Restricting young people’s access to porn won’t save them, but it will threaten sexual speech

Posted February 22, 2022
By Lara Karaian

A bill to restrict young people’s online access to sexually explicit material has been re-introduced by Senator Julie Miville-Dechêne. The so-called Protecting Young Persons from Exposure to Pornography Act, would make it “an offence for organizations to make sexually explicit material available to young persons on the Internet” and would empower a designated enforcement authority to take steps to prevent such access. 

Despite much opposition, the bill’s initial version (Bill S-203) passed in the Senate in June 2021 but died on the Order Paper when the last election was called. While the updated S-210 touts a restricted scope, clarified intent, and additional defences, like its predecessor it is based on a faulty assumption about the limited value of sexual speech and on a failure to recognize the significant harm such a bill would bring for non-normative, including feminist, sex workers and sexual speech. 

The bill’s main concern is far from original. Beginning from the well-worn premise that “sexually explicit material — including demeaning material and material depicting sexual violence — can be easily accessed on the Internet by young persons,” the bill’s preamble links youths’ consumption of sexually explicit material to harms such as pornography addiction, the reinforcement of gender stereotypes, and to sexual harassment and sexual violence against women. Online porn is ultimately represented as a “public health” and “public safety” concern necessitating commercial providers be held criminally responsible if they fail to prevent youth from accessing porn. 

The bill applies to “Any organization that, for commercial purposes, makes available sexually explicit material on the Internet to a young person.” Any such organization would be guilty of a “criminal offence punishable on summary conviction and is liable, (a) for a first offence, to a fine of not more than $250,000; and (b) for a second or subsequent offence, to a fine of not more than $500,000.” 

 “Organization” is broadly defined. In essence, it would include any site or service that makes or transmits sexually explicit content, including but not limited to porn sites, search engines, as well as sites such as Twitter, Reddit, or 4chan. In testimony before the Standing Senate Committee on Legal and Constitutional Affairs on February 9, 2022, Michael A. Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, went so far as to suggest that the bill’s “stunning over-breadth” renders it not just a slippery slope but “an avalanche” poised to affect “numerous mainstream services.”  

Similar concerns about overbreadth stem from the bill’s definition of “sexually explicit materials” as codified in subsection 171.1(1) of the Criminal Code. This definition includes legal pornographic content not merely the “demeaning material and material depicting sexual violence” referenced in the bill’s preamble. With this breadth comes the likelihood that non-normative sexual subjectivities and relations will suffer disproportionate scrutiny and censorship. Pre-Internet evidence for this claim includes the discriminatory treatment of gay and lesbian pornography and bookstores by Canadian border agencies, as well as more recent international attempts to regulate online porn such as the UK’s Audiovisual Media Services Regulations (2014) which targeted any “activities involving perversion or degradation,” namely BDSM, face sitting, female ejaculation (if done on another’s body or consumed), and fisting. Indeed, in the face of growing international attempts to impose age verification requirements, Pandora Blake notes that age verification will put many websites that bring “diversity of representation” to the adult industry out of business, including those that provide queer, fetish and feminist content, while at the same time, “behemoths of commercial porn” that “benefit from economies of scale will survive.”

Possibly the most concerning aspect of the bill is its framing of porn as a “public health crisis”. In an earlier CFE blogpost I outlined how the reframing of porn as a “public health crisis” elevates porn to “the status of extremely influential and harmful speech requiring exceptional regulation.” Since then, the public health framing has been mobilized with such voracity and success that Professors Emily Rothman (Pediatrics) and Kimberly Nelson (Community Health Sciences) of the Boston University School of Medicine conclude that “The movement to declare pornography a public health crisis is rooted in an ideology that is antithetical to many core values of public health promotion and is a political stunt, not reflective of best available evidence.” Citing the Oxford Handbook of Public Health Practice they note that a public health crisis has three main qualities: 

(1) it is an acute event that requires an immediate response; 

(2) the event is expected to imminently lead to death, infectious disease morbidity, property destruction, or population displacement; and 

(3) it overwhelms the capacity of local systems to do the job of maintaining a community’s health.” 

Adolescents’ and adults’ access to pornography do not meet these criteria. Even with the steady rise of access related to the Internet, Rothman and Nelson point out “pornography is not an acute event that requires an immediate response.” Second, they note, “Pornography does not directly or imminently lead to death, infectious disease morbidity, property destruction, or population displacement.” While research demonstrates that there may be adverse health consequences of pornography use for some, studies also suggest that, as Rothman and Nelson write, there are “no substantial consequences for the majority, and positive effects for others.”  Decades worth of correlational and experimental studies of pornography and sexual violence, as well as research analyzing porn consumption and violent crime data, demonstrates that the negative effects of violent pornography are inconsistent. Indeed, Ferguson and Hartley, 2009 found “[v]ictimization rates for rape in the United States demonstrate an inverse relationship between pornography consumption and rape rates. Data from other nations have suggested similar relationships.” Finally, as Rothman and Nelson observe, pornography “does not overwhelm the capacity of local systems to do the job of maintaining a community’s health. There are multiple resources within communities…for individuals who believe they are negatively affected by pornography, including therapy.” So why does this linguistic clarity matter? Referring to pornography as a public health crisis has resulted in, as Rothman and Nelson point out, “unwarranted policy, funding shifts, modes of regulation, and the pathologizing of form of sexual behavior, including pornography use, with the potential to restrict sexual freedom and to stigmatize, which is antithetical to public health.” 

Finally, bills such as S-210 start from faulty premises about youth sexuality and the limited value of sexual speech. While it may seem commonsensical to focus on the potential harms of pornography for adolescents, legislative efforts and debates such as those surrounding bill S-210, should be more attentive to young people as sexual beings with desires and to the significances of sexually explicit material in everyday life. Indeed, of those under-18s who are accessing online pornography, most are 16- and 17-year-olds who above the age of sexual consent. Today, Canada’s age of consent laws make it so that youth are legally permitted to engage in sex and are able to create sexual representations of themselves for private use but are not permitted to view representations of sex involving adults. This is based, in part, on the faulty premise that sexual speech and sexual arousal are somehow uniquely harmful or valueless speech.

In fact, sexual pleasure as facilitated by pornography has intrinsic value in and of itself, outside of any educational, artistic, or medical uses. Sexual expression has been deemed significant to adolescent self-fulfillment, self-actualization, sexual exploration, and identity by Canada’s Supreme Court.[1] While there may indeed be some evidence of porn’s negative effects for youth—such as performance anxiety, sexual mis-education, body shaming—there is “no robust evidence to prove that young people are harmed by encountering sexual images,” as Blake has found. In fact, Blake points out that “data from Denmark, Japan and the USA correlates greater access to pornography with positive outcomes, including lower rates of sexual violence, higher reporting of sex crimes and lower rates of sexually transmitted infection transmission and teenage pregnancy.” 

While more research about youths’ experience of pornography is needed, it remains unlikely that prohibitionist policies that stigmatize, censors, and potentially threaten the privacy rights of porn consumers, offer the best response. While the desire to prevent youth from seeing sexual images that are shocking or upsetting may be a legitimate endeavor, Canadian legislators and courts would do well to, as I have suggested elsewhere, “consider adopting both a positive rights framework—one that balances the body’s needs to be free from abuse and exploitation with its need for health and pleasure—as well as a sex-positive legal framework—one that considers the intrinsic value of sexual pleasure and which factors the relevance of sexual pleasure into legal determinations of constitutionally protected speech.”

 

[1] For more discussion of this decision, see Karaian and Brady 2019