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Term Paper for "Free Speech, Pornography and the RelationshipBetween Law and Morality"Suppose one accepts MacKinnon and Dworkin's suggestedstatutory definition of pornography. How does one whogenerally accepts MacKinnon and Dworkin's views on thepervasively harmful effect of pornography, and who accepts a needfor legal redress of the harms perpetrated by pornography, dealwith pornographic material? The ordinance proposed by MacKinnon and Dworkin would dealwith such material by enacting legislation which gives peopleadversely affected by the works, which clearly fit theirdefinition of pornography, a cause of action against theproducers, vendors, exhibitors or distributors for"trafficking", or for an assault "directly caused by thespecific work. I do not think liberals, or others for that matter, shouldhave much problem with the clause dealing with assault, since acausal connection to specific works is demanded by it. However,s. 3.2(iii) which deals with trafficking would be veryproblematic for liberals and legal conservatives because itcreates a cause of action for a person contrary to thetraditional 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 slightmodification to this subsection of the ordinance would make itvery difficult for liberals and legal conservatives to object toit. This modification would restrict the cause of action to thesame persons as the other sections of the ordinance, namely, theparticular victim of the specified injury. I shall argue thatsuch a modification would largely cohere with the conception ofharm already at work in Ontario law, would afford only a minorreduction in the potential efficacy of such legislation incurbing the harm of pornography, and would offer to empower thefeminist camp which is behind such an ordinance with a mechanismfor social and political change if a sufficiently organizedfeminist "vanguard" took hold of the opportunity to empowerwomen. Adrian Howe argues that the concept of social injury whichmay be suggested by the ordinance recognizes the differentialharm felt by women from pornography. Howe suggests this socialnotion of harm may be a necessary feature of any successful lawreform which is to address the huge social problem of maledomination and female oppression. The liberal notion of anindividuated human right fails to capture, for MacKinnon andHowe, "the specificity of the harm to women." Thus, anordinance which did not create a cause of action "for women aswomen" would fail to address the root of the social problem ofwhich pornography is a manifestation. This conception of social harm, and thus subsection3.2(iii), may offend liberals or legal conservatives in two ways.First, the notion of non-individuated harm is antithetical to theliberal conception of a rights holder claiming a cause of action.Fundamental to a liberal conception of harm is the notion of theindividual who is autonomous, separate and fundamentally worthyof respect. Rawls and Kant exemplify this view in their analyseswhen they posit the undifferentiated self, free of any particularqualities save that of being an agent worthy of a fundamental,inviolable respect. This notion of the individual worthy ofequal concern and respect in the eyes of the state permeatesliberal conceptions of rights. It is also a fundamental, if notexclusive, 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 thenotion of a harm suffered collectively which cannot be delineatedindividually. While class actions are possible, and claims maybe made on behalf of groups such as company shareholders, this isonly by virtue of the fact that a legally recognized individualhas suffered an identifiable particular harm. Thus, the conventional liberal notion of harm is radicallydistinct from that outlined by Howe and MacKinnon. Since on theliberal conception rights holders are autonomous, individualselves who are essentially distinct, harm to one is distinct fromharm to another. It may be that a liberal conception of a rightsholder simply renders the concept of a social harm, and thus acause of action "for women as women" incoherent. I do not wishto discuss whether it is possible to develop a complete liberalnotion of social harm. It is sufficient to note that the notionof harm to rights holders inherent in the dominant liberal legaldiscourse appears to preclude a cause of action by any individualsimply by virtue of their membership in an oppressed socialclass. The problem for feminism is that the offence of traffickingin pornography, if the cause of action were limited toindividuals who allege a direct harm stemming from thistrafficking, may seldom if ever deliver a remedy. Consider theimmense 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 oftrafficking in pornography is not easily delineated. It is notthe physical assault or forced viewing outlined in the othersections of the ordinance. Nor is it (for MacKinnon/Coleproponents) 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, collectiveharm to women, conventional liberal notions of tortious harm areseemingly unable to capture its seriousness (no single womanappears to have been grievously harmed). Thus, to limit thecause of action in the ordinance's trafficking provision toparticular, individual women might seem futile for feminists inthat a traditional liberal court would be unable to make sense ofthe claims of harm involved. The situation may not be quite so bleak. It will be usefulto examine the notion of a social harm, a harm which cannot betied directly to one victim, in the areas of criminal and tortlaw. I suggest that Ontario courts already have the basis for aframework of social harm in the federal statutory provisions onhate literature, and in the principles which can be adopted fromthe Bhadauria case. The Criminal Code in sections 318 and 319 prohibits theadvocating or promoting of genocide and the incitement of hatredof identifiable groups respectively. It is noteworthy that"identifiable group" is defined as "any section of the publicdistinguished by colour, race, religion or ethnic origin", butdoes not include gender identification. These sections allowgroups, rather than individuals, to seek redress for thedissemination of hateful or pro-genocidal material. Section 319has been found to violate s.2(b) of the Charter of Rights andFreedoms, but to be justified under s.1 of the Charter.Thus, it is considered to be coherent in Canadian criminal lawfor a somewhat intangible social harm to have been suffered by agroup through the publication of literature, and for a remedy tobe appropriate. There are problems with this kind of legal protection fromsocial harm if MacKinnon and Cole's assumptions about the legalsystem are accepted. The sections may take effect only on theinitiative of the Attorney General; it is this feature which ledto charges against Ernst Zundel [for the publication ofliterature denying the holocaust and claiming the existence of aZionist conspiracy] being laid by Jewish activist groups unders.181 of the Code. Thus, Cole's claim that legal redress forthe harm of pornography will not be effectively obtained throughreliance on intervention by a male-dominated executive branch ofgovernment is supported by the failure of anotheridentifiable victim group to have charges laid by the AttorneyGeneral in what appeared to many to be a clear case. In isolatedcases like Keegstra, where children were the group to whomhateful information was being disseminated, the law recognizessocial harms as actionable. It is clear though that thepragmatic barriers to criminal prosecutions for the harmpornography causes to women, as opposed to society's moralintolerance of the offensive content, are immense in a maledominated liberal society. What should not be lost in this pragmatic pessimism is theadequacy of the conceptual foundation of a social harm whicharose in Keegstra. In this case, the social harm was seennot only to affect the "targets" of the information, in this caseJews, but to adversely affect "society at large". Furthermore,the type of harm caused to the target group is similar to thatseen 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 sufferedas a result of trafficking in pornography a quasi-social harm.It is distinguished from a social harm in that the victimconceived as a member of a victimized class, but any action toredress this harm is brought solely on her own behalf for theharm personally suffered. Unlike the actions in the criminalcases previously cited, claims here are not on behalf of a groupor on behalf of society as a whole, but are on behalf of anindividual who has suffered as a member of a class. The modifiedordinance I propose seeks to redress quasi-social harms. One mayquestion whether this (as distinct from addressing social harm)is a tenable legal proposition or not. I suggest that it is, atleast in Ontario, given our established legal categories andmeans of redress. The Ontario Human Rights Code provides an example of anattempt to redress quasi-social harms. It may be true that tortlaw is unable to address the "social injury that occurs at apersonal level", but this is exactly the kind of injury thehuman rights codes of the country have been enacted to redress.While couched in the terminology of individual human rights, theOHRC's categories of protection indicate a necessary connectionto the notion of a social harm. The OHRC does not promise equality, equal treatment, equalrespect etc. of every person, its grandiose preamblenotwithstanding. What it promises is that injuriousdiscrimination to individuals due to membership in certain socialcategories will be redressed by damages or injunction. Thesesocial categories are those which are traditionally associatedwith social injury - race, ancestry, place of origin, colour,ethnic origin, citizenship, creed, sex, sexual orientation, age,marital or family status, or handicap. Notice that manycategories are absent - foolhardiness, poverty, language group,education, etc. What this indicates is that the OHRC does notaddress an equality right per se, but addresses social harm as aresult of being eg. black, female, Croatian, gay, blind, 25 yr. old, unmarried, etc. The remedies under s.40 of the OHRC arenearly identical to those in the modified ordinance - damages,including those for personal anguish, costs of the action, andinjunction. The modified ordinance would thus be quite similar to theexisting human rights legislation in Ontario in its recognitionof social harm and its suggestion of remedies. Where it woulddiffer is in its refusal to supplant the power of the victim topursue their own action in court, rather than deal with acommission (and its discretionary powers) or board of inquiry toinvestigate matters. Thus the modified ordinance wouldremain "women-initiated and women-driven." It would alsodiffer from the OHRC in that it would clearly specify an as yetunrecognized particular method of inflicting harm: traffickingin pornography. One well-known attempt to pursue a remedy for a quasi-socialharm outside the administrative realm of the OHRC succeeded inthe Ontario Court of Appeal, but failed at the Supreme Court ofCanada. In Bhadauria, the plaintiff alleged that she had beendiscriminated against because of her race in applying for ateaching position, and brought an action on a common law tortbasis of discrimination, and also cited a violation of the OHRCas giving a cause of action. Wilson J. in the Court of Appeal held that it was open tothe court to allow the expansion of the common law to include thetort of discrimination, and would have allowed the action toproceed. The question of whether the OHRC gave rise to anindependent civil action was not entertained given thisfinding. Laskin CJ. in the Supreme Court of Canada said that the OHRCwas meant to supplant the attempt to seek a remedy at common law,not to supplement it, and thus barred the action from proceedingeither at common law or directly from an alleged breach of theOHRC since Bhadauria had not attempted to invoke the proceduresof the OHRC for redress. What is noteworthy from this caseis that the question...
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