In early spring 1985, newly appointed Conservative Justice Minister John Crosbie called for public comment on the recently released Report of the Special Committee on Pornography and Prostitution, fittingly entitled Pornography and Prostitution in Canada. The Special Committee (or Fraser Committee as it was commonly known) was established under the previous Liberal administration “to recommend solutions to the problems associated with pornography and prostitution in Canada.” Included in its recommendations was a three tier proposal for classifying and prohibiting certain types of pornography. In response to the Minister’s request for comment, the BCCLA sent a letter critiquing both this proposal and the reasoning used in its defence.

September 27, 1985

Dear Mr. Crosbie:

We are writing in response to your request for comments on the Fraser Committee’s Report on Pornography and Prostitution. Our comments will be confined here to the Committee’s recommendations on pornography since we have already indicated our support for the Committee’s recommendations on prostitution under separate cover to you.

We are not happy with the Committee’s recommendations on pornography. In our view, the only pornographic materials that should be prohibited are child pornography where real children are used in its production, and pornography that is made possible by the commission of actual coercive criminal acts (e.g., “snuff” films). The rest may be properly required to carry warnings about content, or restricted in mode of display or places of sale, but not prohibited. We have found nothing in the Fraser Committee Report to make us change this view. But our view of this Committee’s work is not entirely negative.

We think the Committee is right to reject the view that we can prohibit conduct or material just because it is disgusting or offensive, and take this to be an important repudiation of the basis of current obscenity laws. We are glad the Committee shares our view that it is repugnant to let the tastes of some, however numerous, control the lives of others We also think that the Committee shows good sense in rejecting the view that pornography leads to anti-social activities, and hence can be straightforwardly prohibited on the ground of harm to others. As the Committee rightly notes, no sociological examination of actual societies demonstrate this, nor do any findings of experimental psychology give this view sufficient support to warrant legal intrusion. Finally, we have no objection to the principle on which the Fraser Committee bases its recommendations on pornography, namely, that anything which detrimentally affects equality falls within the scope of the law. Equality is an important social value and anything which impairs it counts as an important harm to others.

But we do not think that the Committee applies this principle in a way which supports its recommendations to prohibit certain classes of pornography. Uncontroversially, pornography depicts women as sexual objects. But this is not something which, in itself, adversely affects the status of women; that is done only if the depictions produce or reinforce certain attitudes toward women, and those attitudes result in women being treated as second class citizens. The Committee, however, produces no evidence to show that either of these things is so. Indeed, as noted above, the Committee is extremely skeptical about the value of social research that purports to support such views about the effect of pornography. Certainly, some of those who make use of pornographic materials will neither hold nor act on the attitudes in question. People typically do distinguish between fantasy and reality, and keep those worlds apart. Just as certainly, some people who read or view pornography will act on the attitudes in question. But the extent of the causal involvement of pornography in this remains unclear. And there can be no serious doubt that many of these persons would hold exactly the same attitudes if pornography had never existed. The size of the remainder, as well as the degree to which they have been affected by pornography, is a matter of speculation and conjecture.

This is not to deny that pornography sometimes can or does have unwanted effects on attitudes and actions, but it is designed to raise some questions about the unsubstantiated assumptions in the Committee’s argument, and to bring the extent of the alleged impairment of equality rights of women into perspective. In the absence of evidence to the contrary, we suspect that depicting women as sexual objects does not adversely affect their equality status to any greater extent than depicting capitalists as greedy beasts or men as chauvinist pigs adversely affects their equality status. Thus, if pornography is to fall under the penumbra of the law for this reason, many other things must do so as well.

But even if we could demonstrate that pornography substantially injures the equality of women, we still could not without further ado prohibit it, any more than we can properly prohibit the Bible in light of the fact that over fifty children were beaten to death in the U.S. last year by parents who were impressed by that maxim that to spare the rod is to spoil the child. After the danger of injury is demonstrated, a number of questions have to be appropriately answered before prohibitory regulations would be apt.

Specifically we need to ask:

(1) Will the envisaged interference be effective in curbing the evils?

(2) Will the interference, however effective it may be in curbing the primary evil, generate other and still greater evils?

(3) Is the interference, even granting that it is effective and beneficial on balance, the weakest sort sufficient to control the evil?

The Fraser Committee shows no awareness that these questions must be considered, but simply moves directly from its allegation that pornography hurts the status of women to the conclusion that it should be prohibited. If the Committee members had considered these questions, they would not have found that transition easy.

Because we are skeptical of any significant causal role pornography plays in producing anti-woman attitudes and actions, we have doubts that its censorship will seriously reduce such attitudes and actions. Surely no one can think that we can tear them out of the hearts of people by preventing access to pornographic material. The best that we can hope for is to reduce the spread or reinforcement of those attitudes. But we also suspect that the success we can reasonably anticipate here is very limited. It is fanciful to think that we can effectively enforce the law in such a way that substantial amounts of prohibited pornographic materials will not find their way to those who are interested in it. Pandora’s box has been opened, and the criminal law is impotent to shut it. The Fraser Committee recognizes this in the case of prostitution, and should have in the case of pornography as well.

We also think that censorship will carry with it much greater evils than those it prevents. First, by preventing people access to material (whether they want it or not), we thereby engender a substantial amount of resentment and irritation. Second, and more importantly, freedom of speech is crucial to a democratic society. If the people are to be genuinely self-governing—if they are to be rulers as well as the ruled—they must be free to express and hear all opinions on all matters concerning the public interest. We think that these disadvantages of censorship outweigh its advantages, but we are well aware that many take the contrary view.

But even if the contrary view is the apt one, there is one more dragon to slay before the road to censorship will be clear: censorship of pornography must be the mildest measure that will control the undesirable effects alleged to flow from it. We do not, however, think that this can be demonstrated. In our view, censorship is justifiable only if there is a clear and present danger which cannot be averted by more speech, and this is not the case with respect to pornography. The forum is open for the contrary point of view to be stated and restated in numerous and forceful ways, and women’s groups and others have done so persistently and effectively. Without wishing to imply that women should be thankful for the presence of pornography, its existence has allowed them to put over their views about their proper place in society as they never could have otherwise. It thus seems to us that censorship is not the mildest possible measure of combating the evil. Doing nothing except allowing or encouraging the contrary opinion to be fully aired is sufficient. This may not be as satisfying to those who are outraged, but it is not the function of the criminal law to give such satisfaction.

Not only do the Fraser Committee’s proposed restrictions on pornography fail to follow from its premise, they are inconsistent with what it recommends on prostitution. It is hard to see how the Committee can recommend that pornography be censored because it depicts women as sex objects, and hence impairs their equality rights, and at the same time recommend decriminalizing both soliciting for the purposes of prostitution and facilitating the operation of a bawdy house. Surely no one can think that prostitution does not objectify women any less than pornography, and hence must have an equally adverse effect on their status. What, then, can account for the remarkable difference in recommendations? It is difficult to resist the speculation that this discrepancy derives from nothing more than the prevailing winds of the political climate. But to let that be decisive is to open up the law to all the superstitious and irrational elements in society, and makes the Committee’s appeal to principles a charade.

If, however, censorship is to be the order of the day, the recommendations of the Fraser Committee, which divide pornographic material into three distinct classifications or “tiers,”¹ each carrying with it different defences and penalties, will not do. We have two objections to offer. First, tier one excludes too much. Falling under this tier is any representation of persons under 18 participating in sexual conduct, and no defence of artistic merit or educational or scientific purpose is to be allowed. This will immediately condemn anthropological films depicting, for instance, rites of passage in Samoa, as well as (depending on what is lumped under the definition of “sexual conduct”) productions ofRomeo and Juliet which are faithful to Shakespeare’s text. Second, it is not clear how the three tiered scheme is supposed to follow from the principles of the Fraser Committee. The Committee does not produce any evidence that the materials falling under tier one do greater damage than those falling under tier two, or similarly that those falling under tier two do greater damage than those falling under tier three. What is the case is that these tiers correspond to public intolerance of the material But to legislate on the basis of deviation from accepted social values without any demonstration that those values should be preserved, or that the deviation impairs them, is just to appeal to the criterion of what disgusts the public, which the Committee earlier and rightly rejects.

The task of deciding policy on the volatile issue of pornography is an unenviable one. What largely makes it difficult, in our opinion, is that public feeling runs one way, reason the other. We understand that politicians have a duty to be responsive to public opinion, and the pressures they are under to be so. But we also think that they have a responsibility to demonstrate leadership and not to give in to majoritarian impulses when there is no rational backing for them. It is in the spirit of indicating where in our view reason leads that we send this, and hope that you will find it useful in framing public policy.

Note:

1. Under tier one, outright prohibition and severe criminal sanctions would apply to:

(a) any visual representation of a person under the age of 18 engaged in explicit sexual conduct;

(b) any visual or written material that presents as normal or encourages the sexual abuse of children; or

(c) any visual pornographic material that is produced by actually causing harm to one of the participants.

Under tier two, visual or written accounts of sexual conduct involving acts of violence (simulated) or degradation would be subject to prohibition and less severe criminal sanction, but a defence of educational or scientific purpose, or artistic merit would be available. Under tier three, visual pornographic material not prohibited under the other tiers would be subject to minor criminal sanction in the following circumstances:

(a) if it was displayed without a proper warning regarding content;

(b) if it was sold to a person under the age of 18; or

(c) if it was sent unsolicited through the mails.