Introduction
It was with some concern that I learned of the government’s intention to ban
depictions of ‘extreme’ or ‘violent pornography’.
I do not belong to a political party or pressure group. I have not
previously responded to a public consultation and have never lobbied
government regarding any matter.
But, seeing myself as a person of liberal values, this announcement jarred
with my principles and with my firm faith in Britain as a liberal democracy.
In fact it led me to research and analyse the matter in great depth and
spend a considerable amount of time preparing a response to the public
consultation document.
The following text provides arguments, both legal and consequential against
an introduction of said law, suggestions for consideration if legislation is
introduced nonetheless, and further comment for your consideration.
I would strongly urge the government to reconsider its intentions in this
regard.
The Case Against
1 European Convention on Human Rights
The consultation document mentions ECHR articles 8 and 10. Both these
articles seem clearly to apply to this law and considerable force of
argument would need to be brought to convince that this law is compatible
with these articles. Particularly the right to privacy appears seriously
impinged by a law which appears to make decisions regarding sexuality on the
individual’s behalf.
The consultation document makes no mention of any argument which may serve
to prove the claim that concern regarding these two articles can be
overcome.
Unmentioned in the consultation paper is ECHR article 7 which requires law
to be certain and ascertainable. ‘Nulla poena sine lege’.
This article is definitely relevant in this case, as one of the principle
problems with the proposed law is to create a wording discernable by the
public. Given the vagaries of the suggested crime and the breadth of people
affected, the common law test can hardly be applied as it would require
every member of the public to be as learned and competent in matters of law
as a judge applying the common law test in court.
2 Lack of Evidence
The consultation accepts there to be a complete lack of evidence that would
prove any lasting damage that possession of such content would cause, either
on individuals or on society. There seems to be no indication of research
being undertaken by government to overcome this lack of evidence. This in
effect means that the government is willing to legislate in a state of
admitted ignorance and is content to remain so.
3 Obscene Publications Act
In Paragraph 21 of the Consultation Document the authors state their
assumption that publishers generally understand the benchmark set by the
general obscenity test. In fact the current obscenity test of common law is
highly controversial, particularly as many argue it to be a form of
retrospective law-making in each individual case.
Furthermore, there are self-evident flaws in proposing the use of the
obscene publications act as the basis for a law banning the possession of
violent pornography.
“an article shall be deemed to be obscene if its effect or (where the
article comprises two or more distinct items) the effect of any one of its
items is, if taken as a whole, such as to tend to deprave and corrupt
persons who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it.”
Until now the text above referred solely to publishing. So far the text was
therefore only used in the context that a publisher should interpret if his
publication was likely to corrupt and deprave any of his possible readers or
viewers.
With the newly proposed law, however, it falls to the reader or viewer
himself to adjudge if he or she will be corrupted or depraved by the act of
viewing the material. Firstly, this decision cannot be reached without
actually viewing the material. Secondly, it is to be doubted there is any
adult who will deem that he or she can be depraved by material he or she may
view. No doubt it is within human nature to deem oneself competent. The use
of the obscene publications act in this way would hence demand of people to
act in a way contrary to human nature.
It will hence inevitably be the same conclusion every individual will reach
for himself when having to apply the obscene publications act in conjunction
with the viewing of any pornographic material.
The current obscene publications act remains highly controversial due to its
requirement that publishers prior to publication ascertain if within their
possible readership there might be someone who is corruptible. For this,
however, the publisher is legally entitled to view his own material.
However, to visit a website and view its pictures online is effectively to
possess these pictures on one’s personal computer.
Therefore, to apply the act, each member of the public must deem if he or
she is corruptible by material on a particular website before actually
viewing the material in question, else possibly be left caught in possession
of illegal material.
To be required by law to judge what is unknown appears legally unsound.
Furthermore, if the act is applied to the public it cannot also be applied
simultaneously to publishers.
If the public are deemed sufficiently competent to interpret if they are
corruptible by material prior to viewing it, then the burden of
responsibility regarding consideration of the obscene publications act moves
from the publisher to the viewer, allowing the publisher to publish anything
without consequence.
In effect, the obscene publications act can only apply to one party, the
publisher or the viewer.
In light of above points, the obscene publications act is either unsuitable
for use in the context of the proposed new legislation or it requires
serious amendment.
A fundamental redrafting of the obscene publications act would be most
welcome in many quarters. But it would most certainly go beyond the remit of
this consultation.
4 Prosecution and Defence
The question arises whether the prosecution will have to provide evidence of
harm (to society or to individuals depicted), evidence of lack of consent by
individuals depicted, or if the simple premise of perceived lack of consent
within a depiction will suffice.
The former would make prosecution nigh on impossible. Yet the latter would
make any defence impossible. Perception is not evidential but subjective and
hence cannot be disproved or countered.
5 Green Light: Drive, Red Light: Halt
The public seek law which clearly states what is expressly forbidden,
assuming all else to be permitted. To provide the legal principle of the
common law test of obscenity in conjunction with a ban on possession of a
vaguely defined type of pornography means knowingly to provide people with a
law they cannot easily understand and follow.
Making the comparison with traffic lights, it suggests that the actual
colour of the lights in any event be disclosed by a judge at a later date.
Yet until such disclosure to drive when an unspecified colour might be
showing to be deemed punishable, should it later be deemed illegal.
Evidently the above example would not be deemed an acceptable form of
Highway Code. This approach hence suggests itself to be an insufficient
means of application for any law concerning something as widespread as
internet pornography.
If law is to affect the public by and large then it must be clear to all.
This is the case with the prohibition of possession of child pornography.
6 Potential Flooding of law enforcement
If the prohibition of child pornography has seen overzealous photographic
developers reporting to the police the holiday snaps of children by their
parents, then an ambiguous law on sexual violence could see hundreds,
possibly thousands of erroneous cases reported to the police by various
computer maintenance services, internet watchdogs and internet service
providers. In time this may well prove beyond the capacity of any limited
resources allocated to deal with this type of crime.
7 Suggestion of societal Harm counterbalanced by Suggestion of societal
Benefit
The suggestion is made in the consultation document that pornography
depicting violence does harm to society by encouraging violent sexual urges
within individuals, though admittedly no evidence can be provided to back up
this argument.
It may however be argued that pornography depicting violence or other
extremes provides society with a service by allowing people with such urges
to live out their fantasies within pornography, so creating a valve for such
urges to escape.
Banning the possession of such depictions might therefore make matters
worse, increasing rates of rape, sexual assault and other sexual crimes. No
evidence can be provided to substantiate this argument. Yet, as it is as
valid as the equally unproven suggestion that people may be encouraged by
violent pornography, it is no doubt worthy of equal consideration.
8 Minorities
It is true that society must be based on a moral code and that the dominant
moral code within the society is best suited to this purpose. Yet in a
modern liberal democracy it is agreed that minorities must be protected from
the overarching moral code of the majority. It is impossible to create and
maintain a culturally diverse society if the values and codes of the
majority are all-encompassing. The agreed principle is that tolerance be
shown to minorities, unless there is evidence of their behaviour being
harmful.
Without evidence of harm to enact law against a minority on the basis of
distaste appears arbitrary. The popularity and size of a minority within
society are of no consideration in this process. The minority is neither
required to justify its existence nor its practices.
The sole concern is one of harm and of proportionality of harm within
society.
The consultation document states that there is no evidence of harm either by
extreme pornography itself or by the various groups of fetishists who might
view it.
It therefore appears an act of discrimination on grounds of sexual
orientation to legislate against the interests of a particular sexual
minority without evidence of harm.
9 The public Good
Acting to assure the public good is not equivalent with acting in accordance
with public opinion, else capital punishment would be widespread.
When balancing the evidence of moral offence and highly intrusive censorship
at the most personal level, it seems hard to argue that the public good be
best served by the latter.
10 Qui bono?
This law curtails the rights of all to the satisfaction of the morality of
some.
There is no evidence of their being any victims that require protection.
Within the consultation document there is an assumption of the reality of
crimes depicted which cannot be substantiated and does not seem at all
credible.
If there are in fact real victims, evidence must be provided to substantiate
this beyond reasonable doubt, prior to this argument being accepted.
With no victims to protect in the production of the material in question,
the only benefit of introducing the law is to protect some people’s morality
from offence. This clearly is insufficient reason, given the possible impact
on the rights of the wider public.
11 Abhorrence
The argument is used in the consultation document that most people in the UK
today would find the material to be banned ‘abhorrent’. However, this seems
an unfair measure of the sexual interests of a minority in a liberal and
democratic society. Would most people not also declare personal abhorrence
when shown explicit videos or images depicting acts of homosexual sex, i.e.
male anal penetration? The answer seems self-evident. Yet there is no
credible suggestion within a liberal democracy that there should be in place
a ban on homosexual pornography on the basis of public disapproval.
Sexuality is not based on the consent of the majority of a populace.
Hence the argument of abhorrence is a very dangerous one; one which could be
used against almost any sexual minority, if the government of the day so
desired.
The causes for any aberration from the purely reproductive form of sex are
human imagination, intellect and past experience forming impulses deep
within the individual’s psyche. It is part of the human condition. This view
is beyond dispute.
Therefore, to legislate against the possession of a depiction of sexual
aberration, to which no harm can be evidentially associated, in effect is to
outlaw depictions of an aspect of human nature of no known harm, unsavoury
to some though they may be.
12 Comparison with Child Pornography
The comparison of violent adult pornography to pornography depicting
children is invalid for several reasons.
• Evidence
With child pornography there is considerable evidence that it does
substantial harm to children depicted in it. With extreme adult pornography
there is, by admission of the authors of the consultation paper, no such
evidence.
• Consent
A child is by definition below the age of consent. Hence any sexual act upon
the child can only be illegal. An adult however is capable of giving consent
– and be it to be a party to the production of a pornographic fantasy which
depicts a non- consensual act.
• Paedophile Networks
Unlike with paedophilia there is no suggestion of illegal networks of
abusers being in existence to produce, exchange and distribute extreme adult
pornography. There is hence no necessity to detect possible owners of
depictions of violent sex in order to prevent ongoing abuses of individuals
who are in the care of abusing adults, as is the case in paedophile crime
prevention.
• Lack of Clarity
The public are well aware that any depictions of children in a pornographic
context are illegal. Any further depiction of violence in the depiction is
only a further upward gradation of the crime. The law is plain to all. Any
individual is hence perfectly clear about his committing a crime or not.
If a ban on the possession of depictions of violent adult pornography is
established, then unlike with child pornography there will be a legal adult
pornography and an illegal adult pornography. The border between legality
and illegality would be fluid. To discern between the two will be left to
subjective determination. Any error therein may thereafter lead to
prosecution.
It follows, that individuals will be prosecuted for erroneous judgement. The
simple intent to stay within the law will not suffice for an individual to
do so successfully. This in turn would leave the public completely confused.
If the legislature cannot know where precisely to draw the line in
definition, it is self-evident that the public therefore cannot perceive the
line of limitation by law.
If the law against possession of depictions of child pornography is clear,
any law against the possession of depictions of extreme adult pornography by
definition can not be.
13 Culture of Fear
The lack of clarity of this law would lead to a culture of fear among the
fetish community. Arrest and conviction might indeed seem arbitrary to those
who find themselves at the newly imposed margins of law. Willingness to
remain lawful may well not be sufficient protection to the individual from
unwittingly becoming criminal.
14 Unknown number of individuals criminalised
If the law regarding publication of adult pornography is already a prime
example of ambiguous law driven by emotive and moral instincts, it has so
far only touched upon relatively few.
With the introduction of new legislation to outlaw the possession of
materials virtually unspecified, the government may well render tens of
thousands of otherwise law-abiding citizens criminals. In any case, the
consultation provides no assessment as to how many individuals said law
would possibly criminalise.
15 Masochism & Sado-Masochism
The Consultation Paper’s authors seem to suggest that there is a line of
pain, sexual humiliation or suffering beyond which no sexual enjoyment for
any person is possible. This suggests a degree of insight into masochistic
tendencies. Are any of the authors practising masochists, or are they
writing from a position of pure presumption?
In fact, the consultation document seems to imply (by omission) that
masochism does not exist. People subjected to sexual violence are only seen
as victims, requiring protection by law.
If the government – as the public does – accepts the existence of masochism,
then the desire to exclusively outlaw its depiction is cause for concern.
i.e. the depiction of sexual violence can be interpreted as the depiction of
active delivery of such sexual violence or the passive reception of sexual
violence. The latter could be – and in many cases should be - interpreted as
a depiction of masochism.
This area therefore requires substantial clarification, else the law will be
in conflict with legislation on discrimination on grounds of sexual
orientation.
The law may in fact also require clarification regarding the existence of
sexual dominance and sadism. Given that sado-masochism is seen as a
contemporary lifestyle choice, the banning of its depiction requires precise
justification.
The argument for a curbing of the rights of such a considerable sexual
minority within UK society would have to be one of a substantial benefit to
society as a whole. The desire to remove moral offence to another minority
appears grossly insufficient.
16 Reduction of demand
The authors of the Consultation Document omit to explain how a reduction of
demand is achieved by the introduction of legislation. The creation of a new
offence creates a deterrent, but not a reduction of demand. The definition
of new crimes does not in itself change a society or its values. Virtue
cannot be legislated. Nor can public morality.
If a sexual act is a product of sexual impulses it is a part of the human
condition and therefore demand for it cannot be reduced by means of
legislation. The arguments sadly are similar to such once used to outlaw
homosexuality.
The reduction of supply would be in the power of the state, if it chose to
order the denial of access within the UK to prescribed websites.
The onus would then rest with the state to hinder access, not on the
individual to assess the possible legality of material within access.
It would also lay accountability with the state, having to justify its
censorial decisions.
Yet a denial of supply does not create a reduction of demand. To claim this
is to fundamentally misunderstand the mechanisms of supply and demand.
e.g. The failure of the Irish crops in 1846 created a reduction in supply,
but the subsequent Irish Potato Famine suggests that demand was not reduced,
other than by death itself.
17 Asphyxiation Fetish is not Torture
Paragraph five of the consultation’s introduction refers to internet sites
where women have bags placed over their heads. Obviously no pictures are
provided with the consultation and so it is hard to identify what precisely
is meant. However, it is most likely related to the asphyxiation fetish and
would infer a heightening of the sexual arousal of the person involved. To
see this act listed as a form of torture seems possibly grossly misleading.
18 Accidental Access of Pornography by Minors
The mention of a survey of minors having had accidental access to
pornography seems to be of little value in a consultation paper which deals
with the proposed ban of adult possession of pornography. It is true that if
no person ever possessed pornography children could not accidentally access
it. The same could be said about accidents involving children drinking
detergents, or underage driving. To propose a ban of adult possession of
detergents or automobiles would hardly seem sound thinking.
It is true that children need to be protected as well as reasonably
possible, but this cannot be done to the exclusion of the human rights of
the adult population. To deny adult rights on the basis of children possibly
straying is to argue for a tyranny of child protection.
In effect it is to argue that all adults be treated as children in case a
child accidentally enters the adult domain.
19 Justification
The consultation document poses the question (re: paragraph 39) if people
believe there is any justification for the possession of materials of
extreme pornography. How can any individual justify his or her sexual
desires and fantasies? Should any individual have to be answerable for his
or her sexual interests? Should any justification be necessary for material
that causes no proven harm?
Is the onus not on the authors to provide justification and explanation of
why possession should be banned? Freedom is hard to justify. Human rights
are always hard to justify. The demagogue’s work in suggesting their
reduction or abolition is always much easier.
If the people of the UK would hand over their rights doubtlessly they could
in exchange be protected from a great many dangers.
To further illustrate this point I would ask if the authors could justify
homosexuality.
I dare say it needs no justification. Its prohibition was lifted as the ban
was devoid of justification. Yet could one argue in its favour? How can one
justify it? Does it serve a purpose? Aren’t there ancient moral scriptures
prohibiting it? Does its existence offend some people? In fact no activity
that as such is not productive or essential to life can be justified. How
does one justify any form of sport? Television? Gardening? Chess?
Rights and freedoms by their very nature do not have to be justified. The
denial of rights, however, does indeed require justification.
20 Freedom of Expression
Freedom of expression, or in this particular case the passive form of
freedom of sexual expression, is a basic right. The state in a liberal
democracy needs sound reasons, which it must be able to explain and defend,
to curtail people’s basic rights; specific reasons which it must be able to
define precisely.
The consultation paper’s primary failure is to omit any reason for the
curbing of such rights, other than that of moral distaste.
It cannot be right to legislate for the reductions of the rights of all for
the protection of the moral sensitivities of some. Bad taste, of a moral
nature or otherwise, cannot credibly be rendered illegal by any state.
21 Focus of Resources
Surveillance of the internet and interaction with internet service
providers, arrest and processing of suspects through enforcement of this law
are inevitably going to require time from experts currently deployed on
policing internet paedophilia. This opens the law to the accusation of
deferring resources away from catching paedophiles.
It is highly doubtful that public support could be relied upon if the
introduction of this new legislation would be seen to reduce (even only
fractionally) the authorities’ ability to hinder and prosecute child
pornography.
Hence it is imperative to obtain a categorical assurance that no resources,
human or material, currently deployed in the policing of paedophilia will be
used in the policing of this new offence.
22 International Consensus
If, as the consultation document states in paragraph 55, other developed
countries are not interested in taking multilateral steps to accommodate a
ban on extreme adult pornography as defined in the consultation paper, it
can be argued that in fact there is an international consensus against such
actions.
23 Sexual Violence/non-sexual Violence
The proposed law is based on the influence depictions of sexual violence
might have on the individual.
It suggests that sexual violence possesses the ability to influence adult
individuals, whereas other violence does not.
The law’s intention is only to ban the possession of pornography depicting
sexual violence, but not any depictions of violence for mainstream
entertainment purposes. This suggests a specific need to protect the public
from depictions of sexual violence, without the need for protection from
depictions of other violence.
As no evidence exists to indicate such a difference there must be a degree
of compatibility between rules and regulations governing depictions of
non-sexual violence and a law restricting depictions of sexual violence. To
allow the graphic depiction of murder, mutilation or torture, yet to
prosecute the possession of depiction of sado-masochistic flagellation seems
disproportionate.
As there is no proposal to outlaw any particular depictions of fictional
violence, it therefore stands to reason that, unless a specific difference
in sexual violence’s influence over individuals can be proven, sexual
violence should be treated the same as non-sexual violence.
The above reasons also apply to the argument that children may gain access
to such material.
24 Depictions of Real Crime
The argument in paragraphs 3 and 34 that some violent pornography may in
fact depict real illegal acts is self-evidently a fallacy. i.e. rape,
kidnapping and assault are illegal in all known nations. The idea of a
criminal documenting his own crime and publishing the evidence in
provocation of his own country’s law can readily be discounted. If not, then
only under the provision of absolutely irrefutable evidence.
25 Murder linked to Material
The connection drawn between the possession of depictions of violent
pornography and the murder of a young woman in paragraph 10 of the
introduction paper is emotive, highly dubious and should have no part in any
government consultation.
It is reminiscent of accusations against Oliver Stone in the United States
of complicity to murder due to scenes of his films allegedly leading to
copycat killings.
The existence of fictional material cannot be held responsible for the
actions of individuals, as this discounts the notion of free will.
26 Access of Material by Children
No substance or material accessible to adults can ever be successfully kept
completely from children. This is for example the effect with cigarettes and
alcohol.
With these substances, however, no complete prohibition for the protection
of children has ever been proposed. It is assumed that, though some proven
damage is done to children, it is unreasonable to suggest a complete denial
to the adult population on that basis alone. Instead the law concentrates on
deterring anyone from knowingly providing children with materials or
substances they are not supposed to possess.
The case for extreme pornography to be made an exception to this general
rule does not seem to have been made. An argument needs to be provided why
it is acceptable for society to bear the risk of minors illegally gaining
access to cigarettes, alcohol, knives, regular pornography, depictions of
extreme violence – but not to depictions of extreme pornography. Once again
the question is raised, why a line is being drawn to exclude specific
material, for which no specific evidence of harm exists.
27 Prohibited Materials
A summarised list of prohibited materials is a fairly short one: lethal
weapons, narcotics, explosives, radioactive material and child pornography.
All items are banned due to the evidence of their doing harm or posing a
clear and present danger. All these items are also clearly discernable by
the public as being what they are. This law now suggests adding
extreme/violent pornography to the list. However, there is no any evidence
of harm, nor is the material clearly discernable by the public.
To consider extreme adult pornography of the same potency as the other
prohibited materials surely would seem unreasonable to most.
28 Adults are not Children
Children are prohibited by law from possessing certain materials and
substances; alcohol, cigarettes, pornography. To now prohibit adults from
possessing a type of pornography for which there is no evidence of harm, but
for their moral good, suggests a paternal state denying its adult population
its rights of majority, treating them as minors to be protected from
unsavoury influence. Adults are not minors. They should not be treated as
such by the state, but should be left to make their own choices; the latter
being the mark of being adult and being free.
Possible Amendments and Suggestions
Although the author of this paper categorically objects to the proposed law,
he presents several points for consideration in any drafting of such
legislation.
29 Fetishes
The law would ideally specify which fetishes it excludes from prosecution.
Given the wide spread of fetishes that could by some be defined as violent
or extreme in nature throughout British society it is of utmost importance
that the law avoids the creation of a culture of fear within these fetish
communities. Without such specific clarification the law runs the danger of
criminalising tens of thousands of otherwise law-abiding people.
To illustrate this point a simple visit to a variety of shops on the UK high
street in which a wide selection of restraints, crops, floggers and paddles
are readily available will suffice.
However, assuming that the government is not seeking to act against the
large fetish communities within the UK, it may be possible to specify that
depictions that fall into the framework of semi-ritualised fetishism are
exempt from this law. Most sexual fetishism relevant to this law,
independent of severity, is discernable by the informed from, for example,
simple depictions of rape or sexual assault. Although to the uninitiated
these lines may seem blurred or non-existent.
This may help to differentiate depictions of sado-masochistic practices,
which are usually ritualised to some degree, from depictions of violent acts
such as rapes.
30 Gender Parity
The law must present complete gender parity. Any male sexual violence
depicted against women must be outlawed with the same limitations as female
sexual violence performed against men. The same must apply for sexual
violence enacted by same sex partners/assailants. Any deviation from this
would lead the law to clash with equal rights and sex discrimination
legislation.
The fact that greater violence is shown towards males in pornographic
depictions of violent nature only further questions the viability of the law
as a whole.
31 Multiplicity of purpose creates ambiguity
If it is the government’s wish to ban the possession of a very few types of
depictions, then it might be advisable for the introduction of several
subsections or several laws; a subsection or law for each such type of
depiction. Thereby the government could avoid having to resort to an
umbrella law which by its nature requires an overarching – ambiguous –
definition.
32 Definition of Aim and Sunset Clause
A specific definition of what the law is seeking to achieve is required. Not
only would this enable courts to act ‘in the spirit of the law’, but also it
would allow parliament to review the effectiveness of the law after the
passage of time. For, given the civil rights concerns related to this new
law, it would be advisable to include a ‘sunset clause’ within the act,
requiring it to be renewed after a trial period of one to three years, to
allow for a re-evaluation of the arguments once experience of the
application of the law has been acquired.
33 Ambiguity by Design?
Perhaps it is the intention by some involved in the drawing up of the
consultation document to create confusion surrounding the boundaries of
legal and illegal adult pornography. Possibly seeking to deter people from
possessing legal pornography, they could have intentionally created a
scenario within which it would be almost impossible - and legally precarious
- for people to decide to view any pornography online. But such ambiguity by
design cannot be the standard of British law.
34 Clear Demarcation
The differentiation between the depiction of a violent/cruel act for sexual
gratification (violent pornography) instead of entertainment (violent
movies) inevitably would be a matter of subjective judgement - and hence bad
law – unless absolutely clear demarcations can be defined.
Individuals, not merely the jurisprudence, must be absolutely clear on what
content is illegal. The common law test would therefore not suffice, as
individuals cannot be expected on a daily basis to judge with equal
competence as a court in session when deliberating on the nature of
materials they are about to view on the internet. The law instead must
specify precise activities which must be beyond dispute or ambiguity. Else
the public, who would be expected to judge the legality of materials, would
be left in confusion. (see also ECHR, article 7)
35 Sexual Violence/Violence in Sexual Context
The only definitions provided by the consultation document for extreme
pornography are:
• intercourse or oral sex with an animal
• sexual interference with a human corpse
• serious violence in a sexual context
• serious sexual violence
It is the latter two points which offer very little clarity of legal intent.
No clear examples are presented. Rape suggests itself as being ‘serious
sexual violence’, yet as ‘rape’ was not the chosen denominator, ‘serious
sexual violence’ seems to suggest considerably more and is open to
interpretation. Meanwhile ‘serious violence in a sexual context’ appears
wildly ambiguous. Given that ‘serious sexual violence’ is listed separately
one is lead to believe that ‘serious violence in a sexual context’ excludes
‘serious sexual violence’. As a basis for law this differentiation seems
confusing and very unclear. Is not something set ‘in a sexual context’ by
definition ‘sexual’? Is a rape not both ‘violence in a sexual context’ as
well as ‘sexual violence’?
After all, the definition used in the consultation document for pornography
suggests that anything designed to sexually arouse is pornographic.
Apparently there is no differentiation between ‘context of sexual arousal’
or ‘sexual arousal’ in the definition on pornography. Why therefore is there
a reason to draw this distinction in sexual violence?
Hence it is fair to ask for clarification on this matter. It is unacceptable
that the definitions of subjects to be banned are not sufficiently defined
as to be understandable.
In short: what violent sexual activities or violent activities in a sexual
context do the authors wish to see subject to the ban?
36 Listing of banned sites and Restriction of Access
As law does not allow ignorance as defence then individuals must be enabled
to acquire knowledge of what constitutes legal or illegal possession of
adult pornography.
It should be a requirement in the law that the Home Office list the
prohibited sites on their website, together with summaries of the type of
content hosted by these sites, so allowing the public to ascertain illegal
content as well as the degree of government censorship.
Preferably, the prescribed sites should be made impossible to access, hence
not allowing for entrapment by permitting continued access in order to let
people fall foul of the law.
37 Entrapment
Unlike with paedophilia, where internet based snaring operations (e.g.
operation ore) or monitoring of known sources is used to track down
paedophile interest, it would be inadvisable to undertake the same with
extreme adult pornography, if its possession were outlawed.
With paedophilia there is the need to protect children from any continuation
of abuse by abusers supplying paedophile networks with material.
With extreme adult pornography such need for intervention to protect ongoing
abuse is (until evidence therefore can be provided) not the case. Free of
any protective motives, the allowance of continued access to known sources
of illegal material for purposes of monitoring and reporting would be deemed
to be entrapment, particularly as most visitors of said sites would assume
that continued access meant government approval of the legality of the
site’s material.
It is therefore hoped that the obligation upon UK internet service providers
to cooperate with the authorities, mentioned in the consultation document,
would be to restrict access to targeted websites, instead of monitoring of
traffic to known sources and reporting access thereof to the authorities.
Further Considerations
38 The Internet Watch Foundation
If the Internet Watch Foundation is to be given a quasi-governmental role in
law enforcement on the internet it is fair to ask who the people behind this
body are, whom it represents and to whom it is accountable. What
justification for their selection for a cooperative role is there, other
than the Internet Watch Foundation already being in existence? Has this body
got a record of any material significance which can be verified by an
independent source?
The consultation document provides no such information. If a role is to be
given to the Internet Watch Foundation in the enforcement of this law, then
a framework must be established by which this body is answerable to the
public for its actions and information must be provided regarding a
virtually unknown body to justify their inclusion in any government policy.
39 Operation Ore
Operation Ore has since been substantially discredited. I believe at least
one suicide of an innocently accused has directly been linked to operation
ore. Revelations regarding the methodology of the investigation and
erroneous intelligence supplied by the American sources have only further
undermined the operation’s credibility.
Reports on such failings by Operation Ore were to be found in the national
media, including the BBC.
Any government suggestion that Operation Ore was a success would hence be
highly misleading, particularly in the context of this consultation.
40 Questions regarding the intended Breadth of Application
Would the law only apply to the pictorial depiction of sexual violence and
other extreme acts, or also to the description within the written word?
Would the ban also be applicable to pornographic texts of sexually extreme
nature?
Would comic book style drawn depictions of sexually extreme acts be subject
to the ban?
It seems self-evident that a ban on the written word would be much harder to
obtain, yet it would open the law up to the accusation of inconsistency if
it suggested that a pictorial depiction might deprave whereas a written
description of the same pornographic event could not.
Comments
Perhaps the government should consider if it is appropriate in the 21st
century to be seeking to ban the possession of materials for which it cannot
actually provide a satisfactory definition, due to a belief in a societal
ill and for which there is no evidence of ill effect.
Post-modern Britain is a multiethnic and multicultural society which is
fragmented into many different lifestyles. To discriminate against any
particular minority, that to any account is not really doing any discernible
harm seems irrational, illiberal and somewhat antiquated.
Freedom of expression, including freedom of sexual expression (except when
harm can be clearly proven, as with child pornography) must be seen as
sacrosanct in today’s societies. If recent terror threats have led
legislators to reconsider such freedom of expression it is due to a clear,
present – and substantiated – threat to society.
Is the rendering illegal of the sight of a consensually created depiction of
violent fiction justifiable, purely on the basis of it being sexual?
The fact that this consultation paper raises the very matter of public
distaste seems only to reinforce the impression that little force of reason
lies behind the desire to ban possession of ‘extreme pornography’. It is
clear that not public distaste, but evidence of harm is the foremost
consideration concerning legislation of matters pertaining to sexuality.
It may be argued that popular culture is in a cyclical period of tougher,
more violent imagery, akin to that of the 1970’s in which much tougher,
coarser imagery was part of popular culture (both in the mainstream as well
as in pornography), when compared to the 1960’s or 80’s. To try to oppose
such cyclical changes only within pornography seems strangely selective.
At a time when young children are reciting the lyrics of gangster rappers in
school play grounds featuring ‘cop killers’, ‘bitches’ and ‘hos’ and are
machine gunning down innumerable foes on their games consoles at home it
would indeed seem a misguided act to prohibit what adults can view on the
internet in the privacy of their own homes on the basis of it being too
violent, or of bad taste.
The internet is by its very nature fragmented and diverse. This of course
also leads to a diversity of extremes. Racial hatred, xenophobia, religious
intolerance, violence as well as violent and other extreme pornography are
all to be found. Yet no suggestions are made to outlaw the possession
depictions of acts of racial hatred, depictions reinforcing extreme
religious views or depictions of brutal violence. No. Only violent or
otherwise extreme pornography is being singled out for being ‘abhorrent to
most’. This apparent tolerance toward other forms of extreme depictions, but
insistence on action against depictions of extreme pornography seems
arbitrary, if not the product of personal bias.
At a time when pressure is on legislation of pornography to be relaxed in
view of greater tolerance in public opinion and increasing sexualisation of
popular culture, coupled with rapid advances in media technologies it
appears folly to suggest a toughening of the laws governing pornography. It
runs contrary to almost every perceivable trend and seems purely based on
the distaste felt by the some toward the sexual preferences of certain
minorities. If such a principle of legislation based on public distaste
would be suggested against any religious minorities (arranged marriages,
ritual slaughter of livestock) or any more widely recognised sexual minority
(homosexuals, transvestites, transsexuals) this proposed law would be
decried as a retrograde act of legislative vandalism.
It may be the case that the price of privacy, freedom of expression and the
right to live free from any government investigation into one’s individual
sexual interests is that of the existence of material that will offend one.
Just as we have grown used to living with the many other annoyances and
dangers of a technically advanced society, moral offence is likely to be one
we’ll have to increasingly be able to tolerate.
For, as always, viewers feeling abhorrence towards the material in question
can choose not to view it.
To ban even the act of sight of anything deemed impure or abhorrent (on the
internet sight is possession) is to seek to control the very senses of
individuals. It is not an act of government but an act of control.
To argue not for what people may or may not publish, but for what people may
in fact be allowed to see, by means of enforced self-censorship, would be a
step of unprecedented intervention into people’s sexual freedoms and
personal privacy. The law would designate each individual a policeman onto
himself, having to consider the legal ramification of everything he sees
when surfing the internet.
Pornography cannot itself affect people in a direct physical way, for a
depiction or text cannot physically interact with an individual.
If physical arousal takes place it is in fact a result of the initial
arousal of the mind. To seek to ‘reduce demand for extreme pornography’
hence is to bring legislation into the realm of individuals’ minds. More so,
it does so at the most personal level possible; the level of individual
sexuality.
It implies an intended manipulation of the currently held desires of certain
minorities among the UK population in the hope of curing them of their
supposed ills, thereby reducing demand for pornography. It seeks to change
people who are currently not deemed to be breaking any laws for the benefit
of a utopian ideal – to create a purer society, and to make them better
people.
I believe many would recognise such wishes to change and improve people for
the attainment of an ideal as not being dissimilar to the desires of some
rather unsavoury totalitarian regimes of the 20th century.
To outlaw the possession of fiction, be it in the form of imagery or
otherwise, for which there is no evidence of any harm to either an
individual or society, is the imposition of morality over reason. It is the
denial of an adult individual’s right to decide what he wishes to read or
view on the basis of moral doctrine. It is the insistence of governmental
approval of people’s sexuality.
Is it right for a government to set standards of acceptable sexual behaviour,
trying to enforce conformity by means of legislation and electronic
surveillance of the internet?
It signals a wish by government to extend its sovereignty into the realms of
sexual fantasy, seeking to monitor, regulate and censor sexual thought and
desire.
This has more than just a hint of totalitarianism about it.
The wish to ‘reduce demand for extreme pornography’ implies a wish to reduce
certain sexual fantasies within the population.
If a reduction in demand is sought, then in effect the government seeks to
deter people from fantasising about subjects it deems inappropriate. In
essence it is a claim to supremacy of the individual’s sexual domain by
means of something akin to a ‘droit du seigneur’, drawn from the power of
the state.
The internet is seen by some as a threat by its very nature, though most
governments who share such views are seen as autocratic and totalitarian.
The People’s Republic of China censors and monitors the content that its
people can access. If most of the censorship and monitoring is done in order
to curb political dissent, then it is clear that also the censorship of
sexual content is enforced. Britain, by adopting part of these Chinese
strategies for its own purposes, would be seen to be partially condoning
Chinese policy.
To adopt a position that there is ‘some good’ to be found in the policies of
a totalitarian communist state which denies its people free access to
information is most likely morally reprehensible.
Meanwhile, in the United States, a country known to have large religious
communities of considerable political force, any move toward internet
censorship has so far been resisted.
One can but wonder about the wisdom of a UK government deciding to adopt
some of the censorial tendencies of totalitarian China and rejecting the
liberal views of the democratic United States.
However distasteful the depiction of ‘extreme pornography’ is to some, maybe
to most, it can serve as the benchmark of the principle that true liberty is
always the liberty of those one disagrees with. After all, no challenge lies
within allowing views, opinions, ideas or fantasies to be written or
depicted to which there is no objection. The challenge of liberty is to
permit what is disagreeable or offensive.
To allow only what is agreeable and inoffensive is to enforce a uniform
view, a uniform morality. In other words, it is the very anathema of
liberty.
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