This response to the Home Office consultation paper on extreme pornography
is presented in eight sections, with a ninth for the reference material
obtained while researching this submission.
1. The proposals are unlawful: In contravention of Articles 2 and 8 of HRA
1998: Right to life and right to privacy.
The global experience of criminalisation of child pornography reveals two
lessons of relevance to the proposals outlined in the paper. First, that in
very many people, the desire to view images amounts to a compulsion or
addiction, such that, despite the very severe legal sanctions for
transgression, many will continue to seek such material; and secondly, when
individuals have been charged and publicly exposed, a number of individuals
have been driven to suicide.
It is an entirely foreseeable consequence of this proposed legislation that
a small number of people, who have viewed extreme material, when subjected
to criminal investigation and/or are exposed, will be driven to suicide.
Crucially, the paper indicates that some of the categories of material being
considered for criminalisation are consensual and would be permitted under
the privacy provisions of Article 8 HRA 1998.
I have today written to the European Court of Human Rights, Strasbourg to
report the proposals contained in the consultation paper and set out the
argument that the state is considering legislation which doesn't merely
contravene Article 8, it contravenes Article 2 (Right to Life) of the Human
Rights Convention (1.1 and 9.9).
2. Flawed consultation process: Demand for clarification and reissue of
consultation paper.
The proposed prohibitions concerning violent sexual material are confused
and confusing. The paper is not specific, it is not clear and leaves the
reader in doubt as to the meaning of some categories of material for which
possession will be criminalised. Given the severity of the proposed
penalties, and the potential damage to the individual which criminal
investigation and public exposure would bring, the prohibited categories
must be totally objective, without any area for interpretation. The
significant number of sado-masochistic people must be left in no doubt as to
the restrictions to be placed upon their sexuality.
The consultation should be re-drafted and re-issued so that it is clear.
Given the scale of error, particularly with regard to this and previous
Regulatory Impact Assessments, and the waste of public money, I have today
issued a letter of complaint to all members of the Public Accounts
Committee.
The paper will deter many with an interest in extreme material from
responding (denial of the right to participation in a controversial issue
which fundamentally alters the relationship of the individual with the
state).
3. Requests under the Freedom of Information Act
Three requests are made for information relating to this consultation paper.
4. Statement of aims - a better way forward
This response is hostile to the proposals contained within the consultation
paper and sets out a more reasoned and reasonable approach to the need to
protect vulnerable sex workers, whilst seeking to protect civil liberties.
5. Comments upon the four categories
Comment is made upon the four categories of material set out in the
consultation paper. The consultation paper does not differentiate between
those with a different sexuality (for example sado-masochists), those who
are mentally ill (in need of society's help and protection), and those who
seek non-consensual violent material which leads to real harm. 6.
Discrimination on grounds of sexuality
The proposals amount to discrimination against minority groups. The
enactment of HRA 1998 led to the introduction of the Sexual Offences
(Amendment) Act 2003 (9.10) which resulted in the legalisation of sex
between men over the age of 16. This was hugely controversial at the time
but established a clear precedent that human sexuality was so fundamental to
personality that criminalisation was tantamount to the denial of the rights
enshrined in Article 8 of HRA 1998. So, irrespective of whether people
participate in, or view images of adults who enjoy consensual sado-masochistic
sex, legislation which would criminalise such activities is no longer
lawful.
7. Protection of children.
The consultation paper emphasises the need to protect children from extreme
pornography, a position which all reasonable people would support. However,
the paper makes a number of spurious points in support the Home Office
proposals. It is disingenuous to suggest that viewing R18 equivalent
material is more damaging to children than watching a Sky TV porn channel
(18 certificate equivalent).
This section exposes the lack of intellectual rigour which underpins Home
Office thinking and notes that excessive censorship (Home Office policy) has
driven people to the unregulated Internet.
8. Answers and comments upon the questions posed in the consultation paper.
Brief answers are provided to those questions which can be answered.
9 References
References and further detail which supports the research undertaken and the
findings of this response to the consultation paper.
1. The proposals are unlawful: In contravention of Articles 2 and 8 of HRA
1998: Right to life and right to privacy.
1.1 The global experience of criminalisation of child pornography reveals
two lessons of relevance to the proposals outlined in the consultation
paper. First, that in very many people, the desire to view pornographic
images amounts to a compulsion or addiction, such that, despite the very
severe legal sanctions for transgression, many will continue to seek such
material; and secondly, when individuals have been charged and publicly
exposed, a number of individuals have been driven to suicide.
1.2 The experience of Commodore David White, head of the UK forces in
Gibraltar, is one very recent case which demonstrates exactly what is
involved - despite no images of child pornography having been found during
the course of the police investigation, such was his horror at the
accusations against him he committed suicide.
1.3 When under investigation, people can expect to lose their job, the
destruction of the family unit and wider family contacts, potentially losing
their friends and home. What is at stake is the near total destruction of a
person's life and, if convicted, a lengthy prison sentence removing
otherwise law abiding citizens from future significant contribution to
public life and, potentially, to any prospect of future employment.
1.4 Crucially, the consultation paper does not merely intend to criminalise
the possession of non-consensual violent pornography. It is clear that
criminalisation of possession is being considered even in circumstances
where the activities are undertaken by entirely consenting adults (see
section 2 below). It is an entirely foreseeable consequence of this proposed
legislation that a small number of people who have viewed extreme, but
consensual violent material will be driven to suicide.
1.5 I have today written to the European Court of Human Rights in Strasbourg
to report the proposals contained in the consultation paper and set out the
argument that the state is considering legislation which doesn't merely
contravene Article 8 of HRA 1998 it also contravenes Article 2 of the Human
Rights Convention. The state cannot justify exposing the fact that people
have viewed sexual material in the privacy of the home which, although
extreme, is consensual. Such exposure is tantamount to the denial of the
right to life in those, entirely foreseeable instances, where it can be seen
people will be driven to suicide. (The case which demonstrates that extreme
consensual sex cannot generally be criminalised is set out in Section 6
below.)
1.6 I will also be writing to the wider civil liberties organisations within
the EU and seeking the support of MEPs in an attempt to stop the UK
government before the first, of what will be many suicides occurs.
1.7 Of course, the state has a duty to investigate crime, even if that
causes profound embarrassment to those under investigation. What is unique,
however, to this consultation paper is a proposal to introduce new
legislation, which will criminalise the possession of previously legally
held material which is consensual. While the precise implications of the
consultation paper are extremely unclear (see 2 below) it is apparent that
an attempt will be made to criminalise the possession of material which
depict activities which cannot be deemed to be criminal (see section 6
below).
2. Flawed consultation process: Demand for clarification and reissue of
consultation paper.
2.1 The proposed prohibitions concerning violent sexual material are
confused and confusing. The paper is not specific, it is not clear and
leaves the reader in doubt as to the meaning of some categories of material
for which possession will be criminalised. Given the severity of the
proposed penalties, and the potential damage to the individual which
criminal investigation and public exposure would bring, the prohibited
categories must be totally objective, without any area for interpretation.
The significant number of sado-masochistic people within the UK must be left
in no doubt as to the restrictions to be placed upon their sexuality.
2.2 The consultation should be re-drafted and re-issued so that it is clear.
Given the scale of error, particularly with regard to this and previous
Regulatory Impact Assessments, and the waste of public money, I have today
issued a letter of complaint to all members of the Public Accounts
Committee.
2.3 The consultation process is flawed on two grounds: -
A. Misleading the public: The language is so confused that the reader cannot
tell exactly what constitutes sexual violence and serious sexual violence.
2.4 On page 1 you say "By extreme we mean material which is violent and
abusive, featuring activities which are illegal in themselves, and where, in
some cases participants may have been the victims of criminal offences."
2.5 On pages 2 and 11 you say "The desire to protect those who participate …
who may be the victim of crime in the making of the material, whether or not
they notionally or genuinely consent to take part".
2.6 On page 5 Background: paragraph 5: you cite material which implies you
are specifically concerned to address material which involves murder or
violent rape.
2.7 On page 11 (38) you say "The intention is also only to cover the
depiction of actual images or realistic depictions of the activities listed
(not, for example, text or cartoons). By realistic depiction we intend to
capture those scenes which appear to be real and convincing but which may be
acted".
2.8 On page 12 (40) the definitions appear to be made clearer "sexual
violence will involve or appear to involve serious bodily harm in a context
or setting which is sexual, for example images of suffocation or hanging
with a sexual reference in the way the scenes are presented" and "serious
sexual violence will involve or appear to involve serious bodily harm where
the violence is sexual". At 41 you continue "By serious bodily harm we mean
violence in respect of which a prosecution of grievous bodily harm could be
brought…".
2.9 Yet on page 6 and page 21 (Partial RIA) you say "The material under
consideration is of an extreme nature, it does not depict consensual sexual
activity, nor even the milder forms of bondage and humiliation which is
available in legal pornographic material. It depicts suffering, pain,
torture and degradation of a kind which we believe most people would find
abhorrent."
2.10 So, the reader will understandably be confused when considering how the
vast majority of BDSM (Bondage, domination, sado-masochism) material
available on the Internet, and elsewhere, is to be classified. Those of us
who argue vehemently for civil rights, respect for privacy (citing the Human
Rights Act 1998: Article 8: private life) and the rights of consenting
adults to enjoy their sexuality, will be confused by your proposals.
2.11 There is a vast quantity of material available on the Internet which
depicts slapping, whipping, caning, spanking, the use of hot wax,
acupuncture needles, fisting, etc., none of which constitute "grievous
bodily harm" (GBH). "Principles of Criminal Law" Oxford University Press,
defines GBH as "injuries resulting in permanent disability or loss of
sensory function, non-minor permanent visible disfigurement, broken or
displaced limbs or bones, injuries which cause substantial loss of blood,
and injuries which result in lengthy treatment or incapacity".
2.12 What is abundantly clear is that the BDSM enthusiasts, and professional
models, who participate in the superficial non-permanent levels of harm,
invariably subjected to bondage, are entirely consenting. It is common now
for Internet depictions of sado-masochism to also show a subsequent picture
of those involved in happy and friendly communion so as to emphasis the
consensual nature of the scenes depicted. Indeed, with the vast majority of
BDSM material, it's inconceivable that the participants are anything but
consensual. Yet their activities most certainly involve some level of
"pain", invariably an element of "degradation" and some degree of
"suffering". But, while the term "torture" is often used to frighten (a
common BDSM theme used to invoke fear and arousal amongst participants) the
vast majority of Internet based BDSM material does not extend into the
legally defined realm of "GBH".
2.13 This is a fundamental issue for those inclined to object to your
proposals. The reader sees that you want to criminalise those who posses
material which depicts "suffering, pain, torture and degradation" but that
you imply you are not considering suffering which falls below the "GBH"
threshold.
2.14 This consultation is a nonsense. How can people know what you mean?
What do you mean? How can you reasonably expect people to respond in the
face of such confusion and apparent contradiction?
2.15 If you propose to criminalise the material in which the "mainstream"
within the BDSM community participates, intelligent liberal people will
oppose your proposals. But, if your intention is to criminalise the
possession of material which depicts extremely realistic images of murder,
mutilation and the "real time" rape mentioned, the approach of many
respondents will be different.
2.16 That said, "mutilation" and "rape" are both open to interpretation.
Does mutilation include branding? If it does you will need to take legal
advice, because there is a very specific and clear legal precedent which
shows that this does not constitute a criminal offence where the branded
person is a consensual masochist: -
Case-law (9.1 below) In R. v. Wilson ([1996] 3 Weekly Law Reports, at 125),
where a man had been convicted of assault occasioning actual bodily harm for
having branded his initials with a hot knife on his wife's buttocks with her
consent, the Court of Appeal, Criminal Division, allowed the appeal. (In
this instance Mrs Wilson not only consented to that which the appellant did,
she instigated it and it was determined that there was no aggressive intent
on the part of the appellant.)
2.17 So, if the act of branding was not in itself illegal, it's
inconceivable that viewing or possessing images of branding will not be held
to be illegal if brought to trial. An, exemption to this, however, may be if
real images gave strong grounds to suspect that the branding was
non-consensual - and constituted a real criminal assault. Another area of
"mutilation" which is not considered to be illegal involves extensive
genital piercing. Again, the reader of the consultation paper will be in
some doubt as to whether images of genital piercing are to be criminalised
or not. If the act of piercing is not illegal, then any legislation you
prepare to criminalise possession must surely be found unlawful before trail
or upon appeal. You will not be likely to secure a conviction, and any
conviction would most certainly be overturned upon appeal.
2.18 Extreme violence against women has also been portrayed in the
mainstream cinema. Most controversially realistic depictions of sexualised
murder appeared within the 18 certificate movie "Cannibal Holocaust". This
film was created using a documentary or "real time" style and included a
scene where a female victim had been killed and impaled naked on a spit.
From what appears to be proposed in the consultation document, everyone in
the nation who has a copy of a legally sanctioned 18 certificate film will
be liable to a prison sentence of up to three years!
Rape
2.19 Rape is a fundamental theme in human fantasy, BDSM role play and an
enormous amount of explicit material. There is significant research which
demonstrates that forced sex is one of most popular female fantasies. (See
9.2 below). But the attitude of the public towards explicit material will be
fundamentally different between a scene which clearly involves fantasy role
play in a dungeon where a person is tied up, subjected to flagellation and
plays the part of a person forced into sex, compared with a scene which
shows a person attacked on the street, punched and kicked, bundled into
bushes and raped in such a way that it genuinely appears to be a real
assault. The mainstream cinema has depicted scenes of the former category
("Belle de Jour", "The Story of O", etc.) for many years, and huge
quantities of Internet based material cater for this extremely common and
apparently "normal" taste (it may be unpalatable, but since its such a
common fantasy it has to be described as "normal").
2.20 At references 9.2 below a number of references are quoted in support of
the view that masochistic fantasies amongst men and, particularly, women are
extremely common: -
· Nancy Friday: "My Secret Garden" and "Women on Top" provide a wealth of
evidence. · The BBC website "The power of sexual fantasy" claims that for
women submissive sex is the fifth most popular female fantasy. · The Kinsey
Institute again provides a huge amount of evidence on the topic · Masters,
Johnson & Kolodny (P348) "….that rape fantasies occur to about 24% of men
and 36% of women" (Knox, 1984, p. 283). · Doskoch, 1995: "Over 10% of women
report that being forced to have sex is their favorite sexual fantasy". ·
Shere Hite's "The Hite Report": provides more evidence on the popularity of
such themes. · You-Gov poll on sexual fantasies in the UK sample. · Women's
magazines like "Cosmopolitan" and "Company" report and offer advice on BDSM
sex and in the last year the London free daily newspaper "Metro" has offered
2 full page articles on enjoying BDSM sex and those who participate.
2.21 But where exactly is the proposed dividing line in the consultation
paper on the depiction of rape? It is not clear if couples performing role
play in the former category, who retain images of their private sex
sessions, will be subjected to imprisonment of up to 3 years or whether it
is solely those in an extremely tightly defined latter category, where the
viewer is specifically being led to believe this is a real rape. Crucially
so much material falls into the dozens of shades of category between these
areas.
2.22 It is important to remember the diversity of human sexuality. With 30
or 40 % of women enjoying rape/masochistic fantasies it is perfectly
reasonable to suggest that, amongst the 3 billion women on this planet, more
than a few hundred will want to act out their fantasies, some within the
pornography industry. Thousands of women reach a point in their lives when
they want to act out their fantasies. What is clear from those lesbian and
straight women who attend BDSM clubs is that some decide that they might as
well be paid for doing what they enjoy and appear in carefully choreographed
S&M material. Both men and women who enjoy violent sexual behaviour are now
appearing in carefully scripted material in which everything that happens is
carefully agreed beforehand. It may look rough and nasty, but that is what
some people enjoy.
2.23 The consultation paper is not absolutely clear on this point and it
needs to be. Because, there are very many people indeed who enjoy rough
looking sex, that may appear to be akin to a rape scenario, but which is
entirely consensual. If the Home Office intends to criminalise the
possession of such material, before any legislation can be proven to be
unlawful and revoked (incompatibility with Article 8 and 14, and possibly
Article 10), very many lives will have been destroyed.
Bondage
2.24 The consultation paper's comments on bondage add to the confusion.
Given that most couples practice bondage at some point in their sex lives,
the public response will depend on what is actually intended. On pages 6 and
21 the paper indicates some material is not being considered: - "nor even
the milder forms of bondage and humiliation which is available in legal
pornographic material". It is only stronger material: - "It depicts
suffering, pain, torture and degradation of a kind which we believe most
people would find abhorrent".
2.25 What is to be defined as "mild bondage" and what, by implication, will
be defined as "extreme bondage". What of material which has appeared on
television programmes which depicts huge quantities of rope, in intricate
precision, which digs into the flesh, yet leaves no permanent marking? There
are Internet sites out there which specialise in "Japanese Bondage" which
many will define as "extreme bondage". How do these proposals suggest the
following material be handled: - that which very many people will describe
as "extreme bondage", which involves the infliction of "pain", because of
the tightness of the rope, and which they feel leaves the submissive
participant in a pose which the more puritanical will define as "degrading",
yet in no way threatens life or health?
2.26 The paper, at page 12, paragraph 40, refers to suffocation and hanging.
Presumably that is meant to entail a depiction of a person being strangled
(hung by the neck until dead). But, is that what is intended? The paper is
not absolutely specific.
2.27 To produce a consultation paper which is so poorly explained, leaves so
much in doubt, yet literally carries a death sentence for dozens of UK
citizens (see section 1 above below) is unprofessional and unforgivable.
Government consultation must be: -
· Specific · Clear · Leave the reader in no doubt as to the meaning ·
Inclusive (to secure the greatest degree of participation possible on
controversial issues)
2.28 This paper does not achieve any of those objectives. It is deeply
troubling that the Home office intends to leave people in considerable doubt
as to whether their sexual preferences are or are not to be criminalised,
and whether their private activities are to be subjected to criminal
investigation.
B. Denial of the right to participation in the consultation process.
2.29 The paper will deter many with an interest in extreme material from
responding because of fear that personal details will be recorded and they
will be subjected to harassment at an early date. This is tantamount to the
denial of the right to participation in a controversial issue which
fundamentally alters the relationship of the individual with the state.
2.30 Had the Home Office wanted to encourage involvement, a sensible initial
step would have been to set out the issues, the scale of the threat, some
case histories of people subjected to abuse, and seek ideas on how best to
protect sex workers. Thoughts on the motivation behind those who view
material relating to bestiality and necrophilia could also have been sought.
Instead, the paper is couched in the intolerant terms of those who hate
sexual minorities - for example: those who hate gays and lesbians.
Partial Regulatory Impact Assessment (RIA) & waste of public money.
2.31 Explicit sexual material has been problematic for censors for decades.
Defining categories with which the puritanical authoritarian element can be
satisfied has always been difficult. But this consultation paper places the
public at the extreme end of confusion. When attempting to respond, many
cannot be sure whether their activities are to be criminalised or not. They
cannot tell whose life the state will destroy and whose will be spared. What
precisely is the distinction between a forced sex fantasy and a "real time"
rape video? This has massive implications for the costs associated with
introduction and the prosecution of any new legislation.
2.32 In the light of the poor performance of the Home Office, with regard to
this and former consultations and the associated RIAs, I have taken the
exceptional step of drawing this to the attention of every member of the
Public Accounts Committee. I have asked that they set to one side the
controversial nature of the material at hand and merely look into the way
the Home Office has constructed this document, the waste of public money it
represents and the shambles which appears to lie behind the partial RIA.
2.33 I have had cause to complain before about Home Office material. In the
RIA attached to the Rt Hon Jack Straw's "plain bonkers" proposal that
everyone should be required to keep their explicit videos in a locked
cabinet, the Home Office claimed there was no financial implication to the
proposed levels of UK censorship and the restrictions outlined. However, I
was able to show a cost of £260 million! In this paper (partial RIA) you
suggest there will be very little cost, yet I must challenge this.
2.34 It's time the Home Office process for completing consultation documents
and the RIA was subjected to some external scrutiny. Irrespective of the
personal stance taken by PAC members relating to the material in question,
they cannot allow the Home Office to squander public money on confusing,
inaccurate public consultation and produce such misleading RIAs.
2.35 In sections 5 and 6 the case for challenging the proposed legislation
is set out in greater detail. The potential for very significant costs,
largely borne by the state have clearly not been factored into the proposed
legislation. Neither is there any mention of the costs to be borne by any
employer who sacks a member of staff when charged or convicted under the
proposed new legislation. Just how many employers, including the Civil
Service, have undertaken not to discriminate against people on the grounds
of their sexuality? Where has the Home Office factored into the partial RIA
the entirely new cost considerations associated with this aspect?
2.36 Crucially, the attitudes which underpin the proposed legislation
demonstrate to pornographic film makers that the UK is most certainly not a
place where they can do business. The inconsistencies contained in the
consultation document will leave producers in doubt as to whether they run
the risk that rough sex, pinning someone down during intercourse, slapping
the buttocks, might land them and their staff with 3 years in prison!
2.37 The PAC members must deal with this nonsense and will be requested to
draft in professional assistance to the Home Office.
3. Freedom of Information Requests.
3.1 Request for information which demonstrates that a request has been
issued to a foreign government to investigate an alleged sexual assault or
rape.
3.2 An attempt has been made to find on the Internet an example of a real
time rape video which appears to be a genuine rape. It may be that Home
Office staff have devoted some time to this and have found some material. No
money was spent on pornographic sites during the research undertaken in
support of this response, which may explain why the writer has been unable
to find a convincing example of a real rape. There is therefore some concern
in case the Home Office has claimed material exists which doesn't (for some
years an "urban myth" was in circulation of the existence of "snuff
videos").
3.3 Given that the consultation paper suggests that virtually all such sites
are based abroad, it seems reasonable to expect that, if such a site had
been found, and the Home Office had reasonable grounds to suspect that a
real rape had occurred, the Home Office would have asked a foreign
government to investigate. Please would you let me have a copy of any letter
to a foreign government which demonstrates that you have asked it to
investigate an allegation of rape?
3.4 Request for any legal advice which confirms that the possession of
consensual sado-masochistic violent sex can successfully be prosecuted and
that Article 8 does not apply.
3.5 It seems extremely unlikely that violent sado-masochistic sex, which is
consensual, and which is not life threatening, can be deemed to be criminal
(See: 9.1, 9.3 & 9.4 below: Sexual Offences (Amendment) Act 2000:
definition). Furthermore, it seems unlikely that the possession of real
images depicting such acts could also be criminalised - because of the
provisions of Article 8 of the Convention. I would therefore like to see any
legal advice you have received with regard to this specific category of
material.
3.6 Request for sight of any research which demonstrates that children may
be more harmed by access to explicit Internet based material, that is:
material more explicit than that which is permissible within the R18
category (for example "fisting").
3.7 Would you please direct me to or show me any research you have which
demonstrates that children may be more harmed by viewing extreme material on
the Internet than by seeing R18 material? Or harmed at all by any such
material? (There is a belief that if any harm does occur it may be due to
expressions of adult assumed abhorrence.)
3.8 For your convenience I also provide notice of my intention to make a
further FoI request in 6 months time (see paragraph 5.18 below).
4. Statement of aims - a better way forward
4.1 This response is hostile to the proposals contained within the
consultation paper principally because of the scale of potential to destroy
the lives of consenting adults to pursue and enjoy their sexuality. In this
section an attempt is made to set out a more reasoned and reasonable
approach to the need to protect the individual from violent assault.
4.2 The UK position is typified by a fear of legitimising sexual conduct of
which the state disapproves. The Home Office has a long history of
supporting the more puritanical and repressive of instincts, but which
actually serve to run counter to the stated objective - the protection of
the individual.
4.3 The Home Office consultation paper is said to have been provoked by the
appalling murder of Jane Longhurst by a man addicted to violent net porn.
The statement of addiction being the cause came from the criminal and could
well have been a belated effort to obtain some degree of sympathy. While all
reasonable people would support measures which protect people from assault
and murder, the consultation paper demonstrates that there is no unequivocal
evidence to show a link between violent pornography and actual assault and
murder. Indeed, it could be the case that access to violent pornography
provides an outlet to people that would otherwise be prone to acts of sexual
violence.
4.4 There is also real concern that paid models who agree to perform in
violent sexual material may be harmed to a far greater extent than that to
which they had originally agreed. While most would support action to protect
vulnerable sex workers, this paper's proposals will do nothing to achieve
that aim. We know that most sites which provide violent sexual material are
based outside the UK but most other EU states will not adopt Home Office
proposals if they are incompatible with the Human Rights Convention.
4.5 There is currently another argument being waged between the pragmatic,
humanitarian, liberal side of society against those prone to a more
puritanical or bigoted stance - this concerns the trafficking of women into
sexual slavery in western countries. The arguments for a more progressive
liberal approach to that issue have implications for finding a better
approach to regulating the desire for people to view and enjoy
sado-masochistic and other extreme fantasies.
The unionisation of sex workers: legalisation of the sex trade and brothels
4.6 There is a far better way to tackle the extremes of human behaviour and
crucial to this is the unionisation of sex workers, the legalisation of the
sex trade and legalisation of brothels. What is needed is root and branch
reform within the UK, together with work at an international level to ensure
that all sex workers are registered with a trade union without financial
cost. The union membership should be conditional upon i) formal
identification, ii) sexual health (regular HIV and other STD checks) and
iii) reasonable steps to ensure that the person is acting of their free will
and is not a trafficked person.
4.7 The simple fact of the matter is that many who work in the sex trade are
vulnerable, have been exploited and subjected to violence by pimps and human
traffickers. The case to provide them with a union, free of charge, is
overwhelming. So too is the case that those who participate in the industry
must accept regulation - because the scale of coercion and violence to
prostitutes and others is so rife. There is a responsibility on both sides
of the legal fence to find a more humanitarian solution to this crisis (for
that is what it is).
4.8 This is not a definitive set of rules but sets out broadly an approach
which all EU governments could adopt. All EU Governments should: -
(Sex Industry: Prostitution)
· Require all those who work in brothels (including other specifically
defined places of work) to be union members. · License only those brothels
and other places of work where union membership is guaranteed (providing
brothels with suitable signage). · Fine those who pay for sex with non-union
prostitutes (on the spot fines). · Provide suitable arrangements for "call
girls" (those who do not work on the streets nor work from brothels).
(Sex Industry: Paid and unpaid performers)
· Require all those who appear in paid pornography to be union members. ·
Establish a "Porn Portal" within each EU language, from which pornography
providers will be able to sell their products to the public. · Require the
"Porn Portal" to be a voluntary place for pornography providers - to allow
time for pornography providers to realise the full financial potential of
the initiative. · Require all pornography publishers to retain records which
demonstrate that those who appear in products are union members. · Require
all those who want to share photographs and other images of themselves
undertaking their sexual activities, to do so within free Internet sites
within the "Porn Portal" - for example, exhibitionists, BDSM enthusiast,
etc. can share their experiences and express their sexuality but do so
without receiving payment. · Accept that the "porn portal" will be
uncensored (except with regard to child pornography) to ensure the highest
possible take-up by consumers of pornography. · Give reasonable time for EU
websites, sex trade workers and consumers to adjust and then begin the
process of closing down the websites which stay out of the "Porn Portal" ·
Require a vigorous regime of investigation into those sites which portray
potentially non-consensual material, prosecuting all those involved in
crimes against the individual.
4.9 EU Governments could proceed within such a framework in slightly
different ways, but the UK government could work quickly towards achieving
three objectives: -
i. Prosecuting the men who have sex with street prostitutes, rather than
street prostitutes themselves (helping to create an effective exit strategy
for prostitutes); ii. Preventing the human trafficking into brothels - on
the spot fines for those who use unlicensed brothels in which non-union
members work; and
iii. Ensuring that those who appear in violent pornography can be traced,
their circumstances and health ensured, and facilitating the prosecution of
any pornography providers who have committed crimes, or are accessories to
crimes against paid performers.
4.10 One further point to make is that the scale of UK censorship and heavy
handed regulation has driven the public into the unregulated realm of the
Internet, and driven pornography providers out of the UK, depriving the
exchequer and UK economy of hundreds of millions of pounds per annum. The
sheer scale of this mess stands as testimony to the abject failure of the
repressive aspects to Government policy. Had Government been willing to
allow its citizens to buy R18 material by post, and view R18 material on
encrypted subscription television channels, far fewer people would have been
driven towards the greater extremes which appear on the Internet.
4.11 Immense human suffering, particularly to those women subjected to the
violence associated with trafficking is directly attributable to successive
Home Office Ministers. The proposals outlined in the consultation paper
merely set out to perpetuate that suffering and inflict a new and appalling
level of misery upon those who are addicted to pornography.
4.12 Should the Home Office fail to demonstrate that it has given the
fullest consideration to this more liberal and humanitarian approach, this
failure will be used as evidence in the future to demonstrate that the Home
Office was more interested in the vilification of pornography consumers than
in the protection of paid models who appear in the more extreme material.
Criminal penalties.
4.13 This is an area where the state is at considerable odds with the
public. People are sick to death of those who are guilty of violent sexual
assaults getting out of prison within just 6 or 7 years and committing
further assaults. The public are desperate to be assured that extremely
violent rapists, particularly those who have assaulted more than once, are
locked up and not allowed back onto the streets. If Government had a real
interest in tackling violent assault and murder, like that committed against
Jane Longhurst, the penalties imposed by the courts for rape and murder
would be such that repeat offenders would never be freed to commit a third
offence (imprisoned until such time as age/physical health renders them
incapable of further assault).
4.14 On the other hand, to destroy the life of someone, for example, who
retains an image of sexual intercourse with an animal, is totally out of all
proportion. To send someone to prison, who may be mentally ill, for 3 years
is barbaric.
5. Comments upon the four categories
5.1 Comment is made upon the four categories of material set out in the
consultation paper. The consultation paper does not differentiate between
those with a different sexuality (for example sado-masochists), those who
are mentally ill (in need of society's help and protection), and those who
seek non-consensual material which leads to real harm.
5.2 Two of the categories mentioned appear to include material which will be
entirely consensual and non-life threatening (for example: the consenting
BDSM enthusiasts who participate in violent sex and role play that implies
rape), these activities and the possession of material which depicts the
activities cannot be criminalised because they fall within the provisions of
Article 8 HRA - which appears to assure protection from state interference
and prosecution. The other two categories, which have yet to be tackled, are
addressed firstly:-
i. Intercourse or oral sex with an animal
5.3 There are two main categories of people who view this material. Those
with a sexual desire for animals and those who enjoy the degradation and
humiliation associated with this extreme of human behaviour.
5.4 Unlike the BDSM community (straight, gay and lesbian) those who enjoy
sex with animals (for whichever of the two main motivations) are unlikely to
challenge any proposed legislation because, unlike BDSM, their sexuality
remains illegal and taboo. There may be campaign groups abroad, which
represent people with this area of sexuality, but initial research has
failed to find any in the UK. That said, when considering legislating
against this group alone the Home Office should be warned it cannot be
assured of success. It may be that the public at large have a revulsion for
those with such extremely different sexuality, but that is not to say that a
case citing Article 8 may not be successful.
5.5 Undoubtedly, those who are aroused by bestiality will not speak out
initially, because of the fear of public opprobrium. But, that is not to say
that anti-censorship groups will not tackle any proposed legislation.
Crucially, however, the scale of the proposed penalties (up to 3 years in
prison) will give the defendant no other alternative than to fight the case
all the way through the judicial process. There is the distinct possibility
that the Home Office attempt to criminalise possession of such material may
result in the weakening of the underlying legislation relating to sex with
animals.
5.6 The following scenario is the type of argument Government may face in
court when challenged under HRA 1998 by a man who possesses a picture of a
woman performing oral sex on a horse which, let's assume, he did not
purchase (no demand - supply argument applies): -
It is legal to allow the screening of Rebecca Loos relieving a pig on
mainstream television ("The Farm"), it is legal for people to appear in
pornography masturbating animals to ejaculation, it is legal to possess
drawings of people having oral sex with animals, it is legal to kill and
display an animal (slicing them into sections as Damien Hirst has done), it
is legal to inflict appalling agony upon animals in the process of slaughter
(referring to the electrification and slaughter of poultry - which remains
controversial due to the frequent failure of the equipment to stun the
animals while being stripped of feathers and killed), it is legal (with
certain restrictions) to shoot and hunt animals, even though that can result
in creatures suffering terribly, it is legal to eat animals, but, for
possession of this one picture, which suggests the animal suffered in no way
at all, the defendant is to receive a prison sentence of up to 3 years?!
Does the court seriously believe it is legal to torture animals to death
(within certain restrictions) but it is not legal to give it sexual
pleasure? Given the scale of the inconsistency surely the court cannot
uphold a conviction and sentence, in the light of the defendants sexuality
(bestiality) - taking into account the provisions of HRA 1998?
5.7 It is also extremely likely that people prone to vulgar, crude and
sometimes callous humour (the mainstream in some quarters), will also fall
foul of the proposed legislation. There have been e-mail clips circulated of
oral sex with animals which are intended to be presented as outrageous
humour to make people laugh.
5.8 Surely, it must be argued that legislating on the possession of this
type of extreme material is far more trouble than it is worth? It will lead
to very considerable legal costs, most of which will be borne by the public
purse. It will lead to confrontation with those engaged in the more
controversial fields of artistic expression, increased liberalisation, as
public attitudes change (which is not the intention of Home Office Ministers
at this time), and it will do absolutely nothing to ensure animal welfare or
protect and improve the mental state of those who seek and view pornography.
ii. Sexual interference with a human corpse
5.9 One of the most vital issues completely omitted from the consultation
paper is any notion of the vulnerability and mental state of those who view
extreme pornography. There is not one single reference in the paper to
research into the mental state of those who feel a compulsion, or an
addiction, to extreme material. Those who have a compulsion to view material
relating to the sexual interference with a human corpse (necrophilia) should
initially be viewed as victims, in need of society's help and protection.
While this argument could be applied to those with a fixation with
bestiality or sado-masochism, those within the BDSM community can point to
the fact that fantasies involving domination and violence are so commonplace
that they must be viewed as normal human thought. However, there is of
course an extreme of sado-masochistic sexuality which involves serious harm
and threat to life. Those people with such violent fantasies must be viewed
in the same way as those who have an obsession with necrophilia - they are
arguably mentally ill, and are in need of therapy, treatment and society's
protection.
5.10 It is entirely foreseeable that the mental state of those found to be
in possession of extreme material will feature in court and, no doubt, at
appeal. The proposals for a 3 year period of imprisonment for those who are
arguably in a poor mental state is callous and unworthy of a government
department charged with responsibility for the internal affairs of the
nation.
5.11 It is appropriate to remind ourselves what the Home Office says of it's
duties on the front page of its Internet site: -
"The Home Office is the government department responsible for internal
affairs in England and Wales. We work to build a safe, just and tolerant
society, to enhance opportunities for all, and to ensure the protection and
security of the public is maintained."
5.12 Despite Government's stated objective to secure "evidence based policy"
there has been no exploration within the consultation paper on the origin of
the desire to view extreme material. People can no more choose their
sexuality, than they can choose whether they will be inclined to religious
belief. We are all shaped by our genetic predispositions and life
experiences. There is insufficient time available now to provide an
explanation to the Home Office of the processes in childhood which form
sexuality, but it is most certainly the responsibility of the Home Office to
understand exactly the nature of the issue at hand before embarking upon
legislation which will ruin lives, deprive people of employment, split up
families and drive many to suicide.
5.13 Necrophilia, however, is very different from many other extremes of
sexual behaviour in that it is unlikely to ever be legalised on appeal
citing HRA legislation. The state will almost certainly be able to
demonstrate serious risks to human health associated with dead bodies, and
that any interference with a deceased person will cause profound offence to
(other) relations to the deceased. That is not to say, however, that an
appeal on grounds of sexuality might not be successful if a person were to
be prosecuted for possession of images. It may be that when forced to
appeal, because the scale of penalty is so severe, the defendant may be able
to argue successfully that possession of the pornography is an intrinsic
aspect to personality, with all the implications that implies (6.1 below).
Again, it is clear that it is not the intention of Ministers to create a
situation which may result in liberalisation of the law.
Hate crimes and the language used against minority groups
5.14 It is interesting to note the archaic language used to justify the
proposed legislation contained in the consultation paper. Indeed, the
language used by the responsible Home Office Minister, the Rt Hon Paul
Goggins MP, in the various interviews he has given, for example: The
Guardian (20 October 2005), may be used as evidence to the motivation behind
any legislation which follows from this consultation paper. In court it will
be quite easy to demonstrate that the Rt Hon Paul Goggins MP, did indeed
appear to couch his language in exactly the same terms as that used in
decades past to attack homosexuals and minority religious groups.
5.15 Just like the late Mary Whitehouse, who constantly lumped sex and
violence together, the Minister likens the mainstream BDSM community, with
paedophiles and terrorists. He demonstrates not the slightest intention to
understand the psychology of those with a different sexuality to his own,
nor any concept of the need to assess the mental state of those with extreme
sexual fantasies. People who are different are simply labelled as
"aberrant".
5.16 There is, of course, a precedent for this - the way the state tackles
the paedophiles. Governments throughout the world have criminalised the
possession of all paedophile material and demonised all those with such
desires. There is little or no consideration of the mental state of
paedophiles and the need to protect them from themselves, just as society
needs to be protected from them.
5.17 But, there are limits to which the public are willing to let the state
wage hate campaigns against minority groups, and this consultation paper
will bring the UK into that territory. Significantly, the consultation paper
proposes to bring the UK position to a point at odds with the views of more
liberal and humanitarian EU nations (for example: France, The Netherlands,
Germany, Spain and Italy). Many other nations will quite rightly want to
protect vulnerable sex workers but will also want to find ways to protect
civil liberties and treat people who are mentally ill in a humane manner.
5.18 In the light of the desire, expressed in the consultation paper, to
seek criminalisation of possession of extreme material in other nations,
work will be undertaken over the next 3 months to explain the issues to a
wider EU audience of civil liberties organisations and MEPs. An initial step
is to alert others to the intolerance which underpins the proposals in the
consultation paper and to set out a far better way forward for humanitarian
nations. (See Section 4 above.) The notion that the state should promote a
climate of intolerance, should adopt draconian measures which will clearly
destroy lives and drive some, including the mentally ill, to suicide must be
exposed for the callousness that it is.
Formal warning: advance notice of a freedom of information request
5.19 In 6 months from today a Freedom of Information request will be issued
to the Home Office to establish what research has been commissioned into the
psychological makeup and motivation behind those people with extreme sexual
fantasies and desires. (To establish what has happened in people's lives to
develop extreme coping techniques which may be more akin to "self harm".) If
the Home Office has not commissioned any research, with sufficient remit to
ensure a good depth and comprehensive appreciation of the issues involved,
this will provide strong evidence of malicious intent. Such evidence will be
made available to any person or group prosecuted as a result of any new
legislation following the broad thrust of the consultation paper. It will
demonstrate the intolerance which underpins Government thinking and
strengthen the argument for the use of Article 8: HRA for the protection of
the individual.
iii. Serious violence in a sexual context
5.20 Tackled at item 2 above. The consultation paper is so unclear as to the
precise nature of material for which possession will be criminalised that it
should be re-drafted and re-issued. The state has an overriding duty to make
legislation absolutely clear, setting out exactly what the limitations are
upon personal conduct. The consequences, and the penalties entailed are so
extreme that any legislation must not be open to interpretation. There must
be no room for subjective opinion, and the individual must know exactly what
they must do to stay within the boundaries of the law.
iv. Serious sexual violence
5.21 Tackled at item 2 above. The consultation paper is so unclear as to the
precise nature of material for which possession will be criminalised that it
should be re-drafted and re-issued. The state has an overriding duty to make
legislation absolutely clear, setting out exactly what the limitations are
upon personal conduct. The consequences, and the penalties entailed are so
extreme that any legislation must not be open to interpretation. There must
be no room for subjective opinion, and the individual must know exactly what
they must do to stay within the boundaries of the law.
6. Discrimination on grounds of sexuality
6.1 A crucial point to make is that sexual fantasy is entirely normal and
that extreme fantasies will feature in the minds of many apparently well
adjusted people. An imaginative sex life, and sexual fantasy, are invariably
seen by psychologists as a sign of good physical and mental health. For very
many people, viewing material over the Internet has become an integral part
of their sexual fantasies, an extension to and enhancement of the experience
they would have previously enjoyed. Many would argue that sexual material
available via the Internet had enriched their lives immensely and,
significantly, that viewing material (voyeurism) was an integral part of
their personality. However, we must not forget that perfectly normal people
will sometimes go a little too far, perhaps doing something out of
character, perhaps viewing something which is morally reprehensible.
Criminalisation, and the consequential destruction of a person's life, is
most certainly not the best way to handle otherwise law abiding people.
6.2 In addition to voyeurs there are also BDSM enthusiasts who will feel
that the proposals, albeit extremely unclear proposals, amount to an
unwarranted intrusion into their private lives and their privacy. They will
be able to cite the legal position established by the Sexual Offences
(Amendment) Act 2000 (9.4 and 9.10 below) to demonstrate that they too have
the right to protection under Article 8 HRA 1998. The implication of that
act is clearly that people who possess images of extreme consensual sex
cannot be criminalised, and that any prosecution would amount to
discrimination against these minority groups on the basis of their
sexuality.
6.3 While the Sexual Offences (Amendment) Act was, of course, welcomed by
those who respect civil liberties, equality of treatment and who campaigned
against discrimination, it was hugely controversial. This was in part
because opponents of the proposed new law could cite extensive negatives
associated with gay sex (see references: 9.5 below concerning the role
played by members of the gay community in the spread of HIV and ultimately
the deaths of millions of people). Despite this argument the UK Government
was compelled to amend the law relating to the age of consent for homosexual
sex and buggery - it was necessary if the UK was to conform to the
requirements of the HRA 1998. The precedent has huge implications for those
who participate in sado-masochistic sex and the proposals outlined in the
consultation paper.
6.4 A precedent had been established that, despite the fact that the
majority of people disapproved of homosexual sex at this relatively young
age, despite the fact many people found the act of homosexual sex offensive
and immoral, and despite the fact that vary many homosexuals practiced
unsafe sex, the health risks (to the individual and society at large), could
not justify criminalisation. The rights of the individual to their sexuality
were paramount. (It is important to stress that many gay and lesbian people
lead safe sex lifestyles, however, the evidence which supports the argument
concerning danger and harm is set out in paragraph 9.5 below.I.E.: Johann
Hari (The Independent) November 2005: "Nearly 60% of gay British men had
admitted to having unprotected anal sex in the past year".)
6.5 Sexuality was such an important, intrinsic part of personality that the
state could not prohibit homosexual sexual expression and orientation, nor
impose an alternative sexuality or model. To do so would be in violation of
Article 8 of the convention - the right to privacy.
6.6 As many in Parliament knew at the time, this decision would have
profound implications for other groups. The enactment of the legislation
effectively swept away the previous legal precedent known as the "Spanner"
case, see References: 9.1 below: Brown 1994" AC 212. This trial and appeal
had upheld a prosecution against consenting homosexual sado-masochists
despite the fact that their extreme activities had been conducted in
private. Lord Mustill voiced an opposing view to the majority verdict at the
appeal, and it was the rationale of his minority view which underpinned the
legal arguments which necessitated the introduction of the Sexual Offences
(Amendment) Act 2000.
6.7 Crucially, the state can no longer secure a "Spanner" type conviction.
Homosexual men and lesbian women are engaging in sado-masochist sex,
sometimes in groups, with the near certain knowledge that the Director of
Public Prosecutions will not sanction a prosecution where the sex is
violent, is consensual, but is not life threatening (9.3 and 9.4).
6.8 There are still some small areas of confusion regarding the law but
prior to 2000 the position was difficult to predict with the public
uncertain as to what extremes of sexual expression they could or could not
undertake in private (See 9.3).
6.9 Despite the fact Home Office Ministers have received a petition with
30,000 signatures seeking the criminalisation of the possession of violent
pornography, any legislation enacted cannot be lawful if it seeks to
criminalise any aspect of consensual sex. Home Office Ministers might just
as well have received a 30,000 signature petition calling for homosexual
pornography to be criminalised. Despite the fact that there are far more
public health negatives associated with homosexual sex than sado-masochistic
sex, or voyeurism (the viewing of pornography) the HRA 1998 clearly requires
the state to permit sexual expression and sexuality even where this leads to
harm.
List of dangerous/potentially dangerous activities which are not illegal
6.10 It may be helpful to set out a short list which provides examples of
activities which can cause harm, suffering or death but which are legal so
long as the participants are consenting; -
· Dangerous sports: for example rugby and football - where fouls which cause
severe and lasting injury do not usually result in prosecution. · Car and
motorbike racing. · Boxing: Which amounts to grievous bodily harm with
intent. This has entailed extreme pain, permanent injury or death. ·
Unprotected group gay sex ("barebacking"). · Attempted suicide is no longer
a criminal offence. · Plastic surgery can be incredibly painful, arguably
disfiguring (for example, public attitudes towards extreme breast
enlargement) or pose a serious risk to long term health. · Piercing ·
Tattoos · Branding (See 9.1) · Dangerous circus acts (high wire, trapeze
artists, knife throwing, etc.)
6.11 Set against the context of these acts, which are legal, and the
provisions of the Sexual Offences (Amendment) Act 2000, the following
activities almost certainly cannot now be deemed to be criminal: -
· Participation in consensual, non-life threatening sado-masochistic sex. ·
Participation in violent role play, including forced sex and rape scenarios.
· Participation in violent role play which depicts activities akin to GBH or
murder but which does not actually involve GBH or death. · Voyerism and the
enjoyment of explicit pornography. · The possession of real images taken of
consenting adults participating in extreme but wholly consensual sex. · The
possession of works or art, drawings, cartoons and animations of extremely
violent sex which might exceed the GBH threshold or depict murder.
6.12 It will be a difficult area, but it is possible that bestiality, which
does not involve pain and suffering to animals, may also eventually be
deemed not to be illegal. 6.13 The crucial test for the office of the
Director of Public Prosecutions has now changed. It can no longer be argued
that an activity must be banned because it is offensive, nor even if it
causes harm. The degree of freedom granted to homosexuals, despite the
proven level of harm associated with unprotected sex, group/ anal sex, etc.
demonstrates that sexual activities which involve a far lesser degree of
harm cannot now be criminalised. To do so would amount to discrimination
and, in the context of viewing pornography within the home, to the denial of
Article 8 of the HRA (right to privacy).
Article 8 exemption: "for the protection of health or morals"
6.14 Article 8 of HRA 1998 does permit an exemption: - "for the protection
of health or morals". This was drafted in another era, when the UK, Ireland
and others were concerned that the HRA would permit the legalisation of hard
core pornography. Mainstream hardcore pornography is, of course, now legal
within the UK (permitted within the R18 category). So, a convincing case can
now be made that "the protection of public morals", in a sexual context, is
no longer an issue for Government involvement. Those distinctions and
definitions have not stood the test of time - society has moved on.
6.15 We are, however, now entering a new era of religious intolerance and
disrespect for those who are different. Religious extremism is involved in
the mass loss of life and threatens to undermine profoundly important civil
liberties (the right to freedom of speech, to criticise other religions,
etc.). In this dangerous new environment, where civil liberties are being
weakened, there is a vital case for government to hold onto those civil
liberties which do not threaten state security or public order. Now is a
more important time than ever for the state to reaffirm it's commitment to
"the protection of (other) public morals": -
· Not to discriminate against minorities. · Not to discriminate on the
grounds of sexuality. · Respect for the right of consenting adults to enjoy
their sexuality within the home. · No state intervention in the bedroom
without overwhelming evidence of very significant harm.
6.16 The consultation paper is remiss in the extreme by failing to emphasise
the fundamental moral issue that the state cannot dictate what consenting
adults do in the privacy of the bedroom. That principle is of vital
importance in the moral code of this nation and yet it receives no mention.
Proposed penalties for the proposed new offences of viewing extreme
pornography
6.17 In order to demonstrate just how disproportionate, unreasonable and out
of step the penalties (lengthy terms of imprisonment) proposed in the
consultation paper are, another list is now provided. This sets out other
activities in society which are permitted, but which cause significant or
appalling levels of harm. Again, this list is not definitive, but
underscores the degree to which Government is unable or unwilling to
interfere in activities undertaken in the home, or which are so commonplace
that they border on social acceptability. Crucially, they are not sexually
motivated. But one activity is added at the end of the list (Para. 6.30) to
demonstrate that an entertainment based activity which, although less
harmful than other activities in this list, will not be criminalised. Again
this underscores a deeply worrying aspect within British culture - that
dangerous activities, which are non-sexual will not be criminalised, but an
attempt will be made to ban those which are predominantly sexual. The state
appears unconcerned by the appalling death and destruction involved in
computer games, nor the morbid fascination with torture displayed in visitor
attractions like the "London Dungeon" but, violence in a sexual contact is
to be banned - overwhelming evidence of unjustifiable discrimination.
6.18 This list provides the basis for a successful appeal against any
decision to prosecute an individual for viewing extreme pornography. It
enables any defendant to demonstrate that they are being discriminated
against solely on the grounds of their sexuality: -
Alcohol consumption (See 9.6 below)
6.19 This from the Prime ministers strategy Unit: March 2004 (Cabinet
Office) "Alcohol Harm Reduction Strategy for England" (9.6 below): -
· 1.2 million crimes are attributable annually to alcohol. · Around a half
of all violent crimes are attributable to alcohol · 58% of rapists reported
drinking heavily before committing the rape · 360,000 incidents of domestic
violence (around a third of the total) are attributed to alcohol · Between
780,000 and 1.3 million children affected by parental alcohol problems. ·
Between 30% and 60% of child protection cases involve alcohol · Drink
driving deaths averaging 530 per annum. · 18,000 people killed or injured on
the roads every year due to drink driving. · Cost to criminal justice system
of 1.8 billion per annum
6.20 On the prosecution of those who are violent due to excessive alcohol
consumption, despite the proven scale of injury and death caused, the paper
recommends an enlightened approach for repeat offenders: - "different
offenders will have different needs - some may need extensive alcohol
treatment and other support but many will not. It will be important to
ensure that a range of interventions are available, allowing different
interventions to be offered to offenders with different needs". And goes on:
"brief interventions, counselling, or referral to self help groups may well
be appropriate, depending upon the individual case".
6.21 Despite the appalling harm caused, the paper (rightly) doesn't talk of
the need to criminalise possession of alcohol, nor to put people who consume
vast quantities in prison for three years, it refers to "the need to protect
offenders …. recognising their vulnerability" (further detail is set out in
9.6).
Smoking (See 9.7 below)
6.22 This from the Scientific Committee on Tobacco and Health (SCOTH).
Department of Health, 2004: -
· "Each year passive smoking at home might account for another 2700 deaths
in persons aged 20-64 years and 8000 deaths among people aged over 65."
From "Smoking and the Young". Royal College of Physicians, 1992: -
· "More than 17,000 children under the age of five are admitted to hospital
every year because of the effects of passive smoking."
6.23 So, quite apart from the 100,000 deaths per annum attributed to
smoking, the evidence set out in more detail at paragraph 9.7 below shows
that thousands of innocent people who do not wish to participate in the
activity are dying too. Not merely adults, but huge numbers of children are
also suffering.
6.24 There are two important issues here to be addressed before Government
could consider the criminalisation of people who smoke in their homes (if a
non-smoker is also in residence) i) the right to privacy (HRA Article 8) and
ii) the fact that a more tolerant and understanding approach is needed
because most smokers are addicted. Exactly the same points at issue when
considering the criminalisation for the possession of extreme pornography!
Road transport and environmental pollution (see 9.16 below)
6.25 This from the European Union:
Http://europa.eu.int/comm/environment/air/cafe/
activities/pdf/cba_baseline_results2000_2020.pdf p
· "39,000 deaths each year in the UK are attributed to air born pollution -
principally from vehicle emissions."
6.26 This from the United Nations Environment Programme: November 2004:
· "Billions face hunger and starvation" (referring to the impact upon
agriculture unless the developed world reduces greenhouse gases
dramatically).
6.27 This from the World Health Organisation
· "150,000 people are now dying annually due increases disease which is
spreading more quickly as a result of global warming".
6.28 Despite huge public concern, Government is absolutely determined not to
take the necessary measures that will reduce traffic levels throughout the
UK, and refuses to take mandatory action, imposing energy restriction
policies to prevent the waste of energy in the domestic and commercial
sectors. Government remains determined that only "light touch" policies will
be adopted, no matter that millions of lives will be lost as a consequence.
Sports Utility Vehicles (see 9.8 below)
6.28 This from the British Medical Journal. In October 2005.(Trinity College
Dublin, Ireland)
· Proof was provided that Sports Utility Vehicles, (SUVs), or 4x4s, were
more than twice as likely to kill a pedestrian than a conventional car. For
the same collision speed, the likelihood of a pedestrian fatality was said
to be nearly doubled in the event of a collision with a large SUV compared
with an ordinary passenger car.
6.29 Yet despite this new and escalating risk of death the Government is
determined not to introduce measures which would significantly deter the
purchase of new SUVs. And, incidentally, Rt Hon Alistair Darling MP has
indicated that no matter how many children are killed on our roads he is
determined that blanket 20 mph zones will not be introduced throughout any
UK town or city, even if a town or city were to seek such a measure.
Playing violent video and computer games
6.30 Michigan State University: Professor Reni Weber:
· Research published in October 2005 provided "absolute proof" that playing
violent video games made people more prone to aggression.
Recent press reports of violence between children who have been playing
violent video games will have made the public more concerned and yet
Government (rightly at this stage) has no intention of acting.
6: Conclusion
6.31 There are, of course, many other examples of aspects of life which
cause harm, but upon which Government does not intend to legislate. The only
reasonable conclusion is that the UK Government is persisting in the
assumption that it has a greater role in regulating and deterring certain
sexual practices, than in acting to avert mass loss of life where a
dangerous activity is not conducted in a sexual context. The warped values
which underpin this stance provide enormous potential for the protection of
the courts from oppressive and discriminatory legislation.
6.33 It is not for the state to legislate upon every aspect of human
sexuality, certainly not to dictate a code on sexual propriety. People
should have individual responsibility and rights to self determination. The
state does, however, have a duty to protect the vulnerable and to prosecute
if non-consensual assault appears in violent pornography. Sadly, however,
the Home Office thinking behind the consultation paper will do nothing to
reduce crime on our streets, sexual assault, rape or murder.
7. Protection of children.
7.1 The consultation paper emphasises the need to protect children from
extreme pornography, a position which all reasonable people would support,
but makes a number of spurious points to support the Home Office proposals.
It is disingenuous, or is it a lack of intellectual rigour, to suggest that
viewing R18 equivalent material is more damaging to children than watching a
Sky TV porn channel (18 certificate equivalent). Equally, it's ludicrous to
suggest that a child under the age of 16 could be more adversely influenced
by seeing a BDSM clip on the Internet than by seeing "The Story of O" or
reading "The 120 days of Sodom".
7.2 Although Government has so far been able to maintain the stance that R18
equivalent material can only be purchased from a licensed sex shop (to
ensure those under 18 are less likely to be able to buy such material) the
whole process is a nonsense and a legal challenge will inevitably be
successful. Those in households, with no children under 18, must eventually
be assured of protection under Article 8 of HRA 1998 (respect for privacy in
the home). The danger with the Home Office proposals is that the new level
of criminalisation will begin to place people in the position of challenging
a number of laws, citing HRA legislation. People who face three years in
prison, the destruction of their lives (loss of employment, etc.) will not
only have nothing to lose, they will be far more likely to bring any action
at the expense of the public purse (legal aid).
7.3 It must also be noted that had successive administrations not adopted
such draconian censorship in the UK, people would be less inclined to use
the unregulated Internet and settle for the increased quality (picture
definition) afforded by satellite or cable television porn channels. This is
a key issue, omitted from the public consultation paper, which would better
enable readers to form an opinion on the wider issues involved.
7.4 Within this context of this debate, Ministers should get over their
embarrassment concerned by the topic and advise adults on the storage of
sexually explicit material. All adults who store explicit material ought to
be told how to set password restrictions upon a computer and how to set
password restrictions upon accessing folders which contain explicit
material. That would be a simple commonsense step, but obviously not one for
ministers tied to a knee-jerk agenda which vigorously discourages open
minded consideration of the consequences of their legislation - which may
actually harm many of the children they claim to be protecting.
8. Answers and comments upon the questions posed in the consultation paper.
8.1 Here are some brief answers and comments upon the questions posed: -
1. Do you think that the challenge posed by the Internet in this area
requires the law to be strengthened?
Answer: No.
Existing legislation here and abroad should be used to prosecute all those
involved in non-consensual criminal activities.
2. In the absence of conclusive research results as to its possible negative
effects, do you think that there is some pornographic material which is so
degrading, violent or aberrant that it should not be tolerated?
Answer: No.
This question is a nonsense when considering the category of consensual
sexual violence. If people are engaging in rough sex but it is clearly a
forced sex fantasy, or role play, the state has no right (Article 8 HRA) to
intervene. If, however, a real video were to be taken of a real assault
where a woman is attacked and raped, this would be a criminal act and all
involved in the attack should be prosecuted.
3. Do you agree with the list of material set out in paragraph 39?
Answer: No.
This question is highly manipulative. The paper does not set out a balanced
case with regard to consensual BDSM sex. The consultation paper should be
re-drafted and re-issued. People cannot know precisely what material you
intend to include within the two categories relating to violent sex.
4. Do you believe there is any justification for being in possession of such
material?
Answer: Possibly.
This question is highly manipulative. The paper does not set out a balanced
case with regard to consensual BDSM sex. The consultation paper should be
re-drafted and re-issued. People cannot know precisely what material you
intend to include within the two categories relating to violent sex. This
question also fails to touch upon more complex issues, for example: the
person who may be of unsound mind/mentally ill.
5. Which option do you prefer?
Answer: Option 4: "do nothing"
Existing legislation should be used to prosecute people who actually engage
in criminal non-consensual acts.
6. Why do you think that is the best option?
Answer: The proposals set out in the consultation paper lack intellectual
rigour. A far more humanitarian stance, as outlined in Section 4 of this
response, should be considered and issued for public consultation.
7. Which penalty option do you prefer?
Answer: None.
The question is manipulative and designed to achieve a ministerial
preference for criminalisation of possession, with draconian penalties that
will ruin the lives of otherwise law abiding people. The penalty options are
totally out of proportion to any perceived harm.
The law here and abroad permits the criminal prosecution of anyone who were
to publish a real video, of a real assault, when a person is attacked and
raped.
8. Question for the Home Office.
Will you conduct a survey of all those who respond in support of the
consultation paper proposals asking them if they support the criminalisation
of the consumption of alcohol (noting the proven level of sexual assault
associated with this activity)?
This would be revealing, because it would demonstrate the degree of
hypocrisy associated with those who support criminalisation of the
possession of material which depicts consensual sado-masochistic sex.
8 Conclusion
8.2 Given the severity of the proposed penalties for possession, the vast
majority of people who have an interest in the categories of material listed
will not take part in this public consultation. The participation in this
exercise does appear, therefore, somewhat flawed. The Home Office will not
gain adequate input from those with a personal interest in opposing these
proposals.
9. References: Sources which support the conclusions of this submission.
9.1 Case Law: Extreme BDSM sex is no longer illegal: Wilson (Branding) and
Brown (The "Spanner" trial).
In R. v. Wilson ([1996] 3 Weekly Law Reports, at 125), where a man had been
convicted of assault occasioning actual bodily harm for having branded his
initials with a hot knife on his wife's buttocks with her consent, the Court
of Appeal, Criminal Division, allowed the appeal. (In this instance Mrs
Wilson not only consented to that which the appellant did, she instigated it
and it was determined that there was no aggressive intent on the part of the
appellant.)
Commenting upon the Brown 1994" AC 212. (The "Spanner" trial and conviction
of consenting homosexual sado-masochists) Principles of Criminal Law (Page
328) notes: "it is evident that both the European and English Courts will
adopt a case by case analysis and the framework of Article 8, supplemented
by the Strasbourg jurisprudence, suggests that in future English Courts will
need to adopt rather more rigorous reasoning than that of the majority in
Brown."
9.2 Rape fantasies are sufficiently common to be considered normal.
· Knox, 1984, p. 283: Rape fantasies occur to about 24% of men and 36% of
women · Doskoch, 1995: Over 10% of women report that being forced to have
sex is their favorite sexual fantasy · Masters, Johnson & Kolodny · Kinsey
Institute · Shere Hite "The Hite Report" · Nancy Friday "My Secret Garden"
and "Women on Top" · BBC website "The power of sexual fantasy": women -
submissive sex is the fifth most popular female fantasy, · You-Gov poll on
sexual fantasies.
9.3 Legal limits upon an adult's ability to "consent" to serious harm. (UK
and Germany)
Mohammed Dica: October 2003
A man jailed in the UK for eight years, in October 2003, for inflicting
biological grievous bodily harm by infecting two lovers with HIV won the
right to a retrial. Mohammed Dica had been the first person in 137 years to
be convicted in England and Wales for sexually transmitting a disease. The
Court of Appeal ruled that the judge at Dica's first trial should not have
withdrawn from the jury the issue of whether the women consented to
intercourse, knowing Dica was HIV positive. The judge at the first trial had
held that consent was irrelevant and provided no defence because, under
legal precedent, the women had 'no legal capacity to consent to such serious
harm'. At the third hearing of his case, Mohammed Dica was found guilty of
reckless HIV transmission and was sentenced to four and a half years in
jail. It was found that he had actively persuaded one of his partners not to
use condoms, even though he knew he was HIV positive.
Germany: Cannibal found guilty of manslaughter: January 2004: -
A self-confessed cannibal who killed and ate a man he had met over the
internet was sentenced to eight-and-a-half years in prison by a German
court, after being cleared of murder but found guilty of manslaughter. The
court, in the central German town of Kassel, ruled that Armin Meiwes, a
42-year-old computer expert, had no "base motives" in the crime, a decision
that spared him a murder conviction.
Meiwes, from the nearby town of Rotenburg, had confessed in detail to the
March 2001 killing of 43-year-old Bernd Jrgen Brandes and to eating his
flesh when his trial opened last month. Prosecutors branded Meiwes a "human
butcher" who acted simply to "satisfy a sexual impulse", and had sought a
life sentence for murder.
But his lawyer, Harald Ermel, successfully argued that the death was
"homicide on demand" - a form of mercy killing - because the victim had
given his consent to be killed and eaten.
9.4 Sexual Offences (Amendment) Act 2003
The Sexual Offences (Amendment) Act 2003 defines consent: -
"Section 74 defines consent as "if he agrees by choice, and has the freedom
and capacity to make that choice". Two fundamental questions need to be
answered. First, whether a complainant had the capacity (i.e. the age and
understanding) to make a choice about whether or not to take part in the
sexual activity at the time in question. Second, whether he or she was in a
position to make that choice freely, which is not constrained in any way.
Assuming that the complainant had both the freedom and capacity to consent,
the crucial question is whether the complainant agrees to the activity by
choice."
9.5 Evidence to demonstrate scale of risks associated with homosexual sex:
The data selected demonstrates the risks of the sexually promiscuous section
of the gay community and the role this group has played in transmission of
HIV - now a predominantly heterosexual disease). It is important to
emphasise that very many gay men practice safe sex, but a large number do
not. It is the issue of harm associated with this which is relevant to the
conclusions of this document: Parliament had considered the issues in depth
(Sexual Offences (Amendment) Act 2000) (9.10 below) relating to age of
consent. Crucially, despite vigorous debate of issues connected with the
proven level of harm associated with the sexually promiscuous section of the
community, Parliament concluded that liberalisation of the law must be
allowed.
The World Bank: "Evaluation of the World Bank's Assistance in Responding to
the AIDS epidemic: Russia Case Study" (The paper attributed homosexual sex
to about 80% of HIV transmission)
AMFAR AIDS Research: Japan "In recent years, the number of HIV infections in
men who have sex with men (MSM) has risen sharply, and homosexual
transmission now accounts for more than twice as many infections in men as
heterosexual transmission. Condom use is believed to be low, both in the
general population and among sex workers. Statistics HIV-Infected People =
12,000 AIDS Deaths in 2003 = <800"
Avert: the international AIDS charity: From statistics for Australia:
"Transmission in Australia continues to occur primarily through sexual
contact between men. A history of male homosexual contact was reported in
77% of newly acquired HIV infection diagnosed in the period 2000-2004.
Around 2.4% of diagnosed cases of newly acquired HIV infection were
attributed to injecting drug use among women and heterosexual men": -
HIV and AIDS cases by state/territory, until 31st December 2004: -
State/Territory HIV AIDS Male Female Total* Male Female Total** Australian
Capital Territory 247 31 278 92 9 101 New South Wales 12,697 785 13,746
5,173 224 5,412 Northern Territory 123 18 141 42 2 44 Queensland 2,438 231
2,678 978 63 1,043 South Australia 833 84 918 387 31 419 Tasmania 89 8 97 48
4 52 Victoria 4,767 311 5,119 1,873 97 1,980 Western Australia 1,096 165
1,268 412 35 449 Total 22,290 1,633 24,245 9,005 465 9,500
* Includes people whose sex was not reported or was reported as transgender
** Includes people whose sex was reported as transgender
Johann Hari (The Independent) November 2005: "Nearly 60% of gay British men
had admitted to having unprotected anal sex in the past year".
Avert: the international AIDS charity: Commenting upon UK:
Position in 2003: - "The adults and adolescents with AIDS, 77% were men. Of
these men, · 58% were men who had sex with men (MSM) · 22% were injection
drug users (IDU) · 11% were exposed through heterosexual contact · 8% were
both MSM and IDU Men who have sex with men
Men who have sex with men remain the group at greatest risk of getting
infected with HIV in the UK. Throughout the 1990s, there were modest falls
in the number of new HIV diagnoses among this group, except in 1996 when
highly active antiretroviral therapy first became widely available and the
advantages of early diagnosis became clearer. Since 1999, the figures have
steadily risen again to more than 2,000 per year. The primary cause of
transmission is high risk sexual behaviour, and there are indications of
rises in such behaviour in recent years. However, the introduction of
clinician reporting is also likely to have contributed to recent trends. As
of the end of September 2005, 35,149 men who have sex with men have been
diagnosed with HIV in the UK. It has been estimated that, at the end of
2003, just under half of all people living with HIV in the UK were men who
had sex with men. An estimated 53,000 adults were living with HIV in the UK
at the end of 2003, of whom 14,300 (27%) were unaware of their infection."
Position to date: -
"There were at least 7,275 new diagnoses of HIV, contributing to a
cumulative total of 74,977 reported by the end of September 2005. The 2004
figure is likely to rise as further reports are received. There have been
21,732 diagnoses of AIDS in the UK. It is known that at least 13,282 of
these people have died. It should be noted that the difference between these
figures does not provide a very accurate estimate of the number of people
living with AIDS in the UK: the figure will inevitably include some people
who have moved abroad after diagnosis as well as some records belonging to
the same person which have not been successfully matched. The number of
heterosexually acquired HIV infections diagnosed in the UK has risen hugely
over the last 15 years. In 1999, for the first time, the rate of
heterosexually acquired HIV diagnoses overtook the rate of diagnoses in men
who have sex with men. During 2004, there were 4,287 reports of
heterosexually acquired HIV, and a total of 29,350 had been reported by the
end of September 2005. Many of the new diagnoses are in people who probably
acquired HIV in other countries. However, the number of infections probably
acquired in the UK from heterosexual sex with a heterosexually-infected
partner has soared from 139 in 1998 to 466 in 2004."
Avert: the international AIDS charity: Commenting upon USA:
"The effect of AIDS was continuing to be felt at a community level. In the
USA there had been a cumulative total of 81,500 AIDS cases in New York", and
"despite two world wars, the Depression and epidemics, nothing in this
century has affected the life expectancy for New Yorkers as greatly as
AIDS." (20th Century)
Charles Kaiser: "The Gay metropolis"
Gabriel Rotello: "Sexual ecology: Aids and the destiny of gay men"
The threat of "Super-AIDS": a new more toxic mutation of the HIV
Source: Dr David Ho. (Time Magazine "Man of the year" for his AIDS research)
and Tokes Osubu (Ex Director of "gay men for Africa", confirmed that, in the
Spring of 2004 in New York, a "Patient Zero" had been diagnosed with
"Super-AIDS". This was a new more toxic mutation of the HIV virus but it was
not tranmissable. Both had warned that it was a matter of time before the
virus mutates into a new more deadly tansmissable state.
World Health Organisation:
By 2003: "AIDS epidemic has already killed 20 million people and 42 million
people are infected worldwide"
9.6 Alcohol: Key facts
Prime ministers strategy Unit: March 2004 (Cabinet Office) "Alcohol Harm
Reduction Strategy for England": -
· 1.2 million crimes are attributable annually to alcohol. · Around a half
of all violent crimes attributable to alcohol · 360,000 incidents of
domestic violence (around a third of the total) attributed to alcohol ·
Between 780,000 and 1.3 million children affected by parental alcohol
problems. · Between 30% and 60% of child protection cases involve alcohol ·
Drink driving deaths averaging 530 per annum. 18,000 people killed or
injured on the roads every year due to drink driving. · Cost to criminal
justice system of 1.8 billion per annum · Quotes from the "Interim
Analytical Report" page 62 - Found 58% of rapists reported drinking heavily
beforehand · British Crime Survey says 53% of violence by strangers was
prompted by alcohol. · Costs of excessive alcohol consumption put at 20
billion, including 1.7 billion on the NHS, 6.4 billion in lost productivity.
Time off work, and 7.3 billion on alcohol related crime.
On the prosecution of those who are violent due to excessive alcohol
consumption, despite the proven scale of injury and death caused, the paper
recommends an enlightened approach for repeat offenders: - "different
offenders will have different needs - some may need extensive alcohol
treatment and other support but many will not. It will be important to
ensure that a range of interventions are available, allowing different
interventions to be offered to offenders with different needs". And goes on:
"brief interventions, counselling, or referral to self help groups may well
be appropriate, depending upon the individual case".
Refers to the need for "Community Order" and "Suspended Sentence Order" to
which an alcohol treatment requirement can be added. And also emphasises
"the need to protect offenders, recognising their vulnerability". The
proposals include: - "education and fixed penalty notices, conditional
cautions anti-social behaviour orders". The Guardian (Society) "Department
for health figure of 40,000 alcohol related deaths in England and Wales" (UK
as a whole).
9.7 Evidence of harm associated with smoking: Passive smoking/smoking in the
home/impact upon children.
Department of Health, 2004: Secondhand smoke: Review of evidence since 1998.
Scientific Committee on Tobacco and Health (SCOTH): "there is a causal
effect of exposure to second-hand smoke on the risks of lung cancer,
ischaemic heart disease and a strong link to adverse effects in children".
Konrad Jamrozik: 2nd March 2005: Estimate of deaths attributable to passive
smoking among UK adults: database analysis. BMJ 2005: 330. "Across the
United Kingdom as a whole, passive smoking at work is likely to be
responsible for the deaths of more than two employed people per working day
(617 deaths per year), including 54 deaths in the hospitality industry each
year. Each year passive smoking at home might account for another 2700
deaths in persons aged 20-64 years and 8000 deaths among people aged over
65". "54 deaths per annum amongst bar staff are attributed to passive
smoking."
Smoking and the Young. Royal College of Physicians, 1992."More than 17,000
children under the age of five are admitted to hospital every year because
of the effects of passive smoking."
ASH: -
"Almost half of all children in the UK are exposed to tobacco smoke at home.
Passive smoking increases the risk of lower respiratory tract infections
such as bronchitis, pneumonia and bronchiolitis in children. One study found
that in households where both parents smoke, young children have a 72 per
cent increased risk of respiratory illnesses. Passive smoking causes a
reduction in lung function and increased severity in the symptoms of asthma
in children, and is a risk factor for new cases of asthma in children.
Passive smoking is also associated with middle ear infection in children as
well as possible cardiovascular impairment and behavioural problems. Infants
of parents who smoke are more likely to be admitted to hospital for
bronchitis and pneumonia in the first year of life. More than 17,000
children under the age of five are admitted to hospital every year because
of the effects of passive smoking. Passive smoking during childhood
predisposes children to developing chronic obstructive airway disease and
cancer as adults. Exposure to tobacco smoke may also impair olfactory
function in children. A Canadian study found that passive smoking reduced
children's ability to detect a wide variety of odours compared with children
raised in non-smoking households. Passive smoking may also affect children's
mental development. A US study found deficits in reading and reasoning
skills among children even at low levels of smoke exposure. Exposure to
passive smoking during pregnancy is an independent risk factor for low birth
weight. A recent study has also shown that babies exposed to their mother's
tobacco smoke before they are born grow up with reduced lung function.
Parental smoking is also a risk factor for sudden infant death syndrome (cot
death)."
9.8 Sports Utility Vehicles
Dr Ciaran Simms and Professor Desmond O'Neill of Trinity College Dublin,
Ireland: British Medical Journal. In October 2005.
"Proof was now provided that Sports Utility Vehicles, or 4x4s, were more
than twice as likely to kill a pedestrian than a conventional car.
Pedestrians are more likely to suffer serious injuries or to be killed when
they're hit by an SUV than when they're struck by a car. SUV bonnets are
higher than those of cars and this results in more severe primary impact on
the critical central body regions (vulnerable areas such as the head, thorax
and abdomen) and the upper leg and pelvis". The researchers recommended that
measures should include collecting data on SUVs involved in crashes and
increasing public awareness by alerting consumers about the increased risk
to pedestrians posed by SUVs.
9.9 Human Rights Act 1998: Key provisions:
ARTICLE 2 RIGHT TO LIFE 1. Everyone's right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law. 2. Deprivation of life shall not be
regarded as inflicted in contravention of this Article when it results from
the use of force which is no more than absolutely necessary: (a) in defence
of any person from unlawful violence; (b) in order to effect a lawful arrest
or to prevent the escape of a person lawfully detained; (c) in action
lawfully taken for the purpose of quelling a riot or insurrection.
Right to Life
1. Everyone's right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence of a
court following his conviction of a crime for which this penalty is provided
by law.
2. Deprivation of life shall not be regarded as inflicted in contravention
of this Article when it results from the use of force which is no more than
absolutely necessary: (a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained; (c) in action lawfully taken for the purpose of quelling
a riot or insurrection.
This article provides that the Government and public authorities must
protect the right to life. This may require, for example, that the police
have to protect someone whose life is under immediate threat. It could also
be used to argue that a patient should be able to get treatment that would
save their life.
Generally, there will be a breach of Article 2 if someone is killed by a
state official (usually the police, but also the army or prison officers).
The only circumstances where there will not be a breach are set out in the
second part of the article. However, where a death occurs in each of these
three circumstances the police (or other state official responsible for the
death) will have to show that they did not use any more force than was
absolutely necessary. So, if someone is killed when the police are trying to
arrest them, there will be breach of Article 2 if it is shown that the
police used more than the minimum amount of force necessary to detain the
person.
The ECHR has made it clear that Article 2 also requires that there should be
a proper investigation when the police or army kill someone or when someone
dies in custody. There have been several cases in the British courts where
the courts have had to consider what type of investigation is necessary to
meet this requirement.
The death penalty
Article 2 has been supplemented by the Sixth Protocol. The Sixth Protocol
abolishes the death penalty, although it allows for exceptions in wartime.
The United Kingdom has signed up to this Protocol and the Human Rights Act
completely abolished the death penalty.
ARTICLE 8 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE 1. Everyone has the
right to respect for his private and family life, his home and his
correspondence. 2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
ARTICLE 14 PROHIBITION OF DISCRIMINATION The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.
9.10 Notes on the Sexual Offences (Amendment) Act 2000
The Sexual Offences (Amendment) Act 2000 came into force on 8 January 2001.
It amends the Sexual Offences Act 1956 and 1967 to reduce the minimum age of
consent at which a person may lawfully consent to buggery and to certain
homosexual acts from 18 to 16 in England and Wales. No offence is committed
by a person under 16 where he or she engages in buggery or certain
homosexual acts with a person 16 or older (Section 12 (1AA) Sexual Offences
Act 1956). It is important to note that this does not effect the liability
of a person aged 16 or over who engages in such with a person under the age
of consent. Furthermore, both parties remain liable if they are both under
16.
Prosecution of 16 & 17 year olds
Acts which occurred before 8 January 2001 are still potentially liable for
prosecution. However, unless the case is highly exceptional it is unlikely
that it would be in the public interest to proceed with such prosecutions.
If you have a case which involves the potential prosecution of 16 or 17 year
olds, and you consider that a prosecution is still in the public interest,
this must be submitted for consideration through your Chief Crown Prosecutor
to Director, Casework.
Consent of the Director of Public Prosecutions
It is important to note that the consent of the Director is required for
proceedings against any male for offences of buggery or gross indecency with
another male; or for aiding, abetting, counselling, procuring or commanding
those offences where either male was under the age of consent. Section 1 (2)
(b) of the Sexual Offences (Amendment) Act 2000 has amended Section 8 of the
Sexual Offences Act 1967 so that consent is now required where either man
was under 16 at the time of the offence rather than under 21.
However, for offences which took place before 8 January 2001 (the
commencement date of the Sexual Offences (Amendment) Act 2000), consent of
the Director is still required where either man was under 21.
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