Federal Justice Minister, Ray Hnatyshyn, is in the hot seat over his proposed legislation to curb pornography, recently tabbed in the House of Commons.

The critics, calling the proposals “puritan,” “dangerous,” and “acceptable to Queen Victoria and Jimmy Swaggart,” are mostly the same individuals and special interest groups who last year attacked Hnatyshyn’s predecessor, John Crosbie, over his proposals to stop pornography.  (Crosbie’s bill died on the order paper when the latest session of parliament ended.)

The new legislation is drafted along the same lines as Crosbie’s earlier bill, proposing severe penalties for child pornographers and for material showing violence in a sexual context, or where physical pain or degradation is depicted.

Unlike the earlier bill, proposing severe penalties for child pornographers and for material showing violence in a sexual context, or where physical pain or degradation is depicted.

Unlike the earlier bill, however, it attempts to define erotica and distinguish between erotica and pornography.  Crosbie’s legislation had referred vaguely to depictions of “other sexual activity” in an apparent attempt to regulate soft-core pornography – what some people call erotica – and had come under fire as allegedly planning to ban kissing.

Hnatyshyn’s bill also contains a prohibition of “any matter or commercial communication that incites, promotes, encourages or advocates any conduct” that would be considered pornographic or that is considered “hate literature” under the Criminal Code (materials that are “obscene, immoral, indecent or scurrilous”).

Child pornography banned

The section is seen to be an attempt to curb the growing number of telephone services that offer pornographic messages and so on.  But a largely unnoticed addition to the definitions of “identifiable groups” against whom hate literature is prohibited has won the approval of feminist leaders.

Under existing law, groups distinguished by “color, race, religion or ethnic origin” are protected from material against them.  Hnatyshyn’s bill would add “sex” to the protected list.  Louis Dulude, president of NAC, commented that this would prohibit material that advocates “that women be killed,” a type of material she claims is not now prohibited.

The major sections of the bill are:

* Child pornography. Jail terms of up to 10 years would apply to anyone who involves a person under 18 in sexually-explicit films, magazines, videos or theatrical performances.  Anyone who imports, makes, sells or distributes child pornography would be subject to the same penalty.  Possession of such material would be punishable by up to six months in jail or a $2,000 fine, or both.

Child pornography is defined as any visual matter showing sexual conduct “that involves or is conducted in the presence of a person who is, or is depicted as being or appears to be, under the age of 18 years.”

As well as sexual conduct, it includes “the exhibition, for a sexual purpose, of a human sexual organ, a female breast or the human anal region.”

* Violent pornography. This includes actual or apparent physical harm, sexually-violent conduct, degrading acts, bestiality, incest or necrophilia.  Convictions under this category would be subject to jail terms of up to five years.

Erotica is now defined

Physical harm is defined as any visual depiction of a person “causing, attempting to cause or appearing to cause, in a sexual context, permanent or extended impairment of the body or bodily functions of that person or any other person.”

Sexually-violent conduct is specifically “sexual assault and any conduct in which physical pain is inflicted or apparently inflicted on a person by that person or any other person in a sexual conduct.”

Sexually degrading acts include acts where “one person treats that person or any other person as an animal or object, penetrates with an object the vagina or the anus of that person or any other person or defecates, urinates or ejaculates onto another person, whether or not the other person appears to be consenting to any such degrading act, or lactation or menstruation in a sexual context.”

* Sexual intercourse. Visual depictions of oral, anal or vaginal intercourse by adults would be punishable by two years’ imprisonment, a $2,000 fine, or both.  Acts of masturbation or ejaculation (without the element of degradation which is considered more serious) would be subject to the same penalties.

* Erotica. “Erotica” means “any visual matter a dominant characteristic of which is the depiction, in a sexual context or for the purpose of sexual stimulation of the viewer, of a human sexual organ, a female breast or the human anal region.”  Such material would not be prohibited.  However, regulations would prohibit it being sold or rented to anyone under 18.  Penalties for selling or renting – or offering to sell or rent – erotica to minors would be up to six months in jail, a $2,000 fine or both.

The same penalty applied to retailers who publicly display erotica and to theater owners who allow erotica to be presented in front of anyone under 18.

Store owners will be required to post a prominent warning, or display the erotica in opaque wrappers or behind barriers.

In introducing the legislation, Justice Minister Ray Hnatyshyn said, “Ensuring the dignity of the individual in Canadian society is paramount.  We must protect our children from gratuitous violence, whether emotional or physical and protect individuals from sexual exploitation.”

“I believe, and I know all Canadians agree with me,” he added, “that there can be no justification for the depiction of extreme sexual violence or the exploitation of Canada’s youth.”

While opposition critics, lobbying groups and opinion columnists applauded the Conservatives’ stand against child pornography and sexual violence, they argue that the definitions of pornography are too narrow.”

NDP justice critic Svend Robinson charged that the legislation would put the state back into the bedrooms of the nation.  “Nothing could be further from the truth,” responded Hnatyshyn.

“What has this to do with the dissemination of pornography across our country.  This has nothing to do with laws respecting sexual activity between consenting adults.”

NAC’s Louise Dulude called the bill “puritan” in defining depictions of sexual intercourse as pornography.  “They consider that pornography, while we consider it to be erotic,” she said.  Dulude added that NAC will be lobbying hard to have sexual intercourse redefined as erotica.

Art is not pornography

Pierre Berton, writing a special article in the Toronto Star, slammed “the yahoos and rednecks who run our lives,” charging that the legislation was banning sex under a “hypocritical guise, of banning ‘kiddie porn’ which,” he adds, “hardly exists in this country anyway.”

Berton says the legislation has a “darker purpose” and is “especially hard on homosexuals.”  Why?  Because “by banning any depiction of masturbation, oral or anal intercourse, they deny the gay community all forms of visual stimulations; and it’s a community that is especially vulnerable.  In the light of recent events there’s reason to believe that the police will be especially vigilant in ensuring that homosexuals and lesbians don’t have any fun.”  He does not define “recent events.”

Certainly, some of the homosexual “literature” that has been sent into The Interim qualifies as pornographic in the extreme.  However, since a defense of “educational purpose” is available to those charged with publishing pornography, presumably this material may well escape penalties.

Many arts groups have joined in the cry to protect such censorship, even though films, theatrical productions, sculptures, paintings, magazines and so on will all be able to defend themselves against pornography charges by proving that the works have “artistic merit.”  Incredibly, Shakespeare’s Romeo and Juliet is cited as an example of possible prosecution.  The argument being that if the actors were under 18 they would be vulnerable to prosecution.  Leaving aside any other criticism of this example, is it seriously suggested that the author intended the play to be produced with scenes of nudity and sexual intercourse?

Obviously stung by articles by Berton and others in the Star, Minister Hnatyshyn responded in an article, exclusive to that newspaper, on May 23.

Critics of the bill “have gone to considerable lengths in demonstrating that art is not pornography and artists are not pornographers,” Mr. Hnatyshyn pointed out.  “The government agrees,” he said.  “This is why the proposed legislation is squarely aimed at hard-core pornography while ensuring the protection of creative freedom.”

Artistic merit prohibited

The legislation contains “provisions which safeguard artistic expression and are the direct result of the government’s consultations with representatives of the artistic community.  These are safeguards which do not exist in current law.”

Current Criminal Code sections dealing with pornography speak of “obscene matter” which, among other things, “unduly exploits sex.”  The test for determining whether material fails under the Criminal Code is that of “community standards,” a determination that is vague and which varies from court to court across Canada.

Bill C-54 defines, for the first time, activities which are considered pornographic and unacceptable.  It allows for freedom of expression in its provision that “artistic merit and educational or scientific purpose” will be allowed as a defense in prosecution.

As Mr. Hnatyshyn explains in the Star:

“It is important to remember that the police, in deciding whether to lay a charge, and the crown, in deciding whether to proceed with a prosecution, would be unlikely to proceed where there is artistic merit.”

No more bedrooms on Main Street

He also dismisses critics’ fears that the bill is designed to prohibit nudity in art.  “Some commentators have equated the government’s definition of erotica with nudity.  This is, quite simply, wrong,” he says.

“The definition is clear in stating that erotica is visual matter, a dominant characteristic of which is the depiction of a human sexual organ, the female breast or human anal region in a sexual context or for the purpose of the sexual stimulation of the viewer.”

“Those who claim that statues of nudes will need to be clothed and that cherubs will need to be painted over clearly do not understand the bill.  It should be noted, as well, that a defense of artistic merit has been provided for in relation to the offense of displaying erotica.  In other words, if a visual depiction falls within the definition of erotica, no prosecution for displaying it in a public place without a warning, etc., could succeed where the material involved has artistic merit.

When John Crosbie presented his anti-pornography proposals last year, many church groups and individuals spoke up and wrote supporting his stand.  With Bill C-54, the dominant voice at the moment appears to be those opposed to any kind of restriction, calling it “censorship” and claiming that Canadians do no want such measures.

REAL Women of Canada, however, supports Bill C-54 President Lynne Scime observes that, just because Canadians don’t want the state in the bedrooms of the nation, “Canadians are fed up with having the bedrooms of the nation on Main Street.”  Mrs. Scime said that it is up to those in favor of Bill C-54 to let the government know.