“And of course determining the intention and level of explicitness of a production (two elements of concern in the [American] legal classification of obscenity) doesn’t even begin to take into account the working conditions under which an image was made or the sociopolitical impact of the finished piece. In my mind, it is these last two categories that must be examined in order to determine the moral and ethical justness of that image (two elements that are ostensibly of concern to groups as disparate as feminists, ‘compassionate conservatives’, and cultural pundits)” [emphasis added].
– Lorelei Lee, Writer and Adult Film Star
In the previous entry, I referenced a story from the Biblical book of Genesis in which the patriarch of the world’s three largest religions pleads with his God to spare two decidedly wicked cities if even ten righteous individuals could be found within them. “Far be it” from God, pleads Abraham, to allow the “righteous [to] fare as the wicked.” Indeed, God seems to agree with him; Sodom and Gomorrah will be spared for the sake of even ten righteous people if such are found to dwell there.
Whether we take this story as history or mythology, the wisdom contained in this passage is something that has persisted in our policy thinking. In brief, if we insist on using the law to address a social problem, the law’s attack on that problem must be confined to the problem itself. To use Canadian legal language, our laws can be neither overbroad nor disproportionate. We musn’t salt the flowerbed if our primary concerns are with weeds.
I became aware of the Girls Do Porn decision shortly after I had been given permission to begin my research on a then-hypothetical phenomenon that I now refer to as “pornography trafficking.” I approached graduate research with something of a hypothesis that I would subject to a series of factual and analytical tests. The hypothesis was, and continues to be, as follows: as pornography becomes easier to produce and monetize, human traffickers will begin to explore this medium as a way of exploiting women for sex work.
At the time my university approved my research direction, the Girls Do Porn case had not yet been decided, nor was I aware of any concrete analogous situation. I was aware that some advocates and experts asserted there was overlap between trafficking offences and the pornography industry, and I imagined that the pornography industry likely suffered similar problems to the sex industry generally, but beyond this, I was aware of little concrete information at the time. I had merely developed a hunch derived from all the pieces of the puzzle appearing to float into view, waiting for someone more opportunistic than myself to put them together. Imagine, then, my bewilderment when it came to light that the Girls Do Porn enterprise is a “textbook” example of the phenomenon I hypothesized at the beginning of my research. Unscrupulous men had seen what I had seen, and they had – as expected – profited handsomely from their discovery.
If we are to take seriously this eminently modern form of human exploitation, it stands to reason that such a pursuit requires a review of our existing policy approaches to analogous situations to see what more, if anything, can be done to draw up the weeds from our flowerbed.
The core of my suggested remedy to the emerging problem of pornography trafficking draws from legal theory underpinning the (in)famous Nordic Model approach to the sex trade. The Protecting Communities and Exploited Persons Act, enacted by the Federal Government 2014, implemented this theory into Canadian law following the Supreme Court of Canada’s decision in Bedford v Canada, placing criminal liability on those who seek to “[obtain] sexual services for consideration.” In brief, it criminalizes the demand for sex work, rather than the industry workers themselves. I surmise that the pornography industry could benefit from a similar, appropriately nuanced approach.
The legislative hypothesis I am exploring in my research is as follows: it should be an offence in Canada to produce, distribute, sell, possess, access or cause to be accessed any pornography (a) where the subject of the media has withheld or is depicted as having withheld consent to the sexual act in question; and (b) where the subject of the media has withheld consent to the pornography’s distribution.
In effect, this legislation would place criminal liability on those who view pornography produced by traffickers of the individuals they traffic.
Alcoholism Keeps the Distillery Open
In Canada, we already approach one genre of pornography this way: child pornography. Upheld as constitutional by the Supreme Court of Canada in 2001, section 163.1(1)-(7) of Canada’s Criminal Code prohibits making, distributing, possessing or accessing “child pornography” as defined in subsection (1). At issue in Sharpe was the constitutionality of subsection (4), the possession offence, assessed against the Canadian Charter right of Freedom of Expression. In upholding its constitutionality, McLachlin CJ (as she then was) found that the evidence revealed that a prohibition of mere possession of child pornography justified violating the Charter-protected right of freedom of expression. In making this finding, she found that child pornography “promotes cognitive distortions”, “mak[ing] the abnormal seem normal and the immoral seem acceptable” (Sharpe, para 88). She also found that child pornography “fuels fantasies that incite offenders” (Sharpe, para 89). In particular, she says:
“Some studies suggest that child pornography, like other forms of pornography, will fuel fantasies and incite offenses in the case of certain individuals” [emphasis added] (Sharpe, para 89).
The Court additionally found that child pornography is used for the “grooming and seduction of children” (Sharpe, para 91), that some child pornography is produced using real children (Sharpe, para 92), and that the fact of possession of child pornography being an offence equips police to help reduce its production, distribution, and use, thereby protecting children from harm (Sharpe, para 90).
Of particular note for our purposes is McLachlin CJ’s insight that criminalizing the possession of child pornography addresses the root cause of the abuse of children at issue in child pornography: the market. On this point, she says:
“Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it involves…. Here, the evidence amply establishes that criminalizing possession… not only provides additional protection against child exploitation – exploitation associated with the production of child pornography for the market generated by possession and the availability of material for arousal, attitudinal change and grooming – but also reinforces the laws criminalizing the production and distribution of child pornography” (Sharpe, paras 92-93).
Understanding this connection between production and possession is critical to a thorough analysis of any industry vulnerable to exploitative production practices. It is the same connection that compels us to purchase fair trade coffee, consider vegan food choices, and pass legislation requiring supply-chain reporting.
Sheep on the Right, Goats on the Left
These three more common conceptualizations of the relationship between a discerning market and responsible supply production depart from the legislation I recommend in one critical way: the law does not require coffee drinkers to eschew non-fair trade coffee on account of exploitation occurring in coffee farms in the developing world. Nor does any applicable law require Canadians to exclude meat from their diet on the basis of ethical concerns raised by vegans. Finally, while Canada has tabled legislation requiring corporations to report on the presence (or lack thereof) of exploitation in their supply chains, the legal obligation merely amounts to a reporting requirement; corporations can still rely on exploitative supply chains so long as they are willing to be honest about it. In brief, the decision to “demand” (in an economic sense) products which depend on exploitation are left in the hands of the private individual. The “national community” of Canada has not, as of yet, chosen to interfere with their neighbours choice of coffee or lithium on the basis of exploitative employment practices on the production side of things.
The Supreme Court, in considering Canada’s criminal obscenity provisions, revealed that there remains a tool available in Canadian law to distinguish our public policy surrounding pornography from these other analogous industries: the community standards test.
“…[T]he community standards test is not concerned with what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians being exposed to” [emphasis in original] (Butler at 478).
This test is among two analyses required to determine whether a particular media item is “obscene” within the meaning of the Criminal Code of Canada – whether it portrays the “undue exploitation of sex.” In articulating this test, the Court found that pornography which incorporates violence will almost always offend the community standards test, as pornography featuring “degrading or dehumanizing” behaviours often will as well (Butler at 485). Ostensibly not of concern under an obscenity analysis is pornography featuring explicit sex without either violence, or dehumanizing or degrading behaviour.
Two points are worth highlighting here: first, that it is a crime to produce, distribute, sell, or possess for the aforementioned purposes materials the Court considers obscene – those which offend the community standards test. It is not, therefore, an offence to possess or access pornography premised on violence, degradation, or dehumanization. Secondly, based on this analysis, the Court also permits the commercial proliferation of pornography which are not premised on “undue exploitation”; non-exploitative pornography industries are permitted to thrive.
Bringing together the analyses from Butler and Sharpe, it becomes apparent that the two cases provide rudimentary components of a public policy response to a burgeoning pornography industry harbouring examples of commercialized exploitation like Girls Do Porn. While, pursuant to Butler, it remains a crime to produce and distribute pornography premised on violence, exploitation, and degradation, this obscenity analysis does not account for the later insights of McLachin CJ in Sharpe. Insofar as we are aware that exploitation can occur during production, we should be willing to identify that the exploitation exists because there exists a market to purchase it. Legislation which addresses the market – the viewer – stands to cripple those exploitative pornography enterprises in a similar manner to how the criminalization of possessing child pornography undermines the production of child pornography.
There, then, remains a pragmatic question: how would a viewer know whether the “subject of the media withheld consent” on either of the basis I identify. In the existing child pornography framework, an accused can defend themselves from an access or possession conviction by indicating that they took reasonable steps to determine that the media was not child pornography. I propose a similar analysis on the basis of consent: where viewers take reasonable steps to determine that the subject of the media has consented to the sexual act in question and to its distribution, they will not be convicted. Such a defence would not be available to those who intentionally view pornography depicting fictional sexual violence.
Conclusion:
The legislation I propose, therefore, seeks to address only those genres of pornography that are uncontroversially exploitative. It would, in theory, leave the industry as a whole unscathed on account of those “righteous”, ethical pornography enterprises who engage with their talent without exploitation. Such an outcome would depart from the Biblical analogy we have followed throughout this introduction. Recall that my legislation represents only a hypothesis – a hypothesis that requires an implicit understanding that the pornography industry on the whole can survive compliance with legislation like the one I have recommended. If it can, it will enjoy a happier fate than Sodom. In that story, hardly one dubiously righteous man could be found; and rather than sparing Sodom for Lot’s sake, God removed him from the city and uncompromisingly razed the remainder.
Kevin Wilcox Hon.B.A, J.D. is a Master of Laws candidate at the University of Ottawa. He graduated from University of Ottawa’s Juris Doctor program in 2019, and graduated Magna Cum Laude from York University in 2016 with an Honours Bachelor of Liberal Arts and Professional Studies and a focus discipline in Critical Legal Theory. His academic interests include constitutional law, criminal law, the relationship between public policy and the law, and the means by which one informs the other. He has a vocational interest in participating in the efforts to end modern-day slavery and, in particular, human trafficking in the developed and developing world. He is an enthusiastic (if mediocre) musician, the oldest of three children, and an evangelical Christian. For a look at his analysis of the law of Freedom of Religion in Canada, you are invited to check out his ongoing project Seeking the Welfare of the City
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