Judge: Child porn
has 'artistic merit'

A Canadian judge in British Columbia has issued a controversial ruling in which he both convicted a man of possessing child pornography and said the defendant's written works of pornography have "artistic merit."

John Robin Sharpe was convicted Tuesday of possessing pornographic photographs of boys. Yet Judge Duncan Shaw declared Sharpe's written materials to be legal in light of the Canadian Supreme Court's definition of "artistic merit." The written material consists of two books: "Sam Paloc's Boyabuse: Flogging, Fun and Fortitude – A Collection of Kiddiekink Classics," to which Shaw refers simply as "Boyabuse," and "Stand By America, 1953." Each short story in "Boyabuse" and the plot of "Stand By America, 1953" are summarized in graphic synopses in Shaw's ruling.

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Sharpe has been the pivotal character in Canada's child-porn debate, which heated up in 1999. At that time, Sharpe defended himself against child-porn charges, arguing that Canadian law on the subject contravened freedom of speech provisions in the federal Charter of Rights. Shaw, a justice of the British Columbia Supreme Court, agreed. The case eventually reached the Supreme Court of Canada, which rejected Shaw's initial decision and drew a fine-line definition of "artistic merit."

That definition states in part that, "unless written material advocates or counsels the commission of sexual crimes with children under 18 years of age, the possession of such material is not a crime under the child pornography provisions of the Criminal Code." According to the high court, "any objectively established artistic value, however small, suffices to support the defense. Simply put, artists, so long as they are producing art, should not fear prosecution" under Canadian law.

With the high court's new guidance, Shaw had to reconsider the original charges against Sharpe. His decision was published Tuesday.

While Sharpe signed an admission that photos seized at his Vancouver apartment could be classified as child porn, he expressed concern about the treatment of his writings, according to Canadian press reports. During his second trial, Sharpe's lawyers called two professors who testified that the defendant's writings had literary merit and therefore are legal under the Supreme Court of Canada ruling. Prosecutors, however, called other witnesses who said the writings were crude and childish.

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In his decision, Shaw treated the photographs and written materials separately. On the former, Shaw was convicted on two counts, but he was acquitting of two counts pertaining to his writings. Shaw admitted Sharpe's "writings simply describe morally repugnant acts," but the writings do not expressly "advocate or counsel" the commission of the acts, he wrote. Therefore, the judge reasoned, Sharpe's work has artistic merit and is legal. The decision reads:

"While 'Boyabuse' and 'Stand By America, 1953' arguably glorify the acts described therein, in my opinion they do not go so far as to actively promote their commission. The descriptions may well be designed to titillate or excite the reader (if the reader is so inclined) but these descriptions do not actively advocate or counsel the reader to engage in the acts described. Nor, in my view, do 'Boyabuse' and 'Stand By America, 1953' send 'the message' that sex with children can and should be pursued. If that were the case, then literature describing murder, robbery, theft, rape, drug use and other crimes in such a way as to make them appear enjoyable would likewise be said to advocate or counsel the commission of those crimes. In my opinion, such literature is not what the 'advocates or counsels' requirement is intended to capture. Where written material is simply a thinly disguised exhortation to seduce children or to otherwise make them prey to sexual crimes, such writing may well advocate or counsel such crimes. But that is not the case with 'Boyabuse' and 'Stand By America, 1953.'"

Shaw further explained his reasoning behind accepting Sharpe's written pornography as art:

"Mr. Sharpe's portrayal of people, events, scenes and ideas are reasonably well written. He uses parody and allegory, not expertly, but he does use them. His characterization is thin, but it does exist and at times is expressed with a reasonable degree of skill. His plots show some imagination and are sometimes fairly complex. In my view, 'Boyabuse' and 'Stand By America, 1953' are properly termed transgressive literature. Mr. Sharpe shows skill in the literary quality of his work and the literary devices that he uses, although not to the level of most established writers."

Canada Family Action Coalition, a group that has closely followed Sharpe's case, is disgusted by the ruling.

"This case, in our opinion, is a true violation of what the law says," remarked Brian Rushfeldt, executive director of CFAC. "There is no reasoning for such a ludicrous decision. How can a judge consider artistic value when a criminal act such as sexual abuse is encouraged?" he asked. "This decision is a travesty of the justice system."

CFAC is a non-denominational grass-roots citizens-action group that seeks to restore Judeo-Christian moral principles in Canadian society.

Rushfeldt believes freedom of speech, which he says is "ill-understood," cannot be argued in Sharpe's case. "Free speech ends where the advocacy, proposition or suggestion of harm to another human being starts," he said.

CFAC believes Tuesday's decision will contribute to what it says is Canada's reputation as a haven for child pornographers and pedophiles.

"We've become known as the destination for sexual predators and pedophiles because of our low age of consent, because of the soft sentences our predators are getting here and because of the easy paroles," Rushfeldt said. "They know that their chances of actually getting charged and jailed are pretty slim."

To help combat the problem of child sexual abuse, CFAC has begun a campaign to raise Canada's age-of-consent law for sex. Currently, a child age 14 or older may legally have consenting sexual relations with an adult. In the United States, adults can be found guilty of statutory rape if they have sex with children under 18, even if the sex was consensual.

Part of CFAC's effort to change the law includes a letter drive to Canadian Justice Minister Martin Cauchon. So far, the group reports it has collected about 20,000 letters from Canadian citizens demanding an increase in the age of consent. The letters will be delivered to Cauchon and Parliament before the Canadian House of Commons adjourns for the summer, said Rushfeldt.

While the Sharpe case has added to CFAC's list of concerns, Rushfeldt indicated the group remains focused on its campaign to keep kids from becoming victims of sexual abuse. Part of that battle, he added, is reforming a system that appears "not to be placing any value on the lives of children."

"Our main concern is that we have a government in our country and a justice system which are clearly failing to protect children from sexual predators," he concluded.