Canada needs obscenity laws. Just not anyone to enforce them.
That’s the stand the Women’s Legal Education And Action Fund (LEAF) will take when the feminist group intervenes in the Little Sister’s bookstore censorship court case next year.
“What we don’t support is the current system of Customs in control,” says Karen Busby, legal counsel for LEAF. “We haven’t taken a position whether we should have a system at all.”
LEAF was accepted this month as an intervenor in the high profile obscenity case. That means the group will be able to make arguments when the long-awaited case makes it to the Supreme Court Of Canada – likely next spring.
(LEAF was granted intervenor status along with five other groups – including the homo rights group Equality For Gays And Lesbians Everywhere and Equality Now, an anti-porn women’s group based in the US – which argued that it had an interest in the case’s outcome.)
In the Supreme Court’s 1992 Butler decision, LEAF helped get sexually explicit material that’s considered “degrading and dehumanizing” to be obscene.
The ruling was immediately used to quash gay and lesbian porn. An issue of the lesbian sex mag Bad Attitude was declared illegal, as was vanilla gay porn showing strangers having sex.
“In hindsight, we could have done a much better job in Butler,” Busby says. “LEAF didn’t take into account sexual minorities. [The position] was very sex negative.”
This time around, LEAF will argue that Canada Customs officials shouldn’t have the power to decide what is obscene.
“It would be difficult to come up with a Customs system that would take into account gays and lesbians,” Busby says. “Even judges are not likely to understand the materials…. We’re saying: If you don’t understand the materials, then they’re not obscene.”
Though no one seems capable of handling obscenity laws properly, LEAF isn’t ready to let go of them.
“We are going to argue for obscenity law in some circumstances. Obscenity law should cover a relatively small set of materials,” she says. “Not all sexual imagery can be captured under criminal law.”
Part of LEAF’s position – which Busby says is not fully developed – will be that explicit material should be viewed in its context. That might lead to double standards – lesbian SM porn would be okay when viewed by lesbians, but not necessarily so when viewed by straight men. But that’s the only way sexual minorities will survive against the majority.
“One thing that obscenity law provides for is an imaginary national community standard. We’ll argue that reliance on a community standards test is incompatible with recent case law in equality,” Busby says. “Because what it will approve of is what the majority approves of.”
LEAF put together its position based on four meetings it held across Canada this spring. Busby guesses that the turnout was 90 percent lesbian.
Janine Fuller, manager of Little Sister’s bookstore in Vancouver, is glad to have the group as a friend – and not an enemy.
“LEAF is a well considered force in the Supreme Court,” Fuller says. “I’m glad they’re participating and they have acknowledged the impact on our community.”
Why you can trust Xtra
