Saturday, February 16th- 2013

Topic: Porn Regulation in Canada

BY: MUZZAMIL HUSSAIN

I. Introduction: Pornography has been defined as any material that is sexually explicit but does not appear to be obscene and, which can be displayed through the Internet, adult movies, magazines and adult stores. Obscenity laws in Canada use the community standards models to determine which pornographic material are in accordance with societal morals, and which should be categorized as obscene. John Stuart Mill and the Harms of Pornography is an article written by David Dyzenhaus in 1992, professor of Law and Philosophy at the University of Toronto. In his article, he raises an interesting idea that liberalists and feminists would support the censorship of pornography (Dyzenhaus, 1992). The feminist viewpoint argues that pornography shows men forcing women into sex; therefore it should be censored because of the harm it causes against women. Dyzenhaus then hypothesizes that because pornography is portrayed as violent material, the classical liberalists such as John Stuart Mill would defend the feminists in censoring such behavior based on his harm principle. The article also raises gender inequality issues of contemporary society, one being the subordination of men to women. Three political philosophies are concerned with the law of obscenity: liberalism, conservatism and feminism. Conservative morality takes into consideration the elements of virtue or wickedness behind pornography and asks if the material in question poses threat to society. Liberalism, alternatively, is concerned with the repercussive effects of withholding such material from the public, and whether it would be more detrimental not to permit its publication (Mahoney 8). Both liberal and conservative approaches believe that harm needs to occur before the law should intervene. Conservatives maintain that any material invoking feelings of indignation or intolerance should be subject to prohibition. Liberals, however, are of the view that individuals’ freedom of expression takes precedence over the preservation of social morality (Mahoney 8). The feminist study of morality is critical of both the liberal and conservative approaches and focuses on non-violence and empathy that transcends individualism. Feminists criticize the conservative approach because it asks the law to subordinate all sex outside marriage and fails to acknowledge the difference between intimate and coercive sexual interaction (Mahoney 12). At the other end of the spectrum, they criticize Liberal theory because it requires proof of a “clear and present danger” to justify intervention and does not translate into technology-driven, capitalist, twentieth century ideals (Mahoney 13).
II. Background Correlation between Sex offenders and pornography: Pornography needs to be regulated in Canada because it represents a systematic exploitation of women because of a condition of birth. It promotes violence and aggression towards all women, not just those directly involved, and undermines their value and worth as a group (Dworkin 34). The testimony of sex offenders has shown a direct correlation between the use of pornography and sexual assault. Law enforcement agencies needs to keep records of the instances of porn use as a factor in violent crime such as sexual assault, battery, child abuse and murder (Dworkin 37). Experimental studies on male college students in the United States showed a significant correlation between porn consumption and sexually coercive behavior (Waltman 221). In addition, pornography has been shown to de-sensitize people against violence towards women and increase “rape myth acceptance” such as victims blaming, adversarial sexual beliefs, and sexual callousness. Obscenity policy does not approach pornography with these realities in mind. Instead, Canada is concerned with protecting freedom of expression above women’s rights to equality (Waltman 218). Pornography in all forms, regardless of community standards, ought to be recognized as a severe form of sex discrimination. In Canada, Hate propaganda is not tolerated and it is therefore ignorant and dismissive to allow porn sales to continue on a mass scale. It in understandably difficult to protect against circulation of pornography on the Internet, but removing it from shelves in Canadian stores is a very reachable goal. Pornography and its Victims: The Government of Canada assumes there are to ways in which pornography is harmful. Firstly, there is direct connection between “Hardcore” (violent) pornography and violence towards women. Secondly, it suggests that pornography aggravates public perception of sexuality in a way that makes violence and sexual exploitation of women acceptable to society (Casavant and Robertson 44). The former is incorrect because pornography itself does not necessarily need to be violent to incite violence against women. The Canadian Government does not acknowledge harm caused to actresses and models in the porn industry. Often young, vulnerable and naïve runaways are picked up by pimps and pornography producers and are sexually exploited. They are frequently sexually assaulted and forced into submission by threat of violence or blackmail. Lina Lovelance, star of the infamous 1980’s pornography Deep Throat, sustained life-threatening injuries after being repeatedly raped in the mouth during production of the film. Her book, Ordeal, describes the atrocities committed against her and she is now major force in the fight for women’s equality rights in America. In fact, scholars assert that 60-70 percent of women in pornography are victims of child abuse and often suffer from severe psychological and emotional damage as a result of abuse (Dworkin 28). Canada prohibits the production and distribution of obscenity but turns a blind eye to the fact that much of the violence in pornography takes place behind camera. Women comply with brutality because they are afraid, feel powerless, and are often uneducated (Dworkin 32). Furthermore, women in porn are forced to hide their inner emotions and act as if they enjoy being dominant and coerced; this gives the illusion to Canadian subscribers that there is no harm being done. Accepting this illusion is failing to acknowledge that real people are suffering for the pleasure of consumers and pornographers. Necessary measures must be taken to ensure people are informed about the suffering caused by pornography both to individuals and women as a whole.
III. Current Porn Regulation in Canada:

Section 163 of the Criminal Code outlines a number of indictable offenses in relation to the production and distribution of obscenity. Section 163 (8) provides the following definition of obscenity: “any publication, a dominant characteristic of which is the undue exploitation of sex and any one or more of the following subjects, namely crime, horror, cruelty, and violence.” Violation of these laws may result in penalties of up to two years in prison as well as seizure of the material in question (Casavant and Robertson).

The seizure of material sold at an adult pornography store in Winnipeg challenged obscenity laws in Canada through R. v. Butler (1992). The appellant, Donald Victor Butler, was charged with 250 violations of obscenity under the Criminal Code of Canada (R. v. Butler, 1992). Most of the seized material was visual in which women were described as being raped or abused for sex by men. This case questioned the court to analyze whether the definition of obscenity infringes section 2(b) of the Canadian Charter of Rights and Freedoms (1985) and if so, was the infringement justifiable under section 1 of the Charter (R. v. Butler, 1992). The Court found laws against obscenity would breach freedom of expression. The Supreme Court of Canada later then justified itself that the “objectives of section 163(8) aimed at preventing harm to society, a moral objective that is valid under s.1 of the charter” (R. v. Butler, 1992). This case is significant to this paper because it illustrates the victory for anti-pornography feminists. Furthermore, by expanding the concepts of harm, the court has placed women at the center of pornography debate (Palmer, 1994). For instance, an individual that religiously watches violent pornography would be deeply affected by what he views and is likely to impose these acts when he is in a similar situation. The decision made by the Supreme Court of Canada in R.v. Butler, (1992) indicates that the subordination of women in society is unacceptable. As such, it is understandable from this case that obscene pornography can be harmful and requires to be somewhat censored. `
IV. Authors Arguments

The beliefs of Mill have influenced western civilization today, because his intention was to justify the importance of individual autonomy and equality amongst humanity. Thus, Mill would disregard the regime of inequality specifically subordination of women to men which has been clearly manifested in one of his writings, The Subjection of Women (Dyzenhaus, 1992). Consequently, because Mill is a prominent symbol of equality, Dyzenhaus uses his ideologies to support his clam that pornography generates a gap of inequality between men and women.
David Dyzenhaus, in his article John Stuart Mill and the Harms of Pornography begins by examining the modern liberalist approach towards censoring pornography being that censoring pornography is a violation of an individual’s freedom of choice. He then insists that these liberals should not adopt a stance of complete opposition to censoring pornography based on three specific reasons. Firstly, the “state is entitled to intervene coercively in an individual’s life on the basis of a narrow harm principle, which permits governments to act only with the purpose to protect the physical integrity of other individuals” (Dyzenhaus, 1992). This claim made by liberal’s advocates that pornography is nowhere viewed as attacking physical integrity but only satisfies harmless male sexual preferences; thus, the harm principle cannot justify coercion in this case (Dyzenhaus, 1992). The second argument formulates the idea “that consumption of pornography is a matter of private as opposed to public” (Dyzenhaus, 1992). The state should not intervene in the private lives of individuals and should allow them to live according to their own choices prompting Dyzenhaus to cleverly quote a famous saying, “It is not the laws business”. Finally, liberals are committed to a right of complete freedom of expression, which makes them hostile to any censorship whatsoever (Dyzenhaus, 1992).
Dyzenhaus’ main argument is a classical liberalist; John Stuart Mill would support the censorship of pornography because of his arguments contained in two of his famous texts, On Liberty and The Subjection of Women. Dyzenhaus argues that because pornography is graphically violent and demonstrates the idea that women and men are unequal, Mill would be likely to ally himself with the feminists. Mill aimed to argue against the legal subordination of women and suggests for what he calls “perfect equality” (Dyzenhaus, 1992). In sum,
“For Mill the subjection of women comes about because of status quo of inequality, which is made most manifest in the private realm and which is made to look natural by a false appearance of consent. And what is pernicious about this regime of inequality is that it prevents women from acting as autonomous individuals, from articulating and exploring their own conceptions of the good life” (Dyzenhaus, 1992).

As such, Mill believes both men and women should have the right to act on their own will. Furthermore, Mill suggested that females must discover their true nature under conditions of perfect equality, because such knowledge is a prerequisite for women successfully to articulate and to explore a conception of good life (Dyzenhaus, 1992). According to Dyzenhaus the feminists argue that pornography is the portrayal of women as the perpetual objects of male sexual desires. “Pornography is pornography not because of its sexual character but because of the context of inequality, which it eroticizes. Much of pornography is explicitly violent and shows men forcing women into sex of a more or less brutal nature” (Dyzenhaus, 1992). To summarize, the pro-censorship feminists argue that pornography depicts the idea that women are consenting to satisfy male sexual desires leading to making inequality natural. Therefore, feminists strongly believe that pornography should be censored because subordination of women to men is acted out to the public as being a natural aspect of society. Many other anti-pornography feminists such as Andrea Dworkin contend that pornography is the root of virtually all forms of exploitation and discrimination against women and is seen as a central cause of women’s oppression by a significant number of feminists (Duggan, Hunter, Vanice, 1993). Dyzenhaus quotes Mill’s ideas in his article and explains it further as in how it relates to pornography to prove his points consistently. According to Dyzenhaus, Mill is concerned not only with physical assaults, nor with the coercive power of the state; he is also concerned with the “moral coercion” exercised by powerful groups (Dyzenhaus, 1992). Dyzenhaus first claim, based on the harm principal, is central to explain why the classical liberalists support the feminists in terms of censoring pornography. To understand this further, the state should not be entitled to coerce against an individuals decisions unless the act causes harm to others. Because pornography gives rise to gender inequality and harms women, Mill would suggest coercion is necessary. However, Dyzenhaus believes that Mill would have been open to understanding that pornography should be controlled by social or moral coercion. The second claim Dyzenhaus makes in relation with Mills theory is the right to freedom of expression. Freedom of expression plays an important role with the issue of pornography because it focuses on what we might think of as liberal censorship policy. For Mill, persuasion through speech is the only means he would countenance for getting rid of pornography (Dyzenhaus, 1992). The author criticizes this point of Mill by asking, “is the real solvent of public morality a debate so that his hope is that truth will emerge merely from free critical discussion?” (Dyzenhaus, 1992) Dyzenhaus criticism is convincing because society is complex with many distinct opinions; therefore, debate seems unrealistic in the pursuit of rationally solving all problems in society. Mill believed that we should never suppress opinions because this may lead to the suppression of truth (Dyzenhaus, 1992). This rests on the idea that an opinion becomes harmful conduct in a context where it’s expression threatens interests, which require coercive protection (Dyzenhaus, 1992). Hence, pro-censorship feminists claim that once pornography is understood in the context of women’s subordination and inequality, it will be seen as a mode of conduct, which plays a special role in maintaining inequality (Dyzenhaus, 1992). This fact defends the Supreme Court of Canada’s decision in R.v. Butler that obscene material should not be publicly shown because of the negative message it conveys through sexual acts. Individuals may start to consider that violent pornography is natural and is not harmful to society once they become exposed to watching such material. For Mill, our present views of women’s nature have no standing because what we take as natural is in fact the construct of a regime of inequality (Dyzenhaus, 1992).
V. Evaluate & Interpret

Dyzenhaus exceptionally explains the relation between the classical liberals and the feminists suggesting that the harms that violent pornography causes to women’s social standing and opportunities might be sufficiently serious to justify prohibiting pornography. He thoroughly examines Mills explanations as his secondary source to emphasize the importance of censoring pornography because it creates harm against women. His arguments are justified by liberalist’s ideology, which suggests that people have the power to make their own decisions, however, if certain act causes harm to others, then this act is unjustifiable. Mill believes that men and women under the right circumstances can share an interest in leading autonomous lives (Dyzenhaus, 1992). Dyzenhaus then implies that if women understand the harms of displaying sexually explicit material, they will not consent to do so.
However, Dyzenhaus fails to address that there are many others in society who would disagree that pornography is a significant cause of the oppression of women and the best solution to pornography is to censor it. Furthermore, he does not specifically define the term of “sexually explicit material.” Sexual material varies in content and in different societies. For instance, the display of a women’s cleavage may be sexually explicit to one culture but is normal to another. We tend to always view sexual acts in movies, television shows, music videos, etc., that do not classify as “porn”. Is it in society’s best interest to censor the aforementioned material because it displays sexual acts? In addition, some sexually explicit material depicts both men and women as sexual symbols, for instance Playboy magazines. Other material tends to show non-violent sexual acts between adults who are portrayed to be equal consenting participants. Individuals whom decide to view this sort of material do so for entertainment or enhance their sexual abilities. Those whom are pro-pornography strongly believe that not all porn is “bad”. Palmer raises this point based on the fact that a distinction can be drawn between “soft porn” and pornographic material (Palmer, 1994). This is because the availability and distribution of soft-porn materials will not pose the same risk of social harm to women as the categories of explicit sex with violence or explicit sex that is degrading or dehumanizing (Palmer, 1994). However, Dyzenhaus’ perspectives are logical to a certain extent. Material that represents violent coercion such as being whipped, beaten, tortured and raped should be censored because it is classified as obscene and depicts women to be freely consenting to sexy violence. Dyzenhaus’ article was more of a summary of John Stuart Mill perspectives on society. Dyzenhaus’ arguments were relatively straightforward, however, he emphasized greatly on Mill’s ideas rather than his personal principles. The article seemed fit to be labeled as a summary of Mill’s On Liberty and The Subjection of Women rather than a synthesis to emphasize his ideas. For the most part, Dyzenhaus’ arguments are reasonable and provide a clear dissertation of the presence of gender inequality in our civilization today. The similarities between Mill and feminists are visible when the issue of inequality plays a role in pornography. Dyzenhaus explicitly analyzes Mill’s texts and concludes that there is no contradiction between the feminist point of view and the liberalist’s perspective with the issue of removing the access of pornography to the public. Dyzenhaus’ key assumptions lead to the statement that Mill might not have opted for censorship but he might have thought public education is likely to be more effective and beneficial than coercion which would drive pornography underground (Dyzenhaus, 1992).
VI. Conclusion: Obscenity policy needs to be reformed to consider Canada’s role in perpetuating harm against women from porn. A strong opposition to pornography lies over the feminist view of censoring this material because it degrades women to the extent of creating inequality issues between both sexes. David Dyzenhaus, the author of John Stuart Mill and the Harm of Pornography attempts to argue that the liberalists would devalue pornography because of the harm it contributes to the regime of gender inequality. They would agree with the feminists that pornography must be eradicated and censored because it harms others, specifically women. This inequality prevents women to act out of their own choice where they freely agree to be a victim of violent acts. The article does not articulate the debate between liberals and feminists, but rather applies the ideas of a famous classical liberalist; John Stuart Mill to support why censoring pornography is vital to protect women. He systematically states Mills’ theories to somewhat generate the impression that classical liberalists would agree with the opinions of the feminists regarding censoring pornography.

VII. Reference:

Mahoney, Kathleen E. “Obscenity, Morals and the Law: a Feminist Critique” University of Calgary. 1-39

Dworkin, Andrea. “Pornography is a Civil Rights Issue” Department of Justice (1988) New York

Casavant, Lyne. “The Evolution of Pornography Law in Canada” Robertson, James R. Law and Government Division. Web. 25 Oct. 2007 (39 pages)

Waltman, Max. “Rethinking Democracy: Legal Challenges to Pornography and Sex Inequality in Canada and the United States.” Stockholm University. Sweden. Vol.63.218-_Web. March 2010

Willis, Ellen. “Porn Free” Indiana University Press (1994). Indiana: Vol. 63. 4-23. Web. 1994 ----rf3

Dyzenhaus, D. (1992, April). John Stuart Mill and the Harm of Pornography. Chicago Journals, 102(3), 534-551. Retrieved October 21, 2012

Palmer, S. (1994). Equality Issues and Pornography in Canada; R.v. Butler. Feminist Legal Studies, 2(1), 91-97. Retrieved October 21, 2012

Duggan, L., Hunter, N. D., & Vanice, C. S. (1993). False Promises: Feminist Anti-Pornography Legislation. The Sex Panic: Women, Censorship and Pornography, 38(1), 133. Retrieved November 18, 2012

Criminal Code, RSC 1985, c, C-47 ABCA 139 (CanLII),
< http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html> retrieved on 2012-10-17

R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 SCR 452, <http://canlii.ca/t/1fsdj> retrieved on 2012-11-17