World Special Report

The hawk circles

Eric Silver February 5 2001
World Special Report

The hawk circles

Eric Silver February 5 2001

THE PORN WARS

Canada

Patricia Chisholm

The irony is that Page believed he was from a "normal" middle-class family. His parents split up when he was 5, but there was always enough money. “Everybody was always trying to buy me

stuff,” he recalls bitterly, even when he was being sexually abused by his father and neglected by his mother. The Vancouver man, now 19, began working in the city’s Boystown—the downtown strip known as a hangout for homosexual prostitutes—at 12. He has made his living as a hooker ever since. Very occasionally, because he needs the money, he allows clients to take pictures—$ 150 is the standard fee. But usually he refuses, or checks to make sure there are no hidden cameras, a common ploy among his customers. “In the past, I was stupid,” he says. “I didn’t get asked, they just got taken. Now, my antennae are always up.”

Child pornography—almost always associated with other forms of sexual abuse of children—just increases the sense of isolation and worthlessness abused kids feel, Page says. “There’s not a lot of choices in kids’ minds once they are caught up in abuse, or the sex trade, or drugs,” he says. For many, it feels as if life has nothing else to offer. And as far as Page is concerned, governments should do everything they can to stop pedophiles from making, distributing or possessing any form of child pornography. “Anything against kids is so wrong,” Page says. “It’s ruining their chances. I know that if I hadn’t been abused, I would not be in this situation.”

But how to fight pornography without infringing on civil rights is a question that has bedevilled authorities, as the case of John Robin Sharpe illustrates. After two years of intense legal wrangling involving four child-pornography charges against the 67-year-old Vancouver resident—a trial, appeal and counter appeal—the Supreme Court of Canada last week decided that a sweeping 1993 law that bans the making, distribution and possession of child pornography is constitutional—although with two controversial exceptions. In a lengthy decision written by Chief Justice Beverley McLachlin, six of the judges found that written or visual material made by an individual strictly for his or her own private use is exempt from the possession prohibitions. It also exempted “visual recordings”—legalese for photographs or videotapes—made by an individual for that person’s own use, provided the pictures do not depict “unlawful sexual activity” (meaning any of the sexual partners are under age 14). Sharpe must now stand trial on the four charges, two for possession and two for possession with intent to distribute.

The other three members of the court, Claire L’HeureuxDubé, Charles Gonthier and Michel Bastarache, wrote that the law should be upheld—without the exceptions for private use. Parliament, they wrote in their dissent, had rightfully tried to prevent “the harm that flows from the very existence of images and words which degrade and dehumanize children and to send the message that children are not appropriate sexual partners.” Reaction was swift. Justice Minister Anne McLellan termed the judgment “respectful” of Parliament. She added, however, she would review the decision and the legislation in consultation with her provincial counterparts to decide whether amendments should be made to better reflect the limitations added by the court. Joel Bakan, who teaches constitutional law at the University of British Columbia, called it a “Solomon-like judgment. It’s right down the middle. It upholds the law but at the same time meets the criticism that the law is overbroad, by cutting back its scope.” Others, however, were not so accepting. Mark Hecht, lawyer for the Winnipegbased children’s advocacy group Beyond Borders, said the ruling “created a loophole for pedophiles. They’ve essentially weakened our law. Children are less protected today than they were a year ago.”

The Supreme Court upholds the child-pornography law, but with two exceptions

Sharpe: some anti-porn activists say the high court's decision created a legal loophole for pedophiles

Parliament enacted Section 163.(1) (4) of the Criminal Code, the section causing the furor, in 1993 because of intense public pressure to curb the stunning proliferation of child pornography. Once an activity mostly confined to clandestine personal meetings between makers and users, pornography grew exponentially on the Internet. The digital highway offers a dream combination for smut pedlars: high accessibility coupled with anonymity. Ontario police estimate that there are thousands of Web sites devoted to distributing explicit pictures and stories of sex with children. They add it is not unusual to unearth private collections of more than 30,000 pictures.

Det. Insp. Bob Matthews, head of the child-pornography unit of the Ontario Provincial Police, says the law’s possession provisions are essential to police investigations. “It is much easier to get enough evidence of possession to get a warrant and get our foot in the door that way,” he says. “That is when we can uncover evidence of other activity, like making and distribution.” The number of investigations could double overnight, he added, and still barely scratch the surface.

The need for broad interpretation of the possession section also had supporters in the legal community. Daphne Gilbert teaches criminal and constitutional law at the University of Ottawa. She agrees with the three judges who concluded that child pornography is so harmful to children that the law prohibiting possession should be extended to include even private forms of expression. “There are enough safeguards in the section to protect people with other motivations, such as artistic expression or scientific research,” Gilbert added. “The section does not catch parents who are taking pictures of their children in the bathtub.”

For many of the frontline workers who routinely deal with sexually abused children, discussions about the law’s finer points can seem out of touch with the brutal realities. Social worker Lisa Marucci runs The Gatehouse, an old, renovated house in Toronto’s west end where abused children can tell their stories to police and counsellors in a non-threatening atmosphere. She has found that abusers first try to “groom” children for participation in sexual acts by showing them child pornography. Usually, they are five to eight years old when such activity begins. “Child sexual offenders are very skilled at what they do,” Marucci adds. “They work very hard to break down a child’s defences: the porn desensitizes them and convinces them that this is normal.”

As for the OPP’s Matthews, head of Canada’s largest childporn unit, with 14 full-time officers, he said he was very pleased with the Supreme Court’s ruling. Even though police continued their investigations, about 40 cases were stalled in the Ontario court system alone awaiting the outcome of the Sharpe decision. Now, he says, their hands are not tied. Still, that is unlikely to help the officers who, Matthews says, frequently fall victim to the stress of their jobs. Many simply can’t deal with the thousands of sexually explicit images of children. “It tears your heart out,” Matthews sighs, “when you see their faces. When you see that, you know that their innocence is gone forever, and that they will never get it back.” EE]

For links www. macleans.ca