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Published online by Cambridge University Press: 18 July 2014
I want to express my profound thanks to Carolyn Strange for her intellectual and emotional support of my work and for her expert editorial assistance. Thanks also to Anna Pratt, Elizabeth Comack and Bonnie Johnson for engaging debates over the law, feminist theory and practice.
1. Jackson, Emily, “The Problem with Pornography: A Critical Survey of the Current Debate” (1995) 3:1 Feminist Legal Studies 49 at 49.CrossRefGoogle Scholar
2. Ibid. at 61–62.
3. Ibid. at 62.
4. The authors concentrate on mainstream heterosexual pornography.
5. Hunt, Alan, Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993) at 305.Google Scholar
6. Smart, Carol, Feminism and the Power of Law (London: Routledge, 1989).CrossRefGoogle Scholar
7. Snider, Laureen, “The Potential of the Criminal Justice System to Promote Feminist Concerns” in Comack, Elisabeth & Brickey, Stephen, eds., The Social Basis of Law, 2nd ed. (Toronto: Garamond, 1991).Google Scholar
8. Mulhall, Stephen & Swift, Adam, Liberals and Communitarians (Oxford: Blackwell, 1992) at 249.Google Scholar
9. Ibid.
10. The feminist anti-pornography movement argues that pornography causes direct, indirect, and social harm. First, the production of pornography has a direct harmful impact on women working in the sex trade because many women are there by coercion. Second, the consumption of pornography leads to violence against women in sexual relations because it links pleasure with violence and/or domination. Third, the ubiquitous nature of pornography contributes to the socialization of women and men to reproduce a gendered sexual subjectivity that is based on the relations of sexual domination and objectification portrayed in the bulk of pornographic materials. Overall, pornography is said to contribute to an increase in violent sexual crime such as rape and to misogynist attitudes and practices towards women as a group. See Cole, Susan, Pornography and the Sex Crisis (Toronto: Amanita, 1989).Google Scholar
11. See, for example, Harding, Sandra, ed., Feminism and Methodology (Bloomington: Indiana University Press, 1987)Google Scholar; Hartsock, Nancy, Money, Sex and Power: Toward a Feminist Historical Materialism (Boston: Northeast University Press, 1983)Google Scholar; Smith, Dorothy, The Everyday World as Problematic: A Feminist Sociology (Boston: Northeast University Press, 1987)Google Scholar; Stanley, Liz & Wise, Sue, “Method, Methodology and Epistemology in Feminist Research Processes” in Stanley, Liz, ed., Feminist Praxis: Research, Theory and Epistemology in Feminist Sociology (London: Routledge, 1990).Google Scholar
12. My point here is that this chapter seems to view qualitative research as “unscientific” because this research is based on experience. For a broader discussion of the use of women's experience of oppression to construct “Truth” claims that are then deployed as a basis for feminist jurisprudence, see Gotell, Lise, “Litigating Feminist ‘Truth’: An Antifoundational Critique” (1994) 4:1 Social and Legal Studies 99.CrossRefGoogle Scholar
13. For example, Susan Cole conducted a study of 105 women in Ontario shelters and found that “24 per cent of the women whose spouses used pornography were forced to buy the materials, representing 13 per cent of the entire sample. Twenty-five per cent of the women whose spouses used pornography were forced to look at it. Further, a full 48 per cent of the women whose spouses used pornography, representing 25 per cent of the entire sample, reported having to replicate activities in the pictures against their will. All of these women described these experiences as dehumanizing in some way.” See Cole, supra note 10 at 171, cf. 23. For a recent overview of research that focuses on women & experiences of pornography, see Cowan, Gloria & Stock, Wendy, “The Costs of Denial: Self-censorship of Research on Degrading/Dehumanizing Pornography” in Lederer, Laura & Delgado, Richard, eds., The Price We Pay: The Case Against Racist Speech, Hate Propaganda and Pornography (New York: Hill & Wang, 1995).Google Scholar
14. Cole, supra note 10 at 71.
15. Lacombe (p. 46), notes that the United Church of Canada statement on pornography exemplifies a conservative position on pornography: “The United Church of Canada forcefully condemns pornography as one form of violence against women in our society. We believe all women are degraded and violated by its mere existence, and that pornography is a contributing factor in the rape and battering of women … our ultimate dream is justice and dignity for all people and we believe one fact of justice for women is the eradication of pornography.” Her discussion of R.E.A.L. Women of Canada more accurately reflects a conservative position, which, according to Mahoney, is outraged by the depictions of sexual explicitness for purposes other than procreation in heterosexual unions. See Mahoney, Kathleen, “Obscenity, Law and Morals: A Feminist Critique” (1984) 17 Ottawa L.J. 33.Google Scholar Pornography and any other representations of sexuality symbolizes the moral decline of the nation threatening the so-called “family values.” In my view, the statement by the United Church of Canada is closer to a liberal feminist position which views pornography as harm to women and children, not because it undermines a traditional moral order but because it threatens equality.
16. These cases are referred to by the Women's Legal Education and Action Fund (LEAF) in their factum to the Supreme Court in R v. Butler (1992) 8 CRR (2d) 1 (SCC). Copies of the Butler factum are available from the LEAF National Office, 415 Yonge Street, Suite 1800, Toronto, Ontario M5B 2B7.
17. Smart, supra note 6.
18. In the Canadian context, LEAF advanced a harms based equality approach when they intervened in both R. v.Keegstra (1990), 3 CRR (2d) 193 (SCC), Tavlor v.Canada (1990), 3 CRR (2d) 116 (SCC), and R. v. Butler (1992), (2d) 8 CRR & (2d) 1 (SCC). It was argued that any Charier freedom-of-expression challenge to the Criminal Code provisions (both hate propaganda and obscenity) must be considered in light of the Charter's guarantee to promote equality Cor historically vilified groups. For a detailed discussion of LEAF'S position, see Busby, Karen, “Leaf and Pornography: Litigating on Equality and Sexual Representations” (1994) 9:1 C.J.L.S. 165.CrossRefGoogle Scholar I would like to thank Karen Busby for this and many other insights she gave me while I was working on my Masters thesis on Canadian obscenity law.
19. Busby, ibid.; Mahoney, supra note 15; Scales, Ann, “Avoiding Constitutional Depression: Bad Attitudes and the Fate of Butler ” (1994) C.J.W.L. 349.Google Scholar
20. The Bad Attitude case is known as R v. Scythes (16 January 1993), (Ont. Ct. Prov. Div.) Paris. J. [unreported].
21. The Butler decision refers to three tiers of pornographic material. According to Sopinka, J., writing for the majority: “Pornography can be usefully divided into three categories: (1) explicit sex with violence; (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing; and (3) explicit sex without violence that is neither degrading nor dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence.” In addition, the court stated that: “In making [a] determination [of the community standard of tolerance] with respect to the three categories of pornography referred to above, the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.” Quoted in Johnson, Kirsten, Undressing the Canadian State: The Politics of Pornography from Hicklin to Butler (Halifax: Fernwood, 1995) at 68.Google Scholar
22. See Busby, supra note 18; Fuller, Janine & Blackley, Stuart, Restricted Entry: Censorship On Trial (Vancouver: Press Gang, 1995)Google Scholar; Johnson, ibid.; Ross, Becki, “‘Wunna His Fantasies’ The Stated Indefensibility of Lesbian Smut” (1993) 2:38 Fire weed 38.Google Scholar
23. R. v. Ronish (1994), 26 C.R. 75 (Ont. C.A.).
24. Ibid.
25. Smart, supra note 6.
26. Easton, Susan, “Pornography as Incitement to Sexual Hatred” (1995) 3:1 Feminist Legal Studies 89.CrossRefGoogle Scholar
27. Ibid. at 94.
28. Goldberg, David T., Racist Culture: Philosophy and the Politics of Meaning (Cambridge: Blackwell, 1993).Google Scholar
29. See, for example, Brickey, Stephen & Comack, Elizabeth, “The Role of Law in Social Transformation: Is a Jurisprudence of Insurgency Possible?” (1987) 1 X.J.L.A. 97 Google Scholar; Currie, Dawn, “Battered Women and the State: From the Failure of Theory to a Theory of Failure” (1990) 1:2 Journal of Human Justice 77 Google Scholar; Hunt, supra note 5; Smart, supra note 6; Snider, supra note 7.
30. Easton, supra note 26‥
31. Ibid.
32. See, for example, Snider, supra note 7.
33. Ironically, the fact that Donald Victor Butler was eventually sentenced to a $ 200 fine was more widely publicized (in Winnipeg where the case originated and where I lived at the time) and, as a consequence, became better known than the details of the actual Butler decision. From this anecdote readers can draw their own conclusions about the symbolic value of law.