Proposed Legislation on Possession of Extreme Pornography
I am writing to you because I have grave concerns about the
proposals that have been put forward by the government, as reported
recently in the general media. I have therefore read the
consultation document as published on the internet and considered my
responses carefully. My concerns are outlined below, and in the
answers I include with this letter to the consultation questions.
The proposal states in the Executive Summary and in paragraph 34
that the aims are "to protect those who participate in the creation
of sexual material containing violence, cruelty or degradation, who
may be the victim of crime in the making of the material, whether or
not they notionally or genuinely consent to take part," and "to
protect society, particularly children, from exposure to such
material, to which access can no longer be reliably controlled
through legislation dealing with publication and distribution, and
which may encourage interest in violent or aberrant sexual
activity."
Before answering the consultation questions I wish to argue that the
proposal does not serve these interests well, and in some cases is
out of step with current practice and public opinion.
A major part of my argument is on the grounds of consent. In recent
court cases it has been the view of the court that matters of
consensual acts between partners in a private relationship were of
no concern to the court. While this is a long way from saying that
the same would be found of participants in the production of
material for profit, it indicates that current opinion is that
consent is a direct issue in matters of violent sexual conduct.
Given that the participants are taking part consensually, it is to
be questioned whether protection is required. It is also
questionable that they can be said to be "victims" of the acts that
take place. Since they are adults, it may be assumed that they are
able to decide for themselves what level of participation they are
willing to undergo. The consultation paper in paragraph 38 makes it
clear that it is the realistic depiction that is to be considered
illegal, on the grounds that proving that an illegal act had taken
place would be "an insuperable hurdle for the prosecution." This
makes the claim in paragraph 28 that "...the material may often
cause serious physical and other harm to those involved in making
it; in some cases the participants are clearly the victims of
criminal offences," much harder to support.
The second objective of the legislation is given as being "to
protect society, particularly children, from exposure to such
material..." and the consultation paper references the Obscene
Publications Acts 1959 and 1964, where the criterion is given as "an
article shall be deemed to be obscene if its effect, when taken as a
whole, is such as to tend to deprave and corrupt persons who are
likely to read, see or hear it." The consultation paper uses
statistics of internet usage to suggest that material on the
internet is likely to be read, seen or heard by a wide range of
people including young people or children.
However, because of the vast amount of legal pornographic material
that is also available on the internet, a large range of software
has been produced that is designed to enable computer users to
prevent such material from being displayed on their computer. Such
software is often called "nannyware" as it is designed to be set up
by parents to prevent their children from being exposed to
unsuitable material, like a "nanny" overseeing the children's
activities online. It may also be observed that the major search
engines, the main means by which pages are sought out on the
internet, also run "safe search" options so that computer users can
choose not to be informed of the websites that are likely to cause
offence and/or display pornographic material. Although some
suppliers of pornographic material attempt to use unsolicited email
to entice new customers, there is legislation against such email
usage and there are also software facilities now built into most
email reading programs that block and remove such emails
automatically. Because there are these barriers and means to prevent
people from being confronted by pornographic material that they
would find offensive, it may be considered unlikely that these
images will be displayed to those who are likely to be "depraved or
corrupted" by them. Society as a whole, and in particular, children
are not likely to be exposed to such material simply because it is
in the private possession of an individual, and the means by which
it is obtained is such that, unlike the magazines, videos,
photographs etc that are policed effectively by the OPA, it need
never come into contact with society.
The third area I wish to address is that of "...which may encourage
interest in violent or aberrant sexual activity." There are two
questions here. The first is the definition of "violent or aberrant
sexual activity" and the second is one of whether the material
really would encourage an interest in the types of activity
portrayed, or whether it simply feeds an interest that was
pre-existing.
As has been remarked earlier, recent court cases have found that
activities that took place within the confines of a consensual
private relationship were of no concern to the court. These related
to practices collectively referred to as BDSM. In Britain today
there is a thriving BDSM community, and statistics available on the
internet suggest that there ma be as many as sixty thousand adults
consensually involved in BDSM activities. Since these are only those
who have made some form of declaration of their interest, it is not
inconceivable that the number is much higher. Such people regularly
carry out or "roleplay" (act out a scene involving the "rape" of one
or other partner, for example) on a consensual basis, acts of the
types described by your consultation paper as being portrayed in the
material under consideration. If, as has been declared, such
activities are of no concern to the court, it may be considered that
bringing in further legislation that would ban the possession of any
photographic or video record that such consenting partners may keep
of their activities, would be to go against the current opinion and
thinking in the country.
That BDSM is becoming more and more acceptable in modern society is
evidenced by the fact that high street stores such as Ann Summers
sell items that (while clearly intended only for display purposes)
that are symbolic of the BDSM lifestyle. Several recent advertising
campaigns on television and on billboards have used imagery
associated with BDSM and have made it explicit by verbal association
that the BDSM interpretation should be understood. Although I
understand that some of these campaigns have received complaints,
that the campaigns have been allowed to continue and that subsequent
campaigns have not been prevented, indicates that society as a whole
is much more accepting of the BDSM lifestyle than current law would
reflect.
However, it is also to be observed that in the most part, the people
viewing such advertisements are not themselves inclined to
participate in BDSM practices and furthermore would prefer not to be
exposed to such practices, either as witnesses to them or as
participants. For most people, being exposed to images of such
practices would not be likely to encourage any interest in such
activities. The people most likely to seek out such images and view
them are most likely to be people who already have an interest in
BDSM and either wish to know more about the lifestyle or are
interested in the images for sexual arousal based on fantasies that
are already possessed.
This point regarding sexual fantasies is one that I wish to pursue
further. The effect of the legislation is to criminalise fantasies
of a certain nature, namely of perpetrating, or having perpetrated
upon oneself, violent sexual acts. There have been a number of
studies that show that such fantasies are much more widespread than
people would suggest, with many women reporting fantasies of being
raped, tied up or beaten. Both genders report having fantasies of
such a nature either as the perpetrator or the victim, without
having any interest in seeing those fantasies come true. It is part
of the definition of a mentally healthy adult that he or she is able
to distinguish between fantasy and reality. Since the material under
consideration, while depicting realistic portrayals of actions, is
primarily a visual aid to fantasy, it may be safely assumed that
people choosing to view such material are in general not likely to
be encouraged to carry out such acts themselves, except as part of a
private consenting relationship of the type that has already been
observed has been described as "of no concern to the court". The
effect of the legislation as proposed is to criminalise a group of
people who are, outside of their chosen consensual sexual
activities, law-abiding citizens who represent no threat to society,
to morality or decency, or to anyone else.
Paragraph 57 of the proposal raises human rights issues, and in the
above argument I have already touched on the threat that this
legislation marks an unnecessary and dangerous intrusion of the
government into effectively trying to police people's fantasies and
thoughts. The European Convention on Human Rights states that the
grounds for restricting the rights granted in articles 8 and 10 are
that it is "necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and
freedoms of others." (Article 10 also includes elements restricting
defamation of others' character and similar statements that are not
directly relevant to these issues). I have explained why I believe
that the proposed legislation is not necessary to prevent disorder
or crime, why it is not necessary for the protection of morals, and
why it is not necessary (due to the issue of consent) for the
protection of the rights and freedoms of others.
All of the above I regard as applying specifically to the elements
(c) and (d) in paragraph 39 of the consultation paper. I do not
believe that my arguments are relevant to the issues of necrophilia
or bestiality.
In the light of the above, I would like you to consider that the
principles of freedom of thought and self-expression are deemed
important as part of a democratic society. The proposed legislation
marks an unnecessary intrusion of government into people's private
affairs and into the policing of thought as opposed to deed, which
thus represents a dangerous precedent.
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