CRIMES OF THE IMAGINATION
National Post, January 11, 2000
When a notorious child pornography case goes before the Supreme Court next week, Canadians
will be confronted by issues most of us would prefer not to think about.
Lawyers for John Robin Sharpe, the British Columbia man acquitted by lower courts in 1999 of
possessing illegal material, will argue that this country's child porn law is too broad. They will argue
that although some sexually oriented material involving children should be against the law,
criminalizing stories and sketches that are purely works of the imagination amounts to declaring
certain ideas "thought crimes" -- a la George Orwell novel, 1984.
No matter how much the sexual abuse of children disgusts us, Mr. Sharpe's lawyers are hardly the
first to make this point. Organizations such as the Canadian Civil Liberties Association (of which I
am a member of the board of directors) have been raising it for years.
Almost everyone agrees that the sexual exploitation of real children by adults should be a criminal
offence. But such behaviour was against the law long before Canada's child porn legislation,
rushed through Parliament in 1993, criminalized the mere possession of a vast array of material.
Mr. Sharpe has not been charged with molesting actual children. Rather, he has been charged with
being in possession of sexually oriented material involving persons under the age of 18. But if no
real children were harmed by its production why should it be illegal?
Among the material the Criminal Code now prohibits us from possessing are fantasies that I, an
adult woman, might write down involving me and an imaginary 17-year-old boy. There's no law
against me writing short stories in which the boy and I rob a bank, shoot-up heroin, or commit
mass murder together. Indeed, I can even write about hacking the boy to pieces with a rusty axe.
But let me write about unbuttoning his shirt and having sex with him and I become a criminal.
Although it's perfectly legal for a 16-year-old girl to have sex with her 17-year-old boyfriend, if
that girl sketches the two of them in a sexual embrace, our laws say she has just manufactured
child pornography. Should her mother discover the sketch and not immediately destroy it, both the
girl and her mother would be in possession of child porn. Should the girl show the sketch to one of
her friends, she becomes a distributor of child porn.
Many of the people accused of being child pornographers in recent years have hardly been
unabashed paedophiles. Computer bulletin board operators in several provinces have been raided,
arrested, had their equipment seized, and been subjected to the ordeal of criminal proceedings
because a tiny portion of the sexually oriented material on their boards involved fictional stories
that technically contravened the law. In some cases, these stories included nothing more risque
than teen sex.
Nor should we forget that one of the first people to be charged under the child porn provisions
was artist Eli Langer. His paintings, evocative works of the imagination exploring the trauma
suffered by sexually exploited children, were seized from the walls of a Toronto art gallery within
months of the enactment of the legislation -- despite prior police assurances that the arts
community had no reason to be concerned about the law.
How the arrest, stigmatization, prosecution, financial crippling in the form of legal fees, and
imprisonment of such people does anything to fight real sex abuse remains a mystery.
Yet while there's no reason to believe Canadian children became safer when these deeply flawed
clauses were added to our Criminal Code seven years ago, should the Supreme Court strike down
these provisions, opportunistic politicians and ill-informed media commentators will no doubt raise
But before they do, they might ask themselves why we don't throw the authors of murder
mysteries (or true crime books) in jail. If short stories about having sex with children tell
paedophiles it's okay to abuse children, why don't endless books about people being murdered
encourage us to commit homicide? [Historical note: At the time (pre-Internet) my book was written, the American Civil Liberties Union was opposed even to pornography showing adult sexual contact with real children being illegal, on grounds that that could lead to many other types of portrayal being made illegal. They reasoned that making such pornography--because it constitutes child sex abuse--should be illegal, but the pornography itself should not be. I am not aware of what position their Canadian counterpart the CCLA held on photographic child pornography at that time, but today it agrees that type should be banned.][Back]
Isn't it odd that we consider reading about murder harmless entertainment, but reading about sex
and children a criminal offence worthy of imprisonment?
Isn't it strange that we trust murder-mystery-buying Canadians to use hunting rifles responsibly --
and yet we think these same Canadians so suggestible that mere words and images will turn them into paedophiles?