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Harm, community tolerance and the indecent: A discussion of R. v. Mara

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  • Introduction: Pornography is no longer \"sexy\" in the academy. Neither feminist nor other scholars show much interest in continuing to theorize the law's role in regulating the sexually explicit. Most of the familiar stakeholders in the debate - free speech liberals, radical feminists, lesbian and gay activists, and moral majoritarians - seem to have nothing new and little left to say on the subject. Emotions, once fiery, have run their course. Thus, it is not surprising that the decision of the Supreme Court of Canada in R. v. Mara, dealing with the substance of the Criminal Code prohibitions against indecency in the context of night club performances, has not been the occasion of much discussion. The Mara decision supposedly draws on the Supreme Court's decision in R. v. Butler, where the substance of the offence of obscenity was defined with reference to feminist analysis of the harms of pornography. In the aftermath of Butler, however, feminist response to legal developments in the area reveal nothing of a continued passionate engagement with the issue but rather are characterized by boredom, exasperation and a preference for looking the other way. Yet the Mara decision highlights a disturbing aspect of law: ideas - once lodged in the text of the law - legitimate and facilitate the exercise of power long after those ideas have lost their sparkle in the eyes of intellectuals. Law as an academic discipline and as a social practice consistently requires one to remain engaged with the past, however unfashionable and embarrassing old ideas may now be. If a fragment of intelligence secures a legal incarnation it can surpass its own natural life span by centuries. The longevity of ideas embedded in law should always be of concern to those who seek to influence law's development. It should particularly be of concern to feminists who are only now achieving any real presence in legal institutions and are beginning to reach some reasonable level of participation in the shaping of legal constructs.

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    © 1997 Annalise Acorn et al. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.
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    • Acorn, A. (1997). Harm, community tolerance and the indecent: A discussion of R. v. Mara. Alberta Law Review, 36(1), 258-272. Retrieved from
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