The Statutory Definition of Pornography Suppose one accepts MacKinnon and Dworkin’s suggested statutory definition of pornography. How does one who generally accepts MacKinnon and Dworkin’s views on the pervasively harmful effect of pornography, and who accepts a need for legal redress of the harms perpetrated by pornography, deal with pornographic material? The ordinance proposed by MacKinnon and Dworkin would deal with such material by enacting legislation which gives people adversely affected by the works, which clearly fit their definition of pornography, a cause of action against the producers, vendors, exhibitors or distributors for “trafficking”, or for an assault “directly caused by the specific work. I do not think liberals, or others for that matter, should have much problem with the clause dealing with assault, since a causal connection to specific works is demanded by it.
However, s. 3.2(iii) which deals with trafficking would be very problematic for liberals and legal conservatives because it creates a cause of action for a person contrary to the traditional conception of a rights holder’s cause of action. This subsection reads: Any woman has a claim hereunder as a woman acting against the subordination of women. Any man, child or transsexual who alleges injury by pornography in the way women are injured by it also has a claim. [emphasis added] My goal in this paper is to suggest that a slight modification to this subsection of the ordinance would make it very difficult for liberals and legal conservatives to object to it. This modification would restrict the cause of action to the same persons as the other sections of the ordinance, namely, the particular victim of the specified injury.
I shall argue that such a modification would largely cohere with the conception of harm already at work in Ontario law, would afford only a minor reduction in the potential efficacy of such legislation in curbing the harm of pornography, and would offer to empower the feminist camp which is behind such an ordinance with a mechanism for social and political change if a sufficiently organized feminist “vanguard” took hold of the opportunity to empower women. Adrian Howe argues that the concept of social injury which may be suggested by the ordinance recognizes the differential harm felt by women from pornography. Howe suggests this social notion of harm may be a necessary feature of any successful law reform which is to address the huge social problem of male domination and female oppression. The liberal notion of an individuated human right fails to capture, for MacKinnon and Howe, “the specificity of the harm to women.” Thus, an ordinance which did not create a cause of action “for women as women” would fail to address the root of the social problem of which pornography is a manifestation. This conception of social harm, and thus subsection 3.2(iii), may offend liberals or legal conservatives in two ways.
First, the notion of non-individuated harm is antithetical to the liberal conception of a rights holder claiming a cause of action. Fundamental to a liberal conception of harm is the notion of the individual who is autonomous, separate and fundamentally worthy of respect. Rawls and Kant exemplify this view in their analyses when they posit the undifferentiated self, free of any particular qualities save that of being an agent worthy of a fundamental, inviolable respect. This notion of the individual worthy of equal concern and respect in the eyes of the state permeates liberal conceptions of rights. It is also a fundamental, if not exclusive, tenet of the common law of torts: In tort litigation, the courts must decide whether to shift the loss suffered by one person, the plaintiff, to the shoulders of another person [emphasis added].
Clearly, on its face this conception of harm precludes the notion of a harm suffered collectively which cannot be delineated individually. While class actions are possible, and claims may be made on behalf of groups such as company shareholders, this is only by virtue of the fact that a legally recognized individual has suffered an identifiable particular harm. Thus, the conventional liberal notion of harm is radically distinct from that outlined by Howe and MacKinnon. Since on the liberal conception rights holders are autonomous, individual selves who are essentially distinct, harm to one is distinct from harm to another. It may be that a liberal conception of a rights holder simply renders the concept of a social harm, and thus a cause of action “for women as women” incoherent. I do not wish to discuss whether it is possible to develop a complete liberal notion of social harm.
It is sufficient to note that the notion of harm to rights holders inherent in the dominant liberal legal discourse appears to preclude a cause of action by any individual simply by virtue of their membership in an oppressed social class. The problem for feminism is that the offence of trafficking in pornography, if the cause of action were limited to individuals who allege a direct harm stemming from this trafficking, may seldom if ever deliver a remedy. Consider the immense burden for a successful action: She must first prove that the relevant materials are pornography. They must be sexually explicit and they must contain one or more of the features listed in the definition. Second, she must prove that the materials sexually subordinated her. The materials have to be more than just offensive; this is not a law that worries about offending sensibilities, it is concerned with injuries to women.
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 which 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: [P]ornography causes attitudes and behaviours of violence and discrimination that define the treatment and status of half the population . [P]ornography institutionalizes the sexuality of male supremacy ..
Since the harm caused by pornography is a social, collective harm to women, conventional liberal notions of tortious harm are seemingly unable to capture its seriousness (no single woman appears to have been grievously harmed). Thus, to limit the cause of action in the ordinance’s trafficking provision to particular, individual women might seem futile for feminists in that a traditional liberal court would be unable to make sense of the claims of harm involved. The situation may not be quite so bleak. It will be useful to examine the notion of a social harm, a harm which cannot be tied directly to one victim, in the areas of criminal and tort law. I suggest that Ontario courts already have the basis for a framework of social harm in the federal statutory provisions on hate literature, and in the principles which can be adopted from the Bhadauria case.
The Criminal Code in sections 318 and 319 prohibits the advocating or promoting of genocide and the incitement of hatred of identifiable groups respectively. It is noteworthy that “identifiable group” is defined as “any section of the public distinguished by colour, race, religion or ethnic origin”, but does not include gender identification. These sections allow groups, rather than individuals, to seek redress for the dissemination of hateful or pro-genocidal material. Section 319 has been found to violate s.2(b) of the Charter of Rights and Freedoms, but to be justified under s.1 of the Charter.
Thus, it is considered to be coherent in Canadian criminal law for a somewhat intangible social harm to have been suffered by a group through the publication of literature, and for a remedy to be appropriate. There are problems with this kind of legal protection from social harm if MacKinnon and Cole’s assumptions about the legal system are accepted. The sections may take effect only on the initiative of the Attorney General; it is this feature which led to charges against Ernst Zundel [for the publication of literature denying the holocaust and claiming the existence of a Zionist conspiracy] being laid by Jewish activist groups under s.181 of the Code. Thus, Cole’s claim that legal redress for the harm of pornography will not be effectively obtained through reliance on intervention by a male-dominated executive branch of government is supported by the failure of another identifiable victim group to have charges laid by the Attorney General in what appeared to many to be a clear case.
In isolated cases like Keegstra, where children were the group to whom hateful information was being disseminated, the law recognizes social harms as actionable. It is clear though that the pragmatic barriers to criminal prosecutions for the harm pornography causes to women, as opposed to society’s moral intolerance of the offensive content, are immense in a male dominated liberal society. What should not be lost in this pragmatic pessimism is the adequacy of the conceptual foundation of a social harm which arose in Keegstra. In this case, the social harm was seen not only to affect the “targets” of the information, in this case Jews, but to adversely affect “society at large”.
Furthermore, the type of harm caused to the target group is similar to that seen by feminists as suffered by women due to pornography: Disquiet caused by the existence of such material is not simply the product of its offensiveness, however, but stems from the very real harm which it causes. [E]motional damage caused by words may be of grave psychological and social consequence. [They] can constitute a serious attack on persons belonging to a racial or religious group, and in this regard the Cohen Committee noted that these persons are humiliated and degraded (p. 214).
Referring then to a prominent liberal theorist, Dickson C.J. said: In my opinion, a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs (see Isaiah Berlin, “Two Concepts of Liberty”, in Four Essays on Liberty (1969), p. 118, at p. 155).
Let us call the harm to a particular woman which is suffered as a result of trafficking in pornography a quasi-social harm. It is distinguished from a social harm in that the victim conceived as a member of a victimized class, but any action to redress this harm is brought solely on her own behalf for the harm personally suffered. Unlike the actions in the criminal cases previously cited, claims here are not on behalf of a group or on behalf of society as a whole, but are on behalf of an individual who has suffered as a member of a class. The modified ordinance I propose seeks to redress quasi-social harms. One may question whether this (as distinct from addressing social harm) is a tenable legal proposition or not. I suggest that it is, at least in Ontario, given our established legal categories and means of redress.
The Ontario Human Rights Code provides an example of an attempt to redress quasi-social harms. It may be true that tort law is unable to address the “social injury that occurs at a personal level”, but this is exactly the kind of injury the human rights codes of the country have been enacted to redress. While couched in the terminology of individual human rights, the OHRC’s categories of protection indicate a necessary connection to the notion of a social harm. The OHRC does not promise equality, equal treatment, equal respect etc. of every person, its grandiose preamble notwithstanding. What it promises is that injurious discrimination to individuals due to membership in certain social categories will be redressed by damages or injunction.
These social categories are those which are traditionally associated with social injury – race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital or family status, or handicap. Notice that many categories are absent – foolhardiness, poverty, language group, education, etc. What this indicates is that the OHRC does not address an equality right per se, but addresses social harm as a result of being eg. black, female, Croatian, gay, blind, 25 yr. old, unmarried, etc.
The remedies under s.40 of the OHRC are nearly identical to those in the modified ordinance – damages, including those for personal anguish, costs of the action, and injunction. The modified ordinance would thus be quite similar to the existing human rights legislation in Ontario in its recognition of social harm and its suggestion of remedies. Where it would differ is in its refusal to supplant the power of the victim to pursue their own action in court, rather than deal with a commission (and its discretionary powers) or board of inquiry to investigate matters. Thus the modified ordinance would remain “women-initiated and women-driven.” It would also differ from the OHRC in that it would clearly specify an as yet unrecognized particular method of inflicting harm: trafficking in pornography. One well-known attempt to pursue a remedy for a quasi-social harm outside the administrative realm of the OHRC succeeded in the Ontario Court of Appeal, but failed at the Supreme Court of Canada.
In Bhadauria, the plaintiff alleged that she had been discriminated against because of her race in applying for a teaching position, and brought an action on a common law tort basis of discrimination, and also cited a violation of the OHRC as giving a cause of action. Wilson J. in the Court of Appeal held that it was open to the court to allow the expansion of the common law to include the tort of discrimination, and would have allowed the action to proceed. The question of whether the OHRC gave rise to an independent civil action was not entertained given this finding. Laskin CJ.
in the Supreme Court of Canada said that the OHRC was meant to supplant the attempt to seek a remedy at common law, not to supplement it, and thus barred the action from proceeding either at common law or directly from an alleged breach of the OHRC since Bhadauria had not attempted to invoke the procedures of the OHRC for redress. What is noteworthy from this case is that the question of whether this kind of harm was capable of judicial consideration was never at issue. For the Court of Appeal, the common law was fully capable of entertaining such a harm as a tort. For the Supreme Court, the OHRC was seen as the appropriate means of redressing such harm.
What the examples from criminal and tort law demonstrate is that the notion of a quasi-social harm is tenable in our legal system, particularly if individuals are given a statutory right to pursue remedies for it. Thus, the modified ordinance would simply indicate to the court a category of social harm which has not previously been specifically addressed, the harm to women from the propagation of pornography. The relative success at achieving remedies from OHRC provisions, as compared to the reluctance of the government to permit the exercise of the Criminal Code provisions, indicates that retaining a civil right of action for individuals will be the strategically better move for feminists insofar as they are seeking redress. I shall leave discussion of whether this is a tenable feminist political strategy for dealing with pornography for a later part of the paper.
It may be objected that the fact that our legal tradition is capable of making sense of the notion of a quasi-social harm, and thus could provide the judiciary with the conceptual tools to adjudicate on a modified version of the ordinance, does not imply that the modified ordinance and its co …