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UK Law: Obscene Publications


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So we - and our wives and servants, too - are finally going to be allowed to see fisting...

CPS relaxes its pornography guidelines so that fisting, golden showers, female ejaculation and many more can now be legally published in the UK


Link Here31st January 2019
Full story: Obscenity in the UK...Gay fisting, urolagnia and BDSM found not obscene by jury
The upcoming UK internet porn censorship regime being introduced later this year has set the UK authorities to thinking about a more rational set of laws governing what porn is legal and what porn is illegal in the UK. It makes a lot of sense to get the UK stall straight before the commencement of the new censorship regime.

The most contradictory area of porn law is that often referred to as 'beyond R18 porn'. This includes material historically banned by the Crown Prosecution Service (CPS) claiming obscenity, ie fisting, golden showers, BDSM, female ejaculation, and famously from a recent anti censorship campaign, face sitting/breath play. Such material is currently cut from R18s, as censored and approved by the BBFC.

When the age verification law first came before parliament, 'beyond R18' porn was set to be banned outright. However as some of these categories are commonplace in worldwide porn, then the BBFC would have had to block practically all the porn websites in the world, leaving hardly any that stuck to R18 guidelines that would be acceptable for viewing after age verification. So the lawmakers dropped the prohibition, and this 'beyond R18' material will now be acceptable for viewing after age verification. This leaves the rather clear contradiction that the likes of fisting and female ejaculation would be banned or cut by the BBFC for sale in UK sex shops, but would have to be allowed by the BBFC for viewing online.

This contradiction has now been squared by the government deciding that 'beyond R18' pornography is now legal for sale in the UK. So the BBFC will now have a unified set of rules, specified by the CPS, covering both the censorship of porn sales in the UK and the blocking of foreign websites.

This legalisation of 'beyond R18' porn will surely disappoint a few censorial politicians in the House of Lords, notably Elspeth Howe. She has already tabled a private members bill to restore the ban on any foreign websites including 'beyond R18' porn. Her bill has now been rendered mostly irrelevant.

However there is still one genre of pornography that is sticking out of line, and that is cartoon porn featuring under age characters. Such porn is widespread in anime but strictly banned under UK law. So given the large amounts of Japanese Hentai porn on the most popular tube sites in the world, then those videos could still be an issue for the viability of the age classification regime and could still end up with all the major porn sites in the world banned.

The new CPS censorship rules

The new rules have already come into force, they started on 28th January 2019.

A CPS spokesperson confirmed the change saying

It is not for the CPS to decide what is considered good taste or objectionable. We do not propose to bring charges based on material that depicts consensual and legal activity between adults, where no serious harm is caused and the likely audience is over the age of 18.

The CPS will, however, continue to robustly apply the law to anything which crosses the line into criminal conduct and serious harm.

It seems a little bit rich for the CPS to claim that It is not for the CPS to decide what is considered good taste or objectionable, when they have happily been doing exactly that for the last 30 years.

The CPS originally outlined the new rules in a public consultation that started in July 2018. The key proposals read:

When considering whether the content of an article is “obscene”, prosecutors
should distinguish between:

  • Content showing or realistically depicting criminal conduct (whether
    non-consensual activity, or consensual activity where serious harm is
    caused), which is likely to be obscene;
  • Content showing or realistically depicting other conduct which is lawful,
    which is unlikely to be obscene.

Do consultees agree or disagree with the guidance that prosecutors must exercise real caution when dealing with the moral nature of acts not criminalized by law, and that the showing or realistic depiction of sexual activity / pornography which does not constitute acts or conduct contrary to the criminal law is unlikely to be obscene?

The following conduct (notwithstanding previous guidance indicating otherwise) will not likely fall to be prosecuted under the Act:

  • Fisting
  • Activity involving bodily substances (including urine, vomit, blood and faeces)
  • Infliction of pain / torture
  • Bondage / restraint
  • Placing objects into the urethra
  • Any other sexual activity not prohibited by law

provided that:

  • It is consensual;
  • No serious harm is caused;
  • It is not otherwise inextricably linked with other criminality; and
  • The likely audience is not under 18 or otherwise vulnerable.

The CPS has now issued a document summarising the responses received and how the CPS has taken some of these responses onboard.

The CPS has already updated its rules in Revised Legal Guidance from cps.gov.uk . The key rules are now:

When considering whether the content of an article is "obscene", prosecutors should distinguish between:

  • Content relating to criminal conduct (whether non-consensual activity, or consensual activity where serious harm is caused, or otherwise inextricably linked to criminality), which is likely to be obscene;

  • Content relating to other non-criminal conduct, which is unlikely to be obscene, provided the audience is not young or otherwise vulnerable.

Conduct will not likely fall to be prosecuted under the Act provided that:

  • It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined from the material itself); and

  • No serious harm is caused (whether physical or other, and applying the guidance above at paragraph 17); and

  • It is not otherwise inextricably linked with other criminality (so as to encourage emulation or fuelling interest or normalisation of criminality); and

  • The likely audience is not under 18 (having particular regard to where measures have been taken to ensure that the audience is not under 18) or otherwise vulnerable (as a result of their physical or mental health, the circumstances in which they may come to view the material, the circumstances which may cause the subject matter to have a particular impact or resonance or any other relevant circumstance).

Note that extreme pornography is considered illegal so will likely be considered obscene too. But the CPS adds a few additional notes of harmful porn that will continue to be illegal:

Publications which show or depict the infliction of serious harm may be considered to be obscene publications because they show criminal assault notwithstanding the consent of the victim. This includes dismemberment and graphic mutilation. It includes asphyxiation causing unconsciousness, which is more than transient and trifling, and given its danger is serious.

So it seems that breath play will be allowed as long as it doesn't lead to unconsciousness. Another specific rule is that gags do not in themselves imply a lack of consent:

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.

The BBFC changes its R18 rules

The BBFC has several roles, it works in an advisory role when classifying cinema films, it works as an independent and mandatory censor when classifying mainstream videos, but it works directly under government rules when censoring pornographic films. And in this last role, it uses unpublished guidelines based on rules provided by the CPS.

The BBFC has informed BBC News that it will indeed use the updated CPS guidelines when censoring porn. The BBC explains:

The BBFC's guidelines forbid material judged to be obscene under the current interpretation of the Obscene Publications Act.

A spokeswoman told the BBC: Because the Obscene Publications Act does not define what types of material are likely to be considered obscene, we rely upon guidance from the Crown Prosecution Service (CPS) as to what classes of material they consider likely to be suitable for prosecution.

We are aware that the CPS have updated their guidance on Obscene Publications today and we have now adjusted our own internal policies to reflect that revised guidance.

Myles Jackman And Pandora Blake

And a thank you to two of the leading campaigners calling for the CPS to lighten up on its censorship rules.

Obscenity lawyer Myles Jackman, who has campaigned for these changes for a number of years, told Yahoo News UK that the change had wider implications for the law. He said:

"It is a very impressive that they've introduced the idea of full and freely exercised consent in the law.

"Even for people with no interest in pornography this is very important for consent and bodily autonomy."

Activist and queer porn filmmaker Pandora Blake, who also campaigned to have the ban on the depiction of certain sex acts overturned, called the news a 'welcome improvement'. They said:

"This is a happy day for queer, feminist and fetish porn."

Acts that were banned that can now be depicted include:

  • Spanking

  • BDSM

  • Female ejaculation

  • Urinating (also known as watersports)

  • Strangling

  • Face-sitting

  • Fisting

  • Humiliation

 

9th January
2012

 Offsite: Trial Report...

Link Here
Full story: Obscenity in the UK...Gay fisting, urolagnia and BDSM found not obscene by jury
Making a Fist of It: The Law and Obscenity

See article from freedominapuritanage.co.uk

 

7th January
2012
  

Update: Obscenity Trial of the Decade...

Jury clears gay fisting, urolagnia and BDSM DVDs of obscenity
Link Here
Full story: Obscenity in the UK...Gay fisting, urolagnia and BDSM found not obscene by jury

R v Peacock

Michael Peacock has been acquitted of all charges after a unanimous jury decision to find Peacock not guilty on 6 counts of obscenity.

Michael Peacock (referred to in the gay porn world as Sleazy Michael) had been charged for distributing supposedly obscene DVDs including representation of gay fisting, urolagnia and BDSM.

The trial was heard before the Southwark Crown Court. The films in question feature: gay fisting (the insertion of five fingers of the fist into the rectum of another male); urolagnia (in this case men urinating in their clothes, onto each others' bodies and drinking it); and BDSM (in this case hard whipping, the insertion of needles, urethral sounds and electrical torture ). Also there was an example of a staged non consensual scene.

The Obscene Publications Act 1959 features the contentious and ambiguous deprave and corrupt test, whereby an article (for example a DVD) is obscene if it tends to deprave and corrupt the reader, viewer or listener. The Test is defined in Section1 of the Act as:

An article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Peacock was represented by Nigel Richardson and Sandra Paul of Hodge Jones and Allen

Myles Jackman, a solicitor specialising in obscenity law, said this outcome was a significant victory for common sense suggesting that the OPA has been rendered irrelevant in the digital age .

In a tweet, Jackman said that SCD9, the Metropolitan Police unit dealing with human exploitation and organised crime, will meet with the Crown Prosecution Service and the British Board of Film Classification to review guidelines on obscenity.

And of course the authorities will be considering whether the law itself now needs changing. No doubt nutter campaigners will now be pushing for something new to replace the OPA now that it no longer supports their censorial views.

Speculation: So what may be the outcome at least in terms of BBFC censorship of R18s?

R18 StoryThe BBFC have been cutting all such material citing the current interpretation of the Obscene Publications Act. But now of course this will change. The BBFC will still be at liberty to cut scenes off their own bat. And indeed the board has been regularly cutting scenes involving penetration by objects that could possibly result in harm justified via its own guidelines.

I think there will be a few changes welcomed by all sides. The current prohibition of female squirting leaves everyone totally baffled as to why. This prohibition can now be rapidly dropped. Perhaps urolagnia can now be generally allowed albeit with restrictions when it is considered by the censors to be degrading.

Perhaps something similar with fisting which could be generally allowed with a proviso that it must not be seen to be causing any discomfort to those participating.

The BDSM issue is not going to be easy. The current ban is at least easy to explain. To allow any level of hurt beyond trifling may prove very difficult to define. Maybe it is still banned by legislation examined during the notable Spanner Case, the judgement of which basically disallows people from giving consent to be hurt. So perhaps the BBFC will just switch justifications but continue to ban BDSM.

And I don't suppose that the non-consensual scene will impact BBFC guidelines at all. This will no doubt continue to be banned from R18s.

 

4th October
2008

 Offsite: So What's Obscene?...

Link Here
CPS guidance on prosecuting obscenity cases

See article from cps.gov.uk

 

19th May
2008
  

Obscene Maximum Sentence...

OPA maximum sentence increased to 5 years
Link Here

The Criminal Injustice Act 2008 increased the maximum sentence for publishing obscene material from 3 to 5 years.

Comment: What obscenity warrants five years?

From Phantom on the Melon Farmers Forum

I find it interesting that the increase of the maximum sentence for obscene publication from 3 years to 5 years seems to have drawn very little attention.

From what I understand the increase was a perverse reaction by the government to having pointed out that their DPA would create a penalty for possession that was as long as publication.

Naturally this had been intended as an argument for the proposed sentencing for the DPA to be shortened. But hey, who at the Home Office and the Ministry of Justice follows logic?

So instead one proposed a lengthening of the publication sentence in tandem with the creation of the possession law.

Obviously, given the outrage of the DPA, the creation of greater severity within the OPA went virtually unchallenged.

Nonetheless, we face the nonsensical situation whereby at a time when more and more people are engaging in what is effectively ‘publishing'
 on the internet, via blogs and user generated content, we are making the punishment more severe.

Not merely are you now to show extreme care of what you watch, but the consequences for making an error of judgment when uploading to a user generated content site have just become more severe.

In essence the chill factor is being deliberately increased. The people of Britain are to fear taking part in any activity involving pictures on the net. Five years in prison. Think of it, folks. What possibly would warrant five years in prison?

As child abuse is dealt with under other laws, this merely concerns pictures of adults for adults.

Five years. There are pretty severe crimes you can commit to be given five years in jail.
But I think anything obscene by now is deemed a severe crime under Labour.

I cannot for the life of me imagine just what obscenity warrants five years.


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