Far be it from me not to enjoy it when conservatives throw each other under the bus. But, the attack on Tom Flanagan last week for his comments on child pornography sent chills up and down my spine.
Flanagan made some not very thoughtful off-the-cuff remarks about child pornography, wondering whether we should jail people “because of their taste in pictures.” He was attacked from all sides. Indeed, it may be the only time that the CBC, the University of Calgary, the Harper government and the Wildrose Party have ever agreed on anything.
So, what’s the problem? Child pornography is bad, right? Of course it is. But, the moral panic around it has insulated the child pornography law from any and all criticism. Nothing can be said. And if it is, the speaker is denounced as a pedophile.
The law includes any sexually explicit representation of a person under the age of 18. That means that young children are treated the same as teenagers. It also means that the depiction of lawful sex between, say, two gay 17-year-olds would be child porn under the law.
While Flanagan's remarks were careless, he also had a point, says legal expert Brenda Cossman.
The law also includes artistic representations; it isn’t limited to materials that use children in its production but also includes works of the imagination, from film to cartoons.
About 15 years ago, the law was challenged as violating the Charter of Rights and Freedoms, in R v Sharpe. The Criminal Lawyers’ Association, the Canadian Civil Liberties Association and the British Columbia Civil Liberties Association all intervened, arguing that the law was too broad. Both the trial judge and the British Columbia Court of Appeal agreed and struck it down. These were some reasonable — if controversial — voices criticizing the law.
The Supreme Court upheld the law, but it narrowed it a bit. It said that the depiction of lawful sex for private use should not be included in the law. The two 17-year-old boys, then, who take pictures of themselves for private use are exempt from the law.
But now let’s imagine that one of the 17-year-olds forwards the picture to another friend. Now all bets are off, because it is no longer for purely private use. Somebody might be going to jail.
Kids — gay and straight — sexting images of themselves isn’t that hard to imagine. They do it every day. There are lots of reasons to be concerned about sexting, and how it may turn into cyberbullying, but that is a whole other question than child pornography, a serious crime that sends folks to jail for a long time.
The law also still includes works of the imagination. Comics, like Japanese anime, are included and have been prosecuted. This makes our law a lot broader than child pornography laws in the United States, which tend to focus on materials that involve real children.
If a child has been used to make the image, then sure, there’s harm. (Flanagan’s careless, if not outright stupid, remarks made the possession of child pornography sound like it was always a victimless crime). But, what about looking at a graphic novel? Should looking at a sexualized image in a graphic novel send people to jail? While some people may say yes, this is at least a legitimate question. And it is a question not that far from the one that Flanagan was raising, about the nature of harm and the reach of the law.
None of this is what Canadians think about when they get outraged at child pornography, and at Flanagan for questioning the harm of child pornography. No doubt, they think of the sexual abuse of young children — sometimes very young children. The problem is that the debate is shut down before anyone can raise reasonable questions about the reach of the law.