U.S. lawmakers are taking a cue from a far-reaching Canadian Supreme Court ruling that redefines pornography in terms of what triggers harm and violence toward women rather than what offends public taste.
The brief arguing for the change was presented before the court by the Canadian Women`s Legal Education and Action Fund, which lobbies on behalf of women`s legal issues, and was drawn up by fund members with the advice of Catherine MacKinnon, a University of Michigan law professor specializing in the legal relationship between pornography and violence against women.
The Canadian court decision is the first time, MacKinnon says, ”that the supreme court of any country has defined what is obscene as what is harmful to women. In Canada it now is recognized as fact that pornography harms women. This law was built on the theory that pornography is causal in promoting assault.”
MacKinnon also is a supporter of the controversial Victims` Compensation Bill, now before the U.S. Senate Judiciary Committee, whose primary sponsor is Sen. Mitch McConnell (R-Ky). MacKinnon served as an adviser in the early stages of drafting the measure.
McConnell`s bill also is based on the idea that pornography causes harm to women, but the measure`s emphasis is on a provision allowing victims of sex crimes to claim damages from pornographers if they can establish a link between the crime and the obscene material.
The proposal has been nicknamed the Bundy Bill, after serial killer Theodore Bundy, who was executed in Florida in 1989 for the 1978 murder of Kimberly Leach. In Bundy`s final interview, he said his gruesome killings of women were inspired by hard-core pornography.
”Pornography is fueling violence, and it`s time that pornographers were held accountable for the harm they cause to women and children,” says Scott Sowry, a McConnell spokesman. ”We must recognize that sex crimes do not occur in a cultural vacuum.”
”I was very encouraged by the Canadian Supreme Court`s ruling that pornography harms women as the rationale for upholding its criminal obscenity law,” says McConnell. ”In pursuing my pornography victims` compensation act, I hope to empower victims of heinous sexual crimes, and deter the proliferation of violent, hard-core pornography and hopefully prevent some of these terrible crimes that are inflicted on women and children.”
But McConnell`s proposal is under attack from groups, including feminists and entertainers, who see it as an infringement of the free-speech rights of the 1st Amendment and who are wary of blaming sexual violence on pornography. Diane Walsh, president of the New York City chapter of the National Organization for Women, says ”We`re against this bill because it`s a double- edged sword.”
”When something like (this bill) goes into effect, it`s not the white men who peddle the violent pornography that they go after, but the first ones they pursue in any kind of censorship will be women and lesbians-minority groups.”
”We are opposed to the bill,” says Robert Peck, staff member of the American Civil Liberties Union in Washington, ”because it violates freedom of speech. Under the 1st Amendment (even) sexually oriented speech is protected.” The proposal, says Peck, would set a precedent in which people convicted of sex crimes can argue that they are not responsible for their actions. ”Under American law, you do not have criminal intent if someone else encourages you to (commit a crime). This law would enable people to argue that a substantial cause of their crime is a book, magazine or video,” he says.
Danny Goldberg, senior vice president of Atlantic Records, told Entertainment Weekly ”If this bill had been around at the time of the Manson murders, the Beatles would have been prosecuted for `Helter Skelter.”`
But lawyer MacKinnon discounts the critics.
”One of the lies being spread about this (McConnell) bill is that it takes responsibility away from the rapist and the murderer,” she says. ”That is not true. It makes them additionally responsible. The issue here is what harms women. It is not morality. It is not sex.”
In the ground-breaking Canadian decision on Butler vs. Her Majesty the Queen, the court unanimously ruled from Ottawa in late February that the more strict anti-obscenity law is constitutional, even though it limits freedom of expression because the right of women to be protected from violent and degrading material and its effect is more important than what it terms abstract notions of free speech.
The case reached Canada`s highest court in an appeal involving the owner of a Winnipeg, Manitoba, video store who had been prosecuted for selling hard- core material. Donald Victor Butler argued that the videos and magazines he sold were covered by the guarantee of freedom of expression under the Canadian Charter of Rights and Freedoms, which was passed in 1982.
In its written response, the high court emphasized that what is at issue is ”the undue exploitation of sex, the degradation of human sexuality … (and this) activity is not one which the Charter was designed or intended to protect.” Rather, freedom of speech is that ”whose purpose is to ensure that thoughts and feelings may be conveyed freely in non-violent ways without fear of censure,” it continued. The court`s report is adamant that pornographers ”cannot hide behind the label `film` to claim protection for the reproduction of activity the sole purpose of which is to arouse or shock.”
The high court ruling also adds that children can be victims of obscene material, and less often, men.
”If true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material,” Justice John Sopinka wrote. ”The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm, in this context, means that it predisposes persons to act in an antisocial manner as, for example, the physical or mental treatment of women by men, or what is perhaps debatable, the reverse.”
The court recognizes that there is no single cause for violence against women, but that ”the harm (is) engendered by negative attitudes against women. The role of the … provision is to control the dissemination of the very images that contribute to such attitudes.”
In addition, Sopinka gave guidelines for judges who must decide future obscenity cases, writing that ”among other things, degrading and dehumanizing materials place women-and sometimes men-in positions of subordination, servile submission or humiliation. They run against the principles of equality and dignity of all human beings.”
Sopinka went further in clarifying what the Canadian criminal code means when it states that a publication is obscene when its dominant characteristic is ”the undue exploitation of sex.”
”The portrayal of sex with violence will almost always constitute the undue exploitation of sex,” he wrote. Material that is merely sexually explicit does not violate the law.
In Canada, the new interpretation of obscenity has been opposed by gay activists who say the ruling leaves the discretion of what material to prosecute to the judgment of an individual police officer.
More than 1,000 homosexual demonstrators marched in protest in Toronto last month when police removed a lesbian magazine called Bad Attitude from the shelves of the Glad Day Books store, in a seizure of the first gay publication to be charged with obscenity under the new law.
”The police are using us a test case,” says Jeff Moore, spokesman for Glad Day Books. ”They are trying to establish some kind of precedent by taking a lesbian magazine to court. If they manage to prosecute something as relatively harmless and playful as Bad Attitude, it will pave the way for the prosecution of almost any other gay publication.” (Bad Attitude publishes photos of sado-masochistic acts between women.)
Activists also argue that the new interpretation of obscenity is confused because it springs from a case involving only heterosexual pornography and doesn`t make allowance for homosexual material.
But those responsible for drafting the language of the new law argue that it is designed to protect people from the effects of violently obscene material and is not an effort to target gays.
”The Butler case decided that our obscenity law cannot be struck down on the basis of freedom of expression,” says Kathleen Mahoney, the lawyer who argued the case before the court on behalf of the Women`s Legal Education and Action Fund. The issue of freedom of speech was discussed in detail by the court, she says, ”but our court said that where harm is obvious and foreseeable, then freedom of expression cannot outweigh women`s interests.”
”The court decided that pornography depicting violent sex harms women and children,” says Mahoney, ”And the issue of harm is going to be a very difficult thing for anybody to avoid in any future discussion in our country or elsewhere in terms of violence against women. It is an international issue, no question about it.”
It remains to be seen how the Canadian high court ruling will affect the prosecution of obscene material in the lower courts.
The task of deciding which materials to take to court in the province of Ontario will fall to officers in Project P., a joint Toronto and Ontario anti- pornography police unit, the only vice squad of its kind in Canada.
”We have to try and interpret what the court decides,” says Det. Sgt. Bob Matthews, officer in charge of Project P. ”One of the areas that is still left open to interpretation is what (the court decision) meant by `degrading materials.` And it won`t be until we`ve had more court decisions dealing with actual material and the term `degradation` that we will be able to say with any real certainty what is degrading material and what isn`t.”
