"THE TRUTH, WHOLE TRmAND NOTHMG BUT TKE TRm':

CENSORSHIE', SEXUALITY, AND THE POLITICS OF EXPERTISE

JANET ELIZABETH GWILLIAM

A thesis submiaed to the Department of Sociology

in confomiity with the requirements for

the degree of Master of Arts

Queen's University

Kingston, Ontario, Canada

Apd, 2001

copyright O Janet E. Gwilliam, 200 1 National Library Bibliothèque nationale I*m of Canada du Canada Acquisitions and Aquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. rue Wellington Ottawa ON KI A ON4 ûttawaON K1AON4 Canada Canada

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Abstract

Introduction

Little Sisier 's Book md Art Emporium v. Canada (1996): A Bnef History A Long Battle, An Even Longer Wait

Chapter l A Cartography of Expertiie: Literature Review

Law as a Site of Contestation Foucault's 'Politics of Truth' 'The Power of Law' Conclusion

Chapter 2 Legal In(quee@y: Conta-tuaIiùng Censorship in Canada

Challenging State-Sponsored Discrimination: Gay and Lesbian Civil Kights Charting Charter Litigation

Bordering (on) the Obscene: Pornography and the Law in Canada

Feminist Interventions into the Struggle over Pomography The Post-Butler Era Conclusion Chapter 3 Social Experts and Law: A Discourse Anulysk

Discourse Anaiysis: An OveMew

The Little Sister's Trial: A Methodological Framework

Constmcting 'Bias'

'Categoncally Speaking' : The Perils of Being Definitive

'Theory' versus ' Science' : The Privileging of Positivism

'Othering' Expertise: Pomography and Knowledge Disqualification

Conclusion

Chapter 4 To Tell the Whole Tmth und Nothing but the Truth: Censorslrip and the Politics of Expertise

Credibility and Expertise

Questioning the Unquestionable: Discourses of Desire vs. Hm

Distinguishing Gay and Lesbian Pomography: 'Unheard' Claims

'Queering' the Deployment of Social Experts

Conclusian

References

Cases Cited

Vira This thesis problematizes the use of 'social experts', particularly in the legal adjudication of gay and lesbian civil nghts. Through a discourse analysis of key expert witness testimony in the case of Little Sister S Bwk and Art Emporium et ai. v. Canada ( 1 996)' it addresses the construction of 'Truth' vis-à-vis pomography. This thesis seeks to explicate how 'expertise' is constructed and deployed and what socio-legal implications this presents for the use of counter-hegemonic claims in law. Further, how can Foucault's concepts of truth, power, knowledge, and discourse enable a theoretical understanding of the ways in which the expert testimony is discursively constructed? This research illustrates the privileging of the scientist-as-certified-knower with respect to the 'Truth' of pornography and 'homosexuality'. The themes generated from the discourse analysis al1 relate to establishing and maintaining expert credibility and demonstrate that constructions of expertise are often structured along both gender and sexuality hierarchies. Finally, 1 argue that the evidence of social experts that was incorporated into Justice Smith's decision was moa oflen used to authorize the category 'sexual orientation'. This category reinscribes a binq view of sexuality which maintains heterosexual privilege and restricts the jurisprudential space around 'homosexuality ' . Finally, t his research suggest s t hat the strategic use of social experts is more complicated than previously thought and as such, Canada's queers must also combat state censorship through non-legal avenues. Acknowledgments

First and foremost, my immense thanks go to my supervisor, Laureen Snider. Without Laureen's help, support, encouragement and incredible ability to edit and clacify material, this thesis would have never been written. I have no idea how 1 becarne worthy of a supe~sorof her caliber, but 1 will never forget what an excellent experience my MA has been mainly because of Laureen. She edited my first conference presentation and the many drafts of the first article 1 ever sent off for publication review. She wrote me letters of reference to get into Ph.D. programs, she has rad hundreds of pages of thesis drafks, and consistently asked for more. She has calmed my fears, watched me cry, and applauded my successes like a proud parent. 1 am so grateful, so lucky, and so blessed to know her as an academic, a mentor, and my niend. Leaving Kingston is hard for many reasons, not having Laureen as my supervisor anymore is right at the top of that list.

I am also so grateful for the help, generosity, and guidance of three phenomenal women at both Queen's and U.B.C.. Primarily, Fiona Kay has been an instrumental influence in my development as a writer and academic, and my success at the graduate level. I am very fortunate to have had her as a mentor in both my undergraduate and graduate prograrns. She has helped me dari@ my goals for a Ph.D. and go fier what is truly important in the next phase of my career. 1 am also very thankful for her incredible feedback and support in my Ph.D. and fellowship applications, particularly SSHRC, and her wondefil feedback on my thesis drafts. She is a wornan who gives much to her students and cares so deeply about their success. Fiona, you've left an indelible impression on me, thank you so much.

To Margaret Little and Becki Ross, 1 am very thankful for your constant support, encouragement, and enthusiasm. Had it not been for Becki Ross' influence, 1 doubt 1 would have ever pursued graduate work, let aione proposed a Ph.D. dissertation which is heavily infiuenced by her work. Margaret was one of the first people I met when 1 came to Queen's and she is truly one of the most incredible writers and thinkers 1 know (not to mention one of the nicest!). Not only did she offer me her time in those early days, she offered me her classroom as a space to introduce my work to other students. Margaret, you have no idea how grateful 1 will always be for that invitation, thank you!

1 certainly would not have been able to do my MA without the love and support of my family in Vancouver who are a constant reminder of where "home" still is. To rny Dad, Dave, Stacey, Katherine, Sonja, Virginia, and Denny, thank you for al1 your longdistance laughter, and for rerninding me that even in failure and success, 1 am weli loved. To my "cohort" of fnends, you are the best group of people 1 could possibly be lucky enough to go through this process with. For the road trips, Wednesday nights of laughter and memories, the hugs, and srniles, 1 am truly grateful. To Steve H.,I owe so much. He has supported and loved me at the lowest tirnes, kept me grounded, made me laugh, and reminded me that there is so much goodness in the world. Your hart is a true wonder my fiiend, how lucky 1 am.

To Lauren, 1 haven't yet found the nght words. These past two years have taught me a great deal about myself and my ability to succeed in academe. A very large part of this is because of you. When 1 doubt myself more than anyone else, you, like my Mom once did, make me believe that 1 can do it, that I am good enough, that 1 do work hard. Few people make me laugh harder than you and for that I am etemally grateful. In you, 1 found not only a great fiend, but a colleague, and the healthiest of competition. In twenty years, Dr. Cruikshank and I will still be talking nonsense and loving every minute. Although we won't live in the same city anymore, The Lauren and Janet Show will always be just that, and you'll always have a very special place in my heart.

To my Mom, whose memory always bnngs me courage and inspiration. She is the true writer in our family and raised me to believe that 1 could do anything 1 wanted and accomplish any goal 1 put my rnind too. Plus, I've thankfully inherited her sense of righteous indignation which works well for me in sociology. 1 know you are proud of me Mom.

Finally, my life has been forever altered by my fiiendship with Cynthia Benjamin. For whatever reason, fate, luck, or chance, Cynthia was the first person 1 met when 1 came to Queen's and has been a constant source of strength, support, encouragement, and love for me. Cynthia calmed my fears as a new graduate student, helped me focus, and made me believe in my ability to succeed. But more importantly, in Cynthia I've found a life- long fiend and confidante, someone who knows the dark places in my heart and helps me heal them. 1 am so blessed by her friendship, her strength, and her ability to pick me up when I'm at my lowest. 1 am constantly in awe of al1 that she accomplishes and her amazing sense of self We have so much in cornmon, and 1 have found a colleague and sou1 mate in her. Cyn, 1 am eternaily grateful and love you dearly for al1 that you have done for me over the last two years. Introduction

On the stand, almost SLW-fiveyean after Radclyffe Hall's classic Iesbian romance The Well of LoneZiness was bandand bumed in England and narned 'a moral pestilence' and a 'vile poison', 1 argued passionately for the historical and contemporary significance of lesbian-spccific images (sexual and non-sexual) in a culture that institutionalizes, privileges, and mandates compulsory and u>mpulsive heterosexuality. 1 battled to situate the seized issue of Bcrd Attihide on a spectrum of lesbian-produced images...... While naming these works in court, 1 rernember the ruefiil feeling that each of these works was at risk of falling under the censuring gaze of the OPP/Metro Toronto anti-pornography squad. 1 then sensed that none of thern was safe if they could be named and fingered by Iaw enforcers .

- Becki L. Ross, 1997

On 16 December 2000,I walked into Pearson International Airport to catch a flight to Vancouver and was irnmediately stmck by the very large headline gracing the cover of that morning's Globe at~dMail. The headline read, "Gay-book sellers win

Supreme Court Case" and for a split second 1 wondered to myself, who could they

possibly be talking about? It is no less ironic that 1 was on my way to Vancouver, my

hometown, where the next day 1 would walk past the entrance to Little Sister's Book and

Art Emporium, oniy to think of how proud 1 am to be a part of the queer' community in

Vancouver and how mistaken the Globe and Mail really was.

This thesis addresses the complex and ofien problematic deployment of what

Mariana Valverde (1 996) describes as 'expens of the social' within law, primarily those

feminist and queer academics working within a social constructionist paradigrn. What

alerted me to this topic initially was the dearth of information. The majority of research on expertise and law addresses the use of scientific knowledge in legal proceedings (see

Jasanoff, 1995 and Wynn, 1989). My prelirninary research however suggested that

'Science' is continually privileged within law and 1 thus sought a lens through which 1 could problematize this privilege (see Kesler-Harris, 1987; Ross, 1997; Valverde, 1996).

Further, the adjudication of 'obscenity' in Canada, still a site of contestation in the twenty- fint century, was perhaps the most promising substantive issue through which to address constructions of 'Tnith' and expertise in law. The case of Little Sister's Book and Art

Emporium presented me with a very exciting research opportunity. The case, heard in the

British Columbia Supreme Court in 1994, marked the end2 of a ten year legal battle between the only gay and lesbian bookstore based in Vancouver and Canada Custorns.

Appropnately nicknamed Little Sisters v. Big ~rothei,the events and media attention surrounding this case signaled a distinct challenge to the existing censorship policies and procedures that are currently in place in Canada. This case is of particular significance as it represents the contemporary vortex of socio-political debate around the existing obscenity legislation, the constitutionality of censorship, gay and lesbian civil rights, and the role of expert daims-makers vis-à-vis pornography.

The central problematic of this thesis asks, how is 'expertise' constructed and deployed and what socio-legal implications does this present for the use of counter-

hegemonic claims in law? Further, how can Foucault's concepts of truth, power,

knowledge, and discourse enable a theoretical understanding of the ways in which the

1 have chosen to use the term -queer" as to denote a greater diversity and political activism within what has been traditionally thought of as the *gay and lesbian community". ' I am refemng here only to provincial litigation, their lave to appeal to the Canadian Supreme COU^ tvas granteci in Septcmber. 1999. The federd hearings were heid on March 16.2000. This analysis, although cognizant of the Supreme Court hearings. is based upon the provincial case. expert testimony was discursively constructed in the Little Sister's case? My central claim is that throughout the Little Sister's triai any evidence which did not fa11 within a scientific

(laboratory-based) model, and those experts presenting it, were dismissed as 'biased', not credible, and ultimately of little use to the judiciary. As such, claims made distinguishing gay and lesbian pomography (particulariy SM)from heterosexual pornography, based on socio-cultural and historical analyses of heterosexism and the invisibility of queer desire, were marginalized as insignificant throughout the trial as well as in Justice Smith's final analysis. Further, I argue that this analysis illustrates the total privileging of the scientist- as-certified-knower vis-à-vis the 'Truth' of pomography. The evidence of social expens that was incorporated into Justice Smith's decision was most often used to authorize the category 'sexual orientation' which reinscribes a binary view of sexuality. The category

'sema1 orientation' (Le. homosexuality) is what Becki Ross describes as part of a culture which, "institutionalizes, privileges, and mandates compulsory and compulsive heterosexuality" ( 1997: 1 58).

The remainder of the introduction provides a bnef oveMew of the Little Sisrer 's case history and outlines the Customs' policies and procedures which instigated the civil suit launched against the federal govemment. Chapter 1 presents a literature review of contemporary feminist legal theory and discusses the work of Michel Foucault and his writing on truth, power, knowledge, and discourse. Chapter 2 provides the legal context within which this case was fought and discusses both gay and lesbian civil rights jurisprudence and the emergence of recent obscenity law. These two jurisprudential issues are the legal foundation of the Lirtle Sister 's case and have given rise to much of the

- Globe and Mail: October 8. 1994: C 1

3 recent controversy over Customs' policies and treatment of gay and lesbian bookstores across Canada. Chapter 3 presents the findings of the discourse analysis conducted on the transcnpts from Little Sister 's. The testimony of nine witnesses represents the substantive basis of this research and the findings are outlined thematically. The themes al1 relate to establishing and maintainhg expen credibility and demonstrate that constructions of

'expertise' are ofien structured dong both gender and sexudity hierarchies. Finally,

Chapter 4 details the analysis based on the findings presented in Chapter 3. This analysis centres around interrogating various 'common sense' assumptions which circulate in law about expertise, pornography, and sexuality.

Little Sister's Book and Art Emporium v. Canada (1 996): A Brief History

Since their opening in 1984, Little Sister's had been under constant scrutiny by

Customs border officiais and had 261 titles detained at the border in the period before the trial, many more than once.4 For a small, independent bookstore this process of constant detainment and censorship would amount to certain bankruptcy. It can cost an importer up to $20,000 to have a single shipment released by Customs (Fuller and Blackley, 1995:

5). Despite these obstacles and ~thers,~Little Sister's was able to garner support from the writer's association, PEN Canada, PEN International, PEN USA, the Canadian Book and

Periodical Council, the British Columbia Civil Liberties Association (BCCLA) and the

Canadian Civil Liberties Association (CCLA) in order to launch a Charter civil suit against the federal government (Fuller and Blackley, 1995: 33).

4 Judgment of Smith J., Little Sister 's Book and Art Emporium v. Canada @finisterof Justice) [ 19961 B.C. J. No. 71. ' The bookstore was bombed hvice in the period between 1984 and 1990 as weU. Little Sister's held local fund-raisers, brought in speakers like Jane Rule, Pierre

Berton, Pat Califia, Michael Ondaatje, and Timothy Findley in order to raise awareness about the issue of censorship and in 1995, Janine Fuller and Stuart Blackley published

Restricted Enq: Censorship on Trinl, which chronicles Little Sister's history and the

1994 trial. By this time their legal fees were in excess of S 100,000. Through interpersonal networks in the gay and lesbian communities in both Vancouver and

Toronto, and through strategic use of an increasingly sympathetic media, Little Sister's manager Janine Fuller and owners Jim Deva and Bnice Smyth raised the profile of this case higher than any other in Canadian history. Further, because of their substantial fundraising efforts, they were able to cal1 upon high-profile witnesses such as the well- known American anthropologist Carol Vance, Becki Ross, Gary Kinsman, Bart Testa, and Thomas Waugh to only name a few.

The process of solidifjhg a court date was difficult as the federal govemment used stalling tactics and diversionary measures to push back the trial date. The govemment's last move came oniy days before the case was scheduled for trial when Janine Fuller received a fax from the Canada Customs and Excise head office in Ottawa. The memo reported that the government had removed 'anal sex' from its list of prohibited grounds in

Memorandum D9-1 - 1. Presumably they believed that such a move would prompt Little

Sister's to drop its case as the vast majority of materials censored by Customs up to that point were targeted at gay men. This removal was not exactly revolutionary. In R. v.

Butler (1992),~the Supreme Court had ruled that sexually explicit matenal was not per se

'obscene' and thus depictions of anal sex would not be considered obscene either udess coupled with violence or children. Officials with the Ministry of Justice had made

Customs aware of this ruling and instructed them to change Memo Dg-1 - 1 in 1992. Thus,

Little Sister's proceeded with their case.

The policies and procedures which Little Sister's and al1 other gay and lesbian

bookstore across Canada had been fighting for so many years is stipulated within the

Customs Tmff and is known as Tariff Code 9956 of Schedule VII. ' Mernorandum Dg-1-

1 was specifically created by Canada Customs to interpret Tariff Code 9956 (a) regarding

the importation of 'obscene' materials into Canada. The following is the 'in brief

statement of Memo Dg-1 - 1 :

As a result of evolving jurisprudence, the departmental policy conceniing the administration of tariff code 9956 has been revised...... New paragraphs have ben added at section 9 (b), 9 (c) and 9 (d). Please see attached revised rnemorandum Dg- 1- I . The importation of materid that depicts or describes anal penetration or anal intercourse in and of itsclf is not a ground for prohibition. However, such material dlbe prohibited if it includes other areas prohibited in Memorandum Dg-1 - 1 such as violence, degradation, or dehwnanization. Descriptions or depictions of violent, degrading or dehumani~gsexual acts, whether or not they involve anal penetration wiil continue to be prohibited. The key factor to be taken into account is whether the nature of the sexud act described or depicteci is violent, degrading or dehumanizing (cited in Fuller and Blackley, 1995: 187).

Therefore, Memo Dg-1 - 1 was created to head-off the law suit brought against Customs by

Little Sister's. The most important and troublesome parts of Memo D9-i - 1 are the ones

directly comected to the Butler decision. Section 6 (a) of the Memo reads, "good which

depia or describe sexual acts that appear to degrade or dehumanire any of the

A. v. Butler (1992) was the first constitutional chaIlenge to the ezùsting obscenity law. See Chapter 2 for a more detailed andysis of this case. 7 Tariff Code 9956 reads, "Books, printed piper, drawings, prints, photographs or representations of any kind that: (a) are deemed to be obscene under subseaion 163 (8) of the Criminal Code; (b)constitute hate propaganda within the meaning of subsection 320 (8) of the Criminal Code; (c)are of a treasonable character within the meaning of section 46 of the Criminal Code or, (d) are of a seditious character within the meaning of sections 59 and 60 of the Criminal Code" (cited in Fuller and Blackley. 1995: 188). participants'' and goes on to descnbe the situations in which this may occur, al1 of which relate in whole or part to sadomasochistic sexuality (Ibid: 191).

The basis of Little Sister's statement of claim is directed at a central part of

Customs' operation known as the 'system of pnor restraint'. The Customs Tm~ffof

Schedule VI1 explicitly directs Customs officers at boarder points to open, seize. detain, destroy andor ship back any materials they judge are 'obscene' under Memo Dg-1 -1 .*

Therefore, it is the job of Customs officers to detenine whether or not a piece of work falls into any of the classifications listed in Memo Dg-1 - 1. If an importer such as Little

Sister's has an item detained at a point of entry they are sent a "K27 form" detailing the reasons for the detainment. A Customs officer's determination must fa11 within a certain set of proscribed categories including: a) Sex with violence b) Sex with degradation c)

Sexual assault d) Sex with bondage/extemal control e) Sex with juveniles f) Incest g)

Bestiality h) Necrophilia 1) Hate propagandahreason or sedition.

If a Company atternpted to impon materials deemed 'obscene' in the past, Customs will flag it in their computerized technical reference system (TRS), a large database containing information on any and al1 Canadian importers. If the TRS database mns a search for a title that has already been detained or banned, the book will be detained again.

The testimony of top Customs' officials such as John Shearer and Linda Murphy indicated that importers known to receive 'problematic' (i.e. potentially obscene) materials were subjected to heightened surveillance. John Shearer, Direaor of the Tariff Prograrns

Division, testified that, "It is the normal practice of our law enforcement approach, if there is an indication of an importer who has a history of. ...(offending) some provision of the law, indeed, those kinds of lookouts are put out at the discretion of the people involved in putting them in place ... that was a local discretionary lookout" (cited in Fuller and

Blackley, 1995: 135). Shearer's testimony is in reference to the fact that Customs officials in Vancouver had been specifically instructed to make Little Sister's what is known as a

'lookout'. Furthemore, those who ship to Little Sister's and other queer bookstores such as inland Press are also routinely flagged in the TRS as 'hot indicators', meaning that shipments made From these companies are more likely to be scmtinized (lbid: 13 5).

The system of prior restraint has no elements of due process, and works on a

'reverse onus' basis, meaning that the importer must prove that the matenai is in fact not

'obscene'. Customs has the legal power to detain and seize any matenal it deems unlawful and it is up to the importer to appeal these designations, and petition Customs for what is known as a 'section 58 decision' or a redetermination. If one were to follow the process to the very end, the materials in question would end up in the hands of one of the senior tariffs officials in Ottawa. Not only is this a lengthy and confusing bureaucratie ordeal, it is very expensive for the importer as well. The materials detained are goods that cannot be sold and if they are released, at the expense of the importer, they are oflen damaged or already out-of-date (Fuller and Blackley, 1995). Thus, it is not the responsibility of the

Customs officers or Crown counsel, as in a criminal obscenity trial, to prove that the matenal is in fact obscene, following proper search and seizure laws and evidentiary rules.

Importen have no nght to a hearing or open redetermination process. In fact, the

Customs official who made the initiai determination may be assigned to decide an appeal on the same material (Fuller and Blackley, 1995). Counsel for Little Sister's, Joseph

It is estirnateci that there are 250 "points of entf and over 4.000 unifomed lnspecton who act as the Arvay, argued that the problems inherent in these policies were systernic, originating in the

legislation itself, not simply due to badly trained Customs officen.

A Long Battle, An Even Longer Wait

Finally, after ten years of waiting for a trial and two years of waiting for a decision,

Justice Smith of the B.C. Supreme Court rendered his verdict in 1996. Justice Smith

attempted to reach a compromise that would do justice to Little Sister's plight without

striking down the sections of the Ciistoms Tarrfl that Arvay had argued against. Justice

Smith found that Little Sister's had indeed suffered undue discrimination and heightened

targeting at the hands of Canada Customs, but that this targeting was due to problems in

the legislation itself, He further found no violation of S. 15 (1) of the Charter, and ruled

that. although the Customs legislation did violate Little Sister's S. 2(b) nghts, that it was

justifiable under S. 1 of the Cher. Finally. he ordered the federal government to pay

Little Sister's legal costs and directed Customs to intemally re-organize their policies and

procedures to more adequately prepare Customs officers to make 'obscenity'

determinations. To back this up he issued an injunction, "restraining Customs officiais

from subjecting Little Sister's to a policy of heightened scrutiny at the Vancouver Mail

Centre 'until the federal Crown satisfies this Court that the discretion of customs officers

in that office is guided by appropriate standards"' (Cossman & Ryder. 1996: 105).

Although thankful to have their costs covered and their struggle vindicated by a

mernber of the Canadian judiciary, the Little Sister's tearn was unsatisfied with this

decision and therefore decided to appeal to the Supreme Court of Canada in 1999.

"eyes and earsn of the Customs bureaucracyn (Fuller and Blackley. 1995, p. 130). Findly, on 16 March 2000, the Little Sister's case was heard in the Supreme Court. Little

Sister's was supported by intervenor facturns fiom the Women's Legal Education and

Action Fund (LEM), PEN Canada, and Equality for Gays and Lesbians Everywhere

(EGALE). Their counsel Joe Arvay presented many of the same arguments as in 1994 and essentially asked the Supreme Court Justices not to 'tmst' Canada Customs to fix their own problems, as the detentions and targeting of Little Sister's had continued relatively unabated since Justice Smith's ruling in 1996. The Crown's arguments were alrnost entirely limited to refuting the necessity for striking dom the impugned legislation, stipulating that dthough Little Sister's S. 2(b) rights were violated, the existing system was the least restrictive means of regulating the importation of 'obscenity.'

Their decision was rendered on 15 December, 2000 and Justice Binnie, writing for the major@ States, "the interpretation given to S. 163 (8) of the Criminal Code in Butler does not discriminate against the gay and lesbian comrnunity. The national cornmunity standard of tolerance relates to harm, not taste, and is restrkted to condua which society formally recognizes as incompatible with its proper fun~tionin~".~Little Sister's appeal was held in part as the majonty mled that the 'reverse onus' of the system of pnor restraint could not be constitutionally justified. Thus, Canada Customs is now required to prove that the materials they detain are in fact 'obscene' under S. 163 (8) of the Criminal

Code and Butler and they must now do so within thirty days or else release the materials to the importer. As this ruling is so recent it remains to be seen what efect it will actually have on the ability of gay and Iesbian bookstores across Canada to irnport material with less scrutiny. In the next chapter, I address the broader theoretical issues vis-&vis law as

- Little Sisters Baok and Art Emporium v. Canada (Minister of Justice) 2000 SCC 69. a 'gendering practice', Foucault's concepts of tmth, power, knowledge, and discourse, and the construction of non-legal foms of 'expertise'. A Cartography of Expertise: Literature Review

Truth is a thing of this world: it is produced oniy by virtue of the muItip1e fom of constraint. And it induces regular effects of power. Each society has its regime of truth, its 'general politics' of tmth: that is, the types of discounes which it accepts and rnakes function as true; the mechanisrns and instances which enable one to disbnguish true and fâise statements, the means by which each is sanctioned; the techniques and procedures accorded value in the acquisition of tmth; the status of those who are charged with sayùig what counts as tnie.

- Michel Foucault, 1980

Introduction

The role of the natural sciences and 'psy' disciplines in law" has a long history in

Canada and the United States (Jasanoff, 1995; Smart, 1989; Wynne, 1989). Particularly in the case of gays and lesbians, medicine and psychiatry have figured prominently in criminal cases of 'sodomy', 'gross indecency', and 'offenses compting the mords' since the tum of the century. In Rights ofparsage: Stnrggles for Lesbian und Gay Legal

Equalify,Didi Hexman (1994) writes,

Behind this bnef history of lesbian and gay rights law refonn lies the important role play4 by scimtific evidence in shaping legal constructions of homose'niality - first, as a danger to society, and then as an unfortunate affliction..... The 'psy' professions, while sympathetic to the plight of individual lesbians and gay men, none the las snidied homosemality as a 'condition'. Hornosexuality's opposite- heterosewality - remained the closeted. unspoken nom (p. 29).

'O 1 use the term "law" singulariy throughout as a method of shorthand. I do not mean to mfy law or make it appear as though the law, in legislation and practice, is not multifaceted and with multiple eff' depending on which type of Iaw (provincial, federal, civil. criminal etc.) is king challenged. Herman, drawing on the work of Michel Foucault, not only points us towards the ways in which sexual "deviants" were classified and thus discursively constructed, but aiso towards the emergence of psychiatry as a professionalized discipline, with its own recognized body of knowledge, which was increasingly called upon in the early twentieth century within a legal context to certiQ the 'Tmth' of the homosexual's aberration and thus, cnminaiity. The 'homosexuai,' now defined, could be regulated, surveyed, and persecuted as deviant by the very nature of hislher existence." The polarization OP homosemal and heterosexual thus becarne entrenched as foundational within the Western medico-scientific discourse of sexuality which continues to heavily influence the legal regulation of gays and lesbians in Canada.

In the case of constmcting legal 'expertise', this relationship between the psychiatnc pathologization of homosexudity and criminal prosecutions was a reciprocal one. Historian Steven Maynard (1998) argues that the emerging importance of the psychiatnc 'case history,' and its increasing complexity, was tied to the professionalization of psychiatry. This professionalization also found medical doctors and psychiatnsts testifjnng in the early part of this century predorninantly in cases against gay men.

Maynard (1 998) writes, "Indeed, 1 would suggest that links established among crirninality,

insanity, and homosemality, in the early twentieth century Ontario cases, doctors' case

histories, and psychiatnc discourse laid some of the groundwork for the intensification of

medico-legai regulation during and afler the Second World War" (p. 67).

" Historicai researth by Maynard (1998), Ross (1995), and Adams (1997) points to a much greater concentration on the regdation of gay male se.dity than that of lesbians. In fact, lesbianism was seen as mostiy invisible; women who lived together were labeled as 'old maids', 'spinsters', or 'companions'. The denial of the possibility of female homosedity is part of an overall trend of erasing women's sxdity in general outside of the strictures of procreative. marital heterose?niality. Since activism to de-medidie hornosexuaiity as a mental illness began in the

1960s in Canada and elsewhere,12 psychiatry and medicine have increasingly lost their hold on the discourses of sexual aberratioqi3 particulariy within a legal context. The gay and lesbian civil rights movements in North Amenca had a great deal to do with this discursive shift, as did the more generai liberalization of public opinion vis-à-vis gays and lesbians, abortion, and premarital sexual relations, which is reflected to a great extent in the

Canadian jurispnidence. However, there are still many issues up for debate where

Canada's queers are concemed, from family rights, to pension benefits, to legalized marnages, and censorship. Who then is authorized to speak the 'tmth' of gays and lesbians within a legal context? With the explosion of scholarly work in the social construction of sexudity, particularly in gay and lesbian studies, women's studies, sociology, literature, history, and anthropology, what effect do these discourses have on the judiciary's legal reasoning on gay and lesbian issues in Canada?

The purpose of this chapter therefore is to address several interrelated questions.

How does the judiciary establish law's 'tnith' in the face of complex and ofien contradictory evidence before it? Who and what constitutes an 'expert' in the eyes of the judiciary and what is the legal effect of this expertise? To what extent does the law 'heu'

" Although agitation for the demedicalization of homose.xudity kgan in the 1960s by gay and lesbian activists, homosexuaiity was not removed hmthe from the Diagnostic and Statistical Manual of Mental Disorders, published by the Amencan Pqchiatric Association, until 1974 when a referendum was heId. The DSM II, published in 1980, containeci a category of mental pathology known as "egodystonic homose.dity", meaning those who were mubled by their homose.nial impulses. Although this category remained until the DSM III -R (3rd Edition) was published in 1987, it was widely held that homosexudity had been entirely demedicalized as of 1974 (many thanks to Sheily Reuter for cl-ng this point). i3 It is important to note that despite the legal and e,utralegal gains made gay and lesbian activists, many of Canada's queers, including qm~~rsof colour and transgendered people. continue to be wholly disenfranchised and exist on the margins of Canada's "nationaIn identity (see Ross, 1998). Thus new boundaries have been redrawn around "good" gays and tesbians, many of whom appro.ximate a counter-hegemonic claims, l4 particularly vis-à-vis purported obscenity in Canada? This chapter is a review of the literatures addressing the deployment of both legal and non-legal knowledge and the intercomection between constructions of 'expertise' and 'tnith'. The major claim of this chapter is that there are ways in which law is able to valorize certain knowledge claims and certain hwers while sirnultaneously disqualifjing others. The chapter is divided thematically in order to address each of these mechanisms in tum and provide a theoretical framework for understand the often problematic deployrnent of

'social expertise'.

Law os a Site of Contestation

In their introduction to Law us a Gendering Practice, Dorothy Chunn and Dany

Lacombe (2000: 2) argue that much feminist legal theoriùng has become fiarned as existing within two competing and opposed 'visions', one which views law as a hegemonic instrument of patriarchal, capitalist classes and one, roughly deemed ' postmodem', which views law as a discursive system which can and need be deconstructed. Beginning in the

1%Os, socialist feminists such as Carol Smart (1%9), Shelley Gavigan (1 993)' Judy Fudge

(1987), and Laureen Snider (1985) challenged the argument made by many feminists that law can and should be used unproblematically as a tool of social transformation.

However, they also sought to complicate analyses which viewed the state as no more than a neutral arbiter of justice as many liberal feminists argued and challenged radical feminist perspectives which saw law solely as a 'male' weapon wielded against women (Dworkin, heterosemai and middleclass ideai of "family" Me, and those "bad queers" who cannot or will not fit into this model. 1980, 1992; MacKimon, 1987). As Chunn and Lacombe (2000) write, "an appreciation of the complex and subtle role law sometimes has played in the historical struggles for women's liberation made socialist (and other) feminists wary of reifying law" (p. 9).

Furthemore, empincai studies developed within feminist socio-legai studies suggest that

the tightening of criminal law, the reformation of rape law being one exarnple, often

widens the net of social control around the most disenfianchised groups within society

i (Smart, 1989;8 aSnider, 1985). As Carol Smart (1989) writes,

Feminist scholarship has becorne trapped into debates about the 'usefiilness' of law to the ernancipation of women, or the relative merits of the 'equality' venus 'difference' as strategies, or the extent to which law reflects the inter- of patriarchy, or simply men. These are necessary debates but they have the overwhelming disadvantage of ceduig to law the very power that law may then deploy against women's claims (p. 5).

This cal1 to 'decentre' law signaled a distinct shifi in much of recent feminist

socio-legal literature (Smart, 1989). Over the last twenty years, many legal theorists have

become heavily infiuenced by poststructuralist writers such as Jacques Demda (1967) and

Michel FoucauIt (1978, 1979, 1980). This 'postmodem tum' has led many feminist

sociologists of law away from what they see as both grand theoretical narratives and an

over-emphasis on social structures such as capitalism and patriarchy (Smart, 1989. 1995;

Eisenstein., 1988; Lacombe, 1994). Furthemore,

despite significant gains made by women and racial and semial rninorities vis-à-vis law

reform, these reforms have not substantially redistributed economic or politicai power in

Canada (Fudge,forfhcoming). However, incorporation of feminist ide& or prernises in

the redm of sexual assault law reform (Snider, 1985), pomography and censorship

l4 Counter-hegemonic here refers to those claims which do not have innitutional or systemic support. both

16 (Lacombe, 1994; Busby, 1993), and domestic violence poiicies (Johnson, 1993), suggests that law is indeed a site of contestation, a aruggle over meaning. It does possess the ability to 'hear' counter-hegemonic voices to some extent e chu^ & Lacombe, 2000: 11).

Thus, there is a need to resia the reification of 'the law' as one monolithic entity which conaructs al1 subjects sirnilady and works in the same ways at al1 levels. As Boyd (1994),

Fudge (1989), Snider (1 989, 1994), Shaver (1994), Smart (1 999, and Cossman et ai.

(1 997) argue, feminist gains at the level of legislation may not, and often do not, translate into a socially progressive implementation of those laws. Thus, anaiytically it is imperative to distinguish between which type of law is being contested (criminal versus civil), what interests are at stake, and who has the power to define the issues being debated. Cossman and Bell (1997) write, "we are of the view that law and legal discourse is a far more complex and contradictory site of engagement...... Law is not an instrument, but a site of contradiction, where new discourses are superirnposed on old, and where legal victories are rarely unequivocal" (p. 29). Therefore, we can view law as having multiple and uneven effects (Smm, 1995).

However, authors sucb as Currie (1 99 1) and Boyd (1994) argue that in much postmodem legal theorking, the role of the state as a centralized site of power is mistakenly dom-played. Law, as a privileged discourse of the state, is not simply open for varying forces to contest on an equai basis. In great part, government legislators and the judiciary, as one branch of a given nation-state, create and reform laws, and these laws

are always comected to broader hegemonic socio-econornic and political influences.

Cume (1991) argues that deconstruction as a mode of critique is imporiant for redirecting

ideologically or materially (see also Snider, 22000). Our attention to those discourses which are unproblematically viewed as 'Tmth'.

However, the epistemological tenets of postmodeniism make it particularly difficult to reconstruct a theoretical position fiom which to understand women's oppression. As

Cume (1991) writes,

But law, also represents the centraiization of puwer. To deantre law in our analyses is one rnatter; to decentre it in real life is another. While Our academic practice may challenge discursive aspects of law, our politid practice must transfomi the nondiscursive materiai elements of legal process... ..in the final analysis, while conîributing to our understanding of the operation of law as a discursive practice with real effects, 1 argue that deconstruction does not supplant the generalized theones of wornen's oppression (pp. 76-77).

Similarly, Boyd (1994) argues that we must not jettison an analysis of the state's

role in fiaming the tems of debate around other social institutions. Much recent

postmodem theorking tends to concentrate on locaiized sites of stmggie, thus displacing

the state in the analysis. She aiso argues that we mua not polarize socialist feminist and

postmodern feminist theo~ng;when analyzing the state's role in constituting 'the

family', for exampie, fleshing out the interconnections and strengths of both approaches is

vital. Boyd (1994) &tes,

An analysis ailowing examination of both the processes by which the state is constituted, partly through nniggles in its various arenas (including law) as well as through the underlying processa of capitalism that are gendered and racialmi, and the ways in which the state in tum (re)constitutes demands and interests through its responses in those arenas, is preferabIe to the pluralist mode1 that many posûnodern accounts resort to (p. 59).

Thus, while retaining an explicit analysis of the state's role, we are able to more precisely

determine how certain legal and extralegal discourses are mediated and often determined

by the interests of capitalist patriarchy. This is not to reify either 'the state' or 'the law',

however. An analysis of the state's functioning informed by Foucault's work has proven

instructive for showing how power is dispersed and often localized. Boyd's (1994) argument is that solely focusing on the local without comecting these struggles to broader social stnictures, such as the role of various state actors, only serves to explicate a small part of the problem.

This brief overview of the theoretical tensions within the ferninist legal literature points us in the more productive direction of viewing the relationship between law and social structures as a dialectical one. Chum and Lacombe (2000) posit law as a gendering practice, meaning that it both constrains and enables social action in ways which constituted 'woman' and 'womanhood' (p. 16) . Further, this view of the law-society relationship can encompass the construction of subjects dong multiple axes of race, gender, age, ciass, and sexuality as well as co~ectedto, and shaped by, larger socio- structural forces. Chum and Lacombe (2000) write,

Our view 1s based on the assumption that social and legal agents are constituted by a muitiplicity of power relations (both discursive and nondiscursive) that they concomitantiy help to reproduce through th«r activitia and practices. in other words, individuals' subjecûvity and activity are constituted tfirough cornplex and contradictory systems of representations such as gender, race, age, sexuality etc., which they themselves are constantly reproducing (p. 13).

The postmodem decentering of the state and the concept of 'law as a gendering practice' cm both be traced, aibeit though different routes, to the irnrnensely infiuential work of Michel Foucault. As such, the following section detds the interconnections between Foucault's use of truth, power, knowledge, and discourse in order to theoreticaily situate the role of 'social experts' in law. Aithough Foucault did not

'' Fmm NicheIe Barrett (1991). specifically address the legal system, his theoretical discussions of power are particularly useful when interrogating the deployment of counter-hegemonic knowledge claims vis-à- vis purported 'obscenity' and the privileging of the scientist-as-certified knower.

Drawing on the work of Foucault also allows for an interrogation of the modemist

project; Foucault's work has been particularly influentid in critiquing the rationalist

Enlightenment discourses of reason, science, and progress in order to write cntical

'histories of the present' on madness, sexuality, and the birth of the modem prison for

example.

A delineation of the mechanisms of power is arguably one of the central themes of

Foucault's entire oeuvre. Foucault (1978, 1980) argues that we must understand the

machinations of power as productive, not simply repressive, particularly vis-à-vis sex and

sexuality. Indeed, power produces knowledges, subjects, bodies, and identities and it

cannot accomplish this solely through repression or constraint. In The History of

Sexuolity: Volume 1 for exarnple, Foucault (1978) outlines the discursive production of a

new genesis of personae: the homosexual. This production began in the late 19th century

with the medico-moral apparati launching into full gear vis-à-vis deviant sexualities. In

fact, as Foucault discusses at length in his work, there was a Mrtual explosion of

discourses about sex; this 'incitement to discourse' marked a very different way of

thinking about the co~ectionsbetween the sex act performed, the person performing the

act, and the labeling of hisher sexuality. Foucault (1978) argues that the medico-scientific

practice of naming, categorizing, and subordinating deviant sexualities, in its articulation,

created a new type of species: the homosexual. Further he outiines the construction of the

discourses of homosexudity through the scienciu sexuufis wherein the normalinng practices of the medical establishment, including psychoanaiysis and the early sexologists, led to the pathologization of non-heterosexual expressions of sexuality.

A great deal of his theorking on power is in direct reaction to Marxist analyses which view power as a thing possessed by certain classes and centralized within state appararti (i.e., law). Not only do formulations such as these alrnost totally preclude individual agency, Foucault ( 1978, 1980) argued that such over-simplification could not account for the ventable explosion of discourses of sex, and concomitantly, various sexual identities. Further, and arguably of much greater political importance, Foucault viewed the dispenal of power as intimately comected to resistance. Foucault (1978) &tes,

"where there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power. Should it be said that one is always 'inside' power, there is no 'escaping' it, there is no absolute outside where it is concerned (p. 95). This is also comected to Foucault's critique of the Mamian concept of ideology. Foucault argued that ideology, in its insistence on proletarian 'consciousness raising', is posited as existing outside the field of power. Michele Barrett (1 99 1) writes,

Perhaps we could surnmarize his position by connecting both his critique of ideology and his arguments about discourse and power to his notion of tnith. For part of his emphasis on power, was precisely, on what he calleci 'the politics of truth'. It was essential for and integral to Foucault's connitution of 'the politics of tnith' as an object ofstudy that he disrnantle Marxism's obsessive interest in ideology or 'the economics of untnith' (emphasis in original, p. 139).

Thus with resistance, Foucault argued, another set of power relations cornes into effect.

What is of critical importance to this analysis however, and as both Smart (1989) and

Eisenstein (1988) argue, is that power is cùcumscribed through legai discourse which sets the terms and ümits of that which can be seenlheard/knownlthought. Therefore, expert resistance to legal analyses which tend to essentiaiize both heterosexuality and homosexuaiity, or those which challenge stereotypicai depictions of women, are oRen proscnbed as outside the discourses of 'truth', 'reason' and 'credibility', discourses which are al1 connected to institutionalized forrns of power.

It is through the concept of discourse then that we can connect Foucault's (1978) discussions ofpower. truth, and knowIedge to one another, and by extension, law.

Discourse analysis is thus an interrogation of not only what is said, but aiso what is not pemiitted to be said. Discourse is understood from a Foucauldian perspective not as a thing, such as a text, but as, "practices that systematically form the objects of which they speak" (Foucault, 1972: 49). Therefore, a discourse produces effects which construct and regulate the boundaries in which we are able to conceive of certain things such as femininity within a social context. Discourse is also about exclusion, which connects to the circulation of discourses to the production of 'tnith' in Foucault's work.

Foucault's theorizing on the circulation of discourse often centres around the ways in which certain elements within a discourse can be 'excluded'. Mills (1997) discusses three prominent 'exclusions' identified by Foucault (198 1) in order to explain the ways in

which certain knowledges becorne legitimated through institutional means. Drawing on

Foucault's (198 1) famous lecture, "The Order of Discourse", Mills (1997) argues that the

first way in which discourses may be excluded is through 'prohibition' or 'taboo', such as

the taboos around sex or death (p. 64). Thus Foucault does not argue that these subjects

were not discussed at dl, as his work in me History of Semruliily, Vofume 1, ülustrates.

He is claiming that discourses of death and sex were institutionally proscnbed only in

certain ways. For example, sex became less the strict purview of the church and increasingly feu within the domain of medicine, science, and psychiatry as the men within these professions gained status in Westem societies in the 18th and 19th centuries.16

Secondly, Foucault (1 98 1) argues that certain discourses can be excluded if they centre around those who are deemed 'insane' and therefore not rational (Mills, 1997: 65).

This is intimately comected to the increasing institutionalized power of doaors and psychiatrists. 'Mad people' cannot possibly bw what they are talking about, what treatment they want or deserve, or what their place in society ought to be. These decisions becarne Ieft to those who 'cared' for the 'mad' or 'mentally ill'. Further, we have seen in the 20th century increasing feelings of both fear and pity towards those who deviate from 'mental normality'. The third and final exclusion mapped out by Foucault

(198 1) centres around those discourses constructed as 'true' and those as 'false'. For the purpose of understanding the circulation of expertise vis-à-vis the legal regulation of pomography, this is arguably the most important of the 'exclusions'. Mills (1997) writes,

"Foucault demonstrates that this will to tmth is supported by a range of institutions: educational establishments, publishing houses, legal institutions, libraries, and so on, to the point that it is alrnost impossible to question this obsession with the tmth and the factual"

(p. 66). With the introduction of 'news' production in the 18th century, the division between fact and fiction grew ever greater. There was a growing concem with the factualness of what was reportai, was it an accurate, up-to-date, reliable facsimile of the extemal world? In the Westem industrialized nations, libel laws and stamp duties were

------. . - - l6 I have limited this to men only as the few women adrnitted into these professions had Little power or influence. Furthemore, much of the dixourses of sex circulating at this time were about, not by, women. children, and homosexuais. The reproductive functions of a woman, as medicine began to know more about the human anatotnv, dominated the discussions of what women were and what place they bad in society (i.e., wife mother)(see Mitchinson, 199 1). passed on certain publications and therefore printing 'fiction' under the guise of 'fact' became a crime (Ibid: 67).

This is perhaps one of the greatest tenets underlying modemism: the truth exists in the extemal world and is waiting to be empirically verified by scientists and academics alike; we cm know the truth of our extemal world through the scientific method or positivism; science is progress and knowledge is produced in a linear fashion; and, texts can replicate our extemai reality. As Mills (1997) argues, it has been through the work of

Foucault ( 1978, 1980), Derrida ( 1967), Lacan ( 1968), and other poststmcturaiist writers, and through the rnovement of postrnodemism which began in the field of architecture, that ail of these tenets of modeniism and the Enlightenrnent project have been challenged. As

Foucault (198 1) writes "thus al1 that appears to our eyes is a truth conceived of as a nchness, a fecundity, a gentle and insidiously universal force, and in contrast, we are unaware of the will to tmth, that prodigious machinery designed to exclude" (p. 56).

Thus, in order to produce 'Tnith', certain discourses and certain knowers must be excluded frorn the process of institutionalized knowledge production.

Language is embedded in discourse and as such, we begin to see the ways in which

knowledge, or as Foucault (1981) argued, 'a society's general politics of truth', is

comected to power relations. Discursive structures can be seen in discussions of

semdity, madness and reason, and punishment, al1 of which formed Foucault's substantive

work on truth, power, and knowledge. Foucault's work is then less concemed with which

discourses are true but, more importantly, those knowledges and power relations that

operate to certify various discourses as 'Truth'. Foucault's work can be characterized as

an interrogation of the production of 'the rd,and in fad, his writing has been heavily criticized by historians for what many see as a denial of historical events (Mills, 1997: 50).

As Mills (1 997) argues, the debate over the reddiscursive or realisd~dealismdichotomy is not useful nor does it accurately reflect Foucault's work (p. 49-5 1). Foucault did not

'deny the existence of the real'; his work points us towards a more critical understanding of how meaning, through discourse, is attached to material objects or events. Laclau and

Mouffe (1985) write,

An earthquake or the Wling of a brick is an event that certainly exists, in the sense that it occurs here and now, independently of my will. But whether their specificity as objects is constructeci in terms of 'naturd phenomena' or the 'expressions of the wrath of God', depends upon the structuring of a discursive field. What is denied is not that such objects e?cist externaliy to thought, but the rather different assertion that they could constitute themselves as objects outside any discursive condition of emergence (p. 108).

Thus it is important to explicate the elements of discursive formations in order to understand the ways in which discourses circulate. Mills (1997) identifies three 'limits of discourses' which effectively proscribe the parameters within which we are able to know events (p. 5 1). The first 'lirnit' or 'discursive constraint' Mills (1997) identifies in

Foucault' s work is that of a limiting of the field of vision. Thus, in order for one

discourse of sexuality to circulate effectively (as hegemonic), other options or possibilities

must be considered unwonhy, or simply not considered at ail. Secondly, for an object or

event to be constnicted in a particular way the speaker or knower calling the event into

existence must have the nght to do so (Ibid: 5 1). A speaker rnust have 'authority' or

'legitimacy' in order for their version of reality to be accepted as 'Truth'. Finally, future

statements, relating to the already established discourse, must fall within a certain nom-

governed boundary in order to be accepted. Miils (1997) writes, "each statement lads to other and, in a sense, it has to have embedded within it the parameters of the possible ways in which future statements can be made" (p. 5 1).

The roles of the natural sciences and medicine, as discourses which gained pre- erninence in the 18th and 19th centuries, are identified in Foucault's work as centrai to the entire epistemic hierarchy in the Western world and the ways in which this hierarchy produces 'Tmth'. The suppression of rnidwives through the witchhunts in medieval

Europe is an excellent example of the ways in which rnisogynist discourses, rooted in the

purported biological inferiority of women, worked to not only discredit the heaiing

knowledge of women, but also to transform this knowledge into the 'evil' of witchcraft.

These discourses circulated through the Church and the growing male medical profession.

Therefore, Foucault argues that 'Truth' is not some transcendental entity which exists

'out there' for us to discover as the modernist discourses of science would have us

believe, it is a produa of various knowledges and power relations which are constitutive

of discourse. As Sara Mills (1997) writes, "thus, discourses do not exist in a vacuum but

are in constant conflict with other discourses and other social practices which inform thern

over questions of tmth and authonty" (p. 19).

This Foucauldian view of the truth/discourse/lcnowledge nexus suggests that the

language of law, as just another discourse arnong many, is open to colonization by other

discourses such as the 'psy disciplines'," sociology, or medicine''. In "The Order of

Discourse", Foucault (198 1) makes the arguments that

" Srnan (1989) includes psychiatry, p-chology, and phychoanalysis within this tem. l8 What is mon apparent hmthe literature on expertise is the mode1 upon which an 'expert' is nody constructeci is that of the natural sciences . In fact, as Bnan Wynne (1989) notes. the classic definition of an 'expert witness' dates back to 1782 Britain: "the opinion of scientifîc men upon proven facts may be given by men of science within their own science. Nearly two centuries later, this was still endorseci by 1 am also thdcing of the way in cvhich a body as prescriptive as the pend system sought its bases or its justification, at first of course in a theory ofjustice, then, since the nineteenth century, in a sociological, psychological, medical, and psychiatrie knowledge: it is as ifeven the word of law could no longer be authorized, in our society, except by a discourse of tmth (p. 5 5, rny emphasis).

With the incorporation of non-legal discourses however, new mechanisms emerge to support law's own 'will to tmth'. It seems as though the 'power of law', as referred to by

Smart (1989) has not been significantly challenged and that law is able to extend its pronouncements on social issues through the claims of various disciplines such as psychology, psychiatry, medicine, and the natural sciences. Joan Brockrnan ( 1992) writes,

"it would be unfortunate if the 'objectivity' of science was used to rescue the laws from its crisis of legitimacy, without some fundamental recognition of the nature of law and social science" (p. 233).

'The Pmver of Law'

In Feminism und the Power ofh,Smart (1 989) argues that it is law's presentation as a unified and coherent body of knowledge which enables it to effectively resist and disqualify altemate versions of social reality (p. 4). Further, she interrogates law as a discursive terrain, one which may incorporate feminist tmth claims, but one which, she argues, always does so on its own legalistic terms. Smart (1989) writes,

It is a dilemma that dl radical political movernents h,namely the problem of challenging a form of power \vithout accepting its own terms of reference and hence losing the batile before it has begun. Put sMply, in accepting law's ternis in order to challenge law, ferninimi always condes too much (p. 5). the Queen's Bench as a wefl-laid foundation" (p. 29). Thus the role of the 'e.xpert' is to test@ upon proven scientifrc facîs, within the confines of one's own scientific community. Indeed, as both Jasanoff (1995) and Wyme (1989) note, there has been little advancement in the thinking of the judiciary in the United States, Canada, and Britain on the role of scientific e.xperts since Lord Mansfield's declaration in the aforementioned case of 1782. Perhaps this view of 'law's power' is overly deterministic however, heeding Smart's

(1989) waniing allows feminists a more cntical and self-reflexive view of our 'reson to law' which has become increasingly prevalent as the 'legalization of politics' is further

entrenched in the Canadian political landscape (Mandel, 1989)."

While Smart's (1989) work is heavily influenced by that of Michel Foucault, she

challenges Foucault's argument that we must move away fiom 'juridical' analyses which

view power as possessed by a sovereign state and manifested in law. Similarly Zillah

Eisenstein (1988) argues, "1 criticize Foucault not for decentenng the state but for not

reconnecting the dispersions he illuminates to the hierarchical system(s) of power(s)

represented through the discourses of the state" (p. 19). Foucault did not explicitly

theorize about the law as an institution and insisted on an analytic differentiation between

juridical power and what he saw as the rise of a 'disciplinaxy society'. He viewed

privileging law as succumbing to a negative conception of power as embodied in the

"juridico-discursive" (Hunt & Wickharn, 1994: 40). Indeed, Foucault (1978) argues, "in

political thought and analysis we still have not cut off the head of the king" (p. 89). Carol

l9 In his book Charter of Rights and the Legalization ofPolitics in Canada. Michael Mandel (1989) disnisses the rise of this 'Charter taik"' as connectecl to sweeping socio-economic changes which began in the late 19th centwy and grew considerably in the pst-war period. Mandel (1989) argues that the political impetus and populous support for the Charter S creation was largely due to: the large influence of the United States on Canadian Me; a federalist strategy to combat Quebec separatism (via institutionalized bilinguaiism); and, a way of discursively masking the growing socio-economic disparities in Cana& (p. 71). In fact, it is this last trend that Mandel (1989) argues is of the most si@cance He writes, One cannot fail to have noticed how in Canada the constitution itseif, patriation, the Charter of Rights. and the plea for "nationaï' unity al1 had a part to play in taking our min& off our dr;tstic eamomic decline and in unifylng a country nven by enonnous disparities in material well-king and life chances (Ibid: 74).

Indeed. the entire constitutional proces began shortly after Canada's centennial year. the year we got a new flag and a new anthem. As Mandel (1989) notes, the Charter as. "Iegalized" or "simulated" politics, is better suited to the solution of the problems facing the ruling elite in Canada than a real redistribution of materiai wealth and power. Smart (1989) writes that dthough non-legal discourses such as the 'psy disciplines' are increasingly important in mechanisms of social control, the role of legal discourse, as exemplified by the 'legalization of everyday life', cannot be diminished (p. 8). She writes,

"1 shall put fonvard the idea that jundical power remains a formidable obstacle to feminism and that whilst other mechanisms of discipline develop, law itself can deploy these mechanisms to enhance its own power" (Ibid: 6).

Luw and the Problem of PhdIocentrism

This neutral, objective view of law is aiso comected to what both Smart (1995) and Eisenstein ( 1988) identify as the problem of 'phallocentnsm' . Phallocentnsm refen to the ways in which the institutions in Western culture are structured, it is claimed, to meet the social, political, and economic needs of men (Smm, 1995: 78). As a result, feminist discourses have had a particularly difficult time being 'heard' and adequately incorporated2' in law as they present critiques of the gendered and racialized nature of law and the masculinkt bias of legitimated knowledge (Harding, 1987 & 199 1; Hartsock,

1987; Smith, 1987). Carol Smart (1995) argues that the usefulness of this term stems from its reference to the psyche and subjectivity in that it conveys a much more complex meaning than an overly-deterministic use of 'patriarchy' or 'discrimination'.

Phallocentnsm points our attention to the ways in which both women and men are constituted by constructed gender identities and sexual difference (Tbid: 78). Law then is part of a phallocentric culture, and helps reproduce these naturalized dichotomies of

" I am drawing a distinction here between 'hearing' and hill integration because as was the case in senial assault law reform and ment obscenity litigation (R. v. Butler), feminist claims making ofien has 'maie'/'femde' and 'heterosexual'l'homose~~d'. For example* Smart (1995) writes,

"within phailocentnc culture sexuality is presumed to be heterosexuality and thus heterosexuality achieves a spurious universaiity against which 'deviations' (which are called by special narnes) are judged" (p. 79). Further she writes that feminist analyses of law must not stop with a recognition of the masculinist bias of the judicial process; they must situate an understanding of the socially constructed meanings attached to categories such as 'woman' and 'womanhood' within culturaily and historically specified matrices of power and domination such as capitalisrn and neo-colonialism. The importance of the concept of phallocentrism to this discussion is that in a phallocentric Western culture such as ours, law presumes the naturalness of such binary oppositions such as madwoman but it is also part of the mechanisms of 'Truth* and knowledge which work to reinforce and reinscribe these sexed, gendered, and racialized hierarchies of subjects.

In relation to the sexed female body, Zillah Eisenstein (1988) argues that law plays a particularly powefil role in reproducing women's subordination as 'naturaily different' and 'biologically inferior'. This role stems not oniy from law's high place in the epistemic hierarchy (Smart, 1989) but aiso fiom the language of law, as a source which produces and reinforces meaning(s) about ordeddisorder, truth/falsity, and reasodunreason in out society. Of far greater signifieance to this research, Eisenstein (1988) argues that law is a key component in the cultural reproduction of 'common sense' understandings of our world, particularly where the 'differences' between men and women and heterosexuais and homosexuals are concemed. Legai theonst Robert Gordon (1984) writes,

contradictory results once absorbed into govermental discourses of 'law and order' which more of&en than not maintain the status quo ancilor strengthen social control (see Snider, 1994; Cossman et al.. 1997). Law, or ideas about Iaw.. ..are at the source of sume of the most cornmonplace aspects of social reality that ordmaq people carry around with them and use in ordering their lives.... .The power of law is not rooted in fear on the part of violators but rather in lmS cupciîy to persuade people thut the world descn'bed in its images and caregories is the only attainable world in which a sane person would want to live (p. 109, my emphasis).

By constructing the 'real' within a legal discursive context, those who challenge the purported naturainess of categories such as 'womanhood', those designations which are wholly taken-for-granted, are deemed as out side of 'rationality ', 'reasonableness' , or even

'sanity'. Indeed it was Foucault (1965) who argued in Madzess and Civiliration: A

History ofltmrzity in the Age of Reason that constmctions of reason were predicated upon the subordination of a category of persons Iabeled 'mad' and thus incapable of inclusion within the social body. Gerald Turkel(1990) writes, "FoucauIt demonstrated

how forms of human expression, social relations, and activities deemed unproductive,

beyond reason and shameful were encapsulated mordly, spatially, and cognitively in juridico-psychological practices and languages" (p. 175). Feminist discourses which seek

to challenge the phallocentric nature of law and the taken-for-granted categories which

reinforce male, heterosexual privilege are almost totally proscribed as outside the realm of

'reason* .

Funher, we can extend this interrogation of law beyond Foucault and into the

realm of recent poststructuralist feminist theorizing on the body, sex, sexuality, and

identity. One theorist who has been instrumental in the deconstruction of the sedgender

binary vis-à-vis the body is Judith Butler. Butler ( 1990, 1991 & 1993) argues that the

body is discursively constructed, that the appearance of one's biologically determined

'sex' is a performance in which we are al engaged. Furthemore, Butler (199 1) argues

that we must interrogate not only how the body is discursively constituted but how 'being' gay or lesbian is politically mapped as well. She writes, "genealogy investigates the political stakes in designating as an orzgin and cause those identity categones that are in faa the eflects of institutions, practices, discourse with multiple and diffuse points of origin" (Butler, 1993: viii). Thus, Butler argues we must map the discursive production of male and female, heterosexual and homosexual in order to ultimately decentre and destabilize the apparent authenticity of these categories. Throughout her work, Butler poses perhaps the most powerfui challenge to theones of embodiment as she argues that the sexed body is not pre-given but constituted through power relations that centre around

compulsory heterosexuality.

Smart (1995) argues that much of the feminist work done on the intersection of

law and sexuality, presupposes sexuality as possessing an essence, and thus in need of

regulation by the legal system. She notes, "yet this idea of sexuality as an object upon

which culture, law, representations and education may act 'upon' is rigcrously questioned

elsewhere. Sexuality is no longer given an apriori statu but is presented more in terms

of discursive constructions of sexualities" (Smart, 1995: 100, emphasis in original). Thus,

the legal domain has been impervious to poststructuralist deconstruction of sex and gender

binary systerns. Furthemore, as she has noted elsewhere (see Smart, 1989), feminist

engagement with law also presupposes the presentation of a unified, coherent category of

'woman' as legal subject - in stark contrast to the theorking of poststructuralist feminists

who have challenged the stability and coherence of this identity. Legal discourse is a

discourse of nghts and although law barely hears women's claims as it is, those claims

which fa11 within the law's boundaries are most likely to be given credence. Importantly,

Smart (1995) writes, 1 have, however, suggested that those fom (of ferninia discourse) which confonn to, or deploy for tactical purposes, accepted notions of individual rights, ideologies of mothertiood or sexual morality may prove more successful within the confines of the trial and in pressing for legal reform. Thus the more 'reusonable' the feminist argument or the more it deploys certain conventional tenets, the more it may becorne influentid (p. 1 10, my emphasis).

Therefore, it is not merely the task of feminist discourse to be reavot~ablein presenting its claims to the judiciary but it is fundamentally important that the 'experts' put forth to speak on behalf of various rights clairns be coostructed as reasonable as well.

'Credibility ' as a Gendered ProbIemafic

In her book, What Can She Ktzm ?: Feminist Theory and the Coi~slrirctionof

Ktzowledge, Lorraine Code ( 199 1) discusses the construction of knowledge as gendered

and the epistemological discourses which function to valorize only men as knowers. In

terms of the deployment of expertise within law, this issue of credibility presents itself

most acutely with women scholars and is inextricably tied to the presentation of

'reasonable' evidence. Code (1991) writes, "1 have argued that prevalent conceptions of

knowledge incorporate implicit beliefs about subjectivity and cognitive agency which pivot

around two assumptions: that knowers are male and that their cognitive activity should

mode1 itself on a 'pure' version of the methodology of natural science, developed in

physics" (p. 173). This gendered dichotomy often manifests itself as the difference

between 'experience' (fernale) and 'knowiedge' (male), with knowledge accorded greater

importance and status. Code (1991) writes, "latter-day variants on Aristotle's contentions

about women's Iack of rational authority shape women's professional lives and areas of

eamed expertise just as they construct the expert knowledge about women" (p. 223,

emphasis in original). Further, Lorraine Code (1 99 1) argues that professional women have a particularly difficult task when attempting to establish their credibility as knowers. She writes,

Two cornplex stmctural pattern converge to contain women within undervaluecl cognitive domains and thwart their efforts to gain recognition as fully authoritative memben of epistemic cornrnunitia .. .First is the tenacious cluster of stereotypes that underpin and reinforce sociocultural representations of women as scaîterbrained, illogid, highly emotional creatures, incapable of abstract intellectual thought.... Second, is the curious distinction Baumgart notes between knUwledge and experience (Ibid: 223).

This is what Code (1991) refers to as the 'double standard' of credibility; women must work much harder to establish themselves as howers. The knowledge women possess is often constmcted as solely experientiai and is thos of limited value. Stereotypes about women as niled by feelings, emotions, and intuition tend to govem the extent to which they can know. Further, professions with a high percentage of women employed in them tend to decrease in status, teaching and nursing being two prime examples. Thus, the connection between women's work and the types ofjobs accorded the greatest status, prestige, and wealth in Western culture points us towards the fact that women are perceived as knowing both 'differently' mid 'less' . Code ( 199 1) argues, "In unmasking the rhetoric in whose terms knowledge confers authority, but experience does not,

Baun~gartshows how women's assumed lack of rational capacity blocks their access to authoritative status in a professional dornain where their expenence should be acknowledged" (p. 224, emphasis in original).

The discursive production of male 'expertise' as predicated on rationality is

intimately tied to the reasonabldumeasonable binq. As Code (199 1) notes, women's

presumed biological inferiority, ruled as they are by their reproductive system, continues to dictate the capacity and limit of women's perceived knowledge and expertise (p. 2~8).~'

Biologically deterrninistic arguments continue to restrict women's access to male dominated fields such as physics, chemistry. math, and engineering. Code (199 1) writes,

Biologically enforced stereotypes about peculiarly tenacious detenninants of women's positions in epistemic communities .. . . . inde merely posing the challenge can be read as fùrther evidence of ferninine irrationality. When a wornan atternpts to Se& scientific 'knowledge' about her nature in order to establish creûibility for herself that the stereotypes pronounce unlikely, she mets ever tmaginable resistance (p. 227).

Thus, the stereotypes which oflen preclude women fiorn being seen as knowers as well as the assumption that only men cm possess expertise about women, both function to restnct wornen experts within a legal context. As suggested earlier, this is connected to law as a phallocentric institution wherein the naturalness of the maldfemale and heterosexuaühomosexual binaries is not interrogated to any real extent. Following Code

(1 99 1), to do so would only reinforce the purponed 'irrationality' of women and further threaten their position within an epistemic community.

'' See Mitchinson, 1991. Conclusion

This chapter has sought to outline the broader theoretical implications of 'law's power' in order to understand the ways in which certain knowledge claims, and certain knowers, are validated while others are disqualified. The importance of Foucault's discussions of truth, power, knowledge, and discourse are seen when applied to the problem of social expertise: those who are validated as an expert are conferred authority and their authority to expound on certain issues casts their claims within a discourse of

'Tnith'. Those who are deemed 'questionable' as knowers, particularly in the case professional women, are often discredited as 'unreasonable', 'illogical', and lacking in the capacity to know outside the realm of 'experience' (Code, 199 1). Further, challenging taken-for-granted assumptions or that which is considered 'natural'/'common sense' is highly problematic within law especially vis-à-vis sexuality and gender binaries. The next chapter introduces the legal context within which Little Sister 's was fought and provides an overview of the junsprudential issues at the heart of the case. Chapter 2

Legal In(queer)y: Contwrrtalizing Censorship in Canada

Straight, mainstream pornography appears to be flounshing. But any representations that hint at alternative sexualities continue to be subject to intense scrutiny. Sexual representations that challenge conventional notions of sexuality - gay and lesbian sexuality, dm sexualitv, youth sexuality - are now the focus of the censor's sam. What is on trial are so-callecl 'Bad Attitudes': the attitudes of sexuai others. in stark contrast to the daims of liberalization, Canadians continue to live in the rnidst of a broad web of censorship of sexual images.

- Brenda Cossman and Shannon Bell, 1997

Introduction

The preceding chapter presented a review of contemporary feminist legal theory and a discussion of the connections between tnith, power, knowledge and discourse vis-à- vis law. This chapter outlines the socio-legal context within which the Little Sister 's case was heard in the B.C. Supreme COU^ in 1994 in order to provide specific background information necessary for understanding the legal arguments involved. There are three interco~ectedlegal issues which fom the bulk of the Little Sister S case. Primady, their statement of clah challenges several sections of the Cusroms Act, specifically, counsel for

Little Sister's argued that Tariff Code 9956 violates the constitutional nghts and freedoms of a bookstore which primarily carries gay and lesbian materiais under sections 2(b) and

15 (1) of the ~harter.~This wewas heard at time when gays and lesbians have made

n - Section 2(b) of the Charter reads, "Everyone has the following fiundamental freedorns .... mornof thought, belief, opinion and eqressions, including fieedorn of the press and other media of communication* (cited in Mandel, 1994: 464). Section 15 (1) states, "Every individual is equd before and under the law and has the right to quai protection and equal benefit of the Iaw without discrimination and, in particuiar, without discrimination based on race, national or ethnic origin. colour. religion, sex, age or mental and physical disability" (Ibid: 466). substantial gains in the fight for civil nghts under the equality clause of the Charter. As the quote fiom Brenda Cossman and Shannon Bell suggests, the 1990s have seen an increasing conservatism vis-à-vis sexual representations, and a firm re-entrenchment of sexual moralism in contemporary obscenity law (Cossman, 1997). This forms the second aspect of the Little Sister's case: although counsel did not specificaily argue for a re- examination of the obscenity precedent, a great ded of the case became hinged on this law. A case which began about Canada Customs quickly tumed into the latest legal battleground over the limitations of the Butler decision. Lastly, counsel for Little Sister's argued that Canada Customs, a very secretive bureaucracy, must be held accountable for their policies and procedures which unduly discnrninated against the bookstore on numerous occasions. Their statement of claim argues that this discrimination is systemic, built into the legislation itself, thus warranting a Churter challenge. Their 'Statement of

Claim' reads,

in addrtion, or in the alternative, a declaration pursuant to S. 24 of the Canadian Charter of Rights and Freedoms that the Customs Tanfi S .C.1987, c. 4 1 (3rd Supplement) S. 114, Schedule VII, Code 9956 (a)and the C~stomrAct, S.C. 1986 c. 1 (2nd Supplement), S. 5 8 and S. 7 1 as amended have at al1 material times been constnied and applied in a manner that is contrary to S. 2(b) andlor S. 15 of the Canadian Charter of Rights and Freedom and not justified pursuant to S. 1 of the said Charter" (cited in Fuller and Blackley, 1995: 20 1).

Counsel for Little Sister's pnmary job in this case was to prove to Justice Smith that the

only appropriate remedy to the problem of Canada Customs' policies and procedures was

to strike down the entire legislation and ask Parliament for new law goveming the

importation of publications. As Cossman and Ryder (1996) argue, this case is unique for

many reasons, not the least of which is the fact that t heir Charter challenges are

intersectional. Joe Arvay, counsel for Little Sister 's, argued that the infingement on the nght to fieedom of expression was due to the violation of equality rights on the basis of

sexual orientation. Basically put, if Little Sister's freedom of expression had been

curtailed through Customs legislation it was because they import materials which

represent queer sexualities, thus vioiating their section 15 (1) protection under the

Charter. Therefore, this chapter provides an overview of the two key jurispmdence issues

in this case: the evolving legal struggles around gay and lesbian civil rights and Charter

challenges in particular and secondly, the history of obscenity law in Canada and the

intervention of anti-pornography feminists into the contestation over pomography in the

early 1990s.

Chollenging Statelrponsored Discrimgnation:Gay and Lesbian Civil Rights

Before the entrenchment of the Canadian Charter of Rights und Freedoms

(Charter) in 1982, gays and lesbians had only two feasible avenues for litigating civil

rights: individual challenges based on pre-existing categories contained in human rights

codes (Le., 'sex') and fighting for the inclusion of a sexual orientation ground as a

protected category within the human rights statutes (Herman, 1994: 20). The early cases

brought before these human nghts tnbunals suggest that although the majority of litigants

failed in their claims, the public politicization around gay and lesbian civil rights was of the

most importance to the communities involved. Didi Herman (1994) writes, "within

capitalist democracies, legal 'equality' discourse is one of the foremost ways in which

human subjecthood is recognked, called into being" (p. 19). Therefore it is not at al1

surpnsing that gays and lesbians, in seeking to 'belong' as a fully identifiable citizens,

chose to use the law. In North Amerka, Quebec was the first aate or province to include sexual orientation as a protected ground in its provincial human rights code in 1977

(Sanders, 1999: 164).

One of the first key human rights cases was Vogel(1983). In this case, the litigant was denied health coverage under Manitoba statues for his partner. Although Vogel was argued on the grounds of 'sex' discrimination and not 'sexual orientation', the tribunal decided against him based on previous case law and dictionary definitions of 'spouse' which are opposite-sex definitions. The adjudicators in the case deemed 'sexy as only pertaining to an individual's reproductive organs and the case was decided based on the relational aspect, rneaning sexual conduet. As is typical of this case law history, the tribunal did not problematize the issue of heterosexuality, nor take into account the history of discrimination faced by gays and lesbians. The gay and lesbian reformen at this time placed a heavy emphasis on the immutability of sexuality or sema. orientation, thus arguing the case on the grounds of 'sex'. As Herrnan (1 994) notes, this case reinforced the need for gay and lesbian refonners of this period to push for the inclusion of sexual orientation as a protected category in human rights codes.

Perhaps the most visible and highiy contested exarnple of this push came in 1985 when a group of gay and lesbian activists in Ontario began lobbying the provincial governrnent to include sema1 onentation in the Ontario Human Rights Code. in the

Ontario Legislative Assembly, Evelyn Gigantes, a New Democratic Party MPP introduced a private member's bill to amend the Ontario Human Rights Code to include sexual orientation (Ross, 1990: 133). It was not until May 6, 1986 that the bill passed into law as part of a larger piece of legislation known as Bill 7 (Ibid). The fight over this piece of

Bill 7 was very heated at times with liberal MPP's and gay and lesbian activists pitted against moral majontarian groups and conservative MPP's. The liberal rights discourse employed by the Coalition for Gay Rights in Ontario (CGRO) and affiliated groups during the debate over Bill 7 best illustrates the arguments used throughout the 1970s and 80s before other legislatures and human rights tribunals vis-à-vis sexual orientation.

Homosexuality was argued to be an immutable characteristic, analogous to religious affiliation or race. As Didi Herman (1994) writes,

Legal liberalism, upon which human rights law are premised, thus assumes a series of tmths: society is pludistic, there are majorities and minorith, ?rue democracy necessitates the protection of minorities fiom the tyranny of the majonties, and true rninonties share characteristics that differentiate hem fiom the rnajority nom (p. 3 8).

However, as Becki Ross's reflections on the passage of Bill 7 demonstrate, when it comes to state-sponsored protection of gays and lesbians, the spirit of legai liberalism is oflen stretched to its ~irnits.~~She argues, "as an expression of state-interested accommodation, legal reform does not and cmot operate to root out and challenge the dominance of deep heterosexist and homophobic assumptions. In this way, legislative change is a necessary but wholly insufficient objective in many progressive movements" (Ross, 1990: 142).

By the early 1980s it was abundantly clear that ad-hoc challenges to human nghts statutes were insufficient for irnproving the status of gays and lesbians in Canada.

Also at this time, the most important Canadian human rights document was drafted - the

Chcnter, which represented a new hope in fight for gaining the legal recognition and substantive rights of gays and lesbians. The implementation of the Charter, and its drafling process, reinforced and reinscnbed the complete exclusion of a 'sexual

" This debate. sîmiiariy to many others amss Canada in the 1980s and 1990s. became a forum thmugh which 'homose.walS' (ostensibly meaning gay men) were painted as pedophfies. nmphiliacs, and 'recniiters' to the 'homosemial liféstyle' (Ross, 1990). orientation' agenda. Hoping to be included in the enumerated grounds of the section 15 equality clause, gay and lesbian activists were sorely disappointed. Of this process

Kathleen Lahey (1 999) writes,

in the enci, the entire Charter irnplementation process merely confirmeci what rnany activists had feared al1 dong. Lesbians and gays would have to resort to Charter litigation in order to benefit from section 15, because, even the few little changes that the federal govemment was willing to recornrnend fell radically short of redressing the long-standing legal discrimination and consequent sociaVeconornic discrimination (p. 3 1).

In fact, the Charter enurneration process illurninated the ways in which the demarcation

of citizenship in Canada remains a project of exclusion. In their introduction to Painting

the Maple, Veronica Strong-Boag, Shemll Grace, Avigail Eisenberg, and Joan Anderson

(1998) argue that throughout the constitutional process, the construction of "special

interest groups" was a means by which the ruling elite in Canada could solidi& a distinctly

white, middle-class, and anglophone Canadian nationalist identity. They write. "the

practice of identity politics in Canada has resulted in a stniggle by the dominant group, no

less than by the marginalized ones, to strengthen, protect, and advance its identity" (Ibid:

p. 12). Indeed, just as the Charter is held up by politicians and others as the ultimate

example of Canadian liberal democratic principles, it mystifies the deeply colonialist,

masculinist, and heterosexist underpinnings of the Canadian nationalist sentiments

enshrined in its pages.

The only 'consolation' given to gay and lesbian activists was that section 15

would have 'open-endedy language which would eventually, according to a tentative

federal govemment, be extended to protect semal minorities as well (lahey, 1999). In

spite of the entrenchment of the Charter, the federal govemment forced statutory

cornpliance with section 15, vis-à-vis sema1 minorhies, back into the human rights system (Lahey, 1999). As Charter equality discourse began to be constituted and reconstituted by the government and by myriad other actors in the early 1980s, the fight for resources and a forum for representing 'queer' politics increasingly becarne about fragmenting the movement into only gay and lesbian civil rights. For instance, the issues of lesbian wornen were subsumed under the nibric of feminist politicking for strategic purposes. Lahey

( 1999) cntically assesses this process by saying, "the political tensions 1 noticed... . . help explain why the entire 'Charter industry' that began to develop during the moratorium years seemed to ignore lesbians, gays, sexuality, sexual orientation and sarne-sex couples to a great extent" (p. 38). Thus, while paying lip-service, to the 'open-ended' nature of the language contained in section 15, the govemment managed to refuse any responsibility for changing existing statutes by ornitting sexual orientation as an enumerated ground and instead, left it up to individual gays and lesbians themselves to engage in costly, time- consuming, and relatively unsuccessful Charter challenge litigation.

Charthg Charîer Litigation

One of the earliest section 15 challenges, Attdews v. Ministry of Healrh, represents the jurisprudence of these early Charter years, and signals the beginning of cases which focused not on personal or 'status' issues but on 'relational' issues and marks the visible politicization of gay and lesbian family rights. In 1985, Karen Andrews petitioned the Ontario Ministry of Health to include her partner and their children in her

OHIP coverage as 'family members'. Andrews' daim was taken to the Ontario Supreme

Court under a section 15 Chierchallenge to the exclusively heterosexual definition of 'spouse' contained in the province's Health Imrmice ~ct." Despite receiving support corn the Office of the Ontario Ombudsman, Andrews' lost her case based on an appraisal by Justice MacRae using the 'similady situated test'. In his ruling, Justice MacRae stipulated that no definition of 'spouse' cited could be extended to include me-sex partners, nor did these definitions justify discrimination based on a section 15 analysis because gays and lesbians were treated no differently than any other 'combination' of single people cohabiting (Herman, 1990: 792). Thus sarne-sex relationships were confined to a jurispnidential space which stipulated that because gays and lesbians do not marry and do not procreate, they are not "similarly situated" (Ibid: 793). In her analysis of the

Andrews case, Kathleen Lahey (1999) writes, "at the hart of the reasoning in this case lay the perception that relationships between lesbian women, even when they had children, had no legal significance, and that the relationship between non-biological parents and their children was legally a nullity" (p. 5 1). Thus, Justice MacRae in his decision made it very clear that protecting the traditionally conservative definitions of "the family" was

"demonstrably justifiable" under section 1 of the charter?

In Andrews v. LmSociefy, Supreme Court Justice Wilson niled in favour of the complainants under the 'andogous grounds' language of section 15 shifting the basis of analysis to one in which,

categories of people are seen in the context of the place of the group in the entire social, political, and legal fabric of our socil. It is not enough that members of the group are denied equality; the denial must discriminatory A finding that there is discrimination dl,1 think, in most but perhaps ail cases, necessarily entail a

-- - -

24 For a deconstruction of the 'We are' verais 'We are Not' Family deùate, see Cossrnan, 199%. "section 1 nates. "nie Canadian Charter of Rigkand Freedoms guarantees the rights and freedoxns set out in it subjecî only to such reasonable limits prescribed by law as can be demoustrably justifiai in a fiee and dernomtic society" (citeci in Mandet 1994: 464). search for disadvantage that e'rists apart from and independent of the particular legal distinction king challenged (Wilson J. cited in Sanden, 1999: 162).

Thus, the mling in At~drewsset the precedent which was reinforced in Veysey v. Canada

(Correctional Services) (Keysey). In t his case against Correct ions Canada, Vey sey launched a Charter challenge based on section 15 under which he stated that the denial of

Visitation rights to his partner, under the prison's "farnily policy", was discrimination based on sexual orientation. In Veysey, the Federal Court of Appeal ~ledthat "sexual orientation was an anaiogous to the grounds enumerated by section 15 and that exclusion of gay partners from the program constituted discrimination within the meaning of section

15 of the Charter" (Lahey, 1999: 47). It was not until this 1989 mling that equal protection based on sexual orientation was extended (Lahey, 1999). However as Mary

Eaton (1994) writes, "the decision therefore, did not establish that Veysey and his partner in particular or that same-sex couples in general are 'spouses' nor indeed that Veysey's

Charter rights had been infîinged. Instead, the court concluded that the Cornmissioner had wrongly refused to exercise his discretion in considering Veysey's application and ordered him to do so" (p. 149).

As the case law history of Charter challenges can attest, the substantive gains made by gays and lesbians in the first ten years of litigation, 1985 to 1995, were minimal at be~t.~~Perhaps the greatest impact the Charter's entrenchment had was on existing human rights codes as evident in the 1992 Haig mtd Birch v. Canada mling. Haig and

Birch brought a section 15 Charrer challenge to the Ontario Court of Appeal based on the exclusion of 'sexual orientation' in the Canadian Human Rights Act (CHRA) derhaving

26 See Mandel (1991) for a comparative and critical analysis of the substantive gains made by labour groups under the Charter. been dismissed nom the military as openly gay personnel. Their appeal was the result of a lower court's decision against them, based on the CHRA, which denied that the Canadian military had discriminated against Haig and Birch because of their sexual orientation. At the provincial appellate level, the coun ruled that the exclusion of 'sexud orientation' was discriminatory based on the section 15 analysis laid out in Andrews v. Lmv Sociefy and

Veysey, and ordered the federal governent to amend the CHRA. Although this decision would only have necessarily applied to Ontario cases, the federal govemment did not appeal the decision and instead, then Justice Minister Kim Campbell, ordered al1 other human nghts tribunals across the country to follow the Ontario ruling merman, 1994: 29).

As Didi Herman (1994) writes. "for the lesbians and gay men who for many years attempted to persuade the Conservative government to amend the CmHaig represents the Charter's promise-the chance to force the government ' s hand through invoking

Charter rights" (p. 29). It is important to note however that the ruling in Haig dealt with

'status' and not 'relational' rights. 'Status' rights only pertain to the identification of homosexuality as an immutable characteristic comparable to race or sex. 'Relational' rights pertain to such issues as changing the meaning of 'spouse', the legalization of same- sex marriages, adoption rights, financial support, and pension benefits to only narne a few.

The last case of particular significance in this era of Charter jurisprudence was decided in 1995, when Egrm and Nesbit v. Cm& came before the Supreme Court of

Canada. Despite the successes in Haig, Veysey, and Andrews v. Law Society, the case law was fiagile at best, and the decisions at both the federai and provincial levels mostly

pertained to 'status' and not 'relational' rights daims (Lahey, 1999). Egm and Nesbit is

of great importance to the analysis of Chmrer challenges as it represents one of the first and riskiest challenges to the statutory 'opposite-sexy definition of 'spouse' under section

15 protection (Herman, 1994). In this case, Egan and Nesbit who were life-long partners, challenged the definition of 'spouse' in the Old Age Security Act in an effort to obtain pension benefits for Nesbit, a dependent partner. Although the court did recognize that the precedents in these maders ensured equal protection to gays and lesbians under section

15 and that 'opposite-sex' definitions in public benefit schemes were in fact discriminatory, the majority decision stipulated that the denial of extending the benefits was "demonstrably justifiable in a fiee and democratic society" under section 1 of the

Charrer (Lahey, 1999: 66).*' Lahey (1999) writes that it was Justice Sopinka's s2ction 1 analysis which ostensibly put an end to Egan and Nesbit's successfÙ1 challenge. "He

(Sopinka) concluded that the Charter should not be used to 'second-guess legislative judgment as the recognition of human rights emerges slowly out of the human condition' with 'short or incremental seps.... a harbinger of a developing right, a fùrther step in the long joumey towards full and ungrudging recognition of the dignity of the human person"

(Ibid: 70). Thus, changing the definition of 'spouse' to include sarne-sex partnen was not within Sopinka's 'incremental change' fhrnew~rk.~'

" It is important to note that the legal cases won by gays and lesbians visa-vis equality rights thus far have almost soleIy concerned 'private' rights such as in the recently decided M v. H. case. Trends in neo- liberal economic policies, the rpsults of which are evident in the continued dismantling of the welfare state, impact upon decisions regarding gay and lesbian 'family' or 'relational' rights. The prioritization of the private 'family' means the inneasing dependence of individuais not on social welfare programs, but on the 'family* stnicture. Susan Boyd (1994) w&es. "it seerns that whether the relationships of lesbian and gay couples will be recognized by law may depend less on societal acceptance of same-sex familial relations than on whether the public purse will be sparedn @. 69). indeal, this seems to be one reason why Egan v. Cmado (1993). which was fought over the right of Egan's partner Nesbit to public CPP support, was subsequently Iost. This case is also unique because of Sopinka's very dinerent use of the Oakes test in reaching his section 1 decision. Lahey (1999) writes, "The Oakes test a>nsists of two basic steps: identifyiog the legislative objective of the meastues in question to see if they are 'pressing and substantial', and then assessing whether that legislative objective is proportionate to its discriminatory effat in order to decide whether that &ect can k consideml 'rationally connected' to the objective" (p. 70). Sopinka's use of an The confusion resulting From the Egan md Nesbit decision has had great impacts on subsequent Charler litigation. As the mling was so tensely split and the decision so difficult to decipher, this case marks a major stumbling block for gays and lesbians litigating for substantive equality rights under section 15. As Kathieen Lahey (1999) argues,

instead of clarifjmg the constitutional status of sexual minorities, the decision in Egan and Nesbi f has ensu red that, until legislaiures take responsibility for changing the legai status of semal minorities, queers wilI have to continue to tum to the courts in selective, expensive, and hi&-risk litigation in order to secure fundamental civil rights and human rights (p. 66).

This is precisely what happened only four years later when the case of M. v. H.

(1999) was heard before the Supreme Court of Canada. Essentially a 'divorce' proceeding between two lesbian partners, M. had sued H. claiming financial support after the dissolution of their relationship. In this case, Justice Epstein took important steps in clarifjmg Justice Sopinka's section 1 mling in Egun. In M. v. H.,Justice Epstein writing for the majority ruled that excluding same-sex couples was not rationally connected to the objectives of the Famiiy Law Act and as such, could not justif) discrimination under section 1. As such, the Supreme Court ordered H. to pay M. spousal support. The larges difference between Egun and M. v. H. is certainly the fact that in the former, granting Egan and Nesbit their appeal would have cost the govemment money in old age pension benefits to gay and lesbian couples. In the latter, no governrnent money would have to be expended. In fact, as Justice Epstein writes, "cost considerations were not relevant to the application of Charter rights; and the application in question had the

'incremcntal change' approach had never been used before Egan and Nesbit and never since. Supreme Court dings since then have gone back to determining section I Iirnitations solely based on the 'discriminatory effect' within Oakes. potential to reduce governrnent expenditures rather than increase them as 'fewer people would have to look to social assistance upon the breakdown of their relationship"' (cited in Lahey, 1999: 84). Thus, section 29 of the Family Lmu Act was changed to include a dependent seeking financial support in a sarne-sex relationship (Ibid). These cases will likely be adjudicated from this point on similarly to cornmon-law heterosexud couples whose relationship spanned over two years of cohabiting. If a gay and lesbian person in a long-term relationship can show their financiai dependence, they will be entitled to monetary spousal support payments, private pension benefits, the division of assets and of any property jointly owned by the couple.

Despite the significance of this decision, gays and lesbians still occupy "shaky jurisprudentid ground" vis-à-vis 'spousal rights' (Lahey, 1999: 265). Funher, this decision addresses the adjudication of private rights and responsibilities and perpetuates the heterosexism contained in legislation pertaining to the public purse. More significantly, in support proceedings, defendants have often used 'anti-assimilation' arguments in order to avoid paying suppon (Ibid: 264). In M. v. H., counsel for H., drawing on the heterosexism and homophobia of the courts, argued that their lesbian relationship had been "more like two best fnends living together" despite the fact that they had bought two properties together, owned several businesses jointly, and shared a residence (Lahey, 1999: 264). H. argued that had she known they would be considered

"spouses" she would have never agreed to live with M., or would have entered into a written agreement with her. As Lahey (1 999) argues, not only are such tactics extremely damaging to the arguments made by queer activists in the narne of relationship rights, they are also very economically damaging. She writes, M.'s legal bills must be over S 100,000 by now, and she bas been extremely fortunate to tuid a lawyer who would be able to carry an account of that size for several yean... .&th women started out economidly disadvantaged as women and as lesbians. They are now additionally disadvantaged by having becorne caught in protracted, painful, and costly litigation over their net relationship estate. In the end, no rnatter how the case ends up, they will both have lost probably al1 they ever had as the result of this litigation (Lahey, 1999: 265).

Most recently, the headline on the Ianuary 15th 200 1 issue of the Globe and Mail reports, "Gays claim first legal mariages" (page Al). Michael Vdpy writes that a gay male couple and their fnends, a lesbian couple, were mamed in the Metropolitan

Community Church of Toronto by Rev. Brent Hawkes. Rev. Hawkes used an obscure portion of the Ontario Marriages Act which permits a couple to be legally married afler the "publication of banns" over three consecutive weeks before a person's congregation.

As long as there are no legally justified reasons why the two canot be married, they are eligible to sign a marriage license. The final stage of this process will corne when Rev.

Hawkes takes the licenses to the Ontario govemment to be registered with the province.

Representative from the Ontario government were quoted as saying that they would not register the rnarriages as it conflicts with federal law, stipulated that a marriage can oniy occur between 'one man and one woman'. Douglas Elliot, lawyer for the Metropolitan

Community Church, noted that if the province does not register the marnages, the MCC

will launch a law suit against the provincial govemment under section 15 of the Charter

and MCC is prepared to take the matter ail the way to the Supreme Court of Canada. It

will certainly be only a matter of time before the heterosexual 'cornmon sense' definition

of 'spouse' dlbe challenged once again. Perhaps in the case of the MCC marriages, a

precedent-setting decision may result. As the foliowing section on the history of obscenity

law in Canada demonstrates, the evolving jurisprudence on gay and lesbian civil rights has had almost no impact on the adjudication of 'obscene' materials particularly after the 1992

Supreme Court ruling in R v. Butler. Further, this case law illustrates the 'cornmon sense' understandings of sexuality within the Canadian judiciary: homosexuals are a fked and irnmutable category of persons who have a 'sexual orientation' while heterosexuality, particularly where 'relational' rights are concemed, is never challenged as normative.

Bordering (on) the Obscene: Pornography and the Law in Canada

It is not possible to understand the 1994 Little Sister's decision without a comprehensive overview of the obscenity jurisprudence in Canada, particularly since the R v. Butler Supreme Court decision in 1992. Canada Customs is govemed by both the precedent-setting decision in R v. Birtkr as well as the existing obscenity law, section 163

(8) of the Canadian Criminal Code. Thus, the Little Sister's case necessarily became a challenge to the Butler mling and Criminal Code definition of 'obscenity'." As Cossman et al. (1997) argue in Bad Attitudeh on Trial, the history of regulation of publications in

Canada has been, and continues to be, about the regulation of sexual 'others', not the mainstream heterosexual pomography industry.

The history of censorship in Canada is largely predicated on a nineteenth century

Victorian moraiity. Initially, 'obscenity' laws from England were used to censor seditious matenals, such as those inciting revolt or treason. However, in the late eighteenth and early nineteenth century, Societies for the Suppression of Vice emerged in England concemed with the publication of materials which "tend to compt the mords of the

Mon163 (8) reads, -'For ihe purposes of this Act any publication a dominant characterinic of which is the undue exploitation of sex, or of sex and any one or more of the foUowing subjects, namely, crime, horror, cmelty and violence, shall be deemed obscene" (cited in Fuller in Blackley, 1995: 199). King's subjects" (Cossman & Bell, 1997: 11). The 'subjects' in question were not upper- class men; those targeted were wornen and children and the lower classes, those individuals who were considered to have the weakest moral constitution. The earliest precedent-setting case in this area R v. Hicklin (1 868) was aimed at 'protecting' the lower classes from further moral degeneration. In Hickiin a man was charged with publishing an anti-Catholic pamphlet, nie Confessional Umasked in which the sexually explicit confessions of women to their pnests are descnbed (Johnson, 1999: 293). Johnson (1999) describes the decision in this case as the "threshold model" for obscenity in Canada: "1 think the test for obscenity is this, whether the tendency of the rnatter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this son may fall" (Lord Cockbum cited in Johnson, 1999:

294). In Hicklin, Lord Cockbum found Hicklin guilty and outlined his new 'threshold' model for obscenity in his niling. Cossman and Bell (1997) write, "the HickItn test was intended to protect the morals of the iower classes and other wlnerable groups, and thereby promote a public mordity that was based on the Victorian discourse of sexuality as a dangerous force to be controlled and repressed" (p. 2). Canada, still a colony at this time, used British common law in the Vagrancy Act (1824), the Customs Consolidarion

Act (1 853) and the Obscene Publications Act (1 857) dong with the precedent in Hicklitt as the basis of Canadian obscenity law. Thus, until the 1940s in Canada, the adjudication of 'obscenity' was largely govemed by a religious moralism predicated on presehg the decency of the white, middle-class nuclear patriarchal famly.

In the 1940s and SOS, several changes were made to the use of the Hicklin test including the introduction of mens rea in 1944 (Lacombe, 1988). Further, two new elements were also included which are still in effect today: in R. v. Marrin Secker &

Wmburg Lld (1954). the idea of 'contemporary standards', currently known as

'community standards', was used to suggest that standards of popular tolerance will change with the generations. Thus, a work is deemed 'obxene' if the judiciary decides that it is something that individuais would not tolerate other members of their comunity being exposed to. Further, the judiciary in this case noted that work must be considered in its entirety (Johnson, 1999: 295). As such, a single passage in a book cannot be used to determine whether or not the work is 'obscene', and that passage must be read within the literary or artistic context of the entire work. In 1957 E. D.Fulton headed a Special

Senate Cornmittee dedicated to expanding and claribng the meaning of Hicklin. The law, known as Bill C-58, becarne law in 1959 and resulted in the Crimiml Code definition of

'obscenity' which remains unchanged today. As Cossman and Bell (1997) argue, "the

1950s witnessed a retum of gendered moral discourses circulating around the punty signifiers of wife, rnother and family" (p. 15).

The Hicklin test remained in eEect until the R v. Dominion Novs und Gifrs (1 963) case wherein the Supreme Court ruled that the community standards test of tolerance was a national standard rather than that of a specific community (Johnson, 1999: 297).

Therefore, instead of detemiinhg obscenity on the bais of that which 'comipts mords', t here was a distinct shifi towards what an imagined national community would tolerate.

Although the language of the 'test' had changed, there remained a distinct moralism in these adjudications. The 'comunity standard' against which a work would be held was a white, male, rniddle-class, heterosexual, and conservative one. Johnson ( 1999) writes, in practice, judges, customs agents, and police would deliver the united concepts of undue exploitation that violate community standards to justify criminal prosecutions ofany semally explicit materiai that fâiled to conforin to their individud notions of decency. Moreover, they would do so without any appeai to scientific evidence or expert opinion, which is deemed unnecessary (p. 297, my ernphasis).

The latent moralism contained in the decisions of both Hicklin and Dominion would not be set-iously challenged until the 1980s when anti-pomography ferninists entered the legd and political arenas of state censorship. As Lacombe (1994) argues, the legal reform process is a site of contestation and reveals a more general confiict over our societal quest for the 'tmth' of sex (p. 8). This is no more evident than in the controversial intervention of the Women's Legal Education and Action Fund (LEAF) and other anti-pomography feminists into the 1992 case of Donald Butler, the owner of an adult video store in

Winnipeg. The mobilization of very different knowledges and arguments in R. v. Bder marked the beginning in a new era in the legal regulation of pornographie materials in

Canada.

Ferninisr Interventions into the Struggle over Pornography

With the advent of the second-wave ferninist movernent across North Arnerica in the late 1960s, the paradigm through which pomography was debated shifted radically.

As gras-roots ferninias began publicly to expose and confront mde physical and sexual violence as manifestations of patnarchal ideologies and institutions, they began to target the pomography industry as one of the central mediums of gender and sexual oppression.

In the 1970s, prominent Amencan ferninia activists such as Robin Morgan, Gloria

Steinern, Susan Griffin, Andrea Dworkin, and Catharine MacKinnon wrote extensively

about the comection between male sexual violence and the degradation of women in North Amencan mainstream pomography during the era when mass-produced video was increasing. Moreover, the sarne debates were raging north of the forty-ninth parallel spear-headed by Canadian anti-pomography ferninists such as Susan Cole, Kathieen

Mahoney, Karen Busby, and the Women's Legal Education and Action Fund (LEAF), known as the 'legal am' of the mainstream Canadian ferninist movement. In her introduction to Take Back the Night: Women on Pomogqhy Laura Lederer (1980) writes,"(t)his book presents a third and feminist perspective: That pomography is the ideology of a culture which promotes and condones rape, woman-battering and other crimes of violence against womed' (p. 19). In her contribution to Take Back the Nighr

American feminist Robin Morgan (1980) writes, "the act of rape is merely the expression of the standard, "healthy" even encouraged male fantasy in patnarchal culture- that of aggressive sex. And the articulation of that fantasy into a billion-dollar industry is pomography" (p. 137). Such theorking provided the impetus for feminists to critically examine pomograp hy, its contents and the industry itself, through a newl y defined vocabulary that included the words degradation, submission, violation, and exploitation.

Increasingly, these feminists cntiqued depictions of women being raped, tortured, beaten and mutilated in "hard-~ore"~~and "snuff'" pornography. Three major concems arose out of such depictions. First, they believed that, "sooner or later, in one way or another, the consumers want to live out the pomography in three dimensions" (MacKimon, 1993:

19). Secondly, although presented as 'fantasy', there were real women involved in the making of such images. Thirdly, as a tool of sexist oppression, pomography created and

30 Hard-core refers to hard, cruel. graphic, phallic, e.qlicit depictions of straight and gay ses. and representations of sadomasochism, Some of these depictions include violence (Williams, 1989: 6). sustained gender inequality. It was not however until R v. Butler was heard before the

Supreme Court in 1992 that these arguments entered the legal realm in ana da.'^

It was at the close of the 1980s that the debate around Canada's obscenity legislation would heat up again in the trial of Donald Butler, the owner of a Manitoba pomography store. "R v. Butler was the first constitutional challenge to the obscenity law, S. 163, of Canada's criminal code" (Cossman & Bell, 1997: 3) and it was in this

Supreme Court trial that the Canadian feminist organization LEAF intervened with a decidedly anti-pomography factum which 'set the stage' for a pronounced shift in the

Canada's own 'pom wars'.j3

In the Butler case, LEM pressed the court to re-fiame the pornography and censorship debate to centre around the concept of "hm" to women and that pomography is an affront to women's equality. LEAF essentially asked the Supreme Court to use the obscenity laws to censor materiais on the grounds that these materials constituted discrimination against women, under section 15 of the newly entrenched Charter (Gonell,

1997). Thus, on the surface, it appeared that this discursive shifi moved away from a moralist critique of pomography to one based on apparent 'hm' to women. Lise Gottell

"~o-calledsnuff films. first circulated in New York in 1975. purportcdly represented the actual murder of Latin-American women as they reached se.4 climax (Segal, 1993: 16). " In the United States, these arguments were already king heard in courts across the country in the late 1980s. For e.xample, it was through the drafüng of the Mi~qIOfkand Indianapolis Orciinances that ûworkin and MacKimon began the process of trying to have pornography, defined as violent and degrading images of women, classifieci as not only hate speech but seddiscrimination as well. Under these orciinances, anyone could sue in civil court. the maker or distributor of pornography ifthey could prove hum. As Dworkin (1992) *tes, "(t)hecivil rights law empowers women by allowing women to civily sue those who hurt us hughpomography through traficking in it, cwrcîng people into it. forcing it on people, and assauiting people directly because of a specific piece of it" (p. 533). 33 For ove~ewsof these debates and Iiteratures see Lacombe. 1994 and Cossman et al., 1997. Its (LEAF) intervention also draws heavily upon discourses of sexual danger, on an entirely negative view of semal expression, and, much like the defenders of the status quo, propels an mage of women as passive 'victims'. Moreover, echoing the rhetorical style of the 'staîus quo' litigants, this fachun systernaticaily erases al1 diversity and complexity, substituthg instead its own authoritative monologue. In keeping with the strategic imperatives of legal discourse, LEM presents its arguments as if it were articulating a singdar and unified ferninist voice on pomography (p. 87).

Further, in Butleï, the issue of gay and lesbian sexual representations was not discussed by

LEM, nor did they differentiate between mainstream heterosexual and queer

In Butler, the Supreme Court justices attempted to clarify the adjudication of obscenity through several interrelated tests. In an apparent rnove to incorporate the ferninist daims of LEAF, the Supreme Court justices included another 'test' for determinhg if material is 'obscene'. The 'nsk of hm' test, first introduced in the 1992 decision, is the final adjudication of obscenity after the 'artistic ment' testJ5and the

'cornmunity standards' testJ6 Justice Sopinka, writing for al1 nine justices, outlines the test as follows:

Y There is one small exception to this however. LEAF used e.xamples taken fmm gay male pomographic videos, thus illustrating the passivity of many gay men and tikening this passivity to the positioning of women in society. Car1 Stychin ( 1995) argues that this was a îactical appeal to the homophobia of the Supreme Court pstices. Further he writes, "The se.W submission of a male subject necessarily is interpreted as degrading, for no reai man can freely abdicate se.wal authonty over another. It is this degradation, not of the individuai, but of the phallus that is at stakes ...... Gay male pornography is condemned because it represents a transgression to the laws of male power" (p. 90). '' This is also know as the *internai necessities" test wherein a publisher or writerianist cm petition the court to reconsider materials which are argued to have artistic or literary value. if the court decides that the predominant characteristic of the work is the "undue e.upIoitation of se.." despite its literary or artistic context, it will be deemed obscene. Bnice Ryder (1999) writes that in the 1962 ding in R. v. Brode, the majority took the aesthetic approach in freeing La& Chatterley S Lover and concludeci. "the serious minded author mua have freedom in the production of a work of genuine artistic and titerary merit" (p. 142). The ucommuni& standards tesi" is pechaps the mon well-known form of judicial reasoning vis-a-vis purporteci obscenity. Sapinka J. writing for the majority States, "this test is concerned not with what Canadians would not tolerate king exposed to thernselves, but with what they would not tolerate other Canadians king exposai to" (Rv. Butler, (19921 S.C.R No. 452) The court must determine as best they can what the comunity would tolerate others being exposed to on the bais of the degree of hmthat may fiow form such exposure. Harm in this context meam that it predisposes persons to act in an antisocial manner, in other words, a manner which Society fonnerly recognizes as incompatible with its proper functioning. The stronger the inference of the nsk of harm, the lesser the likelihood of tolerance. The portraya1 of sex with violence will aimost always cunstituted the undue exploitation of sex. Explici? sex which is degrading or dehumanizing may be undue ifthe risk of hum is substantiaf. (emphasis added) ."

Thus, it is the job of the Canadian judiciary not only to determine what is 'degrading and dehurnanizing' to the point of posing a 'substantiai nsk of harm', but to determine which

materiais have literary or artistic merit as well. By shifling away fiom overt moralism and towards a risk-based 'hm' argument, the Supreme Court in effect appears to be

incorporating the language of anti-pomography ferninism as represented by LEM.

In the end, Donald Butler was convicted on multiple counts of possessing and

selling obscene materials. The Supreme Court unanimously ruled that the Criminal Code

obscenity provisions did violate Butler's constitutionally guaranteed right to Freedom of

expression under section 2 (b) of the Charter, but that the Iaw would be upheld under

section 1 as a 'demonstrably justified limit in a free and democratic society'.

The Post-Butiet Era

What effeas has the Butler decision had on the regulation of pornography in

Canada? The post-Butler era can be described as one in which the targeting of gay and

lesbian materials has been taken to new heights rnoaly by Canada Customs while

rnainstream heterosexual pornography, the materials of moa concern in Butler. circulate

"R. W. Butler. [1992] S.C.R No. 452. with few limitations (Cossman et al, 1997; Stychin, 1995).)* The ramifications of Butler were felt shortly after in the first case involving Canada Customs and the importation of gay male pornography. As Brenda Cossman (1997) writes, "in the case law that followed on the heels of the Butler decision, however, the courts have neither firnited the Butler test to heterosexual materials nor explored how this heterosexually - defined concept of hm cm applied to gay and lesbian image@ (p. 129). In both of the cases decided directly after Butler, both involved gay and lesbian pomography imported by Glad Day Bookstore.

In 1992, the case of GIad Day Bookshop v. Cana& (1992) was heard in the

Ontario Court (General Division). Glad Day is Toronto's gay and lesbian book store and the civil suit resulted from Custorns seizures of gay male pomographic matenals en route to the store. Mer a failed appeal to deputy minister of the National Revenue for Custorns and Excise, the store's manager took Customs to court (Cossman, 1997: 130). In his decision in Glad Day Bookshop (1992), Justice Hayes ruled that the materials in question were 'degrading and dehumanizing', and the dominant characteristic of which was the

'undue exploitation of sex', and thus were obscene (Ibid: 130). Although Justice Hayes never hlly explains why the materials are 'degrading and dehurnanizing', he goes as far as to say that they lack 'any reai human relationships'. In severai instances, he writes that the materials pose, in his opinion, a 'substantial nsk of hm' to the community although they contain no depictions of sex with violence (Cossman, 1997: 13 1)." Of the decision Car1

38 Importantly, Madonna's controversial Sex book was released in 1992, just shortiy after the Butler decision The book features Madonna in several S/M scenes with both men and women as well as a rape scene which she describes as 'playfiil' (Ross, 1997). The legai firm in Canada hired by Warner Brothers, Madonna's distrîîutor, ensured that the book "passed" inspection wilh Canada Custorns' top echeion before its importation into the country. This process is known as an advance review (Fuller and Blackley, 1995). 39 Aithough the decision in GIud Doy and R. v. *thes only apply to Ontario. ihey are exemplary of the use of the Butler decision against gay and lesbian se.d regresentations. Stychin (1995) writes, "explicit descriptions of gay male sex and magazines of nude men are constructed as degrading per se and an undue exploitation of sex. It is never entirely clear who is degraded nor why there is an undue exploitation of sex at dl" (p. 79)."

Thus, while not distinguishing the differential power dynamics in gay and lesbian pornography from that of mainstream heterosexual pornography, the 'risk of hm' test in

Bittler is deployed against these materials nonethe~ess.~'The Glad Day Bookshop (1 992) case was the first constitutional challenge launched against Canada Customs under section

2 (b) before Little Sisrer 's (1 996) and largely set the stage for the litigation in the latter.

Not six weeks afker the Butler decision was handed down, officers from "Project

P", the OPP's anti-pomography squad, seized copies of the lesbian pomography magazine, BadAttitude from Glad Day, a 'lesbian erotic fiction' magazine that at the time had a circulation of less than two hundred copies in the greater metropolitan Toronto area

(Ross, 1997). Criminal charges were laid against John Scythes and Tim [vison one month later. Coming shortly after the ruling in GIad Day (1992). the criminal prosecution of in

R v. Scythes (1993) tùnher illustrates the targeting of gay and lesbian pomography in the post8ictler era." The triai only lasted five days at which time Judge Paris of the Ontario

40 [nterestingly, Stychin (1995) also notes that a professor of sociology (unnamed) was caiIed as a defense witness in order to test@ as to the subcultural meanings of gay male pornography and the role such depictions play in the gay male community. He writes, "there was expert evidence led by counsel for Glad Day Books as to the specificity of gay male pomography and how the concems raisecl by the Supreme Court in Butler were simply not relevant to the facts. For example, a professor of sociology gave evidence on how the 'abasement' of the individual in gay pornography was depicted hmthe perspective of the man seeking abasement and in that sense control was maintained by him in the senario..... This analysis was rejected out of hand by the îrial judge who, after refening e.uten.iveiy to the Butler decision, reached the conctusion that eveqthng seized satisfied the test of obscenity" (Ibid: 79). " Judge Hayes diswses this 'harm' in the context of what the community would or would not tolerate however, he never specified which community he is refemng to. " The decision in Butler has also been used by Canada Customs to censor gay and lesbian materials which are non-semal as weli. This will be discussed further in the next section on the Little Sister's (1996) case. Court (Provincial Division) ruled that Bad Attitude was obscene under Criminal Code section 163 (8), therefore finding Scythes and Ivison guilty

In this case, the material in question was a short story called 'Wuma My

Fantasies' by Trish Thomas, and described a lesbian SM scene involving sex between

~trangjers.~~Mer hearing testimony from an expert witness, Dr. Becki Ross, and several of the artists involved in the production of Bad Attitude, Judge Park was unconvinced that the magazine did not pose a 'substantial nsk of hm' to women. Concomitantly, the fact that the subjects involved were two lesbians and not a man and a woman was of no legal significance to Judge Paris although the defense strongly argued against applying the heterosexual standard in Butler to the magaine in question. In fact, he explicitly denounced the specificity of lesbian-made sexual imagery while ruling that the 'community standards test is blind to sexual orientation or practices' (cf. Cossman, 1997: 133). Judge

Paris writes,

This type of material would apparenly fàil the cornmunity 's standards test not because it offends agakt morals but because it is perceived by public opinion to be harmful to society prticularly to women... . .If I replaceci the aggressor in this article with a man there would be very few people in the cornrnunity who would not recognim the potentiai for harm. The fàct that the aggressor is a female is irrelevant because the potentiai for harm remains(emphasis added) .u

Thus, the Butler tests of 'nsk of harm' and 'degrading and dehumanizing' are used against gay and lesbian sexual representations. Further the question of consent is not only obscured but marshaled against this material. As per Bufler, the appearance of consent cannot save matetials and may actually make such depictions even more 'degrading and

Ross (1997) cites several e.mples where Thomas includes details that support the idea of consent. Ross writes, "if Thomas's intent was to portray (and legitirnize) a rape, she would not have included numerous references to improving the cornfort level of the woman pursued, nor details of how 'the pursuee' happily participates in the exchange" (p. 16 1). 44 Decision of Paris Prw.Div. J., R. v. *thes, [1993]O.J. No. 537. dehumanizing.' The heterosexist and hornophobic bais of the Butler test is therefore never challenged and is used unproblematically by both Judge Paris in R v. Scythes (1993) and Judge Hayes in Glad Dqv (1992) (Cossman, 1997).

Conclusion

This chapter outlined the pertinent jurisprudence vis-à-vis gay and lesbian civil rights and obscenity law in Canada, both of which help shape the major legal arguments made in Little Sister's (1994). The importance of both legal trajectories cannot be understated; the role Customs continues to play in state censorship and any limitations placed on their policies and procedures are directly afTected by both section 2(b) and 15(1)

Charter challenges. Furthemore, this chapter traced the development of 'junspmdential ground' vis-à-vis gays and lesbians in Canada. Pnmarily, we cm see that Charter challenges regarding 'relational' rights do not fare nearly as well as those of 'status' rights.

When the Supreme Coun has recognized the discriminatory affect of heterosexually defined terms such as 'spouse' in order to equalize various statutes, they have only been willing to do so on 'pnvate' issues. Matters affecting the disbursement of public fùnds or benefits have not succeeded thus far on a national leveLJ5 Further, the targeting of gay and lesbian sexual representations heightened derthe 1992 Butler decision. In establishing new guidelines for determinhg what constitutes 'obscenity', the Supreme

Court in effect re-legitimated the moral and legal regulation of representations depicting non-hegemonic sexualities.

'' This also varies hmprovince-to-province. In Ontario and B.C. for e.wple. same-sex couples are legaily able to adopt and govenunent statutes regarding 'family' or 'spousal' benefits have &en amended to include samesex couples. Social Experts and Law: A Discourse Anaiysis

If I share nothing else with Foucault, what 1 do share with him is the problem of how. as a gay man, an academic, and a public intellectuai, 1 can aquire and maintain the authority to speak, to be heard, and be taken seriously without denying or bracketing my gayness. It's not just a matter of king able to devise and preserve a positive, undemonized comection between my gayness and my scholarly and critical authority. That problem of authorizition, to be sure, presents itself in its most acute form only to othenvise sociaily accredited gay men of the professional classes, but it dramatizes the more general social and discursive predicament of Iesbians and gay men in a world where a claheû homosexuai identity operates as an instant disqualification, exposes you to accusations of pathology and partisans hip.. .. .and grants everyone else absolute epistemological privilege over you. What Foucault, and 1 have in comrnon, in short, is our vexed and inescapable relation to the sexual politics of tnith.

- David Halperin, 1995

Infioductiun

The purpose of this chapter is to flesh out the themes which emerge in the trial transcripts of the Little Sisrer 's (1994) proceedings through the use of discourse anaiysis.

The first part of this chapter focuses on explicating what discourse anaiysis actually is, differentiating its interdisciplinary variations, and showing its strengths and weaknesses within the specific context of this study. It asks the following set of questions: What is a

Foucauldian use of discourse analysis? Why is discourse analysis the most appropriate methodology for the present study? How does discourse analysis differ fiom qualitative content analysis or socio-linguistics? What are some of the unique aspects of using triai transcripts? What was the methodology used? Fiaiiy, the second section of the chapter sets out the results of the analysis vis-à-vis constructions of 'expertise' and pomography in the Little Sister Li case.

Discourse Andysk: An ûverview

Over the last twenty years, discourse anaiysis has become a major tool in the social

science lexicon. Discourse analysis takes as its centrai premise the fact that Ianguage does

not simply reflect social reality; that reality is constituted through discursive as well as

non-discursive means. Despite its increasing prevalence in literatures as diverse as

sociology, psychology, cultural studies, and serniotics, the confusion and controversy over

what discourse analysis is continues. There are many variations of discourse analysis

employed within different disciplines. For example, socio-linguists use a version of

discourse analysis which is very technical and precise, consisting of breaking sentences

dom into their constituent parts and anaiyzing them according to various niles. Gregory

Matoesian's (1 993) study of rape trials is exemplary of this 'sociology of talk' literature.

Social psychologists have also taken up discourse analysis as a means by which to study

conversations, tum-taking being one exarnple. This literature looks at speech patterns

within various transcnbed texts and as Mills (1997) writes, "their forrn of analysis is

usually less concerned with content analysis or thematic analysis and more with questions

of the possible meanings of different discourses used by participants in speech and in text"

(p. 134) (see also Wetherell & Potter, 1987). Further, semioticians employ discourse

analysis as a means by which the sign and signified may be identified within language

embedded in texts. As these examples illustrate, discoune analysis means many different

things to many different disciplines and the methodological parameters for each are largely discipline-based. Furthemore. discourse analysis has become a major methodological approach in sociology generally, and socio-legal studies more specifically (see Adams,

1997; Cossman et ai., 1997; Chunn & Lacombe, 2000; Eisenstein, 2988; Ericson &

Haggerty, 1996; Herman, 199 1, 1994; Smart, 1989, 1995; Smith, 2000; Stychin, 1995;

Valverde, 1996).

Foucauldiart Discourse Analysis

How then does a Foucauldian use of discourse analysis differ fiom those discussed above? As Fairclough (1992) notes, discourse analysis must encompass far more than a recognition that language is an important aspect of social scientific research. Discourse analysis in this sense mut encompass a theocy of power relations and the institutional

mechanisms through which ceriain knowledge and knowers are ceriified as 'Tmth'.

Foucault's use of discourse analysis specifically foregrounds the connections between

power and knowledge in discourse. As Mills (1997) notes however, Foucault never

explicitly outlined a method by which to systematically isolate and analyze the circulation

of discourses, which makes this type of methodological approach difficult to

operationalize (p. 2-5). Foucault's work did not concentrate on specific statements,

identifjmg discourses at the level of the sentence or even a singular text. His concem was

with the rules by which certain discourses corne into effect and circulate, those he

described as "conditions of possibility" (Fairclough, 1992: 38). In taking up Foucault's

notion of discourse. Mills (1997) discusses the variation of the use of the tenn discourse

even within his own writing. She States, "discourse is a 'regulated practice which accounts

for a number of statements'. 1 take this to mean that, here, he (Foucault) is interested less in the actual utterances/texts that are produced than in the niles and structures which produce certain utterances and texts" (Ibid: 7).

Discourse analysis is often regarded as problematic as it necessarily challenges the objectivity/subjectivity binary in social science research. This is not accidental: as a methodological approach that problernatizes the construction of meaning through language, discourse analysis seeks a critical interrogation of those processes which privilege grand 'Truth' narratives and scientific rationality. As Mary Louise Adams

The task of discourse dysis is to determine which discourses are operating, when and how and in what configurations. in anaiyzing discourses one hvestigates the various processes - languages and social practices - whch make possible the statement of the 'tmths' that order Our social world - for instance, the aim of that heterosexuality is the most (or, in some versions only) natural form of sexual expression. The intent is not to prove the veraciîy of such claims or their alternatives, but to understand how if is thar they have corne ro be made (p. 6, emphasis mine).

This discussion highiights the fact that research which is not done within an empiricist or positivist hework, t hose rnodels deemed most 'objective', is oflen considered biased and therefore of lesser or no value. A Foucauldian approach to discourse analysis challenges this subjectivity/objectivity binary as problematic and in need of reeva~uation/deconst~ction.This certainly does not mean the researcher is free to adopt an "anything goes" perspective. However, as the analysis in this chapter demonstrates, the privileging of objectivity, neutrality, and hlly operationalized research methods is central to our understandings of who can be a credible and usefûl expert. 'Doing ' Discourse Analysis: Rarsing Methodologid Questions

In her reflections on 'doing' discourse analysis with transcribed interviews,

Melanie Nirnrno writes, "discourse anaiysis is difficult work. Often things that look straight-forward at first, that 'make sense', become complicated and contradictory at later stages of analysis" (p. 8).& Certain qualitative content analyses, even those which 'count' images or words for exarnple, are done with an interpretive framework. However, as

Cume (1999) notes, "high rates of reliability (Le. 'repetition') do not guarantee validity".

The researcher must therefore malyze both the manifest and latent content. As Melanie

Nimmo also suggests, this does not make discourse analysis "cut and dned" or "neat and tidy" (p. 9).

Certainly this poses real epistemological and methodological problems for the

researcher. How do I know what I know? How cm 1justifi the truth of my claims?

How did 1 come to the conclusions/analysis that 1 did and is it valid? I do not purport to

answer these questions entirely in this study. 1 raise them as a means by which to remain

self-reflexive about my own position vis-à-vis the knowledge production process. These

are important concems to many feminists and other cntical scholars who are actively

engaged in designing more equitable and liberatory research practices (see Comack, 1993;

Harding, 1987 & 1991; Hartsock, 1983; Reinharz, 1992; Smith, 1987 & 1990). The

purpose of raising these questions here is to draw attention to the ways in which discourse

analysis can be used effectively and reliably. In order for discourse analysis to 'work'

properly, the researcher must ask a meaningful set of questions and integrate the themes

46 Nimmo, Melanie. "Discursive Ruptures" Discourse Analysis, Truth Clairns and Gendef'. Paper presented at the 35th Annual Meetings of the Canadian Sociology and Anthropology Society, University of Alberta. May 30th 2000. properly through the use of the data available. The vaiidity of any discourse andysis arises out of the researcher's ski11 and integrity in the analpic process."

The Use uf Trial Transcripts

Trial transcripts are a uniquely valuable form of 'data', because they are a verbatim account of the proceedings. The transcription erron are minimal: court stenographers

often ask participants to repeat information that was initially missed, they include verbal

stutters, the "uhrn's" and "ah's", and try to capture the verbal transactions with the most

accuracy possible. However using trial trmscnpts does present certain challenges, in that

law places limits on the 'text', the verbal interaction is limited because only cenain

subjects can be addressed within particular legal parameters." Two legal aspects lirnit

what an expert is allowed to Say: scope and hearsay. Expert rnay only Qive opinion

evidence on topics which the court has deemed them sufficiently knowledgeable. Any

other issues or lines of questioning, pursued by either counsel, may be deemed outside the

scope of the expert's opinion, and therefore not admissible as evidence. Further, some

evidence may be deemed hearsay if it is not within the expert's direct field of knowledge.

Experts are not allowed to speculate or give opinion evidence on things they have 'seen'

or 'heard', this is considered hearsay. As we shall see, this lirnits and stnictures what

experts are ailowed to say 'on the record'.

." Ironically. this is part of the reason why the social experts testifjing on behalf of Little Sister's were attacked and dismissed as biased and not cradible. Their research was sem as unreliable, unbiased social scientists could not repiicate thcir research nor couid they be 'proven wrong' as such- This is in faci one of the mminteresting pans of this study: what is allowed to k said, what are the silences, what topics becorne off-limits to certain e.uperts but not others? fie Little Sister's Trial: A Meikodological Framework

The methodology employed in this thesis is based on Cume's (1999) notion of

' symptomatic reading' . Currie ( 1999) writes, "The interpretive method emerged during the doing of the project: in other words, it was not a methodological move adopted as a way to collect or organize the data. Syrnptomatic reading emerged fiom treating the data as 'texts': as texts the data are not seen to reflect a reality which the researcher represents, whether through qualitative or quantitative description" (p. 110) (see also Adams, 1997;

Herman, 199 1 Kinsman, 1987 Ross, 1997; Stychin, 1995; Valverde, 1996). The main tenet of this methodological approach, also referred to as 'grounded research' (Glaser.

1967), is to irnrnerse oneself in the text without imposing a pre-existing framework on the

data. The purpose of total immersion is to discem the themes which arise in the text

(Berg, 1998: 23 1). Themes are identified in the transcripts through a process of ope11

coding. There are four basic elements to open coding: 1) "analyze the data with a specifx

set of questions in mind 2) make your analysis very detailed 3) intempt the coding to

make theoretical notes and 4) never assume that gender, race, or social class are

necessady relevant udess the data has shom its relevance" (Berg, 1998: 236).

The process of 'open coding' began with a close reading of the transcribed

testimony of nine expert witness." For Little Sister's the experts were: Gary Kinsman,

Becki Ross, Bart Testa, Bruce Ryder, Arm Scales, Carol Vance, and Thomas waugh.'O

" In total, over six-hundred pages are included in the anaiysis. This is excluding Justice Smith's decision, rendered in 1996, which is over eighty pages long. " The complete witness list for Little Siger's includes: Don &nn, Pierre Berton, Persimrnon Blackbridge. Pat Califïa, Judy Capes, Jim Deva, Celia Duthie, Sandra Haar, Louise Hagar. Robin Hand, Michel Foster, Gary Kinsman, Dennis Mahoney, Kim Mistysn, Ierald Moldenhauer, Nino Ricci, Becki Ross, Jane Ruie, Bruce Ryder, Ann Scales. Sarah Schulman, Rob Skefly, Bart Testa, Carole S. Vanœ, Scott Watson, Thomas Waugh. Lorraine Weir. Evidence was submitted in writing by: Chris Bearchell, Bill Coleman. For the Crown: Neil Malamuth (written submission only) and William Marshall ( in vivo testimony)." The transcripts were read three times and in no particular chronological order.'* Categones of analysis were produced out of these readings, which allowed me to

'ground' my categories in the data. The salience of a theme ofien emerged by the length of time spent on each topic during the direct examination and the cross-examination, or the recurrence of particular lines of questioning across several witnesses. Objections also signaled an important issue. Objections usually occur over testimony or lines of questioning which either party finds legally questionable. From the close readings, four significant themes emerged, al1 of which relate to establishing mzd maintainittg credibility:

Constnicting 'Bias'; The Peds of Being Definitive; 'Theory' versus 'Science': The

Privileging of Positivism; and, 'Othenng' Expertise: Pomography and Knowledge

Disqualification.

The construction of 'bias' is one of the most important findings to emerge fiom this discourse analysis. Casting doubt on the objectivity of an expert's opinion is done by the Crown to neutralize the effectiveness of the evidence presented by the witnesses for

-.. -. . .- . - William Fisher, JoAnne Loulan, and Jay Scott (for the background of each witness see, Fuller and Blackley, 1995: 203). " 1 am e.xtremely grateful to both Janine Fuller, manager of Littie Sister's and Irene Faulkner, counsel for Littie Sister's (Arvay-Finlay Barnaers, Victoria & Vancouver). Irene aided this thesis tremendously by providing me with the transcripts at no cost in June, 2000. Janine has also been instrumentai in giving me her account of the trial, the feelings of the Littie Sister's team throughout and her recollection of which e-xperts "had a tough timen (personal conversation). '' The chronologid order of the tenimony is often strategic for legal purposes For instance, muwel for Little Sister's felt that Becki Ross' testimony had knparticular ly discredited and therefore quickly decidd to cal1 Carol Vance to testa at the Iast minute (Fuller & BIackIev, 1995). 1 felt that knowing this Little Sister's. Throughout the testimony of Carol Vance, Gary Kinsman, Becki Ross, and

Ann Scales, the Crown used two main tactics to undermine their credibility: 1) the expert was presented as 'biased' or as an 'advocate'l'activist' and 2) the expert's ability to discuss Iegal matters was challenged, legal issues are seen as the sole purview of the

Court. Through these two strategies, the credibility of four social experts testifjmg on behalf of Little Sister's was challenged and undermined.

Establishing and maintaining an expert's credibility is one of the most critical aspects in ensuring knowledge claims will be 'heard' within a legai context. The co~ectionbetween credibility and expertise, vis-à-vis law, has been most thoroughly investigated with respect to the testimony of scientists. Scientific credibility within each discipline is established through 'boundary work' wherein members of a scientific comrnunity decide what constitutes 'good work' and 'bad work' and lend their approval accordingly (Jasanoff, 1995). What is important to this thesis is Jasanoff s (1 995) argument that this type of boundary work is just as comrnonly found within legal discoune, when judges and lawyen decide between valid and invalid presentations of evidence through the process of qualification and oral examination (p. 53). At this stage, the judge performs a 'gate-keeping' function, making the final decision as to whether or not an expert may be admitted, and the exact scope of the testimony. However, Jasanoff

(1995) also argues that non-legal factors, such as personal credibility (Le. appearance or demeanor), may ultimately determine scientific credibility (p. 55). Despite an adversarial process which seeks to undermine the credibility of the opponent's scientific expert, the entire process works towards maintaining the institutional authority of 'Science'. More iype of chronologicai information would negaîively influence my analysis and 1 thedore proceeded importantly however, the values, biases, and presuppositions of the triai judge affect his or her 'boundary work'. She writes, "more insidiously perhaps, judges are swayed by their perceptions of what "science" is, and who is a "scientist" when they certiS, an expert's credibility" (Ibid, p. 59). Although Jasanoff' does not specifically discuss experts outside the nahirai sciences, the testimony of several social experts for Little Sister's indicate that credibility is a major factor in the adjudication of the legal relevance, and thus

'usefulness', of one's testimony.

In the Little Sister's case, credibility was a major issue for two prominent women

acadernics who testified on behalf of the bookstore. Canadian sociologist Becki Ross and

Amencan law professor h Scaies both had significant difficulties establishing and

maintaining their credibility. A primary strategy used by the Crown was to constmct

Ross and Scales' testimony as "activism" or "advocacy" by demonstrating that their

testimony was bound up in their politid positions. For exarnple, in cross-examining Becki

Ross, Crown counsel Shma imrnediately asked Prof Ross about the effect of her expert

opinion evidence in the 1993 trial of R v. Scythes, in which she was called to testifi in

defense of the lesbian erotic fiction magazine Bad Attitude. In that case, Judge Paris

ultimately dismissed Prof Ross' testimony and found the publication to be 'obscene'.

Sharma asks:

Q. Professor Ross, you testified in a provincial court case in Toronto, which was a prosecution of Mr. Scythes regarding a particular issue of Bad Attitude magazine, is that ri@?"

A. That is correct.

through the transcripts in alphabetical order instead. '' Transcripts, p. 227. All material hmthe Little Sister S (19%) tmmipts hence fonh will be marked by the page number only. Any italics are my ernphasis. Q. And 1 understand that you gave testimony in fâvour of the accusecl, and that your testùnony thaî particular issue was not obscene, is that right?

A. That's right.

Q. And you are aware that the judge was not pemaded by your testhony and found that the magazine was obscene anyway, is that right?

A. 1 think he likely based his decision on a number of factors and that my testimony was not determinative in his final statement.

Q. 1 was just asking you about your awareness. You were aware that there was a conviction, is that right?

A. Yes, 1 am aware of that.

Q. Would it be correct to describe you as a lesbian feminist, is that fair?

A. Yes.

Q. And I take it that your testimony today and your opinion cornes parily fiom that description, is that right?

A. Yes - 1 think so. I'm not -

Q. 1 think it was a simple question.

A. Yes. i think it was too. I think it is a simple answer.

AM Scales' qualification was challenged on similar ground when Crown counsel Shma asked Ms. ScaIes:

Q. I'm also looking at a report where you stated out your qualifications, and you can tell me if this is correct or not. You consider yourself to be primarily a lawyer, political activist, is that acc~rate?~

A. Yes.

Q. Can you describe what you mean by activist?

A. 1 have long been working both as counsel and as an organizer with respect to specific issues of interest to women as well as to gay and Iesbian communities. Those include orgmking agairist pomography, developuig public techires and other educational materiais about pomography. This line of question was then taken up a second time by Crown counsel Faizon in his cross-examination of Ms. Scales regarding her 'political' stance as afemiriist:

Q. Thank you. Ms. Sharma, counsel for the Federal Crown, asked you a question conceming your role as a political activisf which 1 understand fiom your evidence you take to be an extremely important and serious one, is that right?

A. Yes, sir.

Q. And would it be fkir to Say that the report that you prepared.. .. . August 30, 1993 - was really part of that advocacy role, was it not?

A. No, 1 was responding to a specific request From counsel.

Q. Yes, And so your paper did not reflect - the contents of the papa did not in any way reflect you role as an advocate and activist?

A. It is rnisleading to assume that my role as advocate and as scholar as separate; that is to say, the positions that 1 reached in that paper are formed by the clearest. most purely political activists, evepthing fiom that to most scholarly......

Q. 1s it fair to say, based upon what you have jud said, that the opinions expressed in your report not ody concerning the books, but concerning rnay other areas are uiextncably linked to your philosophical belief system.

A. P hilosophical belief system3

Q. Your philosophy as a radical feminism antipomography advocate as you have been described.

A. Yes, because that is my academic expertise......

After objecting to her qualification as an expert witness, Crown counsel Sharma argued:

Sharma: Just one more comment from page 307, my lord. That's the fourth point. It is stated in strong language here that the report was a thinly disguised argument made by a partisan advocate. My submission on that point is that that applies in this case as well. You head the witness test@ that her - 1 believe I'm correct that her expertise mmes from a mixture of her academic and activist role.

The Court: Weil, that proposition requires me to assume that the witness is unable to eqress an objective opinion because she is an activist.

Sharma: My submission is that it seems to me her evidence is that her opinions, her infirences are dravm not only fiom her academic legal expertise, but fiom her role as advocate. in that sense it does potentially impact on whether this is a thinly disguised argument or tmiy un expert opinion. The credibility of both Gary Kinsman and Carol Vance becarne a problem due to their discussion of issues pertaining to law. As the legal literature on the use of experts makes clear, discussions of law are the sole purview of the court. McLaughlm (1988) writes,

As a result of the cases discussed above, 1 suggest that the B.C.courts have made it clear that opinion evidence is to be confined to providing the trier of faa with assistance in understanding scientific or technical matten not withm the common knowledge of the reasonable laypenon. It is not permissible for experts to purport to interpret the law, to make findings of hct, to give opinions on rnatters within the cornmon knowledge of laypeople, or worst of dl, to make arguments in guise of evidence (p. 4.1.64)."

Thus, it is particularly important at the stage of giving oral evidence that the issues be identified for the expert, and their evidence circurnscnbed accordingly. It is the duty of the court to conduct the "fact-finding function" (Finch, 1988: 3.1.06)'~and as such, expert evidence is necessary only in providing insights into specialized or technical matters.

Experts who do opine on legal rnatters are ofken challenged by opposition counsel.

However, the experts testifying on behalf of the bookstore were challenged as credible and authorized bers,not simply experts opining on legal matters. For example, when Gary

Kinsman was asked on cross-examination about his evidence pertaining to the raiding of gay bathhouses in the 1970s and 80s and the discriminatory effects of the 'cornmon bawdy

house' ;ah, he was imrnediately accused of bis by Crown counsel.

Q: Would you agree with me, I'm not asking you to address legal questions, but in tem of the Criminal Code, the section involved deals with scx in public, it doesn't deal with homosexuals in bathhouses .57

- - '' Continuing Legal Education Society of British Columbia (1988). Operts and Expert 's Reports. Matends prepared for a Continuing Legal Education Seminar held in Vancouver, B.C., November 5. 1988.

56 Supra note 54 57 p. 127 A: There's awther clause in there andlor acts of indecency, how gay men were able to be arrd in the bath raids in Toronto in the early 1980s, ths bas also been used in Montreal in the last year under that clause, acts of indecency... . .The only reason acts of indecency can be used to apply to gay sexual acîivity is because there is still at least some currency for notions that gay se?c is indecent. The question about whether bath houses are public 1 think is quite disputeci, the Iegal notion 1 mean -

Q: I'm not talking about the legd notion itself. 1 was more concerned about the conclusions you draw fiom having looked at the provisions in the Crimuial Code and, of course, whar Iparticularly concemed about is whethet there is bias in pur opinion?

Q: And so îhat's why I'm puning it to you that the Crimùial Code section itself on the face of it is not directed at hornosexuals, is that correct?

A: But it -yes, that is correct. I mean it does not specifically refer to homosexual acts but it's important to point out that the clause in it referring to acts of indecency has been able to be used and interpreted by police forces anyway to lay charges against gay men for engaging in consensual sexual activities behind locked CU bicle doors.

Q: Yes

A: Which 1 would understand as king private king a -

Q: That's okay. I'm just talking about how you are interpdng as a sociologist for the Court.

Sirnilarly, during her qualification as an expert anthropologia, Carol Vance was cross-

examined on her ability to give opinions as to the comparative legal treatment of

pomography in the Western world.

Q: So you agree with me that you're discussing law and policy?

A: I am discussing the cultural mors that impinge on policy formation.

Q: Are you talkuig about law?

A: 1 am talking about law in some case ......

Q: Sure. And in the fint page you taik about legai cases that result? At the fim page, you ialk about legal cases that resuIt as part of your opinion?

A: i'm not sure what you're asking me. Q: Do you - well, let me ask you -let me ask you what you're takng about "Englishspeaking countries" fint ofall. What is an English-speakmg country? What are you referring to? Are you talking about countries with Commonwealth heritage?

A: Yes, but I'm not, in this material, talking about countries with colonial connections because tbat is a different history with a more complicated series of events that are involved.

Q: Al1 right. Do you have a Iaw degree?

A: No, 1 do not.

Q: Have you received any fornial legal training?

A: No.

Q: Have you received forma1 legal education in the understanding of legal cases and regulations?

Q: Have you studied any of the law and regulations of English-speakuig countries?

A: Yes.

Q: Do you know the manner in whch the regulations of obscenity is dealt with in -through Customs in Canada?

A: 1 have read some material about that, yes.

Q: Do you know if any Customs officers in other countries apply guidelines or policies or law in determining what law items to prohibit?

A: At the level of Customs?

Q: Ya, in the English-speaking world?

A: Yes.

Q. Do you know the laws of New Mand?

A: No. 1 know the laws of Australia.

Q: Do you know the laws of Great Britain?

A: Yes, 1 do.

Q: Okay, the Republic of Ireland?

A: Less so. Q: Bermuda?

A: Yes.

It is apparent Eorn this line of questioning that the Crown objects to Vance's inclusion of legal cases and opinion in her written submission. Although counsel for Little Sister's never intended to use Prof. Vance as a legal expert on international obscenity regulations, this line of questioning casts doubt on her credibility as an expert witness. Therefore, the two factors which emerged as important in undermining the credibility of the experts for

Little Sister's were the construction of bias and the circumscribing of certain opinions pertaining to law. In the case of both Neil Maiamuth and William Marshall, expert psychologists used by the Crown, their credibility as scientists was never challenged by counsel for Little Sister's nor was their research as biased?

'Categorhliy Speaking': The Petils of Being Definitive

In cases such as Little Sister 's, the complexity of the materiai presented and law's refusal to 'heu' answers outside of a 'yedno' framework presents particular difficulties for social experts, as opposed to naturd scientists or other researchers who are able to present their findings in more clear-cut ways (Le. through the use of statistics). Ambiguity is incommensurate with the legal imperative to work within the binary systems of righthrong and goodhad. Despite this however, social experts must answer categorically, either to advance the cause they are testifjmg for or to defend their position

as credible knowers. Mariana Valverde (1996) argues that she felt the necessity to be

-- - - " As 1 oAen found throughout tbis anaiysk, the= is no section from Marshall's testimony which is comparable because such a discussion ofhis credibilify or expertise never took place. Thus. attending to unwavering in her position when testwg as to present herself as a usefui witness. She writes,

Not wanting to undermine the case for which 1 was testifyuig, and having the impression that for lawyen social science basically rneans positivistic hwledge, 1 have okn given my mersa much more definitive epistemological status than 1 would do in teaching a class. Contributhg to this 'positivistic effect' was the fact that 1, like any other witness, had to swear to tell the whole mthand nothing but the truih, a procedure which is completely contrary to the epistemological p~ciplesthat 1 follow in my own research but which as presented to me as 'a mere fonnality', something not open to challenge (Ibid: 208, my emphasis).

This need to be definitive in one's answen and thus definitive about one's knowledge, worked against several social experts in the Little Sister's trial. Both Gary Kinsman and

Becki Ross were repnmanded for their categorical answen on cross-examination by

Crown counsel. These reprimands serve to cast doubt on the expert's 'reasonableness' and by extension, their credibility. Furthemore, the definitiveness of both Marshall and

Malamuth's positions were never challenged as problematic by counsel for Little Sister's.

In both instances, the categorical answen challenged were those given in

discussions about gay and lesbian SM. Throughout the Little Sister's trial, the Crown

tned to link the consumption of gay and lesbian SM pomography to actual, lived

violence in gay and lesbian relationships. As 'risk of hm' is the new post-Butler legal

detennination for 'obscenity' in Canada, it was irnperative for the Crown to show the

similarities between the risk flowing from both heterosexual and gay and lesbian

pomography, particularly of the SIM genre. Both Kinsman and Ross firmiy resisted these

connections drawn by the Crown and tned to present alternative accounts which rested on

establishing the socio-cultural and political importance of gay and lesbian SIM, and

the absences in the text is often an equaüy important par? of discourse analysis as describing/anal@g wbat is present in the tact (see also Little, 1'398). distinguishing it fiom rnainstream heterosexual S/M pomography. This resistance largely stems from their refisal to use the heterosexual 'nsk of mode1 as delineated in

Butler, and their objections to it being imposed on a gay or lesbian context as the Crown did throughout the trial. Further, in resisting the Crown's position on SM, (which was predicated on laboratory research done by social scientists such as Neil Malamuth), both

Kinsman and Ross were reprimanded for their definitive stances. For example, on cross- examination Gary Kinsrnan was asked by counsel Van Iperen:

Q: But again, 1 put it to you, sir, that - and we are taiking about, let's say we taik about the activity now in the culture, I assume we are now talking about the activity, that the trust again would depend on the nature of the participants6'

A: Uh- hum

Q: You don? know whether that is always there.

A: Right, 1 am not arguing that in every single case every activity that is engaged in between two men that might be characterized as SA4 that it's always cornpletely 100% consensual. What 1 am saying is if you understand it as a cultural social practice that the cultural has been produced, the type of roles and fomof behaviour, if you want, that have been producai, are bas4 on consent, are based on questions of tma and respect for how Far the bottom wishes to go in thcse relationshps.

Q: Thank you. You indicated that heterosexual pomography is problernatic for women because it refiects and may reùûorces socid problems, domestic abuse, violence and 1 assume, you didn't say that , but there is the equality rights involved in this context?

A: Yes, I would agree with that.

Q: Now, you said that same argument ca~otbe made for gay male pomography, that's what you said.

A: That's correct.

Q: Iust simply cannot be made. You also indicated that sociological research in this area is in early stages, is that right?

59 This 'ri& of harm' test is the foundation of the Butler decision and is based on arguments presented by LEAF. This analysis centres around unequal gender pwer in heterosexual relationships, male violence against women, paixiarchy, and misogyny. 1 develop this point more Mly in Chapter 4. p. 140 A: At that point 1 was referrllig to ethnographie and other sociological investigations and studies of SA4 although 1 had pointed out here had been important pionee~gresearch in this area.

Q: There is not fil1 research in this area?

A: That 's correct.

Q: Would you agree that it might be a bit premature to be that categorical ihat no problems exist with gay male porn?

Q: Let's talk about gay male pom. Not rnany studies have been made of gay male pornography and the effécts.

A: On the effects in what sense?

Q: Well, let's say in terms of harm?

A: You are probably right but 1 think in part it's because there is no way thar you con ach

Q: You're quite categorical that the sarne argument that could be made about heterosexual pornography which may be problematic for women .... .the same argument cannot be used for gay rnaie pomography?

A: From the soci&gical historical research 1 have done that's the concIusions 1 have reached and aiso looking at the other research thhas been done on the topic there is simply no sense in which I can see that there are pervasive problems produced by gay pomography in the context of gay communities and gay relationships.

Similady, Becki Ross' testimony regarding lesbian S/M pomography was attacked by the

Crown as unreasonable and her position dismissed as entirely unsubstantiated.

Q: Now, I'm referring to a repon that was prepared for Mr. Amy, and you can let me know if this is still part of your testimony or if it's a statement you agree with. In that report, you stated that there is nothmg inherently derneaning about lesbian semai aaivity including S & M activity. 1s that your view?'

A: That is my view.

Q: 1 take it that is assuming the activity is consensual. A: Al1 lesbian S & M fântasy and aaivity is cofl~ensual.~~

Q: We4 Proféssor Ross, you don 't actualiy know tht do you?

A: 1 can tell you that 1 can base that statement on 15 years of analyzing lesbian S & M subculture, lesbian S & M matenal and my close relationships with lesbian S & M participants and the lesbian S & M subculture in a number of different cities.

Q: But you would agree with me that - and 1 don't mean to be flippant, but you would agree with me that in sorne circumstances, it's possible there may be a problem with consent in lesbian S & M activities, is that Gr?

A: No.

Q: Not at dl? Not ever?

A: No.

Q: 1s that your -that is your view?

A: That is my view.

Q: You are testifyuig today that you know of every lesbian person who engages in S & M activiîy, are pu?

A: No, I am not, and I did not that i was speahg as a representative of al1 lesbian S & M participants or ail lwbian subcultures.

Further, on cross-examination by a second Crown counsel member, Prof. Ross' position was chailenged when asked to comment on the work of Neil Malamuth.

Q: With respect to social scientists themselves, would you concede that there are social scientists who argue that -la me start this way. Have you heard of Dr. Neil Malamuth, Professor ROSS$

A: Have 1 heard of hirn?

Q: Yes.

A: Yes.

" It is important to note that Becki Ross' partidarly di££ïdte.uperience tenirying in R. v. Scyhes immediately bef0~this triai may have contribuied to her catego& stance in ~iftieSisfer 's. Ianine Fuller and Stuart Blackley (1995) write, "the 1993 BadAftitudeobxenity üial - its messy execution and dispinting defeat-was not just personaily haunting to Ross. The case had also given Iegal weight to some dangerous sociologicaf "midence" about lesbian and gay pornography. Like a bad ciream, that evidence was resuffaced in Courtroom 65 (p. 101). 63 p. 241 Q: Do you know who he is?

A: Yes, 1 do.

Q: And you are aware that Professor Malarnuth - would you consider or agree that - would you agree tbat Dr. Neil Malamuth is one of North Amerka's leading authonties on research into the links between pornography and harrn?

A: From my understanding of Neil Malamuth's work, he has conducted a number of studies attempting to investigate the meaning of heterosexual pomography.

Q: Can you advise the court of anyone that you are aware of that has more studies than he has?

A: More midies of the character and focus of his, do you mean?

Q: Yes.

A: In terms of the particular scientific perspecuve that he assumes, 1 don't know of othen that have conducted the work that he does - that he has to the extend that he has.

Q: Did Dr. Malamuth testiS, in the case of R. and Scythes, a case refed to by Ms. Sharma in her crosselcarnination of you?

A: Yes.

Q: And you testified in that trial as well?

A: This is Scythes?

Q: Scythes.

A: Yes.

Q: I'm showing you a passage fonn an article written by Peter Kendall, and 1 have highlighted the article or the passage fiom Dr. Malamuth's testimony, and 1 would ask you to read the highlighted pawge out loud, please.

A: There rnay be similar processes operating regardless of the semial orientation of the material. I therefore suggest that it may be appropriate to generalize fiom this research to the specific content in question, even though there are sorne ciifferences in content. in keeping with considerable research, I am suggesting that processes of inûuence, atîitude change, normative effects, consequemes ofarousai etc., do not differ fùndamentally as a function of a person's sexual preference. Therefore, in many areas, similar theoretical models may be applied to both heteroswals and gays. Furthemore, there are many sirnilarities among gays and straight people in motives for various behavioun, includllig sexual activity and in problerns ofsaual and non- sexual coercion".

Q: Thank you very much. The question 1 would like to ask you about that is this. As a social scientist, do you accept that this a reasonable statement by Dr. Neil Malamuth? A: I do not. 1 think there is absolutely no scientific validity to the statement whatsoever.

Q: Well, you are of the view that it is an unreasonable statement for him to make?

A: I do.

Q: Thank you. As a social scientist, Professor Ross, 1 have put it to you that it would at best, given the state of the social science research, ir would besr be premature to express the caregorical statement that you have just made?

A: I fiindamentaily disagree. As a social scientist, one of the principles that we operate from is the principle that we do not generalize fiom research c&ed out in one specific context for a specific set of purposes and objectives to another context. This is an absolute violation of the principles of social scientific research.

Q: Notwithstanding any similarities berneen those two conte-?

Despite both Kinsman and Ross' objections to analyses based on the work of Neil

Malarnuth, this research figured predominately in Justice Smith's decision. This relates

specifically to how the credibility of certain experts was established and that of others

undermined. Despite the controversy around laboratory experiments dealing with

exposure to pornography, pmicularly the absence of this type of research using gay and

lesbian material or subjects, Justice Smith accepted this evidence as sufficient to determine

that gay and lesbian pomography may pose a 'nsk of hm'. Dunng summations, Joe

Arvay argued that the dtten report of Dr. Neil Malarnuth should not be included as he

did not testik and therefore counsel for Little Sister's had no opportunity to cross-

examine him on his research. Justice Smith was primarily concemed with the adrnissibility

of social scientific evidence as this was an integrai part of determinhg what type of 'hm'

may flow fiom exposure to gay and lesbian rnaterials. In addressing this point Justice

Smith writes, The plaintiffs do not object on this ground of relevancy. The €deral Crown contends, comctly, in my view, that the material is relevant to show that there is a body of scienrifc opinion that would provide a reasonable and rational basis for Parliament to conclude that homosexual obsceniîy causes harm to socïety. As the issue is not which social-science school of opinion should prevail, but only whether there is a rational bais for Parliament to act, the hct that the evidence was not offered viva voce and was not testecl by cross-e?caniinationis not fàtai to its admi~sion.~

Justice Smith goes on to say that the causality of this relationship was not offered as evidence nor is it of primary importance; the only question of law before him is whether such apprehension of harm exists, a supposition he felt was supported by the research presented by the Crown in this case.

Funher on in his analysis, Justice Smith had to determine whether or not the

materials in question posed a 'substantial risk of hm', as laid out in Burler. Again, there

is no need for the Crown to prove that this link between obscenity and hmis a causal

one. On this point, Justice Smith referred to the work of Prof Neil Maiamuth extensively.

For example, the federal Crown referred to the opinions of Professor Neil M. Maiamuth of the University of California, Los Angeles, a psychologist who has extensive eqerience in the study of the psychologicai aspects of pomography, sexd aggression, and media effects. Professor Malamuth's research fuidings and opinions have been pubiished in books and professional journals. He is known to espouse the view that pomography produced for homosexuai audiences rnay cause the kinds of changes in attitudes, emotions, and behaviours identified in Butler as hdlto Society. While the expert wimesses called by the plain@ were more or less critical of Profissor Malamuth 's methods and conclusions. they generally acknowledged thai he is a Ieading researcher in thefield. ... .Thus there is a body of social-science evidence that would support Parliament's reasoned apprehension that obscene pumograp hy produced for homosemal audiences causes harm to s0cietyP5

64 para. 113, rny emphasis. " para 195. my emphasis. Therefore, answering questions categorically can explicitly work aguinst a social expert's ability to maintain credibility. In the case of Becki Ross and Gary Kinsman, the fact that they lacked what the Crown perceived as the requisite 'empirical' (laboratory-based or quantitative) research on the issue of gay and lesbian SM ostensibly precluded them fiom being definitive in their knowledge claims and rejecting analyses denved fiom the work of people such as Neil Malamuth. Despite a noticeable lack of research in this area,

Malamuth was able to be categoricai because his status in the epistemic hierarchy, as a scientist, construas his expertise, and thus research, as reasonable, rational, and cornmon sense.

'Theory ' versus 'Science': The Rivileging of Posiîivism

The work of those social experts testimng on behalf of Little Sister's was ofien dismissed as 'theory' or 'literature reviews' because it did not fa11 within the laboratory mode1 of scientific ('empiricist') research. A social expert's inability to maintain counter- hegemonic daims, and therefore credibility, is often predicated on a perceived lack of empirical research to substantiate a position. The following theme funher relates to the overail discussion of credibility because it demonstrates that within Iaw, not ail knowledge is considered 'research'. Further, in the case of Carol Vance and AM Scales. the Crown continually diflerentiated their research from 'Science' for the Court.

Neither Gary Kinsman or Becki Ross were able to adequately substantiate their positions due to a perceived lack of empincal research on this subject conduaed either by themselves or othen in the field of sociology. The issue of 'hm', particularly within the context of gay and lesbian pornography, was a major problem for both Kinsman and Ross throughout their testimony. Although this pnvileging of positivism was found to be most acutely related to this issue of 'hann', the treatment of several social experts throughout

Little Sisfer's suggests that the bifùrcation between 'social' and 'scientific' research is a more general finding. For example, on cross-examination Gary Kinsman was asked:

Q: You say degradation in homosexual S/M behaviour does not carry over into the rest of the lives of those participants, is thai ~onect?~~

A: That would - that's what 1 said. That wouId generaily be the case. What I'm getting at is there is at least the possibility in a heterosexual SMrelationship where the man was the top and the woman was the bottom, that that could also be stmctured into relationships of inequdity that is not present in gay SM relationships.

Q: Dr. Kinsrnan, there is no empirical reseorch that you could point to that would support that proposition, is there?

A: What I just said there is some ernpincal research on S/Mthat taiks about the gay SM, that talk about the practices that these people engage in. There is, for instance, an article by Spangler in a book called "SNthat 1 could actuaily dig out the actuai ceference to if wanted to look it up. There certainly is some empirical and certainl'y a lot of experientiul and anecdoral evidence thar wodd bock thar up.

Q: Isn't it your evidence that there isn't even the possibility that degradation and SM can cany over into the rest of the participant's life?

A: Are you referring specifically to gay SM?

Q: Specifidly gay SIM.

A: What 1 thought 1 was arguing, 1 hope I was arguing, there is not the same relationship between power and other forms of problems in relationships if you hvestigate gay S/M culture. It's quite clear that the quenion of gay S/M relationships is entered into in the context of an erotic culture. It's not something that debsomeone subjectively or penonally outside of that relationship.

Q: Dr. Kuisman, are you saying that degradation and gay male SIM behaviour never carries over into the rest of the participants' lives?

A: 1 would cenainly not want to be seen as saying somethmg never happais, but that is - 1 mean, problems of violence, the abuse in power in relationships could occur among any group of gay men. It's not something that is reducible to SM relationships.

Q: There's no empiricul research which indicates that degradation in gay male S/M never carries over to the rest of the participants' lives? A: There would be no research that would say it never &es over but, for instance, the research that has been done on problems of domestic violence, what is of'ten referred to as domestic abuse in gay relationships would not focus on SM as being as problem here. What is talked about are other aspects of gay male experience and culture and the problems that develop within relationships themselves. So there is research that exists that does not pinpoint S/M as the problem in ternis of causing or leading to some of those difficulties in gay male relationships.

Sirnilarly, Becki Ross' cross-examination on the relationship between 'hm' and lesbian

SM centered around the same perceived lack of research on the topic.

Q: You are of the view that to combat homophobia necessitates access to -

A: Sexuaily explicit material.

Q: -the entire anay, including as you put it or as it has been describeû, S & M sex?

A: Yes, 1 do.

Q: It's true rnoreover, isn't it Profasor Ross, that very linle, if any, social science research has been conducteci on the possible Iinks behveen S & M sexual imagery and harm to hdividuals in socieîy?

A: Are you speakmg about lesbian S & M materials?

Q: Yes 1 am.

A: As far as 1 know, there has been absolutely no scientific - social scientific research that has been done with experimental control groups in ways that a soçial science project would be conducted.

Q: So there is no social science research indicating a conclusion one way or the other, isn't that right?

A: As fàr as I know, there is no conclusive evidence one way or another, nor is there conclusive evidence on heterosexual material, S& M or othenvise.

Q: You have in fact anticipated my next question, whch was concerning heterosexual material. in Eict, that was the finding of the Fraser Commission, there was no conclusive link -there was no causal Iink established 1 believe was the tenn of reference between sexual violence between men and women and hami in society generally, isn't that right? .**....

A: 1believe ths is tme, that there was no conclusive link between -or causal link detemiinai between heterosexuai pomographic images and harrn to women. Q: So to that extent, the social science research is not conclusive either in respect of what might be dled heterosexual pomography or lesbian pornography?

A: 1 need to state that lesbian pomography has never been of interest to social science researchen. They have not made the study of lesbian pomography a priority and so my testimony has been based on my own personal knowledge, my interviews with lesbiun S & Mpructitioners. my cfoseness to the lesbian S & M subcultures. and 1 have tesnfied as to my knowledge of the import. signrjcance and meaningF1ne.s~of lesbian S & M imagery to thut community.

Q: But you can't prove, based upon the work that you have done, that there is no harm, can you?

A: I'm not going to assume that there would be hm.

Q: No, you are not asswning that there is, but oucan't demonstrate that there isn't to those who might be concemed that there is, or can you?

A: I haven't been awarded the resources that I would need to initiate a research project that would take seriously ths question, sc 1 think that there are al1 kinds of possibilities and avenues for this research.

Q: Right. Resource limitation notwithstanding, to those who are concemed about the impact of labian pornography which resembles what is known as violent heterosexual pomography, you are not able to demonstrate scientifically that there is no cause for concem. can you?

A: I have - I can't answer - I'm not going to answer your question with a yes or no anstver because the - it deserves a much more cornplex response, and thai has to do with rny insistence throughout my testimony that consent behveen women and gender equality between women and lesbian S & M pomography is absolutely instrumental. So questions of harm or coercion or violence as you might have framed them. simply do not apply.

Further, during the cross-examination of both Ann Scales and Carol Vance, the Crown worked to differentiate their opinion evidence fiom 'science' or 'empincal' research.

Often these distinctions were made dunng the voir dire or qualification process in order to circurnscribe the scope of their respective testimonies. For example, during qualification

Prof Vance was asked by Crown counsel about her research into the various reactions

North Amencans typically have to different sexually explicit materia~s.~'

Q: And you're tabg about a viewer's evduation of sexual imagery?68

-

6' This is known as "Vance's One-Third Rule". CaroIe Vanœ argues that within any one group of individuais looking at the same selcually e'iplicit image. one third will be disgusted, one third will thinks it's funny or ridiculous and one third wiii find it erotic (transcnpu, page 64). " p. 26 A: That's right.

Q: Okay. Now psychoiogy is the study of human mind -of the human minci, correct?

A: Yes.

Q: And you are not an expert with respect to psychological theories?

A: No. Anthropology is also the study of the human mind.

Q: Some psychological theories are helpful in understanding how the human mind assesses and evaluates and interpret. images, correct?

A: Undoubtedly.

Q: You are not a psychiatrist?

A: No.

Q: And psychiatry involves the study and treatment of mental diseases and disorders?

Q: Now some psychiatric theories are helpfûl in understanding how individuals interpret and assess images, correct?

A: Well, actudly, that's at issue in ths discussion because what is at issue is whether some images relate to behaviours which in themselves are judges to be pathological and on which ground they might be.

Q: Okay, have you perfomxd your own scientMc studies in respect of the interpretation, assessment, and evaluation of sexual imagery?

A: Yes. 1 have engaged in a great deal of research on a variety of controversies about sexual imagery and people's diverse response to images.

Q: And is this scientiflc research in the sense ofconducring studies?

A: Weli, laboratory experiments done in ver-artificial conditions are one kind of scientific research that is pedormed in this area. ûther kinds of social science research pedormed in this area have to do with observatiooal midies, analysis of cultural matenais, indepth inte~ewswith individuals. There is a whole range of data - researchen have wllected that bear on this material.

Q: Al1 right. So have you done that?

A: Yes. Most of my work for the past 15 ym. This line of questioning about the scope of Prof'. Vance's research was taken up once again dunng her second cross-examination by Crown counsel Westmacott.

Q: Similarly, Mr. Amay ais0 refed to cultural representations as king another one of your areas of interest. Could you explain what that is?

A: mer kinds of cultural representational analysis is more implicit in that the researcher is loohg for patterns, relaîionship of patterns, repetitions of patterns, or oppositions, and how these repeat and reacur in the culture.

Q: Now, would the focus of that analysis be at the social level as opposed to the individuai level?

A: It would be in both, because, in fact, obviously a cuIture is made up of individuals, right, and cultures nordly have some kind of diversity in them, so we are interested in understanding important cultural symbols, you know, of a high macro-level of the culture, but we also, of course, need to study this at the individual level because there is not individuai uniformity in how culture - - in how symbols are understood and used by people.

Q:Have you conducted empincd studies or experiments in the area of how views process visual material?

A: 1 have conducted empirical studies. I've not conducted experirnental studies.

The Court: 1'm sony.

A: I've conducted empiricai studies. My work is entirely empirical, based on field work, based on ethnography, based on indepth interviews Hith a nurnber of people, basai on observation of a variety of controversies concerning sexual irnagery. 1 don't conduct experimental studies.

Q: AI1 right. So you've conducted - it would be fair to say that you haven't conducted any experiments, Iaboratory experiments, on the impact of visual, sexual imagery?

A: That's correct.

Q: Have you conducted studies - you haven't conducted experiments on the distinction between the impact of pornographic text and pornographic visual imagery?

Q:Yes.

A: No.

Q: SU a![ ofyour work realiy cornes from a review of much of ihe fiterature that is pmduced in ofherfiefdsof social science? 1s that t5s to say? A: No. Much of my work comes ethnography, fiom field work techniques, fiom a great deal of data that 1 have gone out and collected. You are correct to say, of coune, you know, 1 consult work done in other disciplines and produced using different techniques. 1 might also add, epidemiology is a very methodologicaliy grounded discipline which makes me fiilIy conversant with understanding more experimentally-generated studies.

Q: Would it be fair to say you haven't conducted any sociological studies regarding the impact of pornographic visuai material?

A: What do you mean by "sociologicai"?

Q: Well, fiom the perspective of a sociologist?

A: Well, no, 1 am not a socioIogist.

Q: And you haven't conducted any psychological studies regarding the impact of pornographic visual rnaterials .

A: No.

Q: Would it be fair to say that the scientists who conduet laboratoty studies would take issue with the type of anecdotol midence ,hot you would consider in the types of studies that you do as an anthropologist and epidemiologist?

A: Yes and no. Every discipline and every technique has its strengths and disadvantages. Certain methodologies have certain advantages. They do not get at other more indepth materials. Ethnographie work does bat. You know, no social scientist would say that any study finding should enjoy one technique. That would be very foolish.

Similady, Ann Scales' qualification was problematic for the Little Sister's tearn as the

Crown attempted to clearly distinguish her research as 'theory' and not ' science'.

Q: Profasor Scales, I take it sudon? hold any degrees in science, undergraduate or othe~rise?~~

A: Correct.

Q: 1 take it as well that you have conducted no experirnents or studies in the area of pomography utilizing accep fed scienhjc rnethodology?

A: I'm unclear as to what you would include within accepted scientific methodology?

Q: Have pu~nducted any primary cornparison sbidies conceming pomography and its effects? A: Not in a sociological or psychological - not with that sort of methodology.

Q: Thank you very much. You have no professionai training in psychology or psychiatry, is that Correct.

A: Iust to clarify the point about your law degree, the juns doctor degree at Harvard is a three-year program that is equivalent to say the LL. B. program at U. B. C., is that correct?

A: Correct.

Q: You don? hold a graduate degree in law?

A: Correct.

Q: Nor do you hold a gaduate degree in any other professional discipline?

A: Correct.

Q: Now, Professor Scales, you have had over the past 14 years as a Iegd academic nine articles published and one that is in the process of publication?

A: Correct.

Q: Have you ever had any publications submitted, but rejected for publication?

A: Never.

Q: Your main areas of interest, Professor Scales, 1s in the area of legal theory and philosophy, is that correct? Would that be fair to say?

A: Fair to say with the proviso that with respect to feminist legal theory in particular, because of ib tenets, its a highly contextual undertaking, so it's perhaps the least abstract of Cornpetmg jurisprudential schools.

Q. So you wouldn't cal1 yourself an expert in jurisprudence generaily, but reaily more specifically with respect to ferninia legal theory? That really is the focus of your ara of rheoretical expertise.

A. No. I have taught general jurisprudence at several times, but my own research has been primarily in the area of feminist issues and legal theory.

Q. Yes, thank you very much. Does this -put it this way, does this philosophical disposition, that is, what you describe as you radical feminisrn philosophical interest and writings -those writings 1 understand lead you to a different position on issues like pornography, for example, than conservative feminist philosophers or liberal legal philosophea, is that fair to say? Further, Crown counsel Faizon challenged Ms. Scale's qualifications to give evidence on lesbian pornography and its purported 'effects' (or lack thereof as Scdes argued).

Q: Professor Scales, 1 don't have many questions for you, but I'm particularly interesteci in Mr. Arvay's question conceming the basis for your expertise in offering an opinion, an expert opinion conceming whether there is any evidence that lesbian pomography creates a substantial risk of harrn. My notes of what you said were to the effect that you read the published data, and 1 take it that btdata is almost exclusively in the context of pomography intended for heterosexud audiences, is that correct?

A: That's fair to say.

Q: You don't know of any empirical studies, isn't it tme, that deal with the issue of Icsbian pomography per se, if 1 can put it that way?

A: 1 how of no direct snidies published or in progress.

Q: So there are no studies done by sociai scientists that are in any way comparable ro the krnds af' shrdies that emst, for example. those of Dr. Malamuth. who is one esteemed researcher, rhat deal specrficaiiy wirh the area of lesbian pornography and irs efects?

A: That's correct.

Q: So your opinion is based upon inferences of how - your uiferences of how those effécts might wifold in the lesbian community, based upon your reading of the reports that e?Ust in the heterosexud context?

A: That's very difficult to answer since 1 haven't been asked an opinion - 1 hardly know what opinion you are referring to. But - Q: No, but - I'm sol,please answer, my apologies.

A: Whatever 1 have to say about harm from lesbian materials will have to be based on raihgthat evidence of harm from other materials, yes.

Q: And you don't have any scientific or psychologid or sociological or other social science professional training that would allow you to e?rpert.iy interpret rnany of those shtdies that exist in the heterosexual context, isn't ktright?

A: 1 don't have the training that would allow me comment or expertly to criticize the methodology of any of those studies. My expertise wouId go to their legai relevance.

Q: So you have no basis for your own personal expertise as a professional that would allow you to comment empirically on the question of the risk of harm caused by lesbian pomography?

A: 1 have not done any studies. Q: Nor do you have the training to conduct those studies, the professional training to conduct those studies?

A: That's correct.

Q: So the uiferences you draw conceming the risk of harm 1 take it are inferences that are formed largely by the theoreticul approuch that you take. the theorerical jurisprudenrial approach you toke to the issue of pornography, is that fair to say?

......

A: Right.

Q: And 1 therefore take it there must be some other basis for your drawhg of those inferences, is that right? They are not inferences based on social science training?

A: Right.

Q: Your specific area of expertise, at least so far as your publications and writings are conccmed, deal with the area of ferninist legal theory, is that correct?

A: With emphasis on how's that's applied to pornography.

In stark contrast, the credentials and credibility of Prof William Marshall, a psychologist from Queen's University, as first and foremost a scient&, were never challenged by counsel for Little Sister's or in need of defense by the Crown. The Crown called Prof. Marshall to discuss a study which he carried out with a sample of Customs officers across Canada. This study was based on a survey Prof. Marshall designed in order to assess the 'effects' that long-tenn exposure to pomographic materiais might be having on Cunoms personnel. Prof Marshall aiso decided to survey these officers on their attitudes towards gay and lesbian pomography. He testified that these questions were designed to correlate levels of homophobia and censoriousness.70 Mer extensively

'O It is inieresting to note that when asked on crosseexaminationabout these questions which meaniied attitudes towaràs gay and lesbian pornography, a relatively high percentage of the same officers rated these acts as "repulsive" to them personally. nie following is an excerpt of Marshall's cross-e.uamination by loe Amy on this issue: Q: And the hct that a very large proportion considered homose.d acts to be repulsive, what did you draw hmîhat? presenting his qualifications and credentials dunng the voir dire. Prof Marshall was asked by Crown counsel:

Q: You've also presented over one hundred and twenty papers and workshops on the topic of sema1 behaviours?''

A: ïhat's correct, yes.

Q: To what extent do those rely on stcdies or research that you yourselfhave conducteci?

A: Well, they rely on ail of the research but some of it is mine, yes. *....*..

Further, during his in-chief examination, Professor Marshall's research methods and established career in his field were predominant. Counsel for Little Sister's raised no objections to his qualifications or the scope of his testimony.

Q: And so to the extent that these (methodological) limitations exist, are they pervasive in the field of clinical psychology, sornething inherent in the task?z

A: Sure, p.

Q: So in your, 1 understand over twenty years as a psychologist, apprortimately how many midies have you conduaed younelf in the manner that we are just speakmg about?

A: Gosh, oh, better than a hundred anyway, but you know, !wouldn't -not dl of them resulted in publication, partly because 1 sornetimes because Iknow of lost interest in the issue by the the 1 go around to the possibility of publishing .

A: I was surpriscd by hat, to be honest, that so many of hem found it to be repulsive, but 1 also was surpriseci by the fact that that didn't seem to affect profoundly affect at al1 their judgment as to whether these materials should be available for other people. .*.... Q: Thank you nature of homose.. acts, does that not undennine, at least to some extent, your opinion that flows hmSection III, that the officers do not exhibit homophobic tendencies?

A: Not at ali. 1 think they're - I mean, 1 don't know that the going world population in Canada ri@ now is for desirability, what their express desirabitity for homose.wal acts are. 1 thought that putting those two sets together, if someone found the behaviour repulsive but was wiliing to tolerate making those sorts of materials available for general consumption. that that reflected a very liberai, absolutely nonsensicai review to those materiais. If 1 find something repdsive but I'm quite happy for other people to have those materials or engage in those am, that's probably quintessentially (sic) what we hop to find in demmcies, isn't it, a tolerance for behaviours and so on in others which we ourselva don't find particularly acceptable (transcripts, p. 1.107). " p. 1370 " p. 1375 Q: And this process of redesigning and whatnot, you're speakuig about studies that you've done. Would you describe those studies as scienhjc?

A: That's how 1 describe them. It's not always the way that editorid reviewen describe them, 1 guess, but yes. I mean, that's what 1 attempt to do ,it's to do them as scientifically as possible. You have to keep in mind that when you king in an area, an area that's unfamiliar, what you try to do is a sort of first-step study which may not be as -what you want to ask then is a whole broad range of questions, fuid out what you get, then narrow your focus dom to that particular issue and perhaps do, if it's useful or necesçary and you're interested, doing a more rigorous midy once you've undergone more of the dimensions.

Despite the fact that Prof. Marshall is not an expert in the area of pornography's purported harmful 'effects', he was asked by counselfor Little Sister '.s to comment on the methodological limitation of this research as a fellow scietitisi.

Q: Dr. Manhall, would you agree that one approach to understanding inconsistencies in the research is to identi& methodologifal and conceptual problems in the research area that might result in presumed fidings for effm of violent pomography that are in fact invalid and unre~iable?~

A: Yes, 1 would agree that's certainly the proper way to go about it.

Q: And would you agree Dr. Marshall, that some of the methodological implications in research on effects of violent pomography are, firstly, the subjects' awareness, and if you need me to explain htthat means you tell me.

A: I do, p.

Q: NOW,as 1 undentand it, that subject awareness includes the fact that participants in studies mas have perceived the experimenter's purpose in each of the midies, and what appean to be effects of violent pomography may have been effects of subject awareness and compliance with the experimenter's perceived purpose?

A: Yes, that's correct. 1 understand now.

Q: Yes, and would you also agree that for some researchers - 1 understand this is not the case for yourself - but for some researchen there may be prejudice against publication of null hdings? A: 1 have no idea whether that's true or not.

Q: Okay, insof'âr as laboratory nsearch is concemed, would you agree, sir, that one of the problems with the laboratory research is that the procedures for shidying violent pomography are unrepresentative of the conditions in natural settings that they may tell us littie or nothing about the relationship of pomography and aggression in the real world?

A: I don't agree with that. I believe thut S a misunderstanding of the nature of laboratory science.

Further, during the re-examination by Crown counsel Sharma on this point, Dr. Marshall was specifically asked to comment on the nature of scientific research and the use of laboratory settings.

Q: Dr. Manhall, in these studies that do tak about pornography and harm, and in particular those that do suggest sorne harmfbl effects from exposure to pomography, do you think it's reasonable fiom a scientrfic point of view to take into account the context in which the aposure takes place?7'

A: It depends on the question you' re asking, but for some questions if you*re asking if you like, about what researchen cal1 the ecological validity, that is what is likely to happen in the real world outside the laboratory setting, then 1 suppose that's a reasonable question. However, science mns like the following: we make hypotheses based on observations in the real world and those hypotheses are then tested under very controlled conditions, which of course seem to the lay person as quite artificial and may not be undentood to be relevant to the real world. But th's how you test a hypothesis. It's very, very difficult to test hypotheses regarding these issues in the real world, because in the real world there are muititudinous influences. There are a lot of conceptual, methodological issues in nature. Science always removes wharever the object of siudy is from the world in which it ocnrrs. whether that be the phenornenon of sub-atomic physics. or eveyday human fije. We try to remove ex~aneousfactors and in that respect it appears often to the public at large that what we do is artificial. Thai's a perfealy appropnate procedure, is to examine these hypotheses under the research conditions hey have been examinai under.

This section reveded the clear bifiircation between 'the social' and 'the scientific' with respect to research on sexuality and sexual representation. The construction of certain expert's work as theos, and not research by the Crown effectively worked to dismiss their knowledge claims as insignifiant. The impact of evidence given by social experts for

Little Sister's was diminished to the extent that it could not be constructed as empirical (or non-existent, in the case of gay and lesbian SM and thus, of little use to the Court). The fack of evidence on the part of both Marshall and Malmuth with respect to the 'risk of harm' presented by gay and lesbian pomography was clearly not problematic for the

Crown or Court. The shortcomings of the research presented by the Crown's two expert psychologists was not even considered salient (Le. within our 'cornmon sense' understandings of what Science cmbe), pnmarily because of their positions as scientists who do empirical (positivist) research."

'ûthering' Expertise: Pornogruphy and Knowledge Disqualfication

The fourth and final theme which emerged in the transcnpts addresses the construction of expert knowledge vis-à-vis sexuality, what Halpenn (1995) refers to as the

'episternological pnvilege' of heterosexuals. This privilege manifests in the discourse anaiysis in two ways: 1) the perceived inability of gays and lesbians to give expert opinion on issues relating to heterosexuals or heterosexuality and 2) the notion that one's knowledge or expertise derives from one's sexuality (i.e. homosexuality) and not fiom academic traininglresearch or professional statu.

On several different occasions, the gay and lesbian academics testifying on behalf of Little Sister's were not able to give opinions on the consumption of heterosexual pomographic materials without the Crown objecting to their evidence. The Crown argued each time that this was outside the 'scope' of the witness' expertise. Secondly, these academics were asked by the Crown to discuss, explain, or comment on intimate and oflen

'' 1 do not mean to confiate empirical research with positivism here. Howwer, these hm> categories were codiated by law as the word 'empiricai" were used throughout the trial to denote "scientific" research (Le. laboratory model) . very graphic sexual acts, most often within the context of gay and lesbian SM. In contrast, the two social scientists who gave evidence for the Crow were not asked to comment on any issues which rnight be considered 'graphic' or 'extreme'. Despite the fact that he has not done any research with gay and lesbian materials or subjects, the bulk

of Neil Malamuth's written evidence dealt with his opinions on the harmfûl 'effects' which

might flow hmexposure to gay and lesbian pomography. In contrast to Malamuth, Gary

Kinsman was asked by loe Arvay to comment on the meanings of 'degrading' and

'dehumanizing' within the context of heterosexual pomography as opposed to gay male

pomography.

Q: Jua so 1 can undentand this in my own mind, when you look at some mainsueam pomography, the issue ofgender differences may play a role in determining whether the matenal is dehumanihg or degrading in a way that doesn't play when you look at gay p~mograph~.'~

A: That 's basically what I'm suggesting. That type of analysis wouldn't work because the social organization of the sexual practices is actually quite different.

A: Because the fùndamental crucial features of the social organization of heterosexuaiity in the societies are those relatiomhips of gender inequality. We do know from al1 sorts of sociology and other fomof social scientific research therc are various ways in which men and women in ths society are in unequal positions. There's a penasive problem of violence against women in the society. We know that those are what actually kstin society from the research that has been done. When we are looking at relationships between two men we have to look at how it's organized differently. We can't jua plop down an analysis that might have ban generated to engage with some of the problans. The troubling questions that might emerge fiorn investigations of heterosexual relationships, we can't just plop them down ont0 our social anaiysis of gay relationships because as a sociologist 1 would want to point out that there's a difference in social organization here. That gay relationships are fundamentally characterimi by gender equality. Relationships two men who have access to the same types of gender positions in the society which we live. They're not marked by or defined by that crucial difference in gender power. So that we have established then to the social organization gender and the social organization heterosexual sexual representations might play a part in the organization or the shaping or the connections beenquestions of gender inequality and images in magazines or in books, that that same type of argument could not be made in the same way in relationship to gay relationships because they have a hdarnentally different character. If 1 could rnake an addition to that .

Q: Sure.

A: What you rnight want to think about is the relationships between \men viewing some of the images withm mainstrearn heteroseual pornography made for men and the relationship of gay men viewing gay men pomography. 1 thhk you can see some of the differences for women viewing heterose'nial pornography which might for her capture relationships of gender uiequality, perhaps violence that also has to do with the social conte* in which there is pervasive violence against women in our society. If you look at it instead-

Crown: My Lord, 1 have head, as the witness indicated, 1 think he is using diis as an example, but 1 certainly have heard no evidence to suggest that he has any expertise on the point as to how a wvom looks fiom a sociological point of view at heterosexual pomography. He is now comparing something there doesn't seem to be any bais on his experience as he explained to us.

Court: He says he's a sociologist.

Crown: Yes, but he is now talkuig, he has indicated what he has looked at, in his training talked about archives and so on. He is now saying take a hypothetical and just think about it and what do you think a woman would think if she saw heterosexual materials compared to a gay male who watches heterosexual material. Now 1 agree with thz last part. He is qualified to do that. But to ask the question has absolutely no basis anywhere to surmise that the wornan would look at it differently . He is purely speculating ut this point.

The Court: Well, 1 think he's attempting to illustrate the point he is making and it strikes me that your objection really goa to the weight of his evidence as opposed to its admissibility.

Crown: It probably goes to a later submission that this is argument.

Similady, in commenting on the differences between gay male pomography and

heterosexual pomography, the Crown objected to Thomas waugh'sn testimony as well.

Q: Okay. Now you mentioned the differences and similarities or differences with respect to consumption of the material. What did you mean by

A: Well, 1 think both heterosexuai and gay rnale materials are used as masturbation aids, that's certainly obvious. But I think beyond that, they are consumeci by individual customers in different ways. Again, with gay male consuners, there's a great deal of communai consumption, passing them around, looking at videos together. I think with heterosenal male consumers there's much less of that. 1 think heteroseitual porno producers tend to clairn that couples consume heterosexual videus together, but 1 have my doubts about that. 1 think that more often they tend to invite individuai and isolated consumption. 1 think when we speak about gay male -

77 Prof. Waugh is a film studies professor at Concordia University and is the head of the Film Studies Department. p. 201 Mr. Arvay: Just a minute, Professor Waugh.

Crown: It's just a minor point, but 1just wish to point out that Mr. -or Dr. Waugh is not quaiified as an expert on heterosexual pomography. 1 think he qualified his answer thaî he doubts whether this really happens, but l just wanted to point out he S outside his area ofexpertise, and that was indicated earlier. . . Mr. Arvay: Al1 right. Except, my lorà, to the extend Professor Waugh is ewminuig lesbian and gay material and in the course of doing that, he's in a position te express opinions as to the differences between heterosemal matenal. 1 think by Professor Waugh's answer he doesn't profess the same sort of authoritative opinions with respect to heterosexual materials as gay and lesbian materials, but he is entitled to express an opinion.

Interestingly, on the question of whether exposure to gay and lesbian materials rnay pose the same 'nsk of hm'as heterosexual materials, Neil Malamuth's written submission to the coun is fairly definitive.

3) Based on your response to question one, is it your opinion that homosemal pomography may cause harm even if it is distinct from heterosexual pomography?'Pg

It is my opinion that homosexual pomography may have hamiful effects even if it is distinct in certain ways fiom heterosexual pornography. However, to fully address this question, it would be desirable to have more information regarding the specific distinctions between homosexual versus heterosexual pomography.

This question raises important issues concerning the process by which harrn may occur. k requires attention to the media stimuli, the audience, the cuntext within which the expsure occun and the range of behavioun that could be affected, directly or indirectly, by exposure to various types of pomography......

1. Are the messages contained in homosexual pomography critically different fiom those in heteroseuual pornography ?

Although 1 am not aware of any published systemtic content anuiysis of gay pomography, some descriptions by well known writen within the gay community suggest that the content is smlar to heterose;yual pomography. Therefore, even if there are some distinct differences in conte* there are clearly mesimilarities in messages that rnay justiq or support certain behaviors. For example, Stoltenberg (1990) cuncludes that 'Even leaving aside the rough stuff of gay depomogqhy - the scenes of fordfellatio, assault and molestation, humiliation and exploitation, chaining and bondage, .. . . the values are.. . very much the values in the sex that straight men tend to have.. ... : taking, using, estranging, dominating - essentially, sexual power-

p. 3 1 of Dr. Malamuth's report, italics are my emphasis. Although the report is patt of the official trial documents, this was not part of the trial transcripts. mongering." (p. 249) To the extent that one can conclude that message within heterosexual pomography might afEct attitudes regarding the acceptability of some behaviors (e.g. sexually violent portrayals &hg attitudes regarding sexually aggressive a&), it may be rasonable to assume that similar processes and effects would occur when sucb messages are incorporateci within homosexuai pomography.

2. Are the mincis of homosexuds huidamentally different from heterosexuals in those area relaîing to susceptibility to media influences?

In keeping with considerable research (e.g. Fishbein, Chan, OTReilly,Schnell, Wood, Beeker & Cohn, 1992) it appean that processes of social influence, attitude change, normative effi,consequences of arousai, etc. do not differ fiuidamentally as a hction of a person's sexual preference. Therefore, in many areas, similar theoretical models rnay be applied to both heterosemals and gays (Fishbein et al., 1992). Furthemore, there are many similarities arnong "gay" and "naight" people in motives for various behavioun, including sexual activity (e.g. Leigh, 1989).

3. Are there problerns relating to social conflict, including semal and non-seud aggression, within the homosexual cornrnunity?

In recent years, there has been hcreasing scient@ research indicating that some of the behavion that might be related to exposure to some types of pomography are a serious problem within the gay community as well as within the heterosexual me. For example, there are studies suggestuig that with homosexual interactions the frequency of sexually coercive acts as well as non-sexual aggression between intirnates occun at a Frequency quite comparable to hetcrosexual interactions (references ornitteci).

Moreover, several gay and lesbian experts were, during their cross-examination by the Crown, asked to describe or comment upon very graphic sexual acts. The exact substantive rationale behind this type of questioning is not apparent to me. However, it is

arguable that this line of questioning is used in part to construct expertise as specifically

related to sexuality and not to academic training, thus diminishing their credibility as

neutrai, objective social scientists. This relates to what Mariana Valverde describes as her

experience of being an 'exhibit' as well as an 'expert'. Valverde (1996) writes,

Now. for any witness, from rape victims to murder suspects to acadernic sociologists, credibility is always a matter of moral regdation. The fonns of moral regdation generating or certiwg credibility homer, diffier a great deal. in gay rights cases, the law might tolerate an expert sympathetic to the piight of the minority in question, namely homosenials; but lawyen and experts. myself included, agreed - most tacitly- that law would not listen to an expert who looked too obviously like a dyke or like a fag" (p. 2 13, emphasis in onguial).

It is also important to note that in al1 three cases, this Iine of questioning arose in the context of S/M practices. For exarnple, dunng his cross-examination, Gary Kinsman was asked:

Q: When you talk about SM 1 would assume that or you would assume a range of activities, is that co~~ect?~

A: Yes, that's correct.

Q: And when yutaik about gay or lesbian - but 1 think your emphasis is gays, is that correct?

A: That's correct.

Q: Range of activities. Can you describe what the range would be, like what is Ml4 what is just rough and where does it end up?

A: Well, in a certain sense when we corne to try and understand the world we group things in what auld be described as collecting categories or concepts. So, for instance, when we try to get a handle on what might be described as sadomasochistic perhaps practica or perhaps erotic theater, as 1 have suggested, rnight be a different or better way to understand it, what is grouped together as a whole range of aaivities that people engage in. So within the context of S/M communities and cultures there's a range of senal activities that are engaged in, some of which are exactly the same as other people in the gay cornmunity would engage in and some of which are rather ciifFerait. And it's aiso important to point out that fomof what rnight be described as forms of rough sexudity would ais0 be found in sadomasochistic relationships. But there would be a range of activities, some of which might just include what pudescribe as milder forms of activity, Mme of which might Uivolve activities that have more rituai to them that take longer, that involve different types of activities. So, yes, there's a -

Q: Right. But could you describe the range of aaivitiesl

A: Well, certainly there's a range of aaivities that people could get involved in, some of which might be interpreted by other people as wt king sexuai at all. It might involve, you know, a certain form of ratraint while semal activity is going on, which might be produced in terms of just pressure by another penon's body or also rnight be produced by tying someone up in some way in temof the semiai scenario that would go on and, of course, there would dso be other activities that could be engaged in by people who are involved in SiM. They would also ùiclude some of the other sexual activities that would occur amongst d gay men which would include oral sex, and sex. 1 don? know if you want me to describe the possible range of sexual activities among gay men. During Becki Ross' cross-examination, Crown counsel asked her to be even more specific and graphic in her responses as well.

Q: A depiaion or descriptions that appear to associate sexual pleasure or gratification with pain and suffering?"

A: My understanding of S & M sexual htasy rnay include depictions of what a reader might consider to be painful. The pain in the context of the story is about sexud pleasure and 1 think sexologists - scientists of sex - would tell us that the difference, the differentiation or the distinguishing of pain and pleasure in the context of sexual arousal is a very, very difficult one to make.

Q: In your definition (of lesbian SM), is it included or not?

A: It rnay be, depending on the context in which it's use..

Q: And what about a description or description with mutilation?

A: Could you define mutilation?

Q: Al1 nght. 1 will expand it and you tell me if that helps you out. A description or depiction with mutilation of or lethg of blood from any part of the human body.

A: In some lesbian S & M sex fhntasies tkrit 1 have read, there rnay be the drawing of bIood through certain activities. This is again, to reiterate, in the context of lesbian consensual S & M htasy, which is produced fiom a lesbian semai unagination.

Q:And what about depictions or descriptions of sexual gratification gained through causing physical pain or humiliation or getting sexual pleasure from domination, mistreating, or hurting a hwnan being, may that be included in your definition?

A: As 1 said, in the context of the genre of lesbian S & M pomography, there may be instances of domination that is enacted through nilly consensuai participants who are faM1ia.r with and coinmittecl to sexual play that is guided by S & M subcultural codes, whch may hclude domination and pain, yes.

Q: I will just ask you one more. Might the description of lesbian S & M fantasies include descriptions or depictions of menstmal blood, fecal matter, urine or the inducement of feces through enernas as part of sexud arousai?

A: In a number of stories that 1 have reaâ, there are depidons of urine. I have read one story that involveci merutrual blood or fecal matter. Q: Could you please describe fisting for his lordship?"

A: Fisting is a sema1 practice that -as it's depicted in the mages that you have before you, it involves the insertion of a hanci, and in lesbian semai representation that 1 have seen, the hand is encased in a latex glove, which is a safe sex maure. The hand is inserieci in the vagina. In the conte* of ksbian sexual representation, there is a woman inserting her hand into the vagina of another woman.

Q: When that is consensuai, you are of the view that is not degrading or dehumanizing?

A: Exactly the op posite. I would have to say that is about sexual pieasure, and the experience can be very transporthg sexually and extremely pleasurable and stimulahg as a practice and has absolutely nothuig to do with degradation and humiliation.

Finally, this line of questioning was almost identical when Professor Waugh was cross- examined by Crown counsel.

Q: What's your definition of sado-masochism?

A: 1 guess an erotic sensibility, whether gay or straighf that enacts exchanges of power, submission and domination.

Q: Miction of pain?

Q: Would you go beyond that and -to use a phrase you're probably fhiliar with if you - in view of your background, things like the golden shower?

A: I'm sure that golden showea withm the realm of erotic practice in the gay and the straight community - in the gay and heterosexud cornmunity. 1 don't think that's particularly identifiai necessarily with SM.

Q: What about fdmatter?

A: Well, 1 tM< the -the human erotic capacity has a huge range.

Q: And that would be included in the range? Therefore, a proclaimed gay identity, and I would extend this to a proclaimed feminist identity as well, casts an expert as an activist, an advocate, and construas their testimony as not credible, biased, unreasonable, subjective, and thus, of little use to the judiciary.

Further, the equation of knowledge with sexuality (i.e. homosexuality) shores up the epistemologicai privilege of heterosexuals and helps to maintain heterosexuality as the unpathologized, undemonized, nom.

Conclusion

The discourse analysis presented in this chapter demonstrates that there are several elements which contribute to the establishment and maintenance of an expert's credibility.

This analysis shows that deplo yment of social expertise wit hin particular legal contexts is far more complicated t han previously t hought. These findings suggest t hat the discursive

'playing field' is far from even, particularly within discussions of gay and lesbian S/M practice and representation. Issues of credibility, or a lack thereof, significantly undermined the social experts testifying on behalf of Little Sister's. Their discussions/anaiyses of sexuality and sexual representation were almost entirely buried under the scientific discourse of 'risk of hm'. As they were not able to effectively challenge this discourse with 'empirical' research, their testimony was dismissed as insignificant. The four themes outlined al1 contnbute to a substantive understanding of the ways in which credibility and expertise are inextricably Iinked, and show that the maintenance of credibility is often delineated dong gender and sexuality lines. Chapter 4

To Tell the Whole Truth and Nothing but the Trutit: Censorship and the Politics of Expertise

How can we affirm a relational and transfomtional politics of self that takes as its process and its goal the interruption of those practices of differentiation that (re) produce historically specific patterns of privilege and oppression?

- Ed Cohen, 199 1

Introduction

The purpose of this final chapter is to draw out and build upon the themes identified in Chapter 3. This analysis focuses on two central questions: 1) Nlat are the socio-legal implications of this study? and 2) Why is this research important for Our understanding of the social construction of expertise and the adjudication of gay and lesbian 'obscenity' in Canada? This analysis centres around three interrelated themes.

Primuily, this analysis challenges cornrnon sense understandings of who a credible expert can be and delineates the conditions under which credibility is established and undermined

(i.e. 'real' experts are Scientists). Secondly, the social expertise presented on behalf of the

Little Sister's bookstore challenges cornmon sense understandings of pomography, particularly gay and lesbian pomography (i-e. pomography in general is 'bad', but gay and lesbian pornography is even wone and poses a 'nsk of ham' similar to the purported nsks which may flow fiom heterosexual pomography). Finally, the strategic deployment of

social constmctionist arguments in this case challenges common sense understandings of sexuality (i.e., homosexuals have a 'sexual orientation' while heterosexuality remains the unspoken nom).

Credibili~and Expertise

This thesis argues that establishing and maintaining credibility is cntical to an expert's ability to make effective truth claims in law. There is perhaps no example more

illustrative of this than the testimony of Becki Ross. Ross was called largely to present an

anti-censorship ferninist analysis to the court in Little Sister S.*^ Her expertise on such

issues was immediately constructed by the Crown as centering around her adrnitted

'lesbian feminist' self-identity. Her position on lesbian S/M practice and representation

was particularly problematic for the Crown as she was challenged on her perceived lack of

research on the subject. Despite close to twenty years of research on lesbian communities,

representation, politics, and culture, Dr. Ross' credibility was significantly diminished as

she had already named her bias for the court. Her admitted 'lesbian feminism', both a

political and scholarly identifier, irnrnediately cast her as an ahtocate in the eyes of the

law.

The effectiveness of both Becki Ross and Ann Scales' testimony was diminished

by their political affiliations. Both are ardent feminists who foreground ferninid activisrn

and theory (albeit very different strains of feminism) as central to their respective reseurch.

In both instances accusations of bias were explicit: Becki Ross' expertise was cast as

derived From her lesbian feminism, and Ann Scales' fiom her radical feminism. In the case

--- - -

83 It is important to note that Carol Vance was called 'at the last moment' after Bedu Ross testifed in order to salvage their ferninist anti-censorship analysis. Joe Amy felt that E3eck.i Ross' credibility had of Ann Scdes, the Crown effectively distinguished her work fiom 'legitimate research' by emphasizing its feminist underpinnings. Scdes was questio~edabout her role as a feminist anti-pomography activist in the attempt to show her bias as a witness. Further, her grounding in radical feminisrn was described as a 'philosophical dis~osition'~a problem compounded by the fact that she argued that her feminist activism and acadernic work were inseparable.

This situation has serious implications for the use of social experts in legal proceedings. An expert's credibility in court hinges on the presentation of a neutrai,

unbiased, and objective opinion. A stated feminist background or political affiliation acts

as a certain and swifl disqualification. In the Little Sister's case, it is apparent that, despite

the institutionaiization of feminist scholarship and activism, these so-called 'philosophical

dispositions' and 'political causes' discredited the feminist academics testifying. Gender

thus becomes a salient factor in the construction of expertise and credibility. There was

no need to question William Marshall or Neil Malamuth's political affiliation in court

because it was assumed that it was irrelevant. The construction of their work as science,

and their opinions as objective, and unbiased, lefi them free to opine on various issues

fiom a seemingly ideologically neutral place.

Sexuality also became a salient factor in the construction of who can be a 'good'

expert. In Little Sister 's, self-identifjhg as gay or lesbian placed an expert in a position of

less credibility and constructed himlher as possessing less scholarly authonty and

legitimacy. Speaking of her experiences as an expert witness in a case before the Ontario

Human Rights Commission Mariana Valverde (1996) writes,

been so thoroughly damaged during her cross-esaminationprimrily because of her categorical stance on

110 Speaiung at some 1engt.h about sanie-sex couples during the Leshner case, 1 found myself almost slipping into using the tenn we to speak about gay people. i instinctively decided this would not be appropriate not for the valid ernpirical reason that the label 'gay' is for me a sometirnes inaccurate signifier but solely for the lrgai reason that such identification would, 1 bekieved, undermine my credibility as an expert. But then, lmking around at the rcmm and noting that several people present had publicty identifieci themselves as gay, 1 felt that to use the term they would by hrpocritical to the extent that 1 do have an empirical claim to the label 'gay' (p. 2 13, emphasis in origmal).

Of Little Sister 's Bruce MacDougall(2000) writes,

Hornosexuals and homosexuaiity is treated as other - the court needs experts to understand them. The court is resolutely heterosexuai. Homosexuals cm be treated as sharing cornmon characteristics such that a broad-bmsh approach can be used in description of them. Homosexuais are unusually preoccupied with sex and sexual imagery. Different standards are appropriate when dealing with homosexuality than with heterosexuality...... By his own statements, it is clear that homosexual people went before him to tell very intimate and difficult things about themselves and their heterosexuality. They had to explain themselves. Homosexuaiity was open for examination (p. 63).

As MacDougall(2000) suggests, the 'homosexual lifestyle' or 'orientation' needed to be explained to a heterosexual court. The findings in Chapter 3 Funher suggest that the gay and lesbian expens were 'othered' as well. The lines of questioning used by the Crown to establish the homosexual identity of certain social experts acts as a disqualification and plays to the heterosexisrn and homophobia of the Court.

Gay and lesbian academics who testified on behalf of Little Sister's were not only

seen as advocates and activists and hence biased, but their tnith daims derived corn their

homosexuality not their academic training. Relating this to what David Halperin (1995)

describes as part of the 'sexual politics of truth', the findings in Chapter 3 suggest that

there was an asymmetry in the adjudication of expertise dong the

homosexuaVheterosexual binary. The gay and lesbian experts who testified on behalf of

many issues. that her evidence was dose to useless (Fuller & Bhckley, 1995). the bookstore were asked to comment upon andior describe very graphic sexual acts.

These aas were construaed by the Crown as solely within the queer semal repertoire, in the same way that anal sex is aimost exclusively related to gay men, and not to heterosexuais. Thus, in this construction of expertise, gay and lesbian academics have knowledge of 'extreme' sexual acts which is discursively discomected fiom their research as scholars." At no point was William Marshall asked to give his opinion on similar semai acts considered within his sexual repertoire, such as the "missionary position", nor was he asked how these acts relate to the issue of 'risk of hm'.

Moreover, the gay and lesbian experts testifjmg on behalf of Little Sister's were not ailowed to give opinions on issues pertaining to heterosexuality or heterosexual pomography. In stark contrast however, both Malamuth and Marshall were given free reign on their opinions about homosexuals and hornosexual pornography. This bifurcation reinforces the fact that gays and lesbians speak from the margin while the centre, heterosexuality, is never challenged or problematized. As Diana Fuss (1 989) argues,

"heterosexuality secures its ontological boundaries by protecting itself fiom what it sees as the continuai predatory intrusion of its diseased other, homosexuaiity" (p. 2).

The work of David Halperin (1995) and other queer scholars (MacDougail, 2000;

Stychin, 1995; Vaiverde, 1996) suggests that self-identifjmg as gay or lesbian not only narnes one's bias but as in Little Sister 's, it helps to reinscribe for the court many of the most common stereotypes about gays and lesbians. In his decision Justice Smith writes,

85 It is important to note chat throughout Gary Kinsman's testimony. he began almost wery answer with the phrase, "as a sociologist" or, "speakmg as someone who does sociological and historical research". I strongiy klieve he did this to maintain his own credibility as an authorized knower and not be dismissed as a gay man. This is what David Halperin (1995) refers to as the 'problem of authontation' that professional gay men and lesbians face. The defining characteristic of homosexuals, the element that distinguishes them fiom everyone else in society, is their sexuaiity ., . . As attested by several of the plaintifs' witnesses. erotica produced for heterosexual audiences perform largel'y an entertainmentfirnction, but homosemal erotica is far more important to homosexuals...... Because semai practices are so integral to homosexual culture, any law proscribing representations of sexual practiceç will necessarily affect homosexuals to a greater extent that it will other groups in society, to whom representations of sema1 practices are much less significant and for whom such representations play a relatively marginal role in art and literat~re.~~

This passage From Justice Smith's decision certainly summarizes much of what he gleaned

From the expertise presented on behalf of Little Sister's. Here we can see that as homosexuals, we are defined by our homosexuality; we are entirely preoccupied with sex; and pomography is far more important to us than to heterosexuals, for whom this material is relatively insignificant (despite its mass consumption!).

Questioning the Unquestionable: Discourses of Desire vs Hm

Secondly, the expert testimony presented in Little Sister's points us towards a more nuanced understanding of how 'Science' continues to be privileged in law, particularly with respect to pomography. Further, the findings in Chapter 3 demonstrate that the social expenise presented on behalf of Little Sister's also challenged the pomography = hmparadigm which goes against the existing obscenity jurisprudence as found in Butler (1992). In Little Sister 's, beyond attacking their personal politicai stances, every attempt was made to delegitimate the claims of social expens by constmcting their research as 'theory' or 'literature reviews' and therefore clearly distinguishable from

'Science'. The expert opinions presented by both sides can be seen as split between the

'social' and the 'scientific'; the discourses of science and positivism were very clearly presented as pertaining only to the two psychologists who gave evidence for the Crown,

Drs. Malarnuth and Marshall.

Those tmth claims which are couched in the language of science and numbers, particularly the natural sciences, tend to become dominant in law. Both law and science position themselves high on the epistemic hierarchy as both are grounded the pursuit of an objective tmth (Smart, 1989). In her article on the "Disappearance of Corporate Crime",

Snider (2000) makes a similar argument with regard to the emergence of scientific rationality in neoliberal discourses. The question Snider (2000) asks is, "how do certain knowledge claims 'grow legs' while others do not" (p. 180). Snider argues that tmth claims 'grow legs' not because they are necessarily more truthfùl but because the actors and institutions which produce and legitimate these claims are likely to be scrutinized less closely. She writes,

The basic argument is that the occeptance of knowledge claims is not an equal opporhtniv game. Al1 claims validate some interests and demonize others, al1 mate winners and losen. Knowledge ciaims seen as compatible with dominant interests (hegemonic claims) are more likely to be heard by dominant groups and hence seen as ''wmmon sense" and acted upon. The paper challenges the notion commonly accepted in academe that the cornpetition of ideas, like the cornpetition of products in a laissez-faire world, opentes on a level playing field where the best ideas inevitably win (Ibid: 173, emphasis in original).

The problem of legitimacy becomes particularly clear with truth daims which are not based in the natural sciences. As Beck (1992), Giddens (1994), and Smart (1999) have discussed in the context of 'risk', science is part of the modem epistemic project which sees progress as attainable through the impartiality of the scientific method. Therefore, those claims which cannot benefit fiom the scientific method are devalued and disrnissed more easily. A secondary problem arises when counter-hegemonic claims are made in a

scientific discourse. Snider (2000) suggests that even those individuals or groups who can use the language of science or numbers need 'more and better science' to maintain their legitirnacy. " More often than not, counter-hegemonic claims are developed inside the walls of academe, and that's largely where they ta^.^' Without funding and other

resources from big business, the research of most academics fighting neo-liberal discounes

reach only smail audiences, in what Snider (2000) describes as "intensive care units" for

counter-hegemonic claims (p. 180). Thus, the elaborate construction of expert testimony

is aiso connected to neoliberal discourses of economic and political "common sense"

(Snider, 2000). It is certainly tme that the knowledge claims of many experts who test@

on behalf of marginaiized groups do not have 'legs to stand on' in the eyes of the law (see

Heman, 199 1 & 1994; Kessler-Harris, 1987; Ross, 1997; Valverde, 1996). Particularly in

the case of 'social experts', those who do not or cannot couch their claims in naturai

science, "the mother of dl legitimators" (or at least in statistics) are, "more likely to wither

and die" (Snider, 2000: 18 1).

In Little Sistet 's, social experts such as AM Scales, Gary Kinsman, and Becki

Ross faced both of the claims-making obstacles presented above. None of these witnesses

were able to couch their 'tmths' in science or numbers, and al1 three made counter-

hegemonic claims about the production and consumption of gay and lesbian pornography,

particularly in the context of S/M. These experts argued that despite the 'comrnon sense'

" As Laureen Snider aiso pointed out to me. when groups such as environmentalists are engaged in discussions over law or policy reform, 'policy paralysis' is oflen the result because one side does not have the only scientific tnrmp card. 87 Even within academe however, these discourse tend to be produced in disciplines with les funding and prestige such as Sociology, Culturai Stuclies, and Women's Studies. logic enshrined in Butler, the same 'risk of hm'was not present with gay and lesbian pomography.

This 'cornmon sense' operates around the idea that pomography is an evil to be controiled by Canadian obscenity law and by extension, Canada Customs. This evil manifests in contemporary obscenity law through the discourse of 'risk of hm'as enshrined in Btttler. It was in challenging the equation of 'hm' with gay and lesbian pornography, particularly with respect to SIM materials, that several key social experts for

Little Sister's had difficulty. Writing about Becki Ross' testimony, Fuller and Blackley

( 1995) state:

Mer the Bad Attitude case, Ross had observed that the word lesbian had been rnentioned probably no more than five tirnes throughout the trial. She was cvidently determine. not to be silenced a second the. Yet courrrooms rend fo smother certain messages. such as the srnaif marrer of sexual pleasure us a value in its own right. For the govemment, the Little Sister's triai was about obscenity and control, not bodies and pleasure. Even Joe Amay, in his effort to prove that sexually explicit materials were a form of meaningfùl speech, concentrated on legai arguments, steering clear of desire (p. 100, my emphasis).

From the findings presented in Chapter 3 it is clear that any discussion of queer desire or

the value of sexually explicit materials for pleasure was entirely subsumed by the court

under the discourse of 'hm' in Little Sister 's. Justice Smith explicitly outlined the

materials which would be 'saved', those deemed sufficiently artistic or literary and not

'dirt for diri's ~ake'.'~

Indeed, the legal contea centered around the adjudication of particular social

scientific 'facts'; only those facts which penained directly to a 'hm' analysis were

considered useful. Those social experts who specifically rejected this discourse of harm,

such as Becki Ross and Gary Kinsman, lost ground because they were not able scientifically verif) that no hmflows fiom exposure to this type of material. And, as argued throughout this analysis, empirical research was consistently seen as 'Science' and equated with positivism by the Crown and Court. The type of social scientific evidence

privileged was laboratory research done by Neil Malamuth and William Marshall, the

methodology closest to the scientific rnethod.

However, to adjudicate obscenity on the basis of a 'risk of hm'test is

problematic, for several reasons presented @ut not heard) by several of the social experts

testifjmg on behalf of Little Sister's. Both Gary Kinsman and Becki Ross rejected the

claim that gay and lesbian SM pomography is the representation of violence, degradation,

dehumanization, and humiliation. Their socio-cultural research indicates that S/M tropes

and noms are far more complicated than 'simulated violence', and that consent is the

foondation of S/M relationships. But, as Carol Smart (1989) writes, "legal

arguments...that present simple, certain and authontative pictures of social reality are

likely to be privileged within legal discourse" (p. 7 1). Unable to produce mrmbers for the

Crown upon cross-examination, or any otlier empirical (i.e. 'scientific', lab-based)

research, Ross and Kinsmans' claims were dismissed as unduly categoncal and thus

biared. The Crown effectively neutralized the impact of this testimony by constniing their

expertise as argumenl/activism and not as faa or science. As heard by Justice Smith, this

failure was critical. He writes,

Considerable evidence and argument was directed to the topic of homosemal sado-rnasochism. The plaintiffi established thsad~masochism is a theatncal, ritualistic pdcein which consent of the participants is inherent, although they conceded that cornent is not necessarily always present. Customs officen routinely prohibit depictions and descriptions of sadomasochistic practices on the

Decision of Justice Smith, para 225. grounds they involve either explicit sex with violence or sex without violence that su bjects persons to degradmg or dehumanirùig treatment ."

Thus, unable toprove that no hmexists, or that consent is always present, the assumption of hmprevailed in this trial. It would be very difficult for any social

scientist, however 'empirical' his or her science, to argue that no hmcould ever result

from homosexual or heterosexual pornography. Such a conclusion is simply not knowable

from any knowledge perspective. What is apparent from Chapter 3 is that only the socio-

cultural analyses were viewed as biased. The credibility and status of both Marshall and

Malamuth was never in doubt.

Distinguishing Gay and Lesbian Pornography:

Two other components of testimony by key social experts were 'smothered'

throughout Little Sister 'S. These relate to the heterosexism and homophobia enshrined in

the Butler decision and the moralism, or 'sexual subtext', which is covered by the 'risk of

harm' discourse (Cossman, 1997). The plaintiffs utilized witnesses such as Ross and

Kinsman to contextualize and historicize the differences and importance of sexual

representations to gays and lesbians in Canada. This was an atternpt to distinguish this

materiai fiom the heterosexual standards set in Butler. The 'risk of harm' test is

predicated on an understanding of heterosexuai pomography as 'degrading and

dehumanizing' to women as a group, which was LEAF7sposition when it intervened in

Butler. As Mariana Vaiverde (1999) writes, "afler dl, even if Canadians cannot agree on

moral and cultural values, surely they cm agree that whatever causes hmis bad, and that

hmminimization and hmreduction are more legitimate rationales for social and legal

" Decision of Justice Smith, para 224, my emphasis. intervention than either the wiii to discipline or the desire to uphold sovereignty" (p. 187).

Both Ross and Kinsman argued that this analysis, predicated on heterosexual relationships with unequal gender power relations, could not, and should not, be superimposed ont0 gay and lesbian relationships which are characterized by gender equalip? Counsel for

Little Sister's hnher argued that the Crown had failed to meet its burden of proof regarding the connection between obscenity and 'hm' vis-à-vis gay and lesbian pornography, as the materials in question in Butler only pertained to heterosexual audiences and not to gays and lesbians. Quoting the decision in R v. Butler, Justice Smith rejected this argument, saying that some of the materials seized from Butler's store included 'depictions of homosexual practices'. He further notes that the plaintiffs conceded that some homosexual materials may be deemed obscene within the legal definition contained in ~ut[er.~'

The question of hmaddressed by Justice Smith here is tied to the idea of a mordistic 'community standard,' a standard which is resoundingly heterosexual and conservative. He ruled that the material in Little Sister's cannot be distinguished from heterosexual pomography as that would violate the cornrnunity standards test which is another part of the ruling in Butler. Justice Smith writes, "that test does not permit of the proposition that material that would otherwise be obscene is not obscene if it is produced for a homosexual audienceang2Thus, Arvay'; subrnission that Butler be distinguished in this instance was not accepted. This relates to the second elernent of the RossNnsrnan analysis which was not 'heard' in law, namely the heterosexism and homophobia implicit

- - This does not, however, mean that gay and lesbian relationships are not aEected by race. class. ethnicity, or abilityldisability inequaiities. 91 para 187 in this argument of 'risk of hm', which manifests once again in Justice Smith's discussion of 'community standard of tolerance'. This test, re-affirmed in Butler, is based on the assumption that a member of the Canadian judiciary is able to determine whether certain materials violate the community standards test. This assumption, in turn, is that,

"sex is bad (sex negativity), sex is biological (sex essentialism), there is one way to have sex (sex monism), and sexuai hierarchy (some sex is better than others)" (Cossmaq 1997:

107). Further, the fight to contextualize gay and lesbian pomography, thus distinguishing it from heterosexual rnaterials, was not successful because the Canadian judiciary is already working From a view that says pomography is inherently bad. As Brenda

Cossman argues,

Ncither the discursive fiamework of the Butler test, nor the dominant sexual morality withùi which this test is applieâ, is neutral on the question of sexual orientation..A is a sexual morality in which some courts are willing to state that gay and lesbian sexudity is not in and of itself obscene. ...There is still a consetvative sexual modity informed by the assumption of sexual hierarchy, in which some sex is better than others.... Lesbian and gay sex continues to run a much higher risk of being pushed back across the dividing line between good sex, back from its tenuous legitimacy, into its dl-too-farniliar condemnation as bad sex (Ibid: p. 141).

Thus, although Justice Smith's ruling does not see gay and lesbian pornography as de facto obscene, the assumptions which underpin his arguments, and his marginalkation of certain types of expert evidence, speak to the fact that obscenity law in Canada continues to perpetuate various sexual hierarchies. '~ueerin~'"the Deployment of Social Evperts

In this third section, 1 argue that credibility is also tied to 'common sense' understuidings about sexuaiity as deployed in law. This relates to what Mariana Valverde

(1996) describes as the elaboration of 'social facticity'. The social experts who testified on behalf of Little Sister's challenged the clear demarcation between 'homosexuals' and heterosexuals through their deployment of social constnictionist arguments vis-à-vis sexuality. In Little Sister 's, Justice Smith used the evidence given by social experts to determine a particular 'legislative fact '. 1 suggest here that the 'legislative fact ' in question was that 'hornosexuals' constitute an identifiable and immutable minority group akin to women or people of colour. As this case was fought primarily through Charter law, this construction was not only legally strategic, it was entirely necessary for Little

Sister's to make their case. As Valverde (1996) writeq

The parties to the case may well have sought out experts prunarily to validate their own claims by reference to the findings of the science of social inequality. But, as judicial decisions constantiy remind us, law has its own timeless interests, quite distinct from the justice inkrests of the wronged Party. From the standpoint of law in general, the laws that hoven above particular cases, the deployment of sociology serves the purpuse of authonzing a purticular 'legislarivefact '.. ..The deployment of experts of the social is thus interesthg not ody as a legal trend but as an opportunity to understand better the ways in whch social facticity is elaborated and certified (p. 206, rny ernphasis).

An analysis of Justice Smith's decision suggests that much of the social experts' testimony, as presented in Chapter 3, contributed to his understanding of 'homosexuais' as a disadvantaged minority, in need of protection from the heterosexual majority. In fact,

Justice Smith draws specifically on the evidence given by Becki Ross to elaborate this point. In the contes of lesbian S/M he wites,

* in using the term "queer" as a verb and not a noun, 1 suggest that we mut re-strategize around using

121 Professor Becici Ross, a sociologist specializing in women's studies put it this way: 1 would say that lesbian-made sexual materials validate lesbian sexuality as healthy, as meaningful, and as empowering. They contribute to the positive formation of lesbians' consciousness, comunity, and culture; they combat the historical legacy of invisibility and provide lesbian readen or viewers with an avenue for self-affirmati~n.~

1 argue that the evidence presented by the various social experts who testified on behalf of

Little Sister's bookstore therefore becarne problernatic because such knowledge claims, grounded as they were in the social construction of sexuality, did not easily fit into the adjudication of se& orientation ('homosexuality') as a 'legislative fact'. Experts such as Becki Ross, Gary Kinsman, Thomas Waugh and Ann Scales were asked to test@ to provide the court with socio-political and historical analyses which document the systemic discrimination faced by gays and lesbians in Canada. These analyses draw on their respective research into gay and lesbian civil rights stmggies and the moral and legal regdation of sexual 'others'. This type of research seeks to problematize the heterosexuallhomosexual binary and challenge what Becki Ross (1 997) describes as

"compulsive and cornpulsory heterosexudity" (p. 158). This fight against state censonhip of gay and lesbian materials is about challenging the institutionalized privileging of heterosexuality and the marginalization of depictions or descriptions of 'deviant' sexualities.

However, in order for experts to engage with law on behaif of a particular cause, they must do so on law's ternis (Smart, 1989). In Little Sister 's, fought as it was through the use of Charter law, claims which speak to the 'uniqueness' or 'visibility' of gays and lesbians were translated into a legitimatization of the category 'sexual orientation'. As

the law in ways that do not reinscrii the heterose.YuaVhomose. binary. para 230 Didi Herman (1991) wcites, "extemal knowledges that are considered will be subject to a

process of legalization which can serve to render them pale imitations of themselves" (p.

63, emphasis in original). Mariana Valverde (1996) documents a similar process,

Denning self in ternis of sex, then, my blatantly tactical clah about the 'deep self of sexual identity worked by açsirnilating the potentially disturbing world beyond compulsory heterosexuality to the more familiar, already legally proteaed categories of religion and ethnicity. The identity clah made by wlgar socioiogy speakmg through me does precisely what law wants social science to do for it, namely tell it that a new problem or social experience can be properly and fairly managed by king construed as analogous to something else (p. 209).

Ultimately, this equation of homosexuality with 'sexual orientation' worked against the

Little Sister's team. in the context of a violation of their section 15 Charter rights,

Justice Smith concludes,

The inequdity of trmtment does not arise from 'Ihe stereotypical application of presumed group of personal characteristics": per McLachlin J. in Miron v. Trundel. Rather, the group characteristic is a red one and one that is relevant to the goal of the impugned legislation. Senraliry is relevant because obscenity is defined in terms of sexuol pracîices. Since homoseds are defned by their homosexualiry and their art and literature is pemeated with rcpresentations of their sexual practica, it is inevitable that they will be dispmportionately affected by a law proscribing the proliferation of obscene sexual representations.95

This analysis of certain expert witness testimony further demonstrates how the

identification of sexual orientation with hornosexuality is problematic. Counsel for Little

Sister's argued that the materials beiiig censored by Canada Customs were crucial to the

gay and lesbian communities' sense of self and the fight against homophobic and

heterosexist oppression. However, the testimony and materials presented in the case were

ultimately construed as not pertaining to a discussion of same sex desire or problematigng

heterosexual hegemony, but around sexuality as core 'Truth', or essence, to the

homosexual. Justice Smith determined that the personal characteristic of the group in question, the sexual orientation of homosexuals, is relevant to the objectives of the

impugned legislation, and as such, the differential impact of censonhip legislation is justifiable (Nowlin, 1996).

As Didi Herman (1994) suggests, this is one of the deeply entrenched 'truths'

about legal liberalism: there are majorities and minorities and it is the duty of the rnajority

in a democratic society to be tolerant and exhibit compassion by extending formal rights to

the afflicted minorities (p. 38). Herman (1994) argues that Charrer legislation is based on

the tenets of equdity discourse whose modus operdi is often one of social control. She

writes, "modem antidiscrirninatocy law.. .. functions this way by constructing a

'classification of identities' - categories of persons who are, in some way, 'lesser than', an

unstated nom" (Herman, 1994: 45). In this way, it becornes apparent that equdity

discourse constructs the terms under which various minorities may present their claims

and thus, existing power relations are not substantially challenged. Herman (1994)

concludes t hat,

If, as rnany feminists and others contencî, sexuality is socially constnicted, and there is no necessary or natural link between reproductive capacities, gender categories, and semai desire, then representing lesbians and gay men as an Unmutable category may restrict rather than broder social understandings of sexuality. Lesbians and gay men are granted legitimacy, not on the basis that there might be something problematic with gender roles and semai hierarchies, but on the basis that they consthe a fixed group of 'othen' who need and deserve protection (p. 43).

In stark contrast, queer theorias, drawing on the work of postmodem and

poststmctualist writers on identity, pose a challenge to the unproblematic construction of

the unitary, essentialized homosexual subject. Queer theonsts shift their focus from a

95 para. 135. my emphasis concentration on the oppression of gays and lesbians and instead look at the discursive

production of sexual knowledges, knowledges and categories which reaffirm and

reinscribe the homosexuallheterosexual binary as natural, normal, and foundational to

Western, industrialized society. Many queer theonsts take as their focus heterosexuality

as a constniction and, thus, they problematize the purported universality and 'naturalness'

of heterosexuaiity. In much of contemporary queer theorizing, identity is open and a site

of contestation, fluid, maileable, and ofien encompassing multiple axes such as race,

ethnicity, class, gender, and sexuality. Steven Seidman (1 996) writes,

Modem Western affirmative homosexual theory rnay naturalize or normalize the gay subject: This project reproduces the hetero/homosexuai bmary, a code that perpetuates the heterosexuaiization of society...... it reinforces the modern regime of sexuality. Queer theory wishes to challenge the regime of sexuality itself, that is, the knowledges that constmct the self as sexuai and that assume heterosexuality and homosexuaiity as categories mahgthe truth of sexuai selves (p. 12).

Therefore, those social experts in Little Sister S had a more difficult time making their

claims heard becatcse of this bifurcation between homosemals and heterosexuals.

Arguments about queer visibility, desire, culture, and politics were heard by the court and

Crown as arguments about sexuality (homosexuality) as core 'Truth'. Further, the legal

category of sexual orientation worked to entrench the homosexuaVheterosexual binary

that experts such as Ross and Kinsman tned to challenge and deconaruct. Their evidence

pertaining to the social construction of gender and sexuality was rnisheard because these

arguments were outside the law's scope of comprehension.

In conclusion, this chapter argued that the social experiise presented in Little

Sister's challenged some comrnon sense assumptions at work in the adjudication of

pomography in censorship in Canada. Primarily, who is a 'good' expert can ofien depend

on an expert's gender and sexudity and constructeci position as a neutral, objective, unbiased sczentist. Secondly, the imposition of the 'risk of harrn' Butler fiamework ont0 gay and lesbian pomography is heterosexist and reinscribes the notion that pornography is inherently bad. Finally, the deployment of particular arguments vis-à-vis the 'tmth' of gay and lesbian sexuality helped to reinforce the use of the legal category 'sexual orientation'.

This category further enshrines a binary view of sexuality and maintains the institutionalized privilege of 'compulsive and compulsory' heterosexuality. Conclusion

In over ten years of fighting Canada Customs and over six years of litigation by

Little Sister's, the authority of Canada Customs in the censorship business has not been altered substantially. This case has however brought national attention to the problem of state censorship, the secrecy of Customs, and the remarkable tenacity of a small queer bookstore in Vancouver. The narne Little Sistw's has become almost synonymous with a

David and Goliath battle in which the rights of gays and lesbians to sexually explicit material have become increasingly supported by the mainstream press, shining an embarrassing international light on the Canadian goverment's antiquated censorship practices. Despite the loss in the Supreme Court of Canada, Little Sister's has pushed the jurisprudential envelope towards another constitutional challenge of the existing obscenity precedent in Butler. Challenging Butler therefore may be the only defensive strategy available under the present legal regime. Moreover, as gays and lesbians fight for equality rights on more diverse fronts, such as around the issue of pomography, 1 believe the discourses of what is fair, appropriate, and just vis-à-vis the treatment of sexual 'others' will change accordingly.

Where does this leave 'Us'?

This research suggests that the use of social experts, as law's interlocutorq often has unforeseen consequences, both for the experts themselves and for the causes on whose behalf they testify. The legalization of rights struggles means that social movements are dependent on the experts who must speak their Tnith in law? As we have seen from the

%e mtegic Luportance of experts has yet to be adequately analyzed in the rights literature (see Bakan, 1991; Hem1993 & 1994b; Hunt. 1990; Fudge, 1987). Furthexmore, it is important to &xzsthe fact Little Sister's case, however, only certain messages are 'heard' by the judiciary. Others,

those claims which have the most transfomative potential, are likely to be 'smothered' .

What then can we conclude about the use of social experts and more generally, the use of

law for socially progressive purposes?

This analysis of the expert evidence presented in Little Sisrer S suggests that one's

ability to "tell the tnith, whole truth, and nothing but the tmth" is not predicated on some

benign or neutral adjudication of social or legal 'facts'. The discourses which circulated

throughout this triai with respect to pornography and 'homosexuals' speak to the fact that

constructions of expertise and credibility are structured dong particular hierarchies of

race, class, gender, and sexuality. The presentation of tmth claims within a legal

frarnework thus becomes problematic when we interrogate assumptions about who

'counts' as an authorized knower. Foucault's work is a continual reminder that those

discourses which are certified as tme often operate through 'multiple forms of constraint'.

Thus, analyses of social expertise can point us towards new and promising ways of

problematizing discursive constraint as well as discursive liberution.

More specifically, this research suggests that Canada's queers must strategize non-

legal options as well, to fight censorship in Canada. Understanding the trajectory of

. - --- that use of social e.uperts is elitist and exclusionary. if the prerequisite for king judged an e.upert is possession of a Ph-D. or other high-levels of post-secondary education, those who have access to these types of opportunities tend to be few and privileged, Access to post-secondary education in Canada is becoming increasingly dficult, particularly for low-income people. Since this reliance on e.uperts in law perpetuates a system of knowledge production which largely indudes white individuais from middle to upper-class backgrounds. Not only does the 'Iegalization of politics' contn'bute to the individualization of systemic problems. it also restricts those who may enter into &e debate. E.uperts must be chosen and called be lawyers; previous e-qenenceas an e.qert witness makes one a good candidate for this role. People of colour, as those with limited access to pst-secondary education in Canada.. are likely to be excluded fimm this process. feminist engagements with law, Our victories and losses, permits a reflexive and critical evaluation of the increasing legalization of queer rights struggles in Canada. As Carol

Srnart reminds us, "feminist scholarship has become trapped into debates about the

'usefulness' of law to the emancipation of women ...... or the extent to which Iaw reflects the interest of patriarchy or even men. These are necessary debates but they have the ovenvhelming disadvantage of ceding to law the very power that law may then deploy

against women's claims" (1989: 5). Indeed, in using law, Canadian queers must remember

that the law is a site of contestation and as such, the fight for rights is often more about

liberation und containment than about out-and-out victories (Eaton, 1994).

As the work of critical and feminist legal scholars suggests, using rights discourse

to replace politicai stmggle can deradicalize and transform counter-hegemo~cclaims.

Thus, part of our fight against state censorship needs to centre around challenging

heterosexism and homophobia, we must also demand that Parliament confiont this issue

head on, rather than leaving it to the courts. By forcing the government into action over

the issue of obscenity law and Customs, we send a message to Canadians that there are no

'good queers' and 'bad queers'; the censorship of queer S/M materials, for example,

cannot continue if we are going to move towards greater sexuai freedom and the

recognition of diversity in Canada.

Gays and lesbians also need to re-strategize around the wisdom of an appeal to

'semai orientation' arguments, both intemally and extemally to law. The concept of

sexual orientation is a legd invention and, as Valverde (1 996) notes, "law institutionalizes

an impoverished, binary view of sexual possibility simply because within a liberal legal

system one cannot legislate homosexuality directly any more than one can legislate women directly" (p. 210). In the early years of human rights struggles, this was the most effective way of getting certain claims heard in law. For example, these arguments were used to change both federal and provincial human rights codes in order to protect gay and lesbian

employment and housing rights. However, this research shows the real limitations of such

strategies at this time. Sexuai orientation has become a polite euphemism for

homosexuaiity (Vaiverde, 1996). In the Canadian legal system, the hegemony of

heterosexuality is not challenged, nor even breached as a subject worthy of discussion.

Until we begin to seriously challenge the homosexuallheterosexual binary, our attempts to

change the policies and practices of institutions such as Canada Customs will largely be

short term (and incredibly expensive!) responses to long terni problems.

Finally, the destabilizing of gay and lesbian claims around 'hm' suggests that we

do need more research into gay and lesbian pomography. Specifically, more empirical

research needs to be done on gay and lesbian SM communities, participants, and

pomography if research is to help challenge the moral and legai closure on the issue of

SM in Canada. The issue of pornography, particularly the gay and lesbian genres, has

never been a priority for academics and it continues to be marginalized within academe as

it is not considered 'appropriate' or 'scholariy' (Ross, 1997). If the pomography = hm

discourse is to be successfiilly challenged within law, only counter-hegemonic empirical

research has the potential to be heard. In Little Sister 's, one of the major strategies used

by the Crown to delegitimate the clairns of experts like Becki Ross and Gary Kinsman was

to point the dearth of research on S/M. This gap in our understanding of gay and lesbian

SM needs to be filled. To conclude, this research has shown that the strategic use of social expertise, particularly vis-à-vis gay and lesbian civil rights, is indeed complicated. My question becomes, if we must engage with law, how do we do it, when, and on whose terms?

These questions do not require one monolithic answer. They must be answered on a case- by-case, issue-by-issue basis, because different substantive concems warrant different strategies. 1 do think, however, that we need an infusion of queer activism back into civil rights stmggles in Canada. Organizations in the United States such as Queer Nation and

Act Up foreground a more radical and trangressive flouting of sex and gender noms.

Further, artists and writers such as Pat Califia, the Kiss and Tell Project, and Sara

Schulman continue to push the limits between 'art' and 'pornography', and challenge the

historical and contemporary invisibility of queer desire. Canada will never be a 'queer

nation' until those on the furthest rnargins, bisexuals, transgendered peoples, and SM

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