New trial ordered in teen porn video
• It is technically possible to own legal child pornography in Canada, according to a controversial B.C. court precedent from 2001.
The explicit images have to depict sex with a consensual lover. That partner can be under 18, but not under 16, and, most importantly, the images could never be shared.
But after a unanimous Supreme Court of Canada decision Friday, this “private-use” exception for under-18 sex tapes is getting a rethink.
The case concerned two Ed- monton men, Donny Barabash, then 60, and Shane Rollison, then 41, who videotaped themselves having sex with two 14-year-old girls in 2008.
The teens, identified as “K” and “D,” were “runaways” from an Alberta treatment centre, and met Barabash and Rollison at what K would identify as an Edmonton “crack house.” Barabash knew D’s father and had provided the girls with drugs.
At the time, it was not inherently illegal for older men to have sex with the teenagers. Although Canada’s age of consent was boosted to 16 mere weeks after the recordings, at the time a 14-year-old could consent to having sex with a partner of any age.
In 2012, Alberta Superior Court judge Dennis Thomas used this exact reasoning to acquit the two men. The sex was legal, the videos were kept private and “all appear to engage in this array of sexual activity on a voluntary basis,” he ruled.
“The males are generally passive, while the (girls) are the individuals who direct most activities, sexual or otherwise,” added Thomas, who saw the videos in court.
As one of the teen said during the trial, “we didn’t do anything we didn’t want to.” In fact, police were only led to the case after one of the girls posted a sexually explicit photo to the social networking site Nexopia.
Thomas’s decision to acquit Barabash and Rollinson was based in part on a high-profile Supreme Court ruling from 2001. In 1995, Vancouverite John Sharpe was charged with possessing child pornography after being caught with an apartment full of photographs of nude teenage boys.
The retired city planner fought all the way to Canada’s highest court to argue he could possess the photos under the freedom of expression provisions of the Canadian constitution.
The Supreme Court rejected the defence, but in a decision written by Chief Justice Beverley McLachlin, an exception was granted to “visual recordings … that do not depict unlawful sexual activity and are held by the accused exclusively for private use.”
The exception does not hold if the video contains “exploitation.” Consent is moot, for instance, if the person operating the camera is in a “position of trust or authority” or if the relationship is one of “dependency.”
K and D may have said “yes” to the videos, but Friday, the Supreme Court ruled a situation in which two older men have sex with drug-using runaways at a crack house is ripe for exploitation.
“Fundamentally, the trial judge failed to consider the extent to which the appellants — two older men — may have exercised control over two vulnerable, deeply troubled and runaway girls,” read Friday’s decision, authored by Justice Andromache Karakatsanis. The ruling added “even if a young person consents to the sexual activity, it may nonetheless be unlawful in certain circumstances.”
Most notably, Barabash was providing the girls with shelter and, as K testified, he informally rewarded their sexual encounters by handing out drugs.
When asked why she had consented to sex with the men, one of the girls testified “I wanted the drugs.”
In his written argument to the Supreme Court, Canada’s attorney general warned the controversial “private use defence” should always be weighed against the harm child pornography inflicts on children.
While Canadian law criminalizes child pornography, the private use defence has left the door open to offenders obtaining legal pornography simply by making it themselves.
“In short, the narrow interpretation is a recipe for the exploitation of vulnerable youth,” the argument read.
Barabash and Rollison were ordered to be retried in Alberta.