The law and pedophiles: speech or smut?
B.C. court decision demands a balancing of rights and harms

Tuesday, January 19, 1999

The pedophilic mind of John Robin Sharpe has joined bowel surgery and the eating habits of sewer rats as some of the things in life we would rather not have to think about.

However, last week's ruling by British Columbia Supreme Court Justice Duncan Shaw that Mr. Sharpe has the right to possess the pornographic accoutrements of his sad psyche -- pedophilic poems, stories, photographs -- has made the lifestyle of the retired city planner front page news.

Mr. Justice Shaw wrote that the section of the Criminal Code which forbade the mere possession of pedophilic material was a violation of the Charter of Rights and Freedoms guarantee of fundamental freedom of "thought, belief, opinion and expression."

The B.C. Justice went on to give some credence to the argument that "mildly erotic" child pornography might even have a socially redeeming quality -- namely that it allowed potential sexual aggressors to "relieve pent up sexual tension" through masturbation. We told you we didn't really want to talk about this.

So now what?

The decision must be appealed, right up to the Supreme Court of Canada. The sole precedent in such an incendiary matter cannot be a ruling by a single judge. There is no better rationale for a high court than the need to adjudicate cases in which the fundamental right of a society to protect its children from predation comes into conflict with the fundamental right of free people to think any thought they want.

However, the basis on which the court might resolve the conflict is most unclear. In a 1992 judgment, which allowed for the distribution of many forms of pornography, the court ruled that "explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated and will not qualify as the undue exploitation of sex unless it employs children in its production."

This goes to one of the touchstones in the classic argument against child pornography -- namely that Mr. Sharpe and his confrères' fantasies create a market for the sexual exploitation of children. But what about pedophilic poems and stories which spring wholly from imagination? And how can the argument be sustained if the images are created with the sort of digital wizardry that makes pigs talk, Godzilla crush cities, and Forrest Gump show Lyndon Johnson his million dollar buttock wound?

Is computer-generated child pornography still illegal if children were used to make it?

Furthermore, is there any sensible way of going down a regulatory road in which "mildly erotic" child pornography -- whatever that might mean -- could be taken to inhibit a pedophile's aggression, while its "highly erotic" cousins inflame it?

Ultimately the court may decide that the Charter's great escape clause applies -- its statement that "reasonable limits" can be put on all rights and freedoms so long as those limits can be "demonstrably justified in a free and democratic society." But that still begs the question of just what can be demonstrably justified, and just how much expression -- even pedophilic expression -- could be restricted without infringing free speech.

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