A step back on the porn laws: why we may not be able to win (12)

The problem is that since, under UK law, it is not possible to consent to being 'harmed' for the purposes of masochism, any injury caused by the making of porn has the same status as injury caused by a random assault on a stranger. (A judge might differentiate, but the case-law, as it stands, doesn't.) And 'serious' is likely to end up being defined as anything that would constitute an offence if caused by a random assault on a stranger.

So it follows that to watch a video of a BDSM act is legally equivalent to watching a happy-slapping video, or CCTV footage of someone shoplifting.

And as much as it seems rather odd to target the person watching the video rather than the person committing the 'crime', it is unlikely that legislators would specifically protect the right of people to watch it. To do so would undermine the existing legal position that this material is per se illegal.

I'm not a lawyer and I would love to be contradicted by someone who is, but as I understand it, as long as all BDSM activity is theoretically outside the law, this is going to be a difficult argument to win.

The ins and outs of democracy are complex and often unpredictable...

This may not go forward. If it does, we may eventually have to accept we did the best we could.

But at this stage there are still many reasons to believe we can still ahve an effect -- even if its just to help iron out the more dangerous anomolies of a vaguely worded law.

w've already made a number of victories.

Now is the time to capitalise on them and plan the next action.

"And she does have the occasional "Tigger" moment - also to be commended, I feel. " robert1961
http://www.revisef65.org www.backlash-uk.org.uk www.spannertrust.org www.unfettered.co.uk

Edited 5 Sep 06, 11:47 AM by demolitionred

It is not illegal to view the images from Abu Ghraib or beheading videos, both sickening and violent images of real crime.

Many of the more serious images are fabrications, as they are in Resevoir Dogs or Crimewatch.

Therefore, I do not believe that the argument that the images *may* depict a crime is a powerful one. They still have to justify why depictions of these crimes are illegal to view, but others not.

Further, while the guidance in R v Brown as to what kind of injuries are beyond the realm of consent says what it says, in R v Wilson the case was thrown out because the Court did not consider it the business of the state to intefere in private matters within a marriage. The acts carried out in that case were therefore not crimes. If the proposed laws are to be justified on the basis that the images show crimes, the viewer would have to know enough about the circumstances of the picture to double guess how a court and jury faced with a prosecution of that crime would respond.

That is clearly impossible and that is why it is not the basis of the proposal. Instead, a supposedly objective test with reference to what you see, rather than what is actually happening is proposed.

It's an interesting and important legal concept, the key part being 'under UK law'. As a general concept using UK specific laws to cover material made elsewhere seems an unworkable practice.

Should it be a crime to own an iPod made under sweat shop style working practices in China that would clearly be illegal in the UK?

In the short term we have to deal with the immediate situation and get clarifications and ammendments to the proposals. Long term not only does the law need to change regarding BDSM, but also, in my opinion, how those changes are approached.

Maudie, I think this is the crucial issue here. It is not currently illegal to view ANY image, apart from indecent images of children.

If this law goes through there are 3 consequences:

1. We lose something even more important than free speech and that is the right to use our eyes and to look for ourselves.

2. We establish a very new principal that the viewer has a legal responsibility to the subject viewed. "By viewing that image of a woman being raped, you are personally contributin g to her distress for which you must assume legal responsibility. As you said, we do not extend this principle to other categories of image. Why not? Simply because it is absurd. People looking at the Abu Graib images will have all sorts of reasons for doing so, even within their own minds. And why is this restricted to sexuality? This is an interesting paper on the "Ethics of the Virtual" http://www.xuk.biz/UKLR/Landslide/library/13a/os...

3. We concede the argument that extreme sexual fantasy is dangerous and the province of disturbed individuals with a high preopensity to harm others. This is the belief of the police forces, some (though not all) psychologists and other advocacy groups. It stems from ignorance about the true 'normality' of such thoughts in the community and the effects of viewing the world from the very skewed perspective of real,serious sexual crime, violent offenders and personal experience. e.g."Jim Gamble, the chief executive of the new Child Exploitation and Online Protection Centre, said “The proposed new offence starts to answer that need in respect of how the internet can be used to supplement this area of criminality". To Gamble extreme porn (in fact all porn) is the province of "sick criminals", not "normal people" who have an active sexual imagination or curiosity.

I don't believe this law will affect the BDSM community all that much, sites like this will do a good job of "putting people in the know". The real casualties will be the naive porn surfers, the dads, sons and their families who probably outnumber the BDSM community by hundreds to 1.

These are the people who we need to reach, to understand that many, many people will have viewed extreme porn at some time, that they are not sick or disturbed but will have their lives and their families ruined as a result.

And to no end whatsoever..

lots of people have looked at extreme porn (one of the most popular ones recenetly featured a horse) as a joke...

not much of a joke if you're going to get arrested for it.

"And she does have the occasional "Tigger" moment - also to be commended, I feel. " robert1961
http://www.revisef65.org www.backlash-uk.org.uk www.spannertrust.org www.unfettered.co.uk

You don't even have to possess the images. Even if deleted, you may find yourself on a 'making' charge on the basis of old deleted files or partial files.

The police will also attempt prosecution on the basis of the unique "HashIDs" of P2P distributed files even if the file itself no longer exists or will even serve "attempting to make" charges on the basis of Google searches alone.

We are handing enormous power to the police and CPS. I fear they do not use this responsibly when they possess the mindset of 'moral crusade'.

I've lost count of the amount of times someone has playfully held a mobile phone in front of me bearing a random image (that would be covered by the new legislation if it goes ahead in it's current form) saying 'look at that, it's disgusting!' Which has included a broad range of subject matter that the phone owner thinks is amusing or just plain shocking.

(If I remember rightly...) The Consultation document states that certain images could bypass new laws if they were officially used for news or documantary purposes. Which means that if images are being used to purposefully manipulate our opinions in a government approved way then they would be okay.

The initial legislation would be just the first step in reducing our freedom to have opinions and make our own minds up about the actual reality of electronically published images. It's only a matter of time before broadened amendments would be added to any new law without the need for public input.

The Windows Operating System has a terrible habit of keeping a really usefull log of most web activity it processes. That log cannot be altered or deleted by the average user. It's quite handy in terms of evidence though.

The large print giveth and the small print taketh away - Tom Waits

This is a particularly worrisome aspect of it all. Don't ISPs have to keep records already?

The Editors Blog section at the BBC has been updated to 160+ posts, including this:

"I am a priest. When this legislation was proposed one of my congregation told me that she finds herself erotically excited by fantasies of being murdered, and has downloaded film clips which excite her. She has no desire for the reality portrayed but neither she nor I have any idea whether this proposed Act would criminalize her behaviour or not. This worries both of us, particularly since after many years as a priest I would be extremely surprised if she were unique. She is by the way a grandmother and a prominent public figure whose life of service could be destroyed very easily." http://www.bbc.co.uk/blogs/theeditors/2006/08/al...

This is exactly the kind of person who will suffer most from this legislation - "Pervert Grannies".

Edited 5 Sep 06, 3:08 PM by JTCimplexity