Andrew Sorfleet and Chris Bearchell

The sex police in a moral panic: how the "youth porn" law is being used to censor artists and persecute youth sexuality

• Visual representations that show people who are or look to be under the age of 18 engaged in explicit sexual activity.

• Visual representations where the dominant characteristic is the depiction, "for a sexual purpose," of a sexual organ or the anal region of a person under the age of eighteen.

• Written materials or visual representations that advocate or counsel sexual activity involving people under the age of eighteen.

The maximum penalty for possessing such material is five years, while anyone convicted of producing, distributing, importing, or selling, or possessing for the purposes of distributing or selling, child pornography -- as defined by section 163.1 -- faces up to ten years in jail.

Criminal Code provisions recently upheld by the Supreme Court of Canada in the Butler decision, already prohibited the production, distribution and sale (but not possession) of obscene materials. In the Butler decision, the Supreme Court also stated that sexually explicit material employing children in its production would be considered obscene.

Operation Chicken

On September 13, 1993, a fifteen-year-old Toronto youth was arrested and charged with making obscene material. The police identified the young man by showing a home movie (which they purchased in an undercover investigation they called Operation Chicken) to other youths. The fifteen-year-old was known to frequent the Toronto strip where male prostitutes work.

Six months later, after spending all but several days of that time in custody, he pleaded guilty to making an obscene video, made a statement implicating others who were facing charges, and was sentenced to "time served plus a day." He was released into the custody of his parents (whose priest had been visiting him daily).

On October 1, 1993, John Young, a gay porn collector who was sought by police turned himself in. He was arrested and denied bail for six months. He was finally released after Crown Attorney Calvin Barry said that he intended to keep Young in jail for more than year before his case could get to trial.

On October 8, 1993, Barry announced in the Toronto Sun that another street-wise young man, this time a fourteen-year-old, was being held in a psychiatric facility because he had attempted suicide twice. Barry stated that there was "a direct link between the boy's suicide attempts and his appearance in a homemade video because of guilt and shame." He failed to point out that it was police who made this home movie, and the young man's private life, public.

On January 14, 1994, Matthew McGowan turned himself in, in connection with these investigations. He was charged with producing obscene material, held in jail and eventually granted bail. He was the third person in the tape with the two other young men.

In May 1993, before the youth porn law was passed, McGowan, then twenty-two, and his fourteen-year-old boyfriend of many months, picked up a fourteen-year-old friend from the boys' stroll and borrowed a video camera on the way home, thinking it would be fun to make a home movie. Everyone involved was of legal age (fourteen years); the undercover police officer who originally purchased the movie describes the tape as involving "three males, two of whom look to be about seventeen years of age and one who appears to be about fourteen." The tape shows the three playing sexually; it shows a lot of verbal negotiation and consent, including discussions about safe sex.

Operation Scoop

They called their investigation Operation Scoop. It began with creating still pictures of the youths in the videos and exhibiting the pictures around London to school officials, youth agency workers and other young people. As of mid-April, 1994, they claimed to have interrogated more than two hundred young people and identified eighteen "victims."

Of the men arrested thus far, seven are twenty-one years of age or younger. Many (if not all) of the youths, both those charged and those identified as "victims," are male prostitutes. Of the young people arrested, most have been charged with making obscene material or with having anal intercourse with someone under eighteen years of age or both.

Only two of the older men have been charged in regard to the tapes themselves; most are charged with anal sex with someone under eighteen and/or with purchasing (or attempting to purchase) the sexual services of someone under eighteen. These arrests are a result of police pressuring the younger men to name their sexual contacts. The charges are being laid and some accused are pleading guilty to them even though the constitutionality of the law is in question. In a written decision dated July 29, 1993, Ontario Court Judge Marie Corbett declared unconstitutional the Criminal Code provision that makes anal sex with a person under eighteen years of age an offence (punishable by up to ten years in jail).

One of the most disturbing developments in the London story occurred in April 1994 when twenty-seven-year-old Albert Mallory pleaded guilty to anal sex with two men ages twenty-seven and forty-two; anal sex is an offence when there are more than two people present! All the participants were consenting and the sex occurred in private, but the event was captured on video, on a tape that was retrieved from the bottom of a river. The tape was recorded without the knowledge of the accused who pleaded guilty and was sentenced to two years probation and psychiatric counselling.

In April 1994 when the London Free Press reported that one of the older men and one of the youths charged as a result of this investigation had tested positive for HIV. Spurred on by wildly inaccurate and inflammatory coverage in the Free Press , local citizens and officials, especially police and politicians, took up the call for mandatory HIV testing of prisoners and people accused of sex offences. And their fervor was seized upon by others -- some genuinely, if ignorantly, fearful and others merely opportunistic -- who carried it to Ontario's provincial legislature and into headlines all over the province.

Eli Langer, "Untitled," pencil drawing, 8.5X11.

Eli Langer and Mercer Union

Metro police said they "received a citizen's complaint" about the work the day after the review appeared. Officers from Project P viewed the exhibit, a warrant was issued and the art seized. Langer and Sharon Brooks of Mercer Union were charged with "possession of child pornography" under section 163.1.

A coalition, formed to support victims of the youth porn law, organized a demonstration for January 17, 1994. Two hundred people marched to Old City Hall courthouse from the Ontario College of Art to show support for Eli Langer and other victims of the law.

At a hearing in Ontario court, provincial division, on February 24, 1994, possession charges of were dropped against Langer and Brooks. Crown Attorney Paul Culver then applied instead for an order seizing Langer's works, thus putting the art on trial instead of the artist. At the forfeiture hearing scheduled to begin September 29, 1994, Langer must prove that his paintings and drawings are not "obscene."

"Obscenity convictions have been extremely rare in the Canadian art world, although from time to time police have warned exhibitors that material shown might be considered obscene, or have laid charges but subsequently dropped them. One of the few cases in which charges were successfully prosecuted occurred in 1965, when Toronto gallery owner Dorothy Cameron paid a fine after she was found guilty of displaying obscene material in a show of erotic art she had organized." -- from a statement by Mercer Union

A second demonstration, intended to make the links among those communities whose members are threatened by this law and the moral panic that police and the press have generated to facilitate its initial enforcement, was held March 12. This demonstration was organized by "Repeal the Youth Porn Law" (RYPL) campaign. RYPL's demands are:

• Repeal the youth porn law.
  
• Release Eli Langer's artwork.
  
• Drop all obscene material and anal sex charges.
  
• Release the youth identified in the videos on bail immediately.
  

These demands have so far been endorsed by thirty-eight art and community organizations.