Computers, Privacy & the Constitution

Extreme Porn

Five years ago Jane Longhurst, a teacher from Brighton, was murdered by Graham Coutts, a fan of websites such as "Club Dead" and "Rape Action" which offered images of women being abused and violated. After he was finally jailed for life, her mother Liz began a campaign to ban the possession of such images in the UK. Last week, she succeeded.

The Criminal Justice and Immigration Act 2008, provides that is an offense for a person to be in possession of an "extreme pornographic image" which "portrays, in an explicit and realistic way, any of the following—(a) an act which threatens a person's life, (b) an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive)." A "reasonable person looking at the image [must] think that any such person or animal was real" and the image must have been produced "principally for the purpose of sexual arousal." Limited defenses exist if the accused can prove they were unaware of the fact of their possession, had a legitimate reason for same, or were sent the material without prior request and did not keep it for an unreasonable time. Finally, there is a limited defense if the accused can prove that they participated in the act portrayed, and that no non-consensual harm actually occurred.

These provisions have been justified on several grounds. First, as helping protect children from inadvertent exposure to violent pornography. More vocal advocates also use this to shoehorn in the rationales traditionally associated with a ban on child pornography. Second, to protect the participants involved in its manufacture. Third, as a means of breaking the supply/demand cycle, thereby discourage interest in the material. Fourth, for the moral message such "gestural legislation" sends to the public. For some, this is simply that such practices have no place in our society, for others, this is "the eroticisation of hate" and a symbol of "male domination and exploitation of women and children." Finally, we are told that the advent of the Internet has made this a necessity. In light of how much of this content is hosted outside the UK, The Obscene Publication Act of 1959 which prohibits the distribution of such material, is now as effective as a "chocolate fireguard," and only a crime of possession will address the problem.

However, in reality these are overly broad, socially regressive, and potentially violate the European Convention on Human Rights, specifically Article 8 (the right to respect for private life), and Article 10 (the right to freedom of expression). To be compatible with these basic tenets, any law must be sufficiently clear and precise, capable of meeting the objective pursued, and necessary and proportionate in a democratic society. These are not.

First, as Lord Wallace of Tankerness put in the House of Lords: "If no sexual offence is being committed it seems very odd indeed that there should be an offence for having an image of something which was not an offence." What exactly constitutes "grossly offensive, disgusting, or otherwise of an obscene character," and as a matter of statutory construction, why include so many terms? What are the mens rea requirements for a defense? What happens, for instance, if the accused requested the image, but was unaware that it was extreme? The use of an objective standard means leaves these determinations to the police, although at least the DPP's permission is required for a prosecution.

Secondly, what exactly is the objective of these provisions? The case for a new law would be greatly strengthened if there were any nexus between possession of this material, and violent crime. However, the governments own consultation accepted that there was zero evidence to support this. If anything experience would suggest the contrary. The incidence of rape in the United States has declined 85% in the past 25 years, while access to pornography has concomitantly become much more freely available. Similarly, if the justification is to protect innocent viewers, then parental supervision and client based content filters provide a more effective, and more targeted means of control. Children have nothing to do with this; the specter of child pornography, already rightly outlawed, is invoked merely as a rhetorical ploy to obscure the bogus rationales. If to protect the participants, then the act not only overreaches, but is redundant given that the most severe acts of BDSM themselves are already illegal. If the concern is the increased availability of these images as a result of the Internet, then why does the Act also extend to traditional media?

Thirdly, these can hardly be said to be necessary and proportionate measures. In no other western country, is the simple possession of such pornography a criminal offense. Under the new rules, criminal responsibility shifts from the producer to the consumer, under a strict liability regime, the punishment for which is two to three years "at Her Majesty's pleasure." Although in some cases, such reversal of the burden of proof may be compatible with Article 6 of the Human Rights Act (the right to a fair trial), it depends on difficulty of discharging that burden. Now, with pop-ups, attachments, and multiple caches, how is the accused to prove that they didn't see the material, or didn't request it? Placing the words of an accused 'deviant' against those of the DPP, who would have a much easier task of showing—usually through a "trail of crumbs" in the browser history from previous sites and thumbnails—is bound to lead to miscarriages of justice.

Finally, these provisions were rushed through Parliament, as part of a much larger bill, the timetable for which was driven by a perceived urgency to renew the ban on prison officers striking. They are likely to be completely ineffectual, will achieve little other than a waste of tax payers in lengthy appeals to the courts in Strasbourg, and are open to prosecutorial abuse. As Baroness Miller put it: "Perhaps the most chilling point in the Minister's summing up . . . was that when it came to policing this it was for dealing 'with individuals' who are 'causing concern'." Marvelous.

Word Count: 988 (ex Abstract/References)

Further Reading

The Criminal Justice and Immigration Act 2008

Legislative History of the Act

Consultation on the Possession of Extreme Pornography, and the Government's Response

Hansard Online - Official Reports of Debates in the UK Parliament

Director of Public Prosecutions

European Convention on Human Rights

The Obscene Publications Act 1959

The Human Rights Act 1998

Liberty Response to the Home Office Consultation Paper on the Possession of Extreme Pornographic Material

Liberty's Second Reading Brief on the Bill in the House of Lords, Jan 2008

Liberty's Committee Stage Briefing on the Bill in the House of Commons, Oct 2007

Rabinder Singh QC's Opinion on Legality of Home Office Proposals

EFF – Why the ACLU Opposes Censorship of Pornography

Anthony D'Amato, Porn Up, Rape Down, Northwestern Public Law Research Paper No. 913013, June 23 2006

Backlash – Uphold the Human Rights Act (Opposition Group)

R v. Brown (1994) 1 A.C. 212 (House of Lords holds 3:2 that consent was no defence to a charge of occasioning actual bodily harm)

Andrew Norfolk, Jane Austen and the Case for Extreme Porn, The Times Online, Mar 17, 2007

Tania Branigan, The Guardian, Violent Porn Ban a 'Memorial To My Daughter', Aug. 31 2006

The Register – Lords Linger Over Extreme Porn Definition, May 5 2008, New Law Will Criminalise Possession of Extreme Porn, Feb. 7 2007)

Ministers Seek Prison Strike Ban, BBC News, Jan. 7 2008

"I'm not doing anything wrong," BBC News Magazine, Apr. 29 2008

Chris Summers, When Does Kinky Porn Become Illegal?, BBC News, Apr. 28 2008

Chris Summers, Extreme Porn Proposals Spark Row, BBC News, July 4 2007

Edward Gorman, Crown Prince of Bahrain bars Max Mosley over 'Nazi Prostitute' Claim, Apr. 3 2008


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r8 - 14 Jan 2015 - 22:44:49 - IanSullivan
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