On March 14, 2003, in Reading, UK, a special needs teacher called Jane Longhurst was killed and soon after, her body was found being moved about surreptitiously by one Graham Coutts, who was accused of her murder, tried, and convicted in 2005. An important piece of evidence placed before the Court was that Graham Coutts was a fan of so-called "extreme pornography," and once this came out, there was much tabloid bladder-flailing about how these sorts of sites must have influenced him to commit this crime. Especially since Coutts killed her by strangulation and the sites that he was shown to have frequented included "Necrobabes," "Hanging bitches," and "DeathByAsphyxia." Well... I doubt you'll need me to tell you that, in the gutter press's minds, this evidently proved that he intended it all beyond a shadow of a doubt, and what's more, that the porn made him do it.

So with Coutts in the slammer, the tabloid hacks then turned to the issue of his taste in filth, and how it led him to kidnap and strangle to death an innocent woman. After this, a fair amount of ranting from radical feminists, and a petition by Jane Longhurst's mother, the Labour Government announced plans in late 2005 to criminalise so-called "extreme pornography."

Unfortunately, they came up against a wee bit of a problem.

The general public weren't convinced.

Despite a thoroughly biased consultation paper, which was awash with loaded questions among other faults, they still failed to show that the public wanted this particular ban. Of the respondents to the consultation, the only ones in favour were police forces, probably because it would be an easily investigated and easily cleared up crime which wouldn't involve putting oneself into physical danger, children's charities for obvious reasons (though more on the logical disconnect of this bit later), and feminist groups, because it would allow them an inch of influence over public policy so they could push for the mile-long list of some of their more radical ideas. Most ordinary folks, though, even the ones who had a moral mislike for pornography of any sort, generally opposed the law on privacy grounds, or that it seemed a knee-jerk reaction to a single tragedy. But this didn't deter the Government, who went ahead with it anyhow.

By late 2006, though, it appeared that Graham Coutts's conviction was to be overturned on appeal due to the inadmissibility of the porn found on his computer as evidence of his intent to commit such an act; its probative value was too low for so much weight to be placed upon it, and thus, a retrial was ordered. This also didn't stop the Government, and their bedmates in the red-top press, who went into out-and-out witch-hunt mode. Even when Coutts was convicted again on the retrial in March 2007, when it emerged that it wasn't the porn that made him do it, but that as young as 15 years of age he reported having sexual fantasies about strangling women, the press still dredged it up and the relentless march of the killjoys trudged on.

So let's fast forward to the present day. The "extreme pornography" clause has been noticeably absent from the press, and also has been sequestered in Section 63 of the upcoming Criminal Justice and Immigration Act, which is due to come into force in January 2009. I have to say that although the Lords have given the law quite a drubbing both in its First and Second Readings, and have proposed amendments to the extreme porn clause that would render it less abusive than it is, the Government repeatedly rejected these amendments on quite flimsy grounds. The Bill became law on May 9, 2008. Which means it will probably come into force in early 2009. So in the meantime, I implore all citizens of E2 to download as much filth as possible while they still can.

I - The Proposed Law

Section 63 of the Act stipulates the following:

63. Possession of extreme pornographic images

(1) It is an offence for a person to be in possession of an extreme pornographic image.

(2) An “extreme pornographic image” is an image which is both —

(a) pornographic, and

(b) an extreme image.

(3) An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

(4) Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to —

(a) the image itself, and

(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.

(5) So, for example, where —

(a) an image forms an integral part of a narrative constituted by a series of images, and

(b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,

the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.

(6) An “extreme image” is an image which —

(a) falls within subsection (7), and

(b) is grossly offensive, disgusting or otherwise of an obscene character.

(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any 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),

and a reasonable person looking at the image would think that any such person or animal was real.

(8) In this section “image” means —

(a) a moving or still image (produced by any means); or

(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).

(9) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).

(10) Proceedings for an offence under this section may not be instituted —

(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or

(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Quite a mouthful, isn't it?

It is one of the more convoluted legislative provisions I've seen (although Schedule I of the Trade Union and Labour Relations (Consolidation) Act 1992, which deals with trade union recognition procedures, is hard to beat.) So I'll try and distill it for you, line by line, and explain what is so horrendous about this law. Let's seize on their definition of "extreme" to start with. Subsection (6)(b) is particularly questionable, since it pretty much hands over the question of whether the content falls within this banhammer to the question of the jury. Nowhere in the Act is the idea of what constituted disgustingness or offensiveness enshrined - and previous legislation, such as the Obscene Publications Act 1959, doesn't help either as the Government has specifically tried to break with the "liable to deprave or corrupt" test under the OPA, because (probably) it's not easy enough to secure prosecutions under that law for their liking. The potential for abuse of this provision is thus pretty widespread; a prosecutor may deliberately dwell on the visceral content of the images in order to try and spread FUD amongst the jury in borderline cases, and I cannot envisage how the defence could rebut this. Offensiveness and disgustingness are, after all, subjective issues; a jury full of blue-rinsed curtain twitchers and the like would be far more willing to convict in borderline cases than, say, you or I (assuming, for one moment, you are not of the aforementioned corpus of censorious busybodies. If you are, you may be more interested in this.)

In addition, there are a set list of heads of extremity which pop up in subsection (7). Now while most of these are fairly clear-cut, may I draw your attention to (7)(a) and (b). This refers to "an act which results, or is likely to result, in serious injury to a person's anus, breasts, or genitals," or any act which may threaten a person's life. Once again, how likely is likely? And how serious is serious? I'm sure that this section could be spun to cover all forms of BDSM-related sexual activity, just about, not just breath play, bloodsports, and all the harder stuff. Rope bondage? There's the risk of burns. Anything involving whips? Well, I don't know how it'll pan out here, but in the Offences Against The Person Act, in the case of Moriarty v. Brooks it was held that the threshold for when "actual" bodily harm becomes "grievous" is when both the epidermis and dermis of the skin is broken. And since such was the provision used to persecute consenting BDSM practitioners, it's not inconceivable that they'll import the same sort of jurisprudence here. And since it doesn't even have to happen, just seem likely, anything involving just about anything could be covered. The use of cock rings can result in priapism and other unpleasantness if the ring is left on and forgotten about. Paddles can leave marks (this is a factor, following the Spanner cases). Having your yablokos stomped on by someone in spike heels? That's right out, that is. Even ordinary anal sex may be banned if no lubricant is involved due to the risk of fissures. So, as we have seen, the law as it is written is so vague; nobody can be certain as to what falls under its ambit. I think we can all agree that regardless of your moral viewpoint on this issue, this is bad law - and if you follow Lon L. Fuller, it's not even law in the first place, just arbitrary judgement!

And this is but the first of several faults with the law as it is drafted. As anyone who has ever engaged in any sort of unusual or kinky sex practice - or indeed any sort of vanilla sex, for that matter - can explain, informed consent is of immense importance. Yet this ban on "extreme pornography" - I use the quote marks because, as we have seen, it is a totally indistinct and artificial category - only makes a token appreciation of the issue of consent. Certainly not one which reflects the importance of consent. But then again, since the legal and jurisprudential lineage of this law is to be found in the Spanner trials and in radical feminism (Cases in point - Alice Schwarzer equates women participating in BDSM as akin to "collaboration", Catharine A. MacKinnon's endlessly repeated lies about how it's all a slippery slope leading to snuff films, etc.), and as such it can be safely said that since the law originates from Bizarro World, its drafting reflects that. A consent defence is provided in Section 64 of the law, but its ambit only extends to cover images made of oneself engaging in such an extreme act. Presumably this is only included to try and deflect criticism that otherwise, it would be unlawful to possess images of oneself engaging in a lawful act. Either that or to try and cynically buy off opposition from within the BDSM community - you know, the ones that Liz Longhurst, mother of Jane, when told that it would proscribe perfectly safe, sane, and consensual ways for people to get their rocks off, replied to with "hard luck." (Yet more evidence that nothing good ever comes from the politics of the grieving mother.) But even so, we still not only have the totally illogical position that it is now illegal to view an act that is legal to engage in if one did not engage in the act portrayed. And punishable with up to three years in prison and compulsory registration on the Sex Offenders' Register. Not an enviable prospect, especially if the words of one troll over on the Melon Farmers Forum are to be believed when he gloated that we were going to be "treated like peado's" {sic}. Which just sums up the tabloid, overemotional, moralising, knee-jerk character of the whole case in favour of this ban, but that's by the by.

You may be tempted to think that the fact that the Director of Public Prosecutions has to approve cases under this law is a safeguard. While at first it will undoubtedly result in police and prosecutors sticking to open and shut cases, one worry is that it'll eventually just become an exercise in rubber stamping. Especially when you consider that the main support for this ban comes from - surprise, surprise - the police. Meanwhile, while they're jockeying to persecute otherwise harmless folks who just like something a little unusual in the sack, yet more teenagers are stabbing each other in south London. I suspect that by going after the consumers of "extreme pornography" they don't have to expend the effort that putting drug pushers or serial robbers or gang members behind bars entails, and it still shows up favourably on their detection record. And since prosecutors depend on the police for their jobs to exist, we maybe ought to think about who really holds the whip hand here (and whether we can get them done under Spanner).

So, in all, what we have here is a totally unworkable, abusive, and spiteful law. But surely there may be at least something of value in its passing, somewhere?

II - Is it really necessary?

Well, not really.

You may recall that earlier I touched on the foundations of this law deriving from radical feminism and tabloid hysteria. Indeed, it was only because of a trial for murder in which the material aimed at by the law was touched upon was there an issue in the first place, and even then only due to the overweening vainglory of one Martin Salter, Labour MP for Reading West that this aspect of the Act was first introduced - indeed, him and some of his chums have expressed wishes, in Parliament, to see this ban extended to all "pornography." Once again, I use quotes because just as the term "extreme pornography" refers to a total fiction in its scope, so does his use of just plain old "pornography;" to him, it's anything he doesn't like.

The reasons given by the Government to justify this law are, to be frank, the standard roster of emotive guff and deliberate misleading of the public. Naturally, "think of the children!" is included in this roster, as is the usual clumsy attempt to link it in with child pornography by claiming that the material envisaged by the ban is of a similarly harmful nature. This is, of course, false on two counts. Firstly, this ban's scope is much fuzzier than the simple test of whether it involves minors or not. And secondly, since minors are legally unable to consent to sex, all pornography involving them is therefore evidence of rape. The material envisaged by the ban is, to be frank, consenting adults - that is, totally lawful.

Speaking of consent, proponents of the ban claim that for every consensual BDSM flick produced, there are a hundred, a thousand, a hundred thousand, or some other arbitrarily large number of black market pornos generated in which the participants are not consenting, or in which the participants are victims of people trafficking. This is a claim that appears to trace itself back to Catharine A. MacKinnon and an article she wrote for the Harvard Law Review in 1985. In it, she says:

"And as you think about the assumption of consent that follows women into pornography, look closely some time for the skinned knees, the bruises, the welts from the whippings, the scratches, the gashes. Many of them are not simulated. One relatively soft core pornography model said, "I knew the pose was right when it hurt." It certainly seems important to the audiences that the events in the pornography be real. For this reason, pornography becomes a motive for murder, as in "snuff" films in which someone is tortured to death to make a sex film. They exist."

The fact that for this massive assertion, she cited no corroboratable sources has evidently not rung any alarm bells with those who rely on it so heavily to push their agenda. The further fact that not once have there ever been any verifiable snuff films coming to light - that is, films in which one of the participants is killed off on camera for the gratification of paying viewers - also doesn't bother them. Indeed, despite some moaning and groaning from the porn studios over there, with Regulation 2257 in the US, which requires age and consent record-keeping - the "mickey mouse shot" - we can be certain that most, if not all, commercial pornography, be it on the internet, DVD, or even in magazines, is completely above board. Unless there has been total regulatory and/or enforcement failure in this regard, the fiction that a massive proportion of Internet pornography is all women being raped can safely remain a fiction. Even the IP wilderness that is YouPorn has its own set of 2257 requirements, and insists on such formalities being fulfilled before it'll post any video submitted.

This isn't to say that non-consensual BDSM acts could be committed to tape by rings of people traffickers. However, put yourself in the mind of a person who desires to exploit, sexually, women for profit. It would be thoroughly inept to sell video evidence of your crimes in this way. Which is why, logically, people traffickers who do profit sexually off the women they traffick usually lean towards prostitution for such purposes.

The most contentious - and possibly the most invoked - reason why proponents of the ban seek to criminalise possession of this "extreme pornography" is the Whitehousesque idea that it promotes undesirable attitudes and is likely to fuel sexual violence. This was the line that the Government tried to push in mid-2007 when they published a Rapid Evidence Assessment which attempted to push that line. The Assessment was hopelessly biased, as its authors, Catherine Itzin et al, were all noted anti-pornography feminists, they cherry-picked the studies most likely to support their pre- selected findings, and even then, they had to concede that the "extreme pornography" envisaged by the document - which was not, incidentally, the same as that envisaged by the law as currently enacted or as was drafted at the time; it was a narrower and more concretely definable section - was only likely to lead to an increassed propensity of the commission of sexual offences in those people already predisposed to sexual violence. Which is a masterpiece in stating the obvious, all things considered. And since people predisposed to sexual violence would, arguably, eventually commit such a crime with or without the influence of "extreme pornography," this renders the supposedly definitive findings of the REA more than a little moot. And besides, if it really did fuel sexual violence in the way that is so often claimed, why, then, is Denmark, which has the most relaxed porn laws in Europe, not overrun with rapists? Even at the trial of Graham Coutts, it was clearly shown that his viewing of "extreme pornography" - specifically strangulation material - was symptomatic of the fact that, at least since age 15, he had had fantasies about strangling women to death prior to any of his viewing of such materials. Why, then, should the "innocent" consumers of this material be lumped in with the small minority of individuals who consume it as a symptom of a deeper-seated predisposition to criminal sexual conduct?

It is, after all, merely a corollary to the argument about video games being "murder simulators" (Jack Thompson). Which is also highly questionable, but that's a different writeup.

Then, of course, there is the ongoing fantasy amongst proponents of the ban than this is what "the people" want, as evidenced by Vernon Coaker's (knowingly?) false claim on Radio Four's "Today" programme that "most right thinking people" believe that this sort of thing has no place in society. Similarly, Martin Salter MP, on October 8, 2007, dismissed any and all opposition to the ban - even that emanating from people who opposed the ban on freedom of expression and privacy grounds - as "perverts" and claimed that the public neither wants nor needs to see their "abnormal activities." This overt sneering at at least some of his own constituents can be found in Hansard for that day, if you're interested. Yet, despite a 50,000-signature petition drummed up by Liz Longhurst (probably by guilt tripping and appeals to emotion, let's be realistic), the majority of the responses to the Home Office's consultation paper on this material were against a ban - despite the consultation's ridiculously loaded questions. In fact, the only responses in favour of the ban were, as I mentioned in the introduction, feminist groups, childrens' charities, and chief police officers. Most of whom, in their responses, did not come across as convincing. A Detective Inspector with Avon & Somerset Police claimed that although research into this question was absent, "most psychologists agree that there is an element of overcoming internal inhibitors on the route to offending." Self-contradiction much? Others claimed that they saw "animal porn" on one in three of all computers seized by their force. Which, in the age when shock sites are surreptitiously linked to friends as pranks, and also in this era of 4chan, is meaningless as no distinction is made between what exactly was seen and in connection with what the seizures were for.

In fact, that last comment provides a rather disturbing subtext - the idea that if the police can't pin someone with one offence, they'll attempt to take advantage of this alarmingly overbroad law to try and gain revenge on them. Abuse of process to settle personal scores is not unprecedented...

III - So what's next?

Britain is arguably the most censorious country in Europe with regard to sex - although a strong case can be made for Poland, Portugal, or the other Catholic Majority countries. In fact, at times it rises to almost American levels of puritanism in that respect. I do not think it a coincidence, therefore, that we also have the highest rates of teenage pregnancy in Europe as well, due to our total unwillingness to be anything less than shifty and surreptitious about it. There was a time, long ago, when homosexual activity was a criminal offence, and another time, not so long ago, when talking about it was very much frowned upon. The result of this unwarranted state intrusion into the whats and whys and hows of people knocking boots was a culture of secrecy and curtain-twitching. To my mind, this ban on "extreme pornography" is an attempt to return to this Stepford Wives-like existence, in which opprobrium and scandal is quietly swept under the carpet, thus cutting off all possibility for people to aid each other in confronting such issues. Let's face it - some humans have always enjoyed watching each other on the job, and some humans have always enjoyed getting it on in strange ways. Neither can be definitively said to cause any real harm. Therefore, some humans may enjoy watching each other getting it on in strange ways. As long as they aren't doing it in public and frightening the horses, or engaging in sex acts with children (which, for all intents and purposes, is rape since children cannot give informed consent), what gives the Government - or any self-appointed moral arbiter - the right to dictate how we can and can't enjoy an intimate moment with the person(s) of our choosing? And by extension, what gives them the right to dictate what we can and can't get off on seeing?

In a certain work of fiction with which I'm sure you're all too familiar, this level of control was called "thought crime."

But alas, this doesn't seem to have bothered Salter, Straw, Brown, and Hodge, as their encore is criminalising the possession of drawings, computer generated or no, of people that appear to be under 18 in a sexual situation. Animé fans beware.

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