The feds are again trying to crack down on child pornography. Their Bill C-2 proposes to amend the definition of child pornography, to increase sentences and to narrow the available defences for people accused of making or possessing child pornography.
And here’s the thing: the reforms are totally unnecessary.
The bill tries to do several things. It would broaden the definition of child pornography to include audio formats and written material that describes prohibited sexual activity with children. Canada’s definition of child pornography is already pretty broad since it is not restricted to material that involves or appears to involve actual children, but also includes works of the imagination like art and comics.
The current law only prohibits written material that counsels sex with children. Bill C-2 broadens that definition to include other written material, like fiction that doesn’t directly tell folks to have sex with children, but rather merely describes it.
As well, Bill C-2 will narrow the defences available to anyone charged with child pornography. Under the old law, the Supreme Court of Canada said that anyone charged with child pornography must have a defence of artistic merit available to them. But in the court of public opinion, that defence was considered too broad.
Bill C-2 replaces the artistic merit defence with something called the “legitimate purpose” test. This defence would be available if the material in question serves a legitimate purpose related to the administration of justice, or to science, medicine, education or art; in addition, the act in question must not “pose an undue risk of harm to persons under the age of 18 years.”
If this sounds like déjà vu, that’s because it is. The last attempt to toughen up the kiddie porn law by broadening the definition and narrowing the defences went down with the last government.
This time we have “legitimate purpose” instead of “public good.” While the change in wording sounds like legal mumbo jumbo, it’s important, since it is the only defence that anyone accused of child pornography will be able to make. But the meaning of “legitimate purpose” is no more clear than “public good.”
What is clear is that it will significantly narrow the available defence. Any material deemed to be child pornography-and under the proposed definition it could now include a novel or a short story-would now have to be shown to have both a legitimate purpose and to not pose a risk of harm to minors.
If past court definitions of harm are any indication, “a reasonable apprehension” of harm is good enough. Any material already deemed to be child pornography is very likely to be considered to have a reasonable apprehension of harm. It’s child porn because it’s harmful (the definition) and it’s harmful because its child porn (the defence).
Unfortunately, it’s a logic circle that doesn’t really do anything to protect children from real harm. Bill C-2 is political opportunism operating at its highest level.
Let’s take an example. Michael Briere, the man who got a life sentence for the 2003 murder of 10-year-old Holly Jones, said that watching child porn downloaded from the Internet made him do it.
But, we don’t need a new law to crack down on the Michael Brieres: the stuff he was downloading fits clearly within the existing definition of child pornography; there is simply no question of an artistic merit defence. Briere would have easily been found guilty of possession of child porn. The problem with the current law is that the police can’t enforce it, not that it’s not broad enough, or gives child pornographers too many defences.
But arguing against toughening the child pornography law takes a strong stomach, since no one wants to be seen to be defending kiddie porn. As soon as the issue is raised, all reasonable argument stops.
Though C-2 achieves little, it casts its net so broadly that it is going to capture material well beyond real images of real children having real sex. It might easily include a novel like Lolita, an art film that depicts explicit teenage sexuality or even an AIDS educational video. Each one may have an artistic or educational purpose, but each one would also have to get over the test of its risk of harm to children. It’s uncertain they could.
Artists, writers and gay activists have all been thrown back into the pot of potential child pornographers. Why is the federal government so intent on keeping us there?
* Brenda Cossman teaches law at University of Toronto. She is a member of the board of directors of Pink Triangle Press, which publishes Xtra West.
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