Wednesday, Mar 27, 2002 print this page
Sharpe guilty of possessing child-porn photos, acquitted on writings
John Robin Sharpe, whose case helped shape Canada's child pornography laws, is surrounded by reporters outside B.C. Supreme Court in Vancouver Tuesday. (CP/Chuck Stoody)
VANCOUVER (CP) - The graphic child sex stories written by a B.C. man who challenged Canada's child porn laws have some artistic merit and should not be considered criminal, the B.C. Supreme Court ruled Tuesday.
John Robin Sharpe was found not guilty of child pornography charges related to his writings.
Please see below for:
Some excerpts from Justice Duncan Shaw; quotes; chronology and reaction
But Justice Duncan Shaw found Sharpe guilty of two charges of possession of child pornography for hundreds of photographs seized at the Canada-U.S. border and at his Vancouver apartment.
"I find there is some objectively established artistic value to Boyabuse," Shaw said of the collection that Sharpe penned.
"There is no doubt that the photographs are child pornography."
Shaw also found that the Crown failed to prove that stories in Sharpe's Kiddie Kink Classics, such as Tijuana Whip Fight and ****** It, advocated the commission of sex crimes against children.
During his second trial in January, university professors called to testify by Sharpe's lawyers likened the stories in Boyabuse to literary greats such as Charles Dickens and James Joyce.
But another expert called by the Crown found the writings childish and crude. A psychiatrist who works with sex offenders testified Sharpe's writing was among the most violent he had ever read.
Outside court Sharpe said he set out to strike down child pornography laws and that he was proud of his effort.
"I don't do this just for selfish reasons," he said. "I spent seven years of my life fighting this. I look at this sort of as something I've done for my fellow Canadians. I want to make this a better and freer country."
He lashed out at reporters who asked him if he was a pedophile.
"You people, I don't know, you're sick," he yelled.
As he walked away he blamed the controversy over his stories on "a bunch of uptight people."
Sharpe has been a pivotal character in Canada's child porn debate.
Shaw heard Sharpe's original trial in 1999 and agreed with Sharpe that Canada's child pornography law contravened freedom-of-speech provisions because it captured works of the imagination.
The B.C. Court of Appeal upheld that ruling.
The Supreme Court of Canada, however, struck it down and instead upheld Canada's law with two exceptions.
One of them was artistic merit.
Vancouver city police Det. Noreen Waters, who was involved in the investigation, said outside court that Sharpe's stories were extremely disturbing.
"The writings are horrific descriptions of children as young as six years old engaged in horrific, violent, sexual sado-masochistic sex acts written as if the children wanted it and are enjoying it and are coming back for more," Waters said.
But the judge had little choice, she said, following the high court decision.
"They broadened artistic merit to the point that it's almost virtually impossible to say that this didn't have some artistic merit."
It is now up to legislators to act, she said.
"I think maybe with this decision that may fall back to them to change the legislation in some way to protect children from this type of material," she said.
Federal Justice Minister Martin Cauchon was not available for comment Tuesday. A spokesman for his office said the minister is studying the decision.
Sharpe admitted at trial that some photographs found in his possession in his Vancouver apartment could be considered child pornography. Shaw convicted him on those charges.
But Sharpe was acquitted of the more serious distribution charges relating to his own works.
Besides works with artistic merit, the Supreme Court also exempted material created privately and not for distribution, such as personal journals and drawings.
As well, the high court said people can possess video recordings or photographs of themselves, but they must not depict unlawful sexual activity, must be for private use and be created with the consent of all involved.
In Canada, the age of consent for sex is 14 but one must be at least 18 to lawfully take part in pornography.
Any material that highlights the sexual depiction of genitalia or the anus of someone under the age of 18 would be considered child porn, the court ruled.
Crown spokesman Geoff Gaul said child pornography cases are going ahead.
"It is still a crime to possess child pornography," Gaul said following the verdict.
"What we have here is a conviction."
John Dixon, president of the B.C. Civil Liberties Association, said common sense prevailed in Shaw's decision.
"Our position has always been that photographs made possible through the sexual use of actual children ought to be prohibited," Dixon said.
But "writings ought to be freely distributable among adults no matter what fantastic or imagined content."
The association, which tried unsuccessfully to intervene in the case, sees the ruling as an important expansion of the artistic merit defence.
"Much of world literature comprises twisted visions of reality," Dixon said.
"Canadians ought to be free without any fear of prosecution by the state of communicating any written materials whatsoever with one another."
Sharpe lauded the "generous" artistic merit defence.
"In a sense the artistic merit defence almost makes a mockery of the main thrust of the (child porn) law," Sharpe told reporters.
For him, it made the difference between a facing a 10-year maximum sentence for distribution of child pornography and "going free with some notoriety."
Sharpe is to be sentenced May 2. The maximum sentence he could face is two years less a day.
Children's advocates say the Sharpe decision will open the floodgates for child sexual abuse.
Rosalind Prober, president of the children's advocacy group Beyond Borders, said the Supreme Court of Canada decision set a new, low standard for the defence of child pornography.
Writing that focuses on children sexually is a precursor to actual abuse, she said.
"They (the courts) created giant loopholes for pedophiles," Prober said from Winnipeg.
She said Sharpe clearly advocates the sexual abuse of boys in his stories.
"It's purpose is not to end up in the library. He's writing it for like-minded individuals and his purpose is a sexual one, not an artistic one," she said.
"Boyabuse. What does the judge think that is about?"
Some excerpts from the written ruling of Justice Duncan Shaw, who acquitted John Robin Sharpe of two counts of possession of child pornography for the purpose of distribution and found him guilty of two counts of possessing child porn:
"There is no question that Boyabuse and Stand By America, 1953 describe sadomasochistic scenes of violence and sex directed at boys generally 12 years of age or younger. The scenes portrayed are, by almost any standard, morally repugnant."
Shaw noted literary work by the Marquis de Sade entered as evidence by the defence at trial "describing scenes of sexual torture of women and children, scenes which in terms of sadistic cruelty and horror go far beyond those written by Mr. Sharpe. . .
"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."
"A reading of Mr. Sharpe's other writings put in evidence, both prose and poetry, reveals that his is not devoid of literary skill. He writes about varied topics and, in doing so, he shows a fair depth of knowledge and ability to observe and describe people and events. His works indicate that he is a writer who seeks to express himself in a manner that has literary merit."
Shaw's ruling outlines some of the stories in Sam Paloc's Boyabuse Flogging, Fun and Fortitude - a Collection of Kiddiekink Classics, a 245-page collection of short stories:
"On a Cold Winter's Evening: This is a very short story describing fellatio between a man and his paperboy. There is no violence.
"Platinum and Gold: This is a story of man-boy and boy-boy sexual relations in Manila. There is no violence.
"The Spanking: A spanking with a leather strap is delivered by an uncle to his young nephew. The nephew takes the spanking with fortitude.
"Let This Be a Lesson: A father flogs his son who was caught with a pornographic magazine. The son takes the beating with courage and refuses to tell his father who gave him the magazine.
"****** It, A Devotee's Lament - This story involves a man performing oral sex on a boy. The boy is in control of what occurs.
"Timothy and the Terrorist - A boy is kidnapped from his parents in the mythical city of Basura.
"Sharpe summarizes the novel with a note that reads 'Young, innocent white boys sold as sex slaves to a sadistic and murderous sultan plot their own freedom and overthrow a corrupt and hated regime in the process.'
"Tijuana Whip Fight - This story describes a whip fight between boys in Tijuana before paying spectators. There is some man-boy sex and floggings. The predominant theme is fortitude."
During his trial on child pornography charges, John Robin Sharpe's writing was likened to the works of Charles Dickens, Dante and Vladimir Nabokov's famous novel Lolita, which describes a romantic relationship between a 12-year-old girl and a man in his 30s.
Sharpe was acquitted Tuesday of the most serious charges after a judge accepted his defence that his work held artistic merit.
Here are some quotes from the literary experts who testified during the trial:
"To say (Nabokov and Sharpe) belong together because they deal with adults and children. . . the analogy I would make is to climbing a tree and saying 'I'm on the way to the moon.' " Paul Delaney, chairman of the English department at Simon Fraser University.
"Instead of Tijuana Whip Fight, Hollywood has created and honoured with Oscars a Roman coliseum whip fight and spear fight. . . Here, essentially the same test of stoic fortitude in a brutal arena of masculinity have been displaced to a Mexican arena, but the narrative of such gladiatorial displays is the same." - James Miller, a professor of English literature at the University of Western Ontario, who compared one of Sharpe's stories to the last year's Academy Award-winning film Gladiator.
If fiction encourages real-life action then "we would be unable to teach MacBeth for fear of making our students anti- Semites, unable to teach Othello for fear of making them murderers." - Lorraine Weir, English professor, University of British Columbia.
Sharpe's stories do not send the message that sex with children 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.
"These writings simply describe morally repugnant acts." - Justice Duncan Shaw in his Tuesday ruling.
Here is a chronology of the charges against John Robin Sharpe, who has been at the centre of the controversy surrounding Canada's child pornography laws.
April 10, 1995: Sharpe is stopped at the Canada-U.S. border. Police seize photographs and a computer disc containing writings, prompting charges.
May 13, 1996: Sharpe's Vancouver apartment is raided. Police seize writings and photographs, prompting further charges.
Jan. 15, 1999: - Justice Duncan Shaw agrees with Sharpe's argument that parts of Canada's child pornography law violate the Charter of Rights guarantee of free speech. Shaw rules the section of the Criminal Code "is declared void."
April 26, 1999: - The Crown begins its appeal of Shaw's ruling, arguing Canada's child pornography law should remain unchanged because it protects children from sexual exploitation.
June 30, 1999: - B.C. Court of Appeal upholds the lower court ruling, calling the law an "extreme" violation of constitutional rights not justified because there isn't a solid indication that it protects children from harm.
Jan. 18, 2000: - The Supreme Court of Canada begins hearing arguments in the case.
Jan. 26, 2001: - The Supreme Court of Canada upholds Canada's child pornography laws, but offers some exemptions, including the defence of artistic merit.
Jan. 21, 2002: - John Robin Sharpe goes on trial in the B.C. Supreme Court for the second time, this time arguing his writings are exempted from Canada's child pornography laws because they have artistic merit.
March 26, 2002: - Justice Duncan Shaw accepts Sharpe's artistic merit argument, acquitting him on the child pornography charges relating to his writings. Sharpe was convicted of possession photographs considered child pornography.
Reaction swift to B.C. Supreme Court child porn ruling on artistic merit
The federal government should invoke the notwithstanding clause of the Charter of Rights and Freedoms to maintain child pornography laws, says a Liberal MP.
Within hours of a B.C. Supreme Court decision that acquitted John Robin Sharpe of two counts of possession of child pornography for the purpose of distribution, Dan McTeague wrote to the prime minister asking that the government act.
"Certainly, the restriction of individual freedoms guaranteed under the Charter is justifiable when those limitations protect the most vulnerable of Canadian society - its children," wrote McTeague, member of Parliament for the Ontario riding of Pickering-Ajax-Uxbridge.
Sharpe was convicted of two counts of possession of child pornography for hundreds of explicit photographs of young boys seized at the Canada- U.S. border and at his Vancouver apartment.
But he was acquitted on charges stemming from stories he wrote describing sex with children.
Justice Duncan Shaw ruled Tuesday that Sharpe's stories did not advocate child abuse and that they did have some artistic merit.
Reaction was swift.
"The job of police to combat child pornography and for the Crown to obtain convictions has now been made much harder," wrote McTeague.
Vic Toews, justice critic for the Canadian Alliance, said the Supreme Court ruling that allows artistic merit as a defence to possession of child pornography has been too widely interpreted.
Toews said Parliament should look at changes to the law.
Federal Justice Minister Martin Cauchon was not available for comment Tuesday. A spokesman for his office said staff are studying the decision.
The B.C. Civil Liberties Association applauded the ruling, saying common sense has prevailed.
The association's position is that photographs made possible by the sexual abuse of children ought to be against the law.
But "Canadians ought to be free without any fear of prosecution by the state of communicating any written materials whatsoever with one another," said president John Dixon.
Children's advocates were outraged that Sharpe was found not guilty for writing about sex with children.
"It's a black day when the rights of convicted child pornographers are put ahead of the right of our children to be protected from harm," Darrel Reid, president of Focus on the Family Canada, said in a news release.
He said tougher laws will give the protection needed.
"Parliament needs to send a strong and forceful message that child pornography of any kind will not be tolerated in this country," Reid said.
He called on B.C.'s attorney general for an appeal of Shaw's decision.
Attorney General Geoff Plant indicated it was too early for the government to even mention the word appeal in connection with the Sharpe ruling.
Tuesday's ruling comes after Sharpe's second trial on the charges. His original acquittal went to the Supreme Court of Canada, which upheld Canada's laws but ordered a new trial for Sharpe.
"We'll have a look at the reasons, study them and determine what course of action, if any, is appropriate," Plant said.
"It's important to point out that Mr. Sharpe was convicted.
"It's been a long struggle to determine this provision of the Criminal Code is enforceable and we have a conviction under it. That's good news for people who are concerned about child pornography in British Columbia."
© The Canadian Press, 2002
If someone were to hang this lovely man from the rafters, wrap the walls in canvas, fire multiple rounds into the brain.
Would the blood spatters be deemed:
Sorry just thought this was pushing it a bit to far. I find this disturbing.
[This message has been edited by uglyelk (edited March 28, 2002).]