Public Consultation response
Possession of extreme pornography
Introduction
The Melon Farmers is an informal grouping of people who are opposed to undue
censorship. There are no formally agreed policies and this response is
simply an aggregation of my views and those of people who have contributed
their views to the Melon Farmers
Definitions
The following definitions were originally specified by Ofwatch and they will
be reused in this response.:
- “Consensual” refers to participants who take part in activities of
their own free will.
- “Apparently non-consensual” refers to participants who take part in
activities of their own free will, but where it appears that no consent
was given due to acting or special effects.
- “Non-consensual” refers to participants who were forced to take part
in activities against their will.
- “OPA” refers to the Obscene Publications Act 1959 and 1964 as well
as the Civic Government (Scotland) Act 1982, which for our purposes
amount to the same thing.
- GBH - Grievous Bodily Harm. The word grievous implies very serious
in the common use of English but the term seems to have been downgraded
to relatively minor bodily harm when used in a legal sense.
How is the Man in the Street Going to Know What is Legal to Download?
This proposal takes astonishingly little regard to the consequences for
the British public. It is accepted that images of real rape are abhorrent
and there could be some sympathy with legislation that targets such
material. This proposal hardly makes any attempt to limit itself to the
pornography of real violence and instead proposes extreme punishments for
possession of material where absolutely nobody has been harmed, and is
totally legal to produce. What's more, the ludicrously vague definitions
suggested leave a downloader with absolutely no chance to be able to decide
whether the material is legal to download or not. This is proposal simply a
gross abuse of human rights.
It is obvious to anyone that has observed the police, customs and the
prosecution service that this proposal will provide massive opportunities
for injustice and the destruction of otherwise innocent people's lives. The
scale of destruction of people's lives due to these proposals will surely
outweigh any small chances that a few evil people will somehow not become
evil if they don't get to see violent pornography.
To suggest that the measure will obtain some degree of effectiveness
because it mirrors the successful approach to restricting child pornography
seems to be no more than populist spin designed to appeal to Daily Mail
readers. The restrictions on child porn work because they are based on
consensus of the entire UK and international community. Because of this
almost unanimous consensus, the innocent man in the street has little to
fear from being compliant with the law. He can be confident that anything
published by any openly operating company will not contain child porn. Every
magazine/video/DVD sold in any openly operating shop or website is pretty
near guaranteed to feature legal age participants. Those that do seek out
child porn do so knowing exactly what they are doing is wrong and will not
be tolerated by either the community or the state.
However the proposed legislation provides no assistance whatsoever in
providing any protection to downloaders who genuinely would like to surf
safely and within the law. Instead, the proposal offers definitions that
have been open to massive legal debate for years with the usual winners
being those with the biggest truncheon and those with the most expensive
barrister.
A lot of emphasis is based on the concept of the material being a 'sex
works'. Presumably the simplistic thinking is that practicality dictates
that prohibitions on violent material cannot be applied to non-sex films
where depictions of violence abound. Similarly documentary or factual
material is often used with considerable importance in say highlighting the
atrocities of war and crime.
So how is the man in the street going to know what constitutes a 'sex
work'. Even the BBFC need to debate long and hard on some films. For
example, the film 9 Songs containing real sex scenes was considered not to
be a sex works whereas a DVD extra featuring the same couple and similar
scenes 'was' considered a sex works as the scenes were simply longer and
lacked the context of the main film. Can the man in the street be expected
to be able to make such fine judgments. And even if he was able to match the
expertise of the BBFC then without the weight and respect of the BBFC, his
opinions would probably not stand up to challenge by expensive barristers
employed by say HM Customs.
The definition of 'grievous bodily harm' is equally vague. Expensive
barristers and clever lawyers have over the years argued successfully that
very minor injuries are to be considered as GBH. Yet again there is no way
that the man in the street can be expected to have followed legal debate
about what constitutes GBH.
Realistic Depictions
One of the most obvious failings of the proposal is that for the simple
convenience of the authorities real violence has been substituted with the
concept of the 'depiction of violence'. Movies are awash with depiction of
violent acts. We are happy to view these with the knowledge that nobody was
hurt during the making of the film. Now what happens when standard dramatic
staging of violence occurs within a film with explicit sex scenes. For
example if the film, Reservoir Dogs, were to be remade with the same violent
scenes but with a very explicit loving sex scene that was definitely
designed to arouse the viewer. Is the whole film now a 'sex works' such that
a viewer would be sent to prison because it contains strong depictions of
violence? Perhaps the law makers would like to redefine 'sex works' to
somehow only apply only to a single scene depicting both sex and violence
together. This would at least allow standard dramatic staged violence to be
used for linking story lines.
Another approach would be to suggest that standard staged violence could
be excluded from consideration in serious dramatic works. Of course a lot of
the films that mix sex and violence could hardly be called serious dramatic
works. Would such an exclusion then not apply to cheap exploitation horror
films. Yet again how can the man in the street be expected to make such
judgments.
Apparently non-Consensual
The inclusion of depictions in the Government's prohibition coupled with
the a ban on apparently non-consensual scenes prohibits other large and
popular genres of almost mainstream pornography. In particular, so called
spanking movies. These almost by definition feature staged non-consensual
material. These range from the laughably unrealistic up to some very strong
material indeed. But, as with mainstream films, we know that any openly sold
material is staged by people giving full consent.
How Can we be Expected to Judge the Contents Before we have Seen the
Film.
Because the Government seems intent on criminalising material that is
legal to produce then we will have little assistance in being able to judge
the content of films.
After going to bed, if we record an evenings viewing on a European adult
satellite channel that happens to include a strong BDSM movie that is
atypical of the usual programming, are we likely to be liable for a prison
sentence. How can this be if we are simply not aware of the fact?
If we order a film from abroad that contains some unannounced prohibited
scenes amongst more mainstream porn, could we be imprisoned because it
gets intercepted by HM Customs. How can this be when we may be unaware of
the contents? Because the UK is out of line with other countries then no-one
is going to put warning notices on films for sale, simply because they don't
know and don't care that it could be illegal in the UK.
Would it be a defence if any prohibited material conforms with the US
2257 regulation such that the details of filming are kept on record by the
producers and can be checked if any law enforcement agencies consider films
or images to feature illegal acts?
Community Support
The Government rather hopefully assumes that because the ban on child
pornography is successful than similar measures against violent pornography
can be equally effective. The ban on child porn is effective because the
community supports it. The support for this latest proposal has no chance to
receive such levels of community support.
Assuming that the material is in fact adult and consensual (even if
depicting violence or non-consensual activity) then the Melon Farmers will
surely not support the authorities in any prosecutions.
It is unlikely that the prohibition as proposed will be supported by the
generally liberal Internet community. Those unfortunate enough to be
harassed by the authorities will be confident of getting assistance from
many forums such as the Melon Farmers. This make take the form of publicity,
legal advice, reassurance that they are victims rather than criminals and
technical advice on encryption & proxy servers etc.
A negative consequence of wider technical debates on encryption, thorough
deletion of surfing trails, offshore ISPs/mail servers and proxies etc may
lead to more real criminals being aware of and able to use such techniques
Principles
It is simply wrong to prosecute many innocent people who are in
possession of consensual images just to make prosecutions easier against
those with non consensual material. Any new law should target only truly non
consensual images.
Internet surfers should not be made to live in fear of material declared
to be illegal that is so widely included in mainstream pornography without
labeling or indication.
It is simply wrong to design a law that relies on trust that people won't
be prosecuted for accidental possession. Law enforcement agencies tend to
see in black and white and traditionally seem to see prosecutions as face
saving exercises that they do not want to lose out of principle. That
principle is often of saving face rather than of justice.
It is wrong to define a law with such extreme punishment when there are no
clear definitions of what is punishable.
Punishment should be proportionate to the crime. How can three years
imprisonment be considered proportionate when applied to an otherwise law
abiding and peaceable person just for possessing an image that is legal to
create.
In fact, if one considers the wider effects of imprisoning somebody for 3
years on their family and dependents, then the penalty is simply ludicrous
to anyone who has not committed a violent act in their entire life.
Before imposing new censorship the Government should justify the harm
that would otherwise occur. If they cannot do this then there should be no
new extension of the law.
Denial of Sexual Entertainment
The British Government has a track record of denying British people the
right to sexual entertainment. For years mainstream hardcore pornography was
prohibited. People were routinely imprisoned for trading in it. Yet now that
it is legally available there has been no apparent problem. This seems to be
recognised by society in general by increasing acceptance.
It is intuitive to me as a man that those that enjoy a regular sex life
whether with a partner or masturbating using adult entertainment are
unlikely to become rapists. Perhaps the Government should acknowledge that
for many, pornography is an effective relief of sexual tension.
Perhaps the Government could even encourage people towards more
mainstream hardcore material by ensuring that it is more conveniently
available by mail order from trusted UK companies and from the tightly
regulated world of broadcast/cable/satellite TV.
Total denial of sexual pleasure certainly does not seem a practical
proposition. Communities of people with good potential can get well screwed
up by the denial of sexual pleasure. Perhaps Catholic clergy may be an
obvious example.
Morality
It is interesting note one of the Government's justification for the
proposal: "To send a clear message that it is wrong"
The widely defined list of prohibitions surely defeats the concept that
it is wrong. There seems little 'wrong' with enjoying a sex film that
happens to have a violent storyline. There are many hardcore films with say
a vampire story line where there are depictions of violence to the point of
death.
The UK Government hardly has a good track record of track record of
knowing wrong. Many people have been imprisoned for selling what is now
considered perfectly legal hardcore. For years the Government thought that
homosexuality was wrong, now we consider discrimination against
homosexuality to be 'wrong'.
Perhaps on a slightly wider observation and personal note, the world's
conflicts seem to revolve around countries where a religious state try to
impose sexual morality on their own people and others. Those states showing
more tolerance of the private lives of their citizens tend to be more
stable. I would suggest that the UK Government should at least not
automatically side with those of religious persuasion who are suggesting new
laws simply to impose their own morality on others.
Balancing the gains and losses to Society.
Much of the Government debate on this issue is focused on the gains to
the society in terms of a potential reduction in serious crimes. The only
notable downside mentioned in the proposal is the cost of enforcement.
Perhaps the Government should also address the negative impact on society
of unjustified censorship. How many more people are going to fear a knock on
the door from the police? How much more stressful is a walk though customs
when they could imprison you for 3 years for an image they take offence at?
How much more will it add to the British deserved cynicism of the
establishment? How many more financially successful people are going to
emigrate?
And on the other side of the balance, how many violent people will be
curtailed by this legislation. Those criminals such as Graham Coutts who so
obviously have zero respect for the law or other people and who show no fear
of either are unlikely to heed the small risk of being caught in possession
of violent images. In fact, it could sometimes make the situation worse as
they are forced to cover their tracks more thoroughly. Less chance that a
family member could accidentally find the images and confront the person
before mental problems spiral out of control.
Human Rights Considerations
The right to free expression
requires that material that is merely offensive cannot be restricted
without strict justification of the harm that otherwise occur. The Home
Office in the proposal say that they cannot justify the censorship.
Punishments should be proportionate to the crime. How can 3 years in prison
for simple possession of images be proportionate to the harm done. Exactly
what harm is done if the owner is a perfectly peaceable otherwise law
abiding person.
A European citizen should be able to know whether they are
breaking the law or not. This proposal provides very weak definitions that
are widely debated amongst professionals. How is the downloader supposed to
be able to know whether they abiding with the law or not.
Final Thoughts
Why is there absolutely no mention of more
positive measures to assist people who may need help. Years of failed
prohibition in the area of drug crime have at least led to schemes for
rehabilitation assistance etc. Why is there nothing similar here.
If the
Government considers that a man caught in possession of a violent image is a
threat to society, I would have thought that counseling may assist an awful
lot more than 3 years in prison.
The absence of positive assistance surely
reveals that the legislation is more kneejerk than a genuine attempt to
solve the perceived problems.
And a Melon Farming thought to any
legislator/politician/law enforcer suggesting such draconian penalties for
such a minor transgression: ARE YOU ABSOLUTELY SURE that your own
SON/DAUGHTER/BOTHER/SISTER/HUSBAND/WIFE/MOTHER/FATHER is not a closet
downloader of material to be prohibited?
Questions in the Proposal
Current Legislation
1. Do you think the challenge posed by the Internet in this area requires
the law to be strengthened?
No the law should be better targeted at material that features actual
serious sexual crimes, actual non consensual activity or features children
below the age of consent. The law should be relaxed for images of legal,
consensual adult material
Evidence of Harm
2. In the absence of conclusive research results as to its possible negative
effects, do you
think that there is some pornographic material which is so degrading,
violent or aberrant
that it should not be tolerated
Only pornography that features actual serious sexual crimes, actual non
consensual activity or features children below the age of consent.
Content of Material
3. Do you agree with the list of material set out ?
No it should be limited to material that features actual serious sexual
crimes, actual non consensual activity or features children below the age of
consent.
4. Do you believe there is any justification for being in possession of such
material?
In regards to the Home Office list, people do not need justification for
material. It is up to the Government to properly justify any
restrictions it imposes. If the list were targeted at material that features
actual serious sexual crimes, actual non consensual activity or features
children below the age of consent then perhaps the only justification is
that the viewer could not reasonably be expected to know that the material
is illegal.
Options
5. Which option do you prefer?
Option 1: add the offence of possession of obscene material to the OPA
Option 2: add the offence of possession of depictions of violent porn,
bestiality and necrophilia to the OPA
Option 3: create a new offence of possession of depictions of violent porn,
bestiality and necrophilia
Option 4: do nothing
I prefer option 4: do nothing. I would also like to take particular
exception to option 1. It is a simply extreme option that is not even
outlined in the discussions earlier in the proposal. Merely obscene material
brings into the discussion, material featuring perfectly legal activity.
There is absolutely no law against fisting or golden shows etc. Why should
an private image of bedroom fun attract any kind of penalty whatsoever.
It is particularly worrying that this option is thrown in without any
debate as to the consequences of criminalising so many millions of images
with such extreme penalties. And particularly worrying that it seems that HM
Customs are supporting this option.
6. Why do you think this option is best?
See discussions above. The Government have neither provided justification
for their restrictions. The material that the Government has listed for
prohibition is so wide that it is more likely result in injustice for many
rather than a reduction of serious crime.
Penalties
7. Which penalty option do you prefer?
None. The Government has provided such a wide remit of prohibition that most
of it should attract no penalty whatsoever
