Nezumi Works - APA Wars


APA Wars
By Nezumi <nezumi@sluggy.net>
Nezumi Works: Main Page


MASSIVE DISTURBATRON BURST
CREEPOMETER OVERLOAD


(c) 1997 Mike Nieforth



[This article was written in response to a debate on the subject of censorship in a small press magazine that I collate by the name of APArition. This is truly a tempest in a teapot as the entire membership and print run of the 'zine is 15 copies per month (no issue in December). The history is simply that some of the members began to experiment, tentatively at first, with adult-oriented material. For the most part it was considered cute and inoffensive. Nobody really had much problem with it, really. Then one of the members began a cycle of comic stories which were not explicit, but did contain some challenging material, including underage lesbians, abuse (physical, sexual, emotional, substance) and at least one murder. This made a few members uncomfortable, but they were not vocal. When the member left, it was assumed this was in part due to the grumbling of some of the members. In response, another member decided, perhaps unwisely, to shake things up by submitting a drawing that was explicitly sexually oriented. Predictably, this started a firestorm. Since then the debate has raged over what sort of material to allow in the 'zine, whether simply segregating adult material to another section is enough, whether guidelines are necessary, whether people should be expelled for not following rules, etc. The membership's reactions have been mixed, some in favour of removing all adult content from the 'zine, some bristling at the idea of even having a separate section, preferring no controls at all. Some have threatened to quit, some have planned to become more outrageous. Finally, the spectre of the legal aspect came up, as have all the myths about age of consent and content. I decided to take matters into my own hands and published the article below. Happy reading.]
The following individuals are hereby ordered to report to the nearest law enforcement centre without delay for imprisonment, mandatory re-education and summary judgement:

Members: [Insert names of artists, writers, critics, etc. - people like you]

It is considered probable that the above noted individuals are in possession of materials believed to be obscene and therefore shall be subject to arrest, seizure of materials believed to be obscene and any other materials as officers shall see fit, regar dless of whether they are connected to such materials, inspection of all correspondence, computer files, and computer files. Any defence may only be offered following arrest, seizure and eventual trial. Seized materials may or may not be returned, those that are may or may not be in the condition in which it was seized. Your name will be released to the media regardless of guilt.

Sounds a little harsh, doesn't it?

Get used to it. This is what comes when the letter of the law is followed in Canada by groups ill-prepared for such use, and by those with personal agendas and no regard for the greater good.

This is also what can and does happen in Canada, and has been documented to happen several times within our lifetimes. The frequency of such events has increased since 1992, for reasons which will become clear later.

When [one member] quoted [another member]'s comment regarding that Jewish Cantor, who I still have not found out much about, and the letter of the law, I decided as a legal secretary (with notebook - a hit! A rather palpable hit!) [I am a legal secre tary, myself. The other member's comment was that legal secretaries should get out their notebooks] I would be in a good position to discover just what the law was and how it was used in practice. Boy did I get a surprise!

What follows will not be a complete dissertation nor will it be a verbatim listing of the laws regarding obscenity, age of consent and child pornography. Such an article would be unwieldy, impractical and ultimately dull. So I will paraphrase, giving g risly details where appropriate and illustrations where possible.

Hang on tight. It'll be a bumpy ride.

The Good News - Age of Consent


First of all, I am relieved to announce that no one in the APA has broken any Canadian laws regarding the age of consent for sexual purposes. According to the Criminal Code of Canada, the official source of all criminal law in this country, the basic age of consent in Canada is 14 years old. You heard that right, fourteen. 14. Ten plus four.

Amazing, isn't it? Of course, it isn't quite that simple. Like all good things, there's a trick to it.

First of all, although you personally can't have sex with someone under 14 years, someone who is also under 14 years old can, so long as there is consent and neither is in a position of trust or authority over the other. Or is related, but that applies throughout. So does consent, so I'm not going to keep repeating it. Lack of consent is rape, regardless of age or situation, so consider it a given for whatever I say is legal in this section. The fact remains that two 12 year olds can bang 'til they' re blue. Legally.

But it may surprise you to know that one other group can have sex with under-14's. That group is 14 and 15 year olds. Each of them may legally make whoopee with anyone up to 2 years younger than they are. Meaning a 14 year old can make out with a 12 y ear old. I admit that's a strange concept, but that's the law.

Adults and young people (14-day before 18th birthday) may both have sex with young people but not children (under 14). Okay, that's a little more reasonable. So long as they're not male gays. See, although it's perfectly legal to have hetero or lesbian or any kind of oral sex with a young person, it's illegal for anyone under 18 to have anal sex. Don't ask me wh y, but there's a whole separate section of the Criminal Code of Canada for it, section 159. Oh, and threesomes that include anal sex are also out, as that's considered in a public place (i.e. there's at least one spectator). Sorry.

So you see, we're on fairly solid ground as far as age of consent goes. None of us need worry about the vice squad busting down our door and inspecting our APA's.

Or do we?

The Travesty - Section 163.1

In the Criminal Code of Canada, there is a section named 163 - Corrupting Morals. This was a fascinating document dealing with the punishments for creating, distributing and possessin g materials which were deemed to be obscene. It also defined an interesting concept called a "crime comic", which was a pictorial magazine which described real or fictitious crimes or the events connected with said crimes, either before or after.

Before I get on with the rest of the section, think about that for a moment. If you make a comic that depicts a murder, you have committed a crime. Even if you made it up. An entirely fictitious event, drawn by you with no model, could land you in jail. Not only that, describing the day of the victim, even if you don't show the murder, or showing a police investigation afterwards, is against the law.

Only in Canada, eh?

How could we possibly have such a heinous law on the books in Canada? Isn't this a free country? Isn't getting arrested because you drew someone shoplifting a bit, well, evil?

You bet your boots it is, and it only gets worse. Here's a quick tour of the highlights of section 163 of the Criminal Code of Canada. Hold your nose, it's pretty dense in there.
  • Making, possessing, distributing or having almost anything to do with obscene (not specifically defined in the Code) material or crime comics has committed an offence.
  • If you advertise a cure for venereal disease you're committing an offence.
  • If you produce any publication which unduly (what's that mean? The Code doesn't say - guess the Court and the cops decide) exploits sex, or sex and one of these: crime, horror, cruelty or violence, it's obscene and thus illegal. Guess that includes Howard Chaykin's Black Kiss, which was about cruelty and contained sex, rather than the other way around.
  • Your motives in producing any work are irrelevant.
  • Your only defence is that the public good was served. Who decides? Not you. And you can only come up with that after you've had your life on display as an accused pornographer. And had your goods seized. And had the accusation made part of your police record. And had your name passed on to Canada Customs. And . . .

Scary stuff, eh, kids? And that's only the old section. It caused enough trouble and confusion for a good many years since it didn't define such things as public good and obscenity, leaving such things to worthy institutions like the municipal pol ice, RCMP and Canada Customs. I feel safer already.

So when the time finally came that a more precise definition was added to the Criminal Code of Canada, you can bet the elected officials of our country thought long and hard and brought about a document that would make us all safe from those lowlifes who create child pornography.

You'd lose, of course. What resulted was one of the most vilified, misused and poorly written laws our poor country has ever seen. Welcome to section 163.1 - Definition of "Child P ornography":
  • If you make any visual representation (video, drawing, photograph, hieroglyph, etc.) depicting the sexual organs or anal region of anyone under 18 years of age or that person having any kind of "explicit sexual activities" (which could be exten ded to passionate kissing), you, my friend, may be a child pornographer.
  • If you write or make any kind of visual representation (see above) that counsels or advocates having sex with anyone under the age of 18 years although it is legal to a ctually do so, you're a child pornographer. This includes suggesting they use condoms or suggesting the age of consent laws be changed.
  • With regard to the above, it doesn't matter one bit if the person depicted is imaginary. You can make up your mythical 17 year old out of whole cloth, it'll still be child pornography, although in real life it's legal to do anything but anal sex wit h him/her. If you draw a picture of it, it's illegal. If you suggest doing it, it's illegal. If you do it, that's fine. Confused?
  • The person involved does not have to be under the age of 18. It's still illegal if the person looks like they're under 18. So that male angel [member] drew for last issue may have been 3000 years old, [member] may actually say so. Bu t because he looks 16, it's child pornography. Surprise! [In the issue prior to the one in which this article appeared, one member inserted a number of drawings (as far as I know using no models), one of which was a full nude of a male angel - a very good piece, and I liked it a lot. Unfortunately, it made too good an example to pass up]
  • Like in the old section 163, your motives are irrelevant. Like the Borg.
  • It is not a defence to claim you did not know the person was under 18 unless you bent over backwards to make sure.
  • The only defence is to prove that your work has artistic merit or an educational, scientific or medical purpose. Guess when you get to do this? In Court. After the aforesaid public humiliation. And you don't get to prove it yourself. That honour is left up to an independent group of experts. Like the Maritime Film Classification Board, who have shown how effective such a n approach is with their decisions on such worthies as Bastard Out of Carolina and The Hanging Garden, both awa rd-winning films which needed an appeal and a second board convened in order to be shown in Nova Scotia.
  • Oh, and in case you thought you were off the hook, section 163 is still in effect. You can be charged under two different sections for the same material. Sounds fair to me.

What Follows Naturally - A Law is in its Enforcement



So what happens now? Now that we've found that our laws against freedom of expression (oh, and the Courts so far have decided they are constitutional, although debate still rages) are among the most oppressive and contradictory in the Western world. Doe s this mean that we're all in for it if we don't burn our APA's and form a temperance society?

Not necessarily. The heart of a law is in its enforcement, and if a law is enforced correctly you can see its true character. So let's have a peek.

The best view of section 163 can be found in a single Court case, namely Regina v. Butler (R. v. Butler, [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449-499). In this case, the owner of an adult video store in Winnipeg had the entire inventory of his store seized, lock, stock and vibrators. He was charged with 173 counts of sel ling obscene material, 128 counts of possessing obscene material for the purpose of sale and 1 count of exposing obscene material to public view. There was a second indictment when he tried to re-open the store, with another 77 counts to be added to the previous. In the end he was convicted on 8 counts, the rest being thrown out. He was charged $1,000.00 per offence. The crown appealed all 242 acquittals immediately, while the owner appealed the 8 convictions.

Now, there was more to the case, which later involved the owner being charged with 16 offences, two each for eight films, while the Crown wanted him charged on everything in sight, but you can see where this is going, and if you're really interested you can check it out yourself.

What's important here is that the Butler case gave the best real definition of obscenity to date, a definition which is still used in Courts across the country to this day.

Basically, the decision was that obscenity was sex with violence, explicit sex involving children, and exploitive sex that degrades or dehumanizes.

Sounds pretty reasonable, but the meaning behind the words means that the Judge in question relies on some pretty shaky tests to decide whether something degrades or not. The chief among these is the "community standards" test, which basically asks soci ety at large not what they would tolerate seeing, but what they would tolerate someone else seeing.

Also important is that most of the definition of obscenity is itself undefined. What constitutes violence? A playful spanking? Holding someone's wrists? Beating them? Maybe all of them. How about "explicit sex"? Could that include heavy petting, t ouching through clothing, or passionate tongue kisses? And let's not get into "degrades or dehumanizes". You can see already that there's more to come.


"Censorship is the strongest drive in human nature; sex is a weak second"

- Phil Kerby


During the year following the decision, most feminist bookstores in Canada experienced detentions, seizures, opened mail, surveillance and other similarly invasive activity by Customs, et al. One of the most notable was the seizure in Toronto and Victor ia, among other places, of Hothead Paisan, an adult comic that contains no sex, citing "sexual degradation". When asked who was degraded, as Hothead was an empowered woman, Customs replied that the book degraded men. The book was taken off the ba nned list five months later with no explanation. Few stores in Canada even today receive copies that have not been tampered with or damaged.

In June of 1993, Bill C-128 passed, becoming our beloved section 163.1. It is pointed out that The Boys of St. Vincent, Romeo and Juliet and episodes of Degrassi High would be illegal under the Bill. Later that year, Little Sister's, a fem inist bookstore already fighting a censorship issue, finds that its domestic mail sent from Penguin Canada to their store in Ontario is opened by Customs.

It took until December if 1993 for anyone to be charged under s.163.1, namely Eli Langer of Tor onto. He had 35 drawings and 5 paintings seized in February of 1994. No live models or photographs were involved. It took Langer until 1995 to be cleared by a Judge and at least that long to have his property returned, although the charges were dropped shortly after the arrest.

Most of the subsequent charges were against the people who the law was claimed to protect - children. Usually street kids who film themselves having sex, either for fun or profit. Starting to see some cracks?

Here are a few items that are banned by Canada Customs, backed by s.163.1:
  • The works of the late Tom of Finland, the international award-winning artist who was instrumental in changing the popular view homosexual men from effeminate prancers to muscular manly men.
  • Issues of Omaha the Cat Dancer, which was deemed to "glorify bestiality". At the same time, New Zealand gave the book the equivalent of a "G" rating for its responsible depiction of sexualit y.
  • Bad Attitude magazine, an erotic magazine by, for and about lesbians. In the first use of the Butler decision, it was seized to protect women from the harmful effects of pornogra phy on men. The magazine is normally sold in Gay or feminist stores.
  • Andrea Dworkin's Women Hating and Pornography: Men Possessing Women. Both are anti-pornography books.
  • At one point, anything homosexual. Canada Customs distributed Memorandum D9-1-1, which declared all descriptions of gay and lesbian sexuality to be degrading and dehumanizing, and the refore obscene. It took two years for Customs to amend (not retract) Memorandum D9-1-1 to allow materials that communicate information about legal sexual activity, provided it is not "prur ient in nature". Of course, s.163.1 cuts out most of that legal sex you can talk about, but hey . . .

There are a great number of other examples, but you get the idea. To make a full list would take hundreds of pages.

Conundrum


This leaves the members of the APA, who I consider to be one and all responsible artists, writers and creative individuals with a rather tough choice. In our decision about the future, we must first decide what our founding principal must be:
  • As responsible members of society, it is our duty to follow the laws of our land, regardless of how they are written. It is our concurrent duty to see that those who do not follow those laws are punished, even should it be ourselves, to the fullest e xtent of that same law.
  • As responsible members of society, it is our duty to oppose an unjust law. It is our concurrent duty to assist and support others who work to oppose such an infringement on our, and their, basic rights.

So. Which way to go.

I believe this is a good place to Make My Position Clear. I, personally, as an independent person who happens to contribute to this publication, do not intend to follow the letter of a law which has at its heart an intent to harm my person and the perso ns around me.

I follow the following maxims:
  • "Sexuality is a basic drive of humanity, the others being breath, food and drink. It is hard wired into our brains. Even though you will not die if it is not satisfied, you ignore it to your peril."
  • "The job of an artist is controversy. If you aren't pissing someone off, you're not doing it right."
  • "There is value in risk. Peering into our dark corners is the only way to know our souls."
  • "What is felt must be expressed. Even if it hurts."

As a responsible individual who keeps these maxims in his heart, I will follow a responsible path, even though it may not follow the letter of an unjust law.

That's my position. The rest of you may decide for yourselves if you agree.

Where do we go from here?


[It was brought to my attention when this was being written that one way of defusing the situation was making a set of guidelines, general enough to allow artistic freedom, but also dealing with the fears and concerns of some members. This was my atte mpt at a draft.]

My own personal mission statement is a bit metaphysical, and it has been suggested to me that we have a little more practical guiding principal, lower down than the moral high ground. So in the interests of practical suggestions, I have drafted, with [m ember]'s help, a set of draft guidelines for to guide you when you create for the APA.

This is NOT an exhaustive list.

This is NOT a final list. Changes will be made.

This is NOT a set of rules. These are guidelines. If you break them, do so with responsibility and care. You will not be punished for doing so.

This list requires your input. As members of the APA, it is necessary that you let me know what changes you personally feel are necessary. Only once I have a good idea of what is acceptable can I proceed with a final list.
  1. No kiddie porn. i.e. Do not publish materials that contravene Age of Consent laws, or suggest doing so.
  2. No snuff. Don't make art or stories that suggest killing someone during sex is a good thing. Vampires may be an exception.
  3. No graphic vi olence. Guts ripped out, decapitations, etc. I see no reason to single out sex for restriction. If sex can get censored, so can violence. Perhaps with better reason.
  4. No rape. Non-consensual sex is not fun to do or read about.
  5. Obviously consensual bondage okay. Other sorts of bondage would depend on how they are portrayed.
  6. Must be sensitive to other's feelings/sensibilities when dealing with perversions/fetishes, etc. If you must talk about someone who gets off on being flogged or has a thing for people's feet, please make it artistic and/or palatable to the other read ers. We have a good idea of each other's tastes by now.
  7. No blatantly illegal sexual activity (necrophelia, castration, etc.). Use your own judgement.
  8. No hate literature.

The Inevitable - Running Out of Steam


Well, that's it. Make of it what you will. As a result of this crap, I've had to put off the Yule story I wanted to write until next November's [1997] APA, thank you very much. I've had to read about things that are highly unpleasant and frankly scare me. I've spent entirely too much time fighting with legal papers, opinion pieces, commentary and debate regarding this and I'm not finished yet. I will keep you posted if it kills me. And why do I do it?

The APA is worth it.

I value everything that gets published in this little anarchy, right down to the pieces that started this fuss off in the first place. They are my prized possessions because I was there to see them. The heard and soul of more than 15 of the most creati ve souls I have known.

Even though we have fought, I thank you all for what brought us here.


And now, a few relevant quotes to fill up the space.
"...I am unable to conclude that the depiction of the human body or any of its parts, no matter how explicitly presented, or the visual presentation of masturbation, group sex or other heterosexual or homosexual activity, including incestuous relations, prima facie relate to sufficiently specific concerns which are pressing and substantial in a free and democratic society to justify restricting or limiting the basic freedom permitting them to be ex pressed."

- The Honourable Justice Wright, R. v. Butler

"Most citizens are implacably opposed to censorship in any form -- except censorship of whatever they personally happen to find offensive."

- Donham's First Law of Censorship

"...the chilling effect of being labelled a child pornographer will discourage many writers and artists from dealing with young p eople's sexuality, even their own."

- Jim Monk, re s.163.1

"...the protections in the Charter, for free speech apply only to the actions of government and its agents."

- Jeffrey Shallit, Vice-President, Electronic Frontier Canada

"[Canada Customs] are totally unaccountable bureaucrats who may freely interpret the law according to their own judgement and do not require a warrant. ... Customs officials neither take responsibility for loss or damage of detained material, which often goes missing, nor can they be charged with abuse of power."

- Censorship & the Arts in Canada: Canada Customs

"In the last three years, targets have included not just lesbian leather fiends, but virtually all media and a broad ra nge of content. Videos showing ejaculation in a person's face, magazine photos of anuses, a French novel, serious feminist writings, comic books, and paintings depicting abused children have all been outlawed or detained at one time or another."

- Zachary Margulis

"We believe that the erotic imagination should thrive in science fiction and fantasy; the literature of the wildest flights of imagination should n ot be devoid of this universal portion of human fantasy."

- Circlet Press Writer's Guidelines

"We live in a democracy that elected a government which then hired Customs officials who have a minimum grade 12 education and do not take pa ssages from books into proper context (they have said as much in court) and yet still have the power to detain our books."

- Kimberly Mistysyn, Manager, Glad Day Books

"Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of (a) an indictabl e offence and liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction."

- section 163.1(2) of the Criminal Code of Canada

"Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thoug ht, belief opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association."

- section 2 of the Canadian Charter of Rights and Freedoms


This page last updated January 30, 1998.

I welcome any comment or corrections anyone has to this page, and I will return any email sent to me on it, although it may take a little time to do so. I'm also still looking for a couple of links, particularly ones for the Hothead Paisan business, a go od link for The Boys of St. Vincent and the articles I quoted by Jim Monk and Phil Kerby. If anyone can send me those, I'd appreciate it.