UK Government Watch

This week, the following letter was sent to a number of MPs and Lords, to raise concerns over the planned rape porn legislation.

This was sent on behalf of Sex & Censorship and an alliance of other sexual freedom campaigns: Backlash , Consenting Adult Action Network , Campaign Against Censorship and the Sexual Freedom Coalition .

We write to express grave concern regarding S16 of the Criminal Justice and Courts Bill which will extend the existing ban on extreme pornography (S63 of the Criminal Justice and Immigration Act). This section is poorly defined. It will have the unintended consequence of criminalising the possession of material that depicts consensual sex, bondage and power-play fantasies common to millions.

Pornography of all kinds has become much more accessible since the Internet has become available to the general public. In that time, the prevalence of sexual abuse has not increased in the United Kingdom and may have decreased. It is simplistic & mistaken to suggest that pornography is a cause of violence against women. Correlation is not causation. Serious academic studies of pornography and sexual violence (1) show that increased availability of pornography is, in fact, associated with less violence and abuse.

Fictional and consensual portrayals of submission and domination are a common and popular sexual fantasy, as recently illustrated by the Fifty Shades of Grey novels. Indeed one of the largest surveys ever undertaken in Britain (2) indicated that nearly a third of us have fantasies about elements of forced sex, with approximately 2.2 million men and women having violent sexual fantasies. With around 90% of men and 60% of women viewing pornography, and with so many enjoying fantasies of this nature, the danger is that this poorly defined legislation will have a huge impact.

The Bill's Impact Assessment suggests that the number of cases cannot be predicted. When extreme material was criminalised (by S63(7) CJIA 2008) government ministers predicted there would only be 30 cases a year, but the reality was very different. In the last year for which the MoJ has provided data (2012/13), there were 1,348 prosecutions. Given that the number of people who enjoy material that features sexual bondage and power-play is so high, we fear government will create thousands of new sex offenders, most of whom will be entirely harmless law-abiding citizens.

There is also a problem with government guidance for the public and prosecutors. Just prior to the enactment of S63(7) CJIA 2008, in response to reservations, the House of Lords was promised that meaningful guidance would be issued to explain those categories that were difficult to define. This never happened. In fact prosecutors were so unsure of the meaning of the law that there have been some trials of material which we are confident Parliament never intended. For example, the prosecution of barrister Simon Walsh, a former aide to Boris Johnson, whose legal practice had included investigating corruption within British police forces. His career in public life was ruined by a prosecution. It was rejected by a jury after 90 minutes deliberation. Prosecutors failed to prove that images depicting consensual sex acts between him and two other gay men were extreme .

The prosecution also threatened the reputation of the Crown Prosecution Service as an impartial public servant by showing that gay men risked having their lives destroyed in court over intimate acts which were consensual, safe and commonly practiced within the LGBT community. Bad laws do not harm only the individuals prosecuted; they also harm the institutions tasked with enforcing them, and increase even further the costs of the justice system to the taxpayer. This proposed law will also traumatise large numbers of women and men by having their private sexual fantasies examined and shamed in public.

It is therefore vital that S16 of this Bill be refined to limit the scope of the ban to images that are produced through real harm or lack of consent. Fantasy portrayals of forced/power-play sex are too commonly enjoyed to be reasonably subject to prohibition.

We appeal to you to refine this legislation. We also ask to be permitted to put detailed evidence to Parliament at the committee stages. Finally, we ask if you would be willing to host an event in Parliament, at which representatives could speak, so that members of both Houses can better understand what is at stake.

References.

1. Pornography, Public Acceptance and Sex Related Crime: A Review: 2009: Milton Diamond 2. British Sexual Fantasy Research Project: 2007. ISBN 978-0-713-99940-2

The Department for Culture, Media and Sport looks set to bring a new law into effect on 6th April 2014. The law will remove the current blanket exemptions for music, sports, religious and educational videos.

Videos that would be U or PG rated will continue to be exempt but videos that would be rated 12 or higher now need to be censored by the BBFC before they can be legally sold in the UK.

The mechanism to predict whether videos require censorship is provided by a long list of content that would likely trigger at least a 12 rating. If none of the triggers apply then the video need not be submitted.

The changes are applied via a Statutory Instrument meaning that it doesn't require debate in parliament.

The draft bill was as follows but it is possible that changes were made after a public consultation

The new regulation amends Section 2 subsections (2) and (3) of the Video Recordings Act 1984:

Subsection (2) of the current Video Recordings Act reads

(2) A video work is not an exempted work for those purposes if, to any significant extent, it depicts--

• (a) human sexual activity of acts of force or restraint associated with such activity;
• (b) mutilation or torture of, or other acts of gross violence towards, humans or animals;
• (c) human genital organs or human urinary or excretory functions;
• (d) techniques likely to be useful in the commission of offences;

This will be replaced by

The Video Recordings Act 1984 (Exempted Video Works) Regulations 2014

(2) A video work is not an exempted work for those purposes if it does one or more of the following-

• (a) it depicts or promotes violence or threats of violence;
• (b) it depicts the immediate aftermath of violence on human or animal characters;
• (c) it depicts an imitable dangerous activity without also depicting that the activity may endanger the welfare or health of a human or animal character;
• (d) it promotes an imitable dangerous activity;
• (e) it depicts or promotes activities involving illegal drugs or the misuse of drugs;
• (f) it promotes the use of alcohol or tobacco;
• (g) it depicts or promotes suicide or attempted suicide, or depicts the immediate aftermath of such an event;
• (h) it depicts or promotes any act of scarification or mutilation of a person, or of self-harm, or depicts the immediate aftermath of such an act;
• (i) it depicts techniques likely to be useful in the commission of offences or, through its depiction of criminal activity, promotes the commission of offences;
• (j) it includes words or images intended or likely to convey a sexual message (ignoring words or images depicting any mild sexual behaviour);
• (k) it depicts human sexual activity (ignoring any depictions of mild sexual activity);
• (l) it depicts or promotes acts of force or restraint associated with human sexual activity;
• (m) it depicts human genital organs or human urinary or excretory functions (unless the depiction is for a medical, scientific or educational purpose);
• (n) it includes swearing (ignoring any mild bad language); or
• (o) it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise.

These Regulations do not apply in relation to any supply of a video work which was first placed on the market before [6th April] 2014

The Criminal Justice and Courts Bill has been published and includes a section extending the definition of extreme porn to include depictions of non-consensual sex.

S63 CJIA 2008 will be extended to include rape material, but the definition looks to be so wide that it might include the majority of bondage related material.

This is the crucial bit: -

Clause 16 will extend CJIA 2008 S 63 (7) legislation by inserting provisions which include: -

16(2)C: after subsection (7) insert---

(7A): An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following: -

(a). an act which involves the non-consensual penetration of a person's vagina, anus or mouth by another with the other person's penis, or

(b). an act which involves the non-consensual sexual penetration of a person's vagina or anus by another with a part of the other person's body or anything else, and a reasonable person looking at the image would think that the persons were real.

(7B): For the purposes of subsection (7A): -

(a): penetration is a continuing act from entry to withdrawal;

(b): vagina includes vulva.

16 (3): In section 66 (defence: participation in consensual acts): - a. before subsection (1) insert---

(A1): Subsection (A2) applies where in England and Wales: -

(a): 5a person (D) is charged with an offence under section 63, and

(b): the offence relates to an image that portrays an act or acts within subsection (7)(a) to (c) or (7A) of that section (but does not portray an act within subsection (7)(d) of 10that section).

(A2): It is a defence for D to prove---

(a): that D directly participated in the act or any of the acts portrayed, and

(b): that the act or acts did not involve the infliction of any non-consensual harm on any person, and

(c): if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse, and

(d): if the image portrays an act within section 63(7A), that what is portrayed as non-consensual penetration was in fact consensual.

My reading of this is that it is for the defence to prove that that any act was consensual. If it looks non-consensual (and a large proportion of bondage material will be interpreted that way) then the person found to be in possession of such material will have to prove that the act was in fact consensual.

The Impact Assessment

There is an impact assessment which provides more information, but some of it is misleading (for example 1. the justification is said to be the desire to reduce violence against women and 2. an inference might be drawn from the 1 case that is believed to have been prosecuted in Scotland). The reality is that in England thousands of people have been caught out by S63(7) and thousands more will now fall foul of the new law.

Page 7 of the IA suggests that there will be some protection but I can't see any: -

28. There are minor risks that anti-censorship groups could see this step as an infringement on private consensual sexual activities, for example staging consensual acted rape scenarios. However, we intend to provide a limited defence to address some of these concerns. Alongside this the measure is likely to be well received across Parliament and a range of women's rights groups in particular.

29. We also intend to make available for the purposes of the images covered in the extended offence, the existing defence for participants possessing images of themselves, provided that no harm was caused to any participant, or if harm were caused, it was harm which was and could be lawfully consented to.