Extreme Porn

The extreme porn provisions of the new Criminal Justice and Immigration Act in the UK, are overly broad, socially regressive, and typical of the kneejerk reaction one can expect in the wake of an unfortunate tragedy.

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Five years ago Jane Longhurst, a teacher from Brighton, was murdered by Graham Coutts, a fan of websites such as "Club Dead" and "Rape Action"; which offered images of women being abused and violated. After he was finally jailed for life, her mother Liz began a campaign to ban the possession of such images in the UK. Last week, she succeeded.

The Criminal Justice and Immigration Act 2008, provides that is an offence for a person to be in possession of an “extreme pornographic image” which “portrays, in an explicit and realistic way, any of the following – (a) an act which threatens a person’s life, (b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive).” A “reasonable person looking at the image [must] think that any such person or animal was real” and the image must have been produced “principally for the purpose of sexual arousal.” Limited defenses exist if the accused can prove they were unaware of the fact of their possession, had a legitimate reason for same, or were sent the material without prior request and did not keep it for an unreasonable time. Finally, there is a limited defense if the accused can prove that they participated in the act portrayed, and that no non-consensual harm actually occurred.

These provisions have been justified on several grounds. First, as helping protect children from inadvertent exposure to violent pornography. More vocal advocates also use this to shoehorn in the rationales more traditionally associated with a ban on child pornography. Second, to protect the participants involved in its manufacture. Third, as a means of breaking the supply/demand cycle, thereby discourage public interest in the material. Fourth, for the moral message such “gestural legislation” sends to the public. For some, this is simply that such practices have no place in our society, for others, this is “the eroticisation of hate” and a symbol of “male domination and exploitation of women and children.” Finally, we are told that the advent of the Internet has made this a necessity. In light of how much of this content is hosted outside the UK, The Obscene Publication Act of 1959 which prohibits the distribution of such material is now as effective as “chocolate fireguard,” and only a crime of possession will address the perceived problem.

However, in reality these are overly broad provisions which criminalize the fixation of what in certain circumstances is otherwise lawful activity, are socially regressive, and potentially violate several fundamental human rights.

First,

These provisions were hurried through legislative scrutiny of Parliament, as part of a much larger bill, which in part because the much larger bill of which they were a part, one element of which was a renewal of the ban on prison officers striking, which the government urgently wished to see enacted in light of an earlier walkout.

• CONS o Strict Liability  Burden of Proof • Under the new rules, criminal responsibility shifts from the producer - who is responsible under the OPA - to the consumer. THIS IS SURELY A *HUGE DEAL*  Stiff penalty • 2-3 years jail time, for a strict liability offence. • BDSM activists claim this criminalize the fixation of acts which themselves are lawful, and is reminiscent of the derogatory attitude o Lord Wallace of Tankerness during last week's debate in the House of Lords: "If no sexual offence is being committed it seems very odd indeed that there should be an offence for having an image of something which was not an offence," o With that partly in mind, the government is tabling an amendment that would allow couples to keep pictures of themselves engaged in consensual acts - but not to distribute them  Mainstream examples • Must be produced principal for the purpose of sexual arousal, which can be found if you cut out clips: o rape scene in Sleeping With The Enemy and o the scene in The Long Kiss Goodnight where woman is tied to a waterwheel • ECHR - The criminalization of the possession raises may also violate the European Convention on Human Rights, specifically Article 8 (the right to respect for private life), and Article 10 (the right to freedom of expression). To be compatible, the law must be sufficiently clear and precise, be necessary and proportionate, and capable of meeting the objective pursued o Clarity  MR requirements, what’s the situation if you request the image, but didn’t know it was going to be extreme?  Definition is too vague • Why “grossly offensive, disgusting, or otherwise of an obscene character”? o Necessary / Proportionate  In no other Western country is the simple possession of such pornography a criminal offence. Onus of proof on defendant may have been more appropriate pre-internet, very difficult with pop-ups, attachments, and caches – your word against DPP, is bound to lead to miscarriages. Onus should be on DPP, not hard to show, will usually be a “trail of crumbs” of previous sites / thumbnails • Reverse burdens of proof CAN be compatible with Art 6 of the Human Rights Act (right to a fair trial); but how do you prove that you didn’t see material, or didn’t request it? o Meets objective  Case for a new law banning this would be greatly strengthened if there were any nexus between possession of this material, and violent crime. However, the original consultation accepted that there no evidence to support this. • Zero evidence that violent porn begets social violence o In June 2006, Anthony D'amato found the incidence of rape in the United States has declined 85 pct in the past 25 years while access to pornography has become freely available to teenagers and adults. The Nixon and Reagan Commissions tried to show that exposure to pornographic materials produced social violence. The reverse may be true: that pornography has reduced social violence. [backlash]  NOTE: of this could be explained by anything which is half the problem with all these studies  What is the justification then? • Protecting innocent viewers? o (many more effective means) • protecting the participants? o (then this act greatly overreaches)  Why extend the act to traditional media if the Internet is the problem?  Ineffectual • What harm is this really trying to prevent? o Efficacy, this is hardly going to stop weirdo’s  No evidence to show that normal people viewing violent porn, are not going to commit violent acts  Not kiddie porn – covers consulting adults, what have children got to do with it? Nothing, just a rhetorical ploy to obscure logic. o Retarded that the underlying acts are legal o Enforcement: "Perhaps the most chilling point in the Minister’s summing up - I thank him for going into some detail - was that when it came to policing this it was for dealing 'with individuals' who are 'causing concern'. o • Conclusion o Gesture? Sending a message? Shouldn’t denigrate the existing corpus with this nonsense

Further Reading

Consultation on the Possession of Extreme Pornography, and the Government’s Response

"I’m not doing anything wrong," BBC News Magazine, Apr. 29 2008

Edward Gorman, Crown Prince of Bahrain bars Max Mosley over 'Nazi Prostitute' Claim, Apr. 3 2008

Liberty Response to the Home Office Consultation Paper on the Possession of Extreme Pornographic Material

Liberty's Second Reading Brief on the Bill in the House of Lords, Jan 2008

Liberty's Committee Stage Briefing on the Bill in the House of Commons, Oct 2007

Rabinder Singh QC’s Opinion on Legality of Home Office Proposals

Prisoner officers strikes

The Criminal Justice and Immigration Act 2008

Legislative History of the Act

Chris Summers, When Does Kinky Porn Become Illegal?, BBC News, Apr. 28 2008

Backlash – Uphold the Human Rights Act (Opposition Group)

Hansard Online – Official Reports of Debates in the UK Parliament

EFF – Why the ACLU Opposes Censorship of Pornography

The Register – Lords Linger Over Extreme Porn Definition, May 5 2008

Tania Branigan, The Guardian, Violent Porn Ban a ‘Memorial To My Daughter’, Aug. 31 2006

R v. Brown (1994) 1 A.C. 212 (House of Lords holds 3:2 that consent was no defence to a charge of occasioning actual bodily harm)

Out-law.com, New Law Will Criminalise Possession of Extreme Porn, Feb. 7 2007)

Chris Summers, Extreme Porn Proposals Spark Row, BBC News, July 4 2007