Obscenity, Indecency, Sex Dolls and Freedom

December 11, 2017

Obscenity and Indecency related offences continue to be regulated under the Criminal Code of Canada. The adjudication of the obscene and indecent is well-mined terrain in the Canadian jurisprudence. Whether it be the regulation of erotic dance and strip clubs, swinger's clubs or pornography, the material at issue needed to be assessed at to whether it is harmful - a matter often obscured by moral calculi. Child pornography continues to be a regular fixation of the courts, and the harms inherent in such cases often inculcate the staid weighing of procedural adjudications.

 

These matters take on new meaning in the context of new technology. Whether it be virtual reality, or interactive sex dolls/robots, the laws of obscenity and indecency continue to be tested. The case of R v Harrisson, in Newfoundland, raises issues of child pornography squarely in this context. The accused ordered a childlike sex doll for personal use from a Japanese manufacturer. The Canada Border Services Agency intercepted it, and Harrisson was charged with  possessing child pornography and mailing obscene matter, as well as two charges under the federal Customs Act of smuggling and possession of prohibited goods.

 

CBC news reported that:

 

"Dr. Peter Collins testified in provincial court Tuesday in St. John’s that the doll is the size of a prepubescent child without sexually mature characteristics...

 

Canada’s Criminal Code says child pornography includes “a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means” that shows explicit sexual activity involving anyone who is, or is depicted as being, under the age of 18.

Such materials are also child porn if they primarily depict, for a sexual purpose, a sexual organ or anal region of anyone under 18.

 

Collins testified as an expert witness who is frequently consulted by police on such cases. He also quoted research by Michael Seto, a Canadian forensic psychologist who focuses on pedophilia.

 

Collins said some pedophiles can become “incited” by imagery, such as sex dolls, while others may be satiated or satisfied before committing actual crimes. Outcomes differ according to many factors including stress, Collins testified."

 

The case has reignited old debates about harm in a new context. One viewpoint continues to be that such laws, and the application of such laws to accused persons like Harrisson, unduly troubles the right to freedom of expression of Canadians.

 

This week's featured paper unabashedly argues for complete freedom in the context of obscenity and indecency law.  Julie Yan argues that the laws restrict "artistic freedom by requiring an unsubstantiated risk of harm" (Yan 2017, 363).  Consequently, she "takes an anti- censorship feminist approach arguing there is profound educational value to be had in allowing artists to depict morally taboo subject matter. " She "offers a policy recommendation to eliminate the law of obscenity and indecency" (Yan 2017, 363).

 

At page 365, Yan notes:

"Holding an anti-censorship view, I believe that sexual imagery should be liberated rather than repressed to allow for free expression. This is because “the right to freedom of expression rests on the conviction” that not only “‘good’ and popular expression [is protected], but also unpopular or even offensive expression”... As such, [I] argue that censorship, based on narrow viewpoints and unsubstantiated evidence limits the expression of ideas and silences the very voices that can raise awareness toward social change. While strides have been made to refine the law, law reform is not the answer because it compromises the principles for freedom of expression by stifling the development of new and challenging art forms. Moreover, law reform does not prevent artists from defending their work at considerable personal and financial costs. Consequently, this paper moves beyond alteration to suggest obscenity law be eliminated "
 

See the entirety of this week's featured paper Art in the Dichotomy of Freedom of Expression & Obscenity: An Anti- Censorship Perspective in the current Robson Crim Edition of the Manitoba Law Journal.

 

 

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