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IC : Weblogs : The_Dungeoneers : "Critique of the original H.O. Extreme Porn Consultation Paper . By Laurence"
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 Critique of the original H.O. Extreme Porn Consultation Paper . By Laurence (13)
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Posted by The_Dungeoneers on Thu 31 Aug 06, 8:05 PM
In view of recent postings here on I.C. which seem to reflect a level of 'unawareness' of many of the issues surrounding this proposed legislation I have taken the liberty of rendering a large part of my own response into a format that can be read here on I.C.
Text from the original Home Office Consultation Document is shown within the quotation boxes. My words are given in between those boxes. Other quotations from other sources are shown in bold. It will be noted that certain passages from the foreword are repeated in the main document. This is due to the Consultation Documents authors repeating their own stance.
A copy of the complete critique can be found here:
http://www.smartgroups.com/vault/Backlash/Lauren...
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Consultation:
On the possession of extreme pornographic material
Home Office
Scottish Executive
August 2005
FOREWORD
by the Parliamentary Under Secretary of State Paul Goggins MP and Scottish Executive Minister for Justice, Cathy Jamieson MSP
The Internet has been the most spectacular communications development in the last 10 years. It is enhancing all our lives by making direct contact between people much easier and, with a few clicks of the mouse, allowing access to all kinds of information which was previously unavailable to us. |
It is perhaps also worth acknowledging that the development of this life enhancing boon to communication that we enjoy today has cost a phenomenal amount of money. The history of the Internet suggests that during those crucial early developmental years that funding was from the private sector and, more relevantly, from trade connected to the 'Adult Industry'. In a nutshell – the Internet we know today owes it's existence to pornography. In the light of that it may be a trifle disingenuous to imply that pornography is in some way 'hijacking the Internet' when to quite some degree the reverse is true.
| The Internet provides opportunities to communicate, learn and shop; and helps UK businesses to compete internationally. But the Internet can also be misused, for example, by circulating indecent and abusive images of children. And we have put in place laws – with stringent penalties – to combat the making, distribution and simple possession of this material. |
Anything can be abused if people set out to do so. The increasing sophistication of computers and attendant technology has also aided terrorists, increased the scope and potential for fraud on a global scale, allowed certain groups to spread messages of racial hatred, facilitated the dispersal of drugs – the list of pros and cons is almost limitless.
History shows us that no matter what mankind may devise mankind may also twist to serve his or her own ends. Nuclear materials used in one way can be a source of cheap and sustainable power. Applied correctly to cancer sufferers it can aid in the saving of life yet in the hands of politicians it has also been forged into a weapon of mass destruction.
The fact is that the Internet is unlikely to be the pinnacle of the communications revolution – it is more likely to represent the foothills across which technology will continue to advance. One thing the Internet has done however is provide us with a social experiment in respect of pornography, albeit a crude and unstructured one.
The authors of this consultation document state “ … pornographic material was available in the past but never so easily or in such quantity as it is now.” That may be so but has this lead to a significant increase in crime directly attributable to the use of pornography? I have seen no evidence to support the view that it has. What I have heard during many criminal trials is the attempt at a mitigating strategy where the defendant offers up a self confessed 'addiction to pornography' as an inappropriate justification for abusive behaviour in the hope of gaining sympathy from the sentencer.
| There is now also considerable public concern about the availability of extreme pornographic material featuring adults. We are not referring to what might be called mainstream pornography or to the kind of material classified for sale in licensed sex shops by the British Board of Film Classification. By "extreme" we mean material which is violent and abusive, featuring activities which are illegal in themselves and where, in some cases, participants may have been the victims of criminal offences. We believe most people would find this material abhorrent. |
The sources and foundation for the above statements need to be stated. The presentation of the current statement is generalised and woolly, somewhat akin to the wording of many established 'urban myths' – the famous phrase “They say that …” 'they' being some unspecified and invisible body of 'opinion' that the teller of the tale hopes his or her audience will automatically imbue with an unauthenticated wisdom thereby giving an undeserved validation to the story.
The term 'considerable public concern' is unquantified. One could equally state that there is 'considerable public apathy' for this issue, in other words people do not view it as a problem and really couldn't care less. Belief is not proof. Belief may however be the starting point of research. Well-conducted research producing clear and unambiguous measurable result is commonly regarded as proof.
| It is already illegal to publish it under the Obscene Publications Act 1959 and in Scotland, the Civic Government (Scotland) Act 1982, but the global nature of the Internet means that it is very difficult to prosecute those responsible who are mostly operating from abroad. |
It may be worth considering why most such prosecutions are 'very difficult'. Different cultures have different standards, different mores, despite being composed of the same species. Some cultures are restrictive others are libertarian. Accordingly laws differ and the judgement of history seems to suggest that a free society with sensible legislation rooted in the principles of knowledge and self-determination flourish far better than those based upon dogma and repression.
As an example of cultural difference vis a vis sexual practice I would cite the case of consenting heterosexual intercourse 'per anum'. Until relatively recently such practice was a criminal offence under English law. The maximum penalty was life imprisonment. If practiced in Dover the participants were criminals – if practiced in Calais no one cared and if practiced in Greece it was considered as a traditional method of birth control. Dover to Calais – a mere twenty-two miles of water yet a world apart in consequences. Did the legislation prevent the practice amongst those in England who found the activity to be enjoyable? Only the seriously naïve would consider that it did.
So why is it “… very difficult to prosecute those responsible who are mostly operating from abroad” in terms of pornographic images? One might venture to suggest that it may be that those other countries have developed a more pragmatic approach to the subject of consensual sex and sexuality in all its forms.
This raises an obvious question. If one compares the levels of sexual offending between the UK and, let us say, our European neighbours who have a less obsessive negative preoccupation with depictions of sex and sexuality, do we see a significantly greater number of incidents, a significantly lower number of incidents or are the figures roughly the same?
This simple empirical test could itself provide a starting point for research and, if it were found that the answer to either of the latter two questions is yes then the grounds for the proposed legislation are apocryphal. Furthermore, it calls into question the raison d'etra of the present UK 'pornography' laws and raises the issue of the repressive British attitude toward matters sexual.
| This pornographic material was available in the past but never so easily or in such quantity as it is now. The nature of the Internet requires us to take a different approach if our controls on this kind of material are not to be undermined. |
The proposals are unlikely to effectively control the material. They appear to be designed as yet another attempt to control 'society' by restrictive legislation and erosion of social freedoms. 'Society' is composed of individuals most of whom are capable of rational thought and are thus notoriously difficult to control in the long term by such methods.
Repressive totalitarian systems do not have a good track record. Communism failed, fascism failed – control by threat of reprisal has only ever been short term when dealing with fundamental human attitudes. Long-term change is achieved by a 'hearts and minds' approach. Education, tolerance and understanding are the tools not denial, concealment and threat.
| We are determined to act against publishers where we can but we believe that individuals also need to take greater responsibility. So we are proposing to strengthen the criminal law in respect of possession of a limited category of extreme material featuring adults. |
Legislation does not foster greater responsibility in individuals, it simply demands obedience thus, in fact, removing the need for responsible decision making from the individual and replacing it with compliance under duress.
| This will mirror the arrangements already in place in respect of child pornography. |
My understanding of these proposals is that they focus upon images of adults. My further understanding is that the proposals do not hold the issue of consent as a defence.
The established child protection legislation that encompasses child pornography has at its heart the plain unvarnished premise that, below a certain age, a child is deemed incapable of giving his or her informed consent to sexual activity. This is a sensible, clearly defined piece of legislation based upon excellent and intensive worldwide research.
The implied parallel with certain types of adult pornography currently fails on a simple fact - adults are not children. Adults are capable of giving their informed consent. To make specific reference to child protection legislation in this document adds nothing to the debate. It suggests a rather cynical attempt by the authors to give weight to a poor argument through the device of trying to evoke an emotional response in the reader by the use of child victim imagery. It is no more than a well-worn propaganda technique.
| The intention is to reduce the demand for such material and to send a clear message that it has no place in our society. |
There are three contentious points in the above sentence.
“The intention is to reduce the demand for such material …”
The methodology outlined in the consultation document relies on the premise that 'supply dictates demand' which rather flies in the face of current economic studies.
“… and to send a clear message that …” The message may well be clear to the vast majority of the populous who either have no interest in the subject matter or are only interested in the consensual aspects of such things in the context of fantasy or consensual role play scenarios.
There is no evidence to suggest that either of these two groups present any of the behavioural problems associated with the concerns put forward by the consultation document thus the sending of the 'message' is inconsequential to those individuals.
In terms of the individual possessed of a predilection which is clinically sadistic (that is to say fulfils the criteria which includes no empathic concern for any victim) or possessed of levels of cognitive distortion, along with the ability to minimise and inappropriately justify their actions to the degree necessary to allow the commission of abuse – the very individuals that the consultation document purports to be concerned about - empirical evidence suggests that the message will have little impact, if it is heard at all.
'… it [pornography] has no place in our society' This is a wonderfully sweeping statement indeed, speaking loudly of the authors levels of prejudice and arrogance on the 'we know best' scale. In transactional analysis terms one might consider this as a statement from the 'parent ego state' and find it most patronising.
The society that we live in is composed of individuals. Some of those individuals band together into 'interest groups'. One such 'interest group' may perceive adult image pornography as rebarbative whereas another 'interest group' may see it as a stimulating and enjoyable diversion and yet another 'interest group' may consider it to be akin to an art form. Who is right? What criteria should be used to answer that question?
Any intelligent and right thinking person with a commitment to a free and democratic society will arrive at one conclusion. Each is 'right' in their own way - according to their own perception, preferences, code and beliefs. This brings us to the next logical question.
In a democratic society should one 'interest group' be able to impose its value system on all the other 'interest groups'? Is it morally sound for one 'interest group' to employ spurious legislation in order to manipulate society for its own ends – on no other basis than disapproval?
The celebrated philosopher John Stuart Mill stated "No conduct should be suppressed by law unless it can be shown to harm someone" and at the time of writing this response there is no evidence to support the suggestion of certain 'interest groups' that viewing adult pornography is harmful to either the individual nor society as a whole.
Given the above, one is drawn to the inescapable conclusion that, whilst this consultation paper strives to build a tower to the 'moral high ground', its foundations stand not upon the bedrock of 'social good' but upon the shifting sands of prejudice and unauthenticated opinion generated by one part of society. That is no basis for sound legislation.
| This consultation paper contains four options for creating a new offence to help tackle this misuse of the Internet. |
To be accurate this consultation paper contains only three options for 'creating a new offence' - option four is to maintain the status quo, which, unless I am very much mistaken, does not create a new offence.
| Because the law applies offline as well as online, the proposal will apply to the possession of this material in whatever form it is held. We know that this is a worldwide issue and are raising it in our discussions with other governments, but we believe that closing a gap in our domestic law and discouraging the possession of this material in the UK will help reduce demand for it and lessen the human cost in its production. |
Again, the sources and foundation for the above statement need to be shown. The 'If no one knows about it no one will want it' argument does not hold up in practice when dealing with fundamental elements of peoples sexuality.
My own experience of over twenty years in the Criminal Justice System dealing with the criminal mind and associated behaviour, the majority of which were sex offenders, has taught me that the human capacity for imagination is limitless and nowhere is that capacity exercised in greater degree than in the area of human psychosexual functioning.
Keyed as it is into the most fundamental biological imperative of every living mammal, sexual arousal affects our entire lives – one only has to look at the devices employed by advertising agencies to see the evidence. The range of 'triggers' for sexual arousal is a broad church indeed and varies enormously across the whole of the human race. All of the five senses; sight, sound, smell, taste, touch can play their part but there is also another factor in play, almost a sixth sense in this context – fantasy.
It has been said that the largest sexual organ is the brain – the melting pot of our imagination into which we pour our hopes, fears, dreams and desires and from which issue our own personal arousal imagery. Here we also form our 'attraction templates' – the preconceptions of our 'ideal' significant others and types of behaviour that we feel will enhance our libido. No two 'templates' are likely to be absolutely identical, simply because no two people will have exactly the same range of experiences.
It is quite natural to seek out material that is 'in tune' with our particular 'attraction template', it is also natural that the individuals fantasies will revolve around constructs that have a congruence with those fantasies.
Kinsey et al, researching the role that fantasy played in the sexual functioning of his study group, found that every one of the subjects reported having fantasies which, had they been carried out in real life, would have resulted in criminal charges.
Dr. A. Nicholas Groth, author of Men Who Rape: The Psychology of the Offender and who gave us the widely used rapist typology cautioned thus:-
"Scientific research does not support the assumption that rape fantasies are warning signs of a potential rapist. While rapists were almost invariably found to have rape fantasies, they were a very small minority compared to a far larger number of psychologically healthy and normal men who had rape fantasies but did not commit rape.
Many people assume that people aroused by rape fantasies must be more likely than others to commit the actual act, or that victims with rape fantasies actually want to become victims of sexual assault. This does not correspond with observed scientific evidence, however, whilst rapists usually fantasize about rape, so do normal psychologically healthy people.
An inability to use sexual fantasies for gratification is often regarded by law enforcement and other professionals as a more alarming warning sign than the presence of sexual fantasies of rape or sadism. Millions of normal people fantasize about rape, or being raped without wanting it to really happen."
By driving such material 'underground' one is likely to create an environment for even more extreme material to be produced unmonitored and potentially places supply in the hands of organised crime who will no doubt gladly embrace such a new and lucrative business opportunity. In such a situation the 'human cost' in 'production' could well prove to be higher.
End of forword
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MAIN DOCUMENT
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| Introduction
1. The purpose of this consultation document is to seek as wide a range of views as possible on a proposal to strengthen the criminal law in respect of possession of a limited range of extreme pornographic material featuring adults. The proposal will mirror the arrangements already in place in respect of indecent photographs and pseudo-photographs of children, possession of which is already an offence. |
My understanding of these proposals is that they focus upon images of adults. My further understanding is that the proposals put forward in this document do not hold the issue of consent as a defence.
The established child protection legislation that encompasses child pornography has at its heart the plain unvarnished premise that, below a certain age, a child is deemed incapable of giving his or her informed consent to sexual activity. As a result it is a sensible, clearly defined piece of legislation with a benchmark based upon excellent and intensive worldwide research.
The implied parallel with certain types of adult pornography currently fails on a simple fact - adults are not children. Adults are capable of giving their informed consent. To make specific references to child protection legislation in this document adds nothing to the debate at hand. It suggests a rather cynical attempt by the authors to give weight to a poor argument through the device of trying to evoke an emotional response in the reader by the use of child victim imagery.
In addition it might also be seen as an effort to 'hijack' a portion of the hard won credibility of the child protection legislation by the use of 'pars pro toto'. These appear to be no more than well-worn propaganda techniques that may have been introduced to cloud the real issue of additional restrictions upon personal freedoms - imposed without substantiating evidence of harm.
| 2. The proposal touches on many issues which are of interest and concern: freedom of speech, protection of the vulnerable, the impact of the Internet on the consumption of violent pornography and wider moral questions about whether some material is so violent, degrading and potentially harmful that its possession should be controlled. |
The authors appear to have omitted the issues of: freedom of information, right of self-determination, personal responsibility and parental responsibility in their enthusiasm for their moral crusade.
· Who is to decide what can be shown and what must be hidden away?
· What will be the criteria for concealment by censorship?
· Where is the evidence to support the ”…potentially harmful…” assertion?
· What will be the qualification for those who set the criteria and those tasked with its enforcement?
· If the 'material' is so 'corrupting' how will those individuals be able to conduct their task without being themselves subject to the 'materials' 'corrupting' effect?
The answer to the last question may be that they would have no 'propensity' – that is to say the material would not corrupt them because they would have no connection - and as such would possess a kind of 'immunity'. If this is the case then any person lacking in 'propensity' must also share that 'immunity'.
From this point the argument may diverge. On the one hand, if the majority of the population has no 'propensity' then one must ask is it reasonable to impose repressive legislation upon the majority because of the few? If one takes the stance that it is reasonable then the recent relaxation of the alcohol licensing laws is in direct opposition to that philosophy.
If, on the other hand it is felt that the vast majority of the population have this 'propensity' and therefore must be protected from themselves then the legislation makes sense. The problem with that standpoint is fairly obvious – I do not feel the need to paint that particular picture.
| 3. We welcome responses to the questions which have been posed in the document and any further contributions or suggestions which you may have. |
| Background
4. This document sets out options for creating a new offence of simple possession of extreme pornographic material which is graphic and sexually explicit and which contains serious violence towards women and men. This material goes far beyond what is classified for mainstream cinema by the British Board of Film Classification (BBFC) [2] and beyond the material classified by the BBFC for sale only in licensed sex shops in the R18 category. We believe the material in question would be illegal to publish, sell or import here under our existing obscenity legislation. |
This raises the question “Is the present quagmire of legislation regarding pornography sound in itself?” The Williams Committee (Home Office Departmental Committee – report published 1979) suggested that it was not and considered that a less reactive and more liberal approach to pornography in general could well be the way forward.
Sadly the Government of the day caved in to minority pressure and the recommendations of that report were discreetly shelved. Interestingly, bits of it bubble up to the surface from time to time but the process is always piecemeal and thus truly positive reform is impeded.
| Thus our mainstream entertainment industry, which works within the obscenity laws, would not be affected by the proposals in this document. Neither should those who currently lawfully produce and distribute pornography. The issue arises due to the wide range of extreme pornography that is now available on the Internet which in practice cannot be controlled by our existing laws. |
There is considerable evidence to suggest that pornography (extreme or otherwise) is unlikely to ever be effectively controlled by prohibitive legislation of the type proposed in this document. The social experiment has already been conducted many times and the results are consistent.
Prohibition is not effective. If it were effective then there would be no alcoholic beverages in most of the United States, there would be no problem of drug addiction in the UK, there would be no gun crime in the UK – the list goes on.
Perhaps the English Prison System itself demonstrates the most salutary example of the inefficiency of prohibition. By far the largest group confined within the Prison System are those individuals whose crimes are drug related. Unauthorised supply, possession and use of class A drugs are all criminal offences. Prisons are supposedly secure and highly controlled environments wherein inmate activity is closely supervised. One of the key purposes of prison is to reduce the risk of re-offending. Despite all of this, class A and B drugs are available within prisons. If prohibition cannot be made effective within such a closed and monitored environment what chance is there on a countrywide basis?
Whilst one may accept that the authors of this document state that mainstream entertainment and 'lawful' producers/distributors of pornography should not be affected by these proposals there are no guarantees.
Censorship is insidious and intrusive. Its very nature is subjective and prey to the prejudicial vagaries of the censor. Furthermore, the 'stepping stone' strategy for politically manipulating change is well known, and not all change is for the better.
Prohibitive legislation that cannot be unequivocally proven to be in the greater public good, that is not founded in solid measurable research and has dubious workability in practice is simply another brick in the wall that further restricts the light of all our freedoms.
| 5. It is not possible in a public document like this to give a great deal of graphic detail or description of the material in question. However, we can say that there are hundreds of Internet sites offering a wide range of material featuring the torture of (mostly female) victims who are tied to some kind of apparatus or restrained in other ways and stabbed with knives, hooks and other implements. These acts are usually presented in a sexually explicit context so that it is clear that the purpose of the material is sexual gratification, although the violence itself may not be sexual. For example, some material contains sexualised images of women hanging by their necks from meat hooks, some with plastic bags over their heads. There is also extensive availability of sites featuring violent rape scenes. Within this category there is a growing trend for scenes purporting to be filmed in real time which heightens their impact. Depictions of necrophilia and bestiality are also widely available. |
Actually it is perfectly possible to give detail and description. In fact it is essential for without the evidence of its existence and type how is anyone able to make an informed decision? Are we, the people supposed to blindly take the authors word for it? To simply say “There is something so terrible that we can't let you see it, nor can we tell you about it but we want you to agree to ban it sight unseen”, is a statement worthy of a Franz Kafka novel.
One must presume that the authors of this document or their agents have seen this material (if not then the validity of this whole proposal is thrown into question) and one would presume that they would maintain that they have not been corrupted by it by virtue of having no 'propensity' (a statement of denial that would be made even if they did have a 'propensity' - for such is the nature of 'self report' – it is notoriously inaccurate where self interests are involved). Why then should there be this reluctance to be clear about the subject matter?
The charitable may suggest that it is because the proponents of this consultation paper are themselves not clear on what it is that they wish to see prohibited and are bidding for the widest brush possible in an attempt to cover whatever they can.
The less charitable might consider it a device whereby greater restriction can be imposed on a wider variety of freedoms by using the proposed legislation as a 'stepping stone'. If the proposed legislation makes it on to the statute book it will become much easier to extend the scope by simply reclassifying any image as 'extreme'.
We have seen first hand evidence of 'reclassification' in action. At the 2005 Labour party conference - the recent controversial 'anti-terrorist' legislation was used as a justification for the manhandling of a pensioner. His 'crime' – he uttered the word “rubbish” during Jack Straws speech about the war in Iraq. Admittedly the matter was itself reclassified shortly afterwards and zeal on the part of security staff was blamed – but that did not undo that mans experience.
| “There is also extensive availability of sites featuring violent rape scenes.” |
Dr. A. Nicholas Groth, author of Men Who Rape: The Psychology of the Offender and who gave us the widely used rapist typology cautions thus: Scientific research does not support the assumption that rape fantasies are warning signs of a potential rapist.
While rapists were almost invariably found to have rape fantasies, they were a very small minority compared to a far larger number of psychologically healthy and normal men who had rape fantasies but did not commit rape.
Many people assume that people aroused by rape fantasies must be more likely than others to commit the actual act, or that victims with rape fantasies actually want to become victims of sexual assault. This does not correspond with observed scientific evidence, however, whilst rapists usually fantasize about rape, so do normal psychologically healthy people.
An inability to use sexual fantasies for gratification is often regarded by law enforcement and other professionals as a more alarming warning sign than the presence of sexual fantasies of rape or sadism. Millions of normal people fantasize about rape, or being raped without wanting it to really happen.
The darker side of human nature has always held a fascination for people. One only has to look to the Arts and media for evidence. When there is a news story about a horrific incident such as murder, sexual abuse or a major scandal newspapers experience an upsurge in circulation. Several of the sites of former concentration camps are to all intents and purposes tourist centres. The work of the investigation teams following the Lockerbie disaster was reported as hampered by souvenir hunters. Rape, necrophilia, bestiality and other such activities fall into that area of macabre fascination for the human condition.
For certain individuals their fascination for the subject becomes a fetish. That is to say imbued with a sexual congruence to their personal arousal system. Accordingly they will seek out materials that resonate with that fetish, the source of those materials and the intent of the producers of those materials is irrelevant to them. What is important is that the material strikes the right chord. Thus it is perfectly possible that images and/or text published in a mainstream newspaper could be as, if not more, sexually arousing to the individual with a propensity to a particular fetish than commercially produced pornography.
I shall return to this point in my response to paragraph 37 of this consultation document.
| 6. Internet take-up has accelerated rapidly over the last few years. According to a major research study published in April 2005 (UK Children Go Online [3]) 75% of 9-19 year olds surveyed had accessed the Internet from a computer at home and 57% of all 9-19 year olds surveyed who use the Internet at least once a week had come into contact with pornography online. The study did not distinguish between types of pornography but did reveal that most contact was accidental, for example via unsolicited emails or pop-up adverts but that a minority in this age group (10%) actively sought out pornography. According to the same study, figures produced by the Office for National Statistics [4] show that 58% of UK adults (aged 16+) had used the Internet by February 2004 (up from 49% in 2002 and 54% in 2003). By far the largest user group are young people aged 14-22 in full time education, as found in the Oxford Internet Survey [5]. The Survey also found that most users (93%) accessed the Internet from home. |
This raises the question of parental responsibility, a topic completely avoided by this document despite the authors expressed concern for child protection. Permitting children to have unsupervised access to an Internet terminal is irresponsible to say the least. To have an Internet terminal in a family home where children may have access to it without installing full parental control software is equally feckless.
It is not the role of legislation to compensate for poor parenting nor is it the role of society to act as unpaid child minders for those too lazy to take proper interest in the activities of their offspring. There is no evidence to suggest that 'positive family values' are fostered by 'cosseting' unskilled parents, in fact such a policy may well serve to create a situation wherein traditional values are eroded as self reliance gives way to dependency on the state. I will comment further upon this in my conclusion.
| 7. The issue of accidental or legitimate contact with pornography of the kind described in this document will concern many people. It is not the intention to penalise people who accidentally stumble across the material specified in the proposal, have it sent to them without their consent, or have a legitimate reason (such as assisting law enforcement) for dealing with it. |
Whilst it may not be the intention of the authors to penalise people in the situations outlined above there is a very real possibility that in practice it may prove that is exactly what will happen. In the case of accidental or unsolicited contact the burden of proof will inevitably fall upon the individual – a presumption of guilt by proof of possession rather than by proof of intent.
| The proposal will mirror the arrangements already in place in respect of indecent photographs and pseudo photographs of children, possession of which is already an offence (as set out in the current legislation section in paragraphs 24-25 below). |
The legislation covering indecent images of children has one important and critical difference setting it apart from the proposed legislation. Children cannot give their informed consent by reason of age therefore the issue is far more clear cut.
In the case of images of an adult, it may well be that the image has been produced as part of their own fantasy/legitimate sexual practice – with full consent of all parties concerned.
In view of the fact that the authors of this consultation paper have elected to use repetition in their determination to link the issue of child pornography to this debate I feel quite justified in repeating my former statement.
The implied parallel linking child pornography with certain types of adult pornography currently fails on a simple fact - adults are not children. Adults are capable of giving their informed consent. To make specific references in this consultation document to child protection legislation and the images associated with child abuse adds nothing to the debate at hand. It suggests a rather cynical attempt by the authors to give weight to a poor argument through the device of trying to evoke an emotional response in the reader by the use of child victim imagery.
In addition it might also be seen as an effort to 'hijack' a portion of the hard won credibility of the child protection legislation by the use of 'pars pro toto'. These are no more than well-worn propaganda techniques and unworthy of a serious document.
| 8. As the studies mentioned above show, the Internet is transforming our lives, offering unparalleled opportunities to communicate, to discover and to learn. Alongside these benefits, the Internet also brings challenges for, amongst other things, the regulation of potentially illegal pornographic material which is readily accessible, often without payment, from a huge range of providers. |
The key word here is potentially. No activity is illegal until a law is passed that makes it so. It therefore follows that everything can be considered as 'potentially illegal'. In practical terms a wise and just legislature will look towards hard evidence upon which to base its decisions to legislate.
Implementation of the proposed legislation will create new offences, which in turn will criminalize a section of society who, hitherto were deemed law abiding.
It is perhaps also worth acknowledging that the development of this life enhancing boon to communication that we enjoy today has cost a phenomenal amount of money. The history of the Internet suggests that during those crucial early developmental years that funding was from the private sector and, more relevantly, from trade connected to the 'Adult Industry'. In a nutshell – the Internet we know today owes it's existence to pornography. In the light of that it may be a trifle disingenuous to imply that pornography is in some way 'hijacking the Internet' when to quite some degree the reverse is true.
| 9. Illegal material has always been available and those who sold it risked prosecution under the Obscene Publications Act 1959 (OPA) and in Scotland, the Civic Government (Scotland) Act 1982. But there is some evidence that the boundaries are being pushed back and that even more extreme images are now being sought after and provided. |
The evidence for the highlighted statement needs to be presented – again this is a generalised and sweeping statement. The inference is that the 'boundaries' have always been there which is patently absurd.
Images of all kinds have been created and sought by mankind ever since the first time that homo erectus discovered that he could create representational patterns upon his cave walls. He drew images of things that were meaningful to him, sex, the hunt, the conflict, suffering, death. Some of these images have even gained religious significance.
Throughout the centuries mankind has continued its fascination with these subjects, sticks and berry juice have given way to brush and canvas and, as technology has forged ahead, light sensitive films and phosphorescent screens. The medium may change but the allure remains the same.
The current 'obscenity boundaries' were set by man and are the result of a view of a different era. Over the years these views have been modified and added to by successive pieces of legislation in a patchwork system until we arrive at the cumbersome and convoluted OPA and CGA. It is perhaps appropriate to note that prior to the passing of 'obscenity legislation' the human race managed quite well. The proof of this statement is all around us – we are still here.
Continued in next post
Edited Thu 31 Aug 06, 11:29 PM by The_Dungeoneers
Replies
31 Aug 06, 9:26 PM
The_Dungeoneers
UK, 2 yrs
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| In addition, this material has never been available so easily or in such quantity. In pre-Internet days, individuals who wished to view this kind of material would need to seek it out, bring it into their home or have it delivered in physical form as magazines, videos, photographs etc, risking discovery and embarrassment at every stage. Now they are able to access it from their computers at home (or from their place of work) with relative ease. |
There is a school of thought that might argued that exposure to large quantities of pornography ultimately has the effect of reducing its attraction to the casually curious or mildly attracted – the development of boredom with the images. For the truly obsessive however that is an unlikely result but then again, as previously stated, for those few obsessives, prohibition has proved to be no impediment in the past and is unlikely to do so in the future.
| 10. Particular concern has been raised recently about the accessibility of extreme pornographic material. This has been heightened by a recent tragic case where a young woman was murdered by a man who had been accessing such sites on the Internet. During the trial it was revealed that he had visited these sites prior to and after the victim's death [6]. |
Whilst one has sincere and heartfelt sympathies with all who have been affected by that crime, and in fact all victims of crime, it does not help wider society to indulge in 'knee jerk' reaction and make hurried decisions that leads to poorly thought out legislation.
There are no conclusive legitimate research findings that support the inference that exposure to pornography is casual in the commission of crime. There is some mileage in the notion that prolonged excessive masturbation to inappropriate imagery may contribute to a level of disinhibition in an individual who is already motivated to offend. I cite the research of Dr. David Finklehor and his team who developed the following preconditions model currently in use by the Criminal Justice Systems of the UK, USA and many other countries worldwide.
PRECONDITIONS TO VIOLENT AND/OR SEXUAL OFFENDING
1. The individual must be motivated towards the offending behaviour.
2. The individual must overcome his or her own internal inhibition against the offending behaviour.
3. The individual must overcome external impediment against the offending behaviour.
4. The individual must overcome victim resistance to his or her offending behaviour.
Given the above, the notion of disinhibition falls into factor two of the progression. If the individual is not motivated towards the offending behaviour the disinhibition effect does not engage thus the 'pornography' has no effect. If the individual is motivated towards offending behaviour he or she will seek out the images in just the same way a person motivated towards drug abuse will seek their drug of choice. Legislation will not impede them nor will the fact that prohibition has driven up the price.
It is famously the case that the one overriding cognitive distortion held in the mind of the offender when breaking a law is “I will do this in a way so as not to get caught” – this thought allows him or her to dismiss any notion of consequences prior to and during the commission of the offence. In such a case the legislation has no deterrent effect, its only power exists post arrest where the authorities can exert physical consequences upon the physical body. The entire notion of 'deterrent' in those cases is simply a placebo fed to the body politic – a political strategy to be 'seen to be doing something' and a sop to particular campaign or pressure groups.
An increase in price only benefits the vendors of the material. Again we have the parallel of the drug abuse problem. Despite the best efforts of the legislature demand continues unabated. The commodity price to the user reflects the risks involved to the supplier and the scarcer the commodity the higher the price – here the laws of supply and demand properly apply.
If a commodity reaches the point of high return for 'small' effort (notwithstanding the risk) it becomes an attractive business opportunity for organised crime. Thus prohibitive legislation benefits the criminal in such cases.
Let us not be coy here, the case of Graham Coutts is well documented. According to the public record, by his own admission he had asphyxiation fantasies since the age of 15 - a period of some 20 years and one that predates the Internet.
At the time of his trial he was unable to give a clue as to the origin of those fantasies. He was able to identify the female neck as the principle point of sexual attraction for him. He maintained that he had made this part of the female body into a fetish (a correct use of the word in this context). By his own admission he had indulged in the practice of asphyxia sex more than 170 times with former partners. This was confirmed at his trial when several former partners gave corroborative evidence. Furthermore it was stated in the witness statement of Sandra Gates that Coutts would take ordinary pictures from publications and add bindings and ligatures to those pictures using a pen to draw with.
Coutts may well have accessed extreme pornography via the Internet in recent times but I would submit that such access has less significance in the scheme of things than the statement of Sandra Gates that he was already creating his own imagery from within his own imagination.
In terms of this consultation document there is one key question that arises from that case.
· Would Coutts have engaged in autoerotic asphyxiation scenarios had he not had access to the Internet?
Given the information supplied by Sandra Gates and his own statement that his obsession predated his access to the Internet the probability is extremely high.
| 11. The material under consideration does not depict consensual sexual activity, nor even the milder forms of bondage and humiliation which are common place in pornographic material. It depicts suffering, pain, torture and degradation of a kind which we believe most people would find abhorrent. The underlying premise of this document is that this material should have no place in our society. The fact that it is widely accessible over the Internet does not legitimise it. |
The difficulty with this statement is that 'the material' is not clearly defined (see Paragraph 5) and different people react to things differently depending upon a variety of factors including their background, life experience, education, state of well-being at the time etc. A belief held by one group of people does not make it a universal truth, however strong that belief may appear.
| “The underlying premise of this document is that this material should have no place in our society.” |
This is a wonderfully sweeping statement indeed, speaking loudly of the authors levels of prejudice and arrogance on the 'we know best' scale. In transactional analysis terms one might consider this as a statement from the 'parent ego state' and find it most patronising.
The society that we live in is composed of individuals. Some of those individuals band together into 'interest groups'. One such 'interest group' may perceive adult image pornography as rebarbative whereas another 'interest group' may see it as a stimulating and enjoyable diversion and yet another 'interest group' may consider it to be akin to an art form. Who is right? What criteria should be used to answer that question?
Any intelligent and right thinking person with a commitment to a free and democratic society will arrive at one conclusion. Each is 'right' in their own way - according to their own perception, preferences, code and beliefs.
This brings us to the next logical question.
In a democratic society should one 'interest group' be able to impose its value system on all the other 'interest groups'? Is it morally sound for one 'interest group' to employ spurious legislation in order to manipulate society for its own ends – on no other basis than disapproval?
The celebrated philosopher John Stuart Mill stated "No conduct should be suppressed by law unless it can be shown to harm someone" and at the time of writing this response there is no evidence to support the suggestion of certain 'interest groups' that viewing adult pornography is harmful to either the individual nor society as a whole.
Given the above, one is drawn to the inescapable conclusion that, whilst this consultation paper strives to build a tower to the 'moral high ground', its foundations stand not upon the bedrock of 'social good' but upon the shifting sands of prejudice and unauthenticated opinion generated by one part of society. That is no basis for sound legislation.
| Current Legislation
Obscene Publications Acts 1959 and 1964 — background
12. The principal control on published works, including material published via the Internet, is the Obscene Publications Act (OPA) 1959. The OPA, as amended, says that an article shall be deemed to be obscene if its effect, when taken as a whole, is such as to tend to deprave and corrupt persons who are likely to read, see or hear it. There is also a public good defence to ensure that genuine works of science, literature, art or learning are not penalised. Publication, as defined in the Act covers a range of activity including giving, hiring, lending and selling but simple possession of an obscene article is not an offence.
13. The "deprave and corrupt" test has been controversial since its inception, and has both supporters and critics. Its strengths are said to be that it is flexible and capable of interpretation by juries in line with changing moral standards. Its focus is on the effects or the harm done by the material in question. The present test is consistent with our obligations under Article 10 of the European Convention on Human Rights, which guarantees freedom of expression and was incorporated into UK law in the Human Rights Act 1998. The perceived weaknesses of the test are the reverse of its strengths. Its flexibility and the subjective judgements required of juries in every case are considered by some to be its greatest drawbacks.
14. There have been several attempts to reform the OPA. In recent years, Gerald Howarth MP introduced a Bill in 1987 and Lord Halsbury introduced Bills in 1996 and again in 1999. However, these Bills failed to make progress and there was no consensus on a way forward. |
If one examines the Bills referred to one is struck by at least two underlying similarity to the current proposals under discussion – the total lack of supporting evidence as to the nature of harm and the reliance on emotive dogma in an attempt to divert attention from this fact.
This was summed up by the response made by the Earl of Courtown on the 18 Dec 1996 to Lord Halsburys bill.
"The criminal law exists to prevent harm, to protect individual citizens and society itself from damaging behaviour and influences. Its function is not to impose the preferences of one section of society upon others unless there is clear evidence that damage may otherwise be caused." (Hansard 18 Dec 1996 : Column 1606)
'Clear evidence' - those words are part of the very foundation of English Justice and it is Justice that the law should serve not vice versa. Evidence is the central pillar of the English Criminal Justice System. Without evidence the Courts cannot operate in a just fashion.
Since one of the main functions of the Criminal Court system is to apply the rule of law surely it must follow that the legislation upon which those laws stand need to be crafted from the same clay of evidence. If they are not then the entire edifice is placed at risk due to poor foundations, with a strong potential for loss of faith by the electorate in the CJS and the government. There is no clear evidence that viewing adult image pornography harms the ordinary citizen.
| 15. The number of prosecutions under the OPA has fallen from 309 in 1994 to 39 in 2003. However, the number of prosecutions under the Protection of Children Act 1978 (as amended) or section 160 of the Criminal Justice Act 1988, which make it illegal to make, distribute, possess, etc. indecent photographs of children, has risen markedly from 93 in 1994 to 1,890 in 2003. It may be that the reduction in prosecutions under the OPA in part reflects a higher priority being given to combating the increasing availability of indecent photographs of children through the Internet. |
It may also reflect an increasing awareness that the pursuit of adult image pornography is a frivolous exercise in that it consumes resources to achieve scant, if any, social benefit. Those resources would be far better deployed in the pursuit of images that are clear evidence of provable crime – the abuse of children.
| 16. The Obscene Publications Act 1964 added the offence of possession for gain to the 1959 Act, with the same penalties, i.e. a maximum of 3 years' imprisonment or an unlimited fine, or both. There are also restrictions on the sending of indecent and obscene material by post in section 85 of the Postal Services Act 2000 that was closely modelled on section 11 of the Postal Services Act 1953. The Customs and Excise Management Act 1979 also gives Customs' officers the power to take action against those who import prohibited goods which includes material that it is an offence to possess for gain under the OPA. |
Continued in next post |
31 Aug 06, 10:00 PM
The_Dungeoneers
UK, 2 yrs
|
| The Law in Scotland
17. In Scotland, section 51 of the Civic Government (Scotland) Act 1982 makes it an offence to publicly display, publish, sell or distribute any obscene material. It also makes it an offence to make, print, have or keep any obscene material with a view to its eventual sale or distribution. The maximum penalty on indictment for these offences is 3 years' imprisonment. The Act has been amended on a number of occasions to include broadcasting of obscene material, to increase the maximum penalty and to ensure that the term "publishing" includes transmitting electronic data.
18. The term "obscene" is not defined in the Act, however, courts will apply the common law test of whether the material is calculated to deprave and corrupt persons open to depraving or corrupting influences. This is a slightly different test of obscenity from that used in England and Wales but has the same advantages and disadvantages of flexibility discussed in paragraph 13. |
Essentially the wording of the Scottish test makes it heavily biased in favour of the prosecution. The immense variety of responses to stimuli encountered in the human race makes it possible for virtually anything to fall within this definition.
There are a number of inmates held within the prison system who have committed murders and maintain that they did so on the instruction of God. They cite the Bible in support of their actions. Should that book be banned on the grounds that those persons were 'open to depraving or corrupting influences'? Of course not, that would be seen as ridiculous – yet a number of the passages in the Old Testament could fall foul of the Scottish legislation if it were written and published today.
The point is that anything can be abused if people set out to do so. The increasing sophistication of computers and attendant technology has also aided terrorists, increased the scope and potential for fraud on a global scale, allowed certain groups to spread messages of racial hatred, facilitated the dispersal of drugs – the list of pros and cons is almost limitless.
History shows us that no matter what mankind may devise mankind may also twist to serve his or her own ends. Nuclear materials used in one way can be a source of cheap and sustainable power. Applied correctly to cancer sufferers it can aid in the saving of life yet in the hands of politicians it has also been forged into a weapon of mass destruction.
| 19. Both the Postal Services Act 2000 and the Customs and Excise Management Act 1979 (see paragraph 16) apply to Scotland. |
| Recent Consideration of the Current Legislation
20. We believe the type of extreme material specified in the proposals would contravene the OPA and in Scotland, the CG(S)A.
21. We have considered the position of the OPA and the CG(S)A in the light of technological change. Despite the criticisms often made of the general test of obscenity, we are satisfied that it continues to provide a benchmark for society's tolerance of certain material at a given time, as expressed through the courts, which is generally understood by the publishing and other media, and their regulators. It offers a threshold below which publishers, broadcasting regulators and others can establish their own standards of what is acceptable to the public. The OPA and the CG(S)A, have also been used successfully in respect of material published via the Internet, where necessary links with publishers here have been made to enable a prosecution to be brought. The case of R v Perrin [7] is a recent example in England. This case involved a French national based in the UK who was publishing from abroad (in the USA). He was arrested and successfully prosecuted when he came to the UK. This judgement stated that the mere transmission of data constitutes publication and endorsed the decision in the case of R v Waddon, a Court of Appeal decision delivered on 6 April 2000 which states that publication on the Internet occurs when the images are uploaded and when they are downloaded.
22. We believe that very little potentially illegal pornographic material found on the Internet originates from within the UK. The Internet Watch Foundation (IWF) [8] received no reports of UK-hosted material in 2003 or 2004. The lack of UK-hosted material might be as a result of the deterrent effect of the OPA and the CG(S)A. The challenge now arises from the ease of circulation of this material from abroad and this requires a different approach. |
This paragraph makes little sense. The phrase ”… potentially illegal pornographic material … ” means what exactly? Material is either legal or illegal according to existing active legislation. The lack of UK-hosted material might also reflect the ease with which accounts can be set up in countries with a more liberal attitude towards pornography in general. It may also reflect that an overseas operation avoids any involvement with the repressive taxation system imposed upon UK companies.
| 23. As indicated above, it is not an offence simply to possess obscene material, although it is an offence in England and Wales to have an obscene article for publication for gain or, in Scotland, to have obscene material with a view to its eventual sale or distribution. When the present laws were passed, it was possible to cut off sources of supply of illegal material in the form of books, photographs and later, films, videos and DVDs, by taking action against publishers operating within the UK. Physical importation from abroad was prohibited by the Customs Consolidation Act 1876 and the Customs and Excise Management Act 1979, and gave Customs' officers the power to seize illegal material. |
Yet even then that material was still available at a price. We know this from records of police seizure going back many years. It is somewhat disingenuous to imply that pre Internet the country was somehow 'porn free' – it was merely not as visible as it is today.
| Closing down sources of supply and distribution obviated the need for a possession offence. However, the global nature of the Internet makes this approach much more difficult. We are determined to act where we can against publishers but require the individual to take greater responsibility if we are to maintain our controls on illegal material. Accessing extreme pornographic images, particularly on paid-for sites, fuels the demand/supply/demand cycle. We believe that an offence of possession of a limited category of extreme adult material, may help to break this cycle. |
Demand certainly has an effect on supply. The greater the demand the more likely it is that supply will rise to meet the demand. If demand falls, supply will follow the downward trend. Should the supply be reduced however demand will not automatically follow. Scarcity simply drives up the price. This is basic economics.
Scarcity as a result of global unobtainability is one thing, scarcity as a result of local prohibition is quite another. Prohibition is both costly to enforce and lacks efficacy. (see Para. 4) A further factor, which appears to have been overlooked by the authors of this consultation document, is the possibility that the proposed legislation may create the 'forbidden fruit effect'.
The proposals will not control the material – they are designed as an attempt to control people who are notoriously difficult to control in the long term. Communism failed, fascism failed – control by threat of reprisal has only ever been short term. Long-term change is achieved by a 'hearts and minds' approach, education, tolerance and understanding are the tools not denial, concealment and threat.
“Power is of two kinds. One is obtained by fear of punishment and the other by acts of love. Power based on love is a thousand times more effective and permanent than the one derived from fear of punishment.” Mahatma Gandi (1869-1948)
Legislation does not foster greater responsibility in individuals, it simply requires obedience thus in fact removing the need for responsible decision making from the individual and replacing it with compliance under duress.
The 'If no one knows about it no one will want it' argument does not hold up in practice when dealing with fundamental elements of peoples sexuality. By driving such material 'underground' one does not 'break the cycle' one simply increases the price. This creates the environment for even more extreme material to be produced unmonitored and places supply in the hands of organised crime who will gladly embrace such a new and lucrative business opportunity. The cycle is merely modified. Once again I cite the example of alcohol prohibition in the USA and current drug prohibition in both the USA and Europe.
| Possession of Indecent Photographs and Pseudo-Photographs of Children
24. A similar approach has been taken in respect of criminalising simple possession of indecent photographs and pseudophotographs [9] of children. In England and Wales the Protection of Children Act 1978 made it an offence to take, make and distribute indecent images of children under 16. Ten years later Parliament decided, in passing section 160 Criminal Justice Act 1988, that it should also be an offence to simply possess such images. The Sexual Offences Act 2003, amended the 1978 Act so that both it and the 1988 Act apply to indecent photographs of children under 18. Possession of such material is an offence under the 1988 Act carrying a maximum 5 year penalty, while offences of taking, making and distribution are covered under the 1978 Act and carry a maximum 10 year penalty.
25. In Scotland, taking, making, distributing, showing or advertising indecent photographs and pseudo- photographs of children is an offence, by virtue of section 52 of the Civic Government (Scotland) Act 1982. The Criminal Justice Act 1988 made it an offence to possess such images, by inserting section 52A into the Civic Government (Scotland) Act 1982. The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 will make these offences apply to images of children under 18, rather than 16 as at present. Like England and Wales, the maximum penalty on indictment for possession of such material is 5 years' imprisonment and the maximum penalty on indictment for taking, making, distributing, showing or advertising such material is 10 years' imprisonment. |
Paragraphs 24 and 25 refer to images that are already the subject of legislation. The content of these paragraphs serve no purpose other than that of a cynical attempt to place a tenuous connection between the unspecified adult images under discussion and clear-cut images of child abuse in the minds of the layperson.
The use of such a device speaks volumes as to the authors' lack of confidence in their core argument and paucity of evidence to support their assertions.
| 26. The primary purpose of this legislation is to protect children both from direct abuse and from the continued circulation of images of their abuse. Merely downloading an image from the Internet is regarded as a serious matter because to do so feeds the market for this kind of material, so increasing the likelihood of further abuse, to create further images. Although the arguments are less clear cut in respect of violent and abusive adult pornography, we believe that a possession offence will send a clear message about this material, will make it easier to combat it and may reduce demand for it. |
Cleverly worded and potentially misleading to the man on the Clapham Omnibus. Which legislation is referred to in the first two lines of this paragraph? That which is already on the statute book aimed at child protection or the proposed legislation postulated in this document? The authors will, I suspect, affirm that it refers to the legislation named in the foregoing two paragraphs, in which case my previous observations with regard to paragraphs 24 and 25 apply.
As I have already said in response to paragraph 7: “The legislation covering indecent images of children has one important and critical difference. Children cannot give their informed consent by reason of age therefore the issue is far more clear cut. In the case of an adult, it may well be that the image has been produced as part of their own fantasy/legitimate sexual practice – with full consent of all parties concerned.” As they stand the proposals outlined in this document will serve to criminalize a section of the public that have committed no criminal act.
In respect of the last sentence of paragraph 26, the message may well be clear to the vast majority of the populous who either have no interest in the subject matter or are only interested in the consensual aspects of such things in the context of fantasy or consensual role play scenarios.
In terms of the individual possessed of a predilection that is clinically sadistic (that is to say fulfils the current criteria which includes no empathic concern for any victim) or possesses the level of cognitive distortion, the ability to minimise and inappropriately justify their actions to the degree necessary to allow the commission of abuse – the message will have little impact, if it is heard at all.
| Evidence of Harm
27. As previously stated, we believe that the material under consideration in this document has no place in our society and people should be prohibited from possessing it. We believe from the observations of the police and others who investigate it, that the material may often cause serious physical and other harm to those involved in making it; in some cases the participants are clearly the victims of criminal offences. We consider that it is possible that such material may encourage or reinforce interest in violent and aberrant sexual activity to the detriment of society as a whole.
28. There is a substantial body of research which explores the effects of pornography on attitudes, beliefs and behaviour. There are many studies examining the impact of both mainstream and sexually violent pornography on individuals and society, which have been conducted since the 1970s and 1980s when the threshold of tolerance of pornographic material rose in many countries. These studies take different forms. Some of this research comprises empirical studies conducted to measure emotional, attitudinal and behavioural effects with different samples of males from the general population. There is also research with sex offenders which has attempted to learn how they may have been influenced by pornographic material. In addition, there are studies which involve rape victims and battered women to determine the part pornography may have played in the offences committed against them. Studies of volunteers' reactions to pornography have been conducted in laboratory conditions. There have also been a few large studies which have attempted to investigate whether there is a correlation of availability of pornography with rates of sexual offending.
29. The interpretation of the findings of this research has been the subject of reviews commissioned by governments in the US, UK, Australia and elsewhere over several decades, and the subject of public debate often coloured by a moral or political outlook. This has made it difficult to get a clear picture and understanding of the possible harmful effects of pornography.
30. Ethical considerations prevent research which involves exposing people to the extremely violent and degrading material which is under discussion in this document. This places certain limitations on the kinds of studies which can be conducted. Many of the available studies are therefore cross-sectional or retrospective; many are concerned with short term effects, for example in laboratory conditions, rather then the long term effects of exposure to material which examines the duration of effects and whether repeated exposure has cumulative effects. It is difficult to replicate, in laboratory conditions, the obsessive and repeated exposure to this material which may occur in real life situations.
31. 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. |
Paragraphs 27 through 31 contribute little to this debate other than to acknowledge that, despite there being a 'substantial body of research which explores the effects of pornography on attitudes, beliefs and behaviour' conducted over a period spanning more than 30 years and has been 'the subject of reviews commissioned by governments in the US, UK, Australia and elsewhere' no conclusive results have been achieved. This is a bald admission by the authors that their proposals are based upon nothing more than speculation, unauthenticated opinion and guesswork arising from personal emotional response.
The authors core justification for proposing the additional legislation is that it is 'harmful' yet by their own admission they are unable to offer evidence of harm. They seek to mitigate this paucity by saying “It is difficult …”. Research is often difficult. It can also be frustrating, tedious, stress inducing and beset with disappointment but it is also essential to the establishment of truth. Our very recent history bears tragic testimony to the consequences of poorly researched ventures.
| The Proposals
Public policy rationale
32. Technological and social developments, including the widespread use of the Internet, mean we can no longer rely on national norms of behaviour or understanding, or on border controls to limit the kinds of material consumed within the UK. We also cannot ignore the fact that international enforcement of national standards in this area is highly problematic. We must consider whether further controls on particular forms of material that are made available for public consumption are necessary and justified. |
I will be perfectly frank here. I believe that I am a reasonably educated and fairly average human being. I was born into and brought up within a society that prided itself on being a leader in the free world. I find myself reading the above paragraph with an air of total disbelief. Who exactly are the 'we' that the authors are referring to? National norms of behaviour are just that – norms. A societies 'norms' are the central pillar of its structure and should be set by the entire body politic – the electorate – not by self interest groups.
Within this paragraph the authors have done little more than insult the good citizens of this country by suggesting that we, as individuals are no longer capable of appropriate social conduct and have a limited capacity to understand.
Given the general state of confusion that exists in respect of the obscenity laws in this country, our increasingly close association with our European partners and the speed of technological advancement it may be more appropriate to consider a complete rethink of censorship and look towards revising the current legislation altogether.
| 33. As set out earlier, we believe that there is a small category of pornographic material which is so repugnant that, in common with child abuse images, its possession should not be tolerated. |
There are many things in the world that large numbers of people find repugnant. It is also the case that what is repugnant to one may not be repugnant to another. Repugnance is not a basis for legislation - proof of harm is.
What is at issue here are the fundamental notions of democracy, freedom of expression, right of self-determination and freedom of choice. Once those notions begin to be eroded in a society then the slippery slope towards the pit of totalitarianism manifests itself. There is an old adage that says “Power corrupts – Absolute power corrupts absolutely”. Totalitarian states wield absolute power. Perhaps the 'deprave and corrupt' test could be applied?
As I have commented earlier – belief is not proof no matter how widespread that belief may be. Mankind once held the almost universal belief that the Earth was flat and that the Sun orbited the Earth. What changed that belief? The answer is irrefutable evidence based upon exploration and research. The authors have presented much belief but scant evidence to support their proposals.
| 34. Our proposals to strengthen controls on extreme pornographic material are therefore based on:
· a desire to protect those who participate in the creation of sexual material containing violence, cruelty or degradation, who may be the victims of crime in the making of the material, whether or not they notionally or genuinely consent to taking part; |
The desire to protect is a most laudable sentiment. It is the last eleven words of this paragraph that should give cause for concern. Effectively those words remove the individuals right of self-determination by negating his or her ability to give consent.
An act is deemed abusive if it is perpetrated upon another without the informed consent of that other or if that other is unable to give informed consent by virtue of age or infirmity either mental or physical or is prevented from withholding that consent by virtue of threat, coercion or device.
·
| a desire to protect society, particularly children, from exposure to such material, to which access can no longer be reliably controlled through legislation dealing with publication and distribution, and which may encourage interest in violent or aberrant sexual activity. |
Again a laudable sentiment but I sense a contradiction. How will the proposed legislation achieve this? The authors acknowledge that the issue is global. They have stated that the material originates beyond the shores of the UK. The proposed legislation would only have jurisdiction within the UK. They maintain that access to this material is via the Internet which gives access to the entire world wide web. It is difficult to see how simple prohibition will prevent those who wish to access such material from doing so – albeit illegally.
| 35. The proposals would thus close what can be viewed as a gap in existing legislation which has developed as technology has advanced to circumvent the controls already in place.
36. Against this background (which would not itself be set out in any legislation) we set out a number of options below: in two of these options (including our preferred one) we propose making it an offence to possess limited types of extreme pornography against which, in particular, we believe action is needed. Although we have stressed the challenge posed by the technological developments, the offence would apply equally to offline pornography as it would to material accessed via the Internet or through other technologies such as mobile telephones. |
The fact is that the Internet is unlikely to be the pinnacle of the communications revolution – it is more likely to represent the foothills across which technology will continue to advance. As each day passes that which was cutting edge the day before is obsolete. Are we to simply see more and more legislation piled layer on layer in a desperate effort to cling to repressive notions formed a century or more ago?
Continued in next post
|
31 Aug 06, 10:23 PM
The_Dungeoneers
UK, 2 yrs
|
| Pornography
37. The intention is that any new offence would apply only to pornographic material. In other words, material that has been solely or primarily produced for the purpose of sexual arousal. It is not the intention to capture medical or scientific material, educational, artistic, mainstream broadcast entertainment, or news footage. |
I cannot help but be minded of an old adage from the gun lobby. “Guns do not kill people – people kill people”. Thus it is for items that engender sexual arousal in human beings. It is dangerously naïve to make the assumption that material produced for 'other purposes' will not be utilised in a sexual way.
It is an attractive notion to consider that specifically produced pornography is the primary source of certain types of anti social behaviour however this may be something of a red herring in this context. Certainly such material cannot be discounted in terms of use by sex offenders as masturbatory aids nevertheless sex offenders are not universally stupid people. Most are well aware that the imagery contained in this medium is considered as being on the fringe or beyond the social mores of British society and consequently it has little value as 'social validation' for the offender or would be offender.
What is needed to support their predilections are items and statements from quasi 'respectable' sources which can be combined with their own arguments and adapted as necessary, in order to support their views. Documentary programmes on radio and TV, articles in magazines and newspapers and academic third person discussions are seized upon and examined for validation of their behaviour.
I have many years experience of working with sex offenders and violent offenders as a Probation Officer. I have reported in a host of cases wherein the associated masturbatory icons would not have been considered as pornographic. Childrens clothing catalogues, newspaper cuttings with photographs of childrens swimming teams, publicity pictures from the 'Miss Pears' contests, Cadburys Flake advertisements, Comfort Fabric softener advertisements – all are grist to the mill of the paedophile. Rapists and sexual aggressives seek out newspaper accounts of attacks, articles on the activities of concentration camps, radio and television documentaries about torture and oppression.
General release feature films are obtained on video or DVD and the 'sections of interest' are watched over and over again. The washroom scene in Ken Loachs film Kes (1966 certificated U) and a number of scenes from Nicolas Gessners film The Little Girl Who Lives Down The Lane (1976 certificated PG) are popular with many paedophiles whilst Sam Penkinpahs film Straw Dogs (1971 certificated X) and Jonathan Kaplans film The Accused (1988 certificated 18) have resonance with certain types of rapists.
In the light of the foregoing the argument that it is only ”… material that has been solely or primarily produced for the purpose of sexual arousal ” that will be affected by the proposed legislation becomes ridiculous.
If the authors justifications for the proposed legislation are deemed to have any weight then their statement that ”It is not the intention to capture medical or scientific material, educational, artistic, mainstream broadcast entertainment, or news footage” must be considered apocryphal particularly when considered with their next paragraph (Paragraph 38).
| Explicit actual scenes or realistic depictions
38. The offence would be limited to explicit actual scenes or realistic depictions of the specified types of material. By "explicit" we intend the offence to cover activity which can be clearly seen and is not hidden, disguised or implied. The intention is also only to cover actual images or realistic depictions of the activities listed (but not, for example, text or cartoons). |
I find this a most interesting stance on the part of the authors of this document and perhaps the most telling in terms of their apparent naïvety.
They are proposing quite Draconian legislation with regard to images produced by one aspect of technology – to whit - the camera, regardless or whether or not those images are produced in a consensual setting. The principle concerns being given as the possibility that the images may encourage individuals to commit offences and the potential for the corruption of minors.
Despite these expressed concerns they appear quite content for stories and drawings to exist. The graphic artwork of Dolcett and Farrel amongst many others depict extreme images of torture, mutilation, cannibalism and death. The concepts of 'willing victim' and sexual gratification feature predominantly. De Sades Justine and 120 Days of Sodom present similar subject matter as do many works of literature.
If pornography of this type has the harmful effect that the authors suggest why have they drawn that line? Their logic appears flawed.
| By realistic depictions we intend to capture those scenes which appear to be real and are convincing, but which may be acted. This follows the precedent of the child pornography legislation and is in part necessary to avoid the need to prove the activity actually took place, as this would be an insuperable hurdle for the prosecution, particularly if the material comes from abroad. In addition, there is no requirement that the activity is real in the OPA or the CG(S)A. |
Yet again the authors demonstrate a startling ability to chop logic to serve their ends. The clumsy attempt to use child pornography legislation as precedent does their cause no credit at all. Once more we return to the established premise that children cannot give their informed consent whereas adults can. As already stated - adults are not children.
“… we intend to capture those scenes which appear to be real and are convincing, but which may be acted.” Despite the authors assertions made in paragraph 37 this will open a door to potential negative impact on mainstream films and other multimedia productions. Realism is central to many such productions and it is quite conceivable that the proposed legislation would have a stifling effect on developments within the film industry.
| Content of material
39. We propose restricting the offence to explicit pornography containing actual scenes or realistic depictions of:
i. intercourse or oral sex with an animal;
ii. sexual interference with a human corpse;
iii. serious violence in a sexual context, and
iv. serious sexual violence.
40. In (c) above, "serious violence" will involve or will appear to involve serious bodily harm in a context or setting which is sexual — for example, images of suffocation or hanging with sexual references in the way the scenes are presented. In (d) above "serious sexual violence" will involve or will appear to involve serious bodily harm where the violence is sexual.
41. By "serious bodily harm" we mean violence in respect of which a prosecution of grievous bodily harm could be brought in England and Wales or in Scotland, assault to severe injury. |
Another broad brush. There are many contact sports that could be considered as violent, boxing being one of the more notable. Whilst accepting that there is no obvious sexual intent there is still the spectacle of two lightly clad contestants attempting to knock each other out. There is even clear medical evidence of harm due to repeated blows to the head and fatalities are a matter of record.
| 42. Therefore the activities in a) and b) and the qualification of "serious bodily harm" in c) and d) bring this material within the scope of the OPA, and in Scotland, the CG(S)A, and ensure that what could be categorised as mainstream pornography (such as that classified R18 by the BBFC) is not included. |
| The Options
43. The options are:
Option one – adding a general offence of possession of "obscene" material to the Obscene Publications Act 1959 and in Scotland, the Civic Government (Scotland) Act 1982;
Option two – adding a possession offence limited to the category of material we have set out but under the umbrella of the OPA and in
Scotland, the CG(S)A;
Option three – a new free standing offence in respect of the category of material we have set out; and
Option four – do nothing.
44. We have considered the strengths and weaknesses of all the options.
45. Option one would be the simplest, retaining the general test of obscenity and amending the 1959 Act and, in Scotland the CG(S)A section 51, to add an offence of possession. However, it would cover a wide range of material and there are difficulties in squaring the purpose of the OPA with a simple possession offence.
46. For example, under the OPA in England and Wales, whether material is obscene depends on whether it would deprave or corrupt "those likely to read, see or hear it". This has been interpreted by the courts to mean that the threshold of obscenity can be lower if the likely audience or recipient is a child. We consider that the test of obscenity for a possession offence would probably have to be defined by reference to whether it would deprave or corrupt the person possessing it. Hence the degree of vulnerability of the person possessing the material might be a factor in determining its criminality and whether they were committing an offence. A young or naïve person might be at more risk of conviction than a more hardened consumer of pornography, which seems a rather perverse consequence. The alternative might be to say that the question is whether the material would deprave or corrupt an adult of ordinary sensibilities, though this raises its own problems, given the varying responses individuals can have. In Scotland, the common law test of whether material is obscene is whether the material is calculated to deprave and corrupt persons open to depraving or corrupting influences.
47. This proposal would significantly extend the scope of the OPA and the CG(S)A but would not achieve the clarity which would help individuals to identify material which was clearly illegal, when making personal decisions about viewing pornography.
48. Option two would offer greater clarity by limiting the material to be covered by the possession offence to the most extreme, such as material which showed (or purported to show) serious sexual violence, bestiality and necrophilia. This could be linked to the OPA and, the CG(S)A, so that it formed a sub-set of material. However, as for option one, there would be a mismatch between the purpose of the OPA and the amendment. In addition, there would be the possibility of confusion for the courts. The scope of the OPA and the CG(S)A might gradually become limited in practice by reference to the list of proscribed material, so that, over a period of time, only material falling within that defined category would be considered obscene by a jury. The flexibility of the test of obscenity which currently allows the Acts to deal with material featuring extreme violence (not necessarily with sexual overtones), drug taking, animal cruelty, scenes of coprophilia, urolagnia, etc. would be lost.
49. Option three, (our preferred option) would preserve the flexibility of the OPA and the CG(S)A to deal with the publication of a range of material and to develop a new, free-standing offence for possession of the limited categories of material described above. (Anyone publishing or distributing this material within the UK would also be prosecutable under the new offence since they would necessarily also possess it.) Defences would be included to protect those whose exposure to the material was accidental and those who had a legitimate reason for possessing it, such as the prosecuting authorities. We would consider the current arrangements in respect of indecent photographs of children in drawing up the defences.
50. Possession will be construed as it is in respect of indecent photographs of children. Viewing material accessed via the Internet on computers or mobile phones will therefore be covered. The offence would not generally be relevant to broadcast material since we already have controls in place to prevent such material from being available on television. Broadcasting such material on television would already be an offence under either the OPA or the CG(S)A. The Department for Culture, Media and Sport also has the power to issue a Proscription Order to deal with any such material broadcast from elsewhere in Europe.
51. As indicated above, the offence would be limited to explicit pornography material, that is material produced solely or primarily for the purpose of sexual arousal or gratification. It is not the intention to impinge on the freedom of the media in respect of news coverage, or of analysis or documentary footage of real events, including atrocities committed in other countries.
52. Option four, doing nothing, would risk sending a message that we considered accessing such material was harmless, or not worthy of attention. But although we recognise that accessing such material does not necessarily cause criminal activity, we consider the moral and public protection case against allowing this kind of material sufficiently strong to make this option unattractive. |
I have no additional response to make in respect of paragraphs 43 to 52. The points have all been covered elsewhere in my response.
| Penalties
53. There would need to be an appropriate maximum penalty for the offence, which should be consistent with the penalties available under the OPA and the CG(S)A. At present the maximum penalty for offences under section 2 of the OPA and section 51 of the CG(S)A is 3 years' imprisonment or an unlimited fine or both. There would clearly be difficulty if the penalty for possession of material was greater than that for distribution of the same material, or if the penalty for possessing images of what may be an offence exceeded the penalty for committing the offence itself. (In England and Wales the offences of bestiality and necrophilia carry maximum sentences of 2 years' imprisonment. In Scotland, these are common law offences so the penalties are not prescribed by statute.) On penalties therefore, we believe the options are:
· to impose a maximum penalty for possession less than the current OPA and the CG(S)A penalty of 3 years, or
· to impose a penalty for possession of three years and increase the penalty for OPA offences and offences under section 51 of the CG(S)A, to maintain the distinction, to 5 years.
(Arguably, the maximum penalty for possession of material in a) and b) could not exceed 2 years, the maximum penalty in England and Wales for bestiality and necrophilia, so there might be a need to differentiate within the new offence for different types of material.)
54. It may also be relevant to note that the maximum penalty for possession of indecent photographs of children is 5 years' imprisonment. In sentencing, various factors are taken into account including the severity of the images. [10] |
All the way through this document the authors have continually endeavoured to inappropriately link concepts of adult images to images of children in what seems to be an attempt to validate their proposals. It continues to have no relevance.
Given my resistance to the proposals it would be inappropriate for me to engage with the debate regarding potential penalties. Having said that I will however make a personal observation based upon my experience of the Criminal Justice System as a Probation Officer . As a reasonable person I find it altogether alarming that the authors of this document move so easily into the notion of a custodial disposal for the projected 'crime' of possession of 'material' as yet unspecified in any detail.
| International position
55. International co-operation is essential for effective action against the production of extreme material. However, there is considerable variation in the approaches and law regarding publication of adult material within the international community. The majority of western countries (including the other G8 countries) have controls based on distribution of material deemed to be obscene by the courts, similar to the position in the UK; others have controls aimed solely at preventing children from seeing potentially corrupting material. We are not aware of any western jurisdiction which prohibits simple possession of extreme material. |
If this is the case why should such legislation be arbitrarily imposed upon UK citizens at this stage? Putting to one side for a moment the lack of evidence to support the authors case against this largely unspecified material there still remains the issue of effective workable strategy. If, as the authors appear to insist, their belief is correct and there is a global problem then a global solution must be sought. Nothing less would be effective.
| 56. Given this wide disparity in the law regarding publication, the chances in the short term of achieving an effective international agreement covering publication of extreme pornographic material are limited. This makes it more important that we act against possession domestically in the interim. |
I disagree. So called 'solutions' generated in haste and with no foundation in provable fact almost invariably prove to have unforeseen and often undesirable side effects. The very fact that the 'wide disparity' exists suggests that the whole pornography debate is not as 'cut and dried' as the authors would wish.
| Human Rights Considerations
57. The proposal which we have set out will impact upon the freedom of individuals to view what they wish in the privacy of their own homes. However, the material which we intend to target with this new offence is at the very extreme end of the spectrum and we believe most people would find it abhorrent. |
Even if ”…most people would find it abhorrent.” that is insufficient grounds to impose legislation that will erode the personal freedom of the individual.
Abhorrent is an interesting and emotive term. Until comparatively recently it was still generally applied to the practice of consensual homosexuality and legislation was passed that effectively criminalized consenting homosexual males. Those convicted under the terms of that legislation were incarcerated for their sexual inclination and many suffered grossly inhuman 'treatments' sanctioned by the State in an attempt to 'cure' them of their 'deviant proclivity'.
This reprehensible attitude went unchallenged until 1957 when a British government study officially entitled the Report of the Committee on Homosexual Offences and Prostitution better known as the Wolfenden Report concluded that outlawing homosexuality impinged on civil liberties and that private morality or immorality should not be "the law's business."
Unsurprisingly there was an outcry and the recommendation to decriminalize homosexuality was widely condemned by many religious and political leaders and by a host of newspapers. The committee's refusal to declare homosexuality a disease provoked the condemnation of psychiatrists.
It took a full further 10 years before a Labour Government made the first move in the process of reforming English Law in this area and a further 3 years before Scottish Law followed suit.
I cite this piece of history not as precedent but to bring a perspective to the current debate and to suggest that there may be parallels between the prejudicial attitudes directed towards homosexuals and the proposals outlined in this consultation document.
The very fact that there appears to be a demand for material that might find itself labelled as extreme pornography suggests that there are many who do not find it abhorrent but in fact are fascinated by it. Legislation is unlikely to diminish that fascination for those individuals – in fact the very act of prohibition may have the reverse effect and generate a new level of interest in those who may hitherto have had only a mild curiosity.
| There will be no restriction on political expression or public interest matters, or on artistic expression. It is not the intention that this offence should impact upon legitimate reporting for news purposes, or information gathering for documentary programmes in the public interest and, in drafting the offence, we will give careful consideration to the best means of ensuring this. In the light of this, we have considered whether there are implications for our obligations under the European Convention on Human Rights and our view is that both our domestic courts and the Strasbourg court will find our proposal compatible with Article 10 (freedom of expression) or Article 8 (private life) if that is raised. |
What is at issue here is not extreme pornography but the matter of protecting freedom of choice and allowing citizens the right of self determination.
Continued in next post |
31 Aug 06, 11:07 PM
The_Dungeoneers
UK, 2 yrs
|
| Footnotes
1. By "serious violence" we mean violence in respect of which a prosecution of grievous bodily harm could be brought in England and Wales or in Scotland, assault to severe injury.
2. For details of BBFC classification criteria go to: www.bbfc.co.uk
3. UK Children Go Online, Sonia Livingstone and Magdalena Bober, April 2005: www.children-go-online.net
4. Office for National Statistics. www.statistics.gov.uk
5. Oxford Internet Survey. www.oii.ox.ac.uk
6. R V Coutts [2005] EWCA Crim 52.
7. Stated by the Court of Appeal in two decisions: R v Waddon (unreported, 6th April 2000) and R v Perrin [2002] EWCA Crim 747.
8. The Internet Watch Foundation – www.iwf.org.uk. The IWF is the body funded mainly by industry to which the public can make complaints about potentially illegal material online (principally indecent photographs of children and obscene and racist material).
9. "Pseudo-photograph" means an image, whether made by computer graphics or otherwise howsoever, which appears to be a photograph. (Criminal Justice and Public Order Act 1994).
10. R V. Oliver, Hartrey and Baldwin (2003) 2 Cr App R28: (2003) Crim LR 127. |
| Annex A
Consultation Questions
Current Legislation (Page 7)
1. Do you think the challenge posed by the Internet in this area requires the law to be strengthened? |
No. Strengthening the law in this way is papering over the cracks. Prohibitive legislation is not the answer in this case. It seems more of a political sop to public opinion which at best will appear to have a short term result in that the visibility of the material may drop. There is no evidence to support the belief that prohibition will cause those who have an interest in the subject matter to lose that interest.
Taking prohibitive legislation concerning drug abuse and firearm acquisition as models the most probable result is likely to be that the whole 'extreme pornography industry' will be driven underground and into the waiting arms of organised crime.
| Evidence of Harm (Page 9)
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? |
Again I must answer No. Not because I believe there is no material that is degrading, violent or aberrant to a degree that I personally would shy away from it in my private life according to my own personal moral code but because this is a loaded question and totally subjective.
The 'absence of conclusive research results' renders this question redundant. The best it can hope for is a response on a reactive emotional level, which is no basis for good decision making.
I am not so arrogant as to presume to impose my personal philosophy upon others unless there is substantiated evidence of clear and present danger that would be alleviated by such an imposition on my part.
| Content of Material (Page 11)
3. Do you agree with the list of material set out (in paragraph 39)? |
No I do not due to the absence of clarity regarding the precise nature of the material (paragraph 5) coupled with the issue of the effective removal of the right of the individual to give consent thereby denying him or her the right of self determination (paragraph 34).
| 4. Do you believe there is any justification for being in possession of such material? |
I do not believe that, in a democracy, adult citizens of good character should be forced to justify their chosen reading, listening or viewing material unless it can be proven beyond shadow of reasonable doubt that to do so will cause actual harm to others.
| Options (Page 12)
5. Which option do you prefer? |
None of the above for the reasons I have given in the body of this document.
| 6. Why do you think this option is best? |
Given my answer to the previous question this question is redundant.
| Penalties (Page 14)
7. Which penalty option do you prefer? |
Not applicable in view of my answers to the previous questions. Having said that I will however make a personal observation based upon my experience of the Criminal Justice System as a Probation Officer. As a reasonable person I find it altogether alarming that the authors of this document move so easily into the notion of a custodial disposal for the projected 'crime' of possession of 'material' as yet unspecified in any detail.
| Annex C
Partial Regulatory Impact Assessment
1. Purpose and intended effect
(I) Objective
The objective of this proposal is to consult with key stakeholders on the creation of a new offence of simple possession of extreme pornographic material which is graphic, sexually explicit, and which contains serious violence or sexualised violence towards women and men. In particular, explicit actual scenes or realistic depictions of the following activities will be covered:
i. intercourse or oral sex with an animal;
ii. sexual interference with a human corpse;
iii. serious violence in a sexual context, and
iv. serious sexual violence.
(II) Background
Illegal pornographic material has always been available and those who sell it risk prosecution under the Obscene Publications Act 1959 (OPA) and in Scotland the Civic Government (Scotland) Act (CG(S)A) 1982. There is now some evidence that the boundaries are being pushed back with more extreme images are now being sought after and provided. In addition, due to the development of new technologies, which are increasingly available to everyone, access to this material has never been available so easily or in such quantity. In pre-Internet days, individuals who wished to view this kind of material would need to actively seek it out, bring it into their home in physical form (e.g. magazines or video-tapes) or have it delivered, risking discovery and embarrassment at every stage. Now they are able to access it from their computers at home (or from their place of work) with relative ease.
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.
(III) Risk Assessment
It is difficult to quantify accurately the financial impact of the new offence although it is felt to be low – due to the extreme nature of the material involved and its limited attraction for most individuals. The material covered will already be illegal to publish or distribute under the OPA and CG(S)A, so the only new area of criminality will be its possession. Prosecutions under the OPA 1959, for the publication of such material (and also some further types of material not covered by the present proposals, except for option A) have fallen over recent years from 131 in 1999 to 39 in 2003, although this may be in part due to the police focus on tackling child pornography and tolerance, expressed through the courts, of material which 10 years ago would have been found to be obscene. |
The financial aspect of such legislation is unlikely to be low. The proposals will place a further financial burden upon the taxpayer - set up costs, administration, enforcement, prosecution, detention, resettlement - will all have to be met from the public purse.
| The main risk addressed is that possession of extreme pornographic material is part of a cycle of supply and demand, encouraging the production of such material which may lead to the harm of the individuals involved in making it, whether or not they consent to participate. |
Equally it may not lead to the harm of the individuals involved in making it. By their own admission contained within the phrase “… explicit actual scenes or realistic depictions …” the authors have set their snare to encompass scenes which may be nothing more than illusion. Without clear evidence all is speculation and may lead to legislation which proves to be unsafe.
| Developing technology also enables the easier distribution of such material, the vast majority of which comes from abroad, thus evading current controls. The new offence will help close the gap in existing controls and tackle demand at source. |
The old adage “Build a better mousetrap and someone will build a better mouse” springs to mind. I refer back to my responses to paragraphs 4 and 9 of the consultation document in which I say:
“There is considerable evidence to suggest that pornography (extreme or otherwise) is unlikely to ever be effectively controlled by prohibitive legislation of the type proposed in this document. The social experiment has already been conducted many times and the results are consistent. Prohibition is not effective. If it were effective then there would be no alcoholic beverages in most of the United States, there would be no problem of drug addiction in the UK, there would be no gun crime in the UK – the list goes on.”
“There is a school of thought that might argued that exposure to large quantities of pornography ultimately has the effect of reducing its attraction to the casually curious or mildly attracted – the development of boredom with the images. For the truly obsessive however that is an unlikely result but then again, as previously stated, for those few obsessives, prohibition has proved to be no impediment in the past and is unlikely to do so in the future.”
| 2. Options
Option one – adding a possession offence to the Obscene Publications Act 1959 and in Scotland the Civic Government (Scotland) Act (CG(S)A) 1982.
Option two – adding a possession offence limited to the category of material we have set out in the Consultation Paper but under the umbrella of the OPA and the CG(S)A.
Option three – a new free standing offence in respect of the category of material we have set out in the Consultation Paper.
Option four – do nothing. |
None of these options are attractive.
| 3. Benefits
For options one to three our proposal to strengthen controls on extreme pornographic material will:
i. help to protect those who participate in the creation of sexual material containing violence, cruelty or degradation, who may be the victims of crime in the making of the material, whether or not they notionally or genuinely consent to taking part; |
This is at best questionable logic. There is an assumption that all of those individuals are firstly at risk and secondly desire protection. Some may be and it is unquestionably the duty of the Criminal Justice System to provide the means for that protection to be extended to them in a manner that will not give them cause to fear being prosecuted themselves. The attitudes thus far demonstrated in this consultation document do not seem to serve that philosophy.
Furthermore, those individuals who choose to actively participate in such activity and give their informed consent may well find themselves subject to the vagaries of perception of those charged with the task of enforcement of the proposed legislation.
Take the hypothetical example of a couple who, as part of their preferred sexual activity, find arousal in mutually consensual adult role play games. Let us also consider that this couple construct a scenario where one of them plays the part of a sexual aggressive and the other takes on the role of 'victim'. They set up a video camera and record their activity for their own gratification. The scene is played out to the satisfaction of both parties. Sometime later their house is burgled and the tape is stolen.
The Police apprehend the burglar and recover the tape. In the course of the proceedings a Police Officer views the tape. Under the terms of the proposed legislation – consent being no defence – the couple are charged with possession of illegal images. They are prosecuted and sentenced, a process which has now become a formality. Their private life is bared in the press. Jobs are lost. Debts mount up. They lose their home. The stress placed upon their relationship leads to a breakdown. One of them retreats into alcoholism and misery, the other takes their own life. Who was protected?
| ii. help to protect society, particularly children, from exposure to such material, to which access is increasingly difficult to control; |
The implication here is firstly that this 'material' is being forced upon all members of society – it is not. It is not difficult to obtain, that much is true however one must make a small amount of effort to locate it. Even with fairly rudimentary software provided by the ISPs it is quite possible to set up filters that will screen out images. It comes back to the old chestnut of 'if you don't like something don't look' and concepts of the 'nanny state'. If one expects the populous to maintain a sense of responsibility then they must be allowed to embrace that responsibility, not have it taken from them.
The issue of protection of children is indeed an important one and should in no way be taken lightly. The primary protection of the young is the direct responsibility of the parents or legal guardian. It is they to whom the duty of care and control first falls. A computer connected to the Internet is not a toy it is a tool in the same way that an electric drill or similar device is a tool. Is it appropriate to permit say, a 13 year old to operate a circular saw without adequate supervision? I would suggest that such an action would be viewed as irresponsible by most. Why then is it acceptable to permit children to have unsupervised access to the Internet?
Domestic legislation of the type proposed in the consultation document will have little impact on the curiosity of the developing mind. Rule breaking and testing boundaries are part and parcel of being young, most noticeably so in that critical emotional turbulence known as adolescence. That which is forbidden holds the greatest glamour for the teenager who also believes themselves to be invulnerable.
| iii. enable the enforcement authorities to take action against individuals who, by procuring such material by whatever means, encourage its further production. |
This is possibly the most accurate statement contained in the consultation document. It acknowledges two things. Firstly, that the proposed legislation would increase Police and other enforcement agency powers. Secondly, that demand influences supply. My only observations in respect of these two point is to suggest that it is not always beneficial to society to imbue enforcement agencies with unmoderated powers and to reiterate my previous comments regarding the ineffectiveness of prohibition when dealing with something that has a popularity.
| |
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