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.
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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