Confronting collective harm: technology's transformative impact on child pornography.

• Author: Bailey, Jane
• Position: Canada

The world, I think, can be divided into 2 kinds of people: ... those who think the Internet and the new communications technologies herald a revolution calling for radical rethinking of our basic notions of law and politics and society, and those who think it does not, that it is simply more of the same, an incremental change in the way human interaction proceeds. (1)

INTRODUCTION

The epigraph suggests a dichotomy that makes categorization simple--those who accept that Internet and new communication technologies present changes "in kind" which necessitate abandonment of "old" ways of thinking about law, politics, and society, and those who deny this new reality and seek to treat it merely as incremental change. Those in the latter group are not infrequently portrayed as luddites, unwilling and unable to accept that technology necessitates rethinking everything from the ground up. Through the exploration of the impact of emerging technologies on child pornography, I suggest that this dichotomy is more fictional than real; technological developments can facilitate both transformative and incremental change. Perhaps more importantly, I suggest that transformations brought about by technology need not compel us in every instance to abandon old ways of thinking. These transformations may actually reaffirm the significance of previously made commitments and values that have been under-recognized in examinations of the justification for existing laws. In so doing, these transformations offer us not only the opportunity to get clearer about our values and commitments, but to explore new justifications for "old" ways of thinking that did not previously exist, were ignored, or were once considered weak.

It is a crime in Canada to participate in many facets of the child pornography industry, from possessing and knowingly accessing child pornography through to manufacturing and distributing it. (2) Criminal prohibitions apply whether the material in question derives solely from the imagination, involving no "real" children in its production, or actually depicts "real" children. (3) With certain limited exceptions, it is equally illegal to photograph the sexual abuse of a child, to write a story advocating sexual activity with an "imaginary" child, to photograph an adult posing as a child engaged in explicit sexual activity, and to draw pictures showing "imaginary" children in explicit sexual activity. Criminal restrictions on the latter examples relating solely to stories and depictions of imaginary children are characterized as "virtual child pornography" for the purposes of this paper.

The Criminal Code (Code) provisions relating to child pornography have been the object of considerable academic, NGO, and judicial commentary and criticism, as well as political debate. (5) Technological innovation, in particular the Internet, renewed and perhaps intensified the debate prompting calls for international action, legislative reform, and academic comment. Much of the debate focuses on technology's impact on the "scope" of the problem of child pornography and its increased accessibility. (6) Somewhat less attention has been paid to the potentially transformative aspects of these technologies and their impact on foundational issues, such as the justifications for regulating child pornography which bring into stark relief the significance of its broader collective harms.

The "old" way for thinking about the justification for restrictions such as these was outlined in the Supreme Court of Canada's (SCC) landmark decision on the constitutionality of the provision as it stood in 1992 in Sharpe. (7) The SCC referred in its reasons to the objectives of preventing harm to children, including allusions to their rights to dignity, privacy and bodily integrity. (8) However, its analysis of harms was premised first and foremost on the risk of physical harm to individual children associated with the creation and consumption of both virtual and non-virtual child pornography.

This paper urges further reflection on the understanding of the harms of child pornography identified by the SCC in an attempt to get clearer about the rights and interests at stake, while grappling with the impact of related technological advances. I argue that the impact of the Internet and related digital technologies is not simply incremental, but also transformative. Emerging technologies blur the line between conscience, expression and action in ways that cry out for an understanding of the harms of child pornography encompassing not just the extremely concerning physical harm to individual children, but also broader social harms to children's collective dignity and equality rights.

Part I is an examination of the legal history leading to and connecting prior child pornography legislation with recently enacted amendments, including two key cases involving virtual child pornography in the offline context--Sharpe and Langer. (9) Part II examines the harms analysis accepted by the SCC in Sharpe, assessing in particular its emphasis on individuated physical harm, which has subsequently been repeated in other cases. Part III explores the ways in which the Internet and related technological advances have presented incremental challenges to the enforcement and prosecution of child pornography laws. It then considers technologically-initiated transformative change that leads to an understanding of harms focusing not only upon physical harm to individual children, but also broader collective harms to children's equality.

PART I--CANADA'S CHILD PORNOGRAPHY PROVISIONS

The criminalization of acts relating to child pornography in Canada has followed a long and somewhat arduous path, reacting and responding to international obligations undertaken by Canada in relation to the rights of children, as well as constitutional challenges and judicial interpretations that have spurred legislative action.

1. Leading to Sharpe--Events of the 1990's

   In 1991, Canada ratified the Convention on the Rights of the Child (CRC). (10) The CRC required signatory nations to, among other things, take all appropriate legislative, administrative, social, and educational measures to protect those under the age of 18 from all forms of violence (including sexual abuse) as well as economic and sexual exploitation (including participation in pornographic performances and materials). (11) While courts have relied on these obligations in interpreting domestic legislation affecting the rights and well-being of children, Canada has not transformed many of its CRC obligations into domestic law. (12)

   Until 1993, child pornography in Canada was dealt with under the obscenity provision of the Criminal Code, the constitutionality of which the SCC upheld in Butler. (13) The Court found that, having regard for community standards of tolerance with respect to the risk of harm pornography poses to women and children, the following were permissibly restricted unless their portrayal was shown to be "essential to a wider artistic, literary, or other similar purpose":

   (i) sex coupled with violence; and

   (ii) explicit sex which is degrading or dehumanizing if the risk of harm is substantial. (14)

   At the same time, the SCC held that explicit sex which is not violent, dehumanizing, or degrading is generally within community standards, "unless it employs children in its production." (15) The Court's analysis focused not only on individuated physical harms associated with the production and consumption of obscenity, but also its broader affront to equality. Sopinka J., for the majority, accepted that the effects of obscenity could alter attitudes toward women and children, undermining their place in the community just as hate propaganda can alter attitudes toward members of targeted groups. The majority cited with approval the following passage from Dickson C.J.C.'s reasons in the hate propaganda context:

   [T]he alteration of attitudes held by the recipients of hate propaganda may occur subtly, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some truth, an incipient effect not to be entirely discounted ... (16) In June 1993, Parliament added s. 163.1 to the Code, which specifically addresses child pornography.(17) In addition to criminalizing the making, printing, publishing, distributing, and circulating of child pornography (which were the restricted acts with respect to obscenity pursuant to s. 163), s. 163.1 criminalized possession for the purposes of publication, distribution, or sale, as well as simple possession of child pornography. (18)

   "Child pornography" included both visual representations depicting or advocating sexual activity with persons under 18, and certain depictions of the sex organs or anal region of a person under 18, in addition to written materials advocating or counseling sexual activity with a person under 18. (19) The three statutory defences included: (i) artistic merit or an educational, scientific, or medical purpose; (ii) serving the public good, and (iii) an honest though mistaken belief that the persons depicted were over 18. (20)

   Over the course of the next several years, the provisions were the focus of significant police investigation, yielding numerous prosecutions. (21) Langer and Sharpe, two of the more high profile and controversial prosecutions, related (at least in part) to virtual child pornography in the "offline" context. (22) Sharpe eventually made its way to the SCC and represents the Court's latest commentary on the constitutionality of restricting child pornography.

   (A) Langer

   On 20 April 1995, McCombs J. of the Ontario Court (General Division, as it then was) dismissed a Crown application under s. 164 of the Code for forfeiture of five large oil paintings...