Here's a bad idea: Let's drop the defence of artistic merit from the federal law against child pornography.
Concerned by the electronic stalking of children and the sexual exploitation of young adults, the government is considering Bill C-20, a child-protection measure that would amend the Criminal Code in these areas. This week, Parliament's standing committee on justice and human rights began public hearings on the bill, which has already passed second reading. The bill, first unveiled late last year, adds the offence of voyeurism to the code, broadens the definition of sexual exploitation of people over 14 (the age of consent) but under 18, and closes what many believe is a loophole in the child pornography law.
Trouble is, one person's loophole may be another person's sole defence against an unwarranted attack on legitimate art.
The so-called loophole was exposed in 2001 when the Supreme Court of Canada upheld the controversial acquittal of retired Vancouver planner John Robin Sharpe on some child-pornography charges, accepting that his unpublished writing describing scenes of sado-masochism between children and adults were works of the imagination that, while morally repugnant, could lay claim to the artistic-merit defence. The cries of outrage could be heard across the land -- that's not art, that's filth, the public hollered -- and politicians set to work to appease them.
At first blush, it may appear that Sharpe's situation was an example of the old adage that hard cases make bad law: Here was a known pornographer, who had been very publicly fighting for his right to possess and distribute sexually explicit photographs of young boys, who got acquitted because some of his loathsome material fell into a grey area.
Truth is, the Sharpe case produced some good law.
First, it allowed the courts to define the artistic-merit defence. And clearly those words don't mean the same thing to judges that they do to art critics. The courts didn't say Sharpe was making good art, they just ruled that the work could be deemed to have some artistic value, however small.
They also ruled that since this work, which didn't use minors in its creation, was solely intended for Sharpe's personal use, he wasn't doing children much harm in this instance.
Second, the Supreme Court upheld the child pornography law itself, which a B.C. court had earlier ruled unconstitutional. Police then proceeded successfully with charges involving the photographs of adolescent boys, which did abuse the children involved, and got their conviction. (The ailing Sharpe was only sentenced to four months of house arrest, which also prompted howls of outrage, but that's a separate issue.) So, the law had trod a fine line, maintaining freedom of expression while convicting a pornographer.
This, however, was not enough for the stomp-all-over-it lobby still outraged that the word art might cover something that issued from a convicted pornographer's hand. Something had to be done: Hence Bill C-20, which replaces the artistic-merit defence with the much vaguer one of public good.
The current law against child pornography is already alarmingly sweeping: Any depiction with a sexual purpose of minors, or people who appear to be minors, engaged in sexual activity is deemed pornographic. In theory, this could leave every production of Romeo and Juliet, a play in which the heroine is clearly identified as under 14 and shown in her marriage bed, to defend its artistic merit in the courts. In practice, the art that is more likely to run afoul of the law is contemporary work exploring the sexuality of teenagers or depicting their sexual abuse, including that created by young people.
The artistic-merit defence can at least be argued by bringing artistic peers, critics and academics into court, but how do you prove the public good of an individual art work -- no matter how much you might believe in the public good of art in general? The term is depressingly reminiscent of the so-called community standards used in U.S. courts, and communities are notoriously bad at judging avant-garde art. No 19th-century French judge asked to rule on the public good of Manet's notorious Le Déjeuner sur l'herbe would have had much doubt that the painting showing a naked woman dining with clothed men had none.
Of course, not every artist is a Manet, but every artist, good, bad or indifferent, has the same right as any citizen to explore human sexuality through the imagination. The fear that legitimate art will get caught in the ever-widening child-porn net is not some morbid fantasy of civil libertarians. Since the current legislation came into effect, two artists have faced exactly that situation. In 1995, a judge dropped child-pornography charges against Toronto artist Eli Langer who had been forced to explain the artistic purpose of his paintings depicting minors in sexual situations with other minors and adults. This year in Halifax, the mere threat of charges was enough to force artist Lyla Rye to stop exhibiting a video that showed her and her baby daughter singing into each other's mouths.
The justice committee is hearing this week from groups as diverse as the Evangelical Fellowship of Canada, the Canada Family Action Coalition, the Canadian Conference of the Arts and the writers' unions of both Canada and Quebec, but advocates for the arts believe the MPs are determined to push the law through. Their best hope is that the committee can be convinced to submit the proposed legislation to the Supreme Court for an opinion and that the judges will point out the problems in defining public good. However you define it, it's not going to be well served by squelching provocative artists.
Kate Taylor