Have you ever stopped to contemplate really bad sex?
Nah, I don’t mean, like, too short, too long, getting crushed, getting a tongue inside the ear, getting a phone call, being walked in on.
I mean bad in the moral sense.
Oh wait, no, no, no, not pre-marital, or extra-marital (I never realized, until this moment, how deeply vague a word ‘bad’ can be, and how many judgments there are to pass on the simple act of screwing.)
But perhaps that’s a segue right there.
Screwing is never simple. That’s why we have the Canadian Border Services Agency. Every Canadian’s expert on really, truly, downright bad sex.
Now, while I’m asking questions here, let me pose another: have you ever considered the meaning of obscenity?
I’m not talking about the obscene $54 billion Employment Insurance surplus just sitting there unloved and unused, though certainly coveted, in the federal piggy bank. Not the obscene number of otherwise fully functioning adults in this town wearing pajamas as some unholy mode of fashion. Not the obscene cost of inter-provincial air travel. (It’s $145 to Frankfurt, Germany, and I have to pay the same to hoof it to Ottawa!?)
I’m on about the technical, legal definition of what is, and is not, obscene, as set out by the Criminal Code, tempered by the Canadian Charter of Rights and Freedoms, and decided upon on a day-to-day, pervy DVD-by-pervy-DVD basis by the CBSA, under the ministerial direction of Stockwell Day.
It’s a topic worth firing up the brain Bunsen for, I’d say, if only to ponder the overwhelming complexity behind the decision to declare (to take a pair of completely random examples from the CBSA’s Quarterly List of Admissible and Prohibited Titles) The Bizarre Cage---Act 3 clean, and The Bizarre Cage---Act 2 definitely, totally, absolutely not OK. Uh-uh. No way.
I came to this topic by way of dildos, which, as it happens, are no longer a crime to sell in Texas, after a federal appeals court struck down the law that declared them, in 1977, “obscene devices” (definition: used primarily for sexual stimulation, though I understand hand-held shower massagers had not been subject to the ban).
Anyhoodle, on February 12, three Circuit Court judges made 23 million Texans (minus the under-18s, minus Willie Nelson , minus the 2.3 million members of the Baptists General Convention of Texas) smile by opening the flood gates on trade in prosthetic penises and the like (a note to Texan sex toy greenhorns: go for silicone; phthalates in the plastic ones will poison your va-jay-jay).
As that buzzing news was making the rounds, the ever-scrutinous folks at the CBSA’s Prohibited Importations Unit were chewing over a shift in their own obscenity landscape---a February 14 update on the classification of obscene material. They revisit the guidelines every once in a while to reflect the “ever-evolving” tolerance of Canadians to, well, porn.
It’s no easy job. My filth (Cosmo, Maxim) isn’t your filth. And your filth (S&M University? Super Taboo XXX No. 3?) isn’t my neighbour’s filth (Desperate Housewives? L’il Jon’s “Snap Yo Fingers” video?).
To make the distinctions even fuzzier, consider there are no hard-and-fast rules about what’s prohibited. That’s so the CBSA can balance the need to protect Canadians from obscenity while defending their Charter right to freedom of expression.
To achieve that balance, the courts have directed the CBSA to employ an “abstract definition of obscenity that is contextually sensitive.” Meaning? No straight-up list of no-nos and each piece of suspect material is perused individually to see if one dominant characteristic is the “undue exploitation” of sex.
What’s “undue exploitation”? I thought you’d ask.
They use two tests, which they apply equally to heterosexual and homosexual material (thank the lengthy Supreme Court challenge by Vancouver’s Little Sister’s Book and Art Emporium for that). First is the Community Standard of Tolerance Test, which takes a stab at guessing not what Canadians would not tolerate being exposed to, but what they would not tolerate other Canadians being exposed to. Read that again and then add this: the judgment is not based on morals, but perceived harm.
After that, materials can shed their “undue exploitation” label only by passing the Internal Necessities Test (AKA, the Artistic Merit Defence). Anything can be OK if it’s determined obscene sex is “required for the serious treatment of the theme.”
Just something to think about next time you’re lying there and someone’s sticking their tongue inside your ear.
posted by LEZLIE LOWE, Jan 7/10
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Kudos Maggie!! xo
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