 1. The consultation document claims that: ‘There is now … considerable
public concern about the availability of extreme pornographic material
featuring adults’ on the Internet (page i). However, it fails to detail the
extent of that concern. What it is presumably referring to is the large
number of press stories occasioned by the murder in 2003 of Jane Longhurst
by a man who regularly visited Internet sites containing violent
pornography, and the 35,000-strong petition organised by her mother Liz
calling for the banning of such sites. There was also a Lords debate on the
subject in October 2004; parliamentary questions have been asked by Martin
Salter (who helped to organise the Longhurst petition) and Tim Loughton; and
a vociferous campaign has been mounted by moral watchdog mediawatch-uk.
Whether this amounts to ‘considerable public concern’ or a case of organised
moral entrepreneurship is a matter of opinion, but what is certainly
disturbing is the suspicion that this particular measure has been at least
partly prompted by hysterical, ill-informed and censorious press coverage of
an undoubtedly disturbing case in papers such as the Daily Mail. It should
also be pointed out that there is also a great deal of ‘concern’ about
government attempts to censor the Internet – concern which has been greatly
fuelled by the publication of this consultation – but this is nowhere
acknowledged in the document and apparently counts for absolutely nothing.
In this respect I should like to join the complaint made by the Spanner
Trust in a letter to the Home Office on 21 November that: ‘There have been
no informal discussions of the content of this document with relevant
stakeholders’ and that: ‘The Home Office has failed to send the consultation
document to appropriate groups’. I would certainly concur that these
omissions contravene the Cabinet Office Code of Practice on Consultations.
2. The document admits that: ‘We can no longer rely on national norms of
behaviour or understanding, or on border controls to limit the kinds of
material consumed within the UK. We also cannot ignore the fact that
international enforcement of national standards in this area is highly
problematic’ (paragraph 10). It also adds that: ‘There is considerable
variation in the approaches and law regarding publication of adult material
within the international community …. Given this wide disparity in the law
regarding publication, the chances in the short term of achieving an
effective international agreement covering publication of extreme
pornographic material are limited’ (paragraph 55). Both of these
formulations are a rather coy and evasive way of indicating that Britain’s
laws concerning taste and decency are far stricter than those of most other
democracies, and one might expect a document from a government so given to
preaching the virtues of both globalisation and modernity to suggest that it
was perhaps time that this country came into line with its fellow
democracies on such matters.
3. Not a bit of it, however. Having learned absolutely nothing from King
Canute, the document argues that: ‘The nature of the Internet requires us to
take a different approach if our controls on this kind of material are not
to be undermined’ (page i). This approach consists in creating a ‘new
offence of simple possession of extreme pornographic material’ (paragraph 4)
which ‘will apply to the possession of this material in whatever form it is
held’ (page ii). The document adds that: ‘The proposal will mirror the
arrangements already in place in respect of indecent photographs and
pseudo-photographs of children, possession of which is already an offence’
(page 5), as if this somehow made the proposal perfectly acceptable. (The
document is particularly adept at discussing the pornography to which it
objects in the same context of child pornography, thereby attempting to tar
it with the same brush). What it completely fails to acknowledge, however,
is that the ‘arrangements’ in question signally fail to define what is meant
by indecency in this context, thereby precipitating disgracefully
heavy-handed actions by ill-informed and over-zealous police forces and
prosecuting authorities against photographers whose work has nothing
whatsoever to do with child pornography. The thought that such people are
going to be given yet more opportunities to enter people’s homes, and then
conspire with the press in demonising their victims, is frankly chilling.
4. The document is unhelpfully coy and vague about the nature of the
material which it finds, or claims everybody else finds, so ‘abhorrent’
(page i), ‘degrading’, ‘aberrant’ (paragraph 31) and ‘repugnant’ (paragraph
33), using the classic get-out that: ‘It is not possible in a public
document like this to give a great deal of graphic detail of the material in
question’ (paragraph 5). This, of course, is exactly the same strategy as
adopted by the Mail and other papers when discussing these issues, keeping
the reader tantalisingly short on the actual facts but giving them just
enough to let their imagination fill in the gaps – usually in an extremely
fanciful and over-heated fashion. In general terms, the document explains
that by ‘extreme pornographic material’ is meant ‘material which is violent
and abusive’ (page i) or ‘sexual material containing violence, cruelty or
degradation’ (paragraph 34) and which may indeed feature ‘activities which
are illegal in themselves’ (page i). The problem with this formulation,
however, is that whilst some of these activities may indeed be illegal in
the highly censorious and sexually regulated UK, they are not necessarily
illegal in the more liberal and tolerant countries in which they were
filmed.
5. The document also claims that these activities ‘may often cause serious
physical and other harm to those involved in making it’ (paragraph 27), and
suggests that participants in such material may in some cases have been the
victims of violent crime ‘whether or not they notionally or genuinely
consent to taking part’ (paragraph 34). This idea of ‘notional consent’ has
clearly been introduced so as to catch sado-masochistic images involving
consenting adults within the ambit of the proposed legislation. However it
is also an insultingly patronising and paternalistic notion, one which
demonstrates all too clearly that the politicians and civil servants
responsible for drawing up this unfortunate document think themselves
mightily superior to the ignorant/stupid/venal/drug-addicted actors and
actresses who take part in the pornography which is its subject.
6. In more specific terms, the document reveals that the pornography with
which it is concerned contains ‘actual scenes or realistic depictions of: (i)
intercourse or oral sex with an animal; (ii) sexual interference with a
human corpse; (iii) serious violence in a sexual context, and (iv) serious
sexual violence’ (paragraph 39). ‘“Serious violence” will involve or appear
to involve serious bodily harm in a context or setting which is sexual’ and
‘“serious sexual violence” will involve or appear to involve serious bodily
harm where the violence is sexual’. The government’s intention to catch
images of adult, consensual, sado-masochistic practices within the ambit of
the legislation is again made abundantlyly clear: ‘By realistic depictions
we intend to capture those scenes which appear to be real and are
convincing, but which may be acted. This follows the precedent of the child
pornography legislation and is in part necessary to avoid the need to prove
the activity actually took place, as this would be an insuperable hurdle for
the prosecution, particularly if the material comes from abroad’ (paragraph
38). This insistence on attempting to criminalise ‘realistic depictions …
scenes which appear to be real and are convincing, but which may be acted’
is completely unacceptable, and will bring vast swathes of perfectly routine
sado-masochistic material within the remit of the proposed legislation,
material which is fully consensual and thus entirely permissible and
unproblematic in most other countries of the democratic world. The document
crudely attempts to push all the right buttons by suggesting that most of
the material with which it concerned consists of images of women being
tortured, apparently blithely unaware of the vast amount of gay male
Internet pornography involving sado-masochistic practices. But what is
completely and utterly unacceptable about this formulation is the way in
which it lumps together consenting and non-consenting sexual activity.
Images which represent genuine rape and other forms of sexual abuse are
indeed abhorrent, but it is not their possession but their making which
should be criminalised. It really is breathtakingly feeble to bleat that it
is an ‘insuperable hurdle’ for the authorities to make such distinctions –
that is precisely what they should be doing, and then co-operating with
their colleagues overseas to track down and prosecute the makers of images
of genuinely non-consenting sexual activity. Instead, what will happen if
this thoroughly objectionable proposal becomes law is that the makers of
such material will blithely carry on regardless, whilst viewers of
consensual sado-masochistic pornography will live in constant fear of visits
from police forces whose behaviour in both the Spanner and Operation Ore
cases clearly demonstrates that it cannot be expected to behave in anything
other than an oppressive and authoritarian fashion in matters such as this.
7. It is utterly absurd and unrealistic to believe that criminalising
possession of this kind of material will do anything whatsoever to make its
production less likely, as is claimed at paragraph 23: ‘Accessing extreme
pornographic images, particularly on paid-for sites, fuels the
demand/supply/demand cycle. We believe that an offence of possession of a
limited category of extreme adult material, may help break this cycle’.
Perhaps the politicians and civil servants who drew up this unpleasant
document really do believe that Britain still rules half the globe, but the
truth is that British subjects represent a tiny minority of the Internet’s
global users, and the makers of this kind of material will not give a fig
whether or not its possession is criminalised here.
8. One reason why the government wants to criminalise the possession of such
material appears to be that it believes it is harmful: ‘We consider that it
is possible that such material may encourage or reinforce interest in
violent and aberrant sexual activity to the detriment of society as a whole’
(paragraph 27). On the other hand, the document admits that it is ‘difficult
to get a clear picture and understanding of the possible harmful effects of
pornography’ (paragraph 29). As a consequence, it concludes that: ‘We are
unable, at present, to draw any definite conclusions based on research as to
the likely long term impact of this kind of material on individuals
generally, or on those who may already be predisposed to violent or aberrant
behaviour’ (paragraph 31).
9. However, just as the Bulger case was constantly invoked in 1993/4 by
those wishing to see more stringent controls on home videos, so the
Longhurst murder is repeatedly pressed into service here, its mantra-like
repetition seeming to obviate any need for reasoned debate on the subject.
Thus, for example, the document notes that concern about this kind of
material ‘has been heightened by a recent tragic case where a young woman
was murdered by a man who had been accessing such sites on the Internet.
During the trial it was revealed that he had visited these sites prior to
and after the victim’s death’ (paragraph 10). However, as this example
shows, the document clearly falls short of drawing a causal connection –
because, of course, on the evidence available, there is no causal connection
outside the fevered imaginings of papers such as the Mail which, on 30
September 2004, claimed that Jane Longhurst’s murder was ‘unequally
disturbing in that it could have happened only in this high-tech age,
committed by someone whose murderous fantasies were fuelled by appalling
images freely available on the internet’. Sadly, but entirely predictably,
the document sides with the Mail and its ilk against the sceptical experts,
concluding that: ‘Although we recognise that accessing such material does
not necessarily cause criminal activity, we consider the moral and public
protection case against allowing this kind of material sufficiently strong’
to merit criminalising it (paragraph 52).
10. The use of the word ‘moral’ here is a clear indication that the
allegedly harmful qualities of this material are not the only reason why the
government wishes to ban it. Indeed, the document itself admits that the
impetus behind this measure is primarily moral: ‘The underlying premise of
this document is that this material should have no place in our society. The
fact that it is widely accessible over the Internet does not legitimise it’
(paragraph 11). It also claims that: ‘We believe that a possession offence
will send a clear message about this material’ (paragraph 26). But the
question is: what message, and to whom? To those concerned with freedom of
expression and choice it will send out the message that, in terms of
governmental attitudes towards the Internet, the United Kingdom is on a par
with countries such as China, Iran and Saudi Arabia. It will also make it an
international laughing stock. But these are not the people to whom the
document is really addressed. Its whole approach, which betrays an entirely
closed mindset, is addressed primarily to the Mail-reading classes, and is
simply seeking popular, not to say populist, acclamation for a decision
which has, to all intents and purposes, already been made by the Home Office
and the Scottish Executive. Indeed, it’s difficult to understand how this
represents a ‘consultation’ in any accepted sense of the term. Here again I
would want to join with the complaint made by the Spanner Trust on 21
November that: ‘The consultation does not properly seek to gather evidence,
nor does it invite challenge to its premises’ and that: ‘The questions are
leading, and alternatives to regulation are not considered’.
11. Admittedly the government cannot be held responsible for what appears in
the Mail, but given the way in which government departments spin stories, it
is interesting that, on 30 August 2005, the paper reported that: ‘The mother
of murdered teacher Jane Longhurst has won her fight to outlaw the violent
Internet pornography which obsesses her daughter’s killer. Viewing vile
images of rape and torture will now carry a jail term of up to three years.
The change, unveiled yesterday by the Home Office, will bring the material
in line with child pornography, which it is already an offence to download’.
QED.
In the light of the above, my answers to the questions posed in the document
will be obvious.
Do you think that the challenge posed by the Internet in this area requires
the law to be strengthened? No.
In the absence of conclusive research 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. No, not unless it can
be proved to involve under-age children, or adults who have not given their
consent.
Do you agree with the list of material set out (in paragraph 39)? No.
Do you believe there is any justification for being in possession of such
material? This is a quite extraordinary question. People watch all
pornographic material for one reason only – sexual gratification – and that,
obviously, is their ‘justification’ for it.
Which option do you prefer? Four.
Why do you think this option is best? Explained above.
Which penalty option do you prefer? None.
|
