The National Post
Thursday, July 1, 1999

Judges draw on absurd examples

by Mark Hume

In a less sensitive age, John Robin Sharpe would have been called a dirty old man, and sent to jail. Today, thanks to the courts of British Columbia, he is a crusader for human rights -- a champion for those who value freedom of thought.

In a stunning decision here yesterday, the British Columbia Court of Appeal shook the government's pornography laws by ruling that Parliament had gone too far in making it illegal for someone to possess child pornography.

Sharpe, who thinks it's just fine for adults to have sex with children, came out of court smiling. At first acting by himself, but now backed by Richard Peck, a powerful and persuasive lawyer, he has twice challenged Canada's child-pornography laws and won.

Earlier this year, the Crown lost a prosecution against Sharpe when a B.C. Supreme Court judge dismissed two possession charges against him, saying the law infringed on his rights to self-expression.

The Court of Appeal was even stronger in condemning the law, Justice Mary Southin even conjuring up images of the Gestapo and KGB "smashing down doors and burning books".

This is what they would have you believe we have been saved from.

In fact, Sharpe's apartment was searched by a couple of RCMP officers who knocked on his door and served a warrant.

Only then did they take possession of his collection of photographs, books, manuscripts, stories, and computer disks in which children are depicted as not only having sex with adults, but liking it.

That is a common theme of child pornographers -- the kids, even when they are as young as five, want it.

The courts heard, and accepted as fact, expert testimony that child pornography serves several purposes for those who collect it. Certainly the most disturbing fact is that such material is commonly used to "groom" children.

First a paedophile befriends a child. Then he engages in "innocent play". A favourite technique of paedophiles is to have wrestling matches while wearing only underwear. Then the selected victim is shown the naughty pictures. Once they get the idea, they are guided into sexual acts.

The judges knew this. They also knew that pornography incites some paedophiles to commit offences. Studies have shown that more than one-third of the child molesters and rapists claim to have at least occasionally been incited to commit an offence by sexually explicit material, and 55% of that group deliberately used pornographic stimuli in preparing to offend.

Clearly, pornographic material is a trigger for a large number of child molesters.

But the courts ruled it is OK for Sharpe to have whatever kind of child pornography he wants, because to restrict him would infringe on the rights of others who have no interest in sex with children.

Judge Southin, for example, said that the law as it now stands "encompasses not only the proverbial dirty old man approaching a 10- or 11-year-old, but also the 20-year-old bent on seducing a 17-year-old girl and using a copy of the Kama Sutra or any one of a number of salacious magazines for the purpose."

Or how about this example, cited by Justice Anne Rowles, who also thought the pornography law too sweeping:

"A couple, even a married couple, who record their own sexual activity would be criminally liable if one or both were between 14 and 17 years of age, even though the act depicted is lawful and the material remains in their private possession. A narcissistic 17-year-old youth, to take another example, would be criminally liable if he simply took an erotic nude photograph of himself and kept it in his private possession. A person could be prosecuted ... for possessing a self-authored statement, perhaps even a diary entry, which advocated sexual offences with persons under 18 years of age, even though that material is only a written record of the author's private thoughts and is never disseminated or shown to anyone."

Another example cited was of a filmmaker shooting a scene in which a juvenile, or even an adult playing a juvenile, has her breast fondled. Under the current law, a court could conceivably rule that the scene is pornographic and send the filmmaker to jail for 10 years.

That has never happened, of course, and if it did there would be cries of outrage. But the judges let that pass, as they drew on examples that seemed absurd when compared to the realities of child molestation.

Judge Rowles said the law is "only one step removed from criminalizing simply having objectionable thoughts".

She said the law "as a whole is aimed at the valid and laudable objective of protecting children from the harms of sexual exploitation and abuse, but [it] overreaches by criminalizing a vast range of conduct for which no reasoned apprehension of harm can be shown".

All the judges agreed that the sexual exploitation of children is morally repugnant, but two of them, Judges Southin and Rowles, flatly rejected the government's attempt to come to grips with that problem.

Certainly Parliament, when it tackled the thorny issue of child pornography, wasn't thinking of the 14-year-old married couples that make home videos of their sex. And they failed to think of the 20-year-olds out there -- apparently they are legion -- who are using the Kama Sutra to seduce 17-year-olds.

We know Parliament wasn't thinking of filmmakers producing movies in which a 17-year-old gets her breasts felt up -- because this is the same government that has been giving out grants for the making of sexually explicit movies.

What parliamentarians were thinking about were children. They were thinking about the little kids who are sexually abused.

The government wanted to give the police more power to seek out adults who abuse to search their homes, to seize the material, much of which depicts violent sex, and to put them in jail.

In its ruling, the B.C. Court of Appeal would toss all that out. It seeks a clinically precise law that would protect children from sexual exploitation, while at the same time allowing people like Mr. Sharpe to collect the type of material used to groom victims.

Such a law may be impossible to draft. But one thing is abundantly clear. While the issue is being pondered, children are being abused.

The law as drafted by Parliament may not be perfect. But until the B.C. courts got involved, it was helping the police and making life uncomfortable for child pornographers. Now we are told to rest easy, because the courts have protected us from the thought police, the Gestapo, and the KGB.

In her judgment, Judge Southin says judges aren't from Mars. Sometimes, you have to wonder.

Copyright © 1999 by The National Post. All Rights Reserved. Reprinted with permission.