In May 2008, following a 3 year period of extensive consultation and against a backdrop of significant and predominantly critical public debate, a new offence criminalising the possession of extreme pornography received its Royal Assent. The Government’s purpose in introducing the new law was to address an ‘increasing public concern’ about the availability of extreme pornography particularly that produced outside the UK and distributed via the internet which lay beyond the reach of the Obscene Publications Act 1959. It did so by shifting the focus from the producers to consumers – targeting the users of pornographic material by enabling prosecutions to be brought, for the first time, against anyone downloading, and therefore generating the demand for, such material.
The extreme porn law made it a criminal offence under s63 of the Criminal Justice and Immigration Act (CJIA) to possess extreme pornography. This is defined as material that has been produced ‘solely or principally for the purpose of sexual arousal’, which is grossly offensive, disgusting or otherwise obscene and that explicitly and realistically depicts (so that ‘a reasonable person looking at the image would think that any such person or animal was real’):
- An act which threatens a person’s life,
- An act which results, or is likely to result in, serious injury to a person’s anus, breasts or genitals,
- As act with involves sexual interference with a human corpse, or
- A person performing an act of intercourse or oral sex with an animal (whether dead or alive).
Initially, it was an encouraging move by the then Labour Government. At least at the time of the original proposals, the accompanying concern over the proliferation and effect of some forms of pornography in sexualising violence against women provided grounds for a cautious welcome of the measures. The Government appeared keen to emphasise that extreme pornography may contribute to a cultural context in which violent sexual activity is encouraged or legitimated, what we have referred to elsewhere as a form of ‘cultural harm’ (see here and here).
By the time the new measures were adopted in the CJIA, however, the focused had shifted – to the detriment of the law. The Government had become bewitched and distracted by arguments demanding – and apparently finding – evidence of physical harm and direct, causal links. Before ultimately retreating to the weakest possible justification for action: disgust.
One consequence of this is that the final law is both over- and under- inclusive. It is over-inclusive because it allows for the criminalisation of many average depictions of consensual sadomasochistic (BDSM) material and under-inclusive in its exclusion of the vast majority of pornographic images of rape.
There is, however, a further consequence of this shift in focus and justification: we have ended up with a law which is misunderstood and misused. It is misunderstood by members of the public, on both side of the porn debate, and mis-used in the way it is being used, that is in the types of cases being brought by the police and CPS.
Prosecutions under the extreme pornography provisions
A common fear – and argument against – the extreme pornography provisions during the consultation process was that it was a law designed to ‘police people’s bedrooms’ and would extend to activities that many would consider not suitable for criminal prosecution – in particular, many of the practices of the BDSM community.
Certainly, there have been significantly more than the 30 or so cases a year that the Ministry of Justice originally anticipated. CPS figures from 2012 indicate that between July 2008 and November 2011, 2,236 cases of possession of extreme pornography reached a hearing.
Breakdown of cases reaching hearing by category of extreme pornography (2008 – November 2011)
|Type of extreme pornography||Number of cases||Percentage|
|Life threatening injury||65||2.91%|
The vast majority of cases brought under s.63 of the CJIA relate to images of bestiality. In 2010- (Nov) 2011, around 85% of cases involved images of bestiality compared to 14.6% for images depicting serious sexual violence or life threatening injury.
Of course, this is not to downplay the prosecutions that have been brought under the life threatening or serious injury provisions of s63. However, the figures suggest that despite prominent suggestions in the media to the contrary (see, eg, here and here), BDSM activity is not being singled out for targeting by the CPS.
And yet, despite the fact that far more people are being prosecuted than was envisaged by the Government, the provisions continue to be criticised as ‘disappointing’ or ‘ineffective’. See, for example, Rape Crisis (South London)’s campaign to reform the law to include pornographic images of rape.
The police and CPS have been criticised for not only going after easy targets – but also the wrong ones (see, eg, our discussion of the Simon Walsh case in 2012). However, the law itself also deserves censure. The extreme porn laws are a flawed piece of legislation – which not only misses their true target but catches material that many would consider unproblematic in its cross fire.
The misunderstandings about the application of the law (and the law itself) means that the focus of public debate on the margins of what constitutes extreme pornography (that is on practices, and the depiction of images, which are commonplace and, when carried out with consent, are unproblematic). This is problematic. It distracts attention from what could be viewed as the proper focus of this law. In concentrating on the margins of the law, we have lost sight of what, in our view, should be the focus of laws on extreme pornography – the prevalence of images which glorify rape and other forms of sexual violence.
A missed opportunity
So, where does this leave us? Five years on, it is time for reform.
It is time to look again at the extreme pornography provisions themselves – to amend the legislation, along the lines of the Scottish law, so that it includes pornographic images of rape and includes a focus on context (how the image is described, accompanying sounds, part of narrative and so on) when determining whether an image is ‘extreme’. It should, at the same time, widen the participation in consensual acts defence and introducing a public good defence.
It is time to look again at a general level at the reform of pornography laws generally – and in particular the focus on obscenity and disgust (further entrenched by extreme porn laws). The discussion of the extreme porn legislation is, of course, part of general debates around the prevalence and use of pornography. And, of course, law is not the only solution. However, insofar as the law does have a role in setting norms and providing a context for these discussions we need – and should have – a better law.