Consultation response

Response from Tanos on www.tanos.org.uk

April 2006

Section C Consultation questions 

I do feel the need to point out that your questions are very leading and biased, and this goes against point 3.6 of the Cabinet Office's "Code of Practice on written consultation": "It will often be helpful to set out key questions in a questionnaire - though questionnaires need careful design, in which expert help may be useful, so as not to encourage a biased response."

It's also very worrying that you have not consulted with any community groups, and I understand the Spanner Trust is making a complaint about this, which I support.

Current Legislation

1. Do you think the challenge posed by the Internet in this area requires the law to be strengthened?

No

Comments:

Creating images by nonconsensual acts involving adults, animals or bodies is already illegal.

The problem we face isn't people putting images of genuinely nonconsensual acts on websites and downloading them (where the police can already trace them back to the creator with co-operation from ISPs or credit card companies.)

The real danger is people creating uncontrollable, anonymous peer-to-peer networks using cryptographic techniques which are now widely available and understood. www.freenetproject.org is the most prominent so far, but the danger is that these are made as easy to use as Napster etc.

By attempting to introduce a system of prohibition on SM pornography, you are adding to the pool of people willing to participate in developing and deploying such systems. (The music and film industries' inflexibility about how media can be bought online isn't helping either, and aggressive copyright enforcement by them against individuals in the absence of systems like iTunes or a video equivalent would have the same danger.)

There is a rule in the academic study of distributed computing called "Metcalfe's Law", which states that the usefulness of a network increases as the square of the number of participants. So if you increase the number of members by a factor of ten, the attractiveness of participating goes up by a factor of one hundred. That then draws in more people, and you see an exponential expansion of the network: peer to peer networks such as Napster and Kazaa have gone from nowhere to millions of users within a matter of months.

Prohibition in this area risks jump-starting one of these explosions, but centered on a peer-to-peer network which uses cryptography to provide untraceability (including providing those hosting the files with a way of proving they don't know what encrypted files they have: are they documents published anonymously by Chinese democracy activists or are they images which you have outlawed? This is what Freenet does already.)

The obvious consequence of this would be that child pornographers and terrorists could publish material without any risk of being traced, and they could hide in amongst a larger amount of SM pornography (and DVD copies?)

In my view, the Home Office should be spending its time and our money worrying about these scenarios, involving genuinely nonconsensual acts such a child abuse and mass murder, and not trying to ban images of sexualities which certain politicians merely disapprove of.

 

Evidence of Harm

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: making images by committing genuinely nonconsensual acts is already illegal.

However, as you admit yourselves:

"Given the many different approaches to conducting the research and framing the questions, as well as differences in the nature of the material examined, we are unable, at present, to draw any definite conclusions based on research as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behaviour."

So it is not just the absence of "conclusive" results: the evidence doesn't support your proposals. As such, I don't see how it joins-up with the government's acknowledged requirement for evidence-based policy.

 

Content of Material

3. Do you agree with the list of material set out?

No

Comments

I do not agree with the principle of criminalising possession: anyone who commits nonconsensual acts to make images should be punished, not those who possess images which are almost invariably going to be either consensual or simulated rather than real (as we see with the absence of any real "snuff movie" cases.)

 

4. Do you believe there is any justification for being in possession of such material?

In a free society, it is for those advocating laws to show why those laws are needed, not vice versa.

As quoted above, you admit you don't have that evidence.

 

Options

5. Which option do you prefer? (Please tick one only)

Option 4 (no change to the law - concentrate on real crime involving nonconsensual acts.)

 

6. Why do you think this option is best?

Comments:

For the reasons set out in my response to the first question (the danger of prohibition creating a bigger and different problem) and because you have not provided evidence for a change in the law.

 

Penalties

7. Which penalty option do you prefer?

Since I prefer evidence-based policy, I prefer neither penalty option.

 

Partial Regulatory Impact Assessment

Comments:

You say:

"The material under consideration is of an extreme nature; it does not depict consensual sexual activity, nor even the milder forms of bondage and humiliation which is available in legal pornographic material. It depicts suffering, pain, torture and degradation of a kind which we believe most people would find abhorrent. The underlying premise of the consultation is that this material should have no place in our society and the proposal seeks to tackle its circulation."

On the contrary, your proposals seek to criminalise a minority group of people who practice consensual acts such as SM and enjoy making images of their sadomasochistic lovemaking and fantasies. You seek to do this because you personally find them abhorent, not because you have any evidence that these SM images cause harm.

SM people are in the situation gay men and women were 20 years ago, when mainstream political parties could openly declare that homosexuality was abhorent.

Your proposals are the Labour Party's Section 28.