Butler v. The Queen
"Butler v. The Queen" is a landmark Supreme Court of Canada decision from 1992 that addressed issues surrounding obscenity laws and sexually explicit materials. The ruling determined that materials portraying women in a degrading or subordinating manner could be prosecuted under these laws, which marked a significant moment in Canadian legal history regarding women's rights and the regulation of pornography. The judgment stipulated, however, that for material to be considered obscene, it must be assessed in its entirety and could not be deemed obscene if it had artistic merit or contributed to serious discussions about sexuality.
The decision elicited a range of reactions, particularly within feminist circles. Some, like American feminists Catharine MacKinnon and Andrea Dworkin, hailed it as a significant victory for women, while others, including Pat Califia and members of the Ontario Coalition Against Film and Video Censorship, criticized it for potentially silencing women's voices and disproportionately targeting feminist and LGBTQ+ materials. In the enforcement phase following the ruling, there were concerning instances of censorship, including the seizure of works that, while deemed degrading to men, raised questions about the application of the law. The case ultimately spurred ongoing debates about the balance between protecting individuals from harmful representations and safeguarding freedom of expression in the realm of sexual content.
Butler v. The Queen
Court: Supreme Court of Canada
Decided: February 27, 1992
Significance: Feminist efforts to have pornography restricted on the grounds that it degrades and dehumanizes women failed in the United States, but succeeded in Canada in this case
In early 1992 the Supreme Court of Canada issued an unprecedented decision in Butler v. The Queen, holding that sexually explicit books, films, magazines, and videos portraying women in a “subordinating” or “degrading” manner violated the country’s obscenity laws. The decision exposed publishers, producers, and distributors of pornographic materials to criminal penalties. The high court’s decision added, however, that for material to be obscene, it had to be judged as a whole; it could not be declared obscene if it had artistic purpose or was part of the serious treatment of a sexual theme.
American feminist Catharine MacKinnon hailed the Canadian court’s ruling as “a stunning victory for women . . . of world historic importance.” Andrea Dworkin called it “probably the best articulation of how pornography, and what kinds of pornography, hurt the civil status and civil rights of women.” However, other feminists disagreed. Writer Pat Califia declared that “Dworkin has done more damage to women’s culture in her tenure as darling of the media than anyone who is a leader of the right wing.” Liz Czach, a member of the feminist caucus of the Ontario Coalition Against Film and Video Censorship, declared that the Butler decision “isn’t protecting us; it’s silencing us.”
Enforcement of Canada’s antiobscenity laws after the Butler decision fueled criticisms of MacKinnon and Dworkin. According to the Canadian publication Feminist Bookstore News (Spring, 1993), the decision was being used “only to seize lesbian, gay and feminist material.” During the first year and a half after the ruling, more than half of all Canadian feminist book stores had materials confiscated or detained by customs.
Butler also had other results not anticipated by its proponents. It has been used to justify the suppression of material allegedly degrading to men, not women. For example, Weenie-Toons! Woman Artists, Mock Cocks was seized by Canadian Customs because of its alleged “degradation of the male penis.” An outspoken lesbian comic magazine, Hothead Poison, featuring the exploits of a lesbian terrorist taking revenge on misogynist males, was banned by customs. It depicted no sexual activity, but was judged “sexually degrading to men.” Canadian Customs also banned Hot, Hotter, Hottest until they realized that it was an ordinary cookbook featuring spicy food.
On a more serious level, Canadian Customs raided the home of retired psychologist Robert Lally in 1993 and seized the only copies of his manuscript for an untitled novel about pedophiles, which was based on composites of his patients. The author claimed that he intended the work “to disgust people and frighten the hell out of them” so they would take action against pedophiles.
In perhaps the most ironic enforcement of the Butler decision, two of Dworkin’s own books, Pornography: Men Possessing Women and Woman Hating were seized at the U.S.-Canadian border on the grounds that they “illegally eroticized pain and bondage.” To condemn sexually explicit descriptions of men committing violence against women, Dworkin had excerpted the worst examples she could find. But under her own theory, adopted in Butler, the redeeming political nature of her work could not save it from suppression.