__________________ ____________________  



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. 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.


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