STATEMENT BY CATHARINE A. MACKINNON
AND ANDREA DWORKIN REGARDING CANADIAN CUSTOMS
AND LEGAL APPROACHES TO PORNOGRAPHY

[This press release was issued August 26, 1994 (Women's Equality Day in the U.S.).]

Canada has not adopted our civil rights law against pornography. It has not adopted our statutory definition of pornography; it has not adopted our civil (as opposed to criminal) approach to pornography; nor has Canada adopted any of the five civil causes of action we proposed (coercion, assault, force, trafficking, defamation).1 No such legislation has as yet even been introduced in Canada.

In 1992, the Supreme Court of Canada unanimously adopted an equality approach to pornography's harms to women. This approach was argued by the Women's Legal Education and Action Fund (LEAF), an organization of progressive Canadian women committed to advancing women's equality under the Charter of Rights and Freedoms, the new Canadian constitution. Unlike the U.S. Constitution-- which doesn't even have an Equal Rights Amendment--the Canadian Charter specifically guarantees sex equality and has been interpreted to require the government to promote it.

Donald Victor Butler, a pornographer, had been prosecuted by authorities under Canada's existing law against "obscenity," which is defined as "the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty, and violence."2 (This is very different from U.S. and British obscenity definitions.) Butler argued that the obscenity law violated his rights to free speech under the new Charter. LEAF urged the Canadian Supreme Court to reject his argument and instead to reinterpret the existing obscenity law in "sex equality" terms.

Previously, in a case called Keegstra, LEAF had successfully argued before the Canadian Supreme Court that racist and anti-Semitic hate propaganda violates equality and multiculturalism rights under the new Charter, so criminalizing such expression is constitutional. LEAF sought to build on that argument, and other equality precedents, in Butler. Catharine MacKinnon, working with LEAF and LEAF counsel Kathleen Mahoney, participated in Keegstra and Butler. Andrea Dworkin, consulted by LEAF on the Butler case, opposed LEAF's position. Dworkin wrote a letter arguing that no criminal obscenity law should be supported.

The Supreme Court of Canada, in its decision in Butler, accepted the essentials of LEAF's equality argument. The court held that the obscenity law was unconstitutional if used to restrict materials on a moral basis, but constitutional if used to promote sex equality. The court interpreted the criminal "obscenity" provision to prohibit materials that harm women.3

For years Canada Customs has stopped material at the border under its own law and guidelines, which allow employees discretion to block the importation of obscenity. As a sovereign state, Canada has every right to control its borders--especially given widespread resentment against what is often viewed there as U.S. cultural imperialism.

None of Canada's customs policies or practices has been officially revised to reflect or incorporate the Butler sex-equality decision. A Canadian newspaper columnist found this out simply by asking Customs directly.4 Because customs officers are not using Butler, attempts to impugn the Butler decision by citing recent customs operations are sheer innuendo; no cause-and-effect link has been shown. Canadian customs employees have been doing what they have been authorized to do for years before Butler. For example, in 1993 some books by Andrea Dworkin were detained at the border for inspection, then released shortly thereafter. Those who cite this episode to show that Butler is being used against Dworkin misrepresent long- standing Canada Customs practices.

Reports that Canada Customs is using Butler to crack down on importation of explicitly gay and lesbian material are also fabricated. If this was actually happening, it would be illegal and could be opposed under Butler, which made the restriction of material on the basis of a moral objection (such as homosexuality) conclusively unconstitutional for the first time. The ruling clearly states that material that harms women can constitutionally be stopped (and this would include women harming women), but Butler does not mention anything about men harming men. Butler is silent on the subject of same-sex materials as such.

To date one indictment under Butler has been brought against lesbian sadomasochistic material, a magazine published in the U.S. with a Canadian circulation of 40. If this magazine is proven to harm women, including by producing civil inequality, the case should result in a conviction. Meanwhile various indictments brought against sexually explicit materials that do not show violence have been dismissed under Butler.

Canada's criminal obscenity law since Butler--like all prior laws that put power in the hands of government prosecutors rather than harmed plaintiffs has not actually been used effectively to stop the pornography industry. This we predicted. The pornography industry in Canada has in fact been expanding massively, trafficking openly in materials that do not show explicit violence, including some of the exact materials prosecuted in Butler.

In the United States, our Anti-Pornography Civil Rights Ordinance--together with related legislative initiatives against the harms of racist hate speech--has helped to trigger an escalating constitutional conflict between "speech" rights guaranteed by the First Amendment and "equality" rights in the principles underlying the Fourteenth Amendment. In our neighbor nation to the north, Canada's Supreme Court has determined that racist hate expression is unconstitutional (Keegstra) and that society's interest in sex equality outweighs pornographers' speech rights (Butler). Taken together, these two rulings are a breakthrough in equality jurisprudence, representing major victories for women and all people targeted for race hate. We wish that U.S. constitutional consciousness were so far along.

Although we recognize that the equality test adopted by Butler is an improvement on Canada's criminal obscenity law, we still do not advocate criminal obscenity approaches to pornography. They empower the state rather than the victims, with the result that little is done against the pornography industry.

We are encouraged, however, that the Butler decision under Canada's new Charter makes it likely that our civil rights law against pornography would be found constitutional if passed there. And we are continuing our work to empower victims to fight back against harm committed by pornographers.

We hope that this statement helps you correct the published record--and deal with the attacks, rumors, and disinformation--surrounding the relationship of our anti-pornography efforts to the Canadian Supreme Court's Butler decision.7 [...]

-- Catharine A. MacKinnon and Andrea Dworkin

Go to A Brief Description of the Ordinance.
Go to Complete Text of the Ordinance.
Go to excerpt from the Dworkin/MacKinnon Model Ordinance.

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