4 min

Whose public? Whose good?

Proposed changes to child porn law worrisome

Gays and lesbians should “definitely” be alarmed, says literary expert Lorraine Weir, referring to a federal bill on child pornography that just began hearings in the justice committee.

“I think it’s urgent,” says the lesbian professor (who is also fighting her own lawsuit on a different front). The gay community should do everything it possibly can to become “actively and publicly involved in this debate.”

The debate in question centres around Bill C-20 which, if passed, will wipe out the artistic merit defence to child pornography and replace it with a broad, vague term called the public good. It will also broaden the definition of child pornography overall.

That may sound kind of academic, but the results could have a very real impact on transgressive art and literature, and gay and lesbian works in particular.

The government introduced Bill C-20 last December, about nine months after a BC Supreme Court judge acquitted Robin Sharpe on two counts of making and possessing child pornography. In his ruling, Justice Duncan Shaw argued that, first of all, Sharpe’s stories did not constitute child porn at all because they did not meet the definition set out in Canada’s criminal code. (According to the code, written material is only child porn if it “advocates or counsels” sex with minors.) Moreover, Shaw ruled that even if Sharpe’s written words did constitute child porn they would still be legal because they have artistic merit.

The government responded promptly, introducing a series of amendments to tighten the child porn law-and ensure that the next Sharpe goes to jail.

Now those amendments are before the justice committee (having already passed their second reading in the House), and artists across Canada are urging everyone to speak up.

Replacing the artistic merit defence with a public-good defence “will inevitably have a chilling effect on the creation of important works by Canadian artists,” says the Canadian Conference of the Arts (CCA), a national advocacy organization representing about 200,000 artists.

If Bill C-20 passes, only child porn seen as serving the public good-and not extending beyond the public good-will be exempt from criminal prosecution. The bill does not define what counts as public good.

And that’s worrisome, says the CCA, in a brief to the justice committee. The public-good defence “does not have an auspicious history.”

In fact, it tends to promote only “consensus art of the most timid variety,” the CCA warns. “The defence will thus be incapable of protecting freedom of expression where it is most necessary.”

Only works which fall within the mainstream, which reflect consensus values and meet the dominant culture’s standards of what’s acceptable will count as serving the public good, the CCA says. Controversial works will likely be left out in the cold.

Weir agrees. Reverting to the old public-good defence could lead to a repression of works which deviate from the norm, she echoes. And that could “ride roughshod” over gay and lesbian artistic expressions.

Just look at the public whose “good” is going to be evaluated, she says. Look at all the recent headlines about groups opposing same-sex marriage and gay-friendly books and portrayals. Now think about how the courts will weigh, say, a transgressive gay story’s contribution to that public good.

“Whose public?” Weir asks. “Whose good? What are we buying into?

“Our community has never been automatically included in the ‘public good’ in Canada before and there’s no reason to expect otherwise if Bill C-20 is passed,” she says.

In fact, if Bill C-20 passes, “censorship could well gain a deeper hold” on this country, Weir warns.

The bill’s proposal to tighten the definition of child porn will only exacerbate the problem, adds the CCA. If the new definition (which includes any work whose dominant characteristic is depicting sexual activity, for a sexual purpose, with a minor) “is given an expansive interpretation, this change could implicate writers who are working on themes such as coming of age and juvenile sexuality.”

And that could lead to a lot of self-censorship, says Weir, since most transgressive writers-and most independent writers, period-can’t afford to get ensnared in lengthy legal proceedings.

But if people stop producing art from the margins, society as a whole will lose, she notes.

Vancouver Centre MP Hedy Fry, who sits on the justice committee, says she supports the bill’s intentions but she’s concerned about its potential impact on people’s freedom of expression.

“On paper it’s a positive move,” she says, citing the need to protect children from sexual exploitation. But Fry wants to hear more feedback, particularly from concerned citizens, before making any decisions.

Fry doesn’t know what kinds of work the proposed public-good defence would protect. That would depend on the material’s intent, she says. If it’s designed for educational purposes then it would likely be protected, but if it’s simply for “titillation” purposes, it probably would not be, she suggests.

“Don’t forget, we’re talking about children here,” she adds.

According to Bill C-20’s preamble, the government introduced it to “help safeguard the children and other vulnerable persons from sexual exploitation, abuse and neglect.” In addition to its proposed changes to the child porn law, Bill C-20 also creates a new category of illegal sex between adults and youth where the adult is in an “exploitative relationship” with the youth. (Right now, sex between adults and youth aged 14-17 years is only illegal if the youth is dependent on the adult, or the adult is in a position of trust or authority.)

Fry doesn’t see how eliminating the artistic merit defence to the child porn law could set a bad precedent for adult gay and lesbian art and literature. This is not about adult porn, where people are able to make their own decisions, she emphasizes.

Weir is not convinced. She doesn’t believe the stricter rules would only apply to child porn.

Porn may mean different things to different gays and lesbians, she says, but legally it has been used to stop certain forms of artistic expression, particularly gay sexual expression, and to “stop the notion of literature in its tracks.”

Besides, she says, “if you strip the definition [of child porn] absolutely bare, you make it easier to slap it on anything you want to get rid of.”

Bill C-20 began its hearings in the federal justice committee last week.