Section C Consultation questions
I do feel the need to point out that your
questions are very leading and biased, and
this goes against point 3.6 of the Cabinet
Office's "Code of Practice on written
consultation": "It will often be helpful to
set out key questions in a questionnaire -
though questionnaires need careful design,
in which expert help may be useful, so as
not to encourage a biased response."
It's also very worrying that you have not
consulted with any community groups, and I
understand the Spanner Trust is making a
complaint about this, which I support.
Current Legislation
1. Do you think the challenge posed by
the Internet in this area requires the law
to be strengthened?
No
Comments:
Creating images by nonconsensual acts
involving adults, animals or bodies is
already illegal.
The problem we face isn't people putting
images of genuinely nonconsensual acts on
websites and downloading them (where the
police can already trace them back to the
creator with co-operation from ISPs or
credit card companies.)
The real danger is people creating
uncontrollable, anonymous peer-to-peer
networks using cryptographic techniques
which are now widely available and
understood.
www.freenetproject.org is the most
prominent so far, but the danger is that
these are made as easy to use as Napster
etc.
By attempting to introduce a system of
prohibition on SM pornography, you are
adding to the pool of people willing to
participate in developing and deploying such
systems. (The music and film industries'
inflexibility about how media can be bought
online isn't helping either, and aggressive
copyright enforcement by them against
individuals in the absence of systems like
iTunes or a video equivalent would have the
same danger.)
There is a rule in the academic study of
distributed computing called "Metcalfe's
Law", which states that the usefulness of a
network increases as the square of the
number of participants. So if you increase
the number of members by a factor of ten,
the attractiveness of participating goes up
by a factor of one hundred. That then draws
in more people, and you see an exponential
expansion of the network: peer to peer
networks such as Napster and Kazaa have gone
from nowhere to millions of users within a
matter of months.
Prohibition in this area risks
jump-starting one of these explosions, but
centered on a peer-to-peer network which
uses cryptography to provide untraceability
(including providing those hosting the files
with a way of proving they don't know what
encrypted files they have: are they
documents published anonymously by Chinese
democracy activists or are they images which
you have outlawed? This is what Freenet does
already.)
The obvious consequence of this would be
that child pornographers and terrorists
could publish material without any risk of
being traced, and they could hide in amongst
a larger amount of SM pornography (and DVD
copies?)
In my view, the Home Office should be
spending its time and our money worrying
about these scenarios, involving genuinely
nonconsensual acts such a child abuse and
mass murder, and not trying to ban images of
sexualities which certain politicians merely
disapprove of.
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?
Yes: making images by committing
genuinely nonconsensual acts is already
illegal.
However, as you admit yourselves:
"Given the many different approaches to
conducting the research and framing the
questions, as well as differences in the
nature of the material examined, we are
unable, at present, to draw any definite
conclusions based on research 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."
So it is not just the absence of
"conclusive" results: the evidence doesn't
support your proposals. As such, I don't see
how it joins-up with the government's
acknowledged requirement for evidence-based
policy.
Content of Material
3. Do you agree with the list of
material set out?
No
Comments
I do not agree with the principle of
criminalising possession: anyone who commits
nonconsensual acts to make images should be
punished, not those who possess images which
are almost invariably going to be either
consensual or simulated rather than real (as
we see with the absence of any real "snuff
movie" cases.)
4. Do you believe there is any
justification for being in possession of
such material?
In a free society, it is for those
advocating laws to show why those laws are
needed, not vice versa.
As quoted above, you admit you don't have
that evidence.
Options
5. Which option do you prefer? (Please
tick one only)
Option 4 (no change to the law -
concentrate on real crime involving
nonconsensual acts.)
6. Why do you think this option is
best?
Comments:
For the reasons set out in my response to
the first question (the danger of
prohibition creating a bigger and different
problem) and because you have not provided
evidence for a change in the law.
Penalties
7. Which penalty option do you prefer?
Since I prefer evidence-based policy, I
prefer neither penalty option.
Partial Regulatory Impact Assessment
Comments:
You say:
"The material under consideration is of
an extreme nature; it does not depict
consensual sexual activity, nor even the
milder forms of bondage and humiliation
which is available in legal pornographic
material. It depicts suffering, pain,
torture and degradation of a kind which we
believe most people would find abhorrent.
The underlying premise of the consultation
is that this material should have no place
in our society and the proposal seeks to
tackle its circulation."
On the contrary, your proposals seek to
criminalise a minority group of people who
practice consensual acts such as SM and
enjoy making images of their sadomasochistic
lovemaking and fantasies. You seek to do
this because you personally find them
abhorent, not because you have any evidence
that these SM images cause harm.
SM people are in the situation gay men
and women were 20 years ago, when mainstream
political parties could openly declare that
homosexuality was abhorent.
Your proposals are the Labour Party's
Section 28.
