‘Criminalising Extreme Pornography: Five Years On’ – Dymock on The question of regulating pornography: is criminalisation the answer?

Alex Dymock is a PhD candidate at the University of Reading. Her thesis is entitled: ‘Abject Intimacies: Disgust, Sexuality and UK Law’. Alex tweets at @lexingtondymock

Five years since the extreme pornography provisions were passed as law, Durham Law School invited me to give a position paper on the provisions, assessing their effectiveness and suggesting ways in which I would like to see the law reformed.  The following weekend, the new CPS guidelines on the application of the law – formerly taken down in the aftermath of Simon Walsh’s acquittal – were released, which give the appearance of attempting to take a number of concerns about its previous interpretation into account.  While these new guidelines do seem to tighten up definitions of ‘likelihood of risk of harm’, so as to exclude depictions of consensual sadomasochism as far as possible, my own position on the current law is that it should be entirely abolished.  I defended this position on two grounds.

First, I wanted to address the question of pornography’s utility.  It has been argued on numerous occasions by the feminist anti-pornography movement – but perhaps most convincingly with reference to the law in question by Clare McGlynn and Erika Rackley – that pornography’s harm is not directly causal, but ‘cultural’.  They argue that it normalises the degradation of women, the objectification of women’s bodies, and that it may perhaps, as the Rapid Evidence Assessment which aided the progression of the original Bill attests, instil ‘pro-rape attitudes’. My issue with this understanding of cultural harm is threefold.  Firstly, this perspective assumes that we can make immediate claims on what pornography is predicated on its ideology; secondly, it assumes that the ideology of pornography is always the same, which seems to entirely exclude gay pornography from its remit (yet as we have learnt from the case of R v Walsh, this does not mean that images of men who have sex with men are excluded from the law’s application); thirdly, if we accept that the ideology of pornography is not monolithic, it is difficult to make a claim on its effects without also accepting that pornography must also have some positive utility.

The current law seems to accept as read that the viewer is incapable of a reflexive response to pornography, that their responses are not already preconditioned by the particular attitudes to sex and violence shored up by other media and society at large, and that it is the ‘extreme’ pornographic image itself that has the power to reconstruct what might otherwise be a ‘healthy’ sexuality.  As research from the field of Cultural Studies, Media Studies and Film Studies has attested, many of these claims on pornography are swiftly debunked when one asks the voluntary viewer of pornography what their own experience of watching is, and what they gain from it.  It is also posited by scholars working in the same fields that it is increasingly difficult to pin down what we understand to be the meaning of the pornographic.  For example, is the aim of pornography always primarily sexual gratification?  Are there other gratifications it offers?  Should this narrow or widen our understanding of what constitutes the pornographic?

One of my greatest concerns about the current legislation is that it offers an understanding of the ‘harm’ that pornography does based on artificial measures of how ‘extreme’ or ‘illicit’ it is.  This artificial measure is still reflected in the new guidelines, which stipulate that the impetus to criminalise was founded in part on the basis that extreme pornography ‘may encourage interest in violent or aberrant sexual activities’.  My paper attempted to trace the historical medico-legal impetus behind current understandings of ‘sexual aberrance’ and the weight of its inheritance on the current law.  ‘Sexual aberrance’ was originally a taxonomy invented towards the end of the nineteenth century as a polite stand-in for homosexuality, to indicate its distance from a genitally oriented procreative heterosexuality, and the ‘risk’ it imposed on corrupting the promise of what the queer scholar Lee Edelman terms ‘reproductive futurity’.  Sexological understandings of ‘sexual aberrance’, particularly in women, also had a close relationship with theories of criminological positivism prevalent at the time, which linked sexual deviance with an inborn or inherent predisposition to criminality.  As we learn from Foucault in The Will To Knowledge, it was towards the end of the nineteenth century that the thematic of sexuality was re-inscribed in the ‘system of law, the symbolic order and sovereignty’.  It is thus my contention that this move towards the classification, categorisation, and pathologisation of sexual deviance had the effect of silencing and policing discursive expressions of sexual desire, particularly the expression of homosexuality.  It is in this discursive realm that pornography exists, and in which it may be a fruitful site of contestation for these medico-legal framings of sexual desire, a space of resistance to a heteropatriarchal system of sexual value, in which particular sexual paradigms are held to be more ‘normal’, ‘natural’, and thus ‘healthier’ than others.

It is also my view that all sex, including those acts which take place on porn sets, involves risk, the possibility of coercion, abuse of consent, and violation of boundaries.  These risks should be the problems with which any claim made on the sexual ethics of any particular sexual act must most closely engage.  However, the majority of ‘extreme’ material merely maps the possibility of these problems with sexuality onto perverse sexual acts rather than those most intelligible to a heteropatriarchal system of value.

My second argument for the abolition of the current law follows on from my concerns about the understanding of all pornography as exemplary of a particular ideology.  Even if one accepts, and I do not, that extreme pornography is monolithic, that it is both the literal demonstration of, and inevitable response to, a culture of misogyny, criminalisation of possession simply atomises and individualises the problem of pornography.  It sends out the message that pornography may have the effect of normalising the degradation and objectification of women only in these few specific individuals, rather than addressing the problem that we live in a culture that reaffirms this narrow understanding of gender and sexuality.   This seems to follow the precise formulation of what historical medico-legal interpretations of sexual deviance suggest: that deviance is evidence of a propensity to criminality.  It allows us to distance these individuals from ourselves as ‘exceptional’ or ‘monstrous’ rather than looking more carefully at the means by which these attitudes towards women are formulated.  In other words, as was pointed out at the seminar, the law becomes more about being seen to do something about these attitudes than having any wider cumulative effect.

My final question about the individualisation of the ‘problem’ of pornography is whether the same claim applies to gay porn.  Does ‘extreme’ gay pornography normalise violence against men, or promote ‘sexual aberrance’?  Should gay porn always be subjected to the same sanctions as heterosexual porn?  Is there a division that can be made, as Carl Stychin has written, between heterosexual and gay pornography owing to gay men’s supposedly privileged status as always-already empowered as a result of their gender, capable of greater autonomy over their sexuality?  Does the move to criminalise representations of perverse sexual acts between men represent, as many queer authors have postulated, a desexualisation and sanitisation of homosexuality, a move to recuperate same sex relationships under the rubric of heteronormativity in order to make same sex relationships more ‘acceptable’ to legislators?

But if criminalisation of individual possession is not the solution, are there other approaches to be taken that answer to feminist concerns about pornography?  One of the greatest problems with the current law is that in attempting to take into account concerns from three key strands of social framing of pornography (conservative, liberal, and feminist), its aim is not clear, nor does it easily satisfy any one political impetus.  While I would tend to dismiss conservative understandings of pornography as pernicious, homophobic, and, frankly, misogynistic, I do not think it is helpful for liberals to simply ignore or speak past feminist concerns.  Rather, in order to move the conversation about the regulation of pornography forward, they must be spoken to and subjected to rigorous critique rather than reactionary criticism.  My own work attempts to take into account both feminist and queer engagements with sexuality and the law and point towards where there may, although it can sometimes seem counter-intuitive, be space for reconciliation.  But I also suggest, following Janet Halley, that uncovering the incommensurability of these approaches may sometimes be productive, showing us the weaknesses and blindspots that any one critical framing produces.  As has been claimed by Gayle Rubin and many others, the tendency to ignore gay pornography or else envelope it under the same umbrella as heterosexual pornography, is one such feminist blindspot.  The acceptance of the liberal-democratic reliance on sexual consent as crudely contractual and autonomous is a major blindspot in much queer theory.

In light of this approach, I want to offer some brief reflections on the move to criminalise possession of ‘rape pornography’, which McGlynn and Rackley point towards as perhaps the most worthy of feminist concern, and ask some questions of this move that I feel are the most pressing.  In Scotland, this concern has been taken into account and implemented in the form of s.42 of the Criminal Justice and Licensing Act.  In section 51A(6) (c ) of the same Act, rape pornography is simply described as an image which ‘depicts, in an explicit and realistic way’ ‘rape or any other non-consensual penetrative sexual activity’.  There is a move to include images of rape in the pornography provisions in England and Wales on the basis that, as Rackley and McGlynn’s briefing paper stipulates, such images ‘contribute to the creation and perpetuation of a cultural climate in which sexual violence is condoned, and seen as a form of entertainment’. I remain concerned about how broad the remit for reading a pornographic image as depicting rape may be.  Again, there is perhaps a problem with definition, and I think it must follow that we ask difficult questions about what, specifically, is meant by ‘rape pornography’ before there is any attempt to move attempts to criminalise forward.  Is the focus of this move to criminalise possession of images from subscription websites that specialise in producing material depicting rape?  Or is the target any pornography in which sex appears or is described as forced or perhaps just looks ‘rough’?  Would this same concern apply equally to gay pornography?  How is the appearance of consent (or indeed, non-consent) to be understood, and the cultural valorisation of rape myths avoided?  If the definition is left open to the interpretation of a judge and jury, is this to ensure that the law’s remit is as wide as possible, or is it likely to lead to its misapplication?  As the need for expert witnesses who might be able to provide some context for the image, inform a jury about the ethics and intentions of the particular company that made it, grant the jury some information about the performers in the image and the kind of work they do, has been dismissed in the new guidelines, it seems even more crucial that this definition is tightened, so it cannot be misapplied.

I’d also like to think a little about the other impetus for the criminalisation of extreme pornography: that it protects those who take part in its creation from abuse.  The need for better and more clearly defined rights for porn performers so that they do not suffer the stigma attached to their profession if they do wish to bring forward criminal charges of abuse on porn sets, is a concern that dates back to Andrea Dworkin and Catharine Mackinnon’s porn ordinance of the early 1980s, but it is one I believe is worth paying some attention to.  If we are interested in granting those who take part in the sex industry dignity and humanity, even if we find the particular acts in which they wilfully take part distasteful or even politically objectionable, a legal intervention concerning performers’ civil rights is surely a necessity.  The problems with this approach, however, are multifold.  It remains unclear to me precisely who should be held responsible for these abuses.  Should charges should be brought against the performer who has physically violated another in the act that they claim was non-consensual?  The director who has demanded that act, which may violate a performer’s hard limits, or coerces them to perform the act with the promised of a monetary bonus?  The company director, who makes the most capital out of that performer’s experience of violation? Or the viewer who possesses the image?  Of course, it is this last party who is held the most responsible for this violation currently – but to what end?

The broader solution to the problem of pornography must be better and more varied approaches to sex education, which does not stigmatise benign sexual variation as an ‘aberration’ or promote only heteropatriarchal understandings of what a ‘healthy’ sexuality looks like.  Practitioners in the field have already paid due attention to these concerns, and many already implement them wherever possible.  But it must surely be a matter for wider policy as well as individual practice.  If extreme pornography demonstrates perverse sexuality in a way in which performers are thought to be dehumanised and stripped of subjectivity, it is precisely the way in which perversion has been understood, pathologised, linked to an inherent criminality, and regulated that has led to the proliferation of particular beliefs about its subjects.  These attitudes are reflected in the iconography and narratives of the pornography Section 63 aims to regulate.  In the House of Commons, Martin Salter described extreme pornography as a ‘beast’ whose ‘tentacles must be cut off’.  I suggest that the ‘beast’ Martin Salter describes is one of our own creation, its ‘tentacles’ the problem of systemic violence towards women, fearful responses to sexual perversity, and our refusal to see the subjects pornography exposes as fully human.  The fear is that through the act of viewing, the ‘beast’ has the capacity to render the spectator abject, situating them between the ‘I’ and the ‘not I’, the subject and object, the civilized and the primitive, the human and animal. Effectively, the fear is that they will become the beast itself.

The broader question of resolving how perversion should be situated legally in the matter of possessing a pornographic image is reliant on an overhaul of the way we view sexuality and, in particular, female sexuality.  Only then might a change in cultural attitudes produce pornographies (and, indeed, readings of pornographies) that reflect their participants’ humanity, alleviating the social and cultural harms pornography is thought to produce.

(With thanks to Sarah Harman, Nick Cowan, Eleanor Wilkinson, Clarissa Smith and Myles Jackman for continued conversation about the issues raised by the law, which aided the writing of this blog.)