Last month the Quebec Superior Court cleared author Yvan Godbout and his publisher of child pornography charges relating to his book, Hansel et Gretel, a horror novel retelling of the classic fairy tale. This long awaited ruling is an important one because in addition to the acquittal, the parts of Canada’s child pornography on which the prosecution was based were also declared invalid for infringing Canada’s Charter of Rights and Freedoms.
It’s not at all obvious why a ban on fiction should have existed in the first place, without going into a little Canadian legal history. The original fiction ban, added to Canadian law in 1985, covered “any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.” The law also allowed “artistic merit” to be raised as a defense.
The seeds of the expansion of this ban were sowed in the 2001 case of R v Sharpe. Sharpe was charged with child pornography offenses of the possession of nude photographs of adolescent boys, but also over fictional stories that Sharpe himself had written. In his defense, Sharpe claimed that the ban on fiction was unconstitutional. The court didn’t go that far: it largely upheld the ban on fiction, while inserting an implicit exception for self-produced material that wasn’t intended for distribution, and a similar exception for self-produced visual material produced by teens for their own use. The court’s reasoning for upholding the ban on fiction was expressed as follows:
While the scientific evidence is not strong, I am satisfied that the evidence in this case supports the existence of a connection here: exposure to child pornography may reduce paedophiles’ defences and inhibitions against sexual abuse of children. Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable.
The scientific evidence of this connection is, indeed, not strong. While research to date has been limited, what evidence does exist suggests, perhaps counter-intuitively, that indulgence in sexual fantasies about children is not significantly related to offending, that access to “virtual child pornography” is not associated with attitudes that sex between adults and real children is acceptable, and that the availability of such content as a sexual outlet may actually decrease rates of sexual offending against children.
Despite largely upholding the constitutionality of the law—a decision criticized by legal scholars—the court nevertheless acquitted Sharpe because his stories did not advocate or counsel sexual activity, and because they had artistic merit. This caused an uproar in Canadian society and prompted the changes to the law that have now been considered in Godbout’s case.
The two most significant changes that were made in 2005 in response to the Sharpe controversy were to broaden the prohibition on fiction to include “any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act”—dropping the requirement that it “advocates or counsels” abuse. The second change was to drop the defense of “artistic merit” and a similar exception for “educational, scientific or medical purpose,” replacing them with a requirement that the defendant’s action had “a legitimate purpose related to the administration of justice or to science, medicine, education or art” and that it “does not pose an undue risk of harm to persons under the age of eighteen years.”
With the polarization that we have come to expect when this topic is discussed, some lawmakers criticized even this much narrower defense as a “dangerous loophole,” while at the same time law scholars complained that “to subject persons to criminal penalties for simply looking at imaginary visual representations or texts, like stories or paintings, is absurd,” and predicted that the law would be held unconstitutional.
With the decision in the Godbout case, this prediction has now come true: both key provisions that were added in 2005 have now been struck down. The first provision that was declared invalid was the ban on “any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years”—Judge Blanchard's decision (in French) found:
the absence of words "advocates or counsels", or their equivalent to the definition of child pornography, fundamentally diminishes the right to freedom of expression, particularly that of persons who wish to express in explicit terms the abuse experienced by them at the hands of pedophiles.
The second part of the law that was held unconstitutional was the requirement for a defendant who raises the "legitimate purpose" defense to show that the material “does not pose an undue risk of harm to persons under the age of eighteen years.” The judgment is a little opaque on this point, but seems to find that this condition creates a disproportionate burden upon a defendant in the case of works that do not “advocate or counsel” abuse.
However the Godbout case misses an obvious opportunity to challenge the claim, previously accepted by the Sharpe court, that fiction creates a risk of actual harm to minors, which is the constitutional foundation for banning it at all. The prosecution side-steps the need to address this question scientifically, saying “that the objectively verifiable harm is measured according to the connection with the fundamental values of the Charter and the laws relating to human rights and the international instruments to which Canada adheres, rather that by establishing a direct scientific correlation between child pornography and a form of sexual assault.”
Judge Blanchard, regrettably, accepted this reasoning by concluding:
it does not appear unreasonable to conclude, even in the absence of scientific proof to this effect, since common sense always remains a useful decision-making tool in such matters, that for a perverse or depraved mind, any child pornography material, written or visual, will pose an undue risk for minors since it will serve to fuel a certain behavioral deviance. Human nature teaches us that everything, the best and the worst, is possible, even probable.
This reasoning transforms the concept of “risk” into an article of faith that somehow transcends rational enquiry. There is no reason why we should allow any element of the criminal law to be treated in this way: if fiction creates a risk to children, then it should be possible to examine that risk scientifically, as Prostasia Foundation is attempting to do. Our most recent blog post also explores, and debunks, the concept that simply reading forbidden thoughts can create “moral corruption” in the reader. Banning literature of any kind because of its presumed effects on the mind of the reader is “magical thinking,” and such has no place in the law.
Another area in which the Godbout falls short is that it fails to further address the ban on visual art in Canada’s child pornography law. This is more than a hypothetical concern: just to give one example, last year the Canadian Center for Child Protection had a 17 year old girl arrested for posting drawings to her blog. It also remains possible under Canadian law for someone to be convicted of producing child pornography over DD/lg or ageplay-themed photos or videos featuring 18+ adults only.
The overbroad Canadian child pornography law has also been used by ECPAT—which was a party to the Sharpe case—as the basis for its advocacy to expand the criminalization of artistic images of minors worldwide. Last year, ECPAT’s campaign made it all the way to the United Nations, resulting in a shocking committee recommendation that countries should treat artistic images as equivalent to real images of child sexual abuse.
So while the Godbout case is welcome in affirming that written works are constitutionally protected so long as they do not advocate or counsel abuse, it doesn’t go far enough. Canadian law remains unconscionably broad, and artistic expression in that country remains at risk. It is likely that as a result of the Godbout decision, lawmakers will be going back to the drawing board once again to revisit Canada’s child pornography law. We hope that the welfare of real children, rather than imaginary ones, will be lawmakers’ top priority when this happens.