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 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.
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 bonds 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 imbalance 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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