Extreme Porn Law - Response From the MoJ (0)

emark's profile

Posted by emark on Mon 7 Apr 08, 1:59 AM

One of my letters was to Lord Hunt of Kings Heath. My letter was forwarded to the "Criminal Law Policy Unit", and replied to someone from there. It's quite long, and printed, so I will just reproduce some notable quotes:

"In all cases the person or animal depicted in the image must be such that a reasonable person looking at the image would think they were real. This is a high threshold." (Yet my criticisms were of consensual and staged activity, not of say, scenes featuring cartoon or CGI humans or animals.)

It then states that the proposals "are not aimed at any particular part of society" - well, apart from people who practice and view such material, not at all. To me it sounds like saying that a law criminalisation possession of images depicting anal sex "are not aimed at any particular part of society". Of course not (one Government report [1] discusses what groups will be affected, but limits itself to "It is not apparent to us that the proposed changes in the law will have any adverse effect on black and minority ethnic (BME) groups. As part of the consultation, numerous organisations, including BME groups were asked for their views, but none identified any adverse affect on their communities.").

The response continues "and are not intended to target the legal material (i.e. that which does not breach the Obscene Publications Act 1959)" - I raised the point about the bill not including the "deprave and corrupt" test that the OPA has, but this was not addressed in the reply. I also raised the point that the law has a clause exempting classified works, but criminalising extracts from classified works, but this was also not addressed.

"The proposals are not intended to limit private sexual activity but are concerned with combating the circulation of extreme pornography images. Once an image is created it has an endless potential for circulation, particularly via the internet, and for having an effect on others not involved in its creation" - this doesn't directly address a point I made that the bill _does_ catch private images, but I think the implication is that once we take a photo or film, we need to be criminalised because we might circulate it. Also note that the Internet is now only one possibility - no doubt they would think showing a partner would have an "effect" on them, if that partner was not involved.

"Consent by itself does not make violent sexual acts legal" - presumably meaning that the Government is willing to use the precedent of Spanner to expand the law, but this also ignores that images of legal acts will be criminalised (e.g., staged scenes, or something like knifeplay where someone appears to be threatened, but is not harmed and it is all roleplay). So this response is confusing to me, but the point seems to be that the Government doesn't care about consent, when the resultant image is "violent" (also note the implication that all such images are violent - even ones depicted as openly consensual, which I feel is misleading if not outright offensive to me).

It then goes onto say how it is difficult to tell from an image whether true consent has been given (ignoring that there are other ways one could judge consent; ignoring that this argument applies to all porn; and if the burden of proving consent was of the defendant it would be an improvement, though the bill does not allow even this).

"The focus on this offence is on the images themselves and the impact they may have on those who view them." - this is the crux of the Government's argument. In my letter I mentioned an amendment that had been proposed (now withdrawn) that would allow a defence where the person reasonably believed the participants were consented. The idea being that the Government's argument seems to be that viewing images can affect the viewer whether or not the partcipants consented, because the viewer may believe the acts to be non-consensual[2]. My impression now is that even those cases need to be criminalised, in case the images are circulated elsewhere.

And "the question of consent is not a consideration which should be woven into the offence".

The response then addresses my criticism of the Rapid Evidence Assessment. This was a survey by Catherine Itzin, Ann Taket and Liz Kelly of all the studies on porn that showed an affect that could be favourable to the Government's stance. Note that Liz Kelly endorsed the Lilith Project's response to the Government's consultation, which was heavily in favour of the proposals, and even argued that all pornographic depictions of naked women be a criminal offence to possess.

Some of the "extreme" material covered in the REA included "whipping, spanking or beating". The effects do not seem distinct from those of mainstream porn along the lines of "shortly after viewing porn, viewers were more likely to accept rape myths". The section asking whether viewing such material contributes to sexual or violent offending focused only on studies involving men who were sex offenders, with the exception of one study involving 11 men who were in a treatment programme for "problematic pornography use". In my letter, referred to a statement from Martin Barker and Clarissa Smith, signed by over 39 over academics (see point 7).

The response even acknowledged "The REA concludes that a simple causal link between exposure to extreme pornography and violence has yet to be established" - although it then says "but supports the existence of some harmful effects upon those who access this material." It also says "It is recognised that different types of pornographic material can have different effects on different people" - not in this law, it isn't!

[1] "Criminal Justice and Immigration Bill Regulatory Impact Assessments", http://www.justice.gov.uk/docs/regulatory-impact... and http://www.justice.gov.uk/docs/regulatory-impact... .

[2] A Ministry of Justice letter states "a convincing, consensual depiction of an activity can have the same impact on the viewer as an image of an activity actually taking place. Moreover, for the viewer, the question of consent is largely irrelevant, since they can have no reliable means of verification, unless they happen to know (or themselves to be one of) the participants", http://www.parliament.uk/documents/upload/Bills1...

Edited Wed 21 May 08, 2:56 AM by emark


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