When Pierre Trudeau made his famous declaration about the state having no place in the bedrooms of the nation, he passed no comment on whether folks have any right to privacy in their reading rooms. Perhaps if he’d tacked on something about a consenting adult’s privilege to fan private sexual fantasies—in addition to the real thing—the position of the nation’s pornography peddlers and their customers might have been clarified. The legal scraps that crop up over the legal definition of obscenity contained in section 159 of the Criminal Code could possibly have taken on a more realistic direction. The latest semantic skirmish was waged in Brampton, Ontario, where on August 9 police seized 85,520
copies of the September issue of Penthouse magazine from its distributors. In a 36page written decision issued late in September, two weeks after the close of a sixday obscenity trial, Peel County Court Judge Chester Misener declared the September Penthouse obscene and unfit for sale to the public. That, in effect, rendered an estimated 500,000 Penthouse buyers in Canada partners in crime as the magazine continued to sell unmolested in the rest of the country.
The trial produced the usual parade of concerned citizens, clerical representatives, psychiatrists, lawyers and policemen, all ably prepared to add their two cents to
the pornography-obscenity debate. One defense witness suggested that people looking for a really raunchy sex magazine were cheating themselves by paying two dollars for Penthouse.
Spotlighted at the trial was an eightpage photo spread entitled Pas de Deux, featuring two rather pubescent-looking young women in a variety of poses and embraces. Their freckled faces, pink and blue hairbows and knee socks did little to dispel the ever-so-delicate hint of kiddie porn.
The 47-year-old judge declared the publication “a dirty old book” which “advocates a sexual orgy of infinite variety and exhausting proportions.” Penthouse pub-
lisher Bob Guccione “can gain no comfort from the fact that there is no danger that contemporary right-thinking Canadians will accept his advice,” he wrote. Defense counsel Aubrey Golden, a Toronto trial lawyer, launched an appeal at Guccione’s request. The search for a definition of “undue exploitation of sex” and the “rightthinking Canadian” seems to have quite a way to go yet.
Two years ago, the federal law reform commission recommended the removal of obscenity laws from the Criminal Code, with the exception of unsolicited viewing and distribution to those under 18 years of age. Alan Borovoy, general counsel for the Canadian Civil Liberties Association, argues that “whatever harm may be caused by an obscene publication—and such harm has never been demonstrated—is outweighed by the harm caused by the obscenity laws.”
Golden argues that existing obscenity laws and their enforcement have created “an outlawed community of respectable people like the news dealers and readers” who have lost patience and respect for a law that they feel interferes with their private taste. Asking these people to ensure proper display and distribution of pornography without assuring them they won’t be penalized for dealing in it, says Golden, “is like asking the marijuana trafficker for quality control—you have to legalize the Stuff first.” CHERYL HAWKES
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