Making sexually explicit material available to child
171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
Definition of sexually explicit material
171.1 (5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts;
(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.
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My interpretation of Section 171.1 (regarding what constitutes sexually explicit material):
In Section 171.1 of the Canadian Criminal Code, sexually explicit material refers to any form of content (whether visual, written, or digital) that depicts or describes sexual activities, sexual organs, or acts intended to stimulate sexual arousal or provide sexual gratification. The term is broad and covers various types of media, including:
Images or Videos: Content that shows explicit sexual acts, nudity, or sexualized portrayals of individuals.
Text: Written descriptions of sexual acts or sexually suggestive content that may involve graphic descriptions of sexual behavior.
Audio: Recordings or communications that contain descriptions or representations of sexual acts, either spoken or implied, which are intended to elicit sexual responses.
Digital Content: Any form of online material, including images, videos, or even virtual interactions (e.g., live streams or online communications) that depict or encourage sexual behavior or expose children to sexually explicit conversations or acts.
The key elements of sexually explicit material are:
It involves the depiction or description of sexual acts, sexual organs, or behavior.
It is presented in a manner that may be intended to cause or stimulate sexual arousal or gratification.
In the context of Section 171.1, the focus is not only on the presence of explicit content but also on ensuring that such content is not accessible to children, as the exposure to such material is considered harmful, regardless of the specific purpose or intent behind its availability.
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My interpretation of Section 171.1: “for the purpose of facilitating the commission of an offence.”
What does “for the purpose of facilitating the commission of an offence” mean?
Any sexually explicit material could potentially facilitate the sexual exploitation of children and should be removed, regardless of whether direct purpose or intent can be proven. Any sexually explicit material is inherently harmful to children.
I believe that “for the purpose of facilitating” is often misinterpreted, leading to the mistaken belief that without clear intent or identification of a predator, no action is required. This is incorrect. The law prioritizes the safety of children, and the mere presence of such material, where children can access it, poses a significant danger.
Therefore, any sexually explicit material is harmful and could lead to dangerous consequences for children. It must be immediately removed to prevent exposure, even if the perpetrator’s intent is unclear, unestablished, or if no predator has been identified.
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My interpretation of Section 171.1: “for a sexual purpose.”
Whether or not the material is explicitly “for a sexual purpose,” it cannot be made available to children if it is sexually explicit in nature. The law prioritizes the protection of children from exposure to sexually explicit content, regardless of the intent behind making it available.
In the context of Section 171.1 of the Criminal Code of Canada, making sexually explicit material available to a child is prohibited regardless of whether it was done with sexual intent (i.e., “for a sexual purpose”). The mere availability or exposure of such material to a child is enough to constitute a violation, as the law focuses on the potential harm such material can cause to minors.
In other words, even if there is no proven sexual purpose or intent behind the material being shown or distributed, the fact that the material is sexually explicit and accessible to children is grounds for action, as it can still be harmful to their well-being.
This legal framework is designed to ensure that children are protected from all forms of sexually explicit content, whether or not the intent is to exploit or sexualize them.
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Basically, sexually explicit material should never be made available to children, regardless of the purpose or intent behind it. The intent is irrelevant when deciding whether books containing sexually explicit materials should be accessible to children, as there is no context in which children should be exposed to such content—just as there is no context in which sexual abuse is ever acceptable. The law prioritizes the protection of children, recognizing that exposure to sexually explicit material is harmful, no matter the circumstances or rationale.