Tuesday, 10 June 2008

X factor

At Index on Censorship, I spotted an excellent article by Julian Petley which explores the dangerous absurdities of the "extreme pornography" clause of the new Criminal Justice and Immigration Act.

Petley makes the point that this legislation falls squarely within the British tradition of attempting to stem the inflow of "foreign smut". Other western governments, after all, have not sought to ban images of legal and consensual activities, however unappealing to majority tastes. But by making the mere possession, rather than the creation or distributing, of contraband material a criminal offence, the new law sets a dangerous precedent. For the first time, merely looking at a picture with a particular mental attitude - sexual arousal - will be punishable by up to three years in prison, however blameless one's life in other respects.

Petley also discloses chilling evidence of police enthusiasm for making full use of the new laws, especially as it will give them a "tool to deal with individuals whose behaviour may be causing concern" for entirely different reasons. The possibilities for abuse are limitless.

Of course, this legislation didn't come from nowhere. Partly, it is a response to a campaign in the Daily Mail. Among other things, the lack of principled opposition in the House of Commons reveals the depth of intolerance that still exists towards those perceived as sexual deviants. The legalisation of homosexuality, after all, was not wildly popular at the time. Recently the tabloid press have unthinkingly condemned Max Mosley's unconventional tastes, and the women who helped make his dreams come true have been universally, and inaccurately, dismissed as "prostitutes". I wonder if the News of the World's notorious tape of the incident will fall foul of the new law? So widely and vaguely drafted is it, no-one really knows. But it's already apparent that the legislation has already caused real confusion, distress and fear among many harmless and law-abiding people.

But there's a wider point, too, as Petley points out:

The anti-pornography clauses of the Criminal Justice Act 2008 furnish a particularly striking example of how the government, having abandoned any pretence at regulating corporate behaviour, is ever more obsessively determined to micromanage people’s personal behaviour.

Ain't it the truth?


lost causes said...

I've flip-flopped quite a lot on this one - from outrage to "well they have a point" and back again a few times. I think the law is necessary - as it outlaws some horrible shit that should already be illegal - images of bestiality and actual sexual violence. But as you point out, the wording, in it's failure to differentiate between real and make-believe, not only tramples free-speech, but creates thought crimes. Let's hope this law is never used against consensual adults, or if it is then it is instantly thrown out and never tried again. Would it be illegal to watch a movie like SAW while aroused, but legal otherwise (not that I intend to, of course). Don't forget that this is in a country where only 5% of reported rapists are convicted (and 95% of victims aren't making it up). Has anyone high profile come out against the wording of this law?

The Heresiarch said...

Any high-profile? There was Lord Onslow, whose House of Lords speech is well worth a read. The debate in the Lords was dominated by well-reasoned opposition, but it went through anyway. The government's case did seem to be that because most people would be shocked by these certain images, therefore people who might be turned on them should be considered sex offenders. It's a very dangerous argument.

You write: I think the law is necessary - as it outlaws some horrible shit that should already be illegal - images of bestiality and actual sexual violence.

If there are images of actual sexual violence (non-consensual, that is) then they are evidence of a crime. But overwhelmingly these images are staged. The argument seems to be an assumption that some people might be moved to commit real rapes as a result of watching such material; and that might, if proved, be an argument for banning the images. But there's a huge difference between banning making and distributing an image, and making the mere act of looking at it a crime. That for me is the most dangerous thing about this law. The government is saying, we can't stop this stuff, so we'll criminalise the viewers. If Channel 4 broadcast a perfectly legal film with an "extreme" scene, and you record it, and find the scene a turn-on, you become a sex offender. It's bizarre.

During my research on the Max Mosley business I came across some of the message boards used by the BDSM "community", which seems to be comprised largely of normal, law-abiding people with unusual tastes. Many of them are now extremely worried that their personal preferences will now lead to them being branded as sex-offenders, with all that that implies, and that their entire "scene" will be driven underground. Reading some of their comments, I got a sense of what it must have been like to be gay prior to 1968.

The really amazing thing is that the govt seem to be aware that the law conflicts with the ECHR; and they don't care.

valdemar said...

This is lunacy. Mind you, if we are to engage in lunacy, at least let's be consistent. Let's make it illegal for religious bigots like the Paisleys to even think - never mind talk -a bout gays, abortionists, Papists and so on burning in hell for all eternity. No, I'm not wholly serious, but as a concept it's not a million miles from what this I-Can't-Believe-It's-Labour regime is doing.
And yes, I did intend to use the word regime and not government. I am a bit cross.

lost causes said...

Heresiarch - you write that most extreme porn is staged, but I think you're slightly underestimating the amount of stuff out there. Someone at a party once showed me the screen of their mobile phone on which they had a video of a woman being raped (I presume) by a dog. They thought it was funny. I didn't, and I have no problem with that person getting a criminal record: until this passes, he didn't break any laws.

This is very different to a video where 2 consenting adults act out a pretend scene of "non-consensual" sex, where no one is actually hurt, and it's clearly spelled out that it is a fiction. If that's illegal, then so would be the film version of Story of O, but for the Orwellian clause that anything passed by the BBFC is not covered by the law (which also clears up my earlier question about SAW - wank away to your hearts content!).

I think the problem is that in the mind of straight-laced god-fearing MPs, it's all equally depraved, whether ordinary consenting adults enjoy it or not.

lost causes said...

Oh, another quick thing about the "permanent damage to the breasts, anus" etc clause: any kind of anal sex is not particularly good for the anus, and could certainly do long term damage if something went wrong. Is that illegal now? Breastfeeding can lead to cracked nipples and stretch marks. What about that?

The Heresiarch said...

Regarding the offensive video you saw, I don't quite follow your logic. If the man who showed it to you found it funny, then that says something about his sense of humour. Personally, I don't think someone's sick sense of humour should be grounds for branding them a sex offender. Nor would he necessarily be caught by this law: the prosecution would have to show, or at least show it to be probable, that he found it sexually gratifying. If that isn't a thought crime I don't know what is. The police would be better employed tracking down the victim and perpetrators. Though I think you're too quick to presume that the woman wasn't consenting.

Actually, the fact that material has been passed by the BBFC isn't a defence if you take it out of context - a still, or a short scene - in such a way that implies you find it sexually gratifying. And not everything that becomes available online - or can be purchased in a shop in another country - IS passed by the BBFC. A film can be entirely legal in, say, Denmark. You can buy it on holiday, take it home with you, put it on a shelf - and thereby become a sex offender. I think sex offenders are people who commit crimes against other people: rapists, child abusers, even voyeurs. Not people who simply have tastes the government or the Daily Mail don't approve of.

lost causes said...

If you consider the events leading up to it, I find it unlikely that many women would really consent to sex with a dog. There's going to be a great deal of violence and coercion off screen. Now, is a video of that merely evidence of a crime, or should the video itself in fact be illegal. Well we disagree there. You write "the prosecution would have to show, or at least show it to be probable, that he found it sexually gratifying." I think you're wrong about this point, but I'm not a lawyer. I personal don't see how it's any different to possessing images of child abuse - in both cases the possessor of the images isn't directly hurting the victim, but it's still morally unacceptable.

Another thought occurred to me about this - the part about having sex with DEAD animals. Where will they draw the legal line? Is fucking a supermarket chicken illegal? What about a Turkey Twizzler? It's like the guy who was put on the sex offenders register for masturbating on a bicycle all over again!

The Heresiarch said...

You seem rather conflicted about this. Of course it's unlikely that many women would consent to having sex with a dog; but there are so many people in the world that there must be some. In fact, there are. We can of course speculate about the childhood abuse, drug dependency, financial desperation or whatever that might lead a woman to participate in a scene such as the one you describe. To that extent she could well be a "victim". But are you really suggesting that there are gangs kidnapping women and taping them being raped by dogs? Where's the evidence for that? With child abuse the problem of consent doesn't arise.

Having sex with a dead animal really is a victimless crime, of course. To be put on the sex offenders register for possessing a picture of someone having sex with a dead animal is, in my view, an insult to all the real, live, human victims of rape and abuse.

lost causes said...

"But are you really suggesting that there are gangs kidnapping women and taping them being raped by dogs?"

Yes that's exactly what I'm saying. I read a long piece about it a few years ago which I can't find, but this touches on it:


I think you're being naive to think that it's all made by open minded Germans.

The Heresiarch said...

These stories usually - not always, but usually - turn out to be urban legends.

lost causes said...

I disagree, but let's leave it at that.

mark said...

lost causes: To my knowledge, there has never been any cases of "extreme porn" involving non-consenting adults that was produced for the purpose of selling porn. Certainly nothing like a trade in the same way that child porn exists. Not a single example has been cited by the Government - the Government's own Rapid Evidence Assessment failed to find evidence of any. If one existed, surely they'd be shouting about it, as justification of this law?

(Bestiality is a more complex case - this seems to exist but again there seems no evidence where the human participants didn't consent, however there is the debate about the animal itself and if their lack of consent is sufficient to criminalise possession; either way, this is a red herring: the law covers far more than bestiality, and the opposition to this law has focused on the other aspects of this law.)

Now having said that, sure, I don't have any objections to a law solely on non-consenting adults, just in case it might exist. But the question is what the law will be use for? The example websites cited by the Government (e.g., "Necrobabes") are known to be consenting adults role-playing. The Government have stated numerous times that "consent is not an issue".

So whilst a law solely on non-consenting participants would be fine, if we take these points, together with the seemingly complete lack of actual non-consensual material, my fear is that consenting adults are a clear target with this law. Still, I will love to be proved wrong ;)

Note also that the law is not concerned with protecting participants, but with the claim that viewing the material turns people into violent criminals. So consensual material is treated similarly - even extracts from legal films will come under the law.

If we both agree that non-consensual material is okay to be illegal, but consensual material should be legal, then we are in agreement. I too hope that it will never be used for consensual material, or will be thrown out - we can only hope now, as the Government has resisted all arguments to amend the law to protect consenting adults.

mark said...

Just to add - also see http://www.publications.parliament.uk/pa/cm200607/cmbills/130/en/07130x-n.htm#index_link_206 for the Government's justifications under the European Convention on Human Rights. See 803 - the Government uses R v. Brown (Operation Spanner) to argue that participants are not legally able to consent (this ignores that they can consent to staged acts, but my point is that the Government is clearly arguing in favour of targetting consensual acts, quoting a case involving consenting adult sadomasochists).

Actually I think this ties in interestingly with the Mosley case, where the judge ruled:

* Acts of S&M, even if they inflict actual harm and possible wounding, are not covered by R v. Brown, because the acts were not as extreme as that case. Up until now, people have assumed that R v. Brown covered any sadomasochism where the marks were more than "transient and trifling", but perhaps a future court may rule otherwise, so long as the acts involved are not quite as "extreme" as in R v. Brown (that case also involve participants who were under the age of consent at that time).

* That even if it was illegal, this does not mean that people give up their rights under the ECHR.