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EDITORIAL: Flanagan's question worth discussing

EDITORIAL: Flanagan's question worth discussing

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Canada's child pornography law has rightly been criticized for years
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.
 
But, there is a lot to say about Canada’s child pornography law. It’s a very broad law that civil libertarians, artists and writers have criticized for years.
 
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.
 
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. 

Comments

The pedo-paranoia must stop now
For the good of society, and for the fact that a picture isn't really harmful, the pedo-paranoia has to cease. This whole focus on pedophilia, while great for a while, has become too much a part of society for it to be healthy for human beings and is just a ton of hysteria designed to mask the hatred of certain types of artistic expression like Eli Langer's. If a child is being exploited against their own will by having pornographic pictures taken of them and it is affecting them, that's ONE thing, and it should be dealt with promptly. To be going after images that are not real because somebody feels they are bad due to nudity, or images that teens post of themselves on the 'Net is going over the edge into paranoia, as I've said above, and isn't healthy for society. It also shows that society is not really dealing with issues of sexuality properly. As well, it's an utter hypocrisy for society to be allowing kids to be put into prison for life on adult sentences (among other things), but not allowed to express themselves sexually. It's time generally for society do deal with this in a rational manner, and it's also time for society to deal with sexuality better.
A worthy discussion, but the intent of Flanagan?
This article raises some valid points about problems that may exist within the current law on child pornography in Canada. However, I think an important point worth noting is that Flanagan was not calling for that nuanced and thoughtful exploration of extant law that is discussed here. Child pornography harms children severely, and given that reality, the carte blanche comments that Flanagan made about the criminalization of its possession simply being a dispute about "taste in pictures" does not speak to the more complex questions such as the discrepancy between the AOC and legal age for pornography and the distinction between graphical representations and physical images. Nor does it do justice to the extraordinary harm does child pornography does cause. Frankly, the fact Flanagan made reference to NAMBLA further discredits this kind of exploration of the issue, since NAMBLA is well-known for espousing positions that apply to children well below the age of 16 or 17. We need a more active discussion of child pornography law in Canada to deal with the delicate cases that Prof. Cossman discusses, but I do not think Flanagan was proposing it.
I deplored Feist’s “Hetero-Normative” comment.
“Feist condemned Flannagan...Ken Popert later posted an opposing ‘editor comment.’” —Thankyou Ken.— I deplored Feist’s “Hetero-Normative” comment. So many young people today have Heteronormative values and understanding of issues, because of their “Fag-Hag” Straight girlfriends. Mostly Hetero women on this bandwagon. —As pointed out in the article above, the Kiddie Porn laws are unjust. They “criminalize” teens or children who sext nude pictures of themselves —they will get a criminal record for producing and distributing underage porn. But also because the same law zealously hunts Gay men. So many teens do post nude pictures of themselves —the camera still in their hand. They voluntarily post it whether 18 or not. And who can decide from a picture if someone is 17 or 18 or 19? BTW There are email forums of people who send pictures to an email list. Your name may be on that list and you never know what people will send. One person may send pictures to everyone of a minor. The police may find the sender and then everyone on the list is treated as a criminal, even though they never created the photo nor ever touched anyone. The Police advertise a worldwide bust of 5,000 people. It is a great victory for the police. BUT, this is not the same as the Hetero trafficking of children for prostitution and pornography. This is not the same as the 8 - 13 year old girls who are given away in marriage to middle aged men in the Middle East and India, to be legally raped in Holy Matrimony. This is not the same as the women raped by Hetero men every six minutes somewhere in the world. Gay cultures are different than the war mongering, raping, violent Hetero cultures around the world. The Porn laws need to separate the looking at, and the production/distribution of porn. (BTW the simple copying of an image to a USB drive as backup is considered “Distribution.”) Also the punishment needs to fit the crime. But who is brave enough to bring up the matter after Flannagan’s treatment?
@Brandon Matheson
Brandon, given your response above, why do the comment boxes still work on posts by Xtra's Vancouver blogger, which appear to use the same system as Jeremy Feist's Toronto blog posts. See: http://www.xtra.ca/blog/vancouver/post/2013/03/07/Matt-Damon-on-topping-Michael-Douglas.aspx#comment
RE: Why aren't comments allowed on Feist's blogpos
Hi Steve, The comment function was turned off on all blogs on local city pages on December 12, 2012. The commenting system used for the blog portion of Xtra.ca is actually a different system than this one used for story comments. On blogs, the older system was prone to automated attacks and as a result city blogs were rife with automated spam. Later this year, we will launch a new website to replace Xtra.ca and blogs on that site will again be open to comments. Brandon Matheson Publisher & Editor-in-chief
Tuff on Crime
It's pretty scary how little debate and discussion any 'tough-on-crime' laws and policies get these days. All anyone has to do is say "think of the children" and all sense goes out the window. A lot of the books on the shelves of Indigo are almost certainly illegal under our current laws. Ever read Stephen King's "It"? Guess what, you're a child pornographer! Ever shared the story of your "first time" on a message board? You're a child pornographer! Ever seen a cartoon image of Batman & Robin making out? You're a child pornographer! It goes without saying that child abuse is a horror, but that's no excuse for overly broad laws that make imaginary harms into the worst kinds of felonies. We in the queer community should be very skeptical of any law that relies on the discretion of police and prosecutors for enforcement.
Why aren't comments allowed on Feist's blogposts?
Previously, Xtra blogger Jeremy Feist condemned Flanagan and Pink Triange Press head Ken Popert later posted an opposing "editor comment" underneath Feist's blog post. See: http://www.xtra.ca/blog/toronto/post/2013/03/01/University-of-Calgary-professor-resigns-over-child-porn-comments.aspx Why have the comment boxes been disabled under all of Jeremy Feist's blog posts on xtra.ca? It seems odd that readers can comment on any news story, column or editorial on xtra.ca except Jeremy Feist's blog posts.
This subject needs to be debated
Unfortunately after what happened to Flanagan I am afraid no one will want to debate the overreaching aspects of the child porn laws. When the current child porn laws were enacted the internet was almost non-existent. Purveyors of child porn paid for their illegal magazines and video's. By doing so they were creating a demand and were criminally culpable for contributing to child abuse. The same thing cannot be said today for someone who inadvertently downloads a nude photo of a teenager who happens to be under the age of 18. How is that creating a demand?. What about possession of nude self-images taken by underage teens (sexting). How can possession of these images contribute to child abuse? Why does the law use the term "children" to describe 17 year olds? We let 16 year old's drive cars. If 16 year old's possess the intellect and maturity required to operate a motor vehicle how can we consider them to be "children"?
Sober Thought vs Knee-JERKS
Thanks for this. I am not a Flanagan admirer either, but a week ago I had to post concerns similar to yours between two Facebook comments that piled on criticism of his statements. It annoys me to no end that some topics are so charged that "smart" politicians know to not even discuss them. Isn't avoiding difficult questions the opposite of what we want our governing bodies to do? I was especially enraged by the coordinated denouncement by the CBC, U of C, Harper etc. Did these groups hear him defend pedophilia or the exploitation of children? I sure didn't; his comments were academic, and about the "nature of harm and the reach of the law" as you wrote. My favourite was CBC News' response-- any statement that begins, "we support and encourage free speech, BUT..." should tell you how much the speaker actually cares about free speech. The real question is why none of the mainstream media wrote a piece like yours a week ago, but instead just amplified the (willful?) misinterpretation of his remarks.
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