Brief comments on two proposed new criminal offences relating to pornography: strangulation / suffocation, and sex (actually or purportedly) between relatives
As published on: by Neil Brown
A couple of people have asked me about some of the proposed amendments to the UKs Crime and Policing Bill , which is
currently going through Parliament.
Please note that these are proposed amendments and, as such they are not (yet) law. They may never become law, or may be changed, materially or otherwise, before they become law.
This blogpost contains sexual themes
As the title of this blogpost suggests, this blogpost is about legislation which has sexual themes. In particular:
strangulation / suffocation
sex between relatives
These offences relate to images, not acts
The proposed new offences which I discuss below relate to images of acts, and not the acts themselves.
They do not impact ostensibly
the legality (or otherwise) of doing the things depicted in the images.
Pornographic images of strangulation or suffocation Background
media sources such as pornography have effectively established strangulation during sex as a sexual norm, and a belief that strangling a partner during sex is safe because it is believed to be
non-fatal despite overwhelming evidence that is is believed there is no safe way to strangle a person.
It is an offence for a person to be in possession of an image if--
the image is pornographic, within the meaning of section 63 (i.e. that 'it is of such a nature that it must reasonably be assumed
to have been produced solely or principally for the purpose of sexual arousal'),
the image portrays, in an explicit and realistic way, a person strangling or suffocating another person, and
a
reasonable person looking at the image would think that the persons were real.
Neither 'strangling' nor 'suffocating' is defined.
My working assumption is that 'strangulation' entails a depiction of putting something (hands or otherwise) around another persons neck which
applies pressure or compression to the throat.
Strangulation does not require a particular level of pressure or force within its ordinary meaning, it does not require any injury and it does not require proof of
a consequence such as impeded breathing or circulation.
My feeling is that 'suffocation' covers any means of adversely impacting someones breathing, or depriving someone of air, making it wider than 'strangulation',
and encompassing what might be termed 'breath play'. It could entail putting something down someones throat, for instance, or covering their nose and mouth. The CPS guidance suggests - again, in a somewhat different context - a broad interpretation.
Since the offence, as currently posited, requires 'a person strangling or suffocating another person', it would appear that an image of a person strangling / suffocating themselves is not covered. As such, I should be surprised if
this prohibited an image of someone wearing a tie or collar (for instance). This outcome would seem to be consistent with the governments focus on partnered sexual activity and violence against women.
'Image' means both a moving
or still image, and data which is capable of conversion into an image, but the portrayal must be 'realistic', and the people depicted must look 'real' to a reasonable person, for the image to be in scope.
This is an image-based
offence, and does not impact text-based pornography / erotica, although one would still need to be mindful of the law of obscenity .
Note that the existing legislation relating to 'extreme pornography' already covers the 'explicit and realistic' portrayal of 'an act
which threatens a persons life', which could include both strangulation and suffocation. This offence would remain in place.
Proposed defences
Of the proposed defences to the offence of possession,
one is:
that the person directly participated in the act portrayed and the act did not involve the infliction of any non-consensual harm on any person.
It would be a separate
offence to 'publish' such an image, which includes 'giving or making it available to another person by any means'.
One of the proposed defences to the 'publication' offence is:
that the person
directly participated in the act portrayed, the act did not involve the infliction of any non-consensual harm on any person, and the person only published the image to other persons who directly participated.
Non-consent for adults must be distinguished from consent to relinquish control. The presence of a 'gag' or other forms of bondage does not, without more, suffice to confirm that sexual activity was non-consensual.
As far as I know, 'harm' is not, in itself, defined.
While the defence would permit sharing an image with the other participants, it would preclude the private dissemination of such imagery, outside the
(direct) participants to it, and would prohibit the sharing of the image online or with social media groups.
Possession or publication of pornographic images of sex between relatives, and images where one person is pretending
to be under 18
A separate amendment relates to the possession or publication of pornographic images of sex between relatives.
I understand that this is pretty common subject matter of some 'tube' sites.
The first of
these vital measures will ban anyone from possessing or publishing harmful pornography that shows incest between family members, and sex between step or foster relations where one person is pretending to be under 18.
A further
amendment will criminalise the publication and possession of pornography where an adult is roleplaying as a child.
Because of this 'further amendment', there has been a significant change in the amendment between the
House of Lords and the House of Commons.
House of Lords proposed offence
The House of Lords proposed a criminal offence of possession or publication of realistic images depicting sexual penetration
of one person by another (my paraphrasing) where:
In other words, while the image may be acted, if the context - the title, description, language used by participants etc. - indicated that the participants are related or were pretending to be, and there was sexual
penetration of one person by another, it would fall within scope of this offence.
Given the presence of 'pretending to be', it is possible that someone could look to make a case that use of a term like 'daddy' was sufficient to
formulate the offence.
House of Commons proposed offence, including 'under 18'
The House of Commons has objected to this amendment, proposing its own, slightly tweaked, version:
The HoC proposal is for a criminal offence of possession or publication of realistic images depicting sexual penetration of one person by another (again, my paraphrasing) where:
a reasonable
person--
looking at the image, and
taking into account any sound or information associated with the image,
would think what is set out in subsection (1A) or (1B).
1A is:
That A and B were related, or pretending to be related, such that A was related to B as parent
[(including adoptive parent)], grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
1B is entirely new, and covers separate subject matter:
That A and B were related or had been related, or were pretending to be related or to have been related, such that A was or had been related to B as step-parent, step-child, stepbrother, stepsister, foster parent or foster child,
and
at least one of A and B was, or was pretending to be, under 18.
As with the offence relating to images of strangulation / suffocation, this is an image-based offence, and does not impact text-based pornography / erotica.
Because of the requirement of multiple
participants ('another person'), images of one person, alone, would appear not to be covered, nor would images (of one or multiple people) which do not depict realistic and explicit penetrative sex.
The comments above about 'non-consensual harm' apply here.
It would appear that, as long as the participants were not actually related, a participant may possess an image in which they pretend
to be related.
In respect of publication, there is an additional proposed limb, that:
the person only published the image to person B or A (as the case may be).
Unlike the drafting in respect of the offences relating to images of strangulation / suffocation, which appear to cater for images depicting more than two participants, I am not sure how the defence proposed here works where there are
multiple simultaneous participants: distribution to all participants, as opposed to one particular participant, could be problematic.
In any case, this too would preclude the private dissemination of such imagery to
non-participants, and would prohibit the sharing of the image online or with social media groups.
The BBFC commissioned a survey to support its case to become the world's internet porn censor. The survey report has now been published. Here is the executive summary:
Published by the Government in February
2025, Baroness Bertin's Independent Pornography Review has recommended reform to align the regulation of online pornography with existing offline standards to tackle the present availability of violent and abusive content on online platforms.
In light of this review, the British Board of Film Classification (BBFC) have commissioned a survey of 2,000 adult pornography users in the UK, to measure their exposure to and attitudes towards violent or abusive content in online
pornography.
This report summarises key findings from the survey under the following sections:
Exposure to violent or abusive content in online pornography
A third of adult pornography users in the sample reported having been exposed to violent or abusive content in online pornography in the last three months.
Of the four key categories of violent or
abusive content, respondents most often reported having seen depictions of physical violence.
Women were more likely to report having seen one or more types of violent or abusive content than men.
Attitudes towards violent or abusive content in online pornography
Over half of the sample reported being concerned about the levels of violence and abuse depicted in online pornography, with 1 in 5 indicating that they felt very concerned.
A majority of the sample
(62%) thought that depictions of physical violence are normalised in online pornography.
Two-thirds of the sample thought that violent or abusive pornography is contributing to the normalisation of violent sexual behaviour in
the real world.
Attitudes towards regulation of violent or abusive content in online pornography
Almost 9 in 10 adult pornography users in the sample said that they would support new rules to ensure online platforms verify that all individuals shown in content are consenting adults.
4 in 5 adult
pornography users in the sample would support new rules to prevent online platforms from publishing or distributing pornography that depicts violence or abuse.
For both types of regulation, women were more likely to be in
favour than men.
A British Labour MP, Jessica Asato, has announced that she plans to ask Parliament to outlaw online adult content featuring the act of choking. Asato called choking content insidious and claimed that it has led to a huge increase in the practice in
everyday relationships. Asato claimed in an interview with GB News that this is also leading to things like spitting, slapping -- all things that actually many women say they don't want, they don't consent to -- so technically, that's criminal.
Asato
explained that, should she be successful in passing the proposed law, the British media censor Ofcom would be empowered to levy really big fines or initiate criminal proceedings against sites or platforms that make choking content available online.
Inevitably the moralist Asato doesn't consider her censorship proposal as censorship. Asked whether she opposes nonviolent consensual pornography, Asato responded:
I don't have any problem with that at all, and I'm certainly not here to be a moralist ...BUT... What I'm really concerned about is the damaging impact it has in the real lives of women and girls in
relationships.
Earlier this year, a pornography review initiated under the conservative government of former U.K. Prime Minister Rishi Sunak recommended banning any adult content deemed degrading, violent and misogynistic -- including
material showing choking, eaggeratingly tagged as non-fatal strangulation.
The British Board of Film Classification welcomes today's report from the Independent Pornography Review.
As the UK's statutory regulator of film and video content, the classification of offline pornographic
content has been a key part of our role for decades.
However, for many years, we have been concerned about the accessibility of violent and abusive pornography online that we would not classify and therefore would be illegal to
distribute offline, on physical formats such as DVD and Blu-ray.
We know that this concern is shared by people across the UK, and there is a growing body of evidence which demonstrates the impact of harmful pornography on society.
We stand ready to work with the UK government as they respond to Baroness Bertin's recommendations, including by taking on a formal role as auditor.
President of the British Board of Film Classification,
Natasha Kaplinsky said:
The BBFC welcomes Baroness Bertin's thoughtful and ambitious report. For too long, violent and abusive pornography that would be illegal to distribute offline has been freely available online
203 to children and adults alike. It is no surprise that the review has found this content, and its influence, to be deep-rooted in society; its harm potential, abundant.
We believe parity between how pornographic content is
regulated offline and online can be achieved. We've been regulating offline pornographic content for 40 years and we stand ready to work with the government on the recommendations of the review to better protect audiences online 203 including by bringing
our unparalleled expertise to take on a formal role auditing online pornography.
A little over a year ago Rishi Sunak's government commissioned a review to consider the censorship of online pornography in the UK. The review goes way beyond simply requiring age verification to keep out the under 18s as implemented via the Online
'Safety' Act. It considers all aspects of the censorship of online porn available in the UK.
The review is authored by Gabby Bertin, a conservative peer, promoted by David Cameron. Her relevant background is from campaigning in the sphere of domestic
abuse.
Inevitably the majority of 'evidence' invited for the review was from anti-porn campaigners and those that would advantage from the set up of an internet censorship process for adult websites. Much of the language of the report directly
uses feminist tropes such as twisting the word 'violent' to mean non violent content that offends feminist axioms.
The author of course introduces her report: "I'm not a prude ...BUT... She writes:
I want to be clear that I do not approach this subject from a prudish or disapproving position. I am a liberal Conservative and a proponent of free speech. I believe that people should be able to do whatever they want if it doesn't
harm anyone -- and that includes safely consuming adult content that has been made by consenting adults. ...BUT... we need to strike the right balance between protecting those principles and protecting society, particularly the most
vulnerable, from potential risks. And the time has now come to take a stand on this and call out what is really happening and the damage it is doing.
Of course she then goes on to outline a few Trojan horses that would inevitably lead
to the banning of blocking of most adult websites available in the UK.
Here is a summary of the chapters of the report most relevant to censorship.
Recommendation 1: 'legal but harmful' content to be banned from
publication
Bertin has gotten a bit tied up in contradictory language for this section. Some material is cut by the BBFC because it is illegal in the UK, eg as defined as Extreme Pornography (eg bestiality and real injury). Other material is cut
by the BBFC under it's own BBFC guidelines. Initially Bertin defines such content as 'legal but harmful' and then goes to call for the publication of such material to be made illegal to publish.
The BBFC details 'legal but harmful' content as
follows:
material (including dialogue) likely to encourage an interest in sexually abusive activity, which may include adults role-playing as non-adults
the portrayal of sexual activity which involves real or
apparent lack of consent and any form of physical restraint which prevents participants from indicating a withdrawal of consent
the infliction of pain or acts which are likely to cause serious physical harm, whether real or
(in a sexual context) simulated. Some allowance may be made for non-abusive, consensual activity
penetration by any object likely to cause physical harm
sexual threats, humiliation, or abuse which
do not form part of a clearly consenting role-playing game
And Bertin adds her own additions to the list:
content that shows racism or could encourage racist attitudes
content where a performer or creator has withdrawn their consent to being in a film
stolen content that
has been shared without the performer’s knowledge or consent
Bertin goes on to suggest two options for implementing the above censorship:
Let Ofcom define a 'Safe Pornography Code of Practice' that defines content to banned and also the process to be implemented to censor such content.
Implement the ban via the government creating a criminal publication offence to ban such
material with detailed censorship rules written by the Crown Prosecution Service.
Bertin also suggests two extra censorship ideas under this section:
keyword matching on website searches would mean that terms including girl, young, rape, drunk etc. would result in a warning message.
paid-for porn services would require daily, weekly, or monthly spend limits on content, much like
gambling services.
Recommendation 2 & 25: Content to be made illegal to possess, distribute, and publish (by adding to the definition of already banned extreme porn)
So-called choking content, where there is external pressure on the neck, is rife on platforms that host pornography and is a very popular category of content. People acting it out in their sex lives may face devastating
consequences. Evidence shows that even a small amount of pressure to the neck can harm the brain, and there is no safe way to strangle a person.
Pornographic content that depicts incest should be made illegal. While it is
currently a criminal offence to have penetrative sexual activity with a family member (both blood-related and adopted), it is not illegal to act out depictions of incest in pornography. It should be noted that that this would not include pornography
that depicts sex between step-relations -- this is not illegal activity in the real world, however this content is rife on mainstream platforms.
Recommendation 3: The non-consensual taking and making of intimate images - whether real or deepfake - should be made an offence.
Whilst it is uncontroversial to ban real non-consensual images it seems a
little unjust to bundle this up with deep fakes. It should be noted that there are large amounts of celebrity material that is already commonplace on adult websites and AI tools are already available offline that can be used to create ones own porn
without any keyword restrictions as may be imposed by the gatekeepers of online services such as Gemini and ChatGPT
Recommendation 9 & 10. A separate body should conduct content audits
This body will ensure platforms hosting pornographic content are tackling illegal and prohibited content effectively.
To this end, government could appoint a body, such as the BBFC, who have experience in
moderating content, to audit content from platforms hosting pornography to ensure they are tackling prohibited and illegal content. This body could expedite reports to Ofcom where there is evidence of lack of compliance (Ofcom could then deploy
enforcement measures if there was non-compliance. Government would need to look to additional funding for training and/or additional resource for this body.
Companies that pass the audit could receive an accreditation of good
practice. This would signal to the public, government, and ancillary services that this company is well-regulated, acting as an incentive to platforms themselves to raise their own standards.
This would also serve a public
awareness angle. I have found that there is currently little public awareness about what good pornographic content looks like, or what a good platform is. This accreditation would be a way for the public to clearly know if the service they are viewing
pornography on meets the accreditation or not, allowing for more informed choices.
Of course the accreditation could also serve to warn discerning porn users that the website only serves highly censored porn and may be best avoided.
Recommendation 11. Restricted porn content that is made harder to find, so that it is only available to users if they intentionally seek it out.
Incest pornography between step-relations
Teen 18+ category pornography
This type of content should not be served up on a homepage to a first-time user. Industry should collaborate on a watch-list of types of content in this space, restricting and down-ranking this content so that it is not
available on homepages to first-time users. Government could decide to regulate this content or conduct further research on harms if there is later proof of harm or inaction in this space.
Recommendation 12.
Increased, effective, and quick business disruption measures across the ecosystem of pornography.
Including ancillary services that support the platforms -- should be in place to ensure swift removal of illegal and
legal but harmful pornographic content. A clear and enforceable sanctions framework, under the Online Safety Act, should also be established.
Recommendation 14. The Advertising Standards Authority (ASA)
should review its approach to advertising on online pornography sites.
As detailed in Chapter 1, there is limited regulatory oversight of advertisements appearing on pornography sites. I recommend that the ASA
critically reviews its approach to regulating the content of advertising on online pornography sites in the UK. This could lead to further oversight to ensure platforms are fully abiding by the code and not featuring advertisements that promote any
content that would be captured under the prohibited list in Recommendation 1.
Should a platform not abide by the code, or push harmful content to viewers, strict enforcement measures should be more consistently applied.
Recommendation 21. Performer consent and age verification
Companies that host pornographic content should have consistent safety protocols, processes and safeguards in place to
ensure that all performers/creators are consenting adults, are of age (18+), and have not been exploited or coerced into creating content.
Recommendation 22. Performers to be able to get their videos taken
down regardless of contractual obligations
There should be clear and standardised processes across the sector to enable performers and creators to withdraw consent and to have content they appear in removed from sites.
Even if a performer or creator has provided consent for the initial recording and sharing of pornographic content, they should have every right to withdraw consent at a later point (whatever the reason may be) and have that content removed.
Withdrawing consent, and therefore the content in which one appears, is not a decision that performers take lightly. There are costs associated with the creation of content, and its removal may mean that content no longer generates
income, which could result in cutting off a segment of income to a performer, their co-star(s), producer or director. In some cases, if a user has purchased the content and may retain it offline, or subscribed to receive the performer’s work, this makes
it more difficult for a performer’s content to be deleted completely. I acknowledge that there are obstacles to overcome due to contract law and cost recovery of film production. Nonetheless, I believe consent must supersede any other consideration. If a
performer or ex-performer wants a video removed, I believe their request should be granted.
Recommendation 23. Stolen content
Platforms that host
pornographic content should have robust protocols and processes to prevent and respond to stolen content. This should include easy reporting and removal of content stolen from performers.
Recommendation 29.
Nudification or nudify apps should be banned.
The government should strongly consider banning apps that have been developed for users to nudify themselves or others. Alternatively, government could explore banning
these apps at a device level so that users in the UK are unable to download them on their smartphone, laptops, and other devices.
I don't suppose that there are many porn websites that would survive an audit against the above
rules. But of courser Bertin never thinks to ask about the practical consequences of such an industry wide ban as suggested above.
I guess that there is enough porn already in circulation that could as a last resort be passed around on memory
stick to keep everyone satisfied for the next 100 years. If not, then I am sure there will be a few websites around the world that will keep going. And if all else fails then perhaps the county lines can branch out into selling contraband porn.
I
think porn is now simply too commonplace and too widely accepted by society to effectively ban.
The UK Government's Department for Science, Innovation, Technology and Censorship has called for evidence to inform the final recommendations of its 'Independent' Pornography Review. The government writes:
The government
wants to ensure that any legislation and regulation operates appropriately for all pornographic content, and that the criminal justice system have the tools they need to respond to online illegal pornographic material, and exploitation and abuse in the
industry.
The Independent Pornography Review involves a comprehensive assessment of the legislation, regulation and enforcement of online and offline pornographic content, and is overseen by Independent Lead Reviewer Baroness
Gabby Bertin.
The review will take an evidence-based approach to develop a range of recommendations on how to best to achieve the review's objectives:
understand the prevalence and harmful impact of illegal pornography online, and the impact on viewers of other forms of legal pornography, including emerging themes like AI-generated pornography, and the impact on viewer's
attitudes to violence against women and girls;
assess the public's awareness and understanding of existing regulation and legislation of pornography;
consider the current rules in place to
regulate the pornography industry, comparing online and offline laws;
determine if law enforcers and the justice system are responding to illegal pornography sufficiently, and if change is needed;
find out how prevalent human trafficking and exploitation is in the industry, before recommending how to identify and tackle this;
use this knowledge to set out what more can be done to provide those who need it with guidance
on the potential harmful impact of pornography.
To ensure the review's final recommendations are robust, it is important that a broad range of views and evidence are considered. This call for evidence invites:
The UK government is reviewing porn censorship laws for adults, moving beyond the age verification requirements proposed in the current Online Censorship Bill.
No doubt the 'review' will be a one-sided whinge-fest soliciting the views of moralists,
censors and law enforcers, whilst totally ignoring the views of film makers and viewers.
The Government writes:
Regulation of online pornography in the UK will undergo a thorough review to make sure it is fit for purpose in
tackling exploitation and abuse, the government has announced today (Monday 3 July).
As the way we consume media and access content rapidly changes, the Review will investigate any gaps in UK regulation which allows exploitation
and abuse to take place online as well as identifying barriers to enforcing criminal law. While the criminal law has been updated in recent years to tackle the presence of extreme and revenge pornography, there are currently different regimes that
address the publication and distribution of commercial pornographic material offline, such as videos, and online. The government wants to ensure any pornography legislation and regulation operates consistently for all pornographic content.
The review will also look at how effective the criminal justice system and law enforcement agencies are in responding to illegal pornographic content, including considering if any changes need to be made to criminal law to address
challenges law enforcement might have.
It will also consider what more can be done to provide children with information and resources about the harm caused by pornography. This will make sure that illegal and harmful content, such
as that which features child sexual abuse and exploitation, or where adults are being exploited, is robustly dealt with.
The Pornography Review is a prompt response to calls for action from parliamentarians and campaign groups
concerned with the prevalence and impact on both children and adults of illegal pornographic content and child sexual exploitation and abuse on pornography sites and social media.
This work is separate to, but builds on, the
Online Safety Bill, which will hold social media companies and pornography services accountable for ensuring children cannot view pornography, with a new higher standard on the age verification or age estimation tools they must use.
Technology Minister, Paul Scully, said:
Keeping the public safe is the first priority of any government and with technology moving faster than ever, we cannot take our eye off the ball in exploring
what more we can do.
Our Pornography Review will look closely at the laws and regulations relating to offline and online content, informing our next steps in tackling the heinous crimes of exploitation and abuse,
wherever it occurs.
'Justice' Minister, Ed Argar, said:
It is vital we keep up with the pace of the online world and this review will help ensure our laws work to protect people online while
punishing those who share illegal and harmful content.
The Review will seek expertise across government and significant engagement with the Crown Prosecution Service and police, industry, civil society stakeholders
and regulators.
The review will also look at the role of the pornography industry in trafficking and exploiting adult performers, child sexual exploitation and abuse, and how extreme and non-consensual pornographic content
online is dealt with.
There are currently several criminal offences, linked to legislation such as the Obscene Publications Act 1959 and the extreme porn offence at s63 of the Criminal Justice and Immigration Act 2008, which
can be committed in relation to all pornographic material, whether offline or online. Some pornographic material is covered by communications offences and offences which deal with publicly displayed material in shops and other premises.
Separately, there is a very robust regime of offences tackling the possession, taking and making of indecent images of children, whether they are photographs / films, or non-photographic.
There are also
different regulatory regimes, including that established by the Video Recordings Act 1984, which address the publication and distribution of commercial pornographic material offline, and the video-sharing platform regime that addresses some
online pornography. Notes to editors
The Review will involve a range of government departments, including the Department for Science, Innovation and Technology, Ministry of Justice, the Home Office and the Department for Culture,
Media and Sport.
Further scope of the Review will be set out in due course.
The Review is aiming to be completed within a year.
