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Extreme Pornography...Consultation response from MUD-UK |
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Consultation response Possession of extreme pornography November 2005 |
| 1. Who are we? MUD UK runs a photographic studio in Manchester that is themed around SM Fetish. The studio is equipped with SM Fetish props and is hired by members of the MUD Private members club and used by them to gather for social events. The studio provides a safe private environment for our members to gather in small or large groups, play and if they wish take photographs or shoot video. Our members sign up to a code of conduct that commits each and everyone to conduct themselves in a wholly consensual manner. Our membership is drawn from all walks of life and includes upstanding members of the community of all sexual orientations. Collectively our membership represents a significant group within a distinct social minority – namely the SM Fetish community. 1.1 It is important to understand the social minority of SM Fetish practioners. These are a highly responsible group who base their sexual relations on a developed sensibility of trust and mutual respect. MUD-UK operates under the mission of ‘Safe, Sane Secure’ MUD-UK promotes the members code of conduct and all of our members, and the various clubs who visit us are all committed to these principals. 1.2 Our members work hard to educating those who have come to express themselves and their sexuality through SM fetish. Our members all take a responsible attitude to their SM play activity. Safety is paramount; consensuality is critical. MUD-UK business as a photographic studio provides a safe, private, secure place for our members to develop themselves and practice their fetish in safety. Members sometimes use photographs a record of their activity that may help others understand how to do this safely, or to indicate to future partners the degree of experience or interest in particular aspects of the SM fetish. They are also used to create erotic art. 1.3 Many of our members have no other place to do this as they are already persecuted in society and thus have to keep their sexual interests hidden from those around them – such as from employers, friends or even relatives. 2. Our Response to the consultation We have provided a response to each of the questions posed in the Governments consultation: On the possession of extreme pornographic material in the pages that follow. 2.1 We are concerned that the Civil Servants who have prepared the questions may have presented these in such a way as to elicit a response and endorsement of the drafter’s views rather than try to understand the issues that their proposals would create. Thus in responding to the consultation we have presented an overview of our concerns, with an executive summary (Appendix 2), and then we have gone on to respond to each of the seven questions posed. We hope that this approach will help parliament to consider the issues in a more balanced way. 3. Concerns with the proposed new legislation Whilst we have concerns about the general interference of the state in people’s private lives, our freedom of expression, our primary concerns lie in the vagueness of what is proposed. We have left the more general issues for others more eloquent than ourselves to express. Our response is predicated on the saying … “if you must do this damn silly thing, don’t do it in this damn silly way” 3.1 We are concerned that the proposals as set out potentially criminalise activity that the Government does not intend to target, and reinforces social prejudice and discriminates against our social minority. The Government is seeking to outlaw material that is ‘violent and abusive’, activities that are illegal themselves, and protect participants who may have been victims of crime themselves. Their intent is to target pornography that features violent rape, sexual torture and other abusive ‘non-consensual acts’. 3.2 We are concerned to note that whilst the Government acknowledges that there is no evidence to suggest or show that such material has any long term impact on individuals or create criminality, the Government is still seeking to imprison people who possess such material, on a moral belief that this material has no place in our society. In determining what is violent or abusive, or depicts sexual torture, or activities that are illegal, the Government proposes a definition based on a two sweeping characteristics: o Serious violence in a sexual context, o Serious sexual violence. Here serious violence is stated to include any activity that could lead to prosecution for bodily harm or assault. 3.3 We are concerned that these definitions are too broad and vague and potentially rely on definitions out with parliament based on the social prejudice of individual law officers in the Crown Prosecution Service or Customs and Excise We know that the ‘Spanner case’ already means that even where such ‘illegal activity’ is consensual – both the ‘victim’ and perpetrator, could be prosecuted, unless the consequence of the ‘assault’ is ‘transient and trifling’ The definition of ‘transient and trifling’ is already vague and difficult to determine. 3.4 We are concerned that the new vague definitions proposed bring the risk of malicious prosecution, to discriminate against our minority even more likely. The prosecution of consensual partners (assailant and assailed) is already subject to a pending challenge under Human Rights legislation in the European courts. In our consensual play and sexual activity we know that to stay within the current law, we must make sure any ‘injury’ is not more than transient or trifling. We know that the Crown Prosecution Service regards some of our SM activity as obscene. In their published guidelines they state that it is common to pursue prosecution for distributing or having material for commercial gain for some of the activities that we pursue in our private sex lives. For example, Flagellation (flogging or corporal punishment) Torture with instruments Bondage (especially with gags) Activities involving perversion or degradation We also know that customs and excise officers have added to this list, for example having included the sexual activity of ‘Fisting’ as being obscene. Even where the BBFC have approved films including Fisting, customs officers have taken action to override the official Government censors. 3.5 We are concerned that parliament is permitting Civil Servants to use their personal social prejudice to override the intent of current legislation and to widen the discrimination against our social minority. In our social minority such activities are commonplace, all on a consensual basis. We know that some images our members take may be regarded as obscene. We know that this is acceptable under the law provided that members do not distribute these for commercial gain, or have them for commercial gain. Thus the private pictures our members have must remain private for their own personal use. We also know that some images that our members take may be regarded as indecent. However our play is always consensual, and whilst sexual offences are not defined in the Obscene Publications Act, our members know to err on the side of safety and caution. We ensure that if images are to be published, we do not permit exposure to children or vulnerable adults (restrictions on entry to websites etc); we do not permit the general public to view such images, and we ensure that all participants are consenting. Thus our member’s private activity remains just that – private. 3.6 We are concerned that under the proposed new law – it would no longer be simply acceptable to keep these images to ourselves; our members could be jailed simply for taking them and having them. 3.7 We are concerned that should it become illegal for our members to take and keep images, the possibility of educating others in the safe ways to enjoy their sexuality would be lost. 3.8 We are concerned that the vagueness of the wording proposed for the categories of offences presents problems for a wider group in society. There are many mainstream magazines, (e.g. Bizarre magazine), BBFC approved films and DVD’s, (e.g. Lord of The Rings SAW and SAW2), that depict what could be construed as serious sexual violence, or serious violence in a sexual context. The law as proposed suggests that anyone possessing this sort of material could risk prosecution and imprisonment. This suggests that everyone in the land would need to rummage through any back copies of legitimate films or books, make a personal judgement as to whether the violence was ‘serious’ and then make sure such material was thrown away. 3.9 We are concerned that the vagueness in defining categories potentially would make it impossible for MUD-UK to continue trading leading to the loss of the safe environment provided for our members When members hire the dungeon we would have to caution those hiring the space, that they could not take certain types of pictures. We would have to rely on the broader list created by law officers of what is obscene as the proposed categories in the consultation are too vague and ambiguous for us to judge what may or may not be legal to possess. If we get the judgement wrong we run the risk of exposing MUD-UK and our members to malicious prosecution. If we were to protect ourselves by banning the taking of any photographs – in the absence of properly defined boundaries – as a photographic studio we would be placed in an impossible position 3.10 We are concerned that unless this legislation provides clear acceptable boundaries the business would have to close, and our members would lose the safety of their private club to explore their interests in private and away from the social prejudice that discriminates against our social minority. 3.11 We are concerned that the vague and ambiguous definitions proposed would potentially drive SM activity underground and increasing the risk for our members of discrimination, and blackmail reinforcing the social prejudice found against this minority in society. 4.0 Conclusions We do not believe that it is the Government’s intention to outlaw consensual material, nor to stop our social minority from pursuing in private its legitimate sexual interests. However unless the definitions of ‘serious violence in a sexual context’ and ‘serious sexual violence’ are properly defined the government will not only find it’s target, it will criminalise a large responsible social minority in society, criminalising consensual activity that harms no-one and which the Government has said it does not wish to target… We believe that the definition of what is meant by “serious” needs greater clarity, and that lesser categories showing consensual activity for private consumption should be specified. We believe that the legislation should allow parliament to decide what is or is not acceptable and reconsider the CPS list of what is obscene rather than permit civil servants to reinforce any social prejudice against us. 5.0 Consultation Questions Q1. Do you think the challenge posed by the internet in this area requires the law to be strengthened. Response No. We have severe doubts as to the need for this legislation. Those that seek out extreme pornography will continue to do so whatever rules are in place. It is unlikely to deter those that have psychopathic tendencies and will likely only provide a mechanism to punish after the event, rather than protect and prevent the worst excesses of behaviour that may or may not have lead to murderous intent. We understand that there are concerns that a number of extreme crimes carried out in recent history have been perpetrated by people who have viewed pornography on the Internet and other means. Notably there was the recent case of cannibalism and the case which has inspired these new proposals where the murderer claimed he was inspired to murder Jane Longhurst by viewing a website showing amongst other things breath control. The Government acknowledges on page 1 of the consultation that they “do not yet have sufficient evidence from which to draw any definite conclusions 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 sexual behaviour”, yet they seem to wish to impose restrictions on ownership, just in case. The Consultation states that it is the intention to try and break the demand/supply cycle and even they have no evidence to support their belief the Government believes that extreme pornography encourages or reinforces interest in violent abhorrent sexual activity. We do not believe that this is the safe foundation for any legislation in a free and democratic society. e.g. I may be knocked down by a bus tomorrow, but that is no reason to make it illegal for buses to travel the streets, or to outlaw me from crossing the road. The Government seems to be saying that whilst the established entertainment industry and published media can be regulated through current regulators, there is no such control or possible control on Internet publication. It is thus assumed that it would be necessary to prohibit possession of such material to deter anyone from accessing it. We do not believe that there is much merit in the argument for prohibiting the most extreme material as proposed, but recognise that some elements in society and parliament may wish to do so. We do not believe the proposals put in the consultation document strengthen the law, but simply criminalise a broad based section of society and drive the problem underground, feed the social prejudice against our social minority and expose many of us to blackmail, intimidation and malicious prosecution. The current proposals as they stand fail to define what is or what is not acceptable but instead rely on vague terms that are open to interpretation. The consultation states that the term Obscene is not defined, yet in practice these are currently defined by unelected law officers from the CPS or Customs and Excise. The consultation states that it is intent to target a “limited range” of extreme pornographic material, that it is not targeted at consensual activity. The proposal however presents a definition that permits the wider and lesser categories used by the CPS and Customs Excise to be brought into the scope of the new rules. Thus a greater range of images that an individual may or may not possess for private non commercial use, than intended will fall within the scope of the proposed legislation. We believe that this is a sledgehammer to crack a nut. It will criminalise huge volumes of material, approved by BBFC for example, and magazines that present erotic images distributed to limited consenting audiences. We strongly urge the Government to ensure that the boundary definitions are clearly set so as not to criminalise private photographs that are not used for commercial gain, or are limited in distribution (as per considerations for indecent material) to ensure that the range of prohibited items only affects the target material. We also strongly urge the Government to ensure any proposals include well defined definitions and thus reign in the freedoms given to Law Officers rather than elected representatives to set boundaries that are based on social prejudice. We also urge the Government to revise the list of articles listed as obscene by the CPS, which includes activity that is neither serious violence nor serious sexual violence in the context of our social minority. Specifically we wish to see the following categories used by CPS of ? Flagellation (flogging or corporal punishment) ? Torture with instruments ? Bondage (especially with gags) ? Activities involving perversion or degradation (which are illegal to distribute or have for commercial gain) to be taken out of scope of the proposed rules. In a consensual context – such as that which we and our members practice – none of these represents serious violence, or serious sexual violence. What matters here is consent. Q2. 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 abherrant that it should be tolerated? Response It is hard to see how new legislation can be drafted without properly researching the harm that it is supposed to protect society from. As SM fetish practioners there is not much pornographic material that we think should not be tolerated. For those with a social prejudice to the minority to which I belong, then probably any depiction of my sexual activity should not be tolerated. To the homophobic, any images of myself and my boyfriend engaging in any sexual activity may be abherrant. Where do you draw the line? It really depends on whose prejudice you wish to pander to. We have already seen in the Spanner case sexual activity between consenting adults in private, where there was no victim, be penalised with prison terms. This criminalising of good up standing citizens where there was no evidence of any harm, and where the ‘victims’ were also penalised demonstrates the dangers for any social minority of drafting laws that extend the scope for over zealous policing or giving freedom for officials to exorcise their social prejudice. The proposals as they stand are defined in such a way as to open members of our minority to be subject to further discrimination and exclusion from society. Vague definitions in legislation are dangerous and serve to protect nobody. The only pornographic material that we believe our members would deem to be unacceptable, would be that which depicts activity that is non-consensual, or involves loss of life. We strongly urge the government to get research done to support its beliefs before providing further opportunities for social minorities to be exploited. Q3. Do You Agree with the list of material set out (in paragraph 39) Response No we do not agree with the list of material set out on page 11 in paragraph 39. We consider items iii and iv in this list to be too vague as to limit the extent of material prohibited to that targeted by the government. Our concern arises from the way that the spanner case ruling targeted our social minority. The consultation purports to target serious violence – implying only that which could lead to a prosecution of grievous bodily harm (i.e serious physical damage). However the CPS pursue prosecution for material depicting much lesser activity where images of such activity are distributed or owned for commercial gain. Our concern is that these lesser activities will fall within scope of what is legal to possess even though they are clearly outside the categories defined in paragraph 39. We believe the legislation should be framed to ensure that the lesser categories are excluded, but with the restrictions on distribution and ownership for commercial gain remaining. Q4. Do you believe there is any justification for being in possession of such material? Response Yes we do believe that there are legitimate reasons for possessing this material. Many of our members take pictures of their sexual activities in order to instruct and educate others in how to practice SM fetish in a safe and consensual manner. Others take pictures to keep track of their journey through the SM Fetish experience, and to demonstrate to future and prospective partners the extent of their experience and expertise. Those of us with websites – with restricted access to prevent falling foul of indecency law – which we have used to illustrate to new prospective partners the extent of our experience will find that possession of these images of ourselves may well lead us to prosecution. Currently they are not illegal. Making sure that your partner is well informed and that you are aware of each others needs, limits and so on, enables the bond of trust to be built up and for SM play to be conducted in safety. Without pictures, the prime means of educating and ensuring safety is lost. We also believe that it should not be illegal to own pictures of oneself, even if these images depict sexual activity. The proposals as they stand prevent me from keeping any pictures of my partner or myself if that depicts us engaging in our legitimate private sexual activity. We would be open to blackmail or malicious prosecution if anyone was to know we had photographs of myself and my partner – taken in the privacy of our own home or elsewhere, and never distributed or used for commercial gain. The same would apply to any photographs of our encounters with the various sexual partners that we have both enjoyed trusting and SM relationships with over many years. The proposals do not make it clear how we would determine which of our private photos we would be expected to destroy in order to stay within the new law. Again the problem lies in the vagueness of the categories proposed and the extension of the CPS definitions for lesser categories also to be prosecuted under the new rules. Q5. Which Option do you prefer? Response We prefer Option Four We see Options One and Three as the least practicable, In the event that the Government decides to proceed with legislation in this area we see Option Two as exposing our members to least risk of increased social prejudice and discrimination. That however must be qualified that we would not support Option two unless A: the proposed categories were clearly defined to limit the extent of material in scope B: the legislation excluded the lesser categories currently determined by Law Officers at CPS and Customs and Excise as obscene, provided these were for private use and only distributed under the current rules determined for indecent images. Q6. Why do you think this option is best Response We have severe doubts as to the need for this legislation. We believe that those that seek out extreme pornography will continue to do so whatever rules are in place. It is unlikely to deter those that have psychopathic tendencies and will likely only provide a mechanism to punish after the event, rather than protect and prevent the worst excesses of behaviour that may or may not have lead to murderous intent. It is hard to see how new legislation can be drafted without properly researching the harm that it is supposed to protect society from. We do not believe that this is the safe foundation for any legislation in a free and democratic society. We do not believe the proposals put in the consultation document strengthen the law, but simply criminalise a broad based section of society and drive the problem underground, feed the social prejudice against our social minority and expose many of us to blackmail, intimidation and malicious prosecution. The proposals as they stand are defined in such a way as to open members of our minority to be subject to further discrimination and exclusion from society. We believe that this is a sledgehammer to crack a nut. It will also criminalise huge volumes of material, approved by BBFC for example, and magazines that present erotic images distributed to limited consenting audiences We do not agree with the list of material set out on page 11 in paragraph 39. We consider items iii and iv in this list to be too vague as to limit the extent of material prohibited to that targeted by the government. Vague definitions in legislation are dangerous and serve to protect nobody. We do believe that there are legitimate reasons for possessing this material. We also believe that it should not be illegal to own pictures of oneself, even if these images depict sexual activity. Q7. Which Penalty option do you prefer? Response We do not support either of the penalty options proposed. We believe it wholly inappropriate to seek to imprison individuals for owning self-images, or other images that are currently considered acceptable under the Obscene publications Act – provided distribution is limited. We also consider it wholly inappropriate to penalise people for owning lesser categories of material for want of a proper definition in the proposal other than categories defined by unelected law officers at the CPS or Customs and excise. The proposed categories are so vague in construction and so widespread in scope – even including mainstream material – that the proposal as they stand would risk the prospect of sending to prison thousands of people across the UK who currently possess legitimate material that the poor drafting of legislation would ‘accidentally’ criminalise. |
| Appendix 2 Summary of concerns with the proposed new legislation General 1.1 It is important to understand the social minority of SM Fetish practioners. These are a highly responsible group who base their sexual relations on a developed sensibility of trust and mutual respect. 1.2 Our members work hard to educating those who have come to express themselves and their sexuality through SM fetish. Our members all take a responsible attitude to their SM play activity. Safety is paramount; consensuality is critical. 1.4 Many of our members have no other place to do this as they are already persecuted in society and thus have to keep their sexual interests hidden from those around them – such as from employers, friends or even relatives. The Consultation Process 2.1 We are concerned that the Civil Servants who have prepared the questions may have presented these in such a way as to elicit a response and endorsement of the drafter’s views rather than try to understand the issues that their proposals would create. The Proposed new law 3.1 We are concerned that the proposals as set out potentially criminalise activity that the Government does not intend to target, and reinforces social prejudice and discriminates against our social minority. 3.2 We are concerned to note that whilst the Government acknowledges that there is no evidence to suggest or show that such material has any long term impact on individuals or create criminality, the Government is still seeking to imprison people who possess such material, on a moral belief that this material has no place in our society. 3.3 We are concerned that these definitions are too broad and vague and potentially rely on definitions out with parliament based on the social prejudice of individual law officers in the Crown Prosecution Service or Customs and Excise 3.4 We are concerned that the new vague definitions proposed bring the risk of malicious prosecution, to discriminate against our minority even more likely. 3.5 We are concerned that parliament is permitting Civil Servants to use their personal social prejudice to override the intent of current legislation and to widen the discrimination against our social minority. 3.6 We are concerned that under the proposed new law – it would no longer be simply acceptable to keep these images to ourselves; our members could be jailed simply for taking them and having them. 3.7 We are concerned that should it becomes illegal for our members to take and keep images, the possibility of educating others in the safe ways to enjoy their sexuality would be lost. 3.8 We are concerned that the vagueness of the wording proposed for the categories of offences presents problems for a wider group in society. 3.9 We are concerned that the vagueness in defining categories potentially would make it impossible for MUD-UK to continue trading leading to the loss of the safe environment provided for our members 3.10 We are concerned that unless this legislation provides clear acceptable boundaries the business would have to close, and our members would lose the safety of their private club to explore their interests in private and away from the social prejudice that discriminates against our social minority. 3.11 We are concerned that the vague and ambiguous definitions proposed would potentially drive SM activity underground and increasing the risk for our members of discrimination, and blackmail reinforcing the social prejudice found against this minority in society. |