Porn studies at Canadian universities have recently attracted heated debate. But the conversation has so far overlooked that nothing less than our liberty as citizens is at stake. As a criminal lawyer and former prosecutor who has spent many years wrestling with our obscenity laws, I for one welcome porn studies because the criminal justice system needs the insight porn studies can provide.
Our criminal obscenity law says producing and distributing porn may land you in jail. Serious stuff indeed. And any worthwhile criminal prohibition must be accompanied by three things: a responsible social consensus that it is the right thing to do; a reasonably clear definition of offending behaviour, so people know where they will cross the line; and informed police and prosecutors to enforce the law fairly. Yet despite my many years of deep involvement in criminal obscenity law, I remain unsure we have any of those three.
When Victorian era prudery was the social and legal order of the day, things were easier for criminal lawyers. Oppressive, but easier. Back in the day, most explicit visual representations of sex acts were criminally obscene. When did we outgrow this stifling regime of state imposed morals? Surprisingly, not until 1992, when the Supreme Court of Canada, in the landmark case of R. v. Butler, finally recalibrated the obscenity compass. The Court took a giant leap forward and said criminalizing sexual imagery just for being explicit was misguided. The Court announced instead a more enlightened test: is the impugned imagery harmful?
The switch from an oppressive standard of explicitness, to a standard of harm, offered great potential for obscenity law to focus on protecting victims, and stop policing morality. So where have we journeyed in 22 years since the Butler case? Nowhere.
Once the Supreme Court ruled explicit depictions of sex are not necessarily illegal, police and prosecutors had to articulate a theory of harm for their obscenity cases to succeed. This proved notoriously difficult because as one judge famously remarked, criminal justice professionals do not have their finger on the pornographic pulse of the nation. To complicate things further, shortly after the Butler decision came the Internet revolution, with its tidal wave of explicit porn. So, lacking social consensus or guidance on what porn is harmful and why, and facing an electronic tsunami of pornography, law enforcement quietly walked away from obscenity enforcement altogether. Law enforcement turned its attention instead to the related but very different law against child abuse images, a much more productive line of work.
And that is where we are today. The obscenity law remains on the books, but is a dead letter.
Should the obscenity law remain a dead letter? I don't know. On the one hand it is a dangerous game to criminalize any expression, because that smacks of thought control by the state. And we should be particularly skeptical about any attempt to suppress sexual expression, because our sexuality speaks so deeply to our identity. On the other hand, we and most other Western democracies do criminalize hate speech, and harassment, because these forms of expression hurt people badly. So is there also a place for criminalizing some sexual expression that creates real victims? Can we responsibly articulate why some pornography is so harmful its producers should face jail? As long as the obscenity law remains on the books, these are essential questions. And the best way to address them is rigorous academic research and debate.
Academics at their best are thought leaders, and we desperately need thought leadership around obscenity. Porn studies, approached with standards of openness and excellence we rightly expect of Canadian universities, have great potential to address the three essential questions that determine the legitimacy of our obscenity law. Can a responsible social consensus on why obscenity is harmful be identified? If so, that social consensus can drive an updated definition of what is and is not obscene, and drive education of law enforcement to apply the obscenity law appropriately. But if porn studies reveal no responsible consensus on any harms caused by any types of pornography, our obscenity law becomes an historic anomaly we should thoughtfully abandon. Either way, porn studies can make an important contribution to a perplexing criminal justice issue. And that would be a great improvement over where we are now, with law enforcement tacitly ignoring the law, for want of guidance and insight.
David Butt is a criminal lawyer. He was one of the lawyers who argued the Butler case in the Supreme Court of Canada and has conducted many obscenity cases since.