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Professor Julian Petley,
Deputy Head (Research) School of Arts, Presentation on his paper "The Dangerous Images Act" at 9 April 2008: 'Extreme' Pornography and Discourses of Censorship Southbank university

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  1. 1. A Very British Horror: the Dangerous Images Act
  2. 2. Consultation on the Possession of Extreme Pornographic Material (August 2005) <ul><li>‘ There is now … considerable public concern about the availability of extreme pornographic material featuring adults’ on the Internet. </li></ul><ul><li>Mostly occasioned by the murder of Jane Longhurst by Graham Coutts in 2003. </li></ul>
  3. 3. Consultation (cont.) <ul><li>‘There is considerable variation in the approaches and law regarding publication of adult material within the international community …. Given this wide disparity in the law regarding publication, the chances in the short term of achieving an effective international agreement covering publication of extreme pornographic material are limited’. </li></ul>
  4. 4. ‘ A New Offence of Simple Possession’ <ul><li>‘ The nature of the Internet requires us to take a different approach if our controls on this kind of material are not to be undermined’. </li></ul><ul><li>This approach consists in creating a ‘new offence of simple possession of extreme pornographic material’ which ‘will apply to the possession of this material in whatever form it is held’. </li></ul><ul><li>‘ The proposal will mirror the arrangements already in place in respect of indecent photographs and pseudo-photographs of children, possession of which is already an offence’. </li></ul>
  5. 5. Moral Entrepreneurship <ul><li>‘ It is not possible in a public document like this to give a great deal of graphic detail of the material in question’. However, it’s described variously as: </li></ul><ul><li>Abhorrent . </li></ul><ul><li>Degrading . </li></ul><ul><li>Repugnant . </li></ul><ul><li>Aberrant. </li></ul>
  6. 6. ‘ Effects’: Evidence <ul><li>It is ‘difficult to get a clear picture and understanding of the possible harmful effects of pornography’. </li></ul><ul><li>‘We are unable, at present, to draw any definite conclusions based on research as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant behaviour’. </li></ul>
  7. 7. ‘ Effects’: Moral Protection <ul><li>However, ‘we consider that it is possible that such material may encourage or reinforce interest in violent and aberrant sexual activity to the detriment of society as a whole’. </li></ul><ul><li>‘ Although we recognise that accessing such material does not necessarily cause criminal activity, we consider the moral and public protection case against allowing this kind of material sufficiently strong’ to merit criminalising it. </li></ul>
  8. 8. Sending a Message <ul><li>‘The underlying premise of this document is that this material should have no place in our society. The fact that it is widely accessible over the Internet does not legitimise it’. </li></ul><ul><li>‘We believe that a possession offence will send a clear message about this material’. </li></ul>
  9. 9. ‘ Extreme Pornographic Material’ <ul><li>‘Material which is violent and abusive’. </li></ul><ul><li>‘Sexual material containing violence, cruelty or degradation’. </li></ul><ul><li>Material which may feature ‘activities which are illegal in themselves’. </li></ul>
  10. 10. ‘ Notional Consent’ <ul><li>The consultation document claims that these activities ‘may often cause serious physical and other harm to those involved in making it’. </li></ul><ul><li>It also suggests that participants in such material may have been the victims of violent crime ‘whether or not they notionally or genuinely consent to taking part’. ( Vide the Spanner case). </li></ul>
  11. 11. ‘ Realistic Depictions’ <ul><li>The pornography with which the consultation document is concerned contains ‘actual scenes or realistic depictions of: </li></ul><ul><li>intercourse or oral sex with an animal; </li></ul><ul><li>sexual interference with a human corpse; </li></ul><ul><li>serious violence in a sexual context; </li></ul><ul><li>serious sexual violence’. </li></ul>
  12. 12. Appearance and Reality <ul><li>‘Serious violence’ will involve or appear to involve serious bodily harm in a context or setting which is sexual and ‘serious sexual violence’ will involve or appear to involve serious bodily harm where the violence is sexual. </li></ul>
  13. 13. ‘ An Insuperable Hurdle’ <ul><li>‘By realistic depictions we intend to capture those scenes which appear to be real and are convincing, but which may be acted. This follows the precedent of the child pornography legislation and is in part necessary to avoid the need to prove the activity actually took place, as this would be an insuperable hurdle for the prosecution, particularly if the material comes from abroad’. </li></ul>
  14. 14. Objections <ul><li>‘ Realistic depictions’ criminalises much BDSM material, as well as films featuring unsimulated sex but simulated violence. </li></ul><ul><li>The measure increases the opportunities for the police to search people’s premises. </li></ul><ul><li>It will do nothing to stop the production of material in which people are genuinely harmed against their will. </li></ul>
  15. 15. Spanner <ul><li>The Spanner Trust complained that the exercise contravened the Cabinet Office Code of Practice on several grounds, including: </li></ul><ul><li>‘ The consultation does not properly seek to gather evidence, nor does it invite challenge to its premises’. </li></ul><ul><li>‘ The questions are leading, and alternatives to regulation are not considered’. </li></ul>
  16. 16. Responses to the Consultation <ul><li>397 responses to the Consultation. </li></ul><ul><li>223 individuals disagreed with the proposed measures, 90 agreed. </li></ul><ul><li>18 organisations disagreed, 53 agreed. The latter were mainly religious groups, those concerned with violence towards women and children, and the police. </li></ul><ul><li>Home Office Minister Vernon Coaker,Radio 4, 30 August 2006 : ‘Most people that, er, responded to the consultation, and organisations that responded to the consultation, found it unacceptable, found that it was a standard of the government needing to do something’. </li></ul>
  17. 17. The Home Office Response <ul><li>Vernon Coaker: </li></ul><ul><li>‘ The vast majority of people find these forms of violent and extreme  pornography deeply abhorrent. This sort of material is not just offensive, it contains images of sexual acts and sexual violence that are already illegal to  publish or distribute in the UK. Such material has no place in our society but  the advent of the internet has meant that this material is more easily  available and means existing controls are being by-passed - we must  move to tackle this. By banning the possession of such material the Government is sending out a  strong message - that it is totally unacceptable and those who access it will  be held to account’. (Home Office press release, 30 August 2006). </li></ul>
  18. 18. The Proposed Offences <ul><li>‘The first threshold for the offence itself would be an objective test for the jury that the material was pornographic. By this we mean material that has been solely or primarily produced for the purpose of sexual arousal. It would be for the prosecution to prove that the material was pornographic’. </li></ul>
  19. 19. Proposed Offences (cont.) <ul><li>‘The second threshold would be an objective test for the jury in respect of actual scenes or depictions which appear to be real acts … By actual scenes or depictions which appear to be real acts, we intend to catch material which either is genuinely violent or conveys a realistic impression of fear, violence and harm’. </li></ul>
  20. 20. Proposed Offences (cont.) <ul><li>The material covered by the offence would be bestiality, necrophilia and </li></ul><ul><li>Images of acts that appear to be life threatening or are likely to result in serious, disabling injury. </li></ul>
  21. 21. Proposed Penalties <ul><li>A maximum of three years imprisonment for possession of material depicting serious sexual violence. </li></ul><ul><li>The maximum penalty for offences of publication, distribution and possession for gain committed under the Obscene Publications Acts would be raised to five years’ imprisonment. </li></ul>
  22. 22. Criminal Justice and Immigration Bill <ul><li>Announced 26 June, 2007. </li></ul><ul><li>54 th CJB since ‘New Labour’ came to power. </li></ul><ul><li>Adds 19 new offences to the statute book. </li></ul><ul><li>The probation officers union calculates this could add 3000 people to the prison population (currently at a record 81000). </li></ul>
  23. 23. The Offences <ul><li>The Bill defines an ‘extreme pornographic image’ as one which both ‘appears to have been produced solely or principally for the purposes of sexual arousal’ and ‘which is an image of any of the following – </li></ul><ul><li>(a) an act which threatens or appears to threaten a person’s life, </li></ul><ul><li>(b) an act which results in or appears to result in (or be likely to result in) serious injury to a person’s anus, breast or genitals, </li></ul><ul><li>(c) an act which involves or appears to involve sexual interference with a human corpse, </li></ul><ul><li>(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal, </li></ul><ul><li>where (in each case) any such act, person or animal depicted in the image is or appears to be real’. </li></ul>
  24. 24. ‘ Proof’ at Last <ul><li>In September 2007 (two years after the original consultation), the Ministry of Justice produces a Rapid Evidence Assessment entitled The Evidence of Harm to Adults Relating to Exposure to Extreme Pornographic Material. </li></ul>
  25. 25. The Authors of the ‘Proof’ <ul><li>Liz Kelly. Roddick Chair of Violence Against Women and Director of the Child and Woman Abuse Studies Unit at London Metropolitan University. Chair of the Sexual Violence Sub-Group of the Women’s National Commission (the Government’s independent advisory body on women’s issues). </li></ul><ul><li>Catherine Itzin, editor of Pornography: Women, Violence and Civil Liberties (Oxford 1993), which firmly endorses the Catherine MacKinnon/Andrea Dworkin line on pornography. </li></ul>
  26. 26. The Nature of the ‘Proof’ <ul><li>The REA contains no original research. </li></ul><ul><li>It entirely accepts the government’s own definitions of ‘extreme pornographic material’. </li></ul><ul><li>The research which it assesses represents only one possible approach to the study of pornography and its users. </li></ul><ul><li>It is the product of, and intended for, entirely closed minds. </li></ul>
  27. 27. The ‘Proof’ Does Its Job <ul><li>Maria Eagle, Parliamentary Under-Secretary of State for Justice, in committee, 22 November 2007, argued that the REA supported: </li></ul><ul><li>‘ The existence of some harmful effects from extreme pornography on some who access it’, including ‘increased risk of developing pro-rape attitudes, beliefs and behaviours and committing sexual offences...Although this was also true of some pornography which did not meet the extreme pornography threshold’. </li></ul>
  28. 28. The ‘Proof’ Does Its Job <ul><li>‘ Obviously, there are grey areas. It is always difficult, as I think everybody accepts, to be precise about where lines are drawn, but the REA “showed that the effects of extreme pornography were more serious...Men who are predisposed to aggression, or have a history of sexual and other aggression, were more susceptible to the influence of extreme pornographic material”. That is the harm that the clause seeks to tackle’ (Maria Eagle). </li></ul>
  29. 29. Joint Committee on Human Rights <ul><li>Considered the Bill in regard to Article 8 (right to private life) and 10 (right freely to impart and receive information) of the ECHR. </li></ul><ul><li>Criticised ‘the vagueness of the definition of the offence’: ‘an assessment of whether an image is or is not “extreme” is inherently subjective and may not, in every case, be, as the Government suggests, “recognisable” or “easily recognisable”. This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession’. </li></ul>
  30. 30. In the Lords <ul><li>On 22 January 2008, the government introduced a series of amendments in the Lords. </li></ul><ul><li>A pornographic image is now defined as one which ‘is of such a nature that it must reasonably be assumed to have been produced solely for or principally for the purposes of sexual arousal’. </li></ul><ul><li>An extreme image is defined as one which ‘is grossly offensive, disgusting or otherwise of an obscene character’ and as one which ‘portrays, in an explicit and realistic way, any of the following – </li></ul>
  31. 31. In the Lords (cont.) <ul><li>an act which threatens a person’s life, </li></ul><ul><li>an act which results in or is likely to result in serious injury to a person’s anus, breasts or genitals, </li></ul><ul><li>an act which involves sexual interference with a human corpse, </li></ul><ul><li>a person performing an act of intercourse or oral sex with an animal (whether dead or alive), </li></ul><ul><li>and a reasonable person looking at the image would think that any such person or animal was real’. </li></ul>
  32. 32. Thought Crime <ul><li>Baroness Falkner warned about introducing legislation which includes ‘some element of thought crime’ and accused the government of introducing ‘a much more subjective standard’. </li></ul>
  33. 33. Policing the Boundaries of Taste <ul><li>‘ The problem here lies in defining what is offensive and disgusting, which is naturally subjective. It is dangerous to attempt to comment in criminal law on where the boundaries of taste lie. As I understand it, pornography covers a wide range of acts of different levels of what might be described as extreme acts of a sexual nature. For legislation to attempt to draw subjective parameters is, at worst, unworkable and may criminalise people who would not otherwise have seen those acts as disgusting, particularly if they had filmed themselves committing the acts as consenting adults and were viewing them themselves’ (Baroness Falkner). </li></ul>
  34. 34. The Government Response <ul><li>Lord Hunt: </li></ul><ul><li>‘ It is not, and never has been, our intention to capture material that would not already be subject to prosecution under the Obscene Publications Act 1959 if it were published in this country’. </li></ul><ul><li>‘ A recent rapid evidence assessment study, published jointly by the Ministry of Justice and the Department of Health, indicates that such material may have harmful effects on some people’. </li></ul>
  35. 35. ‘ An Insurmountable Burden’ <ul><li>The ‘explicit and realistic’ definition is necessary, otherwise it ‘would make it necessary for the prosecution to prove that the events being depicted had actually taken place—that a person’s life had actually been taken or that a life-threatening injury had been inflicted; in short, that a very serious crime had taken place. That would place an insurmountable burden on the prosecution, particularly when much material is produced abroad’ (Lord Hunt). (V ide slide 13). </li></ul>
  36. 36. ‘ Common Sense’ <ul><li>‘It seems plain common sense that this awful stuff must have a negative, adverse impact on some of the people viewing it’ (Lord Hunt). </li></ul>
  37. 37. Back to the Start <ul><li>Press release, 27 June 2007, ‘Salter Welcomes Criminal Justice Bill’: in the wake of the murder of Jane Longhurst, ‘a national petition was launched calling for extreme pornographic images featuring rape, torture and necrophilia to be treated under the law the same way as child pornography’. </li></ul><ul><li>But what the petition actually sought to ban was ‘internet sites promoting violence against women in the name of sexual gratification’. </li></ul>