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 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 grounds, 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 members 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 number 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 number 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 words 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.