Defining obscenity
On Feb. 27, 1992, 23 years ago, the Supreme Court of Canada upheld the constitutionality of Canada’s obscenity law. Despite the obvious vagueness of what the law targeted, “the undue exploitation of sex,” none of the judges could find a fatal defect in the impugned statute. So, instead of overturning the enactment as hopelessly incomprehensible, our legal giants decided to supply a definition themselves.
They told us that the exploitation of sex would become “undue” at the point when Canadians generally would not tolerate other Canadians being exposed to the material in question. Incredibly, the Court declared that this approach was “intelligible.” But “intelligible” to whom?
Consider a practical problem. Periodically certain convenience stores receive packages of American magazines, laden with sexual content. How are the store owners supposed to know whether their fellow citizens would be pleased, thrilled, bored or repelled by the magazines?
The Supreme Court judgment purports to provide guidance. According to the judges, any material portraying sex coupled with violence will “almost always” be deemed “obscene.” But legitimate art and literature overflow with portrayals of sex coupled with violence. Consider the following examples:
from Greek mythology, the rape of the beautiful Leda by the god Zeus disguised as a swan.
from medieval art, the painting that depicts the rape of the Sabine women.
the famous rape scene from Ingmar Bergman’s film, The Virgin Spring.
Indeed, art must be able to enhance our perceptions of all reality – including that which is evil. Imagine, for example, a painting or film that showed Nazis shooting Jews, or Ku Klux Klanners lynching blacks? I have never heard of anyone demanding an arrest or prosecution because of an artistic, literary, or cinematic portrayal of a racial, religious or ethnic interaction coupled with violence. Surely, the very idea would strike most people as rather silly. Why, then, should the mere portrayal of a sexual interaction coupled with violence stir our sense of outrage?
Invariably, the supporters of the court and the law can be expected to trot out the mitigating factors and defences such as artistic merit, medical and educational purpose. We will be told that such defences have already deflected prosecutions. During the last couple of decades, for example, the authorities backed down or were overturned in a number of cases where action had been undertaken involving apparently legitimate material. In so many of those cases, it was only these defences that ultimately rescued the material and the parties involved.
The problem is that these defences reek of subjectivity. In this regard, the Supreme Court has attempted to be helpful. In the course of upholding some of our porn legislation, the Supreme Court stipulated that the defences should be “interpreted liberally.” Yet a few months later, a British Columbia court denied the defence of “educational purpose” to the children’s sex education book, Show Me. According to the B.C. judge, the book was “thinly disguised child porn.” It seems difficult to square this development with a judgment of an Ontario court, 25 years earlier. On the basis of expert testimony, that court held the same book to be genuinely educational.
Wouldn’t this law be much less troublesome if it simply targeted material that is — or is held out to be — the product of a situation for the creation of which a real person was unlawfully abused? Why should mere fictional portrayals engage the legal processes? I suppose deep down many of us believe that exposure, even to fictional portrayals of interactions we don’t like, will produce behaviour we don’t like. Hence, we undertake an endless quest for a pornography law that will guarantee our adult citizens nothing but safe material. I fear that the unreality of this quest will inevitably doom our legislative efforts.