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LIBERALS ATTEMPT TO AMEND CHILD PORNOGRAPHY
LAW
On December 5, 2002, with great fanfare, Minister
of Justice Martin Cauchon announced proposed amendments to
the Criminal Code dealing with children, including provisions
on child pornography.
In its news release, the Justice Department
proudly proclaimed that "the package of reforms ... will
help safeguard children and the other vulnerable persons from
sexual exploitation ...." This was nothing more than
political posturing.
Although these amendments are an improvement
in that they tighten somewhat the loopholes in the current
child pornography law (used so effectively by Vancouver's
paedophile, Robin Sharpe, in his recent court cases) they
are far from adequate. These amendments still give our terminally
liberal, judicially active judges wide leeway to interpret
the law on child pornography. In effect, vulnerable children
may not necessarily be protected by the proposed amendments
at all.
Paedophile Robin Sharpe
Robin Sharpe was acquitted on the charge of
child pornography in regard to the vile stories he wrote about
children and adults involved in sexual acts that included
sadism and masochism. Mr. Justice Duncan Shaw of the BC Supreme
Court concluded in 2001 that these stories, even though they
may be morally repugnant, did not constitute child pornography
because they had "artistic merit." Under the current
child pornography law, a charge of child pornography can be
refuted by the defence that the material had artistic merit
or serves an educational, scientific or medical purpose. Also,
the current law provides that the material must 'advocate
or counsel' sexual activity with a person under the age of
eighteen years in order for it to constitute child pornography.
In the Sharpe case, Mr. Justice Shaw concluded that since
the latter's writings were for his own (and others) titillation
and enjoyment, they did not "advocate or counsel"
sexual activity. Thus, on the grounds that the material had
"artistic merit", and in the absence of 'advocating'
or "counseling" sexual activity with children as
set out in the Criminal Code, Judge Shaw found Mr. Sharpe
not guilty of the child pornography charge in regard to his
writings. The Judge did, however, find Mr. Sharpe guilty of
the charge of possessing approximately 500 photographs of
child pornography; for that, he was given only a four-month
confinement sentence at home.
Mr. Cauchon's Amendments on Child Pornography
Mr. Cauchon attempted to remove some of the
loopholes in the child pornography law with his amendments
by proposing the following:
1. The exemption of "artistic
merit, educational, medical purposes" was to be replaced
with the single defence of "serving the public good."
This defence of "serving the public good"
has always been a defence in regard to every charge of pornography,
so there is nothing new in the use of this term in pornography
cases. The problem with this substituted term, however, is
that the courts have, over the years, interpreted the expression
"serving the public good" as meaning that the material
has artistic merit, or serves an educational, medical or scientific
purpose, which is exactly the same meaning and intent as set
out in the present child pornography law. Back to square one!
That is, although the actual words "artistic merit",
etc., have been deleted from the child pornography provision
in the Code, it still exists - only now under the guise of
"public good."
2. The amendments include the added
provision that defending the "public good" cannot
be successful where the risk of harm outweighs any public
good done.
It would be nice to think that, since all
child pornography presents a risk of harm - paedophiles use
it to encourage themselves and also to show to their victims
in order to convince them that such acts are "normal"
- that such a risk would outweigh the "artistic merit"
in every instance, i.e. the public good defence. However,
it is not easy to trust activist liberal judges who believe
that child pornography is not always bad or risky. Inevitably,
they will find that the artistic merit in some cases outweighs
the "risk."
3. The amendments do close off one
loophole, in that they state that written child pornography
is to be redefined and expanded to include material that is
"created for a sexual purpose that predominantly describes
prohibited sexual activity with children." As a result,
it will no longer be necessary to show that the material "advocates
or counsels" prohibited sexual activity with children.
It will be necessary only to show that it was created for
a sexual purpose in order for an offence to have occurred.
The very provision that got Robin Sharpe acquitted, has now
been eliminated.
Mr. Cauchon's amendments will probably lead
to a few more successful prosecutions on child pornography
but the amendments will only be a stop-gap. They still leave
large loopholes for liberal judges to exercise wide discretion
to allow paedophiles to avoid conviction.
Exploitation of Children
In response to public demand to increase the
age of consent for sexual activity from 14 years to 16 years,
Mr. Cauchon decided instead to create a new category of offence
called "sexual exploitation." This provision states
that the accused charged with a sexual offence against a person
who has consented to that activity, i.e. is 14 years of age
or older, cannot use that consent as a defence if they are
is in an "exploitative" relationship with that young
person. In determining whether an exploitive relationship
exists, a judge, under this amendment, must look at the age
difference, the evolution of the relationship and the degree
of control or influence the alleged offender has over the
young person.
Therefore, although this provision will be
useful in bringing charges against pimps, or others who manipulate
young persons, such as those working in "sex pads"
or brothels (where young girls are especially appealing to
customers), it will do nothing to stop teenage prostitution
in those circumstances, for example, where young girls work
independently on the streets.
The Age of Consent
Unfortunately, Mr. Cauchon did not raise the
age of consent to 16 or 18 years, which would have been the
most effective way to control the sexual abuse of young persons.
Failure to raise the age of consent makes
no sense at all since young people under 16 years are currently
prohibited from purchasing alcohol or cigarettes and are protected
under our criminal justice system until 18 years of age. Why
are 14 years olds deemed able to consent to sexual intercourse,
which can create long-range problems and repercussions, such
as sexually transmitted diseases (STDs), HIV/AIDS and pregnancy,
but are not able to purchase a pack of cigarettes? Neither
is good for adolescents, so it is not reasonable to take the
position that sexual activity at such a vulnerable age is
less damaging to an adolescent.
Whose Interests are the Liberal Government
Serving?
What is so disturbing about these proposed
amendments is that they do not reflect the views of the Canadian
public. Even the Liberal government's own polling company,
Pollara, (May 2002), discovered that Canadians do not support
the proposed amendments. Part of the poll was as follows:
Question 1. Recently, the B.C. Court acquitted
John Robin Sharpe of possessing and distributing child pornography
on the grounds that his fictional stories depicting scenes
of violence and sex involving adults with children have some
artistic merit and could not be classified as child pornography.
So you strongly agree, somewhat agree, somewhat disagree or
strongly disagree with this ruling?
Strongly Disagree 74%
Question 2. There has been some debate lately
about the age of sexual consent in Canada. Currently the age
of sexual consent for most sexual activities (that is the
age at which a person is legally able to consent to having
sex) is 14 years of age. Do you think that the federal government
should raise the current age of sexual consent from 14 to
16 years of age?
Yes, Should 72%
From what source is Mr. Cauchon receiving
pressure to ignore the public's views on these crucial issues?
Unfortunately, it would appear to come from Mr. Cauchon's
own personal liberal views, as well as those of the homosexual
lobby, which believes, according to its submissions to the
government, that adult homosexual males should not be denied
sexual access to 14 year old youth.
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