Legal Regulation of Sex and Sexuality

Topics: Supreme Court of the United States, Canadian Charter of Rights and Freedoms, Pornography Pages: 6 (2310 words) Published: April 7, 2014

Critical Reflection Essay
CRM 205: Gender, Sexuality, and the Law

This paper will argue the fact that the cases, R.V Hicklin, R.V. Butler and the Little Sisters case have influenced significant changes in the legal regulations of sex and sexuality. These cases are linked to one another because the test of obscenity (which was initially developed through the R.V. Hicklin case) was later challenged in the R.V. Butler case. This in turn created the Butlers harm based test which would only be challenged by the Little Sisters case. Although each case differs in terms of circumstances, the cases are connected through their ability to influence significant changes in the legal regulations of sex and sexuality. I will also demonstrate how the framework for the legal regulation of sex is forever changing and not one dimensional. The history of the R.V. Hicklin case dates back to 1868 when the circulation of “obscene” books was prohibited and destroyed due to the nature of the books being circulated. At the time, courts believed that any material that, “corrupts those whose minds are open to such immoral influences” (Welbourn, 1959, 32) was known to be obscene. This case is based around the fact that a man by the name of Henry Scott was distributing, “obscene” pamphlets entitled, “The Confessional Unmasked” that aimed at presenting the corruption of the Roman Priesthood at the time, the immorality of the confessional, and the questions asked of females in confession. (Welbourn, 1959, 32)Upon discovery by a policeman at the time it was believed that these pamphlets were going against the word of the Roman system in place, and therefore a warrant was issued to seize and destroy all pamphlets. (Welbourn, 1959, 32)The reason as to why these pamphlets were being seized and destroyed was because they depicted filthy and impure ideas, as well as acts and words which went against the ideals of the Catholic and Roman Catholic system at the time. (Welbourn, 1959, 32) Henry Scott appealed the order to destroy these pamphlets to the quarter sessions which was the local court set up at the time, in an effort to prevent his pamphlets from being destroyed. (Welbourn, 1959, 32) In this case, his appeal was successful with the court and Benjamin Hicklin, withdrew the order of destroying the pamphlets. Benjamin Hicklin justified his decision because he believed Henry Scott acted in good faith and that his intention was to expose the issues within the Catholic Church rather than corrupting the ideas of the public (which was the common belief at the time). (Welbourn, 1959, 32) Although, Benjamin Hicklin ruled in favour of Henry Scott, authorities at the time decided to appeal the decision of ceasing the destruction of the pamphlets. This appeal was brought to a higher court named the Court of Queen’s Bench, where the judge (Sir Alexander Cockburn) concluded that the decision made by the lower court was correct and that as long as Henry Scott’s intentions were not to promote obscene immaterial then he would be allowed to continue distributing his pamphlets. (Welbourn, 1959, 35) Therefore, the appeal of the authorities was unsuccessful and Benjamin Hicklin sanctioned for Henry Scott to distribute his pamphlets as long as he stayed within legal regulations. (Welbourn, 1959, 35) Judge Cockburn’s words in the trial of Henry Scott forever created the standard for which obscenity would be separated from art or knowledge. The following words would be...

References: (1962). SCC Cases (Lexum) – Brody, Dansky, Rubin v. The Queen. Judgement of the Supreme Court of Canada. Retrieved from http://scc-csc.lexum.com/scc-csc/scc- csc/en/item/6798/index.do
(1992). SCC Cases (Lexum) – R.v. Butler. Judgement of the Supreme Court of Canada. Retrieved from http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/844/index.do
(2000). SCC Cases (Lexum) – Little Sisters Book and Art Emporium v. Canada (Minister of Justice). Judgement of the Supreme Court of Canada. Retrieved from http://scc- csc.lexum.com/scc-csc/scc-csc/en/item/1835/index.do
Brenda Cossman. (2003). Disciplining the Unruly: Sexual Outlaws, Little Sisters and the Legacy of Butler Law and Sexuality. University of British Columbia. 77-100. Retrieved from http://www.heinonline.org/HOL/Page?handle=hein.journals/ubclr36&collection=jo urnals &index=journals/ubclr85&id=85#98
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