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Last July, on the same day the long-debated gay marriage act passed, the Canadian parliament also enacted a new child pornography law that also effectively raised the age of consent in many cases from 14 to 18. This has attracted little attention in Canada. In September, the US Congress put final touches on even more draconian child pornography legislation now scheduled for enactment in January. It took Canadian legislators four years to pass the new law, after portions of the previous law were ruled unconstitutional. It took the US Congress about four months to rush through the new law, which also tries to end-run Constitutional issues, especially the elimination of the category of "virtual child pornography" by the Supreme Court decision overturning parts of the Child Pornography Act of 1996.

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Arguably a child-sex panic began in the US with the day-care scandals of the 1980s, continued with the kiddie-porn and Catholic priest scandals for more than 20 years. and spread world-wide. It is the longest-running sex panic in history and shows few signs of abating. Recent new laws and proposed laws in Canada and the US expand the definition of child pornography, chill literary and artistic expression, further erode sexual choice for teens, and narrow the limits of sexual expression. As always, these especially threaten homosexuality, since they provide increased ammunition for homophobic cops, prosecutors, and judges.

Canada: hysteria in slow-mo

In Canada, the assault on sexual freedom is a fait accomplis. In late July, the Governor General gave "royal assent" to C-2, a wide-ranging amendment to the criminal code, allegedly "for the protection of children and other vulnerable persons." The new law took more than three years to pass, since first introduced as a direct reaction to the Robin Sharpe case of 1999-2002, especially the Canadian Supreme Court ruling in 2001 which struck down some key elements of the earlier child-porn law. (See "Canada Swats Sex Gadfly," The Guide, May 2004.) Sharpe was acquitted of child-porn charges related to his writings, but convicted of two charges relating to photos, for which he served four months under house arrest. Vancouver police conducted a massive hunt to find a man depicted in one photo in order to charge Sharpe with "indecent assault." He was convicted and sentenced in 2004 to serve two years, less a day.

Sharpe was released in November, 2005, with no parole requirements or other conditions. He is working on a new story which is not believed to include problematic material, though his previous stories could always be tested under the new law, which some civil libertarians argue simply re-states the old one in a direct rebuke to Canada's courts.

C-2 has several oppressive features:

· It broadens the definition of child pornography to include any visual, audio or written material, which has as a "dominant character," and "for a sexual purpose," the description of sexual activity of "young persons" (under 18) which "would be prohibited under this act." This is meant to include fiction and personal diaries. It is not at all clear what "dominant character" or "sexual purpose" would mean-- whether of a particular section or chapter of a work, or the work as a whole. This is what Robin Sharpe (and many others) have called "a law that comes close to making thought a crime." Sharpe pointed out that the law would put fictional characters on trial, necessitating "a trial within a trial" to determine if a fictional act "would be prohibited" under the law.

Matthew Skala (www.ansuzsooke.bc.ca) actively monitors legal issues regarding, especially, science fiction. He warns that this definition of pornography is especially worrisome for science fiction, fan fiction, and manga (particularly the homosexual "yaoi" form). He points out that the Japanese clearly make a distinction in manga between the imaginary and the real, which the new Canadian and US laws do not.

· C-2 eliminates a defense on "artistic merit," and sets two difficult criteria for the defense: a) The material must have a "legitimate purpose relating to the administration of justice, to science, medicine, art and education," and b) it must "not pose an undue risk of harm to a young person." (The burden is on the defense to prove a negative, which is generally considered virtually impossible.)

· It adds a new offense, "sexual exploitation," of persons under 18. This is an end run around the issue of raising the age of consent from 14, as it technically remains, to avoid the wrath of Quebec which has steadfastly opposed raising the age. Sexual consent for teenagers (14-18) is already limited: no prostitution; no sex with adults in "authority." Now, the courts are to determine if sex between a young person and an older person is exploitative-- with criteria including the difference in age between partners, as well as the nature and "evolution" of the relationship. Many believe this virtually eliminates sexual relations between older adults and those under 18.

· Another new offense is added, "voyeurism," which includes not only the surreptitious recording of sexual activity or nude persons in places like private bedrooms, bathrooms or public showers, but "secret observations" in such places. This law applies to observing persons of any age.

· Maximum sentences for possession or accessing of child pornography (as over the internet) are increased to ten years, as are proscribed sexual acts with "young persons" (under 18). New minimum penalties are also set-- a rare practice in Canada, until now only mandated for some murder, gun and terror offenses. The law further specifies that house arrest or conditional sentences are not allowed-- a possible violation of Provincial judicial rights.

· It sets several limits on the right of the accused to confront the accuser in cases involving persons under 18 (or others deemed "vulnerable" by a judge). Prominent among these is the prohibition of cross-examination of the "victim" by the defendant acting as his own attorney-- a direct response to Robin Sharpe's 2004 trial.

The US fast-track

The "Child Pornography Prevention Act" of 2005 was just introduced in the US Congress September 12 by fundamentalist Rep. Mike Pence (Republican of Indiana). It was added as an amendment to the "Children's Safety Act" (voice vote, no opposition) with the whole Act given final passage in the House on September 15 (by a vote of 371-52). It was assigned by the Senate (along with the Senate's Child Safety bill which has already passed two readings) to the Judiciary Committee which may return it for a final vote without a public hearing (since it already held such hearings on its own version) sometime this fall. The vote has not yet taken place, but the full Children's Safety Act, has been placed on the Senate Calendar with a relatively high number, so that it is likely to be voted on early in 2006.

The Pence bill, now incorporated into the Children's Safety Act of 2005, like C-2, was a direct reaction to a court decision. The US Supreme Court in 2002 struck down provisions of the Child Pornography Act which included "simulations" of sexual depiction of children-- including animated or other visual depiction not including real children.

The Pence amendment removed the word "actual" from the phrase "sexually explicit conduct," and added "nudity" of persons under 18, if "sexual arousal" or a focus on the genitalia was evident, as well as including the language that the person "is or appears to be" under 18.

Another feature of Pence is a reaction to the recent challenge by the Free Speech Coalition to Federal notification requirements concerning the age of persons depicted in pornography. The new requirements set by the Justice Department in April, were widely viewed as so broad that many porn sites, and even chat-rooms and other gay sites such as gay.com would have to ban all nudity, since they made it necessary for any site to keep age certification on file for all persons in all material linked to the site (whether commercial or not, whether produced by the owners of the site or not). The new law would mandate that age certificates be kept by all servers and sites, whether or not responsible for the production of the material. Pence also indicates that material need not be in inter-state commerce to be included under the Federal law-- that Federal law will trump state law in such cases. This continues the recent and troubling trend widely publicized in medical marijuana and other drug laws, where states-- like California-- have a more liberal policy than Washington.

Finally, the new law mirrors RICO (conspiracy and organized crime law that has been widely misused) and other Federal statues with regard to the broad powers of forfeiture of property, allowing courts (and prosecutors and police) to seize vast amounts of unrelated property only peripherally involved in a "crime." Pence adds force to what is already an effective Federal US age of consent at 18-- despite state laws that set the age at 16 or younger.

The panic creeps upward

Everywhere, the anti-child-porn campaign threatens all sexual expression. In Canada, that is clearly seen in the new voyeurism statute. In the US, the Washington Post reported Sept. 20, that the FBI was targeting adult pornography. This was after US Attorney General Alberto Gonzales made fighting adult obscenity a "top priority" of the US Justice Department-- harking back to the infamous and mostly unsuccessful initiative of Reagan Attorney General Edwin Meese. An FBI adult pornography task force of ten officers was being put together, soliciting volunteers from within the ranks, as well as new recruits. The Post quoted "insider" jokes from FBI agents: "I guess we've won the war on terror," and "Most of us would have to excuse ourselves" from work on such a task force. It is clear that the Bush allies among the right-wing Christians intend to press ahead with their "moral" crusade despite decades of permissiveness and a multi-billion dollar adult porn industry which includes some of America's top media corporations like Time-Warner and Fox.

In Britain, according to Internet Watch (the UK net watchdog), legislation has been introduced, that would expand the initiative against kiddie porn to "objectionable" adult porn sites, including SM. The Guide has reported on several recent cases of arrests for consensual sex among adults, or raids on strip-clubs, where "age inappropriate" sex was sighted as the rationale-- the "appropriate" age creeping up from 18 to 21 and older.

Do differences matter?

A major difference between the US and Canada with regard to anti-sex laws is that in Canada there is strong opposition, in theory at least. In the US almost no-one seems to dare speak up when the bloody flag of "protecting children" is raised. Virtually all of Canada's intellectual community took a stand against C-2-- the Writers Union, the Conference of Canadian Artists, the Poetry Association. The Civil Liberties groups also spoke out (as they do, although more timidly in the US). The biggest difference from the US experience is that many gay/lesbian groups and media also spoke out in Canada against C-2: Xtra, the largest gay/lesbian newspaper in Canada, editorialized against C-2 before passage, and covered its progress and the aftermath. Major Ontario and British Columbia gay-and-lesbian coalitions took stands against C-2, as did the bi-lingual Egale, the gay/lesbian civil rights group that has led the fight for gay marriage. The long debates on the earlier versions of C-2 were characterized by lengthy testimony against the bill by academics, civil libertarians, writers and artists and gay rights groups. Support came mostly from fundamentalist Christian and right-wing groups like "Mad Mothers Against Pedophiles." Such a disparity among groups supporting and opposing the new law accounted for its failure to pass until now.

Yet C-2 was given final Senate passage in 2005 without opposition. This happened on the very same day that C-38, the gay marriage law, passed by a relatively close vote. Many, such as a legislative aide to the Bloc Quebecois spokesperson, Richard Marceau, insist, "You seem to associate C-2 somehow with the gay marriage issue or the gay community. There should be no links made. There are none."

Others, such as Laurent McKutcheon of the Quebec gay help group, Ecoute, are not so sure. When told in September of C-2's passage, McKutcheon said he was not aware, "But we have focused on the victory with regard to marriage, and then it was also passed in the middle of the summer vacation." (Most Quebecers go on holiday at the same time, the last two weeks of July.) Yves LaFontaine, the editor of Quebec's major gay monthly, Fugues, was also caught unaware. "Quite frankly, Anglophone and Francophone gay communities are two different worlds, and we just haven't heard about it-- with gay marriage the big story. But you've given me a good idea for a story."

Even by late November, most gay media people and activists remained largely unaware of the passage of the new laws. Alain Bouchard, editor of Montreal's RG magazine, e-mailed a response to my query about his reaction to the law, that he knew little about it and thought that few others in the gay community were aware of it.

It seems clear to some that gay marriage and C-2 were indeed linked-- to put the society's stamp of approval on "white-bread" monogamy and marriage just as the state imposed ever tighter restrictions on non-approved sexual activity and relationships. A long-time gay activist in Montreal, who has worked in gay-police liaison work, (and who asked not to be named) commented, "You can be sure they passed these two together. Most gay leaders assumed the bill would die as it has done in previous years. They slipped it in when nobody was looking, and everybody was celebrating gay weddings."

The New Democrats (NDP) and Bloc Quebecois (BQ) members of Parliament-- the left opposition to the Liberals and to the ultra-right Conservative "official opposition"-- spoke out against elements of earlier versions of C-2 in 2002-2004. They have been silent since it's passage. They seem to believe that the addition of the word "art" in the "legitimate purpose" clause will protect literary expression, and that the "sexual exploitation" clause leaves the age of consent as it has always been in Canada (14).

Robin Sharpe's website (www.robinsharpe.ca) quotes Sharpe as disagreeing in part. Sharpe himself has been unable to comment on C-2 because of his incarceration, but he critiqued the earlier versions (C-12 and C-20). On the one hand, he deplored the removal of "artistic merit," and saw the exploitation offense as limiting the sexual choice of teenagers. On the other hand, he believed that his own written works could pass muster under the new law if judged by a fair trial-- not something he thought entirely likely. Those managing the website decided to take down the offending works, once C-2 was passed. Sharpe also believed that the "exploitation" law could have a positive impact. He wrote in 2003, "Optimistically it could breed more tolerance... [one] could get a more complete picture of intergenerational relationships" if courts examined the nature and evolution of those relationships. "This would be a radical departure in criminal law." Sharpe, now "free to write and associate with others and to travel for the first time" in more than ten years, says he is ready, if needed, to defend his earlier stories before a clearly similar, and he believes, unconstitutional law.

"Although a homophobic court is always a concern," Matthew Skala adds, "I wouldn't worry too much about the Canadian courts limiting homosexual rights of teenagers and their partners more than under current law."

Other differences between Canada and the US may turn out to be more important. The new law in Canada will be in force only after a considerable period in which the Federal government and Provinces work out the details. That means, no cases under the new law for some time. In the US, passage of this law will provoke a spate of cases almost immediately.

Also, the new laws remain "hybrid offenses," which in Canada means that prosecutors can choose to pursue them as formal indictments, which has the force of treating them like the US "felony" category, or they can accept "summary judgment," which means they will be treated more like the US category of "misdemeanor." The overwhelming majority of such cases are handled by the "summary judgment courts," that is the district-level courts in the Provinces, where the maximums and minimums for the indicted offenses do not apply, and much lower sentences are given. The maximum, for instance, for child pornography possession, will be 18 months for a summary judgment, and the minimum will be 45 days. Similarly, maximums for "exploitative sex" with 14-to-17 year olds will be 18 months and the minimum 14 days. Sharpe's two-year sentence (effectively 18 months) for sex with a person who was 11-to-13 at the time of the offenses is considered a harsh sentence in Canada. It would be laughably short in the US, where downloading a photo of a 17-year-old with a hard-on or rest-area blow-job-with-same can draw life in prison in some cases, and almost always brings five or more years even on a first offense.

A major difference for those convicted in Canada of these new child pornography and "exploitative sex" offenses, from those convicted under the sex laws of the United States, is protection of privacy and travel rights for all citizens, including offenders, in Canada under the Charter of Rights.

Ontario passed the first Canadian Sex Offender Registry in 1999, followed by all Provinces except Quebec. In December 2004, Canada passed a Federal registry that is applicable and enforced in all provinces. In the United States, the Federal "Megan's" law and various state sex-offender registries have become instruments of an inquisition and outright persecution. In some states, any sex offender whose offense involves a child, no matter how minor or non-violent, must register for life, wear a global positioning bracelet, and have personal information including address, telephone number, and workplace posted on web-sites, in newspapers and even on billboards for the public to see. This has already caused suicides, vigilante attacks, including murder and arson, against registered sex-offenders in the US. In all, nearly a half million persons have registered as sex offenders, with possibly 100,000 failing to register as required, any of whom could be prosecuted for non-registration.

None of this is allowed in Canada, where the information on the sex-offender registry is available to police only, with penalties for anyone disclosing such information to the public. In addition, many sex offenders in the United States are not allowed to travel outside the US-- in some cases, for life. But in Canada, offenders no longer on parole or probation, may travel at will-- and passports are never seized, even during incarceration. In any case, even given its smaller population, the numbers required to register under current laws are much smaller: about 10,000 total. These differences alone would seem to make Canada a nation of rights and the US a nation of deprivation of rights.

A final difference applies to Quebec. To paraphrase the Fugues editor, the Francophone and Anglophone realities are different worlds. Courts in Quebec treat sexual matters involving teens very differently from the rest of Canada. An example is the current statute, "procuring the services of a minor prostitute." Although a prison sentence is possible under that statute, and has recently been given in high-profile cases involving public figures in Quebec City, a john accused of sex with a 15-year-old hustler is usually given a small fine. A Montreal judge recently fined an American priest a small amount in such a case. When questioned by the prosecutor, he was quoted in the Montreal Gazette as saying the crime is among the least serious in the criminal code, and no-one was harmed by the act.

One might simply conclude, "Vive la difference." Except that, according to reports by the Electronic Frontier Foundation, special extradition treaties for internet-related crimes, which were signed by the US and many other countries in 1999, mean that normal extradition rules don't apply, and foreign citizens accused under the law of one country may be extradited to face a charge in another country. For instance a person in the US downloading a photo or a story from a Canadian site ruled illegal under Canadian law could be charged and extradited to Canada. The child sex panic marches on-- and it promises just to get messier.