jeffroinohio
New member
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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 reaRAB:
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
merabership 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 worRAB 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 meraber
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 meraber 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 prearable notwithstanding. What it promises
is that injurious discrimination to individuals due to merabership 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 conception of harm is acceptable in a liberal framework. A liberal
framework may demand individuated harms, and the fact that our existing
legal framework can work outside that limitation simply demonstrates that
liberalism is not at the root of our legal framework's evolving notion of
harm. Thus, the ordinance may still be seen by liberals as incoherent, or
worse, to invoke an illegitimate conception of non-individuated rights and
afford state enforced remedies for illegitimate purposes.
This liberal argument may be theoretically tenable, and thus the
"bleak" picture I painted may still apply insofar as we favour a liberal
legal framework. Furthermore, the powerful liberal arguments concerning
freedom of speech may override the concern for the kind of harm contained
in the ordinance. Perhaps because the alleged harm has not been
demonstrably linked to the propagation of pornography, or is not a harm in
the liberal sense, but an expression of a preference, a liberal framework
could not permit the ordinance since it is an undue restriction on free
expression.
My response to this is twofold. First, given that protection from
harm is generally an acceptable justification for a restriction on liberty
in a liberal framework, it is up to liberals to deliver a coherent rebuttal
to MacKinnon et al.'s contention that pornography causes genuine physical
and psychological harm to women, rather than just revulsion. To date I
have not seen a liberal rebuttal which did not make the assumption that the
root of the problem of pornography is simply moral offence, i.e. strongly
held preferences against the propagation of pornography. I find the
feminist claims about harm to be very persuasive, and until they are
addressed by liberals in terms of a rebuttal of the harm, rather than by
reference to the moral disvalue of pornography, the onus should rest on
them.
Second, the ordinance is not an attempt to arrive at a coherent
theoretical position on pornography, but is an attempt to solve a social
problem through the mechanism of law. If the attempt of the existing legal
system to redress such problems is illegitimate simply on abstract liberal
grounRAB, it need not be a fundamental practical concern of feminists to
convince liberals that the ordinance is acceptable. From the feminist
strategic perspective, it is enough to show, as I am attempting, that some
form of the ordinance coheres well with the existing legal tradition
whether that tradition is fundamentally liberal or otherwise. The problem
of theoretical legitimacy of the legal system as a whole need not be of
particular concern for proponents of the ordinance; what is important is
redressing the harms done to women by the political and legal means at hand.
Moreover, I am not convinced, given the comments of Dickson J. above, that
liberal theories are committed to abandoning the notion of harm and the
means of redress which we see in the existing legal framework. Perhaps
then only certain categories of liberalism would take objection with the
notion of harm addressed in Keegstra or the OHRC.
The second major problem with the ordinance for our traditional
liberal legal framework is the identification of the source of the harm.
The liberal conception of autonomous individuals requires a particular
victim and a particular perpetrator. MacKinnon and Cole extensively
consider the notion of women as victims of a social harm, but give little
consideration to the notion of the perpetrators of this harm beyond the
simple definition of pornography. For them, it would seem that if we can
identify pornography, we can identify the source of the harm. Clearly,
identification of the perpetrators is required before an action for redress
can be launched under the ordinance. Even though this is not a theoretical
requirement of every system of redress for harm, it is both a theoretical
and pragmatic requirement for launching a civil action. The frameworks of
criminal law, tort law and the OHRC all presume an identifiable perpetrator
of a harm can be identified. Even if it were not a legal requirement for a
determination of entitlement to a remedy that one be capable of identifying
the perpetrator, it would be rather pointless to launch an action for
damages or injunction if there were no identifiable legal person from whom
to collect or upon whom the injunction would act.
The harm from pornography is not easily traced to a single source.
MacKinnon et al. go to great lengths to point out the complexity of the
problem of pornography, that harm ensues not just because of what the
content of pornography is, but because of how the messages of pornography
contribute to the social fabric of male hegemony. "Pornography
institutionalizes the sexuality of male supremacy." If, as has been argued,
pornography's harm is intimately connected to social practices, then
perhaps blame for this harm cannot be pinpointed to pornography alone, or
any particular source of pornography. It is beyond the scope of this paper
to attempt an analysis of society which could offer insight into the
distribution of responsibility for reparation of the harm of pornography
across all merabers and institutions in society. Instead I shall attempt to
offer insight into the smaller problem of distribution of responsibility
among pornographers. Given the huge volume of pornography, in many cases
it may be impossible to pinpoint the particular publishers, materials etc.
which led to the quasi-social harm against a plaintiff. I suggest that a
solution to the problem of perpetrator identity may be suggested by
analysis of the California Supreme Court's treatment of the problem in a
product liability case.
The excerpt from Linden above indicates that traditionally the
perpetrator of a tort must be clearly, individually identified as the cause
of the harm suffered by the plaintiff. This traditional concept of
causation in tort law is not sacrosanct. In Sindell, an action launched by
a victim of a harmful drug succeeded against a multitude of pharmaceutical
companies even though no one company could be causally linked to the harm
suffered by the particular victim.
The plaintiff's mother had consumed the drug DES during her pregnancy,
and the plaintiff suffered birth defects as a result. Evidence of the
particular supplier of this drug to her mother had long since vanished, but
it was certain that some manufacturer out of a nuraber producing it at the
time of the pregnancy had promoted the drug without warning of the
potential side effects. The California Supreme Court held that, in the
absence of direct causal links to any particular supplier of the drug DES,
the plaintiff could recover damages in proportion to the likelihood that
any manufacturer was the one which provided the drug to her mother during
pregnancy.
This case has many obvious differences from a purported action for
harm from trafficking in pornography. It was certain that the plaintiff
had suffered a tangible physical harm from the product; the only question
was whether manufacturer A, B, C etc. had been the perpetrator. What is
interesting about the case for proponents of a modified ordinance is that
if a woman could demonstrate to the court a harm from the propagation of
pornography in general, this case would indicate that all pornographers or
traffickers might be held liable in proportion to some measure of their
market share. Of note is the fact that only "the producers of a
substantial share of the market, that is, over 50 per cent" needed to be
sued to invoke this "market share" liability notion. Thus, if a woman
could demonstrate the relevant quasi-social harm from pornography, and name
producers of at least 50% of the market share of the relevant material, she
would meet the threshold for bringing an action. Of course, if a
particular trafficker could show that theirs was not a harmful brand of
pornography (or more accurately, was not harmful, and thus was not
pornography), they would be immune from the action.
One problem with this scheme is limiting the named defendants to those
who produce an identifiable kind of pornography. I am not confident that
in all or even most cases a woman would be able to identify any particular
kind of pornography as that which caused the harm she experienced. This is
again due to the complex social nature of the harm, its difficulty to
pinpoint. There is a danger that an implausible or untenable nuraber of
publishers or traffickers of other sorts would be named in any given
lawsuit. Furthermore, publishers might begin a "third party" frenzy in an
attempt to draw in others to distribute the costs of the suit. However, it
seems plausible in at least some cases that a particular class of material
could be identified as the cause of the harm, and since (as I shall soon
argue) the importance to feminists of the ordinance is not just its success
at compensating particular women, but its political and social effects, if
some cases succeed it will be a great victory.
Thus, the problem of identification of a perpetrator is not
insurmountable. There is at least some jurisprudence which would give
judges the tools to offer redress where individual perpetrators cannot be
identified. In particular cases there may simply be single or multiple
defendants, or there may be an identifiable class of defendant where the
particular perpetrators are unknowable. In either case, the Ontario courts
have available to them the conceptual tools to deal with the matter.
The addition of the indeterminate perpetrators doctrine from the DES
case would be a welcome addition to the judicial treatment of a modified
ordinance, but successful actions would not depend on it. It is not
impossible to imagine the kind of material that would be claimed to be
harmful - it would contain pictures or worRAB where women in a sexual
context are dehumanized, objectified, shown as enjoying pain, rape or
humiliation, bruised, bleeding or hurt, etc. Once the identification of
harmful material is accomplished, the publishers, distributors, etc. need
to be identified and named. Then the major problem for a woman to overcome
as plaintiff under s.3.2(iii) is to demonstrate that some genuine quasi-
social harm to her came about from the propagation of pornography, although
she was not assaulted or forced to view or participate in it. As the Ruth
M. testimony indicates, this is not entirely implausible.
To sum thus far, a modified version of the ordinance would give
individual women a cause of action for quasi-social harms they have
suffered as a result of trafficking in pornography. While the hate
literature provisions of the criminal code suggest that our legal framework
can deal with the notion of social harm, greater success can be expected if
the modification is adopted. This modification would bring the feminist
notion of harm suggested by MacKinnon and her proponents within a legal
framework not unlike some of the existing legal schema in Ontario which
give civil remedies for quasi-social harms. The problem of specifying a
perpetrator, while great, is not insurmountable given the doctrine in
Sindell and the accepted notion of multiple defendants in civil suits.
Finally, though the ordinance may at first seem unworkable (as any new
legal doctrine does until it has had judicial treatment), there are genuine
fact situations in which redress seems just and plausible.
I have mentioned feminist strategy in various contexts in this paper.
Of course there is debate within feminist circles over the appropriate
strategies for dealing with the problem of pornography. The ordinance,
modified or not, will not satisfy every feminist. I think it would be a
tenable proposition for MacKinnon and her proponents not only in its
provision of a remedy for particular social harms suffered by individual
women, but because it will serve to expose the harm of pornography to great
public scrutiny, provided feminists devote substantial political effort to
particular cases.
MacKinnon et al. are concerned that the ordinance should be a
mechanism for changing the power relations sustained by pornography. Since
the harm of pornography is in a sense held collectively, is social, and
since the modified ordinance restricts the cause of action to a single
plaintiff on her own behalf as a woman, the modified ordinance has arguably
created a law which is unlikely to be pursued. This is because the women
most likely to succeed are the least likely to proceed - they either will
not possess sufficient power in their situation of subjugation, or they
will not recognize the harm since for them it is normalized, adopted,
accepted.
It is probably true that the ordinance will not turn upside-down the
subjugation of women simply by offering remedies to individual women. The
harm of pornography to women is social; individual remedies will not change
that. However, the existence of the ordinance, and the existence of women
like Ruth M. and Linda Marchiano who somehow break out from the bonRAB of a
pornographic existence mean that some cases will come to light. If
proponents of MacKinnon's ordinance adopt a suitable strategic posture, the
ordinance will be effective in meeting their aim of limiting the harmful
effect of pornography on women.
The task for feminists, I would suggest, is twofold. First,
organization of support mechanisms is needed to give women the resources to
come forward and challenge those who harm them through trafficking in
pornography is needed. The role of support groups, groups to provide legal
resources, groups to provide personal support in a situation where one's
established values, relationships etc. are shaken apart, is crucial to the
success of actions brought under the ordinance. Individual women would be
truly exceptional to successfully bring forth an action on their own.
Second, feminists must try to contain and confront political
opposition to the modified ordinance which can be expected. There is little
doubt in my mind that cases brought under this ordinance would bring about
much publicity, just as Keegstra and Zundel did. Opponents will be quick
to point out the "censorship" involved, the restriction on freedom of
expression, and cry for the invocation of the Charter of Rights to thwart
efforts at redressing the harm to women. Feminists must strive to bring
the harm to the attention of the public, show the public what it is that
pornography does, as well as show the community what it contains. The
campaigns, the publicity in both lobbying for enactment of the ordinance,
and pursuing actions under it will no doubt rally a significant segment of
the community to support women in their quest for freedom from harm. While
it will no doubt also create controversies, polarizations, opposition, etc.
(much as the Thomas hearings recently did on the issue of harassment), the
exposure of the issue will, I suggest, be strategically beneficial.
To conclude, a version of the ordinance which is modified to restrict
the cause of action for trafficking in pornography to individuals would be
a tenable proposition. It would not be an extreme departure from our
liberal legal tradition, but would afford redress for individuals who
suffer quasi-social harms in a manner consistent with existing legislation
on discrimination and hate literature. The problem of identifying
perpetrators is difficult, but existing doctrine in the sphere of
negligence law provides some insight into dealing with it. Furthermore,
the feminist goal of a large scale change in the power irabalance
perpetuated by pornography will at least be advanced, though not fully
attained, by the ordinance. I suggest that such a modified ordinance
should be given serious consideration by feminists and our legislators.
"Remedies for Pornography in the Ontario Legal Context"
Term Paper for "Free Speech, Pornography and the Relationship Between Law
and Morality"
Prof. David Dyzenhaus
University of Toronto Faculty of Law
January 6, 1992
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[FONT=tahoma, arial]WorRAB: 5252 [/FONT]
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 reaRAB:
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
merabership 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 worRAB 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 meraber
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 meraber 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 prearable notwithstanding. What it promises
is that injurious discrimination to individuals due to merabership 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 conception of harm is acceptable in a liberal framework. A liberal
framework may demand individuated harms, and the fact that our existing
legal framework can work outside that limitation simply demonstrates that
liberalism is not at the root of our legal framework's evolving notion of
harm. Thus, the ordinance may still be seen by liberals as incoherent, or
worse, to invoke an illegitimate conception of non-individuated rights and
afford state enforced remedies for illegitimate purposes.
This liberal argument may be theoretically tenable, and thus the
"bleak" picture I painted may still apply insofar as we favour a liberal
legal framework. Furthermore, the powerful liberal arguments concerning
freedom of speech may override the concern for the kind of harm contained
in the ordinance. Perhaps because the alleged harm has not been
demonstrably linked to the propagation of pornography, or is not a harm in
the liberal sense, but an expression of a preference, a liberal framework
could not permit the ordinance since it is an undue restriction on free
expression.
My response to this is twofold. First, given that protection from
harm is generally an acceptable justification for a restriction on liberty
in a liberal framework, it is up to liberals to deliver a coherent rebuttal
to MacKinnon et al.'s contention that pornography causes genuine physical
and psychological harm to women, rather than just revulsion. To date I
have not seen a liberal rebuttal which did not make the assumption that the
root of the problem of pornography is simply moral offence, i.e. strongly
held preferences against the propagation of pornography. I find the
feminist claims about harm to be very persuasive, and until they are
addressed by liberals in terms of a rebuttal of the harm, rather than by
reference to the moral disvalue of pornography, the onus should rest on
them.
Second, the ordinance is not an attempt to arrive at a coherent
theoretical position on pornography, but is an attempt to solve a social
problem through the mechanism of law. If the attempt of the existing legal
system to redress such problems is illegitimate simply on abstract liberal
grounRAB, it need not be a fundamental practical concern of feminists to
convince liberals that the ordinance is acceptable. From the feminist
strategic perspective, it is enough to show, as I am attempting, that some
form of the ordinance coheres well with the existing legal tradition
whether that tradition is fundamentally liberal or otherwise. The problem
of theoretical legitimacy of the legal system as a whole need not be of
particular concern for proponents of the ordinance; what is important is
redressing the harms done to women by the political and legal means at hand.
Moreover, I am not convinced, given the comments of Dickson J. above, that
liberal theories are committed to abandoning the notion of harm and the
means of redress which we see in the existing legal framework. Perhaps
then only certain categories of liberalism would take objection with the
notion of harm addressed in Keegstra or the OHRC.
The second major problem with the ordinance for our traditional
liberal legal framework is the identification of the source of the harm.
The liberal conception of autonomous individuals requires a particular
victim and a particular perpetrator. MacKinnon and Cole extensively
consider the notion of women as victims of a social harm, but give little
consideration to the notion of the perpetrators of this harm beyond the
simple definition of pornography. For them, it would seem that if we can
identify pornography, we can identify the source of the harm. Clearly,
identification of the perpetrators is required before an action for redress
can be launched under the ordinance. Even though this is not a theoretical
requirement of every system of redress for harm, it is both a theoretical
and pragmatic requirement for launching a civil action. The frameworks of
criminal law, tort law and the OHRC all presume an identifiable perpetrator
of a harm can be identified. Even if it were not a legal requirement for a
determination of entitlement to a remedy that one be capable of identifying
the perpetrator, it would be rather pointless to launch an action for
damages or injunction if there were no identifiable legal person from whom
to collect or upon whom the injunction would act.
The harm from pornography is not easily traced to a single source.
MacKinnon et al. go to great lengths to point out the complexity of the
problem of pornography, that harm ensues not just because of what the
content of pornography is, but because of how the messages of pornography
contribute to the social fabric of male hegemony. "Pornography
institutionalizes the sexuality of male supremacy." If, as has been argued,
pornography's harm is intimately connected to social practices, then
perhaps blame for this harm cannot be pinpointed to pornography alone, or
any particular source of pornography. It is beyond the scope of this paper
to attempt an analysis of society which could offer insight into the
distribution of responsibility for reparation of the harm of pornography
across all merabers and institutions in society. Instead I shall attempt to
offer insight into the smaller problem of distribution of responsibility
among pornographers. Given the huge volume of pornography, in many cases
it may be impossible to pinpoint the particular publishers, materials etc.
which led to the quasi-social harm against a plaintiff. I suggest that a
solution to the problem of perpetrator identity may be suggested by
analysis of the California Supreme Court's treatment of the problem in a
product liability case.
The excerpt from Linden above indicates that traditionally the
perpetrator of a tort must be clearly, individually identified as the cause
of the harm suffered by the plaintiff. This traditional concept of
causation in tort law is not sacrosanct. In Sindell, an action launched by
a victim of a harmful drug succeeded against a multitude of pharmaceutical
companies even though no one company could be causally linked to the harm
suffered by the particular victim.
The plaintiff's mother had consumed the drug DES during her pregnancy,
and the plaintiff suffered birth defects as a result. Evidence of the
particular supplier of this drug to her mother had long since vanished, but
it was certain that some manufacturer out of a nuraber producing it at the
time of the pregnancy had promoted the drug without warning of the
potential side effects. The California Supreme Court held that, in the
absence of direct causal links to any particular supplier of the drug DES,
the plaintiff could recover damages in proportion to the likelihood that
any manufacturer was the one which provided the drug to her mother during
pregnancy.
This case has many obvious differences from a purported action for
harm from trafficking in pornography. It was certain that the plaintiff
had suffered a tangible physical harm from the product; the only question
was whether manufacturer A, B, C etc. had been the perpetrator. What is
interesting about the case for proponents of a modified ordinance is that
if a woman could demonstrate to the court a harm from the propagation of
pornography in general, this case would indicate that all pornographers or
traffickers might be held liable in proportion to some measure of their
market share. Of note is the fact that only "the producers of a
substantial share of the market, that is, over 50 per cent" needed to be
sued to invoke this "market share" liability notion. Thus, if a woman
could demonstrate the relevant quasi-social harm from pornography, and name
producers of at least 50% of the market share of the relevant material, she
would meet the threshold for bringing an action. Of course, if a
particular trafficker could show that theirs was not a harmful brand of
pornography (or more accurately, was not harmful, and thus was not
pornography), they would be immune from the action.
One problem with this scheme is limiting the named defendants to those
who produce an identifiable kind of pornography. I am not confident that
in all or even most cases a woman would be able to identify any particular
kind of pornography as that which caused the harm she experienced. This is
again due to the complex social nature of the harm, its difficulty to
pinpoint. There is a danger that an implausible or untenable nuraber of
publishers or traffickers of other sorts would be named in any given
lawsuit. Furthermore, publishers might begin a "third party" frenzy in an
attempt to draw in others to distribute the costs of the suit. However, it
seems plausible in at least some cases that a particular class of material
could be identified as the cause of the harm, and since (as I shall soon
argue) the importance to feminists of the ordinance is not just its success
at compensating particular women, but its political and social effects, if
some cases succeed it will be a great victory.
Thus, the problem of identification of a perpetrator is not
insurmountable. There is at least some jurisprudence which would give
judges the tools to offer redress where individual perpetrators cannot be
identified. In particular cases there may simply be single or multiple
defendants, or there may be an identifiable class of defendant where the
particular perpetrators are unknowable. In either case, the Ontario courts
have available to them the conceptual tools to deal with the matter.
The addition of the indeterminate perpetrators doctrine from the DES
case would be a welcome addition to the judicial treatment of a modified
ordinance, but successful actions would not depend on it. It is not
impossible to imagine the kind of material that would be claimed to be
harmful - it would contain pictures or worRAB where women in a sexual
context are dehumanized, objectified, shown as enjoying pain, rape or
humiliation, bruised, bleeding or hurt, etc. Once the identification of
harmful material is accomplished, the publishers, distributors, etc. need
to be identified and named. Then the major problem for a woman to overcome
as plaintiff under s.3.2(iii) is to demonstrate that some genuine quasi-
social harm to her came about from the propagation of pornography, although
she was not assaulted or forced to view or participate in it. As the Ruth
M. testimony indicates, this is not entirely implausible.
To sum thus far, a modified version of the ordinance would give
individual women a cause of action for quasi-social harms they have
suffered as a result of trafficking in pornography. While the hate
literature provisions of the criminal code suggest that our legal framework
can deal with the notion of social harm, greater success can be expected if
the modification is adopted. This modification would bring the feminist
notion of harm suggested by MacKinnon and her proponents within a legal
framework not unlike some of the existing legal schema in Ontario which
give civil remedies for quasi-social harms. The problem of specifying a
perpetrator, while great, is not insurmountable given the doctrine in
Sindell and the accepted notion of multiple defendants in civil suits.
Finally, though the ordinance may at first seem unworkable (as any new
legal doctrine does until it has had judicial treatment), there are genuine
fact situations in which redress seems just and plausible.
I have mentioned feminist strategy in various contexts in this paper.
Of course there is debate within feminist circles over the appropriate
strategies for dealing with the problem of pornography. The ordinance,
modified or not, will not satisfy every feminist. I think it would be a
tenable proposition for MacKinnon and her proponents not only in its
provision of a remedy for particular social harms suffered by individual
women, but because it will serve to expose the harm of pornography to great
public scrutiny, provided feminists devote substantial political effort to
particular cases.
MacKinnon et al. are concerned that the ordinance should be a
mechanism for changing the power relations sustained by pornography. Since
the harm of pornography is in a sense held collectively, is social, and
since the modified ordinance restricts the cause of action to a single
plaintiff on her own behalf as a woman, the modified ordinance has arguably
created a law which is unlikely to be pursued. This is because the women
most likely to succeed are the least likely to proceed - they either will
not possess sufficient power in their situation of subjugation, or they
will not recognize the harm since for them it is normalized, adopted,
accepted.
It is probably true that the ordinance will not turn upside-down the
subjugation of women simply by offering remedies to individual women. The
harm of pornography to women is social; individual remedies will not change
that. However, the existence of the ordinance, and the existence of women
like Ruth M. and Linda Marchiano who somehow break out from the bonRAB of a
pornographic existence mean that some cases will come to light. If
proponents of MacKinnon's ordinance adopt a suitable strategic posture, the
ordinance will be effective in meeting their aim of limiting the harmful
effect of pornography on women.
The task for feminists, I would suggest, is twofold. First,
organization of support mechanisms is needed to give women the resources to
come forward and challenge those who harm them through trafficking in
pornography is needed. The role of support groups, groups to provide legal
resources, groups to provide personal support in a situation where one's
established values, relationships etc. are shaken apart, is crucial to the
success of actions brought under the ordinance. Individual women would be
truly exceptional to successfully bring forth an action on their own.
Second, feminists must try to contain and confront political
opposition to the modified ordinance which can be expected. There is little
doubt in my mind that cases brought under this ordinance would bring about
much publicity, just as Keegstra and Zundel did. Opponents will be quick
to point out the "censorship" involved, the restriction on freedom of
expression, and cry for the invocation of the Charter of Rights to thwart
efforts at redressing the harm to women. Feminists must strive to bring
the harm to the attention of the public, show the public what it is that
pornography does, as well as show the community what it contains. The
campaigns, the publicity in both lobbying for enactment of the ordinance,
and pursuing actions under it will no doubt rally a significant segment of
the community to support women in their quest for freedom from harm. While
it will no doubt also create controversies, polarizations, opposition, etc.
(much as the Thomas hearings recently did on the issue of harassment), the
exposure of the issue will, I suggest, be strategically beneficial.
To conclude, a version of the ordinance which is modified to restrict
the cause of action for trafficking in pornography to individuals would be
a tenable proposition. It would not be an extreme departure from our
liberal legal tradition, but would afford redress for individuals who
suffer quasi-social harms in a manner consistent with existing legislation
on discrimination and hate literature. The problem of identifying
perpetrators is difficult, but existing doctrine in the sphere of
negligence law provides some insight into dealing with it. Furthermore,
the feminist goal of a large scale change in the power irabalance
perpetuated by pornography will at least be advanced, though not fully
attained, by the ordinance. I suggest that such a modified ordinance
should be given serious consideration by feminists and our legislators.
"Remedies for Pornography in the Ontario Legal Context"
Term Paper for "Free Speech, Pornography and the Relationship Between Law
and Morality"
Prof. David Dyzenhaus
University of Toronto Faculty of Law
January 6, 1992
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