Porno Essay, Research Paper
Suppose one accepts MacKinnon and Dworkin’s suggested
statutory definition of pornography. How does one who
generally accepts MacKinnon and Dworkin’s views on the
pervasively harmful effect of pornography, and who accepts a need
for legal redress of the harms perpetrated by pornography, deal
with pornographic material?
The ordinance proposed by MacKinnon and Dworkin would deal
with such material by enacting legislation which gives people
adversely affected by the works, which clearly fit their
definition of pornography, a cause of action against the
producers, vendors, exhibitors or distributors for
"trafficking", or for an assault "directly caused by the
specific work.
I do not think liberals, or others for that matter, should
have much problem with the clause dealing with assault, since a
causal connection to specific works is demanded by it. However,
s. 3.2(iii) which deals with trafficking would be very
problematic for liberals and legal conservatives because it
creates a cause of action for a person contrary to the
traditional conception of a rights holder’s cause of action.
This subsection reads:
Any woman has a claim hereunder as a woman acting
against the subordination of women. Any man, child or
transsexual who alleges injury by pornography in the
way women are injured by it also has a claim.
[emphasis added]
My goal in this paper is to suggest that a slight
modification to this subsection of the ordinance would make it
very difficult for liberals and legal conservatives to object to
it. This modification would restrict the cause of action to the
same persons as the other sections of the ordinance, namely, the
particular victim of the specified injury. I shall argue that
such a modification would largely cohere with the conception of
harm already at work in Ontario law, would afford only a minor
reduction in the potential efficacy of such legislation in
curbing the harm of pornography, and would offer to empower the
feminist camp which is behind such an ordinance with a mechanism
for social and political change if a sufficiently organized
feminist "vanguard" took hold of the opportunity to empower
women.
Adrian Howe argues that the concept of social injury which
may be suggested by the ordinance recognizes the differential
harm felt by women from pornography. Howe suggests this social
notion of harm may be a necessary feature of any successful law
reform which is to address the huge social problem of male
domination and female oppression. The liberal notion of an
individuated human right fails to capture, for MacKinnon and
Howe, "the specificity of the harm to women." Thus, an
ordinance which did not create a cause of action "for women as
women" would fail to address the root of the social problem of
which pornography is a manifestation.
This conception of social harm, and thus subsection
3.2(iii), may offend liberals or legal conservatives in two ways.
First, the notion of non-individuated harm is antithetical to the
liberal conception of a rights holder claiming a cause of action.
Fundamental to a liberal conception of harm is the notion of the
individual who is autonomous, separate and fundamentally worthy
of respect. Rawls and Kant exemplify this view in their analyses
when they posit the undifferentiated self, free of any particular
qualities save that of being an agent worthy of a fundamental,
inviolable respect. This notion of the individual worthy of
equal concern and respect in the eyes of the state permeates
liberal conceptions of rights. It is also a fundamental, if not
exclusive, tenet of the common law of torts:
In tort litigation, the courts must decide whether to
shift the loss suffered by one person, the plaintiff,
to the shoulders of another person [emphasis added].
Clearly, on its face this conception of harm precludes the
notion of a harm suffered collectively which cannot be delineated
individually. While class actions are possible, and claims may
be made on behalf of groups such as company shareholders, this is
only by virtue of the fact that a legally recognized individual
has suffered an identifiable particular harm.
Thus, the conventional liberal notion of harm is radically
distinct from that outlined by Howe and MacKinnon. Since on the
liberal conception rights holders are autonomous, individual
selves who are essentially distinct, harm to one is distinct from
harm to another. It may be that a liberal conception of a rights
holder simply renders the concept of a social harm, and thus a
cause of action "for women as women" incoherent. I do not wish
to discuss whether it is possible to develop a complete liberal
notion of social harm. It is sufficient to note that the notion
of harm to rights holders inherent in the dominant liberal legal
discourse appears to preclude a cause of action by any individual
simply by virtue of their membership in an oppressed social
class.
The problem for feminism is that the offence of trafficking
in pornography, if the cause of action were limited to
individuals who allege a direct harm stemming from this
trafficking, may seldom if ever deliver a remedy. Consider the
immense burden for a successful action:
She must first prove that the relevant materials are
pornography. They must be sexually explicit and they
must contain one or more of the features listed in the
definition. Second, she must prove that the materials
sexually subordinated her. The materials have to be
more than just offensive; this is not a law that
worries about offending sensibilities, it is concerned
with injuries to women. These injuries must be proven
in court. Only then will the plaintiff be awarded
damages or an injunction against the materials in
question [emphasis added].
The harm which a particular woman suffers as a result of
trafficking in pornography is not easily delineated. It is not
the physical assault or forced viewing outlined in the other
sections of the ordinance. Nor is it (for MacKinnon/Cole
proponents) a tangible physical harm in the "John hits Mary"
sense:
[P]ornography causes attitudes and behaviours of
violence and discrimination that define the treatment
and status of half the population .
[P]ornography institutionalizes the sexuality of male
supremacy …
Since the harm caused by pornography is a social, collective
harm to women, conventional liberal notions of tortious harm are
seemingly unable to capture its seriousness (no single woman
appears to have been grievously harmed). Thus, to limit the
cause of action in the ordinance’s trafficking provision to
particular, individual women might seem futile for feminists in
that a traditional liberal court would be unable to make sense of
the claims of harm involved.
The situation may not be quite so bleak. It will be useful
to examine the notion of a social harm, a harm which cannot be
tied directly to one victim, in the areas of criminal and tort
law. I suggest that Ontario courts already have the basis for a
framework of social harm in the federal statutory provisions on
hate literature, and in the principles which can be adopted from
the Bhadauria case.
The Criminal Code in sections 318 and 319 prohibits the
advocating or promoting of genocide and the incitement of hatred
of identifiable groups respectively. It is noteworthy that
"identifiable group" is defined as "any section of the public
distinguished by colour, race, religion or ethnic origin", but
does not include gender identification. These sections allow
groups, rather than individuals, to seek redress for the
dissemination of hateful or pro-genocidal material. Section 319
has been found to violate s.2(b) of the Charter of Rights and
Freedoms, but to be justified under s.1 of the Charter.
Thus, it is considered to be coherent in Canadian criminal law
for a somewhat intangible social harm to have been suffered by a
group through the publication of literature, and for a remedy to
be appropriate.
There are problems with this kind of legal protection from
social harm if MacKinnon and Cole’s assumptions about the legal
system are accepted. The sections may take effect only on the
initiative of the Attorney General; it is this feature which led
to charges against Ernst Zundel [for the publication of
literature denying the holocaust and claiming the existence of a
Zionist conspiracy] being laid by Jewish activist groups under
s.181 of the Code. Thus, Cole’s claim that legal redress for
the harm of pornography will not be effectively obtained through
reliance on intervention by a male-dominated executive branch of
government is supported by the failure of another
identifiable victim group to have charges laid by the Attorney
General in what appeared to many to be a clear case. In isolated
cases like Keegstra, where children were the group to whom
hateful information was being disseminated, the law recognizes
social harms as actionable. It is clear though that the
pragmatic barriers to criminal prosecutions for the harm
pornography causes to women, as opposed to society’s moral
intolerance of the offensive content, are immense in a male
dominated liberal society.
What should not be lost in this pragmatic pessimism is the
adequacy of the conceptual foundation of a social harm which
arose in Keegstra. In this case, the social harm was seen
not only to affect the "targets" of the information, in this case
Jews, but to adversely affect "society at large". Furthermore,
the type of harm caused to the target group is similar to that
seen by feminists as suffered by women due to pornography:
Disquiet caused by the existence of such material is
not simply the product of its offensiveness, however,
but stems from the very real harm which it causes.
[E]motional damage caused by words may be of grave
psychological and social consequence. [They] can
constitute a serious attack on persons belonging to a
racial or religious group, and in this regard the Cohen
Committee noted that these persons are humiliated and
degraded (p. 214).
Referring then to a prominent liberal theorist, Dickson C.J.
said:
In my opinion, a response of humiliation and
degradation from an individual targeted by hate
propaganda is to be expected. A person’s sense of
human dignity and belonging to the community at large
is closely linked to the concern and respect accorded
the groups to which he or she belongs (see Isaiah
Berlin, "Two Concepts of Liberty", in Four Essays on
Liberty (1969), p. 118, at p. 155).
Let us call the harm to a particular woman which is suffered
as a result of trafficking in pornography a quasi-social harm.
It is distinguished from a social harm in that the victim
conceived as a member of a victimized class, but any action to
redress this harm is brought solely on her own behalf for the
harm personally suffered. Unlike the actions in the criminal
cases previously cited, claims here are not on behalf of a group
or on behalf of society as a whole, but are on behalf of an
individual who has suffered as a member of a class. The modified
ordinance I propose seeks to redress quasi-social harms. One may
question whether this (as distinct from addressing social harm)
is a tenable legal proposition or not. I suggest that it is, at
least in Ontario, given our established legal categories and
means of redress.
The Ontario Human Rights Code provides an example of an
attempt to redress quasi-social harms. It may be true that tort
law is unable to address the "social injury that occurs at a
personal level", but this is exactly the kind of injury the
human rights codes of the country have been enacted to redress.
While couched in the terminology of individual human rights, the
OHRC’s categories of protection indicate a necessary connection
to the notion of a social harm.
The OHRC does not promise equality, equal treatment, equal
respect etc. of every person, its grandiose preamble
notwithstanding. What it promises is that injurious
discrimination to individuals due to membership in certain social
categories will be redressed by damages or injunction. These
social categories are those which are traditionally associated
with social injury – race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual orientation, age,
marital or family status, or handicap. Notice that many
categories are absent – foolhardiness, poverty, language group,
education, etc. What this indicates is that the OHRC does not
address an equality right per se, but addresses social harm as a
result of being eg. black, female, Croatian, gay, blind, 25 yr.
old, unmarried, etc. The remedies under s.40 of the OHRC are
nearly identical to those in the modified ordinance – damages,
including those for personal anguish, costs of the action, and
injunction.
The modified ordinance would thus be quite similar to the
existing human rights legislation in Ontario in its recognition
of social harm and its suggestion of remedies. Where it would
differ is in its refusal to supplant the power of the victim to
pursue their own action in court, rather than deal with a
commission (and its discretionary powers) or board of inquiry to
investigate matters. Thus the modified ordinance would
remain "women-initiated and women-driven." It would also
differ from the OHRC in that it would clearly specify an as yet
unrecognized particular method of inflicting harm: trafficking
in pornography.
One well-known attempt to pursue a remedy for a quasi-social
harm outside the administrative realm of the OHRC succeeded in
the Ontario Court of Appeal, but failed at the Supreme Court of
Canada. In Bhadauria, the plaintiff alleged that she had been
discriminated against because of her race in applying for a
teaching position, and brought an action on a common law tort
basis of discrimination, and also cited a violation of the OHRC
as giving a cause of action.
Wilson J. in the Court of Appeal held that it was open to
the court to allow the expansion of the common law to include the
tort of discrimination, and would have allowed the action to
proceed. The question of whether the OHRC gave rise to an
independent civil action was not entertained given this
finding.
Laskin CJ. in the Supreme Court of Canada said that the OHRC
was meant to supplant the attempt to seek a remedy at common law,
not to supplement it, and thus barred the action from proceeding
either at common law or directly from an alleged breach of the
OHRC since Bhadauria had not attempted to invoke the procedures
of the OHRC for redress. What is noteworthy from this case
is that the question of whether this kind of harm was capable of
judicial consideration was never at issue. For the Court of
Appeal, the common law was fully capable of entertaining such a
harm as a tort. For the Supreme Court, the OHRC was seen as the
appropriate means of redressing such harm.
What the examples from criminal and tort law demonstrate is
that the notion of a quasi-social harm is tenable in our legal
system, particularly if individuals are given a statutory right
to pursue remedies for it. Thus, the modified ordinance would
simply indicate to the court a category of social harm which has
not previously been specifically addressed, the harm to women
from the propagation of pornography. The relative success at
achieving remedies from OHRC provisions, as compared to the
reluctance of the government to permit the exercise of the
Criminal Code provisions, indicates that retaining a civil right
of action for individuals will be the strategically better move
for feminists insofar as they are seeking redress. I shall leave
discussion of whether this is a tenable feminist political
strategy for dealing with pornography for a later part of the
paper.
It may be objected that the fact that our legal tradition is
capable of making sense of the notion of a quasi-social harm, and
thus could provide the judiciary with the conceptual tools to