The Criminal Justice and Immigration Bill (2008) includes a Section 63 that prohibits a range of images, whether still or moving, possessed digitally or physically, as ‘extreme pornography’, exposing those found 'in possession' to fines or up to five years in prison.
Prohibited Images must satisfy four tests:
1. The image must be pornographic: ‘must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal’.
2. The image portrays at least one 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).
3. The portrayal must be ‘explicit and realistic’; a reasonable person must believe the actors (and animals) involved are real.
4. The image must be ‘grossly offensive, disgusting or otherwise of an obscene character’.
Defences include having a legitimate reason for possessing images, accidental access of images, or the possessor having taken part in the images with other consenting adults. Complete works that have been classified by the BBFC are exempt (although extracts of classified films are not).
It seems to me (and many others) that this is thoroughly bad law. not only is it selective and arbitrary but also creates a new category of 'thought crime'.
The law takes little account of whether the images are the product of actual dangerous and abusive activities, or merely realistic depictions or acted scenes. It also fails to take account of whether the images were produced consensually. What it does, therefore, is to make some perfectly legal acts into illegal ones when recorded or viewed. And it makes the viewer the criminal, rather than the producer.
However, to muddy the waters even further, Section 66 of the Act provides a defence in relation to participation in consensual acts. In order for it to be present the following elements must be established:
– That the defendant directly participated in the act or any of the acts portrayed
– That the act or the acts did not involve the infliction of non-consensual harm on any person
– That acts involving the portrayal of a human corpse was not in fact a human corpse
Given that all pornography sites explicitly state that all acts depicted are both non-harming and consensual, it seems that the law fails even to address properly the anti-porn campaigners stated target.
The law is meant to be limited by an 'obscenity test' similar to that used for prosecuting publications. However, the history of obscenity laws (Lady Chatterley's Lover, the Oz Trial, etc) shows that obscenity is arbitrary. Therefore most people will not know whether they have broken the law before they have been prosecuted.
Why is this idea important?
Section 63 criminalises members of the BDSM community, lifestyle goths, and those who view low budget horror films that are not sent to the BBFC for certification as well as anyone who exchanges unusual pornographic images via email or on mobile phones, out of curiosity or for shock value. It affects the rights of all British citizens, as it grants the police greater powers to search people’s homes and seize their property. It makes people into criminals for having private fantasies or for enjoying pornography that is deemed too 'kinky'. But ALL pornography is intrinsically 'kinky' – that's the point.
Section 63 was introduced as a knee-jerk reaction to the availability of 'necro porn' on the internet, blamed by some campaigners for violent crimes, such as the murder of Jane Longhurst. Because producers were beyond the reach of UK justice, it was decided to prosecute consumers instead.
However, expert psychiatric and criminal opinion is that this is to confuse cause and effect. Because sex murderers might also take an interest in violent porn does not mean that the latter is a motivating factor. Essentially, a psychopath will commit crime regardless of what he views or reads. And for every violent offender, there are hundreds, possibly thousands, of people who enjoy such material in entirely benign ways.
Furthermore, the definitions of 'possession' have been extended to include images that have already been deleted but that might be recoverable using specialist software or even to
It can only be a matter of time before this law is used in a disproportionate or unwarranted way to destroy the life of someone who is in every way that matters a perfectly law-abiding citizen.
It is arbitrary, almost impossible to enforce fairly, anti-libertarian, intrusive, and contravenes international Human Rights legislation. Please scrap it or redraft it so that the only target becomes producers of images that actually depict real harm being done to people.