Introduction
This paper considers the Government’s case for its proposed ban on the
possession of so-called extreme pornography, as argued in its consultation
paper, On the possession of extreme pornographic material. Its contention is
that the Government’s case is not only flawed in its reasoning, but also
profoundly mischaracterises the material under scrutiny, the sites that host
it and the communities they serve. Also, that it misrepresents the degree to
which the proposal intrudes on both private life and freedom of expression.
Before addressing these issues in detail, one point needs to be made very
clearly, in view of the prominence the Government has given to the case of
Graham Coutts1:
There is no excuse whatsoever for what Coutts did. He took a life, and
brought incalculable pain upon those who loved his victim. It is appropriate
that he should remain in prison, and none of what follows is an attempt to
defend his behaviour.
The Government’s main arguments
The Government offers the following justifications for the proposed
legislation2:
- The material on these sites ‘may encourage or reinforce interest in
violent or aberrant sexual activity’. (Executive Summary, p.1; §27)3
- An intention to break the cycle of supply and demand for this
material. (Executive Summary, p.1)
- An intention to protect those who might actually be harmed in the
production of this material. (Executive Summary, p.2)
- An intention to protect society in general from exposure to this
material. (Executive Summary, p.2)
- An intention to protect children in particular from exposure to this
material. (Executive Summary, p.2)
- That most people would find this material ‘abhorrent’. (Foreword;
Executive Summary, p.1; §11; §57)
Definition of the material under scrutiny
The Government defines the material under scrutiny in the following way:
first, it must qualify as ‘pornography’ where this is defined as ‘material
that has been solely or primarily produced for the purpose of sexual
arousal’ (§37); second, it must contain ‘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, and
iv) serious sexual violence.’ (§39)
'Serious violence’ is in turn defined as ‘violence in respect of which a
prosecution of grievous bodily harm could be brought in England and Wales or
in Scotland, assault to severe injury’ (§41). All such content is defined by
the Government as involving only adults – not children.
This definition means that two pieces of material could be indistinguishable
in themselves, yet one would be illegal to possess (if it qualified as
pornography) while the other would not (if it were, for example, a scene
from a mainstream horror film). This might seem counter-intuitive, but is
not straightforwardly inconsistent. For the Government offers grounds for
the differential treatment – namely (1)-(6) above. The question, therefore,
is whether those justifications are sound.
1 ‘Particular concern has been raised recently about the
accessibility of extreme pornographic material. This has been heightened
by a recent tragic case where a young woman was murdered by a man who
had been accessing such sites on the Internet. During the trial it was
revealed that he had visited these sites prior to and after the victim’s
death.’ §10
2 Some of these justifications are clearly flagged in the consultation
paper, e.g. (2)-(5), while others appear less prominently in the body of
the text, e.g. (1) and (6). However, as we will see, (1) and (6) emerge
as in many ways the most important arguments the Government deploys.
3The reference to the Coutts case is clearly intended to support this
claim.
The focus of this paper
This paper will be concerned primarily with issues relating to (a) consent
and (b) the distinction between real and fictional acts. We will therefore
not address the question of bestiality, since animals cannot clearly be said
to consent and because of the difficulty of creating realistic depictions of
bestiality without using real animals.
Obviously, there are differences between (ii)-(iv), but these differences do
not capture the moral distinctions that we need to consider here. For
example, everyone agrees that rape, murder and necrophilia are unacceptable.
But the moral status of simulations of such acts, and of acts of lesser
violence that people engage in with consent, is quite different. Therefore,
we will use the term ‘violence’4 as a catch-all term to refer to the
different kinds of act referred to in (ii)-(iv), and make the following
distinctions between the kinds of act that can feature in pornographic
material:
I) real acts of non-consensual violence
II) real acts of consensual violence
III) fictional acts of non-consensual violence (performed consensually
by actors)
IV) fictional acts of consensual violence (performed consensually by
actors)
Pornographic material showing real acts of non-consensual violence would
be indefensible, as would be any sites that showed it. Almost all consumers
of the other three kinds of material would agree with this. However, such
acts are illegal in most, if not all countries, and any site that featured
them would be offering clear evidence of the relevant crimes to prosecutors.
So measures already exist to prevent the acts themselves. There is a case
for also banning the possession of this kind of material, and an alternative
formulation for such legislation will be proposed towards the end of this
paper.
Whether (1)-(6) justify a ban on possessing the three other kinds of
material will be examined below. As we will see, (1)-(6) apply to each in
different ways. But we should first register a caveat about real acts of
consensual violence: namely, that the degree of real violence to which
adults can acceptably consent is itself arguable. Consider the following
range of activities:
- mild spanking
- whipping
- bondage
- breath play
- injuries that penetrate
the skin (as in the well-known ‘Spanner’ case)
- necrophilia
- killing (such
as the recent case in Germany in which one person allegedly agreed to be
eaten by another)
Presumably, almost no one would allow killing or
necrophilia, while ‘most people’ (as understood by the Government) might
well allow mild spanking. The activities in between (along with many others)
are practised in varying degrees within the BDSM (bondage/domination,
sadomasochism) community, but would be plausible targets of the proposed
legislation if captured on film or in photos. The question of where the line
of acceptability should be drawn here has not thus far been adequately
examined, but rather tested in the courts on an ad hoc basis, as in the
Spanner case. Almost everyone, even within the BDSM community, would agree
that there should be some limit. However, it would be both impractical and
immoral to attempt to set that limit without consulting extensively within
the BDSM community.
For the purposes of discussing material showing real acts of consensual
violence we need to assume that there is a limit on the degree of real
violence to which adults can acceptably consent. Not to do so would be to
allow, for example, material in which people consensually killed each other
– which would be untenable. Therefore, let us assume that there is a limit,
even if the work of setting it has not yet been done. Material featuring
real acts of consensual violence that go beyond that limit would, like
material showing real acts of non-consensual violence, count as
objectionable.
4 It should be emphasised that many within the BDSM (bondage/domination,
sadomasochism) community would object to using the term ‘violence’ to refer
to their activities. However, that is the frame within which the Government
has chosen to cast this debate. We will stay with that frame in order to
criticise the Government’s arguments.
The issue of possession
The Government’s intention is to outlaw possession of the material under
scrutiny. However, its main arguments – (1)-(6) above – attack the material
itself, rather than address the issue of possession directly. Indeed, the
Government does not actually argue that the (alleged) objectionability of
the material means its possession should be outlawed, appearing to assume
that this step follows through a straightforward analogy with the case of
child pornography.5
The case against possession therefore requires that (1)-(6) establish that
the material per se is objectionable in (more or less) the same way that
child pornography is – thus justifying similar measures. However, we will
see that arguments (1)-(6) are unsound.
So the case against possessing the contested material – that featuring real
consensual acts within acceptable limits, and fictional acts – is
unsuccessful.
The Government deploys a further, ‘pragmatic’ argument against the
possession of material featuring fictional acts: that since it might (at
least in some cases) be hard to distinguish from material featuring real
acts, it should also be illegal to possess. This argument does not rely on
(1)-(6), but on a second analogy with child pornography. We will see that
the analogy, and therefore the argument, is unsound.
Finally: quite apart from whether the Government has proved its case, the
possession offence would, if implemented, prove extremely difficult to
enforce consistently. We will examine some of these problems below.
5 ‘The proposal will mirror the arrangements already in place in respect of
indecent photographs of children, possession of which is already an
offence.’ (Executive Summary, p.1)
Arguments that the material is objectionable
Justification (1): encouragement of interest in violent or aberrant
sexual activity
Two features of justification (1) are immediately worrying. First, to
legislate against someone’s taking an interest in an activity looks like
creating a category of thought- crime. Second, something’s being aberrant is
not in itself obviously objectionable. Presumably, departures from the norm
are unobjectionable unless they are harmful in some way. It is of course the
Government’s contention that this material is harmful, but the formulation
of (1) is symptomatic of an unfortunate tendency to conflate the two
issues.6
Let’s recast (1) to make it more robust. Let’s say it claims that the
material may encourage or reinforce violent sexual activity. On this
formulation, the worry would be that the material could encourage both
consensual BDSM activity and serious offences of the kind perpetrated by
Graham Coutts.
To regard the encouragement of consensual BDSM activity (within acceptable
limits) as in itself objectionable begs the question here. However, the
claim that the material could encourage non-consensual violence, or
consensual violence that exceeds acceptable limits, would constitute a
legitimate worry if well founded. Let us therefore reformulate (1) again as
follows: the material may encourage or reinforce non- consensual violent
sexual activity, or consensual violent sexual activity that exceeds
acceptable limits.
This would appear to make material showing fictional acts of non-consensual
violence and/or fictional acts of consensual violence that exceeds
acceptable limits the main target of (1) – indeed, sites showing this sort
of material were the ones cited in the Coutts case. So our question is
whether (1) is true of these cases. In the interests of brevity, the
arguments in this section will be restricted to a discussion of fictional
acts of non-consensual violence, but they can easily be modified to apply to
fictional acts of consensual violence that exceeds acceptable limits.
One of the most striking things about (1) is that the consultation paper
itself concedes that
‘we do not yet have sufficient evidence from which to draw any definite
conclusions 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.’ (Executive Summary, p.1)
In the context of this debate, this is an extraordinary admission. If it is
true, what is the basis for the claim that the material may encourage or
reinforce violent sexual activity? One has to conclude that the claim has no
basis. Indeed, it is hard to see how making that claim and this admission is
rational.
In addition to this, there are grounds to deny the claim.
First, although both the Government and the media have allowed this
impression to be perpetuated, it is false to claim that sites showing
fictional acts of non-consensual violence, and the communities they serve,
offer moral support to individuals who might wish to commit real acts of
violence. The intention appears to have been to draw a parallel with
paedophiles: just as paedophile communities implicate themselves in an
unequivocally immoral practice (sex acts involving children, or acquiring
photos of such acts), so, it is suggested, do ‘extreme pornography’
communities (real acts of non-consensual violence). But while paedophile
sites cannot show any material without being thus implicated, the sites
under scrutiny can draw a clear moral distinction between the fictional
scenes on their sites featuring consenting adult actors and real scenes
involving non-consenting adult victims. People who enjoy fictionally
non-consensual violent role play and material depicting fictional
non-consensual violence do not in general approve of real non-consensual
violence, and any site that encouraged it would almost certainly occasion
protests (in fact, many sites explicitly and unreservedly condemn real
non-consensual violence).7 Furthermore, webmasters have ample reason, both
moral and practical (i.e. not being an accessory to a crime), not to
encourage violence, nor allow such encouragement to be expressed on forums.
Second, is not plausible to suggest that the material could in itself
generate the sort of sexual orientation to which it caters. For: (a) it is
generally recognised by psychologists that sexual orientation is established
early on by the totality of a person’s formative experience, not by a single
element such as images encountered on the web
Second, is not plausible to suggest that the material could in itself
generate the sort of sexual orientation to which it caters. For: (a) it is
generally recognised by psychologists that sexual orientation is established
early on by the totality of a person’s formative experience, not by a single
element such as images encountered on the web – in fact, the causes need
have nothing to do with such images; (b) this sort of material is not widely
advertised – it has to be sought out – so someone who encountered it would
most likely already have the relevant sexual orientation; (c) someone who
was not already thus sexually oriented and came across this material by
accident would almost certainly respond in the standard way: bafflement or
abhorrence – indeed, this sort of material would be rather less likely to
make violent sexual behaviour generally attractive than mainstream
depictions of it. Third, the claim that the material encourages violence
through stimulation does not stand up to scrutiny. A proponent of
justification (1) might accept that the sites do not morally endorse violent
behaviour, and do not generate the original orientation, but nonetheless
claim that the material shown on them ‘fires up’ their audiences in a way
that disposes them to violent behaviour.8 But this version of (1) rests on a
false assumption: that if someone takes pleasure in the representation of a
thing, they must prefer the real thing (if not, they would rest content with
the fictional material and (1) would be false).
On an unrestricted interpretation, the assumption is clearly false. There
are of course cases in which someone who takes pleasure in a fiction would
prefer the reality – many of us might feel that way about a feelgood
rags-to-riches story. But there are obvious counter-examples too: many
people can take pleasure in an action film, but would almost certainly take
a different view if informed that the actors who died in the film really
were killed in the production; the same can be said of those who participate
in battle re-enactments. In fact, it would in general seem that we can only
take pleasure in representations or enactments of serious harm on the
condition that they are fictional. It might then be replied that there is a
difference between the cases just described and the one under scrutiny, i.e.
that the pleasure derived from the representation of violence is sexual.
Now, that is of course true. But the question is still whether such a person
would prefer the reality to the fiction. So presumably, the principle now
being invoked is something like this: if someone takes sexual pleasure in a
fiction, they must prefer the reality.
But the assumption is no more true in the sexual case than the non-sexual
case. One person may watch a ‘normal’ pornographic film featuring someone
they find attractive, and wish they could actually have sex with that
person. But there are many other kinds of activity where being fictional is
essential to the pleasure one derives from it. In many such activities,
consensually engaged in by adults, each partner adopts an essentially
fictional (or fantasy) role. A sub-category of these are fantasies in which
one partner adopts an explicitly powerful/dominant role, while the other
adopts a role that is weak/submissive. The range of these activities is
wide, extending from ‘normal’ sexual behaviour to acts of consensual
violence and simulated acts of non-consensual violence (up to and including
simulated killing and necrophilia), and the key question is this: when a
sexual fantasy involves a simulated act that, if real, would be counted as
criminally violent, are we to assume that the participants would prefer the
reality to the simulation? To take one example: are we to assume that a
woman who has a rape fantasy would prefer to be raped for real than to
engage consensually with a partner in a simulation of that scenario? No. To
fail to grasp this is fundamentally to misconceive the way that sexual
fantasies actually work.
It is similarly misconceived to believe that such fantasies express hatred
or other negative feelings. It is sometimes said, for example, that they
express hostility to women, but it is noteworthy that the corresponding
point is rarely made when a male partner adopts the submissive role. In
fact, a relationship within which such role play occurs can be as respectful
and affectionate as any other. The role play does not express negative
emotion towards the partner, precisely because it is fictional. Some
fantasists may of course harbour negative feelings towards an individual or
group, as may those who do not engage in role play of any kind. But engaging
in fantasies, even fictionally violent ones, is in itself neither necessary
nor sufficient for having such feelings.
Confusion about the nature of sexual fantasies can also arise through an
unfortunate ambiguity in the word ‘fantasy’. On the one hand it can refer to
a consensual act of role play, or the content of fictional material. But the
word ‘fantasy’ also refers to a state of mind in which one savours the
prospect of something one would like to do for real. One might fantasise
about winning the lottery, for example; similarly, someone might fantasise
about some criminal act, such as rape or murder. The two senses of the word
are clearly quite different. But when the word is used to refer both to the
content of the material under scrutiny (the first sense), and the state of
mind of someone like Coutts (the second sense), it becomes all too easy to
conflate the two. The assumption that taking sexual pleasure in a fiction
implies a desire for the real thing is in fact undermined by a stark piece
of empirical evidence. Of the thousands of people who have regularly visited
sites of this kind, over a period of several years, there has been only one
Graham Coutts (if there had been any similar cases, we would almost
certainly have heard of them). Even if there had been a few cases among
those thousands, that would still constitute an extremely weak basis for
accepting the assumption – yet the Government asks us to accept it on the
strength of just one case.
There is further evidence against the assumption, if anecdotal. People with
violent sexual fantasies usually become aware of their sexual orientation in
their early teens. They are confused and disturbed at an apparent need in
themselves to commit acts that, not being psychopaths, they find appalling,
and this is followed by feelings of moral self-disgust, isolation, fear and
sexual repression. Some are able to discover that sexual role play is really
what they seek, through exploring their fantasies with partners, but many
are simply too frightened to mention them. Obviously, the existence of sites
and supporting communities affords an opportunity to reach the same
discovery, and the further discovery that there are others like them.
(Communities can also teach the inexperienced how to engage in such
fantasies safely.)
It should be remembered that we don’t even know if justification (1) is true
of Coutts, who obviously did seek the reality as opposed to the fiction. We
know he visited certain sites before the murder, but it doesn’t follow that
this played an instrumental role in it. We know he wouldn’t have received
moral support from the relevant community, for reasons already discussed. We
also know the material on the sites did not generate his sexual original
orientation, which was established years earlier. We know that thousands
regularly visit such sites without engaging in real violence.
So what can explain Coutts’ behaviour? Here is one possibility: it is widely
recognised by psychologists that all communities contain a tiny minority of
psychopaths,
i.e. individuals lacking the ability to empathise with other people and
therefore see them as persons. It is because most of us have this ability
that we can only enjoy representations or enactments of harm to other people
(in either sexual or non-sexual contexts) on the condition that they are
fictional. The absence of this ability in a psychopathic individual combines
with their desires in such a way that they pursue them without regard for
the consequences for other people. This can occur with respect to any kind
of desire, sexual or otherwise. In gangsters, it combines with a desire for
power and material gain. In Coutts’ case, it combined with his sexual
orientation, blurring for him the distinction between harmless role play and
real violence. By contrast, the thousands of others with similar sexual
orientations who visit such sites retain the distinction and harm nobody. In
which case, what is the more plausible instrumental factor – the
psychopathic inability to distinguish between fantasy and reality, or the
fact that he visited the sites?
To conclude: not only have years of research yielded no general conclusion
on justification (1), as the Government’s paper admits, but it also looks as
if (a) the sites do not endorse real acts of violence, (b) the material on
the sites does not create the sexual orientation to which they cater, (c)
the audiences of the sites overwhelmingly would not wish to commit real acts
of violence, and (d) it is not even plausible to suggest the sites were
instrumental in the one case where someone did wish to do so. In the face of
this, it is extremely hard to grant (1) any credibility.
6 See the discussion of ‘abhorrence’ below.
7
The degree to which the importance of consent and the distinction between
real and fictional acts inform practices within the communities under
scrutiny has been confirmed by various studies. For example:
Weinberg, Williams and Moser (‘The social constituents of sadomasochism’,
Social Problems, 31, pg. 379-389) identify (among others) two key
characteristics of BDSM interactions:
- Consensuality -a voluntary agreement to enter into SM ‘play’
(interaction) and to honour certain ‘limits’ (ground rules of how
involved and in which direction the play can proceed).
- Role-playing -the participants assume roles either for the
interaction or for the relationship that they recognize are not reality.
Gosselin and Wilson (Sexual Variations, Faber and Faber, 1980) note that
a description of BDSM practices ‘could perhaps cause the uninitiated to
regard the practitioners of sadomasochism as undesirable, dangerous and
“sick”. However, it is our impression, based on our interviews and the
research of others, that most sexual sadists have no wish to hurt their
partners in their sex-games any more than is enjoyed or at least
accepted by that partner. Equally well, a masochist has little wish to
put his head on the block, figuratively or literally, and will only play
that role with someone who understands the “rules of the game”,’ (pp.
50-51) In their conclusion, they note that ‘…it cannot be said that the
broad mass of… sadomasochists that we have studied resemble the classic
models of neurotic, psychotic and psychopath in anything more than
imputation… We have learned that most sadomasochists are probably very
much less dangerous than society believes them to be,’ (p.160).
Gini Scott (Erotic Power, Citadel Press 1983), observes that ‘unlike the
psychiatrists and psychologists who deal primarily with psychologically
troubled individuals who are also interested in D&S [Dominance and
Submission], I did not find them to be psychologically troubled or socially
inept; rather, a spirit of good humour and fun prevailed, and the
participants appeared to be mostly attractive, quite ordinary-looking people
who had ordinary relationships outside the D&S scene... A vast variety of
people with a diverse range of erotic interests participate in
sadomasochism. Their backgrounds, activities and attitudes are quite unlike
the social stereotype that depicts sadomasochism as a form of violence,
mischief, or mayhem perpetrated by the psychologically unstable who seek to
hurt others or to be hurt themselves... At the core of the community are
mostly sensible, rational respectable, otherwise quite ordinary people.
Thus, quite unlike its public image, the community is a warm, close and
supportive one,’ (p. x).
8 The Government implies, without saying so explicitly, that the material
had this effect on Coutts.
Justification (2): breaking the cycle of supply and demand
Obviously, one can deter would-be users of the material under scrutiny by
threatening to jail them. But this would only remove the demand if the
material were responsible for creating it; and we have seen it is not.
Consequently, all this would achieve is to leave that demand unsatisfied.
Repressed sexual needs tend to fester, rather than evaporate. Indeed, this
measure could have the opposite effect of its purported intention, in that
without a source of gratification and a community to help them understand
their needs, some individuals might turn to real violent behaviour – which
they might otherwise have avoided.
Justification (3): protection of those who might be harmed in the
production of the material
By definition, there is no need for protection from physical harm with
material that is entirely fictional. Participants in material showing real
acts of consensual violence would not need protection if that violence fell
within acceptable limits.
That leaves real acts of non-consensual violence and consensual violence
that falls outside acceptable limits. As we have seen above, if a site were
to show such material, that would constitute evidence of a crime, which
could be prosecuted under existing laws. So those who might be thus harmed
are already protected.
The consultation paper mentions both physical and ‘other’ harm, which
presumably means psychological harm. But, as long as performers participate
consensually, why assume that psychological harm occurs? We should certainly
not infer this simply from the fact that they do something many would find
distasteful. In fact, there would only be clear grounds to do so if the
performers in question were involved in so exploitative a relationship that
their judgement had become impaired. Such relationships can exist in any
sphere, whether or not it involves the production of pornographic material.
But it does not follow simply from the fact that the material is of the type
under scrutiny that the performer’s relationship with the producer is
exploitative. Sometimes the performers are the producers. And a scene of
‘serious violence in a sexual context’ may require no more of an actor than
would be expected in, say, a mainstream horror film. The work can therefore
be easier – depending on the preferences of the performer – than having sex
in a ‘normal’ pornographic film.
Justification (4): protection of society from exposure to this material
The Government simply doesn’t explain what society needs protection from
here. There seem to be two candidates:
- that the material might be harmful
- that people might find the material
abhorrent
But we have seen that the claim that the contested material causes
harm – either directly or by encouraging real non-consensual violence –
doesn’t stand up to scrutiny. And whether abhorrence is a good enough reason
to curtail the relevant liberties (uninhibited private life and freedom of
expression) depends on how ‘abhorrence’ is interpreted. In fact, the
Government gets itself into a muddle by conflating the questions of harm and
abhorrence. These issues will be addressed in the section on ‘abhorrence’
below.
It is also worth bearing in mind that (as mentioned earlier), the material
is not widely available and has to be sought out. So the members of society
that would be ‘protected’ here would almost exclusively consist of those who
want to see it.
Justification (5): protection of children from exposure to this material
Children should (of course) not be exposed to this sort of material. Nor
should they be exposed to ‘normal’ pornography, or certificate 18 films –
both of which are far more widely available, and therefore more likely to be
encountered by children. Presumably, then, these should be banned too (along
with any material that children should not see, but might).
A more constructive proposal would be a public information campaign on the
many ways in which parents can control what their children see on the
internet.
Justification (6): abhorrence
We need to distinguish between two kinds of abhorrence here. On the one hand
it is a near-universal reaction to behaviour that intentionally causes
suffering – a reaction that underpins almost all our moral thinking. On the
other, it is a subjectively similar sense of revulsion towards something
that is in fact morally neutral. Many might have this kind of feeling if
they saw someone eating faeces, for example, or even sheep’s eyes.
We have a word for the second kind of abhorrence – squeamishness. This
feeling is often occasioned by confrontation with a form of sexuality one
does not share. It is as variable as the individuals whose taste it
expresses. However, it is easily confused with the first kind of abhorrence,
which is why homosexuality has so often been called morally objectionable9.
Our question in this context is therefore this: does the abhorrence that
many people would feel towards the material under scrutiny arise because it
really is morally objectionable, or is it mere squeamishness?
We need to ask another question too: is the abhorrence cited by the
Government applicable simply to filmed and photographic material, or to the
activities themselves
(i.e. real acts of consensual violence within acceptable limits and
fictionally non- consensual violent role play)? Though the material might
seem an easier target, the abhorrence must surely also apply to the
activities. It should similarly apply to material made and kept privately by
individuals. To find the material but not the practice abhorrent is
straightforwardly inconsistent. We will assume that pornographic material
and sexual practices count as morally objectionable if they meet either or
both of the following conditions: (a) they involve participants who are not
adults of sound mind who freely consent; (b) they involve participants who
sustain real physical harm beyond acceptable limits despite consenting. We
can add a further condition that applies not to material/practices but to
sites and communities: (c) they give moral support to real non-consensual
violent behaviour, or consensual violent behaviour beyond acceptable limits.
The contested material – that featuring real consensual acts within
acceptable limits, and fictional acts – does not meet either condition (a)
or condition (b). As stated earlier, there are already laws to deal with
material that does. We have also seen that the relevant sites and
communities do not meet condition (c). (If there are any sites and
communities that do meet condition (c), this paper does not defend them.)
It follows that the material, practices and communities in question are not
morally objectionable. Therefore, the abhorrence many would feel is mere
squeamishness.
The question now is whether squeamishness, even if felt by a majority, is a
good enough reason to outlaw a practice or fictional representation. And the
answer, in a liberal democracy, is surely ‘No’. To outlaw a minority
practice out of mere majority squeamishness would be the kind of action that
was rightly condemned by Mill as tyrannous. Indeed, if we need a reminder of
how unreliable a guide to genuine moral objectionability this is, we have
only to consider how recently a majority in this country believed
homosexuality to be ‘clearly abhorrent’. If we think that couldn’t happen
again, we should glance across the Atlantic, where attitudes towards gays
and lesbians are turning decidedly ugly.
Alarmingly, given that we already have laws that forbid real violence, and
given the weakness of the case for justification (1), it is hard not to see
the invocation of abhorrence as the Government’s primary motivation for
proposing this legislation. That would be in keeping with the preacherly
tone of the paper, the Government’s track record in nannyism and the fact
that the legislation is explicitly intended to replicate the function of the
Obscene Publications Act – whose ‘deprave and corrupt’ test purports to
‘focus… on the effects or the harm done by the material in question’ (§13),
yet is grounded not in an empirical evaluation of harm, but in ‘moral
standards’ (§13) as interpreted by a jury’s ‘subjective judgements’ (§13).
Indeed, this conflation of harm and a muddled ethics based on squeamishness
only serves to discredit the OPA, as well as the proposed legislation.
The Government’s confusion regarding genuine harm and squeamishness is
exemplified in this passage:
‘Option four, doing nothing, would risk sending a message that we considered
accessing such material was harmless, or not worthy of attention. But
although we recognise that accessing such material does not necessarily
cause criminal activity, we consider the moral and public protection case
against allowing this kind of material sufficiently strong to make this
option unattractive.’ (§52)
The Government implies here that the material is not harmless (therefore
harmful) and then says that while this doesn’t mean it necessarily causes
criminal activity, it is harmful in the sense that it warrants ‘a moral and
public protection case’. But that still leaves it unclear what kind of harm
we need protection from! The only clue we have is the word ‘moral’ which in
this context would imply that the harm consists in exposure to abhorrent
material – i.e. material about which people feel… squeamish.
Though dressed up as a common sense protection measure for which there is a
genuine empirical need, this proposal is nothing less than an attempt to
tell people how to have sex. In attempting to outlaw the material, but not
the corresponding practices, the Government may seek to hide the degree of
its intrusion into the sex life of private individuals. But the restriction
is arbitrary, and – given the character of the Government’s motivation –
could easily be lifted in subsequent legislation.
Indeed, the Government shows its true colours in its discussion of human
rights. It says (§57) that the reason the proposal is compatible with the
European Convention on Human Rights is that will not affect the following:
- political expression
- public interest matters
- artistic expression
- legitimate reporting for news purposes
- information gathering for documentary programmes in the public
interest
But this list ignores the protection afforded by Article 8 to
private life and limits without justification the range of expression
protected by Article 10. The degree to which the proposal is
incompatible with the ECHR, and therefore the Human Rights Act, will
doubtless receive due attention from legal minds. But what is striking
here is the Government’s ignorance or dismissal of these considerations,
citing (again) majority ‘abhorrence’. A Government that holds these
protections in such low esteem should worry everyone.
The Government has picked an easy target with this proposal. It knows
that members of a sexual minority who publicly speak up in their own defence
will have to surrender their privacy, and then endure ridicule and
vilification driven by squeamishness. It knows that politicians will have
little to gain from opposing the proposal. For all that, however, it remains
the case that this proposal will bring fear and misery to a harmless sexual
minority for no good reason. To take it further would be profoundly immoral.
9 We are assuming it will be agreed that homosexuality is not morally
objectionable .
Interim conclusion
We saw earlier that the case against possession requires that (1)-(6)
establish that the material per se is genuinely objectionable, thus
justifying measures similar to child pornography legislation. However, we
have seen that arguments (1)-(6) are unsound. So the case against possessing
the contested material – that featuring real consensual acts within
acceptable limits, and fictional acts – is unsuccessful.
We have also seen that the proposed legislation would, if implemented,
constitute a radical and unjustified intrusion on the part of the state into
private life and freedom of expression. Consequently, it should be rejected.
The ‘pragmatic’ argument
As mentioned above, the Government deploys a further ‘pragmatic’ argument
against possessing ‘extreme’ pornography featuring only fictional acts. Here
it is:
‘By realistic depictions we intend to capture those scenes which appear to
be real and are convincing, but which may be acted. This follows the
precedent of the child pornography legislation and is in part necessary to
avoid the need to prove the activity actually took place, as this would be
an insuperable hurdle for the prosecution.’10 (§38)
Interpreted generally, the principle that prosecutors should be relieved of
the burden of proving their cases would be indefensible (though the
Government has on many occasions exhibited an impatience with due
process).11 So the idea here must be that the principle is in this case
supported by analogy with child pornography.
But the analogy does not hold. Children cannot by definition consent to
participate in pornographic material; to feature them in material intended
for sexual arousal exploits them whether or not this involves real sex acts.
Consequently, while material featuring real sex acts would obviously be more
serious than material that did not, the mere presence of children in the
material is sufficient to make it objectionable. So the issue of waiving the
requirement of proof is not the key issue. By contrast, since adults can
consent, their mere presence in pornographic material featuring fictionally
violent acts is not analogously objectionable. Therefore, the material would
only be objectionable if the acts were real, in which case there is every
reason not to waive the requirement of proof.12 It follows that the
equivalent treatment of real and fictional material cannot be justified by
analogy with child pornography.
10 Though aimed at material featuring fictionally non-consensual acts, this
argument applies equally to material featuring consensual acts (whether real
or fictional). For it would be possible to argue that although those who
featured in it might appear to consent, they might equally have been coerced
into appearing to do so.
11 Examples include ASBOs, the attempt to remove
the right to trial by jury in some cases and the introduction of previous
offences in trials. Tony Blair is on the record as saying that he thinks the
justice system needs to be ‘rebalanced in favour of the victim’, which is a
sneaky and misleading attempt to reverse the principle that it is preferable
for the guilty to go free than for the innocent to be convicted.
12 It is
worth noting that even with respect to child pornography, the US Supreme
Court took precisely the opposite view from the kind of position that the
Government is defending. Ruling on the issue of ‘virtual’ or
computer-generated child pornography, it said: ‘The First Amendment is
turned upside down by the argument that, because it is difficult to
distinguish between images made using real children and those produced by
computer imaging, both kinds of images must be prohibited. The overbreadth
doctrine prohibits the Government from banning unprotected speech if a
substantial amount of protected speech is prohibited or chilled in the
process.’ Ashcroft, Attorney General, et al. v. Free Speech Coalition et al.
Certiorari to the United States Court Of Appeals for the Ninth Circuit. No.
00—795. Argued October 30, 2001–Decided April 16, 2002. 12
Enforceability
Risk of ambiguity (I): realism
As we have just seen, the Government intends to target ‘realistic
depictions’ in fictional material, where this means ‘scenes which appear to
be real and are convincing, but which may be acted’ (§38).
But who is to judge what is realistic? Suppose a torture or murder scene is
directed and acted in a grand guignol, melodramatic style. One person might
conclude that it is not very realistic because it is over-acted and
directed; another person might consider it extremely realistic for precisely
the same reason!
This is not an academic question – people need to know when they are
breaking the law and the police need to be able to apply it consistently.
But the ‘realism’ criterion is wide open to the vagaries of subjective
judgement. It is hard to see how a law based on such a criterion could be
applied consistently – and, therefore, be enforceable.
Risk of ambiguity (II): pornography
Much published material, and many recreational practices, depict or involve
acts of violence. Here, corresponding to our four categories, are some
uncontroversial examples:
Type of activity/material Examples Type (I): real acts of non-consensual
violence:
- News/documentaries
- Histories of war
- Art using film or photos of real events
Type (II): real acts of consensual violence (within acceptable limits)
- Sports such as rugby and boxing
- Japanese game shows
- Tattooing
- News/documentaries
Type (III): fictional acts of non-consensual violence (performed
consensually by actors)
- Mainstream/arthouse films – e.g. horror films/thrillers
- Battle re-enactments
Type (IV): fictional acts of consensual violence (performed consensually
by actors)
- Mainstream/arthouse films – e.g. In the Realm of the Senses (Nagisa
Oshima, 1976), Matador (Pedro Amaldovar, 1986)
The Government says that it does not intend to target such examples with
its legislation. As we saw earlier, it distinguishes them from the material
whose possession it intends to outlaw – despite the possibility that
examples of each may closely resemble the other – by applying the following
criterion: does a given example qualify as pornography?13
In using this criterion, the Government does not appear to have considered
the possibility that there could be confusion over whether some piece of
material is pornographic. In fact, though, this is eminently possible. With
sexual fetishes in general, sexual arousal can occur as a result of material
that is not explicitly sexual. So, in a case of ‘extreme’ pornography, the
material need not depict a sex act, but could show a (fictional or
consensual) violent act instead. That makes it genuinely hard to distinguish
a pornographic scene of types (II)-(IV) above from a non-pornographic scene.
For example, an instance of pornographic material featuring fictionally non-
consensual violence might be indistinguishable from a scene in a mainstream
horror film or thriller. Indeed, consumers of such material might be
sexually aroused by films that would count as non-pornographic, in that they
were not produced for the purpose of sexual arousal. Similarly, someone who
enjoyed material featuring real consensual violence might be sexually
aroused by a film about the body-piercing practices of African tribes.
Obviously, some cases would be more ambiguous than others. It would be
difficult to claim plausibly that clear examples of news, documentaries and
histories showing violent behaviour were pornographic. However, there might
well be a risk of ambiguity with material that does not clearly fall into
those categories, and with art and fictional material.
The only way to tell if the material really was pornographic in the
Government’s sense would be to trace the material to a source that clearly
did produce pornography, but this would in many cases be impossible.
Consequently, the only way to successfully enforce the law would be to make
a circumstantial case about the intentions of the person who originally
produced the material (and, in practice, the intentions of the person who
acquired it). Given the potential for ambiguity just discussed, this would
almost certainly result in subjective, inconsistent judgements on the part
of those attempting to enforce the law.
13 I.e. ‘material that has been solely or primarily produced for the purpose
of sexual arousal’ (§37).
The wrong criterion
This seems to leave us with a problem. We have just seen that we cannot, in
at least some cases, distinguish ‘extreme’ pornography from non-pornographic
violent material in a principled way – in which case, the proposed law would
be unenforceable. Yet we need such a law – or something like it – to deal
with the possibility of genuinely objectionable material.
We allowed earlier that pornographic material would count as genuinely
objectionable (as opposed to something people happen to feel squeamish
about) if it met either or both of the following conditions:
(a) it involved participants who were not adults of sound mind who freely
consent
(b) it involved participants who sustained real physical harm beyond
acceptable limits despite consenting
If such material exists, it would be
desirable to curb the traffic of it – just as it is desirable to curb the
traffic of child pornography. The argument that an offence of simple
possession can help curb the traffic of objectionable material is as
follows:
‘Merely downloading an image from the Internet is regarded as a serious
matter
because to do so feeds the market for this kind of material, so increasing
the
likelihood of further abuse, to create further images.’ (§26)
In fact, the offence requires more than mere possession: it specifically
targets those who knowingly acquire objectionable material (thus
perpetuating the market for it), rather than those who do so inadvertently
or in the course of legitimate work14.
If we accept this argument
15, then there is a need for a possession offence to
curb any potential traffic in the kind of objectionable material just
described – but we have just seen that in the case of pornography featuring
violent acts the possession offence would be unenforceable!
Is this a genuine dilemma? No. It only appears to be a dilemma because of
the criterion of illegality that the Government has chosen to use.
Consider a genuinely objectionable case: suppose some person or group
subjected another person to real acts of non-consensual violence, in order
to capture those acts in pornographic material. Obviously, such acts would
be objectionable (indeed, they would be crimes). But how much does it matter
that the material in which they feature is pornographic? Would a
non-pornographic case be any less objectionable – for example, material in
which racial or sexual minorities were tortured or killed for the
(non-sexual) gratification of the relevant kind of bigot? If the injuries
suffered by the victims are similar, it is hard to see why. Conversely,
there doesn’t seem to be anything objectionable (except to those who object
to all pornography) about pornography that does not feature such acts.
Consequently, it would seem that being pornographic is not the essential
ground of objectionability in our case 16.
Indeed, the Government’s use of the ‘pornography’ criterion results in an
altogether unstable and inconsistent position. Consider two problems:
First, the Government defines pornography as ‘material that has been solely
or primarily produced for the purpose of sexual arousal’, but why focus only
on the producer’s intentions? Surely the consumer’s intentions should be
equally objectionable. In which case, why should it not also be illegal to
possess, for the purposes of sexual arousal, violent material even if it was
not produced for those purposes – e.g. mainstream horror films or
documentaries about the body-piercing practices of African tribes? Not only
would this extra step make the Government’s position more consistent, it
would also have a practical value: it would close a loophole in which
producers could claim their films were, for example, not ‘extreme’
pornography, but mainstream (if low-budget) horror films or documentaries.17
Second, given the failure of justifications (1)-(6), all the worries about
the consistency of singling out violent pornography, but not other violent
material become pressing. For example, we saw that the Government seeks to
treat real and fictional material in the same way on the grounds that, in
some cases, they might be hard to distinguish from each other. But why
restrict this measure to pornography? Why not ban the publication and
possession of any material depicting purportedly fictional violence on the
ground that the violence might have been real? If it is replied that such
doubts would not arise in the case of ‘mainstream’ material, the question is
then: what counts as mainstream? Why would short films and low-budget
features be any less subject to doubt? Conversely, if it could be proved
that the violence in pornographic material was not real, what objection
would there be to allowing its possession (or publication)? Similarly, why
assume violent pornography is any more likely to influence behaviour than
other violent material?
In all of these cases, the Government takes a position on pornography that
it appears reluctant to apply consistently. We have encountered this issue
already: recall that the Government is trying to ban the possession of
‘extreme’ pornography, but not, inconsistently, the practices on which it is
based (i.e. real acts of consensual violence within acceptable limits and
fictionally violent role play). The pattern is clear: the principles that
the Government is applying to pornography have profound implications for the
state’s capacity to interfere with private life and freedom of expression.
It seeks to disguise this by arbitrarily restricting the application of
those principles to an easy target.
So: we have seen that being pornographic is not what makes the material
under scrutiny objectionable, and that using this as the criterion for the
illegality of possession (a) creates problems of enforceability and (b)
makes for a morally incoherent and dishonest position. We should therefore
reject that criterion.
14
‘It is not our intention to penalise anyone who accidentally stumbles across
the material specified in the proposal, or who has it sent to them without
their consent, or has a legitimate reason (such as law enforcement) for
dealing with it.’ (Executive Summary, p.2)
It is worth remembering, however, that it is easier to acquire electronic
material inadvertently than is widely appreciated, and that it can be
extremely difficult to determine whether material has been acquired
inadvertently or not. This leaves individuals open to considerable risk of
false accusation (and even conviction), and all the damage this can entail.
15 Some do not, but we will assume here that it is sound.
16 In the face of
this, it is natural to ask why the Government has made being pornographic
the criterion by which possession of material of types (I)-(IV) counts as
illegal. It may, again, have relied on its unsound analogy with child
pornography: it may have reasoned that since any material that is both
pornographic and features children is objectionable, any material that is
both pornographic and features violence is objectionable.
17 Similar
strategies were deployed by producers of ‘normal’ pornography in the 1970s.
A better criterion
So much for the problem. The solution is to apply a better criterion of
illegality. Here is one possibility: it should be illegal knowingly to
acquire material (pornographic or not) featuring real acts of non-consensual
violence (or acts of consensual violence that exceeds acceptable limits),
where those acts were perpetrated in order to produce the material, and
where the acquisition helps perpetuate the market for such material. This
approach has two virtues:
- the criterion of illegality is clearly aligned with the criterion of
moral objectionability •
- it disposes of the problems of enforceability and coherence just
described
Prosecutors would have to show beyond reasonable doubt that
the acts depicted in the material were real, and that the possessor of
the material knew that (a) they were real, (b) they were
perpetrated to produce the material and (c) in acquiring them he/she was
helping to perpetuate the market for such material. This is a higher
burden of proof than that envisaged by the Government, but one which
respects both the need to curb the traffic of genuinely objectionable
material and the principle that the innocent should not be penalised in
the pursuit of the guilty 18.
However, this burden of proof would only
apply in respect of possession. We should remind ourselves, again, that
existing laws already outlaw the acts themselves, and that in such cases
the material itself would be evidence for prosecutors in the relevant
jurisdictions.
18 Indeed, this formulation precisely enshrines the Government’s own
intention to target those who knowingly and deliberately seek this sort of
material, rather than those who acquire it inadvertently.
Conclusion
- arguments (1)-(6) are unsound
- the ‘pragmatic’ argument is unsound
- the proposed legislation would be unenforceable
- the proposed legislation would constitute a radical and unjustified
intrusion on the part of the state into private life and freedom of
expression, and reflects a morally incoherent and dishonest position
- therefore, possession of pornographic material featuring real acts
of consensual violence within acceptable limits, and fictionally violent
acts (consensual or not) should not be made illegal
- the need to curb the traffic of genuinely objectionable material
(real acts of non-consensual violence, or real acts of consensual
violence beyond acceptable limits) can be met through better formulated
legislation Therefore, the proposed legislation should be rejected.
Practical suggestions
While the proposed legislation has been rejected, the following initiatives
might well address some important concerns:
- Formulate better legislation along the lines just recommended.
- Set
up a helpline for anyone who feels they have an inclination towards
sexual violence. The aim would be to help them understand whether their
need is for fictionally non-consensual violent role play, or real
consensual violent activity, and then direct them to appropriate
resources within the BDSM community. In the event that someone sincerely
believed they were about to commit a real act of non-consensual
violence, the aim would be to persuade them to get help. Such a helpline
might prevent a rape or murder.
- Regulate the production and
publication of this and all pornography. An example of compliance would
be a requirement on producers/publishers to display an agreed message emphasising
the importance of consent and the difference between fantasy and
reality. Another would be a requirement on producers to provide release
statements from performers indicating that they have consented.
Consumers would be able to avoid sites that did not meet approval from
the relevant regulatory body. The framework for such regulation is to
some extent already in place in the US, where producers have to provide
proof that performers are of legal age.
- Organise a public information
campaign on how parents can control what their children see on the
internet. This would include information on software tools that block
sites and provide surfing records, and also practical tips.
- Organise a Kinsey-style research program into the relevant kinds of
sexual practice.
