2007-Nov-29 - Letter to my MP; Response; Committee (0)

emark's profile

Posted by emark on Sun 18 May 08, 3:55 PM

[Repost from 2007-Nov-29]

Letter to my MP; Response; Committee

I sent two letters to my MP, and later received a response.

January 2007 (Before the bill was published.)

I wish to express concern over the Government's plans to criminalise possession of what it terms "extreme" or "violent" pornography, as part of the Criminal Justice Bill announced in the Queen's Speech. Details of the Government's proposals, with arguments for and against, are given in the response to the consultation [ http://www.homeoffice.gov.uk/documents/cons-extr... ]. Much of the discussion by the Government suggests that this is about protecting non-consenting victims forced into pornography, or preventing violence against women. I have no problem with a law designed to tackle such cases, but this law will cover a far greater range of material:
* Images involving consenting adults.
* Images which are faked or are of simulated acts.
* Photos that, for example, partners take in their bedroom of their private sex life.
* Images that were never published (and never intended for publication).
* The current wording is so vague that it may include images that are currently legal to publish, and images of acts even if the act itself is legal, including activities practiced by many consenting adults.
The proposal appears to be driven by the claim that viewing such images turns people into violent criminals, and has come from a campaign resulting from the tragic death of Jane Longhurst, who was killed by Graham Coutts. Coutts had previously accessed violent pornography, and is currently awaiting retrial. I do not believe that a single example constitutes evidence of correlation let alone causation. The issue of protecting non-consenting victims forced into the production of pornography is a separate issue to the idea that looking at certain images is itself harmful and must be criminalised, and I feel it is dangerous to conflate these two issues when introducing new law.
I fear that MPs may vote for this law under the assumption that it is about protecting victims forced into pornography, but that this would result in otherwise law-abiding people being criminalised and placed on the Sex Offender register as a result of their sexual preferences and private sex lives, even though no harm is caused, no crime has been committed in creating the images, and they are clearly no danger to society.
The original Government consultation [ http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/30_08... ] gave as reasons:
* "A desire to protect society, particularly children, from exposure to such material"; yet this law covers possession and private images, not publication or distribution.
* Many arguments seemed to be from a purely moral point of view that such images should not exist, with no argument or evidence supplied as to what harm they cause: "We believe most people would find this material abhorrent.", "We believe the material which is under consideration would be abhorrent to most people and has no place in our society.", "The underlying premise of this document is that this material should have no place in our society.", "The intention is ... to send a clear message that it has no place in our society.", "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."
* Many comparisons were made to child pornography - yet child pornography is illegal because of the harm done to children in producing it, and not because of claims about what effect an image has on the viewer.
Much publicity has been given to the petition with 50,000 signatures. In fact, the petition begins "We the undersigned object to the presence of extreme internet sites promoting violence against women in the name of sexual gratification." - who wouldn't sign that? Yet there is no requirement in this law for the sites or images to be "promoting violence"; the implication is that any such image promotes violence against women - even if the image is never published.
The majority of responses to the Government consultation were against any changes in the law whatsoever (241 responses were against any change in the law, compared with 143 in favour, and factoring out the organisations gives 223 individuals against and 90 in favour).
* The numbers for those in favour of a change in the law included those who explicitly stated they were against including consensual acts in the law.
* Having read through some of the consultation responses, I also see many of those in favour only talking about images of actual non-consensual acts.
It is not true that such material is necessarily already illegal to publish. The Obscene Publications Act requires that material is proven to "deprave and corrupt" people exposed to it, whilst the proposed law only needs to show that the images intended to arouse sexually, a lower standard of proof. Even if the material is restricted to that currently illegal under the Obscene Publications Act, this still poses problems:
* It is reasonable perhaps that someone seeking to publish should be aware of what would be illegal, and to have the work classified by the British Board of Film Classification. It is far less reasonable to expect an individual to be aware of what images are and aren't legal, when browsing the Internet, importing an unclassified film, or taking a private photo with his or her partner, nor is it reasonable or practical to have to subject every such image for classification.
* The intent of censoring material under the OPA is out of fear of corrupting others. Who is corrupted if someone possesses an image? Who is the victim? The implication is that we need protecting from ourselves.
* What counts as "obscene" may change over time - what society once considers to obscene may later not be. For example, James Joyce's Ulysses was banned in the UK until the 1930s, and Lady Chatterley's Lover was banned until after the obscenity laws were updated in 1959. If publication is banned, it means that material cannot be published, but a law against possession means that the material must be destroyed. If obscenity laws were extended to cover possession, then any works which the current or a future Government might decide is obscene may be irrevocably lost, even if the law is later revoked. Whilst criminalising possession of some materials can justified if the arguments are strong enough, far greater consideration should be given before doing so.
Lastly there is the issue of international cooperation, which would be essential to tackle the real problem of non-consenting victims forced into pornography. The Government consultation itself admitted "We are not aware of any western jurisdiction which prohibits simple possession of extreme material". The United States Supreme Court found in 2002 that the law against faked depictions of even child pornography was a violation of the First Amendment (Ashcroft v. Free Speech Coalition). It is therefore hard to see how laws against depictions of violent pornography would not also be unconstitutional in the US, and hence greatly impede any attempts at international cooperation. It is also likely that this law would be incompatible with an individual's right to respect for his or her private life and right to freedom of expression under the European Convention on Human Rights [ http://www.backlash-uk.org.uk/qcopinion.html ].
As a result, I believe that this proposed law would harm any attempt to gain international cooperation in combating cases where harm is caused to people forced into the production of pornography. I would be interested in hearing your views on this matter.

October 2007 (After the bill was published.)

I wrote previously with regards to the Government's plans to criminalise possession of "Extreme Pornography". These are now included in the Criminal Justice and Immigration Bill (Part 6). I believe these clauses should be removed as they serve to criminalise otherwise law-abiding adults for possessing images of acts between consenting adults, and fictional images, even those that legally appear in films.
The law would criminalise images showing or appearing to show threats to a person's life or acts likely to result in "serious injury", where the images appear to be produced for the purpose of sexual arousal. It covers fictional images as well as images of real acts.
The bill is broader than previously announced:
* The threshold for injury no longer requires "serious, disabling injury". Examples listed in the Explanatory Note suggest this could criminalise images of a wide range of consensual adult sado-masochistic acts.
* Classified works are not covered, but an image extracted from a classified work, if it appears it was extracted for sexual arousal, could fall under the law. Copies of the same image could both be legal and illegal, depending on whether they were extracted for the purpose of sexual arousal.
I have no objection to laws concerning images involving non-consenting participants, but the law ignores the issue of consent. The Government has not provided evidence of "extreme porn" involving non-consenting participants or any estimate of its availability. Such images are already illegal to produce (since the act itself would constitute a crime, whether or not a photograph is taken), and there is an international consensus on such activity being illegal.
The Government states that the law constitutes an "interference" with the European Convention on Human Rights under Articles 8 and 10, but believes this is justified for the reasons given [1]:
1. For images of actual acts, that the acts are illegal even if the participants consent (Brown [1994] 1 AC 212). Whilst this is correct in some cases, I am worried that the Government is basing new law on a controversial ruling, and using it to target more laws at consenting sado-masochists. Is this really the Government's intent, to lock people up for possessing images of consensual behaviour in the bedroom?
2. In the case of staged acts, to protect the individuals involved from "participating in degrading activities". I agree in the case where people have not consented, but this justification ignores the issue of consent, ignoring the vast amount of staged images produced using consenting actors, and assumes that they all need "protecting". It will remain entirely legal for someone to have sex on camera for pornography, even though the same concerns of the participants not having consented still apply, yet this law would criminalise images of staged acts where no sex takes place. Who decides what is "degrading"?
3. That this will break the "demand and supply cycle" of material which "may be harmful" to viewers. The Government has produced no evidence of harm. All sorts of things "may be harmful", such as all pornography, violent films or video games. It is not clear how criminalisation in the UK will affect supply in other countries when, unlike child pornography, there is no international consensus on adult material. It doesn't explain why an image in a classified work is not harmful, but the same image extracted for the purpose of sexual arousal would be harmful. In the case of consenting sado-masochists, how are they harmed by viewing private images of their own acts?
4. "Banning their possession can be justified as sending a signal that such behaviour is not considered acceptable." I am worried that the Government wants to decide what behaviour is acceptable in people's private consensual sex lives, and use prison and the Sex Offender register to enforce that message.
5. That children or "vulnerable adults" may come across this material. Whilst children coming across adult material is a concern, is this justification for criminalising possession? What about the availability of other adult material, such as all pornography, discussion of sex and 18 rated films? It is not clear how criminalisation in the UK will affect the availability online, when the majority of it is hosted overseas, where it is legal to do so. When weighing up the right to freedom of expression with potential harm to children, we must also take into account that children will one day become adults, and therefore they will also be harmed if we remove their rights to freedom of expression. (Recently in the US, where the Child Online Protection Act was struck down [2], the judge stated "Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection".)
None of these justifications cover the issue of extracting images from classified works, nor do they explain why an image is illegal if produced for the purpose of sexual arousal, but legal otherwise. The only justification that comes close is if the Government believes that the unacceptable behaviour (point 4) is being aroused by images showing such acts.
I believe the justifications are insufficient, and if accepted they make Articles 8 and 10 of the European Convention on Human Rights ineffective, since the Government can always appeal to "it may be harmful", "it's unacceptable" or "a child might see it".
I urge you to not support the Criminal Justice and Immigration Bill unless references to "extreme" pornography are removed.
[1] Explanatory Note, paragraphs 802-806 ( http://www.publications.parliament.uk/pa/cm20060... ).
[2] http://technology.timesonline.co.uk/tol/news/tec...

I had a moment of panic when I received a scary official looking letter headed "House of Commons". Imagine my relief when I found it was about violent pornography! I think I agree with everything he says. The most important bits:

"The essence of the debate ... is that some people suggest that sexually explicit and violent material contributes, either directly or indirectly, to serious harm to other people, including physical attacks. If that were shown to be true, we [the Liberal Democrats] would take it very seriously indeed.
"Our view, however, is that freedom of expression should only be restricted where it is necessary to prevent harm. We believe that it is for those who argue for censorship to establish that the material to which they object will cause harm to others and that the restrictions are proportionate to the harm that would be caused. We do not accept that a "precautionary principle" (by which restrictions are thought to be justified unless and until it is established that the material causes no harm) is justified in this area.
"Restrictions must also work in reality, not just as symbols. If the reality is that a ban would merely drive a market underground, where it would be less effectively regulated, that for us is a reason against a ban.
...
"...we see many aspects of the government's proposals as problematic. The most important example is the inclusion of simulated material, a proposal that threatens to criminalise people for participating in consensual and safe acts.
...
"There is also an issue of consistency. The Government's proposals criminalise viewers of violent sexual pornography while allowing viewing of even more violent material that happens to lack a sexual element.
"We will consider these matters carefully during the progress of the bill in committee and beyond."

Also I read through some committee transcripts (http://services.parliament.uk/bills/2007-08/crim... - more exciting than it sounds, really); there are three MPs arguing against the law (http://www.publications.parliament.uk/pa/cm20070...) (one from each party), putting across good arguments. Two amendments were proposed (http://www.publications.parliament.uk/pa/cm20070...) which would exempt consensual material. Unfortunately the Ministry of Justice puppet refuses to budge, and the amendments were withdrawn, apparentely on the basis that the Minister will "look at the clause again".

Edited Mon 21 Jul 08, 11:01 PM by emark


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