An obnoxious piece of legislation slipped on false pretences of suggestions that only that the exploitation of young people would be criminalised. It was never reported that people would be massively punished for owning images from a perfectly legal activity. And to be retrospective gives people no chance to know if they are breaking the law or not...Bad law indeed and abusive of our rights.
Surely this undermines the massive respect in which people held of the previous legislation. It is with great regret that I feel I can no longer give full support for child protection legislation. Images of 16-17 year olds that are perfectly legal now should not suddenly be considered evidence of a crime of the utmost gravity. It does not seem fair to tag an 18 year old looking at sexual pictures of a 17 year old as a paedophile when it is perfectly legal for them to have consensual sex.
I am sure that there will still be absolute consensus supporting the laws when under 16 year olds are concerned but it seems disappointing to introduce an area of doubt where legal consensual sex is concerned.
The full bill may be read at the HMSO website
BBFC Advice: Sexual Offences Act 2003
From the BBFC
The new Sexual Offences Act is due to come into effect in May 2004. One important change involves the definition of a 'child' under the terms of the Protection of Children Act 1978. Currently the Protection of Children Act defines a 'child' as a person under 16 years of age and makes illegal the manufacture, possession and distribution of indecent photographs of children under 16. Section 45 (2) of the new Sexual Offences Act will raise the age of a 'child' for the purposes of this Act to 18. The effect of this will be retrospective, applying to all such images, regardless of when they first came into circulation.
The Board has always been careful to ensure that no classified film or video contains any potentially indecent image of persons under 16. Where relevant we have always sought proof that no performer engaged in a scene that might be considered legally indecent was under 16 at the time of filming. This means, however, that the BBFC has classified scenes that involved 16 and 17 year actors in potentially indecent situations. The new Act will now make such sequences illegal.
From a practical point of view it is impossible for the BBFC to identify every film, video or DVD that has ever been published that involves persons of 16 or 17 years in what might be regarded as an indecent photograph. Distributors should therefore be aware of this change to the law so that they can consider whether any action is required on their part. Our legal advice indicates that the fact that a film was classified by the BBFC under the former definition of child will not protect it from prosecution under the new definition. Naturally the BBFC will apply the new definition of a child to any fresh submissions with immediate effect.
Distributors will wish to rely upon their own legal advice. The BBFC's lawyers, however, have advised that there is no legal definition of indecency and whether a particular image is indecent can only be established by a jury or magistrate. An important definition in case law has been that an image is indecent if it “offends the ordinary modesty of the average man” [R v Stanley (1965)]. In order for an image to be indecent, there may also be some kind of sexual connotation. Simple nudity may be unlikely to be considered indecent. It is worth remembering that, unlike the Obscene Publications Act, the Protection of Children Act does not allow for defences of context or social and cultural merit. The Act therefore applies equally to pornography, documentaries and narrative features.
It is important to emphasise that the legal responsibility for ensuring that the images accord with the new requirements (including the responsibility for taking appropriate legal advice) lies with the publisher i.e. in this case the distributors of films, videos and DVDs.
Sexual Offences Act 2003: Notes
There is one exception under the new Act. This allows people who are married to (or living as partners with) 16 and 17 year olds to possess indecent images of their partner. However, it is a serious offence for them to distribute these images to others. The 'child' (i.e. the 16 or 17 year old) also needs to have consented to the image being taken. The relevant parts of the Act are Sections 43 to 45.
On a more positive note, the Sexual Offences Act will finally put gay group sex on a par with straight group sex. The BBFC does not classify depictions of gay sex involving more than two people if the activities were filmed in England, Wales or Northern Ireland (Scotland has different laws and has already legalised this). This is because, in effect, the film constitutes a recording of the law being broken (gay group sex being illegal in England, Wales and NI at the moment). However, from May gay group sex will become legal across the UK and the BBFC will finally pass such scenes.
Although it won't impact on BBFC censorship it is also interesting to note that the new Act is more lenient on bestiality (Section 69 - Intercourse with an Animal). Under existing laws you can (in theory at least) get life imprisonment for having sex with an animal. Now the penalties have been reduced to 6 months or a fine. Still a bit harsh (especially if no cruelty is involved) but at least it's better than life imprisonment! There's also a section on 'Sexual Penetration of a Corpse' (Section 70) but as this is illegal it won't mean any changes to film and video censorship.
Bad and Contradictory Law
Thanks to Shaun for pointing out the first of many contradictions
Now the BBFC keep reference copies of all their films don't they ? Does this mean the BBFC will ALSO become criminals because they will have in their possession reference copies of the films they may have classified, which will break the modified laws in May 2004 ?
Should the BBFC, in order to comply with this law, review all films, and destroy all these films and advise us, which ones they have destroyed ? After all, the rest of us it seems, might be expected to do so, so why would there be an exception for the BBFC
Thanks for another contribution
Referring back to the bill,
Sections 45/46 are particularly relevant to our previous discussions. However, other interesting nuggets can be found, especially regarding prostitution. Apparently the whole are of prostitution is to be reviewed soon. Quite why this wasn't done before they came up with this Act is another matter.
The most amusing sections are 66-71. Interesting that it's only illegal to have sex with a live animal. Furthermore, for bestiality to occur there must be penile penetration of an animal's vagina or anus or penetration of a human vagina or anus by an animal's penis. Oral sex with (or masturbation of) an animal do not constitute an offence. So it's legal to give a dog a blow job but if you want to have full sex with it, you need to kill it first (humanely, of course). Bizarre.