When Pornography Laws Can’t Protect Children

This Fall an article appeared in the National Post entitled A Distorted Picture by Joseph Brean. It caused me pause to reflect upon the ineffectiveness of the current child pornography laws in Canada and how important it is today for parents to be more engaged in their children’s online activities.

Brean discusses the practice and subsequent consequences of young teens (predominantly girls) sending sexualized, nude selfies to other teens (typically boys).  The boys then share these images with their buddies as casually, if not more enthusiastically, as they would any other type of trading card.

Unlike the foil-wrapped sports cards, I remember from my childhood which included a bonus stick of bubble gum, when these images are traded they come with devastating consequences.  We hear tragic stories in the news of girls becoming victim to the ensuing cyber-attacks on their character. They are humiliated, embarrassed, harassed, shamed, and shunned by their peers. At times to the point of suicide.

Teens Sharing Sexualized Images can be Charged with Distribution of Child Pornography 

What many don’t realize is that when boys (or girls) share sexualized images of other teens, called sexting, they are by law considered to be distributing child pornography. In his article Brean introduces us to a young boy, age 14, sitting in a prison cell weeping. He was one of 50 kids from his school involved in this type of porn ring, yet the only one charged with distribution of child pornography.  

Parents of both the victim and the perpetrator are left reeling in confusion, wondering how this could have ever happened to their child.  

Perhaps they think the law will be able to help.  Sadly, in this case it cannot. The Canadian laws surrounding child pornography are extremely outdated. But even if they kept pace with the digital world and the changing morals of society they could not help our children.

A brief history of the child pornography laws might help you understand the complexity of the problem:

In 1993 the Canadian Parliament attempted to strengthen the laws concerning Child Pornography in Canada.  Child Pornography was defined as sexual images that advocate and counsel sexual activity with a child under 18 years. But within two short years the new laws were tested and found to be ineffective even against adult perpetrators.

In 1995 John Robin Sharpe was arrested in Vancouver after customs officers found in his luggage child pornography pictures and manuscripts of stories which he planned to distribute.  Mr. Sharpe successfully argued in court, without a lawyer, that he had a “constitutional right to possess child pornography.”

The judge agreed with him and possession of child pornography became legal.  This case was heard five years later at The Supreme Court of Canada in 2000.  The Child Pornography law was upheld but huge loopholes were created when the exemption for the creation of visual or written materials created by a single person and for that person’s use only was allowed.  Also, if the work was found to have artistic merit it could be legal and able to be printed and sold.

The Criminal Code was Never Written to Capture Teenage Behaviour

Setting aside the complexity of these laws, all the amendments and court challenges about making and distributing and possessing pornography were meant to deal with what adults do to children, not what teens do to teens. Not to mention, these laws are about 15 years old, before the age of smartphones.  Almost before the age of the internet! Certainly, before children were sending nude selfies to each other.

Could new laws be enacted? Perhaps, but at what risk —leaving children more vulnerable to adult perpetrators? Either way, it takes years for laws to be changed. By the time laws dealing with current teen trends could be implemented they would surely be out of date. Furthermore, by the time a case comes before the courts, the young lives have already endured so much damage and humiliation.  

Parents Have to Become their Child’s Legal and Ethical Advisers

Instead, children need to be taught how to be their own judge and jury. It can’t be easy for them when they are growing up in such a sexually charged society.  The media paints a pretty convincing picture that just about anything goes. There’s a lot of pressure for kids to conform and try out some risky behviours on their own.

Parents must be completely frank and honest with their kids. Talk to them about digital citizenship, including the emotional, social and legal ramifications of sending sexualized images to one another. Start the dialogue immediately and come back to it often.  

The more you talk with and listen to your children about their online social experiences, the more they will come to appreciate you as a trusted confidant when they experience a situation that puts them at risk or makes them feel uncomfortable.  

On the other hand, remaining silent or turning a blind eye to the practice of teen sexting can spell devastating consequences for your child and family.

Dolina Smith served as president of C.A.S.E (Canadians Addressing Sexual Exploitation) 1990 – 2005. During this time the organization worked aggressively with police, politicians and other people of influence to advocate for the rights of children who were being exposed to pornography and/or sexually exploited. C.A.S.E had intervening status in two high profile child pornography cases. The Robin Sharpe Case took them to the Supreme Court of Canada. C.A.S.E worked tirelessly for 25 years alongside like-minded organizations to see the Age of Consent legally changed from 14 to 16 in 2008.

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Dolina Smith

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• When Pornography Laws Can’t Protect Children - November 10, 2016