Statutory Definition Of Pornography Essay Example

is important for law reform to consider the social notion of harm. The liberal concept of individual human rights fails to acknowledge the specific harm experienced by women, according to MacKinnon and Howe. Therefore, an ordinance that does not recognize and address this harm towards women would not effectively tackle the underlying social problem that pornography represents. This idea of social harm, including subsection 3.2(iii) which relates to it, may be opposed by liberals and legal conservatives in two ways. Firstly, the concept of harm that is not solely tied to individual rights conflicts with the liberal belief of a rights holder seeking legal recourse.The idea that an individual is autonomous, separate, and deserving of respect is essential to a liberal understanding of harm. Both Rawls and Kant demonstrate this perspective in their analyses by presenting a self that lacks distinct qualities other than being a worthy and inviolable agent. This belief in treating individuals with equal concern and respect is pervasive in liberal ideas about rights and is also a core principle of the common law of torts. In tort cases, courts must determine whether to transfer the loss experienced by one person, the plaintiff, to another person. This concept of harm inherently rejects the notion of collective harm that cannot be attributed to individuals individually. While collective actions like class actions are possible and claims can be made on behalf of groups such as shareholders, this is only feasible because there is an identifiable specific harm suffered by a legally recognized individual.

The conventional liberal understanding of harm differs significantly from that described by Howe and MacKinnon. In the liberal perspective, individuals who

hold rights are autonomous and distinct from each other. Consequently, harm to one person is separate from harm to another. This may mean that a liberal understanding of a rights holder makes the idea of social harm, and therefore a cause of action "for women as women," incomprehensible. I will not discuss whether it is possible to fully develop a liberal concept of social harm. What is important to note is that the notion of harm to rights holders in the prevailing liberal legal discourse seems to prevent any individual, solely based on their membership in an oppressed social group, from seeking legal recourse. The challenge for feminism is that if the offense of trafficking in pornography was limited to individuals who claim direct harm resulting from this trafficking, it may rarely or never provide a solution.

When proving a successful action, it is necessary for her to demonstrate that the materials in question are pornography. These materials must display explicit sexual content and exhibit one or more characteristics outlined in the definition. Additionally, she must establish that the materials sexually subjugated her. It's important to note that the law prioritizes preventing harm to women rather than protecting sensitive feelings.

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 that 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: Pornography

causes attitudes and behaviors of violence and discrimination that define the treatment and status of half the population. Pornography institutionalizes the sexuality of male supremacy.

Traditional liberal notions of harmful acts may not effectively address the severity of pornography's harm, as it is a societal harm towards women and not just individual harm. Despite no single woman appearing to have suffered greatly, feminists argue that restricting the ordinance's trafficking provision to specific women would be pointless since a typical liberal court would struggle to comprehend the claims of harm. However, there is room for a more positive perspective. It would be advantageous to examine the concept of social harm, which cannot be directly attributed to one victim, within criminal and tort law frameworks.

The federal statutory provisions on hate literature and the principles from the Bhadauria case provide a basis for a framework of social harm in Ontario courts. Sections 318 and 319 of the Criminal Code prohibit advocating or promoting genocide and inciting hatred of identifiable groups, respectively. Notably, "identifiable group" is defined as any section of the public distinguished by color, race, religion, or ethnic origin, excluding gender identification. These sections allow groups, not individuals, to seek redress for disseminating hateful or pro-genocidal materials. Section 319 has been deemed as violating s.2(b) of the Charter of Rights and Freedoms but justified under s.1 of the Charter.

In Canadian criminal law, it is considered coherent for a group to suffer intangible social harm through the publication of literature, with a remedy being appropriate. However, there are issues with this legal protection if we accept MacKinnon and Cole's assumptions about the legal system. The sections of the law

can only be enforced by the Attorney General, which resulted in charges being laid against Ernst Zundel for publishing literature denying the holocaust and claiming a Zionist conspiracy, by Jewish activist groups under s.181 of the Code. This supports Cole's claim that seeking legal redress for the harm of pornography through the male-dominated executive branch of government may not be effective. This failure is evident in another case where charges were not laid by the Attorney General, despite it appearing to be a clear case of harm. However, in isolated cases like Keegstra, where harmful information was disseminated to children, the law recognizes social harms as actionable.

Despite society's moral disapproval of offensive pornography, there are significant practical barriers to prosecuting the harm it inflicts on women in a male-dominated liberal society. Nevertheless, it is important to recognize the validity of the conceptual foundation of social harm, as exemplified by the Keegstra case. This landmark case acknowledged that disseminating information not only harmed Jews but also had negative effects on society at large. Feminists argue that women experience similar harm from pornography and their concern stems from both its offensiveness and actual detrimental impact. The use of language can cause severe psychological and societal consequences.

The Cohen Committee observed that hate propaganda can lead to serious attacks on individuals based on their race or religion, resulting in humiliation and degradation (p. 214). This sentiment aligns with the views of Dickson C.J., who referred to a prominent liberal theorist, Isaiah Berlin, and stated that it is reasonable for targeted individuals to feel humiliated and degraded. One's sense of human dignity and belonging to the larger community is closely

tied to the level of concern and respect given to the groups they belong to (see Isaiah Berlin, "Two Concepts of Liberty", in Four Essays on Liberty (1969), p.).

118, at p. 155, defines the harm caused by pornography trafficking towards a particular woman as quasi-social harm. Unlike social harm that affects a victimized group, this harm is suffered by an individual victim. Any attempts to address this harm are solely aimed at benefiting the individual who personally experienced it.

Unlike the actions in the criminal cases mentioned, the claims in this case do not represent a group or society as a whole. Instead, they represent an individual who has suffered harm as part of a class. The proposed amendment to the ordinance intends to tackle quasi-social harms. Some may doubt the feasibility of this legal proposition without addressing social harm. However, I contend that it is achievable, particularly in Ontario, given our current legal classifications and avenues for seeking justice. The Ontario Human Rights Code provides a framework for attempting to address quasi-social harms.

Although tort law may not be able to address the personal level of social injury, the country's human rights codes have been enacted specifically to address this type of injury. Even though the Ontario Human Rights Commission (OHRC) uses the language of individual human rights, its protected categories indicate a clear connection to the concept of social harm. Despite its ambitious preamble, the OHRC does not guarantee complete equality, equal treatment, or equal respect for all individuals. Instead, it promises to remedy discriminatory actions against individuals based on their membership in certain social categories through compensatory damages or prohibition orders.

These social categories are

typically associated with societal harm - race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital or family status, or handicap. It is noteworthy that certain categories such as foolhardiness, poverty, language group and education are not mentioned. This implies that the OHRC's emphasis is not solely on equality rights but also on addressing the societal harm inflicted by being black, female Croatian gay blind or 25 years old.

The remedies offered under section 40 of the OHRC and the modified ordinance are nearly identical, encompassing damages for personal distress, legal costs, and an injunction. The modified ordinance aligns closely with existing human rights legislation in Ontario by acknowledging social harm and offering potential remedies. However, it distinguishes itself by preserving the victim's right to pursue legal action in court instead of going through a commission or board of inquiry with discretionary powers. This distinction ensures that the modified ordinance remains centered on empowering women and driven by women. Additionally, it explicitly recognizes a previously unacknowledged form of harm: trafficking in pornography. There was a notable case where someone sought redress for a quasi-social harm beyond the jurisdiction of the OHRC. This attempt succeeded at the Ontario Court of Appeal but was unsuccessful at the Supreme Court of Canada.

The plaintiff, Bhadauria, alleged racial discrimination during her application for a teaching position. She filed a lawsuit claiming common law discrimination and cited the violation of the OHRC as justification for legal action. In the Court of Appeal, Judge Wilson determined that the court had the power to extend common law to encompass discrimination as a tort and would have permitted the lawsuit

to proceed. However, this decision did not address whether the OHRC could result in an independent civil action. Chief Justice Laskin.

In the Supreme Court of Canada, it was determined that the Ontario Human Rights Commission (OHRC) was intended to replace the attempt to seek a remedy through common law, not to add to it. As a result, the action was blocked from proceeding through either common law or directly from an alleged breach of the OHRC because Bhadauria had not utilized the procedures of the OHRC for redress. Importantly, whether this type of harm could be considered by the courts was never in question. The Court of Appeal believed that the common law had the capacity to address this harm as a tort, while the Supreme Court regarded the OHRC as the appropriate means of addressing such harm. Examples from criminal and tort law show that the concept of quasi-social harm is plausible within our legal system, particularly if individuals are granted a statutory right to pursue remedies for it. Therefore, the amended ordinance would simply inform the court of a category of social harm that has not been specifically dealt with before, namely the harm inflicted on women by the spread of pornography.

The success of OHRC provisions in achieving remedies, compared to the government's reluctance to permit the use of Criminal Code provisions, suggests that feminists would be better off strategically by retaining a civil right of action for individuals seeking redress. Whether this is a viable feminist political strategy for addressing pornography will be discussed later in the paper.
It could be argued that just because our legal tradition can make sense of the

concept of quasi-social harm and provide the judiciary with the necessary tools to adjudicate on a modified version of the ordinance, it does not mean that the modified ordinance and its understanding of harm are acceptable in a liberal framework. A liberal framework may require individualized harms, and the fact that our current legal system can operate outside of that limitation merely shows that liberalism is not fundamental to our evolving understanding of harm within the legal framework. Therefore, liberals may still view the ordinance as inconsistent or even argue that it promotes an illegitimate concept of non-individuated rights and provides state-enforced remedies for illegitimate purposes. This liberal argument may be theoretically valid, and thus the "bleak" scenario I described earlier may still hold true if we prioritize a liberal legal framework.

Moreover, the compelling arguments made by liberals regarding the importance of freedom of speech may outweigh any concerns about the specific harm addressed in the ordinance. This may be because there is no clear evidence linking the alleged harm to the proliferation of pornography, or because the harm is not considered harmful in the liberal sense, but rather reflects a personal preference. Consequently, a liberal framework would not tolerate the ordinance as it unreasonably restricts freedom of expression. In response to this, I have two points. Firstly, since protecting individuals from harm is generally an acceptable justification for limiting individual freedom within a liberal framework, liberals must provide a coherent counterargument to MacKinnon and others' claim that pornography genuinely causes physical and psychological harm to women, rather than mere disgust.

To date, I have yet to see a response from liberals that does not assume

the problem with pornography stems solely from moral objections. They strongly disagree with the promotion and spread of pornography. The feminist argument on the harm caused by pornography is very convincing, and until liberals address these harms instead of simply focusing on moral condemnation, the responsibility falls on them. Additionally, the purpose of the ordinance is not to establish a cohesive theoretical stance on pornography but rather to address a social problem through legal means. If the current legal system's attempt to address such problems is considered illegitimate based solely on abstract liberal principles, feminists do not necessarily need to convince liberals that the ordinance is acceptable in practice. From a strategic feminist standpoint, it is enough to demonstrate, as I am attempting to do, that some version of the ordinance aligns well with the existing legal tradition, whether that tradition is fundamentally liberal or not.

The proponents of the ordinance are not overly concerned with the theoretical legitimacy of the entire legal system. Their focus is on rectifying the harm inflicted on women through available political and legal methods. Furthermore, based on the comments of Dickson J. mentioned earlier, it is unclear whether liberal theories are actually committed to abandoning the concept of harm and its redress, which are already present in the current legal framework. Therefore, it is possible that only certain branches of liberalism would object to the notion of harm addressed in Keegstra or the OHRC. The second major issue with the ordinance, from the perspective of our traditional liberal legal framework, is determining the source of the harm.

The concept of autonomous individuals as understood by liberals necessitates the presence of a

specific victim and a specific perpetrator. MacKinnon and Cole extensively discuss women as victims of a social harm. However, they give minimal attention to understanding the perpetrators of this harm, limiting their definition of pornography. According to them, if pornography can be identified, then the source of harm can also be identified. It is evident that before initiating legal action under the ordinance, it is necessary to identify the individuals responsible. While not every redress system requires this as a theoretical prerequisite, it is both theoretically and practically essential for initiating a civil action.

The frameworks of criminal law, tort law, and the OHRC all require the identification of a perpetrator of harm. Even without a legal requirement, it would be pointless to seek damages or injunction if there is no identifiable person or entity to hold responsible. The harm caused by pornography is not easily attributed to a single source. MacKinnon et al. emphasize the complexities of pornography, stating that harm occurs not only because of its content, but also because of how it perpetuates male dominance in society. "Pornography institutionalizes the sexuality of male supremacy." If, as some argue, pornography's harm is linked to social practices, then blame for this harm cannot be solely placed on pornography or any specific source.

In this paper, I will not analyze society and its distribution of responsibility for the reparation of pornography's harm across all members and institutions in society. Instead, I will focus on the smaller issue of how responsibility is distributed among pornographers. Due to the vast amount of pornography, it can be difficult to determine the specific publishers, materials, etc. that contribute to the quasi-social

harm suffered by a plaintiff.

One potential solution for determining the identity of the person responsible for a crime could be found by examining how the problem was addressed in a product liability case by the California Supreme Court. The information provided by Linden suggests that traditionally, the defendant in a lawsuit must be clearly and individually identified as the direct cause of the harm suffered by the plaintiff. However, this traditional understanding of causation in tort law is not considered absolute or inviolable. In the case of Sindell, for example, a victim of a harmful medication was able to successfully sue multiple pharmaceutical companies, even though no single company could be directly linked to the harm suffered by that specific victim.

The plaintiff's mother consumed the drug DES while pregnant, resulting in the plaintiff experiencing birth defects. Although evidence of the specific supplier of the drug to her mother had disappeared, it was known that one of the various manufacturers at the time had promoted the drug without warning about its potential side effects. The California Supreme Court ruled that in the absence of direct evidence linking any particular supplier to the drug DES, the plaintiff could be awarded damages based on the probability that any manufacturer was responsible for providing the drug to her mother during pregnancy. This case is fundamentally different from a possible lawsuit involving harm from participating in pornography. The plaintiff clearly suffered physical harm as a result of the product; the only uncertainty revolved around which manufacturer, such as A, B, C, etc., was responsible.

If a woman could prove that she has been harmed by the spread of pornography, this case

suggests that all pornographers or traffickers could be held responsible based on their market share. It is important to note that only "the producers of a substantial share of the market, that is, over 50 per cent" would need to be sued to trigger this liability concept. Therefore, if a woman could demonstrate the relevant societal harm caused by pornography and identify producers who control at least 50% of the market, she would have the grounds to take legal action.

It is possible for a trafficker to avoid legal action if they can prove that their brand of pornography is not harmful or does not meet the definition of pornography. However, a challenge with this approach is the difficulty in identifying the specific type of pornography that caused harm. Due to the complex social nature of the harm, it is often challenging for a woman to pinpoint a particular kind of pornography as the cause. This may result in an excessive number of publishers or traffickers being named in lawsuits. Additionally, publishers may try to involve other parties to share the financial burden of the lawsuit.

However, it is possible in certain instances to pinpoint a specific type of material as the source of harm. The significance of the ordinance for feminists goes beyond compensating individual women; its political and societal impacts are also important. Therefore, the success of some cases would be a major triumph. Consequently, the challenge of identifying a perpetrator is not insurmountable. Some legal principles provide judges with the means to provide relief when individual culprits cannot be identified. In specific situations, there could be one or multiple defendants, or a defined class

of defendant where the actual perpetrators remain unknown. In either scenario, Ontario courts possess the necessary conceptual tools to address the issue.

The inclusion of the indeterminate perpetrators doctrine from the DES case would be a welcomed addition to the way courts handle a modified ordinance. However, successful legal actions would not solely rely on this doctrine. It is not difficult to envision the type of material that would be considered harmful, such as images or words that dehumanize women in a sexual context, objectify them, portray enjoyment in pain, rape or humiliation, show bruising, bleeding or harm, and so on. Once the harmful material has been identified, it is necessary to determine and name the publishers, distributors, and other involved parties. However, for a woman bringing a lawsuit under s.3.2(iii), the main challenge is to prove that some genuine quasi-social harm has resulted from the spread of pornography, even if she was not assaulted or coerced into viewing or participating in it.
Furthermore, this issue brings to light the major challenge faced by plaintiff Ruth M.

According to the testimony, it is not entirely implausible that a modified version of the ordinance would allow individual women to seek legal action for quasi-social harm they have experienced as a result of pornography-related trafficking. Although the criminal code's hate literature provisions suggest that our legal system can address social harm, adopting the modification would likely lead to greater success. This modification aligns with the feminist concept of harm proposed by MacKinnon and her supporters, and is similar to existing legal frameworks in Ontario that offer civil remedies for quasi-social harms. While identifying a specific perpetrator may pose a challenge,

it is not insurmountable thanks to the Sindell doctrine and the accepted idea of multiple defendants in civil lawsuits.

Ultimately, although the ordinance may initially appear impractical (like any new legal doctrine before undergoing judicial treatment), there are legitimate scenarios where seeking justice and offering viable solutions seems justified. Throughout this paper, I have discussed feminist strategies in different contexts. Naturally, there is ongoing debate among feminists regarding the most appropriate approaches to address the issue of pornography. It is important to acknowledge that the ordinance, whether altered or not, will not meet the expectations of every feminist. However, I believe it could be a viable proposition for MacKinnon and her supporters due to its ability to provide redress for specific social harms suffered by individual women. Furthermore, it has the potential to expose the damaging effects of pornography to intense public scrutiny, as long as feminists dedicate significant political efforts to specific cases.

MacKinnon et al.'s concern is that the ordinance should bring about a change in the power dynamics upheld by pornography. The harm caused by pornography is collective and social in nature. However, the modified ordinance only allows for a single plaintiff, specifically a woman, to initiate legal action on her own behalf. This change in the ordinance has arguably resulted in a law that is unlikely to be pursued. This is because the women who are most likely to succeed in their legal actions are also the least likely to proceed with them. These women either lack the power to act due to their subjugated situation or do not recognize the harm as they have normalized, adopted, or accepted it. It is highly

improbable that the ordinance alone will completely overturn the subjugation of women by solely providing remedies for individual women.

The social harm caused by pornography towards women cannot be resolved on an individual basis. However, the presence of both the ordinance and women like Ruth M. and Linda Marchiano who manage to escape the grip of a pornographic lifestyle implies that certain cases will inevitably become public knowledge. If advocates of MacKinnon's ordinance assume an appropriate strategic stance, the ordinance will effectively achieve its goal of reducing the detrimental impact of pornography on women. Feminists have a two-fold task at hand, in my opinion. Firstly, they must establish support systems to provide women with the necessary resources to step forward and confront those responsible for harming them through involvement in pornography trafficking.

The effectiveness of support groups, legal resource groups, and personal support groups in situations where one's established values and relationships are disrupted is vital to the success of actions taken under the ordinance. It is highly unlikely for individual women to successfully initiate an action on their own. Additionally, feminists must work to address and confront the expected political opposition to the revised ordinance. I have no doubt that cases brought under this ordinance would garner substantial publicity, similar to the cases of Keegstra and Zundel. Detractors will swiftly highlight the involvement of "censorship" and the limitation on freedom of expression, while advocating for the use of the Charter of Rights to hinder efforts in addressing harm against women.

Feminists should strive to raise awareness about the harm caused by pornography and educate the public about its content. By campaigning and advocating for the implementation of

an ordinance, as well as taking legal actions, they can garner support from a significant portion of the community in their efforts to protect women from harm. Although there may be controversies, polarizations, and opposition, similar to what was seen during the Thomas hearings on harassment, bringing attention to this issue will have strategic benefits. In conclusion, it would be reasonable to modify the ordinance to only hold individuals accountable for trafficking in pornography. This adjustment would align with our liberal legal tradition and provide a way for individuals who experience quasi-social harms to seek justice, similar to existing legislation on discrimination and hate literature.

The difficulty of identifying perpetrators is a challenging problem, but negligence law doctrine offers some insight into addressing it. Additionally, the ordinance proposed by feminists aims to partially advance the goal of reducing the power imbalance perpetuated by pornography. Therefore, I recommend that feminists and legislators seriously consider implementing a modified version of this ordinance. The term paper titled "Remedies for Pornography in the Ontario Legal Context" by Prof. David Dyzenhaus from the University of Toronto Faculty of Law on January 6, 1992, discusses this topic in the category of Miscellaneous.