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Man appeals convictions for Web films.
Material depicts naked women being shot, stabbed.
Lawyer argues it's not obscene

By KIRK MAKIN, JUSTICE REPORTER, Globe and Mail, Wednesday, Feb 9, 2005

A Northern Ontario man whose Internet websites depicted naked women being stabbed and shot to death cannot be convicted of obscenity because no specific sex acts were portrayed, the Ontario Court of Appeal was told yesterday. "You don't have obscenity unless you have explicit sex coupled with violence," defence counsel Brian Greenspan told the court. "What we have here is nudity and violence. We have scantily clad women in conjunction with violence. There is unquestionably an abundance of violence in these
videos -- but sexual activity is virtually absent."

Mr. Greenspan said that his client, Donald Smith, took care to research landmark obscenity decisions before he began making films such as Skinny Dip, Deadly Game and Scorpion. The films featured woman-hating snipers executing victims, with blood gushing and flesh ripping in slow motion. Mr. Smith is appealing seven 2002 convictions for making, possessing and distributing obscene material. He was fined $100,000, put on probation for three years and prohibited from using his websites or the Internet. Crown counsel Jennifer Woollcombe argued yesterday that Mr. Greenspan and co-counsel Peter Copeland are inventing a non-existent loophole in laws designed to capture violent material that degrades women in a sexual context.

Whether or not sex acts such as intercourse or oral sex are depicted, she said, there is an obvious sexual context to the films' innuendo-laden dialogue, suggestive poses, and scenes such as the insertion of weapons into the private parts of screaming women. “What's not sexual about that?" Ms. Woollcombe asked. "There are clear depictions of sexualized nudity in those videos. At the end of the day, this is material where there are minimal plots and very little beyond sexualized violence. . . ."

Expert testimony at Mr. Smith's trial established that sexual sadists get gratification from injuries, gore and the sight of men exerting power over victims, Ms. Woollcombe noted. She said their perversions are psychologically validated and worsened by sadistic material. "These offences are not victimless," she said. "Women, children and men who saw this material were at risk of having their attitudes toward others in Canadian society affected." Ms. Woollcombe also pointed to a 1997 Supreme Court ruling as being decisive on the obscenity issue. The ruling said that a film depicting a prison warden forcing female inmates to spank one another was obscene. The law states that material depicting sex acts combined with violence is virtually always obscene. Other sexually explicit material may be found obscene if it depicts nudity or sexual activity in a "graphic and
unambiguous way."

In assessing obscenity, judges and jurors consider what the Canadian community would tolerate, bearing in mind the possible harm that could result from the material being available, and whether the harm is balanced by artistic merit. Mr. Greenspan argued that mainstream movies such as Kill Bill and Natural Born Killers have more violence than Mr. Smith's fare. About 2,000 subscribers paid about $50 to be members of Mr. Smith's
sexual-sadism website.

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