1. Do you think the challenge posed by the Internet in this area requires
the law to be strengthened?
YES
It is imperative that the law responds to technological developments in
order to remedy the current lacuna in the law which criminalises publication
and distribution but not possession and therefore presents a gap which is
particularly worrying in the context of the Internet.
2. In the absence of conclusive research results as to its possible negative
effects, do you think that there is some pornographic material which is so
degrading, violent or aberrant that it should not be tolerated?
YES
Whilst we appreciate that there are issues of free speech and freedom of
sexual expression involved in the regulation of pornography, such rights are
not absolute and what is at issue here is material which is degrading,
violent or aberrant. From a feminist perspective, such materials not only
perpetrate gender inequalities but worsen them through the objectification
of women and the normalisation of sexualised violence. Irrespective of the
lack of evidence demonstrating a proven causal link between extreme
pornography and sexual violence, and the ostensible consent of the
participants; it is our belief that the degradation of women in these
extreme materials is underpinned by the gendered nature of power relations
and such sexualised representations worsen the continued subordination of
women. Further, the violence women in such pornography are subjected to
merits governmental action. In addition, whilst there are no conclusive
empirical studies on causation, there have certainly been cases where men
who have subjected women to extreme sexual violence and subsequently
murdered their victims have done so following the accessing (and thus
electronic possession) of extreme pornographic materials, as for example the
murder of Jane Longhurst in 2003.
3. Do you agree with the list of material set out?
YES
We agree with the list of materials set out in paragraph 39, namely the
creation of an offence of explicit pornography containing actual scenes or
realistic depictions of:
i) intercourse or oral sex with an animal
ii) sexual interference with a human corpse
iii) serious violence in a sexual context
iv) serious sexual violence.
We also note the government’s clarification of what is meant by the terms
‘serious violence’ and ‘serious sexual violence’. However, we regret that
the government has not included more information on how it intends to
formulate the offence, beyond articulation of the materials to be included.
It is our view that the government should, in determining the actual
formulation of the offence, make it clear that what is being criminalised is
the degradation, humiliation and violence that those involved in extreme
pornography are subject to. In this regard, our primary concern is for the
protection of women, both subjected to the actual practices, and more
generally at a societal level. The criminalisation of extreme pornography
should not be separated from the context of degradation and violence.
4. Do you believe there is any justification for being in possession of such
material?
Whilst, in theory, we believe that possession of extreme pornographic
material should be criminalised, we do have concerns as to how this would be
implemented in practice. In particular, we seek clarification of the
position under the proposed offence of those who receive such materials by
accident and/or without their consent. Whilst we note that the government
does not intend the proposed offence to capture such persons (paragraph 7),
we remain concerned at how the distinction between accidental or
non-consensual and deliberate possession will be determined in reality. This
is particularly important given the context of “electronic” possession, as
accidental or non-consensual receipt of extreme pornographic materials on a
computer (e.g. via email or unintended internet searches or usage) will
leave a permanent “electronic fingerprint” of such materials on the
computer’s hard-drive, irrespective of the individual’s deletion upon
discovery of the materials. Thus, just as this consultation has been
pre-empted by technological advances, any resultant offence must also
appreciate the nuances of such advances and ensure that accidental or
non-consensual possession is not included within the ambit of the crime. In
this regard we would advocate the incorporation of a provision similar to
section 160(2) of the Criminal Justice Act 1988, which deals with child
possession of child pornography; with additional protections for the
instances outlined.
5. Which option do you prefer? (Please tick one only)
OPTION 3
Having noted the practical implications of incorporating the proposed
offence into the current legislation (the Obscene Publications Act 1959 and
the Civic Government (Scotland) Act 1982) we support the enactment of a new
free-standing offence criminalising the possession of extreme pornography.
6. Why do you think this option is best? We support the creation of a
free-standing offence as we believe that the incorporation of a possession
offence into existing legislation would result in those Acts containing a
patchwork of various offences with varying thresholds, and thus is likely to
lead to confusion. The creation of a free-standing offence allows the
government to specifically tailor the offence, rather than seeking to make
it fit within the confines of an existing Act which was not originally
intended to address an offence of possession. In addition, a stand alone
offence should avoid the lack of clarity among actors in the criminal
justice system which could result from seeking to insert the offence into
the current legislation.
Penalties 7. Which penalty option do you prefer (please tick one only)?
a) maximum penalty for possession of less than 3 years.
b) maximum penalty for possession of 3 years and increase maximum penalties
under the OPA and CG(S)A to 5 years
Given that the possession of child pornography carries a maximum penalty of
five years imprisonment, we advocate the same maximum penalty for the
possession of extreme pornography as we do not agree with the imposition of
a hierarchy of abuse. We note that this would lead to inconsistencies in the
following areas. Firstly, under the OPA and CG(S)A the maximum penalty for
distribution and publication is only three years. Thus the imposition of a
five penalty for possession would create an inconsistency of penalties with
a lower penalty for distribution/publication than for possession. Secondly,
the current maximum penalty for bestiality and necrophilia in England and
Wales is two years imprisonment; thus the five year penalty for possession
would be inconsistent with a two year penalty for actually carrying out the
act. Rather than remedying these inconsistencies by lowering the penalty for
possession, we would argue that the penalties for publication/distribution,
bestiality and necrophilia should be raised.
Partial Regulatory Impact Assessment Please use the space below to make any
comments on any aspect of the Partial Regulatory Impact Assessment We note
that the government has not fully addressed the issue of shared use of
computers in the Partial Regulatory Impact Assessment. This is an area which
warrants consideration given that many people may share computers both in
their personal lives (through shared house computers) and at work (for
example in the context of hot-desking). In addition, we note that there is
no mention of liability where extreme pornography has been “possessed” (i.e.
accessed and stored) on a computer located in an internet café or through
the wireless access provided by other similar establishments. This also
raises the issue of liability in the context of an individual “piggy
backing” another person’s wireless internet connection. We urge the
government to seriously consider these issues.
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