General Points
This proposal appears to be inspired by a single case of murder. The murder
by Graham Coutts is obviously a tragic case, but there is no evidence that
legislating against possession of particular types of sexual imagery would
have prevented it. Unless a convincing case can be made that changes to the
law are needed to protect the public good, then the government should avoid
legislating.
Laws that seek to regulate sexual conduct and sexual expression have often
been based on the particular moral ideas or sexual preferences of those who
write them, and this proposal risks becoming the next one. It is not so long
ago that sex between consenting adult men was considered a crime. We need a
longer period to reflect on the massive changes to sexual culture over the
last few decades before we create another class of sex crime.
As a society we still do not have a particularly good understanding of
sexual desire. It is often difficult to see why particular patterns of
sexual interests emerge, or what effect they have on the people who try to
express them. It is unfortunate that some people do harm to others in
seeking an outlet to their sexual feelings, but there are many people who
find safe and healthy ways to enjoy what many would consider to be
‘aberrant’ desires.
There are many couples who, in the context of a stable and loving
relationship, explore some of the more ‘taboo’ aspects of sexuality. This
may include acts that are designed to facilitate expression of sexual
dominance or submission (such as bondage and corporal punishment), which may
make other people uncomfortable. Of course, it is not for the government to
tell these people that they are wrong to enjoy certain acts, providing only
consenting adults are involved, but a law against possession of ‘extreme
pornography’ could do exactly that. If a couple were to take some pictures
of their sexual exploits then they could find themselves in breach of the
law, even though nobody outside their relationship (or their bedroom) was
involved. We are not talking about cases of abuse or domestic violence, but
of lust and love enjoyed in all their diversity.
When there is not consent it is clearly a different matter, but one which
can be adequately addressed under the law already. This law would
criminalise depictions of consensual, mutually enjoyable sexual activity,
while saying nothing about depictions of violence which don't have a sexual
context. It seems to be based on a deep fear and shame of sex, a feeling
that it is something too dangerous to allow people to learn about without
hand-holding.
This new legislation would be tacked on to existing obscenity law, when it
should really form part of a complete overhaul of the UK's censorship
system. The emergence of the World Wide Web has left the Video Recordings
Act (VRA) out of touch with the common experience of sexually explicit
imagery. While it is easy to find pornographic material on the Internet that
many people would find disturbing, it is still difficult for most people to
buy legitimately published pornographic films in the UK, because of the
restrictions placed on R18 distribution under the VRA. This new proposal
would criminalise people for exploring the wide variety of pornography
available online, without sending a positive message about the pornography
that is legal to publish and buy in the UK. This could give the impression
that the government disapproves of pornography on principle, and tolerates
sexual expression in films only to reduce the amount of unregulated material
distributed illegally.
Another concern, in terms of the right to free expression (including sexual
expression, in a context which doesn't interfere with other people's lives)
is the chilling effect that this could have on distributors of pornographic
or explicit art material. If a publisher, printer, bookshop, or licensed sex
shop would risk criminal penalties for handling material deemed ‘extreme’,
then it could lead to works that are challenging, but healthy, being avoided
as a bad risk.
Answers to Consultation Questions
1. Do you think the challenge posed by the Internet in this area requires
the law to be strengthened?
No. There is no evidence that the increased availability of pornographic
material on the Internet is a problem or will cause any harm to society. If
there is any real danger, then it can only be met by a public more informed
about and comfortable with sexual issues. We simply don't yet have enough
understanding of the role the Internet will play in our society to justify
this kind of intrusion into the free exchange of information. It is too soon
to decide what people should be allowed to look at in their own homes.
As a society we need to get over our obsessive interest in sexual
transgression, and concentrate on stamping out real violence.
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?
No. Given that there is no conclusive evidence that pornographic material is
harmful to society (and some evidence that it is beneficial, at least in
terms of reducing sex crimes) the government should not legislate. The fact
that some of us may find certain imagery disturbing or distasteful is not
reason enough to send those who view it to prison. The government's role is
to protect society from harm, not from what it considers to be poor taste.
3. Do you agree with the list of material set out (in paragraph 39)?
No. The proposed list of restrictions includes some activities which are
likely to be considered legal (oral sex with an animal; some types of sexual
interference with a human corpse). The BBFC's response to this consultation
describes these concerns in detail, so I will not repeat them here.
The proposed list also reflects the true intent of the law. If this was
simply an attempt to protect people from sex crimes, then bestiality would
have no place in it. This is a law intended to criminalise people for having
sexual interests which some feel are immoral, whether or not they act on
those interests.
4. Do you believe there is any justification for being in possession of such
material?
Yes. Since I do not think that it is immoral to have minority sexual
interests, and to explore them in ways that aren't harmful to others, I
believe that sexual arousal is a valid reason to possess this kind of
material.
This kind of material may also allow people with unusual sexual interests to
explore them, in an attempt to find ways in which they can express their
sexuality in a harmless and consensual manner. It can be difficult enough to
come to terms with having sexual fetishes, or dominant or submissive
leanings, without the risk of being arrested for exploring those feelings.
5. Which option do you prefer?
Option four, do nothing.
6. Why do you think this option is best?
The consultation document dismisses this option because there is seen to be
a strong “moral and public protection case” for legislating. If the law is
not intended to protect people from sex crimes, it is hard to see exactly
what we are being protected against.
Leaving the law as it stands will allow people who find themselves
interested in unusual sexual activities to continue to explore those
interests in the safety of their own homes. It will also avoid causing
unnecessary expenditure in policing and prosecuting possession of extreme
pornography, and the greater human cost of otherwise blameless people being
imprisoned, embarrassed, or exposed to prejudice. Prosecutions under the
proposed law, even if unsuccessful, could lead to breakups of family and
other relationships, and the accused losing their jobs or children.
7. Which penalty option do you prefer?
I obviously feel there should be no penalty.
In particular, it seems strange to increase the penalties for the Obscene
Publications Act merely to justify a particular penalty under the proposed
new law. Even if this proposal is brought into law, it doesn't indicate that
publishing obscene materials will have suddenly become more serious. The
government needs to justify why these sentences are necessary to protect the
public good.
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