3 - Pornogrpahy

Dodge article arguement

• Legal systems focus almost exclusively on:

  • heterosexual adults

  • intimate-partner “revenge” cases

• But evidence shows:

  • girls/women can be perpetrators

  • boys/men (including gay/bisexual men) are victimized

  • images can be traded for status, not revenge

  • many cases occur among peers, not partners

Postmodern feminist theory

Conceptualizes violence as a complex, contextual, and dynamic aspect of human interaction.

 

• Power isn’t one-directional; individuals of any gender can wield or be subjected to power.

• Moves away from “patriarchy as the sole source”—focuses on specific power relations in each case.

The majority of cases found in Dodge’s study align with patterns of:

• Intimate partner violence patterns

• Gender-based violence research

• Judges often explicitly labeled them as “domestic violence”

In cases that are beyond the paradigm, Dodge identified what 3 main categories?

1. Showing off & joking (homosocial male bonding)

2. Jealous teen girls targeting other girls

3. male or sexual minority victims

In the showing off/joking categories, some male offenders share images not to harm but to:

• “show off” sexual access

• gain status with male peers

• joke around

• avoid masculinity-policing (fear of being called weak or gay)

In the showing off/joking category, the main rewards given by NCP included _________ or ___________

Homosocial reward
Masculinity enforcement

Homosocial reward

boys bonding by demonstrating access to girls’ bodies.

Through showing off, NCP becomes normalized as a form of ___________

everyday sexism

In the category of jealous teen girls, what key insights were given in terms of there behaviour?

• Challenges the idea women are only victims.

• Female perpetrators weaponize sexist norms (slut-shaming), showing internalized sexism.

• Reflects gendered sexual norms: girls penalize each other for sexuality, reinforcing patriarchal rules.

In the category of male or sexual minority victims, underreporting make occur due to:

• stigma

• homophobia

• fear of not being taken seriously

• norms that sexual exposure is less harmful for men

Why might few nontraditional cases reach court?

• Police/legal professionals may take some cases less seriously.

• Victims outside the typical profiles may:

  • feel less harmed, or

  • fear bias,

  • or avoid outing themselves (LGBTQ+ victims).

 

• Many cases get resolved outside formal legal channels (especially youth).

Obscenity laws - 1857

Obscene Publications Act of 1857 in England.

• This idea of obscenity was included in R v Hicklin

In R v Hicklin (England, 1868), the judge wrote, “I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to _________those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall” (quoted in Lutes, 1974, p. 31).

deprave and corrupt

Obscenity laws - 1892

the Criminal Code had an offence regarding the publication of “obscene matter”, with a focus on if the obscene matter offended morals.

• There was no definition provided on what constituted obscene matter.

"Relatively few cases concerning obscene literature came before Canadian courts in the period 1900 to 1940. In the handful of cases that were dealt with, it seems fair to conclude that the ________was applied with all its vigour."

Hicklin test

Obscenity law - 1950s

• 1950's judges were starting to interpret the Hicklin case a lot more literally and using it often.

Obscenity laws - 1959

amendment to the Criminal Code created the first definition of obscenity in Canadian law.

• s.163(8): “any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, war, cruelty and violence, shall be deemed obscene.”

  • This is still in the current criminal code.

s.163

Obscene materials
(created in 1959)

“Every person commits an offence who knowingly, without lawful justification or excuse, (a) sells, exposes to public view or has in their possession for that purpose any obscene written matter, picture, model, phonograph record or any other obscene thing; or (b) publicly exhibits a disgusting object or an indecent show.”

s.163(8): “any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, war, cruelty and violence, shall be deemed obscene.”

s.163.1

child sexual abuse and exploitation material

 

“163.1(1) In this section, child sexual abuse and exploitation material means

 

• (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

• (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

• (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years”

“the test for obscenity came to be determined by the application of the ‘_____________.’ The use of this test was designed to convey that the standard was not what the right-thinking member of the community would approve of for [themselves], but what [they] would tolerate others seeing” (Benedet, 2015, p.4, emphasis added).

community standard of tolerance

Towne Cinema Theatres case in 1985 attempted to clarify …

that these community standards are about what the current standards of tolerance are in society (rather than an individual’s tolerance).

Towne Cinema Theatres case in 1985

• Theatre in Edmonton showed a film classified as an adult movie, someone mad a complaint, and the theatre was charged for showing the film.

• Fold guity of obsenity charges because the judge deemed that it was offensive in terms of it having "undue exploitation of sex, particularly in relation to women and violence, and the judge argued that it offended community standards"

 

• Appealed in Alberta --> agreed with judge and ruled still obscene

 

• Appealed supreme court --> overturned the original judges decision, and that a new trial needed to be ordered.

  • Said that the "judge ruled according to his own standards on what was obscene, instead of community standard"

1992 Case - R v Butler

• David Butler owned a video store that had sold pornographic videos.

• Charged under the criminal code, under the obscenity laws for selling, possessing and publicly exposing obscene material.

 

• Butler argued that the law violated his freedom of expression under the charter.

• At the original trial, the judge decided that the government could regulate "the sale of materials depicting violence, or cruelty mixed with sexual activity, showing lack of consent to sexual activity, or containing dehumanizing material."

 

• Butler acquitted in terms of some material, but not all.

• Appeal --> judge decided that butler should be charged again with all the videos

• Appeal --> supreme court; infringed on rights, but it was justified.

The R v Butler case established an approach based on a test of “______________” (Benedet, 2015, p.9):

a community standard of tolerance that focused on harm to society

When the court was discussing how to approach pornography, “[t]he Court divided pornography into three categories..

[1] pornography that included violence or used children (harm could be presumed)

[2] pornography that was degrading or dehumanizing but not violent (proof of harm was needed)

[3] pornography that was neither violent nor degrading. (harm would rarely be found)

The main point of concerns was surrounding rights of ______________ for Butler.

women versus freedom of expression

Why were obscenity laws underused post Butler?

police were encouraged to turn their attention to policing child pornography, where both possession and accessing are prohibited, and where arrests regularly produce guilty pleas and convictions.

In Craig’s ideas of the “Platformization of pornography,” she argued that ….

the platforms violate their own community standards

"while porn streaming platforms are not the only social media site or platforms generally that have been criticized for failing to consistently uphold their community guidelines in terms of service, this failure may be more harmful or harmful in different ways, in the context of porn. Given the supposed inability of some users to identity non-consensual sex in the porn they consume, a social phenomena with multiple explanations such as misogeny, willful blindness, among them that is replicated in the _______________."

perceptions of some accused and some judges in sexual assault cases

In 2015, s.162.1 was created in the criminal code to ….

regulate the sharing of an intimate image without consent

s.162.1

Publication of an intimate image without consent:

• 162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

  • (a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

  • (b) of an offence punishable on summary conviction.

the _____________, BC, came into effect in 2024.

Intimate Images Protection Act

Intimate Images Protection Act, BC

Create an expidited process that an image would be removed, and prevent threats and blackmail.

Karaian & Brady article argument

• Revisits the “private use exception” created in R v Sharpe (2001) and analyzes how it applies to teen sexting in the modern digital age.

• Argues that the exception should cover consensual teenage sexting, but remains too narrow and outdated.

• Shows how technology, privacy norms, and new laws have dramatically shifted since Sharpe, creating confusion.

• Highlights a paradox: courts expand “private use” but increasingly require youth to “maintain control” over their images—something impossible in digital contexts.

R v Sharpe (2001)

• Middle aged man who wrote a text (fiction) about teenage boys having sex, and also had some photos of teenaged boys hugging and kissing.

• Argued that his charter rights to freedom of expression were infringed.

• Ruled and acquitted at original trial saying that his rights were indeed violated.

• Court of Appeal supported that ruling.

 

• Appealed at the SCC — finds s.163.1 (possession) violates freedom of expression BUT upholds it under s.1 (to protect children).

 

• Court acknowledges law is overbroad and risks criminalizing material with little/no risk of harm, including adolescent self-exploration.

  • To address this, the court read in the private use exception.

In creation of the private use exception, the SCC “reads in” two categories of exempt material:

1. Self-created expressive material

   • Created by the accused alone

   • Held exclusively by them

   • For personal use

 

2. Private recordings of lawful sexual activity

• Depict the accused alone or with others

• Must be lawful sexual activity

• Must be created together

• Must be held solely for private use

What is the reasoning behind the private use exception in terms of children?

• Pose minimal harm to children

• Important for adolescent self-fulfillment, identity, exploration, sexual development

What was the problem with the private use exception?

• This was created in a pre-smartphone era; envisioned two teens physically together using a camera—not texting images via phones.

• With this, there is debate on whether the private use exception includes digital expression and sexts to others.

Karaian and Brady argue that the private use exception includes digital on what 4 grounds?

1. The text and spirit of the exception

2. Subsequent judicial interpretations of the exception

3. Fundamental shifts in the technological and sexual terrain since the exception was established

4. Recent material amendments to the criminal code (development of the Online Crime Act, and its new intimate images provisions)

R v Keough (2011)

• Key case expanding “private use.”

• Court accepts that digital sharing between participants might fall under private use.

• Interprets “participant” more broadly — not just someone appearing in the image, but someone participating in the sexual exchange.

R v Barabash (2012 ABQB → SCC)

• Central issue: Did the youth “maintain control”?

• Courts increasingly talk about control as key to privacy.

• Paradox: Digital images can never truly be controlled → the requirement undermines the exception.

In 2015, In response to cyberbullying + cases like Amanda Todd + Rehtaeh Parsons, the 2012 subcommittee CCSO Cybercrime Working Group recommends a new offence called __________________ Act

Protecting Canadians from Online crime Act

Protecting Canadians from Online Crime Act (2015)

• Creates new Criminal Code offense in s.162.1:

 

→ Non-consensual distribution of an intimate image

 

Definition of “intimate image” includes:

• Nude or sexual image

• Person had a reasonable expectation of privacy at creation + at time of offence

• Includes images of minors → overlaps with child pornography definitions

Bill S-209

• An Act to restrict young persons’ online access to pornographic material

  • Currently under consideration in Senate.

  • What about privacy --> age estimation approach instead of verification.