Page 3694 - Week 14 - Wednesday, 9 December 1992
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For the record, the judgment was the result of an appeal by a defendant who had been charged with 250 counts related to the sale of obscene material. In the original trial he was convicted on eight charges but on appeal all 250 were upheld. The Supreme Court, on appeal from the defendant, held that the appeal must be allowed and a new trial ordered on all counts. From my research it appears that the defendant is still awaiting retrial. In the majority judgment the Canadian Supreme Court outlined what was already contained in its Criminal Code. I quote:
The Criminal code provides the exclusive definition of what is obscene under the code. Section 163(8) provides that "any publication, a dominant characteristic of which is the undue exploitation of sex, or of sex and any one of the following subjects, namely crime, horror, cruelty and violence shall be deemed to be obscene". In applying this statutory definition it is helpful to divide pornography into three categories:
(1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanising, and (3) explicit sex without violence which is neither degrading or dehumanising.
The seven judges went on to further outline what could constitute harm within these three categories in that it "predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men". They concluded that sex with violence was inherently harmful, that sex that is degrading or dehumanising may be undue exploitation, depending on the potential risk of harm, but that "explicit sex that is not violence, not degrading and not dehumanising is generally tolerated in society and will not qualify as the undue exploitation of sex unless it employs children in its production".
So, by my reading of the Canadian decision, X-rated videos would not be considered, even by the Canadian Supreme Court, as being exploitative and therefore being able to be defined as obscene under the Canadian Criminal Code. In a minority report which concurred with the general thrust of the majority decision, two judges stated that they felt that the third category may constitute undue exploitation, depending on factors other than the content. As an exercise in polemics it has been an interesting argument to follow; but, in reality, the Canadian Supreme Court is not a strong authority for Australian courts and, because of the differences in our legal structures and laws regarding censorship, translation of that decision into an Australian context is extremely difficult.
What has become apparent to me during my research on this topic is that many of the people writing to me on the subject are using very subjective definitions of what constitutes pornography, and in some cases confusing this with what they find personally sexually offensive. There needs to be clarity in the debate about community standards and how we view sexual relationships. The other insight, if I can call it that, is a reinforcement for me of the need to deal openly and frankly with young people on issues such as sexuality, without the fantasy models that Dr Zilbergeld sees as being prevalent in societies where there have been taboos on discussing sex and where most young people get their ideas on sex from erotic literature, comics, smutty jokes and films. Young people need to access factual information about sexual matters.
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