Hiding the evidence

I wanted to see everything filed with the British Columbia Court Of Appeal in Robin Sharpe’s challenge to the child pornography law.

Assuming that anything relied on heavily by the BC provincial government, in unsuccessfully defending this law, would be available for inspection, I simply asked.

And was told no.

So Xtra West, this newspaper’s Vancouver sibling, was forced to hire a renowned human rights lawyer to argue before Justice Lance Finch that I should be allowed to see nothing more than what the original judges had been asked to look at in deciding the case. (Materials which, it is presumed, the Supreme Court Of Canada will also be looking at Tue, Jan 18, when it hears the appeal.)

The lawyer for the provincial government, John Gordon, argued at a Nov 8 hearing that some of the materials I wanted to see “constitute child pornography.”

Justice Finch wanted to know what conditions should be part of any order granting me access. Gordon suggested that I not be allowed to express an opinion as to whether or not the materials in the court file are child pornography.

I suddenly realized why our constitution limits the government’s ability to tell us what we cannot say, what we cannot make and what we cannot own.

As my freedom of expression was in real danger, I remembered that governments are all too often hostile towards the very individuals they serve, especially when those individuals are challenging the government or holding it accountable for its actions. Nothing could make that more obvious than when that lawyer for the provincial government made it clear that he, as an agent of the state, wanted to be able to stand up in public and say that the materials in the court file are child pornography, but I, as a citizen and journalist, should not have that same right. Or the right to say the opposite.

Justice Finch rejected the request that I be silenced.

I did get to see the materials. What’s interesting is that all the photographs and drawings that could possibly be considered child pornography, as that term is presently defined, had been filed at the original hearing by the BC government. And they had all been selected from the materials seized from Robin Sharpe.

All the images are of males and most are of teenagers posing by themselves, sometimes erect, sometimes touching themselves. There is one very nice line-drawing of a hairless angel, with a hard-on.

As far as I can recall, the only image of actual sex is of two older teenagers 69ing.

Some of the models look very uncomfortable, some look delighted.

We’re talking about a couple of dozen photos and a few drawings. It is hard to tell from the poor photocopies of the photos how old the boys are. I would guess as young as 13 and as old as early twenties. Most seem to be between 14 and 18.

There were pages and pages of Sharpe’s writings.

It’s hard to understand why the government, in defending a law that outlaws everything from pictures of the actual rape of a five-year-old girl to a drawing of consensual teenage lesbian oral sex, would rely on such a small, unrepresentative sample of images.

I can only guess that they did not expect a retired man, without a lawyer, to convince a judge that the child pornography law is unconstitutional. One doctor and one cop as witnesses, plus a bunch of relatively innocuous images, does not make for a very energetic defence. That may explain why the BC government has been in such a panic ever since.

My personal experience with government attempts to shut me up remind me that this is not the first time that BC has been hostile to a full and frank exploration of the issues raised by the child pornography law.

The British Columbia Civil Liberties Association (BCCLA) intervened by trying to show how the law specifically discriminates against gay male teenagers. BC responded to this important issue by saying that, because Sharpe’s side had not raised that issue, the BCCLA could not make that argument on its own and the court should ignore it.

They didn’t say that the issue isn’t important, but instead relied on a technical rule of procedure in an attempt to shut down any consideration of this flaw in the law.

In her judgment, Justice Mary Southin stated that one of the reasons that the law making it a crime to simply possess child pornography is unconstitutional is that the law relies, in part, on the assumption that the discriminatory age of consent for anal intercourse is constitutionally sound – which it is not.

It is important to understand how the anal intercourse law and the child pornography law work together to limit the freedom of expression of gay teenagers. The law says that, unless you are married, you have to be 18 to have anal intercourse. Other laws set the age of consent, in most circumstances, at 14.

When Justice Rosalie Abella of the Ontario Court Of Appeal declared in 1995 that the higher age of consent for anal intercourse is a violation of the equality rights of gay teenagers, she reminded us that one of the bizarre effects of this discriminatory law is that safer sex information geared towards gay teenagers may be illegal.

That is because, under one section of the child porn law, it is a crime to publish material that counsels someone to have illegal sex. Counselling gay men under 18 to go out there and fuck safely might be considered counselling them to commit a crime.

A Quebec photographer was asked to create a safer sex pamphlet for gay teenagers. He didn’t want the pamphlet to preach. He wanted the pamphlet first to show gay teenagers that fucking could be a really wonderful experience and they didn’t have to feel ashamed about it. He figured gay teenagers were more likely to adopt safer sex practices if they felt positive about the sex they were having. The use of condoms would just be part of the photo story.

So he photographed a group of gay teenagers fooling around, putting on condoms and posing as if they were fucking. When he delivered the pamphlet, he was told it could never be published because it would be considered child pornography.

We shouldn’t be surprised by BC’s fear of having the issue of how the child porn law specifically impacts on gay teenagers raised and discussed as part of this case. After all, this is the same provincial government that continues to approve charges under the anal intercourse law – even though three courts in Canada have found that it is unconstitutional.

The BC New Democratic Party government is also hostile to the criticism that the child porn law makes criminals out of teenagers who create nothing more than a record of their own consensual, legal sexual experiences.

The government believes it is a legitimate exercise of state power to prosecute and punish teenagers for taking nothing more than sexual Polaroids of each other.

In their written arguments, government lawyers gave a number of justifications for attaching the label of child pornographer to those young persons. Most telling, they reminded the court that just because teenage sex is legal, doesn’t mean that “society actually condones the activity.”

You don’t have to look very far to find evidence that young people are regularly making and sharing sexual images of themselves. That’s what they’re doing on Internet chat services.

Not only do some teenagers create sexually explicit images, but making and collecting those images can be very important to them. That is especially true for young gay men and lesbians. Recording moments in our early coming out years can help fight back the shame, fear and social stigma of being a young gay or lesbian person in a homophobic world. I did it by writing coming out stories (although not very good ones, I’m sorry to say). A friend, who could hardly read or write, did it by taking Polaroids of his first boyfriend posing with his hard cock sticking out the side of his 1970s Adidas shorts.

Those recorded moments of an important, exciting and frightening time in our lives – are part of our family histories. No one, especially the state, has the right to tell us that we cannot make and keep records of those days of our lives.

No one should be surprised by the hostility to the idea that teenagers should have the same rights as adults to record private moments in their lives. After all, this is the same provincial government that wants the general age of consent raised from 14, where it has been since 1892, to 16.

They want to be able to ignore the decisions of 14- and 15-year-olds to choose their sex partners because they lack “maturity,” as BC Attorney General Ujjal Dosanjh has said. By the way, that is the same attorney-general who heads a ministry which regularly asks the courts to transfer “mature” 14- and 15-year-olds charged with certain crimes out of the youth court system so that they can be tried and sentenced as adults.

There is no doubt that the government lawyers working on the case believe in their struggle to keep this law alive. But what is unacceptable from my own government is the attempt to stop discussion of important issues affecting gay youth.

The irony is that I am theoretically in favour of a law that makes it a crime to possess certain images of child abuse. However, I am only willing to give the state that power if it can be trusted to apply the law in a fair and just manner. Regrettably, from my own experience, I have no faith in our provincial government to do so. So, as three judges have already decided, they shouldn’t have that power.

A friend told me he would prefer if the gay press just ignored this case, because associating ourselves with it can only reinforce the stereotype that gays are child abusers.

We need to watch this case closely because the Supreme Court Of Canada may set new rules for sexual freedom and privacy. Except for the mentally disabled, gay men and lesbians know better than anyone the harm caused by the failure of the law to respect legitimate sexual rights.

We should be wary of any law that limits those freedoms. And if the behaviour of British Columbia in defending this law is any indication, we still have reason to be concerned about the respect that our government is willing to afford gay and lesbian sexuality.

Silence may equal death, but not listening may be just as dangerous.