COVER

SEX AND THE LAW

JUDGES SET THE STANDARDS ON OBSCENITY

PAUL KAIHLA October 24 1994
COVER

SEX AND THE LAW

JUDGES SET THE STANDARDS ON OBSCENITY

PAUL KAIHLA October 24 1994

SEX AND THE LAW

JUDGES SET THE STANDARDS ON OBSCENITY

PAUL KAIHLA

The Ultra Great Sex for Less tape costs $25.30 at Video-X, a shop in downtown Toronto that sells dirty movies, books and magazines, as well as frightening-looking sex toys. In one scene, two muscular men have simultaneous anal and vaginal intercourse with a woman. The video is one of the store’s hottest sellers, along with a 23-tape series featuring repeated scenes of men ejaculating onto women’s faces. To many Canadians, the material is on the wrong side of the line that divides erotica from smut. And in fact, until a little more than two years ago, Toronto police were routinely seizing such tapes—and winning convictions under Canada’s obscenity law against the merchants who sell them. But all of that changed in 1992 with a landmark Supreme Court of Canada case called R. vs. Butler. The ruling in effect said that prod-

ucts like Ultra Great Sex for Less are protected from prosecution because of the guarantee of freedom of expression in the Charter of Rights and Freedoms.

The judgment represented a sea change in the definition of obscenity, not to mention the range of movies, books, magazines, recordings, paintings and other forms of expression that Canadians are entitled to buy. Since 1959, all cultural products have been subject to the obscenity law found in Subsection 8 of Section 163 in Canada’s Criminal Code. It essentially says that a work is obscene—and illegal—if one of its

dominant characteristics involves “the undue exploitation of sex.” Owning and distributing obscene material carries a maximum penalty of two years in jail. How to define “undue exploitation of sex,” meanwhile, has been the subject of millions of dollars’ worth of litigation over the past four decades. During that time, it fell to judges to reflect the moral standards of the community, and in the words of a 1962 Supreme Court ruling, bring a “general instinctive sense of what is decent and what is indecent” to obscenity cases. Which is another way of saying that obscenity is in the eye of the beholder—and varies with the times.

In the early 1960s, for instance, Quebec courts ruled that D. H. Lawrence’s classic novel of adultery and eroticism, Lady Chatterley’s Lover, was obscene—a decision that was appealed all the way to the Supreme Court. After literary critics, editors and writers championed the book’s artistic merits, the court narrowly ruled 5 to

4 that it was not obscene. There have been dramatic changes since then, as a series of subsequent court cases have constructed an ever more liberal definition of obscenity. The climax of that trend is the Butler case. It marked the first time that the Supreme Court of Canada considered the effect of the 1982 Charter of Rights and Freedoms, and its provision for freedom of expression, on the obscenity law.

The origin of the case lies in an August, 1987, raid by Winnipeg police on Avenue Video Boutique, a store that stocked sexually explicit videos and magazines, mostly for heterosexuals. The police seized the store’s entire inventory and charged owner Donald Butler with 250 obscenity counts. Butler was acquitted on all but eight counts—and appealed those convictions up to the Supreme Court, arguing that the charter prohibited government from criminalizing pornography.

The court, however, upheld the obscenity law—and the state’s right to censor certain types of pornography. But in an extraordinary move, it replaced morality as the rationale for censorship with the principle of women’s equality. Moralizing definitions of obscenity were incompatible with the charter, the court said. But if an obscene work threatened the equality of women, censorship was justified. “Materials portraying women as a class worthy of sexual exploitation and abuse have a negative impact on the individual’s sense of selfworth and acceptance,” wrote Justice John Sopinka in the judgment.

With that in mind, the court created three new rankings for obscenity. At the top, any material that mixes explicit sex and violence, or includes children, should be ruled obscene. In the middle category, works that involve explicit sex and degradation are obscene, too, if they are deemed to encourage violence or other harm against women. Finally, other sexually explicit material is permissible because the obscenity law cannot “inhibit the celebration of human sexuality.”

The court’s decision was largely influenced by the intervention in the Butler case of the Women’s Legal Education and Action Fund (LEAF), a national organization that lobbies in the courts on behalf of feminist causes. In an official brief, LEAF asked the Supreme Court to uphold the obscenity law, claiming that some forms of pornography promoted violence against women. The group acknowledged that social science did not support that claim, but said that neither could it disprove it. The harmful effects of pornography on women were self-evident, the group argued. “Pornography is a multifaceted, systemic practice of exploitation and subordination based on sex that differentially and materially

harms women,” wrote University of Manitoba law professor Karen Busby, who worked on the LEAF brief, in a recent journal article about the group’s role in the Butler case.

While many feminists viewed the Butler decision as a triumph, the application of the ruling during the past two years has disappointed them. Busby, for one, thought that the new breadth given to all sexually explicit material would “curb state repres-

sion of books, videos, images and art historically deemed morally ‘indecent’ or ‘disgusting’ by a heterosexist society.” But Canada Customs has continued to intercept and seize shipments of erotica and pornography destined for some gay and lesbian stores.

At the same time, Butler seems to have given greater rein to the very pornography that some feminists thought the ruling would curtail—degrading material that they regard as harmful to women. “The reason we ban obscenity in Butler is because it causes harm, but to ban a certain work the prosecution has to prove it causes harm,” says Alan D. Gold, a Toronto criminal lawyer who has defended several obscenity cases. “The problem is that there is not a shred of respectable research that supports that claim. So while the feminists were busy congratulating themselves on selling this nonsense to the Supreme Court

of Canada, the aftermath of Butler has been nothing but success for the defence in obscenity cases.” Added Gold: “Dirty pictures do not cause anything.”

The Butler ruling has brought marked changes to Canadian society. In many cities it is now common to find hard-core pornographic magazines and videos in corner stores. As well, major hotels in many cities also feel free to offer guests sexually explicit films in their rooms on pay-perview channels. Film review boards, which both classify and censor films in several provinces, have also, in most cases, taken a liberal cue from the Butler ruling.

Before the Butler decision, Det. Frank Goldschmidt of Toronto’s joint-force antipornography unit said that he and his fellow officers would lay charges against merchants if they simply stocked a video showing basic intercourse. Now, he says that the only material they feel confident about seizing and winning convictions on is pornography that depicts children, and material mixing sex with violence—most commonly, bondage.

But even that class of material is available to any casual shopper on Yonge Street’s commercial strip in downtown Toronto. At the slyly titled shop “Books,” an entire wall is devoted to bondage videos, which cost between $60 and $80. Among the selections is a tape called Women Ruled by Men. The cover advertises it as “one of the most exciting bondage videos” ever made, and depicts two nude women strapped back to back by a series of chains. One of them has what looks like a horse’s bit in her mouth, held there by a tight strap around her head. Another video cover shows a leather-clad strongman named “Sir Michael” pulling open the negligee of a young blond woman who is gagged with heavy, knotted rope. The pair is in a room that looks like a dungeon, with whips and chains hanging from the wall. The cover invites the viewer to “Join Sir Michael as he teases, torments, humiliates and disciplines some of the most beautiful and submissive women who have fallen under his powerful will.” Lawyer Busby says that those videos are the kind of thing that should be prohibited under the Butler ruling because they not only degrade women but include violence. The police say that they are in fact continuing to lay charges against such material, but simply do not have enough personnel to crack down on all forms of relentlessly proliferating porn. “I know if you go in there you will find things that may be over the line,” says Det. Goldschmidt. “That’s probably stuff we could go and lay charges on. But no can do—we haven’t got the time.” They also have no guarantee that, in a permissive age, the charges would stick. □

‘PORNOGRAPHY IS A MULTIFACETED, SYSTEMIC PRACTICE OF EXPLOITATION AND SUBORDINATION'