1. While the Criminal Code just uses the word ”obscenity”, this term and “pornography” are often used interchangeably in R. v. Butler, (1992), 8 C.R.R.(2d) 1 (S.C.C.) and other cases. While some people use the words “pornography” and “sexually explicit” synonymously, for others “pornography” describes materials which are primarily intended to sexually arouse viewers. Many feminists have used “pornography” to describe harmful sexual imagery. Fewer use it in the same sense as the Butler court, i.e. as the descriptive term for materials which should be subject to legal regulation. Needless to say, these semantic differences lead to misunderstanding and confusion. In this paper, “obscenity” is used to refer to the criminal standard for proscribed materials. “Pornography” and “sexually explicit” are generally used synonymously. However, the context of the former will often import a sense of harm (e.g., “some forms of pornography”).

2. Ibid.

3. This is analogous to LEAF's position in R. v. Keegstra (1990), 3 C.R.R. (2d) 193 (S.C.C.) and Taylor v. Canada (1990), 3 C.R.R. (2d) 116 (S.C.C.) where we argued that a free expression challenge to the Criminal Code hate propaganda provisions had to consider the equality rights of vilified groups.

4. Copies of the Butler factum are available from the LEAF National Office, 415, Yonge Street, Suite 1800, Toronto, Ontario M5B 2B7.

5. The community standards test as defined in R. v. Brodie, [1962] S.C.R. 681 at 705.

6. Most notoriously, as discussed infra (see notes 42 and 54), Canada Customs used the Criminal Code standard to bar entry of materials on lesbian and gay sexuality or orientation.

7. On “substantive equality”, see Orton, H., “Litigating for Equality: LEAF'S Approach to Section 15 of the Charter” in Busby, K., Fainstein, L. & Leds, H. Penner, Equality Issues in Family Law: Considerations for Test Case Litigation (Winnipeg: Legal Research Institute of the University of Manitoba, 1989)Google Scholar. She states, at 9, that “LEAF has argued that the section 15 guarantee of substantive equality is to promote a society in which the hitherto powerless, excluded, and disadvantaged enjoy the valued social interests (such as dignity, respect, access to resources, physical security, membership in community and power) available to the powerful and advantaged. Conversely, section 15 is intended to alleviate the disadvantage and social subordination maintained by dominant societal groups, whether or not intentionally imposed and whether explicit or by adverse effect.” At 10, she states that “LEAF argues that the equality guarantee must reject laws and practices that reinforce and shape women's disadvantage, and support laws and practices that promote for women the equal enjoyment of valued social interests that have historically been available to men.”

8. One commentator on this paper asked how I could “know” that an actual rape was filmed. In the segment in question, the woman was assaulted by two men. She struggled and pleaded with them to stop but ultimately she just attempted to protect herself from the assaults. The scene did not end with her proclaiming to have enjoyed the encounter (see infra, note 32 on “positive outcome rape”) but, rather, she was left lying on the floor. Two psychologists viewed the film and both were of the view that a rape had occurred. Furthermore, the camera was stationary throughout most of the shooting and the segment appears to be unedited except, perhaps, for length. For example, there are no close-ups or significant camera angle changes which, if there were, would suggest that the segment was shot more than once and that care might have been taken to ensure that no one was hurt during a simulation.

9. Obviously, this observation is a guess as to the age of those involved in production. The guess is based on apparent physical development and my reading of the images' coding and text which seems to focus on the “actors’” actual youth rather than as adults impersonating children. While my observations may not be accurate in this case, it is undeniable that children are involved in making pornography. See, for example, Sereny, G., Invisible Children and the Shattering Truth of Runaways On Our Streets (London: Pan, 1986)Google Scholar—a survey on child prostitutes in three countries; every one had been asked to make pornography. Kelly, L., “Pornography and Child Sexual Abuse” in Itzin, C., ed., Pornography: Women, Violence and Civil Liberties (Oxford: Oxford University Press, 1992)Google Scholar. 70-80% of runaways in one study had been involved in making pornography. Tate, T., Child Pornography: An Investigation (London: Metheun, 1990)Google Scholar—a description of the “cottage industry” for child pornography, in particular its reliance on amateur creation and distribution systems. See also, R. v. Robinson (15 April 1993), 9201-1805-C6 (Alta. Q.B.), Hunt, J. (conviction for making obscene pictures of a 15 year old prostitute) and “Child Pornography Case Stuns Thompson”, Winnipeg Free Press, 8 April 1993Google Scholar—a story on the arrest of a man for making sexually explicit films of 10 and 11 year old girls. In 1992, Winnipeger Karl Krantz was found in possession of videotapes of his sexual assaults of approximately 100 aboriginal girls. Convictions were entered on only a small number of the assaults recorded on the tapes as many of the girls could not be identified or found. It was not an offense per se to possess the videotapes. See also infra note 18.

10. Note that I have not claimed that all of the actors are harmed in the same way, nor do I see all of these individuals as voiceless or passive. The fact that some are is enough to give rise to concern.

11. For example, Linda (Marchiano) Lovelace was hurt in the production of Deep Throat as is clear from the bruises on her body which are visible in the film and her accounts of what happened to her: Lovelace, L., Ordeal, (New Jersey: Citadel Press, 1980)Google Scholar. In spite of this knowledge which, I think, should influence how we read the film, some have argued that Deep Throat is not “an unending paean to male dominance” because it shows a woman actively seeking to attain her own sexual pleasure. See Duggan, L., Hunter, N. & Vance, C., “False Promises: Feminist Anti-Pornography Legislation in the U.S.” in Burstyn, V., ed., Women Against Censorship (Toronto: Douglas & McIntyre, 1985) at 139Google Scholar. Even under ideal conditions, the creation of sexual imagery is full of complicated dynamics. For example, the lesbian artist collective, Kiss and Tell, acknowledges that one reason why they used only two models in the creation of their “Drawing the Line” exhibition on representations of lesbian sexuality was that it was important to collaborate with ”… women who had built trust over an extended period of time. It is our history together that has let us explore the often scary dynamics in explicit sexual photography.” Kiss and Tell (S. Stewart, photographer, in collaboration with Blackbridge, P. & Jones, L.), Drawing the Line: Lesbian Sexual Politics on the Wall (Vancouver: Press Gang Publishers, 1991Google Scholar) n.p.

12. In making this observation, I am not saying that sex-trade workers should not be protected by employment laws. As Becki Ross stated in a letter to me, dancers and strippers, in particular, have long argued for improved working conditions, freedom from harassment, standardized wages, and job security. Feminists should support these claims. But until such law reforms are secured, criminalizing the distribution of some pornography, (e.g. violent sexual imagery) may discourage its creation, thereby protecting the women against dangerous work.

13. Cole, S., Pornography and the Sex Crisis (Toronto: Amanita Press, 1989) at 44Google Scholar.

14. Contrary to what some have said, LEAF does not assert that pornography is the alpha and omega of women's subordination by men or women's inequality. Women are subordinated and materially disadvantaged in multiple and intersecting ways. Most of LEAF'S cases have focused on inegalitarian laws relating to employment, reproduction, or sexual violence and the intersection between them.

15. Since the Butler decision was released, there has been a resurgence of discussion in a number of forums on pornography and other sexual representations.

16. In making this observation, I am not trying to line up women of colour and poor women against lesbians and artists, especially as there are lesbians of colour who are artists and who are poor. Rather, I am trying to encourage serious thinking about the differential impacts of pornography on variously situated women. This paper will consider this issue as it affects lesbians and artists in more detail infra (see notes 37 and 61) because members of these communities that have identified this as a priority requested that LEAF do this work. LEAF'S position on racist hate speech in Keegstra and Taylor, supra note 3, and on racism and pornography in Butler have not been subject to sustained comment by members of communities of colour. For the most part, there seems to be a consensus among people of colour writing about these issues around harm, equality claims and the ways in which images and stereotypes of women and men of colour, including sexuality, are reproduced, read and received by white men. But see Mercer, K., “Just Looking for Trouble: Robert Mapplethorpe and Fantasies of Race” in Segal, L. & M. McIntosh, , eds., Sex Exposed: Sexuality and the Pornography Debate (New Brunswick, N. J.: Rutgers University Press, 1993)Google Scholar. Where controversy exists is whether the state should be enlisted given its historic role in subordinating these communities and their members, and whether pornography should have priority in the face of competing issues such as poverty, etc. See, e.g., A. Forna, ”Pornography and Racism: Sexualizing Oppression and Inciting Hatred” in Itzin, supra note 9; Parmar, P., “Rage and Desire: Confronting Pornography” in Dickey, J. & Chester, G., eds., Feminism and Censorship: The Current Debate (London: Prism Press, 1988)Google Scholar. See also King, K., “Producing Sex, Theory, and Culture: Gay/Straight Remappings in Contemporary Feminism” in Hirsch, M. & Keller, E. Fox, eds., Conflicts in Feminism (New York: Routledge, 1990)Google Scholar.

17. See Valverde, M., “Beyond Gender Dangers and Private Pleasures: Theory and Ethics in Sex Debates” (1989) 15 Feminist Studies 237Google Scholar, where she attempts to provide a framework within which to answer the question: “What is the place of sexuality in both our oppression and our project for liberation?”. For a superb discussion on the erotic as a source of information and power in women's lives, see Lorde, A., “Uses of the Erotic: The Erotic as Power” in Lorde, A., ed., Sister Outsider (Freedom, CA: Crossing Press, 1984)Google Scholar.

18. E.g., in May 1987, the Federal Government introduced Bill C-54 which would have prohibited all explicit sexual representations had it not died on the order paper when the 1988 election was called. Similarly, Bill C-388 (December 1992) would prohibit all sexually explicit representations, but as this is a private member's bill, it is unlikely to receive a second reading. In May 1993, with another Federal election pending, the Government introduced Bill C-128, and within months this bill passed through Parliament. An important provision in this bill is that it makes it an offence to possess child pornography, whereas simple possession of other obscene materials is not an offence. Given that most child pornography is created in private homes and distributed non-commercially, this amendment is important. The bill also prohibits visual representations of a “person who is or who is depicted as being under the age of 18 years and who is engaged in explicit sexual activity.” On one hand, this provision is necessary for evidentiary reasons as it is extremely difficult to find those who were involved in making images and to ascertain their precise ages. Under the former law, this could lead to an inability to prosecute even where there was no doubt as that those being filmed were minors. See supra note 9. The bill may also be useful to the extent that it undermines normalization of pedophilia. On the other hand, the law may be over-broad in that it fails to define “explicit sexual activity”. E.g., would an image of two teenagers kissing and lightly fondling each other be prohibited? Would the standard be different if the pair were young-looking adults of the same sex?

19. See, for example, McCormack, T., “Keeping Our Sex Safe” (Winter 1993) 25 Fireweed: A Feminist Quarterly of Writing, Politics, Art and Culture 25 at 33Google Scholar.

20. Butler, supra note 1 at 30. Some commenting on the Butler decision have stated that it marks a return to a moralistic standard. This is a misreading of a fundamental principle emerging from Butler. After the Court reviewed obscenity law history, which, given the nature of legal discourse, would start with reference to the sexual decency position, it stated at 30 that “the prevention of dirt for dirt's sake is not a legitimate objective.” The Court did say that “much of criminal law is based on moral conceptions of right and wrong”. But the moral basis for the Butler standard is harms to women, not morality in an inchoate sense of appropriate sexual behaviour.

21. Ibid.at 33.

22. Ibid. at 25, 39.

23. See also supra note 6.

24. Butler, supra note 1 at 24, quoting R. v. Towne Cinema, [1985] 1 S.C.R. 494 at 525.

25. Butler, ibid. at 30.

26. See infra notes 43 and 54.

27. Supra note 1 at 29.

28. Ibid.at 36.

29. (1984), 14 C.C.C. (2d) 230 (Man. Q.B.) as cited in Butler, supra note 1 at 20.

30. Butler, ibid.

31. See also supra notes 9 and 18.

32. “Positive outcome rape” is depictions or texts of sexual assaults where the woman (or child) initially resists but ultimately “enjoys” the assault. The encounter usually ends with profuse thanks. This scenario was featured in a number of the Butler materials. Most notably, however, it was an aspect of all the materials involving children or portraying young-looking women as girls (e.g. pigtails, saddle shoes, shaved pubic hair, small hips and breasts). Other rape myths portrayed include women receiving pleasure from pain, being blamed for inciting sexual advances, desiring sex from any and every man, expressing a secret desire to be raped, etc.

33. E.g. M. Valverde in a July 1993 1etter to me commenting on an earlier draft of this paper stated that: “I think that LEAF is not on strong grounds criticizing gay male culture or gay men … I think that most lesbians completely misunderstand gay male culture, just as they misunderstand ours… Perhaps it would be better not to discuss the gay male porn at all and confine yourselves to the heterosexual stuff.”

34. The first issue is trying to define just when a particular activity or depiction becomes s/m. Unless we have some agreement on just what we are talking about when we speak of s/m, conversations are bound to be fraught with misunderstanding. I think that most sexual activity is about vulnerability and therefore about power in one form or another, so a power imbalance alone is not a sufficiently precise definition of s/m. Depending on who is doing the defining and why and in what context, s/m practices could include: forms of dress (leather, uniforms, chains, dog collars); using objects like dildos, butt plugs, nipple clamps; body modifications such as tattooing, body piercing, or scarification; bondage; sexual pleasure as coming from humiliation, power games, rape, or degradation; elaborate psychological or ritualistic scenes; infliction of physical pain through spanking, hitting, beating, whipping, or cutting. The definition would have to work through the notion that implicit or explicit negotiations around power are a part of most s/m sex. Finally, the definition would have to consider the constructed meaning of s/m outside of lesbian (sub) communities.

35. See, e.g., Boffin, T. & Fraser, J., Stolen Glances: Lesbians Take Photographs (London: Pandora Press, 1991) at 238Google Scholar; Nochlin, L., Women, Art, and Power and Other Essays (New York: Harper and Row, 1988)Google Scholar.

36. de Lauretis “Upping the Anti (Sic) in Feminist Theory” in Hirsch and Fox Keller supra. note 16 at 266. Weil, Lise, in “Lowering the Case: An After-reading of ‘Sex and Other Sacred Games’” in Barrington, J., ed., An Intimate Wilderness: Lesbian Writers on Sexuality (Portland, Ore: Eighth Mountain, 1991) at 247Google Scholar describes the same tension in this way: I also understand that U.S. feminism, with its middle-class, sexually conservative bias, has been a major obstacle to this exploration [of Lesbian Desire]—that Pure Lust, in practice, has had a tendency to translate into puritanical lust. But having said all this, I am not ready to concede that what we are here for, along with Queer Nation, is to make the world safe for our raunchiness.

37. De Lauretis, ibid.

38. E.g., B. Ross stated in a letter to me that:“… fundamental disagreements on s/m, power and fantasy will continue to curtail the freedom of lesbians/gay men to represent our sexualities whether they include s/m sex or not … the AIDS Committee of Toronto, the Inside/Out Collective, and Buddies in Bad Times have all come under fire because of s/m; s/m has become the tried and true trope of sexual/moral conservatives and unless we-feminists figure out a way to defend non-coercive, consensual s/m specific to a minority sexual culture, we will lose many more obscenity cases.”

39. C. Patton, “Unmeditated Lust? The Improbable Spaces of Lesbian Desires” in Boffin & Fraser, eds. supra note 35 at 238.

40. R. Podolsky, critic for the L.A Weekly (17 June 1992) as quoted in Merck, M., Perversions: Deviant Readings (London: Virago Press, 1993) at 8Google Scholar.

41. For example, La Presse featured a front-page photograph of lesbian s/m in its coverage of the 1993 Washington March, thereby reducing the march to kinky sex. When discussing the police seizure of Bad Attitude from Glad Day Bookshop (see infra, note 44) with the media, I rarely talk about the magazine's s/m content because I cannot trust that they will not sensationalize this aspect of the case, thereby feeding into stereotypes about lesbian sexuality.

42. LEAF recently completed a series of consultations with lesbians in Vancouver, Toronto, and Halifax. Specific issues addressed included what should be defined as “family” and whether inclusion of “sexual orientation” in human rights codes would benefit lesbians. The report is available from the LEAF'S National Office.

43. R. v. Butler (31 March 1993), 88-01-04647 (Man. Q.B.) Hewak, J.

44. Customs legislation on obscenity referentially incorporates the Criminal Code obscenity provisions, i.e. the Butler standard. Until 1985, customs legislation prohibited any materials that were “immoral and indecent”, but this standard was struck down as too vague to be enforced: Re Luscher and DM.N.R. (1985), 17 D.L.R. (4th) 503 (F.C.A.)Google Scholar.

45. Glad Day Bookshop v. D.M.N.R. (14 July 1992) 619/90 (Ont. Ct J. (Gen. Div.)) per Hayes, J.

46. LEAF will not be intervening in the Glad Day appeal. For strategic and practical reasons, LEAF intervenes when no one else will be making equality arguments. (For example, in Butler we only intervened before the Supreme Court of Canada, and we were the only intervenor to present an equality analysis.) Further, as it is more than likely that the Federal Court (Trial Division) will recognize on appeal that Judge Hayes' decision is an abuse of Butler, our intervention is not essential. Further, LEAF currently has the financial, staff, and volunteer resources to participate in six or seven new consultations or cases a year. In the context of pornography, we think that our energies are best spent engaging in broad consultations, including, e.g., preparation of this paper.

47. It is not always clear whether individuals or groups voicing objections to the Hayes decision are against any form of censorship or whether they oppose Judge Hayes' gross misreading of Butler.

48. Police in a few Canadian cities have seized the inventories and laid obscenity charges against Randy Jorgensen, the owner of about 75 pornographic video outlets across Canada. Most, if not, all the seized materials were for heterosexual men and, therefore, likely have scenes of women having sex with each other. As in the Butler case, some materials may involve gay men.

49. In recent years, in addition to seizing sex manuals and sexually explicit magazines and videos, Canada Customs has also seized books by, e.g, J. Rule, G. Stein, O. Wilde, A. Dworkin, J. Genet and J. Weeks.

50. Canada Customs has refused entry for educational materials on safe sex for gay men. For years it prohibited entry of The Joy of Gay Sex.

51. “Canada Customs Hits Feminist Stores and Others” (March/April, 1993) Feminist Bookstore News ??? at 11, 21.

52. Presentation by J. Fuller, manager of Little Sisters Bookstore—a lesbian and gay bookstore in Vancouver (address to the National Association of Women and the Law, Vancouver, 20 February 1993) [unpublished].

53. [Toronto] Globe and Mail (26 March 1993) A7.

54. Little Sisters Book and Art Emporium et al. v. Minister of Justice (Canada) et al, File # A901450,(B.C.S.C).

55. See also the press release issued by LEAF and a group of anti-censorship activists on 21 June 1993 condemning the discriminatory use of Butler to harass and intimidate lesbians and gays, and sex trade workers. LEAF was approached in late July 1993 to participate in the Little Sisters litigation at the trial level. Two months was just not enough time to prepare for the case.

56. Sontag, S., Styles of Radical Will (New York: Farrar, Strauss, Giroux, 1966) at 45Google Scholar.

57. The Criminal Code (1985) prohibits blasphemous libel (Section 296), seditious libel (Sections 59-63), and offences tending to corrupt morals (obscenity) (Section 163).

58. Butler, supra note 1 at 25. None of the parties before the Court in Butler argued that the materials were anything resembling “art”, so the artistic merit defence did not directly arise.

59. Unlike modern art, with its explicit pretensions to seriousness, postmodern art may be derivative (from both “serious” art and other media, including pornographic materials), lacking a narrative, mocking often irreverent, or deliberately shocking. See, e.g. Juno, A. & Vale, V., Angry Women (San Francisco: Re/Search Publications, 1991)Google Scholar, a collection of interviews with and essays about women performance artists. In Roth v. United States, 354 U.S. 476 (1957), the United States Supreme Court held that obscene materials would be protected if they have “even the slightest redeeming social importance”. The much narrower standard of whether “the work taken as a whole lacks serious … artistic … value” was later adopted in Miller v. California, 413 U.S. 15 (1973).

60. Such State action is not unprecedented. The infamous Helms Amendment to the funding criteria for the American National Endowment for the Arts prohibited funding to artists whose work was homoerotic. See, e.g. Rohde, S., “Art of the State: Congressional Censorship of the National Endowment for the Arts” [1990] Hastings L.J. 353Google Scholar. Litigation by the American Civil Liberties Union (A.C.L.U.) challenged the constitutionality of the amendment on behalf of four artists who lost their funding as a result of this amendment. This litigation was settled in the summer of 1993 when the amendment was repealed, the artists received their funding and damages, and the A.C.L.U. received its legal costs.

61. Tim Miller was one of the four artists represented by the A.C.L.U. in the litigation challenging the Helms amendment. See ibid.

62. For example, in a half-hour interview with a [Toronto]Globe and Mail reporter, I insisted on focusing on discrimination against lesbians and gays. Nonetheless, the article [Globe and Mail (26 March 1993) A7] stated that “feminists opposed to censorship” were concerned about this abuse, implying that LEAF was not. The only quote attributed to me was incomplete and taken out of context. The Globe and Mail failed to respond in any way to a written complaint. A happy, but rare, exception is a piece in the Village Voice (30 March 1993) where Robert Atkins talks about the work I am doing relating to an appeal on a customs seizure of “Sluts and Goddesses”, a video on women's sexualities by Annie Sprinkle and Maria Beatty, even though he was sceptical about LEAF's approach in Butler.

63. These questions do not admit a “short, simple answer” but involve a consideration of at least three factors. Before the police lay more charges, they must first understand the nature of the harms-based, systemic inequality analysis as identified in Butler and not use morality-based rationales for prosecution. Further, it may be inappropriate to lay charges only in response to complaints, as these are most likely to be generated by art work in public spaces. Finally, the police must not discriminate by targeting materials created for lesbians or gay men whilst ignoring heterosexual materials.

64. E.g., students in Calgary viewed a number of sexually explicit videotapes and then reported to the police that they thought a number of them should be seized. The police then seized the videos. Western Report (7 June 1993) reported that “feminist and conservative women's groups applauded” the students' initiative. It went on to state that the students met as a result of their common involvement with LEAF. No one has ever proposed that LEAF take on this project and it has never been approved for adoption by LEAF. Nonetheless, many now believe that LEAF is behind the project. LEAF National Office only heard about the project when the newspaper report was brought to our attention. See also, McIntyre, S., “Backlash Against Equality: The ‘Tyranny’ of the ‘Politically Correct’” (1993) 38:1McGill L.J.Google Scholar where she argues that mainstream media's focus on “politically correct” is part of a movement to generate and fuel popular fear against substantive egalitarian change.