CRIMES OF THE IMAGINATION

National Post, January 11, 2000

Donna Laframboise

When a notorious child pornography case goes before theSupreme Court next week, Canadians

will be confronted byissues most of us would prefer not to think about.

Lawyers for JohnRobin Sharpe, the British Columbia man acquitted by lower courts in 1999 of

possessing illegalmaterial, will argue that this country's child porn law is too broad. They willargue

that although somesexually oriented material involving children should be against the law,

criminalizing storiesand sketches that are purely works of the imagination amounts to declaring

certain ideas"thought crimes" -- a la George Orwell novel, 1984.

No matter how muchthe sexual abuse of children disgusts us, Mr. Sharpe's lawyers are hardly the

first to make thispoint. Organizations such as the Canadian Civil Liberties Association (of whichI

am a member of theboard of directors) have been raising it for years.

Almost everyoneagrees that the sexual exploitation of real children by adults should be acriminal

offence. But suchbehaviour was against the law long before Canada's child porn legislation,

rushed throughParliament in 1993, criminalized the mere possession of a vast array ofmaterial.

Mr. Sharpe has notbeen charged with molesting actual children. Rather, he has been charged with

being in possessionof sexually oriented material involving persons under the age of 18. But if no

real children wereharmed by its production why should it be illegal?

Among thematerial the Criminal Code now prohibits us from possessing are fantasies thatI, an

adult woman, might write down involving me andan imaginary 17-year-old boy. There's no law

against me writing short stories in which theboy and I rob a bank, shoot-up heroin, or commit

mass murder together. Indeed, I can even writeabout hacking the boy to pieces with a rusty axe.

But let me write about unbuttoning his shirtand having sex with him and I become a criminal.

[Back]

Although it'sperfectly legal for a 16-year-old girl to have sex with her 17-year-oldboyfriend, if

that girl sketchesthe 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 motherwould be in possession of child porn. Should the girl show the sketch to one of

her friends, shebecomes a distributor of child porn.

Many of the peopleaccused of being child pornographers in recent years have hardly been

unabashedpaedophiles. Computer bulletin board operators in several provinces have beenraided,

arrested, had theirequipment seized, and been subjected to the ordeal of criminal proceedings

because a tinyportion of the sexually oriented material on their boards involved fictionalstories

that technicallycontravened the law. In some cases, these stories included nothing more risque

than teen sex.

Nor should we forgetthat one of the first people to be charged under the child porn provisions

was artist EliLanger. His paintings, evocative works of the imagination exploring the trauma

suffered by sexuallyexploited children, were seized from the walls of a Toronto art gallery within

months of theenactment of the legislation -- despite prior police assurances that the arts

community had noreason to be concerned about the law.

How the arrest,stigmatization, prosecution, financial crippling in the form of legal fees, and

imprisonment of suchpeople does anything to fight real sex abuse remains a mystery.

Yet while there's noreason to believe Canadian children became safer when these deeply flawed

clauses were added toour Criminal Code seven years ago, should the Supreme Court strike down

these provisions,opportunistic politicians and ill-informed media commentators will no doubtraise

a ruckus.

But before they do,they might ask themselves why we don't throw the authors of murder

mysteries (or truecrime books) in jail. If short stories about having sex with children tell

paedophiles it's okay to abuse children, whydon't endless books about people being murdered

encourage us to commit homicide? [Historical note: Atthe time (pre-Internet) my book was written, the American Civil Liberties Unionwas opposed even to pornography showing adult sexual contact with real childrenbeing illegal, on grounds that that could lead to many other types ofportrayal being made illegal. They reasoned that making suchpornography--because it constitutes child sex abuse--should be illegal,but the pornography itself should not be. I am not aware of whatposition their Canadian counterpart the CCLA held on photographic childpornography at that time, but today it agrees that type should be banned.][Back]

Isn't it odd that weconsider reading about murder harmless entertainment, but reading about sex

and children acriminal offence worthy of imprisonment?

Isn't it strange thatwe trust murder-mystery-buying Canadians to use hunting rifles responsibly --

and yet we thinkthese same Canadians so suggestible that mere words and images will turn theminto paedophiles?