All artists and writers should be nervous. The feminist outrage against pornography is sending hot flashes across the country. Don Smith has gone down (even before this legislation was introduced) and if you think Christine Bartlett-Hughes won't seize this precedent to come after you, think again! The way has been cleared for prosecutions reminiscent of the war on drugs. The misleading headline of the Globe and Mail article should read "Ottawa targets everyone." Search and Seizure | Pornography | Robin Sharpe | Pete Townshend | Dworkin's incident in Paris: tipping the scales of credibility? | Don Smith | Christine Bartlett-Hughes |

Catherine MacKinnon & Andrea Dworkin

Reckless and mischievous crusaders

STATEMENT BY CATHARINE A. MACKINNON AND ANDREA DWORKIN REGARDING CANADIAN CUSTOMS AND LEGAL APPROACHES TO PORNOGRAPHY

[This press release was issued August 26, 1994 (Women's Equality Day in the U.S.).]

Untrue reports have been circulating that our feminist work against pornography is responsible for the repression of feminist, gay, and lesbian materials in Canada. It is said that the anti-pornography civil rights law we coauthored was passed by the Canadians and that the first thing they did with it was censor gay books. It is said that Canada Customs recently seized feminist, gay, and lesbian materials--including some books by Andrea Dworkin--under a 1992 Supreme Court decision called Butler that accepted our legal approach to pornography. It is said that in practice, Canadian court decisions using our anti-pornography legal theories are backfiring against liberating sexual literature. We want you to have real information about what has and has not happened.

THE ANTI-PORNOGRAPHY CIVIL RIGHTS LAW WE COAUTHORED

Canada has not adopted our civil rights law against pornography. It has not adopted our statutory definition of pornography; it has not adopted our civil (as opposed to criminal) approach to pornography; nor has Canada adopted any of the five civil causes of action we proposed (coercion, assault, force, trafficking, defamation).1 No such legislation has as yet even been introduced in Canada.

THE CANADIAN SUPREME COURT'S BUTLER DECISION

In 1992, the Supreme Court of Canada unanimously adopted an equality approach to pornography's harms to women. This approach was argued by the Women's Legal Education and Action Fund (LEAF), an organization of progressive Canadian women committed to advancing women's equality under the Charter of Rights and Freedoms, the new Canadian constitution. Unlike the U.S. Constitution-- which doesn't even have an Equal Rights Amendment--the Canadian Charter specifically guarantees sex equality and has been interpreted to require the government to promote it.

Donald Victor Butler, a pornographer, had been prosecuted by authorities under Canada's existing law against "obscenity," which is defined as "the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty, and violence." (This is very different from U.S. and British obscenity definitions.) Butler argued that the obscenity law violated his rights to free speech under the new Charter. LEAF urged the Canadian Supreme Court to reject his argument and instead to reinterpret the existing obscenity law in "sex equality" terms.

Previously, in a case called Keegstra, LEAF had successfully argued before the Canadian Supreme Court that racist and anti-Semitic hate propaganda violates equality and multiculturalism rights under the new Charter, so criminalizing such expression is constitutional. LEAF sought to build on that argument, and other equality precedents, in Butler. Catharine MacKinnon, working with LEAF and LEAF counsel Kathleen Mahoney, participated in Keegstra and Butler. Andrea Dworkin, consulted by LEAF on the Butler case, opposed LEAF's position. Dworkin wrote a letter arguing that no criminal obscenity law should be supported.

The Supreme Court of Canada, in its decision in Butler, accepted the essentials of LEAF's equality argument. The court held that the obscenity law was unconstitutional if used to restrict materials on a moral basis, but constitutional if used to promote sex equality. The court interpreted the criminal "obscenity" provision to prohibit materials that harm women.

CANADIAN CUSTOMS PROCEDURES

For years Canada Customs has stopped material at the border under its own law and guidelines, which allow employees discretion to block the importation of obscenity. As a sovereign state, Canada has every right to control its borders--especially given widespread resentment against what is often viewed there as U.S. cultural imperialism.

None of Canada's customs policies or practices has been officially revised to reflect or incorporate the Butler sex-equality decision. A Canadian newspaper columnist found this out simply by asking Customs directly. Because customs officers are not using Butler, attempts to impugn the Butler decision by citing recent customs operations are sheer innuendo; no cause-and-effect link has been shown. Canadian customs employees have been doing what they have been authorized to do for years before Butler. For example, in 1993 some books by Andrea Dworkin were detained at the border for inspection, then released shortly thereafter. Those who cite this episode to show that Butler is being used against Dworkin misrepresent long- standing Canada Customs practices.

Reports that Canada Customs is using Butler to crack down on importation of explicitly gay and lesbian material are also fabricated. If this was actually happening, it would be illegal and could be opposed under Butler, which made the restriction of material on the basis of a moral objection (such as homosexuality) conclusively unconstitutional for the first time. The ruling clearly states that material that harms women can constitutionally be stopped (and this would include women harming women), but Butler does not mention anything about men harming men. Butler is silent on the subject of same-sex materials as such.

THE REAL RESULT OF BUTLER

Canada Customs has a long record of homophobic seizures, producing an equally long record of loud and justifiable outrage from the Canadian lesbian and gay community. There is no evidence that whatever is happening at the border now is different from what happened before the Butler decision--except that Butler has made moralizing, homophobic customs seizures illegal. For instance, when one court issued an outrageously homophobic decision against some gay male material, another court, citing Butler, specifically repudiated the moralism of that decision.

To date one indictment under Butler has been brought against lesbian sadomasochistic material, a magazine published in the U.S. with a Canadian circulation of 40. If this magazine is proven to harm women, including by producing civil inequality, the case should result in a conviction. Meanwhile various indictments brought against sexually explicit materials that do not show violence have been dismissed under Butler.

Canada's criminal obscenity law since Butler--like all prior laws that put power in the hands of government prosecutors rather than harmed plaintiffs has not actually been used effectively to stop the pornography industry. This we predicted. The pornography industry in Canada has in fact been expanding massively, trafficking openly in materials that do not show explicit violence, including some of the exact materials prosecuted in Butler.

ANALYSIS

In the United States, our Anti-Pornography Civil Rights Ordinance--together with related legislative initiatives against the harms of racist hate speech--has helped to trigger an escalating constitutional conflict between "speech" rights guaranteed by the First Amendment and "equality" rights in the principles underlying the Fourteenth Amendment. In our neighbor nation to the north, Canada's Supreme Court has determined that racist hate expression is unconstitutional (Keegstra) and that society's interest in sex equality outweighs pornographers' speech rights (Butler). Taken together, these two rulings are a breakthrough in equality jurisprudence, representing major victories for women and all people targeted for race hate. We wish that U.S. constitutional consciousness were so far along.

Although we recognize that the equality test adopted by Butler is an improvement on Canada's criminal obscenity law, we still do not advocate criminal obscenity approaches to pornography. They empower the state rather than the victims, with the result that little is done against the pornography industry.

We are encouraged, however, that the Butler decision under Canada's new Charter makes it likely that our civil rights law against pornography would be found constitutional if passed there. And we are continuing our work to empower victims to fight back against harm committed by pornographers.

We hope that this statement helps you correct the published record--and deal with the attacks, rumors, and disinformation--surrounding the relationship of our anti-pornography efforts to the Canadian Supreme Court's Butler decision.

-- Catharine A. MacKinnon and Andrea Dworkin

Go to A Brief Description of the Ordinance. Go to Complete Text of the Ordinance. Go to excerpt from the Dworkin/MacKinnon Model Ordinance.

Truth can never be told so as to be understood, and not be believ'd.
William Blake, The Proverbs of Hell

Truth suppress'd, whether by courts or crooks, will find an avenue to be told. Sheila Steele, injusticebusters.com

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Publisher Sheila Steele

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For the most thoughtful, ongoing discussions and essays of the zealous prosecution of innocent people caught in the current craze of witch hunting activities around the world, go to

Inquisition 21.

 

For this particular issue, go to this page

 

 

Childporn Witchhunt from January, 2003: All that hysteria flowed from the sting methods cited by Judge Chin

Childporn witch hunt by OPP

Don Smith

See Rick Salutin's sensible column and an editorial from eye

The witch-hunt for viewers of child porn on the internet can be seen as the extension of Martensville and

the Foster Parent case. Social workers took the witchhunt in one direction as the Vopni children were apprehended.

The climate produced the false accusations against Abdulahi Mohamed.

Then Ivan Cohen was one of the first to be falsely charged -- and convicted - under Project P.

Don Smith was a year later. Smith's site, Perfectshots, was adult soft-core designed to share special effects with fellow artists, but that did not stop Prosecutor Christine Bartlett Hughes and Judge Helen Pierce from instructing the jury as though it was childporn

Law to force filtering fails

There have been too many of these cases involving porn -- child and otherwise. It is a witchhunt, pure and simple. Check out these cases: Ivan Cohen | Don Smith | and read Judith Levine | in the meantime, be well aware that anyone with a computer can be ensnared. Catherine MacKinnon and Andrea Dworkin: reckless crusaders | Real Pedophiles | Project P | Defamation | Seizures of domain names

Inquiry into the malicious prosecution of David Milgaard untanling 36 years of Saskatchewan police and Crown misconduct: : Opening day 1 | 2 | 3 | 4 | 5 | 6 | 7 |

Stephen Williams: Canadian writer subject to Stasi-like treatment by Canadian police

Terry Arnold: : Snitch a suicide?

RCMP scenario stings: Brian Hutchinson starts digging

Gary wells: Faulty eye-witness testimony

Tulia, Texas

Gilmer, Texas

Willie Upshaw

Wrongfully convicted in Canada

Foster Parent false accusations

Martensville

Don Smith obscenity trial: an obscene conviction

James Lockyer

Hurricane Carter

Johnny Cochran speaks up for Bill Sampson

Vopnis

Abdulai Mohamed

The Terrible Story behind the Atif Rafay and Sebastian Burns convictions

Trial set for June 15

We know part of this disclosure is a forged statement and perjured affidavit from a Winnipeg cop

The Crown is still fighting Fred Poirier -- and they are losing. Secret Commissions Case from Nort

 

 

 

 

Halifax

Toronto police

Vancouver police

Winnipeg police

 

2005: In the United States the proven wrongful convictions just keep coming at us!

Canadians who have been wrongfully convicted because of improper investigations combined with zealous Crown

Supreme Court orders new trial and quashes conviction in two more cases with improper disclosure issues

A round-up of wrongful convictions in Canada