Who is harmed by fantasy? A deliberative and Charter analysis of Canada's pornography law.

Emily Hansen

Abstract


This paper interrogates the breadth, necessity, and collateral effects of Canada’s child pornography law, as contained in the Criminal Code. The author argues that the inclusion of “fantasy” images in the definition of child pornography is over-inclusive, and considers that this may make the law illegitimate and discriminatory. She proposes that this over-inclusive definition arises from the conflation of a particular type of sexual desire with harm to children. The author draws loosely on deliberative democratic theory to structure her analysis of the law’s legitimacy, and uses Charter analysis to both critique the current law and suggest means of addressing the law’s potentially discriminatory character. The author does not support or promote sexual abuse or exploitation of children, nor does she suggest that child pornography should be wholly de-regulated or de-criminalized.

Note: This paper was completed in April 2015. Due to current employment restrictions on updating the research, the case law and legislation cited herein are current to that date only.


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