legal age of sexual consent at 16 (where the adult is not in a position of authority or deemed to be involved in sexual exploitation).

The evidence involving child porn offences is unavailable for independent public scrutiny.

Journalists, scholars and researchers are unable to independently assess the range of materials that have led to prosecutions under this law. The public and the press are beholden solely to police accounts of both the quantity and the “content” of images.

Youths subject to prosecution for texting images and online chats.

Young people have been charged under the law for using social media to relay images of themselves to others. Determinations of guilt for producing or distributing images that fall under the definition of child pornography is often rendered without taking into account the intent of the producer or the context of its production.

The language of the law and the methods of police enforcement are increasingly used to define child porn materials as contraband objects, akin to drugs or guns.

In the wake of the Supreme Court decision R v Sharpe (2001), the law has increasingly been defined outside the ambit of the “obscenity” provisions under the law, thus attempting to circumvent any considerations in which texts and images may be subject to interpretation and considered as potential cultural, artistic or scientific materials that may warrant protection as a form of speech.

Child pornography legislation, although useful for curbing true images of child sexual assault, generally misses the mark when it comes to how children are rendered vulnerable to sexual abuse.

The stated aim is to reduce the incidence of child abuse. However, the governing assumptions and policing practices around child-pornography investigations consistently fail to address the fact that the rate of familial child exploitation and abuse, where most abuse occurs, remains largely unchanged. Yet a huge amount of provincial and federal money is spent to buttress a massive and growing operation that targets online child-pornography investigations.

How are online activities involving the consumption of legal porn related to arrests under the child pornography law?

In child-porn investigations that do not involve the direct production and distribution of proscribed material, how do police and judges apportion legal and criminal responsibility in cases of viewing of digital images online? This becomes a murky legal zone given the infinite reproducibility of digital images over the internet, especially in cases in which the accused may not be aware of illegal images on their hard drive or in the mistaken or accidental clicking of a link on a legal porn website that may lead to other images that were not intended to be viewed and which may technically contravene the definition of “child porn” in the Criminal Code.