Jocelyn's Other Desk

The writings of Jocelyn Smith, aspiring author, soon-to-be lawyer, once and future politician, all-around opinionated twentysomething.

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Location: Orlando, Florida, United States

I'm a lawyer in Florida, working on three novels, a screenplay, and half a dozen pieces of fanfiction at any given moment.

Wednesday, May 18, 2005

On Child Pornography and Fanfiction...

By request of fandomjam, I am examining Canadian child pornography law...

Section 163.1 of the Canadian Criminal Code defines child pornography as follows:

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

This discussion started out of ponderings about what can be done to stem the amount of "kiddie porn" fanfiction out there, in which some particularly perverted individuals portray child characters in pornographic situations.

I was surprised by how specific the definition is. In the US, child pornography is defined in federal law as the visual depiction of minors engaging in a sex act.

Comparing the two, as far as I can tell, there may not be much of a recourse under US or Canadian child pornography law for "kiddie porn fiction."

Reason? Both definitions have huge legal holes in them.

In the US, attempts to outlaw "virtual kiddie porn" in which the images are entirely artificially-created with computers or in which adult actors pretend to be children, have been struck down repeatedly by the Supreme Court. American free speech doctrine requires that the government show a compelling interest for the stifling of any expression--namely, the government must show substantial proof that the type of speech they want to ban, "causes harm." Of course, the compelling interest for banning REAL child pornography is that children are exploited and harmed in its making. But the problem the government keeps running into with virtual porn is that in the act of the speech itself, no children are harmed.

And the Supreme Court has found that tittilation itself resulting from virtual porn is not a compelling enough reason to ban virtual kiddie porn. Go figure, eh? This stems from the long-held ideal in the US that a person cannot be punished for what they THINK. No matter how repulsive the thought.

Furthermore, the US law is defined solely as "visual" depictions, which completely eliminates mediums such as fanfic. Of course, if a writer describes in detail a "nonfiction" account of his exploitation of a minor, he can be nailed that way for the ACT of the exploitation (with the written work used as proof regardless of whether writing it is a crime in itself) but fanfic falls well outside the US definition.

Although the Canadian law's definition includes written depictions, there's a rather monstrous loophole here: the word "person."

I'm not as familiar with Canadian court interpretation of their statute, but in the US, any lawyer worth their salt would pounce all over the term "person" and argue that fictional depictions of characters or "virtual porn" does not meet the legal definition because fictional characters or computerized representation are not PEOPLE.

The definition says "shows a person," not depicts or portrays a person. The term "show" implies that the person is real.

There's a possibility that a written child pornographer could be nailed under Canadian law's Paragraph (b), with the prohibition on written material that "advocates or counsels" sexual activity with a person under the age of 18.

But even here, there are hurdles:
  • You would have to prove that the writing was actually advocating or counseling--it is a possibility.
  • And that--in the case of fanfiction--the writing was speaking of a person. Once again, does that pesky definition include fictional characters who undeniably DO NOT EXIST?

Sorry, folks. I really do wish the law were more encouraging. Liberal as I am, I do think that tittilation with the CONCEPT of sexual abuse of children should be a harm great enough to justify government action against virtual porn.

So believe me, I'm not skewing or twisting words to make the law out the way I want it. That's the way legal analysis works. It's damn frustrating!


Blogger Fandom Rebels said...

Nope, this is more or less what we've come up with. Although the definitions are being debated again in Canada. Interpretation of the U.S. constitution is rarely cut and dried and this is an issue destined to be revisted again and again. People who take 'in your face' attitudes about it pretty much guarantee it will be revisited sooner rather than later. The titillation aspect, as in the definition of pornography itself is what is going to sink it.

May we put this at Fandom Jam if the Powers That Be over there are up for it? They're willing to put up well-defined opposing viewpoints. You'll be credited with it, of course. And they'll remove it when you want them to.


1:05 AM  
Blogger Jocelyn Smith said...

By all means. I posted a link to it on the thread where we first started discussing it, but you're welcome to repost or whatever works best.

I'd be interested to see if anyone else reads the law itself differently versus simply thinking (as I do) that it ought to be written/enforced differently.

1:09 AM  
Blogger Fandom Rebels said...

All right. I'll email them. Better it be a top post. We'll see who responds. Believe it or not, they're a pretty quiet lot. Busy types, but they're doing a lot of research. They may just point people to it. I'll also be interested to see if what anybody has to say about it.

1:14 AM  
Blogger Fandom Jam said...

The definition says "shows a person," not depicts or portrays a person. The term "show" implies that the person is real.

I disagree.

In other topics:

I wanted to thank you for your generous offer. I'm sorry it took so long for somebody to get back to you. People are busy and more than normal seem to be out of town.

We've been back and forth on this. You've a good analysis, though we don't all agree with it. However, we're not comfortable putting this on our site, only because you don't have top level access and you have no clear way to get hold of us if you decide you don't want it on our site any more. We're unable to hand out an email address. You'd have no way to delete it except by hopping up and down and flagging us. So we decided it's not fair to you.

Please continue to come by and speak with us, though. Maybe we'll change the policy later. We'd hoped to be able to put up things like this, but circumstances prevent us from effectively collecting them or administrating them because of the damned email situation.

Claire gives you trouble, but she likes you and you've been a good sport. SH2

11:00 PM  
Blogger Jocelyn Smith said...

Fandom Jam:

No worries, I understand. And for the most part, your crowd have been very respectful of my viewpoints even if they disagree, and that's all I ask.

I'm not saying I ENDORSE the interpretation I've made--far from it. I'm just drawing from my experience in criminal and civil rights law and how certain words and phrases are interpreted.

Lawyers make an art of twisting and narrowly interpreting words that ought to be obvious so that those words aren't defined to include their client. Whether such activity is proper and ethical is a matter of endless debate, but it's done always. I don't like the interpretation of "show" or "person" to exclude any portrayal of child pornography, but I'm pretty certain that this interpretation would be a major part of any lawyer's case against including kiddie porn fiction in either Canadian or US law.

And while I understand your reason for not giving me posting access, please feel free to quote or link to anything I post here about fanfic or anything else. That's why I created this blog--so Claire and I could spar on our own respective playing fields.

For the most part, everyone seems to be being good sports.

4:07 PM  
Blogger Fandom Rebels said...


I'm telling you, Jocelyn. We have more weirdos chasing us down! We have to restrict posting to team members for a while. Got a couple of nutcases upset with our link to the article about the Japanese government cracking down on Anime child porn. This is why they can't let you have top access. Five hundred million articles speak glowingly of how wonderful fanfiction is and one blog says, 'uh, you know guys, it's porn.' and the crazies are off to the races. That's why the crew decided not to put your article at the top. Didn't want you to become the object of unwanted attention.

Anyway, we're around. Good luck on your move and hope you get settled in all right.

6:09 PM  

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