Newspaper reports on the recommendations of the Fraser Committee on Pornography and Prostitution focused mainly on its controversial proposal that brothels be legalized. The committee’s recommendations on pornography (see box this page) which established three categories of pornography, received scant attention; most newspapers reported only that child pornography would be subject to stiff penalties.
The committee sums up its task as to reconcile the “conflict between fundamental values like equality on the one hand and freedom of speech on the other.” The report, released at the end of April, discussed at some length the differing philosophical views presented at its public hearings across Canada. In the ‘liberal view,’ “the fundamental value is the freedom of individuals to develop their own view of life, without direction from the state or from the majority.” The ‘conservative view’ holds that “the state has a right to step in and prevent personal immorality where it clearly offends the sense of propriety and decency of the majority of the community.”
It is clear, however, that the one view accorded the most respect by the committee is the feminist one. The following paragraph sums up the committee’s thinking:
With respect to pornography, the emphasis on equality will, we believe, require a shift from the traditional focus on sexual immorality as a basis of criminal prohibitions against pornography. We believe that the development of theory which views pornography as an assault on human rights, will have to be integrated into the conceptual framework of the criminal law on pornography. Our recommendations thus include a complete reworking of the Criminal Code prohibitions in this area, to create offences based not on concepts of sexual immorality but rather on the offences to equality, dignity and physical integrity which we believe are involved in pornography.
The report’s authors summarize the feminist views as follows:
Pornography is seen as especially odious because it reinforces that [sexual class] system by instilling and perpetuating notions about women’s inferiority and limited role within society. It sets women apart as different and characterizes them as the legitimate objects of not only male sexual pleasure, but male frustrations and violence.
A few quotations from the report will show just how limited is this view. The report notes that, “the position of most feminist groups… was that erotica, which they described as sexually explicit material which the participants were there by choice, was acceptable.” The Ontario Advisory Council on the Status of Women said, in part:
Pornography is unacceptable not because it portrays explicit sex but because it promotes hatred, violence, degradation and dehumanization. Pornography is sexist material that portrays women as a distinct sub-human species that does not feel pain or humiliation in the same was as men, and which desire violence and degradation for sexual pleasure. Pornography advocates, encourages and condones coercion, sexual violence and battering and portrays these activities as normal behaviour. As an expression of sexist ideology, pornography promotes a climate in which acts of sexual hostility directed against women are not only tolerated but ideologically encouraged.
“Women are…terrorized by the message that male violence and power is so prevalent and menacing. Pornography alienates women and men. In no way does it foster healthy sexual or human relations any more than other forms of hate literature would foster healthy relations between races or religions.
The contention that pornography is essentially hate literature was promoted by several women’s and homosexuals’ rights groups appearing at the public hearings. The committee subsequently made a recommendation that the Criminal Code sections on hate literature be amended to include penalties for those publishing printed statements or visual representations “which promote hatred against any identifiable group.”
Deborah Seed of the department of humanities at John Abbott College, at the hearing in Montreal, attempted to define the difference between erotica and pornography. She said,
Erotica is for sexuality, since its message implies a mutually pleasurable expression between people; pornography is about commercialized sex, dominance, conquest, and violence against women. Erotica suggests a more balanced power relationship and respect for the body; pornography forces a distorting commercial relationship between the conqueror and victim, and hence is degrading to both male and female.
While feminist groups argued a case for control of pornography with sexually-violent content, other groups rejected the need or control of any kind. Representatives from homosexuals’ rights groups view pornography using young children as legitimate. The report notes:
… there may well be a cultural dimension to material discussing or promoting sexual activities with young people. Spokespersons for the gay community in particular have cautioned us against measures which would make legitimate communication and exploration of sexual identity in that community a perilous activity. We are appreciative of the thoughtful and informed advocacy of this point of view which we received during our hearings.
Nevertheless, the committee report went on to deny the validity of this argument. Homosexual activists also informed the committee that members of their community should be the ones to decide whether their “flourishing tradition of erotic literature” is pornographic. A judge’s decision, applying the test of “community standards,” is invalid, they argued, because “no judges are known to be openly gay.”
Also opposed to control of pornography is the Canadian Civil Liberties Association. The organization sees it as an issue of the right to freedom of expression and “is firm in its opposition to censorship of any material involving simulated (report’s emphasis) sexual abuse.” The CCLA would, however, concede “that in the case of pornography which involves the actual abuse of real people ‘there is an arguable case for legal prohibition against the resulting film or literature.’”
In framing its recommendations in alignment with feminist thinking on pornography, the Fraser committee dismisses out of hand the growing body of research which proves that even so-called “soft-core” pornography is far from benign in its influence. This kind of pornography falls into the committee’s “third tier” (see Fraser Committee recommendations) and would be subject to prosecution only if it was accessible to children or did not have a warning notice posted.
The report notes that many of the briefs received by the committee referred to research proving that pornography is harmful. Yet, the committee members argue, their own “careful analysis” found that the research “is so inadequate and chaotic that no consistent body of information has been established.”
Having dismissed up-to-date research on the subject, the committee steered its recommendations towards accepting a militant feminist ideology and the liberal view that the state has no business regulating pornography. The emphasis is on “equality” and away from “the traditional focus on sexual immorality.” The recommendation on “tier 3” material clearly states that material in this category is still considered to be pornographic; the committee believes that this type of pornography is acceptable in Canadian society – on the condition that warning notices are posted and that pornography is not sold to children under 18.
The committee recommends that the provinces and municipalities be the authorities to regulate this third-tier pornography through, it suggests, “film classification, display by-laws, and other similar means.” It warns that “the provinces should not, however, attempt to control such representation by means of prior restraint.” In contrast to the specific penalties recommended for the first two tiers, the committee does not recommend specific penalties for anyone displaying “visual pornographic material” without posting an adequate notice as to the kind of material being displayed.
Since 87 percent of the pornography available in Canada is imported, the committee makes recommendations to bring Canada Customs regulations in line with Criminal Code prohibitions. Acknowledging that most imported pornography is not detected by Customs, it recommends that “the simple fact of a Customs clearance should not be a complete defense” to a later charge of importing.
Following discussions with Customs officials, the committee said that their impression was “that the inability of Customs to stem the flow of pornography into Canada was due, in part, to the lack of political will.” Recommending that the federal government give a higher priority to the control of imported pornography, the report states, “we were advised that greater emphasis has been given by the federal government to the enforcement of the rules and regulations that apply to automobiles and clothing” than to checking the flow of imported pornography.
In response to concerns expressed by many Canadians that pornography has become too widely available on television, the committee adopted a similar approach to that taken with Customs regulations. They recommend that the Canadian Radio and Telecommunications Commission’s regulations should reflect Criminal Code proscriptions. This would only prohibit the kind of pornography referred to as tiers 1 and 2 (i.e child pornography, actual physical harm being depicted, and sexual violence); it would not affect the material defined as tier 3 pornography because this is not considered to be harmful by the committee.
Similarly, the committee approves of provincial film and videotape review boards, with limitations on their powers to censor. Boards would have an “explicit statutory mandate to refuse to permit exhibition in the province of films which are contrary to the Criminal Code.” Boards would not be permitted to cut or ban films in the third tier of pornography: their role is merely to classify these films, monitor the presence of adequate warnings and to prevent access to children under 18.
The federal government has not yet announced what steps, if any, it will take to revise the Criminal Code in the light of the Fraser Committee’s recommendations. Readers who are alarmed at the committee’s dismissal of traditional views on pornography, and its lack of interest in regulating so-called “soft-core” pornography, may wish to write to the Minister of Justice informing him that the Fraser view on this subject is not a widely-held view. The Hon. John Crosbie, Minister of Justice, can be reached at The House of Commons, Ottawa, Ontario K1A 0A6. No postage stamp is required.