David Butt : Former Crown Attorney
Interview by Robin Benger:
Are you finding more Internet pornography cases?
Yes, and partly it’s because the officers are looking for it more often now. It’s very commonplace for…in the execution of a search warrant for any kind of crime, be it a financial crime, crime of violence to be looking at the contents of an individual’s home computer. And so that we’re actually starting to see experientially what people have on their computer and how that may or may not relate to what they’re acting out, how they’re acting out criminally.
Can you give us a definition of obscenity.
Sure, sure. The definition of obscenity has evolved historically from a moralistic conception of what was seen as inappropriate imagery and some kind of moralistic, almost Victorian sense, to a notion in the late ’50s. And throughout the ’60s and ’70s and ’80s it was more of a notion of community standards of tolerance….
So, throughout the…beginning in the 1950s, but throughout the ’60s, ’70s and ’80s we evolved to a standard of, community standards of tolerance, which democratized the obscenity test in the sense that it was what the community wanted rather than what an individual judge’s moral standard might have been. From there, however, we’ve evolved much further, and we now think of obscenity in terms of harm. So, while the word community standard of tolerance or the phrase still defines obscenity, we now find it interpreted and applied in terms of harm. So, if we can point to a type of harm that’s being caused by the images, then we are getting into the realm of obscene material.
I’m struck by the youth of people consuming this.
Yes. I think that there is, are some very serious questions that have to be asked, and frankly the literature is deficient around the relationship between youth consumption and harm. Because what we’re finding with Internet access being ubiquitous, particularly amongst young kids, that kids are being exposed to explicit sexual imagery at a much younger and younger age. And the question, then, becomes, does that make a difference in terms of the healthy psychological or psycho…sexual development of those kids? And if it does make an adverse difference, we’re into a classic harm analysis that may lead us to say, we’ve got an obscenity problem here. This is a law enforcement problem if the proliferation of this imagery is hurting our kids. I don’t know if it is, but the proliferation down the age band raises a very serious question that it might be, and we need research to answer it.
Do you have kids?
Yes I do, yes.
How do you feel as a father?
I think that responsible parenting demands that a parent be very much involved in your childrens’ Internet experience just the way a responsible parent is involved in your kids’ school experience, in your kids’ sports and other extra curricular activities experience. To think that we can park a computer up in the kid’s bedroom, walk away, and see it as a substitute babysitter is a dereliction of parental duties. There is immense potential for inappropriate socialization, I say, to take place on the Internet with kids, and you have to be involved as a parent overseeing that.
What influence might it have on their sexual behaviour?
I think that’s a fascinating, very important and very wide open question. Factually we can assert with reasonable confidence that kids are exposed to much more explicit sexual imagery at a much younger age. The questions that I think that raises, and I don’t go in there assuming that there are particular answers, but the questions I think it raises are, at what level are the kids comprehending what they are seeing? How is it affecting their approach to sexuality and is it having a negative effect?
And I think that all of those questions are very serious ones, because the message of much pornography is not particularly prosocial. I wouldn’t go so far as to say that it ought to be outlawed or criminalized, but there is certainly plenty around the sexual messaging that is certainly not prosocial, not representative of fully developed and fully nuanced relationships. So that may be problematic in terms of giving kids an understanding of sexual intimacy.
Is anyone policing this material for the harm it may be doing?
I think what is really important to recognize is that over the last 7 to 10 years there has been a quiet, unobtrusive, but almost complete surrender of any further effort around law enforcement against adult obscenity. Law enforcement has essentially abandoned the field. We no longer prosecute adult obscenity for any, in any meaningful way.
It’s simply a question of triage. I say that the Internet is a social revolution of immense proportions that washed over the law enforcement community like a tidal wave, and there are the officers in two little rowboats trying to deal with the fallout. And there simply are not the resources in place. This is an electronic way of socializing that has overtaken every aspect of our lives, become a very, for the most part, healthy, beneficial, positive productive contribution to every aspect of our lives. It does have that dark underside. And law enforcement has not yet, because there hasn’t been the political will, not yet been equipped to respond to the magnitude of the social issues that the Internet raises.
Why is it hard for politicians to crack down on this stuff?…
We certainly do. And the development of the law away from what’s appropriate socially to what is harmful, has allowed us to approach that task with much more sophistication and with much less risk that we will be perceived as being censors, prudes, Victorian moralists. I think that what’s really important is that we conduct the research that allows us to get a handle on the harms that Internet obscenity causes. So that armed with that research, we can then go forward as prosecutors, as law enforcement personnel saying we are carrying out what has been demonstrated to be a worthwhile piece of social regulation, which is preventing harm. Once you have that research, then you have much more active motivation, much more secure foundation upon which to act, in what is a very tricky area, because after all you are regulating expression.
With the internet there must unprecedented jurisdictional issues.
Absolutely right. An immense challenge. Because everyone who has access to a $500 desk top and a $20 a month Internet hookup can become a mass distributor of obscene images worldwide. So, it has…the Internet has democratized the media, but it has also empowered tremendously, everyone who wants to distribute obscene material. We’re still responding to that reality and law enforcement is historically jurisdictional in nature because, of course, it was conceived and developed as policing of physical space, whether it be a town, a city or a country.
We now have to deal with a fundamentally different concept, which is policing cyberspace liberated from geography. And when your expectation is that your officers will act locally, when your funding sources are local, and by local I mean the local legislature, the provincial or the federal parliament, you suddenly have a fundamental challenge. Why should I, as a prosecutor or police officer in Medicine Hat, Alberta, be chasing something that is going on in Moscow. But that’s the reality of Internet instantaneous worldwide distribution of imagery. We do have to be concerned about that. So, it’s taken us a while to…and we are by no means there. It is taking us a while to understand how we have to rethink our approach to policing to address those jurisdictional issues.
In a couple of months of research I haven’t yet found one global anti-obscenity cop.
That’s right. That’s right. The best you’ll get, and again it’s in the child pornography area, because that’s attracted the priority in terms of resources. The best you’ll get are evolving associations of local police services. There is nobody who has a global beat. Everybody has a local beat, but they’re trying to transcend that genre by coming together in various ways under international umbrellas.
What can be done?
I think that we need to have a convergence…
I think that we need to have a convergence of three fundamentally different areas of expertise. First of all we have to have political will internationally to support trans-jurisdictional policing. Second thing, we have to have training and logistical support so that officers are able to master the technology that facilitates this trans-jurisdictional crime, which is what it is when we are talking about adult obscenity.
But the third thing you have to have is, there has to be significant buy-in from the private technology sector. Because the Internet is a commercial phenomenon. And it is driven by the development of new products that are developed for commercial purposes. So every six months there’s a whole new learning curve for investigators. If we don’t have the commercial sector firmly on side with, as I say, the political and the law enforcement sectors, we’re not going to address this problem as comprehensively as we need to.
Do you have any idea how much money is being made, and who’s making it?
I don’t have any special access to the data around who is making how much money. Part of it is because it’s so fragmented as an industry, you can have websites that are offshore and so on. We do know from individual busts of, particularly successful operators, that there are millions to be made in months through Internet pornography distribution. Whether that individual bust that, you seize the books and you see they’re making millions every month, is the norm or very much an exception…, individual busts do reveal that there are highly successful operators of obscene material making millions of dollars in a matter of months. Whether those are the exception or the norm I’m not able to say. But what I am able to say is that the volume of commercial activity, and the volume of a barter economy, in terms of people trading images, is overwhelming at the current level of law enforcement resourcing, simply overwhelming.
What about the role of mainstream corporations?
Yes, it’s ubiquitous. And in fact, it’s ubiquitous to the extent that we see 11 year old girls going to school with the words “porn star” emblazoned across their chests. So, it’s something that has entered mainstream consciousness. Now, explicit pornography is different from obscenity. Historically, of course, it was not, when…if it was explicit sex it was obscene. That was the rule as little as 20 years ago. However, now we have a much more nuanced approach. The difficulty with the nuanced approach, again given the lack of resources, is that you cannot develop comprehensive standards about what is and is not permissible. So, we’ve moved to explicit and we’ve also expanded the horizons of what is permissible simply by inaction. Not conceptually, but simply by inaction.
There are studies that high internet porn consuming areas in the US actually see a decline in violent sexual assaults. In any way can porn be a good thing?
Yes, one does see that argument presented from time to time, and one has to be careful about the causal links that are being drawn in any direction. You see people invoking similar data to say that the imagery causes. I think that there are a lot of difficult questions that are not answered to a level of certainty that we can say, yes, this person is right and this person is wrong. One of the issues…that’s a macro view. But a micro view, though, we can look at the healthy, psychological and social and psycho-sexual development of individuals and ask ourselves at the level of the individual, what does this, the exposure of this kind of imagery do to their healthy development? So, I think we can look at the macro and at the micro picture, and we don’t have, I say, clear answers on either end of those.
What can we learn from the Briere incident?
Often one sees an expanding repertoire of tastes, so that one enjoys this kind of pornography, you’ll collect more of it, you’ll branch out. So it’s not uncommon to see a collection that has quite a variety of kinds of pornography or obscene material. In psychiatric terms, a psychiatrist would say that it’s not uncommon to see someone with multiple parafilias. So, multiple psychiatric sexual disorders. And we see that in the collections. So that, this is something that we do see regularly in the collections of people who are arrested.
…sexual interference…man banned from watching Internet porn.
It makes sense, it makes sense. That’s a little bit on the creative side, shall I say, of legal remedies, but it does have a certain intuitive appeal in this sense. Very often when we’re talking about obscene material we’re talking about material that very clearly does not send pro-social messages. It sends destructive messages about healthy relationships. Very often this material can become material that feeds an individual’s cognitive distortions, that those types of relationships are somehow normal, acceptable or appropriate. So, if you have a diagnosis upon shrinking down somebody down after arrest that they are being influenced and their thinking is distorted by the imagery, then prohibiting access to the imagery is a logical part of a treatment and harm reduction protocol.
How would you enforce this?
Extremely difficult. It is either very resource intensive or required extremely sophisticated technology coupled with restrictions on access by that individual. If there’s only point of access, you can monitor that technologically. But we all know that you can get Internet access in any form, anywhere at any time. So, it’s very, very difficult to enforce that. The best you can do is make it much more difficult and make that person have to deliberately decide and plan to breach that condition. In which case, if they are caught, you’ve got a very strong prosecution and you could punish the person accordingly.
I think that we have revealed something that Dickens spoke very eloquently about 150 years ago. The legal system moves at a snail’s pace. And it becomes particularly inept at regulating Internet obscenity when it is juxtaposed with Internet technology that moves at light speed and evolves another generation every six months. Six months is hardly a nanosecond in terms of the life of a case moving through the course. So, a six year lifespan for a complicated criminal case that goes up to the appeal courts and back down is not at all unusual. Six years is multiple generations in terms of Internet technology. So, we have a fundamental disconnect between the slow moving creaky machinery of the legal system and the extremely nimble development of Internet technology.
Why was it so difficult to prove obscenity in the Smith case?
Obscenity cases are few and far between. As I say, there’s been this retreat from the prosecution of obscenity. But even when there wasn’t the major distraction of child pornography, there still wasn’t the regular attention paid to it. So that typically obscenity cases, because they have not become normalized…the parameters tightly set within which lawyers operate, they tend to be litigated and fought at great length, at great cost, and over a great length of time.
The result being that we have these periodic prosecutions that become mini cause celeb that take up oodles of court time, and may make some pronouncements that advance the law a little bit, and then we’re in a period of, essentially, vacuum. There’s no attention paid until the next mini cause celeb comes along. That tends to be the historical pattern of how obscenity cases are prosecuted in Canada. And what it means is that we have very few, but very large cases instead of a multitude of smaller ones that you really need to work out all the kinds and bugs in the legal definition and it’s application.
How do you feel about the material you see on the Internet?
Well, first of all, I don’t think in terms of being a prohibitionist. I mean, that implies a static view that there is material that should, under all circumstances, be prohibited to everyone. I don’t take that view because I think the dust bins of history are littered with prosecutors who stood on the self-erected soap boxes of moral outrage and merely proved themselves buffoons from a historical backwards perspective. My concern is that we have to keep asking serious questions about when is the power of expression deployed destructively. And when we can identify when it is deployed destructively, we have a duty as a society, to respond.
So, while I say that yes, you do have to evolve, and you do have to be very careful to respect liberties, you cannot abnegate that basic responsibility to protect people from identifiable harms. And as long as we’re able to identify those harms, we should be acting to protect people from them.
By the time we get trials to proceed, millions of images already.
That’s right. There are millions and millions being produced and consumed right now that should not be produced and consumed on any non-controversial definition of adult obscenity. I’m not talking about wading into controversial definitions. Let’s stick with abject degradation. Let’s stick with real time rape films. Let’s stick with all of those things that there will be a broad social consensus of prohibited imagery. Crime scene photographs, so to speak. We don’t have the resources, we don’t have the political will, we don’t have the commitment to go after what our criminal laws already cover. So as I say, this boils down to a quiet, surreptitious, but complete surrender in the field of adult obscenity.
The calibre of material is directly available to young people…nothing can get in its way.
Absolutely right. I mean, we have seen periodic revolutions in the conduct of human affairs, and if we can move from the stone age to the agricultural age, from the agricultural age to the age mercantilism, from the age of mercantilism to the industrial era, and each one of those unfolded, they were epoch-changing developments in humanity. Each one of them unfolded over a period of decades, if not centuries. Each one of them had immense social collateral damage costs.
Look at the Easter Islands being sort of stripped bare as a result of over farming or over logging, however you want to call it. But each one of those required a human response that was decades unfolding for a problem that was decades developing. The Internet swept over us basically as society at large in a period of about five or six years, depending on where you peg it. 1992 to 1997. That was a social revolution no less significant that unfolded in a tiny period of time by historical comparison.
We are still nowhere close to dealing with the immense collateral fallout. We’re reaping the immense social benefits, don’t get me wrong. Just like those other epochs afforded humanity the opportunity to make great strides forward. We’re reaping all those benefits of the Internet revolution, but we have not yet begun to come to grips with the immense social fallout. And the immense social fallout is a byproduct of this kind of harmful, destructive imagery being available to impressionable minds. We’re just beginning to get a handle on that, we’re certainly not beginning to respond to it in any way like an equilibrium.
Why did you get involved in this?
I started…I did graduate studies at Harvard looking at the relationship between the judicial branch and broader notions of governance. And this led me into obscenity because, interestingly enough, at least to me, obscenity law represents the confluence of just about everything that makes us human and just about everything that makes us a society. Sex. Expression. Notions of what is and is not acceptable. Notions of tolerance of other people’s views. And of course notions of building laws to properly and fairly enforce deeply held societal norms.
So, obscenity law is really a confluence of a whole lot of very important social and individual values, and it represents a unique challenge to a prosecutor, which I was at the time. Because you have to have, perhaps, the lightest foot on the gas of any driver on the road to prosecute obscenity. There’s no lack of social consensus around murder. So, a prosecutor prosecuting a murder can put his foot down to the metal and go full bore down the highway to the conviction because there’s absolutely no doubt that he or she is doing the right thing. When it comes to prosecuting obscenity, you have nothing like that solid and unwavering social consensus.
The imagery that you are dealing with is much more nuance, you have to be much more careful. One of the early cases I prosecuted, one of the first child pornography cases, police officers went into an art gallery and took paintings off the wall. Where’s the social consensus around that? It may or may not have been there. You have to be very delicate and very nuance, so it’s an immense challenge. It’s a wonderful field to work in.
How many people have sampled Internet pornography?
Virtually everyone. That’s the assumption, isn’t it? And whether voluntarily or not…sort of receiving spam e-mails about this website or pop-ups on that website. So, yes, it’s ubiquitous, and that adds to the imperative to take a good serious look at what we should be doing about this stuff. The extent to which we should or should not be prosecuting it. I don’t want to presume answers to those questions, but it’s very serious that we ask them because this is something that affects everybody.
You used a stunning statistic…that in terms of internet child pornography you are only catching 1%?
Just in terms of child abuse imagery. I would estimate that it’s a fraction of 1% that we’re actually dealing with in the courts, we’re actually apprehending the offenders. The level of our inability to prosecute people who deal in clearly obscene material, whether it’s adult obscenity or child pornography, is demonstrated by the fact that there are websites where you can use your credit card to buy adult obscenity or child pornography.
p>Now, let’s just take that fact and transpose it into a different area of criminal activity. If you could use your credit card to hire a hit man, or use your credit card to buy crack or crystal meth, there would be social outrage. We would be saying to ourselves that we’re one step away from complete collapse as a society. And yet, that’s what you can do with adult obscenity and child pornography, and nobody seems to be terribly concerned about it. That speaks volumes to me about the distance that we have to go before we’re even beginning to adequately address this problem.