As the federal government prepares to toughen child porno-graphy laws, Egale Canada is keeping silent, despite concerns the proposals unduly threaten freedom of expression.
The group’s board is split on the issue, leaving it with no position, says executive director Gilles Marchildon.
Marchildon says the board debated the issue recently but couldn’t agree on a common stance.
“We have parents on our board who are naturally concerned about the exploitation of children,” says Marchildon. “We have to balance that against concerns about freedom of expression.”
Marchildon says several Egale board members are worried about threats to civil liberties and question whether the bill will actually protect children from harm. Still, because the organization’s bylaws encourage consensus decisions, the board hasn’t been able to form an official position. Marchildon also dismisses concerns that the bill will have particular effects on same-sex relationships.
“There’s a recognition that the bill isn’t an exclusive LGBT [lesbian, gay, bisexual, trans] issue, so it’s not as crucial that Egale weigh in on the debate.”
The proposed law, Bill C-2, would make it easier to prosecute people for possessing child porn by eliminating the artistic merit defence that’s in the existing legislation.
The current law aroused controversy in 2002 when a BC man, Robin Sharpe, was acquitted on child porn charges for fictional stories he had written. The judge in the case deemed the stories had artistic merit.
Tom Warner, with the Coalition For Lesbian And Gay Rights In Ontario (CLGRO), says the new law threatens freedom of expression by removing the artistic merit defence. Now, in order to defend themselves on child pornography charges, people must show that books and pictures must have “a legitimate purpose related to… science, medicine, education or art.”
“It’s a vague term,” says Warner, who worries that judges could interpret it narrowly in order to criminalize books and stories that deal with young people’s sexuality. “It really impinges on the right to create fiction.”
Warner is also concerned that the law, in a backdoor way, raises the age of consent for sex, which currently sits at 14 years of age. That’s because Bill C-2 broadens laws banning sexual exploitation of minors. Currently, the Criminal Code considers sex between adults and youth over 14 to be exploitative only when the two are in a dependent relationship, such as a student and teacher. The new law will allow judges to consider the difference in age between two people as possible groundsfor exploitation.
Warner worries that the change will make it easier for the courts to criminalize otherwise legitimate relationships between gay men of different ages.
“There’s a notion that younger people are lured into homosexuality by older people,” he says. “That opens up scenarios where an older person is deemed to be exploiting someone. It’s almost as though they’re raising the age of consent without actually raising it.”
Marchildon isn’t worried about the age of consent issue.
“My understanding is that [the law] doesn’t raise the age of consent.” He says he’s heard the government strengthened the sexual exploitation laws in order to stave off demands from provincial justice ministers to raise the age of consent to 16.
“It’s being presented as a compromise,” says Marchildon. Since Egale opposes raising the age of consent, he calls the child porn bill “the lesser of two evils.”
In fact, Marchildon says it’s precisely the sexual exploitation piece that has got the parents on Egale’s board supporting the bill. “They want to ensure that there is adequate protection for young people in any kind of relationship, and many believe that any legislation that purports to do that is a good thing.”
In 2002 the federal government introduced a law similar to Bill C-2, but it died after the last election. Laurie Arron, Egale’s director of advocacy, says the group lobbied the government at the time to add in provisions making the age of consent for anal sex the same as for other types of sex.
Bill C-2 has passed first reading in the House Of Commons and is expected to go before a parliamentary committee in the next few weeks.
Marchildon says Egale could reconsider its stance when the board holds a retreat in the spring.
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