Judge is getting death threats

Oddly, defending kiddie porn is not a popular past-time

Defending kiddie porn is not very popular. And I’m not going to. But the near hysteria that erupts when child pornography is so much as mentioned has shut down any and all rational discussion.

Mr Justice Duncan Shaw, who struck down the law that prohibits the possession of kiddie porn, is now receiving death threats.

The British Columbia Supreme Court judge ruled that the legislation violates the right to freedom of expression as protected by the Canadian Charter Of Rights And Freedoms.

The law had been challenged by John Robin Sharpe, a 65-year-old child porn advocate charged with possession.

Shaw’s decision – and his reasoning – has provoked public outrage. The BC attorney-general almost instantaneously announced an appeal, and the federal minister of justice announced that she’d defend the constitutionality of the law.

Admittedly, some of Shaw’s findings are offensive to most. Take his discussion of the ways in which paedophiles use porn – suggesting that sometimes, “highly erotic pornography… [may] help some paedophiles relieve pent-up sexual tension.”

This isn’t exactly a winning argument in the court of public opinion.

But there are serious problems with the child pornography law – serious problems that are being obscured by the single-minded focus on the use of porn by paedophiles.

The law was raced through Parliament in 1993 with neck-breaking speed. And the impressive and reputable voices of opposition – the CBC, the Canadian Civil Liberties Association, the Canadian Bar Association – were ignored.

These voices of opposition were not defending child pornography or paedophiles. They were opposing a law that was drafted too quickly and too dangerously.

The definition of “child” and the definition of “pornography” are just too broad.

A “child” is defined as anyone under, or appearing to be under, the age of 18. So, it might criminalize a youthful 25-year-old woman posing seductively with a lollipop and pig tails…. And it includes what homosexuals – and AIDS activists – would consider to be healthy portrayals of teenage sexuality.

“Pornography” is also defined very broadly. It includes not only photographs in which real children are used, but also something that is entirely the product of imagination. Like a doodle or a short story.

Then the law goes on to criminalize not only the production, sale and distribution of this material, but also its possession. This makes it different from the law regulating other porno that the state finds unacceptable, which only criminalizes production, sale and distribution.

What we have, then, is an extremely broad category of materials that are illegal to simply possess.

“Who cares?” asks the indignant citizen. “Kiddie pornographers and paedophiles deserve no rights!”

Well, that’s a different debate. But the point here is, the law is so broad that it could very easily capture folks who are neither kiddie pornographers, nor paedophiles.


In fact, the category is so broad that people could possess child pornography without even realizing it. That’s a problem. A problem of over-kill.

Look at Eli Langer, the Toronto artist charged under the child pornography law. After a lengthy and expensive trial, his work was found to have artistic merit, and he was acquitted.

Supporters of the law argue that artists like Langer who push the boundaries simply run the risk that they will have to defend their work in court.

But, it isn’t clear what any of this has to do with child pornography – real child pornography – in which young children are sexually abused in the production of explicit images.

A law could be drafted that defined child pornography with greater precision. If the definition was more directly targeted to material that abused children in its production, a law criminalizing its possession could withstand constitutional scrutiny.

But, these are exactly the kind of arguments that are increasingly difficult to make. Speaking out against the child pornography law has become sacrilege. It runs into a wall of public hostility and outrage that seems almost pre-rational. Amidst the current hysteria, simply speaking out against the child pornography law makes you a paedophile (or perhaps just an idiot, as some of the calmer criticism directed at Justice Shaw seems to suggest).

No doubt, some of the folks who speak out against the law are pedophiles (and some may be idiots).

And Robin Sharpe – a self described free thinking libertarian who believes that adult-child sex is acceptable if the child consents – is not exactly the best poster boy for a rational discussion of the limits of this law.

But, in spite of Robin Sharpe (and the others like him who may only contribute to the worst homophobic stereotypes of gay men as raving paedophiles), there are some serious problems with the child pornography law. And these problems need to be politically and legally debated, without risk of death threats.

Brenda Cossman

Brenda Cossman is a professor of law at the University of Toronto, the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press) and a former board member of Pink Triangle Press, Xtra’s publisher.

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Power, Justice, Toronto, Human Rights

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