Trying to strike a balance in framing pornography law

Press, 18 February 1989, Page 24

Trying to strike a balance in framing pornography law

Peter Luke,

of our Parliamentary staff, looks

at the problems thrown up by the pornography report

£T> ORNOGRAPHY is a P oli ' I—* tical minefield, through X which even the wary must step with care,” the Ministerial Committee of Inquiry into Pornography said this week. But not too many mines went off when their report, entitled “Pornography,” was released. One stalwart of the anti-porn movement, Miss Patricia Bartlett, fired a lone salvo, describing it as a “pornographer’s delight.” But another prominent, but more mainstream, moralist, Mr Graeme Lee (National, Hauraki), who so often has been Parliament’s voice crying in the wilderness, seemed quite happy with the general themes of the 207 page, 202-recommendation document.

And although vague mutterings also emerged from the libertarian corner — which champions individual responsibility — by and large there was little initial evidence of the hard struggle presaged by both the committee and the Minister of Justice, Mr Palmer.

The committee, for example, noted that a similar inquiry in Canada had produced little legislation. And it reminded readers of the titanic social and political struggles in New Zealand over such moral or sexual issues as abortion or homosexuality. The philosophical questions raised by pornography were twice canvassed in the report, under the headings of liberal, conservative and feminist views. The committee claimed that the five principles that guided its work derived from elements of each view..

These five principles were equality, responsibility, individual liberty, human dignity, and the appreciation of sexuality.

But the clearest influence on the committee were feminist approaches. The committee’s working definition of its subject was “sexually explicit material which is demeaning or. degrading to women (and sometimes to children or men).” “Thus defined, pornography can be seen as having a role in perpetuating sexism in our society; in fact it can be seen as a form of sex discrimination against women since it dehumanises them, presenting them as creatures whose role is to gratify men.”

That this feminist-influence report produced little controversy this week is partly a product of the philosophical under-pinnings. First, in a major speech in Christchurch, Mr Palmer cited American jurists as he discussed pornography, censorship and freedom of expression. But in America popular debate over the various rights of an individual in society is more keenly developed than here. Contrast the interest most Americans take in their Constitution — including the free-speech guarantees contained in the First Amendment — with the failure

of most New Zealanders to stir themselves over the proposed Bill of Rights. That is not to say many American communities do not allow censorship in their vision of how their constitutional liberties should be practised. In how many Bible Belt Southern towns, for example, was the “Last Temptation of Christ” screened? Probably the same number as will show “Mississippi Burning," a film version of the brutal murders of three Civil Rights workers. But it is probably true that liberal thought in New Zealand, especially over censorship, has lacked the libertarian influences of the United States.

Second, the previous moral

They referred also to photos of “children engaged in sexual activity with looks of terror or pain on their faces, women being mutilated — the depths to which the human imagination can sink were vividly brought home to us.”

Most pornography does not fall into such grotesque categories. The committee suggested that the “industry” in New Zealand was worth $2O million a year —- the two main components being $8 million each on magazines (at least 76,000 copies of restricted titles a month) and videos. , The over-riding test for such material should be whether it was likely that the public good would be injured by the availability of a particular work. A major change in the seven criteria used to assess this is the addition of whether a work demeaned by reference to disability or sexual orientation — in addition to colour, race, ethnic or national origins, sex or religious belief. Another novel criterion was the extent to which the work depended on the demeaning portrayal of any person. And the criterion places the onus for preventing children watching unsuitable material on their par-

ents or care-givers. Given that most great censorship controversies in New Zealand have been over individual books or films, rather than the censor’s knife per se, it is likely that the minefields this year would flow from the legislation that emerges and how any new principles and criteria are used. Mr Palmer supports the basic approach of the report, but has warned that the detail may be altered as the recommendations are assessed. Creating one censorship body could be difficult, and Mr Palmer does not' like the recommendation that some publications should be precensored. The committee also provided a plethora of social, educational recommendations to tackle the longer term attitudes which sustain pornography, violence and sexism. But Mr Palmer warned that not all these could be financially afforded. Debate thus far has focused on the harm that pornography does to society in general and women especially, and the need to stamp out child pornography. In those areas there is probably a consensus. But when legislation or a newlook tribunal begins to define more closely the degrees of pornography and their consequent social harm the different meanings could cause great debate.

The committee in its report noted the distinct perceptions of pornography that emerged from submissions; and it had little input from “middle New Zealand men.” Neither the committee nor Mr Palmer believe that laws can absolutely control access to pornography or change attitudes. But if the committee’s report does nothing else, it will have destroyed an image of pornography that focuses on dirty old men. i It makes a compelling case that roots of pornography go far

deeper into society and its attitude to women. And it shifts attention to the victims; both the more obvious links to sexual •abuse, and the feminist argument that pornography is demeaning. “As our inquiry proceeded we became sure of one thing: the answers to problems about pornography cannot be just legal answers. They must be found where they reside — in the institutions, values and traditions of the general social order.” debates in New Zealand politics have been different in one respect to the pornography issue. Both abortion and homosexuality had, at their simplest, a combat between moral conservatives, and liberals, over whether traditional concepts of family, sexuality and society should continue to be backed by the law. But pornography — at least at a theoretical level — is abominable to both the traditional family morality of conservatives and newer concepts of social responsibility and the treatment of women.

A more basic reason why a consensus of support has enveloped the report, flows from these philosophical points — and from a poll commissioned by the Royal Commission on Social Policy. This poll found that only 12 per cent of New Zealanders — mainly men — took the ultralibertarian view that censorship should not exist.

The vast majority, in other words, share the view of the committee chairperson, Ms Joanne Morris, that this ultrafreedom should not be unassailable — that at some point the dignity of human beings demeaned by pornography, and the reactions and attitudes of other people to it, must be seen as a significant harm sufficient to warant the curtailing of individual freedom.

But with a few key exceptions the. committee gives little idea of where the line will be drawn if its recommendations are given

legislative, effect. Instead it lays down the principle, the criteria and the instruments that the revamped classification authority, which would replace the three existing bodies, would use. The committee, of course, was not charged with, nor could it conceivably, go any further. And the exceptions that it does effectively ban are so sordid as to cause little debate.

Four types of pornographic image should always be banned, according to the committee. These include child pornography and some extremely violent material. And two other categories — whose banning could be overturned by some “overriding merit” — include sexually violent material and depictions of certain fetishistic behaviour that most New Zealanders had never heard of. The attack on child pornography continued as the report recommended a raft of additions to the Crimes Act. In no way is child pornography legal at present, but the committee believed society’s abhorrence for this category of pornography should be spelt out more clearly. Offences should be created, the report said, for making, showing or possessing this material. The committee had no solid evidence that child pornography was produced locally, and ran into obvious problems in trying to estimate the prevalence of imported material. But it believed “quite a quantity” circulated, and the police told the committee that the use of such material in child abuse was not uncommon. In a preface signed by the chairperson, and her two colleagues — Dr Hillary Haines and Mr Jack Shallcrass, the committee expressed its repugnance for such material. “On many occasions we were left stunned, sickened or terribly sad by what we saw or read. The most painful accounts of the effects of pornography came from New Zealand women who had been victims of sexual abuse as children and whose abusers used pornography in the course of the abuse.”