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Child Porn 101 at Cap College

Charges against instructor spark free speech debate.

Erin Millar 25 Nov 2005The Capilano Courier

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[Editor's note: Welcome to the first of a new Tyee series called 'Best of the Campus Press.' Starting today, we'll be running regular highlights from BC's college and university newspapers.]

Capilano College is currently home to the philosopher and the accused. In child pornography, that is.

As news of Michael Berry's possession of child pornography charges circulated Capilano College last month, the administration struggled to limit the damage of association with the crime and the accused criminal. The Film Studies instructor taught minors in the Continuing Education program since 1981 and was well known in West Vancouver where he lived and owned a popular ice cream shop.

It's part of an ongoing effort by the RCMP to investigate educators, and the RCMP warns there are more charges forthcoming. These circumstances bring to mind the cases of former residential school operator Paul Leroux and high school Principal William Bennest. And these classic and contemporary examples of pedophiliac lifestyles involving education evoke anger and disgust among most people.

It is this emotional reaction to the crime that two Capilano College philosophy instructors believe led to Canada's child pornography legislation and account for its flaws. In their 2001 book On Kiddie Porn, Stan Persky and John Dixon argue that Canadian child pornography law violates free speech rights. The book looks at child pornography law by following the Robin Sharpe case, which they were involved in as interveners from the BC Civil Liberties Association. Dixon was also a special advisor to the Federal Ministry of Justice at the time that Canadian child pornography laws were devised. The recent arrest of Michael Berry brings the child pornography debate between civil libertarians and fundamentalists back to the surface.

'Legal and moral murkiness'

"Ninety-nine percent of all Canadians agree that child pornography is a terrible thing and we ought to do everything we can to prevent it," Stan Persky, told the Cap Courier. Although he is among the 99 percent of people opposed to kiddie porn, he goes on to point out the legal and moral murkiness of the legislation concerning the crime.

According to Persky, the law is plagued with a lack of clarity because the people concerned with it are involved in the legislative process for many different reasons. Because most Canadians choose not to focus on the topic, politicians, child porn users, victim lobby groups and law enforcement are behind the legal and moral discussion. Each of these groups has a specific interest in the laws and this has resulted in ambiguous legislation.

Canadian child pornography laws were tacked on to the obscenity section of the criminal code by the Mulroney government in 1993. The political climate during this period says a lot about the context of the creation of the law. The Conservative government was unpopular among Canadians and there was contention within the party. There was talk of the fundamentalist factions splitting off from the government. (Which happened later with the creation of the Reform Party and, eventually, the Canadian Alliance.)

'Feel good law'

Critics have said that the feel-good law that protects children was created merely to appease fundamentalists and voters. Because there is no dollar value attached to tightening up laws, it was a cheap way to generate positive buzz. There was no rise in the availability of child pornography at the time. The existing obscenity law already covered child pornography. It seems that there was no need to introduce the law. Nonetheless, it was rushed through parliament with only three hours of debate.

What resulted was the creation of very vague language that bans much more than civil libertarians believe is necessary. According to the current criminal code, child pornography is defined as "a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means…that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or…the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years, or…any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act."

In other words, anything (whether it be photographs of real children, drawings, or written fictional fantasies) that depicts or encourages a person under 18 in some sexual activity is child pornography. This definition is the first point on which fundamentalist and civil libertarian opinion differs.

Child quibbles

There are two elements of this legal definition that Persky has problems with: the meaning of "child," and what the "representation" has to be to be illegal.

"The real question comes," he began in an interview with the Cap Courier, "with the question: what is it exactly that we are trying to stop? Where do we want to focus our energies?...The things that we are most concerned about are actual children who are used to make pornography. When we say 'actual children' we mean that they are real people -- that they're not just an artist's drawing or some writer that's imagining something -- and that they really should be children...The focus is on people who we really wouldn't call children. They're young people. 14 to 17-year-olds legally can have sex with people who are over 18."

The legal age of consent is 14 in Canada. There is law that protects 15 to 17-year-olds in situations where those over 18 that are in a position of authority. Persky points out that by including people between 14 and 18, it becomes illegal to possess depicted activities that are, in fact, legal.

For example, Persky illustrates a situation in which a legal act becomes illegal: "Two people between the ages of 14 and 18 can have sex with each other and there is no law against that. But if they make a picture of it, it can become child pornography and that doesn't make sense."

Documenting legal acts is illegal?

Persky argues that the laws should be an extension of illegal acts. Of course, documenting criminal activity should be illegal. However, he doesn't see the harm in documenting perfectly legal sexual activity. "People like me think that is a violation of freedom of imagination. The reason that that shouldn't be prohibited is because there's no direct harm."

Secondly, Persky doesn't believe that writings or illustrations should be considered child pornography. He thinks that the law should exist to prevent harm to children. However, if no harm has been done, it should not be illegal. That is why the categorization of what the actual representation can be troubles civil libertarians like Persky. As the law stands, illustrated children and fictional writing are included as child pornography. Since no child has been harmed in the creation of the material, Persky believes that it should be legal. In fact, he argues that the existence of a law banning such material violates freedom of speech and thought.

An additional element of the 1993 law was that merely possessing child pornography became a crime. This was the first time in Canadian law that it became illegal to possess "expression materials."

In his article "Kiddie Porn and The Public Good," Persky says that the unique law was to show that the problem of child pornography is so serious that it comes before constitutional rights regarding freedom of thought, speech and expression. He goes on to show what he considers to be the law's flaws by describing a case in which a diary entry that was not intended for publication or distribution could be considered illegal. He writes, "Even though he may not have shown it to anyone else [it] could be a crime under the child pornography law. Wasn't the possession offence trenching dangerously close on freedom of thought?"

Critics have also argued that the law steps into the bounds of free speech rights by banning the advocacy of sexual activity with persons under the age of 18. The constitutional guarantee of free speech does not ban advocating any crime. However, the 1993 law made it illegal to advocate sex with people under 18. Was this section of the law created in order to protect children? According to Persky, it was beginning to sound like fundamentalists were trying to control youth sex under the mask of protecting children.

Sharpe testing

Canada's most notorious pornographer, Robin Sharpe, provided a test case with which to try out the new legislation. A number of charges were laid against him in 1995, including the possession and authoring of pornographic fiction involving very young boys.

In Persky's view, Sharpe was the perfect candidate for testing the laws because he was a respected literary writer. If anyone would be able to defend his work on the grounds of artistic merit, it was surely Sharpe. In his self-defended case, he challenged the advocacy and possession sections of the law, claiming that they violated his constitutional rights. The B.C. lower courts agreed with Sharpe and it wasn't until the Supreme Court ruling that the law was upheld.

Although the court ordered Sharpe tried, Chief Justice Beverly McLaughlin created a few exceptions to the 1993 law. She made it easier to fulfill requirements to use the artistic merit legal defense and deemed that "self-created expressive material" and "personal recordings of lawful sexual activities" were not criminal. She clearly stated that her reasons for interpreting the law in this manner were to honour freedom of expression and thought.

Artistic merit vs public good

However, Persky doesn't think that McLaughlin's changes address the problems. He writes that, "Anomalies remained. Written advocacy of sex with children was still considered child pornography, people under 18 were still regarded as children, and a variety of representations involving neither actual children nor actual sex could fall afoul of the law."

Although Sharpe was convicted on one charge of possessing a sexual photograph of a child, he was acquitted of the charges surrounding his writing under the artistic merit defense. "The people who were opposed to Sharpe were furious that he should be allowed to write what he wanted to," Persky reflects on the case. "That's their view -- that writing should be restricted if it's dirty or they don't like it or it violates some kind of moral idea of their own. But the Canadian Constitution says that you can write anything you damn well please."

After the Robin Sharpe case, fundamentalists called upon the government to plug the loopholes in the existing law that allowed for the artistic merit defense. In 2005, the law was amended to do away with the artistic merit defense by introducing a "public good" defense. Instead of allowing alleged pornographers the defense of art, their work must serve some "public good" in order to be exempt from prosecution. Exactly what "public good" is, however, is unclear.

Banning 'Romeo and Juliet'?

Persky was particularly concerned with the implications of discarding the artistic merit defense. In his article "Kiddie Porn and the Public Good," he writes: "We might find ourselves scratching our heads over sundry works. Vladimir Nabokov's Lolita, Margeurite Duras' The Lover, Bernhard Schlink's The Reader, and a host of films from Agnieszka Holland's Total Eclipse to Franco Zeffirelli's version of Shakespeare's Romeo and Juliet all contain depictions of persons under 18 engaged in sex with adults (excepting only the Bard's star-crossed teen lovers).

"Since these works of possible child pornography are no longer protected by an artistic merit defence, do they really all serve 'the public good?' Gee, I'm not so sure about Humbert Humbert's adventures with Lolita...What if I happen to be in possession of Zeffirelli's Romeo and Juliet? In the famous ''tis the nightingale/ no, 'tis the lark' bedroom scene, Zeffirelli's camera lingers long on the naked 'anal region of a person' who is or is depicted as being under 18, namely, Romeo, played by Leonard Whiting.

"Whether that anal region is displayed for 'a sexual purpose' or to 'serve the public good,' or even the claim of some hapless artist that it's there because it's beautiful, can be left to the courts for resolution. I suppose the common-sense of the courts will probably rescue most of the above, notwithstanding the lust of fundamentalists to clean up dirty art. But Cauchon's amendments simply make a bad, often illogical, law that much worse."

Art loopholes

Not only did the changes to the law cover Sharpe's art loophole, but it also attempted to address the fact that it was argued that Sharpe didn't actually advocate for illegal sex, he only described it. The new law also banned any description of illegal acts. Persky expresses his thoughts about this particular point by writing that "Once again, as in the days when "decency" and "morality" rather than actual harm determined judgments of obscenity, written descriptions of imaginary acts by imaginary persons could fall under the child pornography law."

Whether child pornography laws will be amended in the future remains to be seen. However, it is clear that, again, this issue will be in the limelight as new charges are laid in B.C. In addition to Michael Berry's charges, another schoolteacher was charged recently in Surrey. The RCMP warns that this is not the end of child pornography charges against people involved in education.

Although Persky is concerned with harm being done to children, he warns that it is important to tread carefully when dealing with issues that have the potential to violate our rights to free speech. "You should be allowed to write anything you want or else you don't have a democracy," he concludes. "You should be allowed to say anything you want. That's why we have freedom of speech. It's at the heart of democratic theory."

Erin Millar has been an editor and writer for the Capilano Courier at Capilano College for three years. She also serves as the Western Regional Director of Canadian University Press.  [Tyee]

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