How porn laws can backfire on children
CURRENT LEGISLATION DANGEROUSLY ILL-SUITED FOR THE DIGITAL AGE
S.B. was 14 years old when he was charged with distributing child pornography. He sat in the city cells in Kamloops, B.C., and wept.
The teen was an elite hockey player, handsome, popular, a jokester. In 2014, he received a picture on his phone, a “sext,” from a girl in his school, showing herself topless, with a written expression of sexual interest. He asked for more, and traded them with his buddies — like hockey cards, a prosecutor would later say.
He was hardly alone. After a parent complained to a principal, detectives uncovered what became known as the Kamloops child porn ring. More than 50 teenagers, the majority female, had been sharing sexual images illegally.
Rumour had it that other kids tossed their phones into the river to protect themselves. In the end, only three boys were charged, from three different schools. “It had an appearance of (being) very selective as to who was charged and why,” says Bill Sundhu, S.B.’s lawyer. The result was a cautionary tale.
By accident as much as design, Canada’s child pornography laws are blunt and broad. Applied to the letter, they criminalize common youthful sexual activity, and are dangerously ill-suited to the digital age, according to parents, lawyers, academics, even judges.
“We’re kind of in this bubble where people know there’s a problem,” says Andrea Slane, who researches sexting as associate professor of legal studies at the University of Ontario Institute of Technology. But solutions are elusive.
One response was the creation last year of a new and less serious criminal offence, nonconsensual distribution of intimate images, which applies to adult victims as well as children, and lacks the same stigma of perversion. The so-called cyberbullying law also has no minimum sentence and a five year max, compared with as much as 14 years for distributing child pornography.
In one of its first major tests, six boys appeared in court Wednesday in Bridgewater, N.S., charged with both child porn and this new crime, for sharing images of 20 female classmates. The case was adjourned until Oct. 19 to give lawyers time to receive thousands of pages of evidence from seized electronic devices.
The difference in severity of the charges makes the new offence seem like a possible compromise for a plea deal, which are common when child pornography charges are laid or even threatened.
In Kamloops, for example, the child porn charges caused massive parental panic and made national news, but they did not stick. The Crown agreed to a plea deal on harassment, based not on the photos but on persistent requests for more, with a conditional discharge for all three boys.
But the stigma lingered for S.B. A judge noted he was harassed and ostracized as a pervert. A psychological assessment found he was not, that his risk of “future acts of a sexually or a generally offensive nature” was extremely low. But classmates scorned him. To escape, he moved to Kelowna. So did the gossip.
Today, back home in Kamloops, S.B. has a hard drug habit, has violated probation on a newer unrelated matter, and is “going through the motions” of an alternative school, as his father tries to get him into rehab.
“It’s wrong. I was set as an example,” S.B. told the National Post through his father, neither of whom can be legally identified. “I’m f---ed.”
Such convictions can be doubly harsh now that sexual bullying online is of such high-pitched interest. Public moral crises, such as the suicides of Rehtaeh Parsons and Amanda Todd, have inspired well-intentioned and impassioned legal reforms, including the new criminal offence, but these efforts often turn out to be legally flawed.
In Pictou, N.S., for example, a 14-year-old boy was caught rifling through unlocked cars, and was convicted of child porn possession after police checked his phone and found sexting images from girls he knew. He pleaded guilty. His lawyer said there was never any thought of contesting the charge.
But it was not so simple. A major theme of his case was the disregard for the psychological harm that might have been caused to the girls whose photos he possessed.
Mental well-being is a key aspect of child porn laws, meant to reflect the vulnerability and impulsivity that can make young people less able to foresee and avoid the shame, embarrassment and other distress that can come as a result of willingly sharing sexual pictures. In this case, however, the Crown only sought victim impact statements the day the boy was being sentenced, almost as an “afterthought.”
The trial judge was appalled, and even though the victims expressed more regret than anguish, he said it was “immaterial”: “The full impact of this crime might not be felt by the victims until sometime in the future … offences of this nature are, yes, psychological time bombs, and no one who commits this sort of crime can claim ignorance.”
He therefore concluded this was a crime of violence, which by law demands a custodial sentence.
“It is important to note the date of these offences: 9 November 2014. That is over a year and a half since the tragic death of Rehtaeh Parsons,” the judge wrote. “In that intervening time, this province and this country underwent a transformational shift in recognizing the vulnerability of young people — particularly females — to trauma, psychological harm, serial victimization and predation as a result of people (including — perhaps particularly including — age peers) doing precisely what (this offender) did to his victims. Legislative action was swift.”
The judge did not mention, however, that a key part of this legislative action, the Cyber-safety Act, was overturned as an unconstitutional violation of free expression. And when his sentencing decision came before the Nova Scotia Court of Appeal recently, it was likewise struck down.
As the higher court saw it, the trial judge was wrong to view sexting among youths as necessarily a crime of psychological violence. The victims spoke of “shame, regret, and occasional anxiety, (but) there is no indication of any turbulent emotion or continued distress.”
What the judge described as “extortion” of pictures from one victim was nothing of the sort. It was arguably “exploitation,” the appeal court found, but not by threats or bullying.
Parents are as baffled by all this as judges appear to be.
“It’s funny, because when we were in high school, you’d go to a school dance and kiss four or five different girls, and you’d go in a corner and tell your buddies, right? Now, there’s not even school dances. They’re trading these pictures left and right, and, you know, is it wrong? Yes. But these girls that are doing it too, where are their morals?” said S.B.’s father from Kamloops.
“I can understand if you’re bullying them for pictures and you’re not stopping, that’s a whole different aspect. But when these girls are freely sending a picture to these kids, a 15-year-old kid that’s going through a whole bunch of emotional (changes), puberty and all this other stuff, hey, you know what, that’s a tough spot for these kids to be in, to make a decision (and say) ‘Hey don’t send these pictures.’ ”
Fearing they would lose on the facts, lawyers for the Kamloops boys prepared a charter challenge to strike down the criminal law. It would have cost a fortune.
Even the judge in B.C. said their argument had merit, and the stigma of the child porn charge “is totally disproportionate to the circumstances before me,” which he noted are common.
S.B. was in such emotional crisis, though, that his parents wanted a quick resolution. So their lawyer negotiated the plea deal.
“The stigma and harm of a child pornography allegation, let alone a conviction, is so ruinous,” said Sundhu. “Here you have young people who are at a stage in their life when they’re exploring their sexuality, they have these modern communication devices (that take) very good photographs, and they can exchange them, and the child pornography section in the Criminal Code was never intended to capture this kind of behaviour.”
Charter challenges have been brought before, but have always failed. In Saanich, B.C., for example, a 17-year-old girl was convicted on child porn charges in 2014 for spitefully sharing a picture of her boyfriend’s ex-girlfriend. Her lawyer argued child porn laws discriminated based on age, as adults in the same situations would not be committing any crime.
Another young man, who was 20 at the time of his offence, argued that there was a “substantial difference” between someone like him, “who acted impulsively and distributed pornographic material as an emotional response or as a prank and an offender who deliberately and over a long period of time amassed and distributed third party pornographic material for profit or personal sexual gratification.”
Prof. Slane thinks the idea of exploitation ought to be central to any reform to child porn laws as they apply to young offenders, to separate the innocent cases from the blameworthy ones without creating a blanket exemption for teens, and to differentiate between someone trying to “rain shame down” upon a vulnerable girl, and someone showing an image of “this hot girl on my phone.”
Child porn law already offers a private use exception, in place since 2001, which resolved the legal contradiction that, in some cases, teenagers were legally permitted to have sex, but not to possess pictures of it.
“I think the trick with all of this is that people are having a lot of reaction to child pornography as a class of offences that don’t seem appropriate for teens unless there is some sort of exceptional circumstance,” Slane says.
Parliament is unlikely to fix this, she adds, because “tinkering into child porn is something that I think legislators are not going to do unless somebody makes them.”
In Slane’s view, the successful challenger to current child porn laws is likely to be someone “closer to the line,” someone who really does want to narrow the law’s scope, someone whom prosecutors really do want to prosecute, someone unsympathetic.
Stephen Robertson, the lawyer for the boy in Pictou, N.S., agrees that the challenge will probably come up again, in a more winning case.
“It’s still not a defence to say ‘But everybody does it.’ It may come to that.”
THE CHILD PORNOGRAPHY SECTION IN THE CRIMINAL CODE WAS NEVER INTENDED TO CAPTURE THIS KIND OF BEHAVIOUR. — BILL SUNDHU, LAWYER