2. Previous Commission Findings

Part: 
Four
Chapter: 
2

A fierce debate has raged in this country over obscenity and pornography since the 1970 Commission on Obscenity and Pornography announced its findings; a debate mirrored in the bitter internal struggles of the Commission itself.[927] It is perhaps a measure of the passionate as opposed to reflective character of the struggle that the interests of those persons actually photographed for sexually explicit material was considered by neither the majority nor the minority reports of the Commission. Perhaps because "hard-core" material was seen by the Commissioners as being largely of foreign origin,[928] the risks for performers in such materials may have seemed virtually irrelevant. The Commission's Traffic and Distribution Panel merely paused to note that in making a typical "stag film"[929] the 'performers' are paid $100 to $300.[930] The recommendation of the majority for repeal of all laws regulating distribution of obscene material to adults was premised on the belief "that there is no warrant for continued governmental interference with the full freedom of adults to read, obtain or view whatever such material they wish."[931]

The majority did not consider it even a theoretical possibility that such unlimited freedom might conflict with the freedom and well-being of those performing sexual acts in front of a camera for consumption by the masses.[932] So myopic was the Commission on this issue, indeed, that under the strict terms of its recommendations, neither "snuff" films[933] nor child pornography would have been subject to prohibition.[934]

Neither of the two major national committees which followed the 1970 Commission was quite so blind to the possible risks to performers in sexually-explicit material. Both the Williams Report[935] and the Fraser Report[936] recommended prohibition of pornographic materials which depicted a child[937] in explicit sexual conduct or which were made in such a manner that "physical injury" was inflicted upon a performer. Yet apart from their concern for protecting children from use in pornography, the Williams and Fraser Committees ultimately gave little attention to the circumstances in which sexually-explicit material is produced, and in particular the situation of those who perform in it. The Williams Committee heard some evidence that "there was much misery in the trade and that many of the girls in strip clubs, for example, were disturbed and mentally ill," but did not think it sufficient in the face of vigorous denials from a publisher of magazines "within the trade."[938] Its analysis of the issue did not extend beyond two paragraphs, and focused solely on production of pornography in Great Britain, which at the time did not generally permit production of any "hard core" pornography.[939] The Fraser Committee gave the issue even more cursory treatment after finding that only "a very small number of [sexually explicit] films are produced within Canada" and "the production of other forms of pornography, for example, magazines and books is not undertaken for commercial purposes."[940] The Committee supported a ban on material in which "actual physical harm was caused to the person or persons depicted" as an "additional deterrent to the causing of such harm."[941] Without discussing the nature of the evidence before it, the Committee declared that "we know that the relations between the producers of violent pornography and the actors in it are often such that there is little or no respect for the rights and physical welfare of the latter."[942] Like the Williams Report, however, the Canadian report did not explain what level of proof would be required to demonstrate that "actual" as opposed to "simulated" harm had been caused to performers. Unlike the Williams Report, however, the Fraser Report did not devote even a paragraph to consideration of harms to performers other than those resulting from outright violence on the set.[943]

Ultimately, then, it seems fair to say that in this area, at least, we are without clear guidance from our predecessors in examining a possible "harm" of pornography. The nature of the pornography industry has changed so rapidly in this country since the 1960's that it is hardly surprising that the 1970 Commission felt no obligation to examine the situation of performers; because the industry seems so centered in the United States and continental Europe, moreover, it would have been extremely difficult for the Canadian or British panels to study it in detail. Nevertheless, the failure of these commissions to examine the issue even in the abstract points to what we view as a nagging conceptual flaw in their approaches: they assumed a photographic image of sexual conduct by actual persons to be essentially no different from a written description or drawing of such conduct. As we will explain below, the use and misuse of "models" and other performers makes that assumption at least gravely doubtful.

Notes

  1. For an overview of the tension between members of the 1970 Commission and problems in its operation, See, Hill-Link Minority Report in Report of the Commission on Obscenity and Pornography, (1970), pp. 456, 460-463 (hereinafter 1970 Report).
  2. 1970 Report, p. 22 (source of "picture magazines" depicting sexual intercourse "principally Scandinavia"; "stag films" domestically produced but in "extremely disorganized" fashion with no national distribution).
  3. "Stag films" were the only motion pictures on the market at the time of the Panel's report that met its definition of "hard core" or "under-the-counter" pornography-that is, "wholly photographic reproductions of actual sexual intercourse graphically depicting vaginal and/or oral penetration." Id. p. 137.
  4. Id., p. 140.
  5. Id., p. 58.
  6. The dissenter, too, failed to perceive performers in sexually-explicit material as needing any special protection.
  7. See, Hill-Link Minority Report, supra note 927, p. 457 (grounding dissent on need for "protection for public morality" rather than demonstrable individual "harms").

  8. A "snuff" film is one in which there is apparently an actual murder enacted.
  9. To prevent production of child pornography the majority apparently relied on the "taboo against pedophilia" which made the "use of pre-pubescent children in stag films ... almost nonexistent:" 1970 Report, p. 139. The 1970 Commission expressed no concern whatsoever over the possible use of young adolescents in pornography.
  10. B. Williams, Report of the Commission on Obscenity and Film Censorship, (1979), p. 131 (hereinafter the Williams Report).
  11. P. Fraser, Pornography and Prostitution in Canada: Report of the Special Comm. on Pornography and Prostitution, (1984), pp. 272-79, 629-632 (hereinafter the Fraser Report).
  12. The Williams Committee set the age limit for protection of children in this area at sixteen, Williams Report p. 131; the Fraser Committee chose eighteen instead. Fraser Report, pp. 627-28.
  13. Williams Report p. 91.
  14. Id., p. 37. "Foreign" material was the chief target of British obscenity-law enforcement in the late 1970's, Id., and within Britain the "industry" had agreed to restrain itself through self-regulation. Id. p. 42.
  15. Fraser Report p. 87. This abrupt dismissal of the problem of pornography production in Canada is in curious tension with the finding of the Badgley Report that tens of thousands of Canadians have at one time or other been "subjects of sexually explicit depictions." Badgley Report, supra note 924, p. 1198.
  16. Id., p. 265.
  17. Id.
  18. The Report's only reference to possible "harms" of pornography which might be associated with effects on performers was its recitation of the allegation by some "that pornography is to be deplored simply for portraying people in an inhuman way. . . ." Id. p. 96. Even in that context, however, the Report immediately tested the allegation with reference only to the effects of such portrayals on viewers. Id.