Pornography Legal Definition:

The portrayal of sexual acts solely for the purpose of sexual arousal.
"Pornography is the portrayal of erotic behavior designed to cause sexual excitement. It is words, acts, or representations that are calculated to stimulate sex feelings independent of the presence of another loved and chosen human being. It is divorced from reality in its sole purpose to stimulate erotic response. It is preoccupied with and concentrates on sex organs for the purpose of sexual stimulation. It emphasizes them and focuses on them in varying ways calculated to incite sexual desire.

"Art and pornography are distinguished as follows: True art conveys a thought, a speculation, or a perception about the human condition. Pornography is the pictures of sex organs and their usage devoid of all other meaning-the personality having no place. They bear in upon one a sense of increasing ugliness and degradation of the human being."

City of Youngstown v. DeLoreto (USA, 1969)

In Canada, the Supreme Court described pornography in R. v Butler as follows:

"Pornography can be usefully divided into three categories:  (1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence that is neither degrading nor dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence....  Sex coupled with crime, horror or cruelty will sometimes involve violence.  Cruelty, for instance, will usually do so.  But, even in the absence of violence, sex coupled with crime, horror or cruelty may fall within the second category.

"Some segments of society would consider that all three categories of pornography cause harm to society because they tend to undermine its moral fibre.  Others would contend that none of the categories cause harm.  Furthermore there is a range of opinion as to what is degrading or dehumanizing.  Because this is not a matter that is susceptible of proof in the traditional way and because we do not wish to leave it to the individual tastes of judges, we must have a norm that will serve as an arbiter in determining what amounts to an undue exploitation of sex.  That arbiter is the community as a whole.

"The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure.  Harm in this context means that it predisposes persons to act in an anti social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse.  Anti social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning.  The stronger the inference of a risk of harm the lesser the likelihood of tolerance.  The inference may be drawn from the material itself or from the material and other evidence.  Similarly evidence as to the community standards is desirable but not essential.

"The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex.  Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial.  Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production."

Playboy coverCanada's Criminal Code prohibits child pornography, defined as follows:

  • A photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

  • Written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act or whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

  • Any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Indirectly related to this term is the Criminal Code definition of obscene which is, at §163(8): "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene."

Provincial film review or censorhip boards do not tend to rely on the term pornography but instead, as is exemplified by the relevant Ontario regulation, refer to "adult sex film", or one which "has, as its main object, the depiction of explicit sexual activity".

References and further reading:

  • City of Youngstown v. DeLoreto 19 Ohio App. 2d 267 (USA, 1969)
  • R v Butler [1992] 1 SCR 452 available at canlii.org/en/ca/scc/doc/1992/1992canlii124/1992canlii124.html
  • Ontario Regulation 452/05 made pursuant to the Film Classification Act, SO 1995 Chapter 17

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