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IC : Weblogs : emark : "2005-Dec-01 My Consultation Response"
2005-Dec-01 My Consultation Response (0)
emark's profile
Posted by emark on Sat 17 May 08, 6:18 PM
[Repost from 2005-Dec-01]
My (Draft) Consultation Response
[...] indicates comments which won't be sent.
1: Do you think the challenge posed by the Internet in this area requires the law to be strengthened?
No. Any challenges which may be posed by the Internet are independent of whether such pornography causes harm.
Even in cases where it can be agreed that the production of the material causes harm (eg, images where people are being raped), the actual abuse is already illegal, and I am not convinced of any justification for criminalising possession. Demand may arguably be created by people paying for the material, but not by people downloading for free.
If anything, the Internet poses challenges where we should be more wary of extending laws. There are many cases where a person may accidently come into possession of such material, for example:
- Being emailed it (spam, or by someone with malicious intent).
- Visiting a website where they weren't aware of the content until they visited.
- Programs such as newsreaders or peer-to-peer filesharing programs which allow batch-downloading of large numbers of files rather than just the particular ones a user wants. In addition, such programs do not usually allow the user to see a thumbnail of what will be downloaded, and text filenames of the material may be misleading or outright incorrect.
- A virus which downloads automatically.
The person may thus not even realise he has such material, or if they do they are unable to properly eradicate it from their computer (since deleting does not properly erase material from a hard drive).
Although it is claimed that such cases would not be covered by this legislation, it is not clear how such cases would be distinguished, or where the burden of proof would lie.
Furthermore, in the real world there is a much clearer line between "publishing" material (eg, selling it in a shop, or broadcasting it), and a person who hands material directly to a friend (possibly his partner). The direct analogy on the Internet - assuming it was deemed necessary to ban such material - would be websites, particularly those selling such material, but not other methods such as transferring via email between two people.
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?
No. Being degrading, violent or aberrant are not reasons for making such materal illegal. Furthermore, material that some consider to be degrading, violent or aberrant may not be viewed in the same way by others. Material should not be banned simply because some find it offensive, especially when the act of imprisoning someone may harm an individual far more than any harm which might come to them from viewing the material. I do not believe that the Government should decide what adults can view or take pictures of privately in their own homes.
3: Do you agree with the list of material set out (in paragraph 39)?
I disagree with merely "realistic depictions" being considered an offence in any case (not to mention that what counts as a realistic depiction is not well defined).
I disagree with serious violence in cases where those taking part have consented. In addition, it is not clear at all how to tell whether violence is in a "sexual context" or not, especially if "realistic depictions" are also included. How is a graphic film depicting sexual violence distinguished from this material (if at all)? What about material which depicts violence which may be either intended by the producer to sexually arouse, or an individual may find sexually arousing, but where there is no sexual context actually inherently in the material?
4: Do you believe there is any justification for being in possession of such material?
Yes. For example:
- Adults who engage consensually in acts which may depict the described activities (eg, sexual roleplaying), who photograph or video these acts. Even if they have no intention of making these publically available, or even distributing at all, and even though no harm is caused to anyone, they risk being guilty of a crime.
- Adults who consensually take part in BDSM activities and again photograph or video these acts with no intent of distribution, may risk falling under this new legislation.
--- Whilst I realise that causing bodily harm may be considered illegal even if the participants consent (as a result of "Operation Spanner" - R v Brown), and that that is not up for debate in this consulation, I feel it is important to bear in mind when considering the intent of this new legislation. Whatever one's views on the ethics of acts between consenting adults in private, if the intent is to target material which is causing actual harm to non-consenting victims, and it is argued that great measures are required because such acts cause immense harm (eg, the idea that possession should be banned even if there is only a small chance it affects demand, or creates harm), then it is misleading to use such arguments to bring in legislation which will affect a far greater range of acts, where it is not clear whether such acts cause harm at all, let alone to the same degree.
--- Since mere "depictions" are covered, a far greater amount of consenting acts may be covered, than those which are currently considered illegal to perform.
--- Again, whatever one's views on the ethics of acts between consenting adults, many of the proposed arguments for criminalising possession are not relevant to this case (eg, it can not be said to create demand for such material, if the material has not been distributed beyond the participants).
[The issue of BDSM is tricky, given that consenting acts covered by this new legislation would currently be illegal anyway. I still think some mention needs to be given, rather than ignoring it completely. I've used BDSM whilst sadism/masochism would be more accurate due to a perception that the latter terms seem to have a more negative connotation amongst the general public. Plus, with depictions being included, BDSM but non-masochistic roleplaying type stuff could be covered.]
- Adults who enjoy material of a pornographic nature involving merely depictions of violence, or depictions of consenting masochistic acts. No harm has been caused in the production of such material, and there is no evidence that an adult watching this causes harm to others, or even himself. Evidence based on examining those who actually commit violent crimes ignores the fact that a large number of people enjoy such material do not go on to commit any crime. Justification for punishing such people would be merely that they might go on and commit a crime which causes harm to others, not that they have caused harm to others.
To explain further the issue of those who consensually practise acts of BDSM in private: an analogy might be if new legislation was proposed to combat terrorism, which for example covered glorifying such acts, displaying such acts (even fictional acts) in a positive light, or indeed the recent changes about holding terrorist suspects without charge. If it turned out that the legislation actually covered far lesser crimes than terrorism, then even though it would not be disputed whether those lesser crimes should be legal or not, it would be right to oppose introducing that new legislation unless it was specifically restricted to terrorism. Similarly, the extreme measure of introducing an offence of possession is something which, if taken at all, I believe should be restricted to acts showing actual harm between non-consenting participants, and certainly not used to criminalise images of acts or even depictions of between consenting adults, especially when the images are not distributed.
It should also be noted that many people enjoy this material from a submissive or masochistic point of view - that is, they identify with the depicted "victim" in the scene, and not the depicted "abuser". Whatever one's views on what this means for such people, it is not clear at all how one could claim that these people would go onto commit crimes as a result.
[I'm wary that this sounds horribly like "Blame the tops". But I think it's a point which needs to be noted - people just assume that anyone viewing such material are sadists who get off on hurting people. That's certainly not the case for me, and indeed it's possible that there are more submissives viewing such material if ratios in BDSM circles are anything to go by. Oh, if only there were more sadists...]
5: Which option do you prefer?
Option Four. Or rather, whilst I may be willing to listen to some new legislation, none of the three described are acceptable.
[Talk about a biased choice of options!]
6: Why do you think this option is best?
Option one is not acceptable: I oppose criminalisation of possession for reasons stated above, and as stated this would cover a wide range of material.
Options two and three are not acceptable: For reasons I give above.
7: Which penalty do you prefer?
I do not believe any penalty is justified. A comparison to possession of photos which show actual acts of abuse (not depictions) against children (not consenting adults) is not relevant to this proposed legislation.
[How nice to assume we agree people should be punished] Edited Wed 16 Jul 08, 10:01 PM by emark
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