8 Feb 09, 10:48 PM
emark
UK, 9 yrs |
DaddysTouch wrote:
"emark" wrote:
But many S&M acts are unfortunately beyond that allowed under Spanner, and I find it very worrying that the CPS is not committing themselves at anything beyond saying that "trivial and trifling" marks will be legal. |
Remember that things can be illegal under Spanner but not under CJIA. You can have pictures of someone breaking a person's arm or slashing their buttocks to ribbons during sex and that's legal because it's not on the genitals, anus or breasts. |
Indeed, though for acts done to the BAG area, this is still not reassuring. For acts to these areas that are more than "trivial or transient", this guidance tells us nothing about the legality of such images.
| Bruises and grazes picks up MOST of what we (as in, BDSM folk) do to those body parts. There were people posting links to websites that they were sure would now be illegal, when all it was was some bruised/grazes breasts. |
True. I don't think I disagree with you, I'm just looking at it from a different angle 
It's reassuring to know that "trivial or transient" is still legal.
| Needles and cutting of those body parts are pretty much know are gone bye bye, so apart from that, what's left that might be illegal? |
Indeed. I think many people (myself included) were still questioning whether needles and cutting would be illegal. I do agree though they would be at risk, and the fact that this guidance does nothing to reassure us on those grounds (and indeed, only provides an assurance for the mildest of acts) is what worries me.
I think broadly there are three categories:
1. Things almost certain to be criminalised (or at least, it's the Government's intent that they are): breath-play, knife-play, pretending to play dead.
2. Things very likely to remain legal: spanking, beatings, fluffy handcuffs, anal sex, straight sex, snogging - some people had expressed fears about some of these, so it's good to have reassurance that they aren't.
3. The uncertain gulf between obviously serious injuries (e.g., risking death, requiring hospital treatment), and "trivial or transient". This all comes down to the definition of (likely to cause) "serious" injury to the BAG area, and no Government guidance has given any clarity on this.
| Indeed, for it not to be 'transient' it would probably have to do actual, permanent damage. |
"Trifling" surely does not simply mean "non-permanent", but also that it is brief? Although in practice, yes, it's the things like cutting, breath-play, knife-play, play piercings and so on that I am concerned about. Even if severe bruising remains legal, that's still a significant chunk of consensual BDSM imagery criminalised 
Sign the statement against criminalisation of possession "extreme" images. See http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... for more details.
Edited 8 Feb 09, 10:53 PM by emark
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8 Feb 09, 10:54 PM
Sorceror
UK(HU), 9 yrs
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Attitude_Adjuster wrote:
RedSwitch1982 wrote:
So if the CPS advice, which I'm genuinely shocked to say is reasonable - at least at first glance, is different from the law then how does this work?
Does the advice only apply in the courtroom? Can you still be charged with extreme porn possession under the Criminal Justice Bill, have your name plastered all over the media, only for the court to find you innocent under the CPS guidelines?
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No. The CPS guidelines (presumably) are for use by the CPS in deciding which cases should be brought to the courtroom. Therefore, I would think, that they are (implicitly) more lenient than the law itself because the CPS doesn't like taking things to court and losing - because that is unrewarding and costs money.
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Potentially could a defendant get judicial review of a decision to prosecute by the CPS in breach of its own guidelines ? - I think not. However a prosecution that was in breach of the CPS' own guidelines for prosecution may be successfully stayed as an abuse of process. Of course the main issue is that whoever prosecutes these cases may actually read the guidelines and the CPS are far less likely to prosecute cases that don't cross the guideline threshold.
S...x.
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8 Feb 09, 10:58 PM
DaddysTouch
UK(RG), 3 yrs
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ClassAct2005 wrote:
How many people are into images of cuts to the anus, genitalia and breasts I wonder.
Does the guidance say anything about pictures with a knife to the throat and no cutting, just a potential threat to life which everyone knows isn't a threat anyway as it's just a staged porn image?
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That is a grey area if you ask me. I would think context would be everything. The sort of image like that you might see on IC, with a blade calmly held to the throat, would probably get away with it. A video of a woman in a Nazi outfit kicking a man in the balls, pressing a dagger into his neck and screaming "I'll slit your fucking throat you motherfucker if you don't shut up!" would probably not. Love, love is a verb
Love is a doing word
Fearless on my breath
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8 Feb 09, 10:59 PM
emark
UK, 9 yrs |
ClassAct2005 wrote:
Does the guidance say anything about pictures with a knife to the throat and no cutting, just a potential threat to life |
The example given by the Government is "sexual assault involving a threat with a weapon" - suggesting their intent is that this is included as a threat in itself (I mean, if you held a knife against someone, you don't say their life was potentially threatened, you say they were threatened).
| which everyone knows isn't a threat anyway as it's just a staged porn image? |
Doesn't matter if it's staged and consensual - as long as it looks "realistic".Sign the statement against criminalisation of possession "extreme" images. See http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... for more details.
Edited 8 Feb 09, 11:00 PM by emark
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9 Feb 09, 5:05 PM
Attitude_Adjuster
UK(N), 6 yrs
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Sorceror wrote:
Attitude_Adjuster wrote:
RedSwitch1982 wrote:
So if the CPS advice, which I'm genuinely shocked to say is reasonable - at least at first glance, is different from the law then how does this work?
Does the advice only apply in the courtroom? Can you still be charged with extreme porn possession under the Criminal Justice Bill, have your name plastered all over the media, only for the court to find you innocent under the CPS guidelines?
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No. The CPS guidelines (presumably) are for use by the CPS in deciding which cases should be brought to the courtroom. Therefore, I would think, that they are (implicitly) more lenient than the law itself because the CPS doesn't like taking things to court and losing - because that is unrewarding and costs money.
|
Potentially could a defendant get judicial review of a decision to prosecute by the CPS in breach of its own guidelines ? - I think not. However a prosecution that was in breach of the CPS' own guidelines for prosecution may be successfully stayed as an abuse of process.
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I doubt it One may conjecture that if the CPS/police say explicitly that something wouldn't be prosecuted, and then do - perhaps it could be entrapment?? But in general they are 'guidelines' not 'rules' after all...
And all men kill the thing they love, By all let this be heard,
Some do it with a bitter look, Some with a flattering word,
The coward does it with a kiss, The brave man with a sword!
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9 Feb 09, 5:28 PM
mq1965
UK(DA), 8 yrs
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Attitude_Adjuster wrote:
Sorceror wrote:
Attitude_Adjuster wrote:
RedSwitch1982 wrote:
So if the CPS advice, which I'm genuinely shocked to say is reasonable - at least at first glance, is different from the law then how does this work?
Does the advice only apply in the courtroom? Can you still be charged with extreme porn possession under the Criminal Justice Bill, have your name plastered all over the media, only for the court to find you innocent under the CPS guidelines?
|
No. The CPS guidelines (presumably) are for use by the CPS in deciding which cases should be brought to the courtroom. Therefore, I would think, that they are (implicitly) more lenient than the law itself because the CPS doesn't like taking things to court and losing - because that is unrewarding and costs money.
|
Potentially could a defendant get judicial review of a decision to prosecute by the CPS in breach of its own guidelines ? - I think not. However a prosecution that was in breach of the CPS' own guidelines for prosecution may be successfully stayed as an abuse of process.
|
I doubt it One may conjecture that if the CPS/police say explicitly that something wouldn't be prosecuted, and then do - perhaps it could be entrapment?? But in general they are 'guidelines' not 'rules' after all...
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Yes, but they give people a reasonable expectation that they will be followed, so a blatant breach of them, if they are published publicly as these are, could well amount to an abuse of process. However it would have to be a blatant breach, and I don't think the guidelines are explicit enough for this to be likely for any picture that is likely to result in a charge.
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9 Feb 09, 5:35 PM
ClassAct2005
UK(N), 7 yrs
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Guidelines are often held to be wrong but people generally are better advised to follow them until they've been proved wrong, unless they want to be a test case. They will I am sure be more generous than the law itself so if in a particular case someone is out to get you the CPS could choose to ignore the guidelines I suppose. I suspect it's not a defence that you followed guidelines to the letter although I suppose it might be as it's criminal law. There was all that trouble over hte lady who wants to be taken abroad to be killed who wanted the CPS to rule her partner would not be prosecuted for helping and I think that was partly about wanting guidelines when there were not any, a separate point.
I doubt a picture with a knife to the throat would be prosecuted. I bet they really want to see some blood or damage rather than some image with a knife on it or hands round a throat but I might well be wrong. As none of that stuff arouses me I never have to think about it personally. |
9 Feb 09, 5:46 PM
Penny_Louise
5 yrs |
Sottomessina wrote:
An act which results in or is likely to result in serious injury to a persons anus, breast or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals. The words serious injury are not defined in the Act and would take their ordinary dictionary meaning and be a question of fact for the District Judge or jury.
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The above says to me that images of needles in those three areas would be breaking the law. Normally I wouldn't say that they were to cause 'serious injury'. However, the fact 'sharp objects' have been mentioned by the CPS, leads me to think that THEY would class needles as likely to cause serious injury.
x
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It says
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An extreme act is one which threatens a person's life, which results or is likely to result in serious injury to a person's anus, breasts or genitals
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and
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Life-threatening is not defined in the Act. It will therefore take its ordinary English meaning
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It could include depictions of hanging, suffocation, or sexual assault involving a threat with a weapon.
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'serious injury' should be given its ordinary English meaning.
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Serious injury could include the insertion of sharp objects or the mutilation of breasts or genitals
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As well as being a specified act, an extreme act must be explicit and realistic. Both those terms take their ordinary dictionary definition.
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This suggests that the penetration by a sharp object is only caught if likely to cause serious injury or death, therefore needle play itself isn't caught as it's unlikely to cause serious harm.
Interestingly, as the pornographic nature is only determined by the judge or jury, rather than by the proclivities of the accused (specifically excluded), it's unlikely to be caught anyway, unless the judge is as pervy as we are!!
Lady Alpha Pro-domme, switch and sub. Disciplinary and conventional therapy and life coaching
Kinkdom Blog
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9 Feb 09, 7:36 PM
Attitude_Adjuster
UK(N), 6 yrs
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LadyAlpha wrote:
Interestingly, as the pornographic nature is only determined by the judge or jury, rather than by the proclivities of the accused (specifically excluded), it's unlikely to be caught anyway, unless the judge is as pervy as we are!!
Lady Alpha
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If the pic is a close up of someones fanny, most jurors would think that was made for pornographic reasons....
I quite agree about needle play (in general) - I can't see how that could be interpreted as serious or non-transient, so I think we are making a bit of a fuss about that one.
And all men kill the thing they love, By all let this be heard,
Some do it with a bitter look, Some with a flattering word,
The coward does it with a kiss, The brave man with a sword!
|
9 Feb 09, 10:40 PM
emark
UK, 9 yrs |
ClassAct2005 wrote:
I doubt a picture with a knife to the throat would be prosecuted. I bet they really want to see some blood or damage rather than some image with a knife on it or hands round a throat but I might well be wrong. As none of that stuff arouses me I never have to think about it personally. |
As I say, "sexual assault with a weapon" is one of the few examples given by the Government of an image intended to be illegal.
And given that this law was brought in because of a man apparently obsessed with strangulation, it would seem odd if that didn't count as a threat to a person's life...
LadyAlpha wrote:
Interestingly, as the pornographic nature is only determined by the judge or jury, rather than by the proclivities of the accused (specifically excluded), it's unlikely to be caught anyway, unless the judge is as pervy as we are!! |
If only The law is not whether they get off on it, it's whether it looks like it was intended for people to get off on it. It's true that in practice, they'll probably still be going by a somewhat "vanilla" interpretation (e.g., whether it shows certain body parts, or erotic posing), but I think enough BDSM imagery (especially private home-made pics) still comes under this.
Theoretically, images showing injuries, where the images don't look erotic at all, would be legal, and people would be free to get off on those - which just shows how stupid the law is. But we'd have to proactively make such images - most BDSMers still like to mix in traditional erotica in with their play. (Also remember that if an image is found alongside other images, this can be used to judge if it was porn - I guess this might mean an image showing an "extreme" act, stored in a folder that's got a lot of more vanilla porn pics.)
(Hmm, I'm now having thoughts of someone doing an "extreme porn" site showing harmful things where the images don't look as if they are intended to be for sexual arousal at all...) Sign the statement against criminalisation of possession "extreme" images. See http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... for more details.
Edited 9 Feb 09, 10:52 PM by emark
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