Executive summary
The proposed bill:
- Will criminalise a large number of otherwise harmless and law-abiding
citizens for viewing harmless adult material.
- Will fail to achieve its stated objectives.
- Will cause considerable harm, and provide no appreciable benefits.
- Disproportionately penalises two sizeable, but unpopular minorities: gay
men and sadomasochists.
- Creates a false analogy between harmless adult material and child
pornography.
- Abandons the principle of evidence-based legislation.
- Is knee-jerk legislation in response to a single incident.
- Will put the UK out of step with the rest of the civilised world.
In Detail
The proposed bill will criminalise a large number of otherwise harmless and
law-abiding citizens for viewing harmless adult material.
The consultation admits that there is no evidence of harm caused by, or to,
consumers of extreme pornography. There is very little evidence of harm to
the producers of this material, despite the nature of the material. With
modern post-production techniques, even the most graphic of images can be
created on a computer, after the event. In the rare cases where harm is
caused producing the material, existing laws are in place.
It would therefore be a travesty of justice to imprison someone for viewing
images of this sort, no matter how repulsed or offended we may be. It is
also inconsistent to punish the possession of images of such acts, simply
because they are of a sexual nature, when images of murder, mutilation, etc
are all perfectly legal, although the acts themselves are far worse. Graphic
images of simulated murder are widely available for entertainment, and real
murders are shown on 24-hour news channels, yet no legislation addresses, or
should address, these.
The proposed bill will fail to achieve its stated objectives.
It states that the intention is to ‘reduce the demand for such material’
despite the fact that the approach of criminalising things does little to
reduce the demand (as we see from the current War on Drugs).
It states that the intention is to ‘protect those who participate in the
creation of sexual material containing violence, cruelty or degradation…’,
although there is no evidence provided that these participants need or want
protection. The idea of ‘notional consent’ being given by these participants
is particularly patronising and paternalistic.
It states that the intention is to ‘protect society, particularly children,
from exposure to such material’, despite the admitted absence of evidence of
harm, to either society or children, and the fact that this material is for
adult consumption.
The proposed bill would cause considerable harm, and provide no appreciable
benefits.
You do not examine legislation in the light of the benefits it will convey
if properly administered, but in the light of the wrongs it would do and the
harms it would cause if improperly administered. - Lyndon Johnson
Considering the number of people likely to be affected by this bill[1], and
the draconian punishments proposed, the harm caused would be considerable.
Harm would be caused even if properly administered, which the history of
moral panics has shown is unlikely.
Restrictions on pornography are typically associated with an increase in sex
crimes[2]. The costs associated with implementing this legislation would
also be considerable. Given that there is no evidence of harm being caused
by this material, the benefits would be negligible, save to queasy
moralists.
The proposed bill disproportionately penalises two sizeable, but unpopular
minorities: gay men and sadomasochists.
Two of the proposed classes of material, ‘Serious violence in a sexual
context’ and ‘serious sexual violence’ rely on the presence of ‘serious
violence’, which is defined as an act of ‘violence in respect of which a
prosecution of Grievous Bodily Harm could be brought…’ GBH has been judged
to include acts in which the skin is broken. This would have a particular
impact on the BDSM[3] community, as the skin is broken in a significant
amount of consensual BDSM activity.
BDSM is a common paraphilia, with some 4.5% of the adult heterosexual
population, and 26% of the male homosexual population having an interest
[1].
As it is entirely likely that anyone who has an interest in BDSM imagery
will have one or more images that contain broken skin, this law would
criminalise a significant proportion of the adult population. At a minimum
20,000 people would fall foul of this law [4], with a disproportionate
number being gay men.
The proposed bill attempts to create a false analogy between harmless adult
material and child pornography.
This consultation attempts to create an analogy between child pornography
and the so-called extreme pornography discussed in the rest of the document.
I believe this is a false analogy, for the following reasons:
- There is considerable evidence of harm caused by paedophilia, and it is
right that efforts should be made to prevent the production of material that
may encourage the commission of paedophile acts. There is no corresponding
evidence for the harm caused by extreme pornography, as the document itself
admits.
- The making of child pornography necessarily requires the commission of a
crime in its manufacture (pseudo images aside). This is not necessary for
extreme pornography, and indeed is rarely the case.
- The making of child pornography requires a child whose consent necessarily
cannot be given. Extreme pornography is, in general, created by consenting
adults, who are either paid for their participation, or who enjoy the types
of acts portrayed. The reasoning given ‘…in some cases participants may have
been the victims of criminal offences’ (my italics) is a particularly weak
justification for such draconian legislation.
- There is a global consensus on the undesirability of child pornography.
The UK would be alone in criminalising the possession of extreme
pornography.
The proposed bill abandons the principle of evidence-based legislation.
It states that the authors ‘…believe that most people would find this
material abhorrent’, and this theme is repeated throughout the document.
This is an irrelevant value judgement. I find many things abhorrent (insects
mouthparts, apple turnovers, fat people), but that is no reason to
criminalise them.
The rationale behind the legislation seems to be entirely based on
simplistic moralisation and political point scoring. There is not one shred
of evidence of harm.
The definition of ‘most people’ is also inexcusably vague for a document of
this kind. In proposing legislation, one should be aware of the number of
people one is preparing to criminalise [4].
The proposed bill is knee-jerk legislation in response to a single incident.
It asserts that ‘There is now also considerable public concern about the
availability of extreme pornographic material featuring adults’. This does
not appear to be accurate. Rather, this appears to be a knee-jerk response
to the campaign by Liz Longhurst after the unfortunate murder of her
daughter Jane Longhurst. Whilst I sympathize with Mrs Longhurst, it is wrong
in principle to have legislation formulated by the wishes of victims.
Will put the UK out of step with the rest of the civilised world.
No other non-totalitarian country in the world has, or is proposing
legislation of this kind. Hence any local laws will not affect the
production of this material, or the interest in it. It is also likely that
it will fail to comply with the European Convention on Human Rights, due to
the number of people criminalised, the difficulty in deciding whether
material falls under this legislation, the draconian nature of the
punishments, and the disproportionate effect on vulnerable minorities.
Questions
1. Do you think the challenge posed by the Internet in this area requires
the law to be strengthened?
I do not. In the absence of any evidence that such material causes harm to
either the participants, or the viewer, I do not believe any strengthening
of the law is necessary.
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?
I do not. Justice should be based on objective evidence of harm. The
epithets ‘degrading’ and ‘aberrant’ are subjective value judgements, which
simply display the underlying moral agenda of the proposal. In the absence
of evidence of harm, there is no reason why violent pornography should be
treated differently to violence in any other entertainment context (e.g.
horror films).
3. Do you agree with the list of material set out (in paragraph 39)?
I do not. Most of the material depicts acts that are either not criminal, or
are minor or victimless crimes. Specifically:
Item i) deals with depictions of acts which whilst illegal [5], are
essentially victimless. We murder and eat animals every day. It is in any
event a minor crime with a maximum penalty of 2 years.
Item ii) displays an act which causes offence to the friends and relatives
of the deceased, but is again a fairly minor crime. Images of ii) are also
particularly easy to fake, in which case no offence is taking place.
However, the number of people interested in images of this sort would be
vanishing small in any event.
Items iii) and iv) would have a particular impact on the BDSM community,
with a disproportionate impact on gay men..
The vast majority of images of BDSM activity are created by fully consenting
adults, who may be acting or faking the imagery, or may themselves have an
interest in BDSM. Much of this material is made abroad where no offence is
being committed, and post-production can create realistic-looking scenes of
‘serious violence’.
Suffocation scenes are all faked. There are no proven snuff movies. No
offence is being committed. Images of rape likewise are generally faked for
the purposes of dramatic effect. Again, no offence is being committed in the
vast majority of cases, no matter how realistic the depiction. Existing laws
cover the tiny minority of cases where an offence is being committed.
4. Do you believe there is any justification for being in possession of such
material?
I do. In fact I believe that it is an important right that adults are able
to express and celebrate their sexuality in the ways that they choose,
subject only to the provision that they cause no harm to anyone else. In
fact, numerous studies [2] have shown that countries with more relaxed
censorship laws have fewer sex crimes committed.
5. Which option do you prefer?
Option 4.
6. Why do you think this option is best?
For all the reasons stated above, I believe that any legislation of the kind
proposed would be counterproductive, disproportionate, and a morally
unacceptable persecution of a significant minority.
7. Which penalty option do you prefer?
I am unable to answer this question, as I do not believe that possession of
extreme pornography should be a crime.
Notes
1. Sexual preference: its development in men and women, statistical
appendix. 1981, Bloomington, Indiana Univ. Press. gives a value of 4.5% for
heterosexuals, 26% for homosexuals. Some studies show the paraphilia to be
as high as 8-10% (Lebegue, 1985, 1991).
2. http://www.ofcom.org.uk/research/radio/reports/bcr/r18.pdf
3. Bondage, Discipline, Domination and Submission
4. There are ~40m adults in the UK, ~2,000,000 have an interest in BDSM
[from 1]. If only 1 in 10 has a picture collection and 1 in 10 of those
collections has extreme pornography, that leaves 20,000 adults who would be
criminalized. I believe these to be conservative estimates.
5. In fact, the Sexual Offences Act 2003 defines an act of bestiality to be
the penetration of an animal's vagina or anus. Therefore oral sex with an
animal is not illegal. The proposed legislation would, however make
possession of a picture of this act illegal.
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