Should activities that are illegal to perform in real-life, such as the distribution of Class A drugs, be illegal to write about in a fictional context where no actual harm is caused?
“WHSmith's vile trade in online rape porn,” proclaimed the Mail on Sunday in an expose of the retailer’s website, which appears to have accidentally allowed adult content ebooks to have come up in searches for children’s material.
Whilst that website clearly signalled that the ebooks in question were fictional material of an adult nature, the content of those ebooks is alleged to include themes of rape, incest and bestiality.
Clearly this raises complex issues regarding the depiction of sexual fantasies, the written word and evidence of actual harm. Yet what is the precise law in this delicate area?
The Mail article states that “anyone breaching the Obscene Publications Act 1969 faces up to three years in prison”. This is inaccurate. The Obscene Publications Act 1959 might apply. The maximum sentence available under the OPA is now five years, as amended by section 71 of the Criminal Justice and Immigration Act 2008.
The article continues by stating that: “the Ministry of Justice said the retailers would be liable for prosecution if a judge deemed that the ebooks breached the Obscene Publications Act”. This is also inaccurate.
A prosecutor at the Crown Prosecution Service must apply two tests. Firstly they “must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction”.
Secondly, they “must go on to consider whether a prosecution is required in the public interest”. Only then might a defendant be charged with an offence under the OPA and therefore appear before a Judge.
Perhaps most surprisingly though, the article goes on to quote our National Crime Agency saying: “there is a need to think about criminalising the paedophilic written word”.
Yet such a law already exists. The Court of Appeal’s decision in the case of R v GS (2012) extends criminal liability under the OPA 1959 to written text, irrespective of whether they are clearly “fantasy and not a reference to real events”.
Hence written works of fantasy may attract criminal liability if they satisfy the CPS’ Guidelines on the OPA. The Guidelines state that: “the categories of material most commonly prosecuted [include] sexual act with an animal [and] realistic portrayals of rape”.
However, it is essential to note that it is unclear from the Mail’s article whether the writers have actually read any of the ebooks in question. I certainly have not.
Therefore any further analysis of who might be prosecuted under the OPA would be pure speculation.
Nonetheless, the Mail writers acknowledge that the “rape” fantasy ebooks “use a cynical caveat claiming that the sex is between consenting adults”. Hence, if the characters consent, how can it possibly be “rape” let alone a “realistic portrayal of rape”?
Likewise, the Mail article notes that the “incest” fantasy ebooks include sexual acts which “take place between non-blood relations,” so how could this amount to incest?
Furthermore, it is important to remember that actual rape, incest and bestiality are criminal offences under the Sexual Offences Act 2003.
Yet, confusingly, the CPS’ Guidelines on the OPA also include depictions of “bondage” and “fisting” which are activities that are legal to perform in real life.
Hence this raises complicated questions regarding the role of sexual fantasy and the
nature of harm. With written text fantasies, no individual is harmed. Certainly no words are harmed.
However, should activities that are illegal to perform in real-life, such as the distribution of Class A drugs, also be illegal to write about in a fictional context?
Likewise can we accept that sexual fantasy may explore the darker recesses of human nature, without resulting in any actual harm in real-life?
For example, whilst apparently searching for a link between “pornographic” material and actual sexual offending, The 2005 Home Office Consultation “On the possession of extreme pornographic material” stated:
“As to evidence of harm, conducting research in this area is complex. We do not yet have sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind of material on individuals generally”
By comparison The Ministry of Justice criminal policy unit recently stated with reference to simulated images of “rape” that:
"We have no evidence to show that the creation of staged rape images involves any harm to the participants or causes harm to society at large”.
Certainly the current cycle of concern about the nature and role of pornography in society could be argued to have the characteristics of a moral panic.
There is a definite similarity to the 1980’s moral panic about so-called “video-nasties” which also had salacious titles like “Cannibal Holocaust” and “I Spit On Your Grave”.
Both panics feature relatively new technologies that allow access to potentially adult themed content in the home (ebooks now and video then), the ramifications of which are not fully comprehended at the time.
Since these new technologies challenge the State’s ability to censor and control information, there is often a call in certain quarters to regulate, censor and prosecute.
We can see this trend in the current cycle with regards to David Cameron’s call to criminalise simulated “rape” pornography; and the Association of Television on Demand (ATVOD’s) attempt to control pornographic material on the internet.
So have we returned to books as a form of prohibited content? Under this regime of censorship where do Procopius of Caesarea’s Secret History, De Sade’s 120 Days of Sodom or Nabokov’s Lolita stand? Let alone actual abuse memoirs, the works of Shakespeare or the Bible.
Thus the question arises as to who guards our moral guardians as, by raising awareness of this issue by publishing the information in the article, might the Mail itself might be at risk of prosecution for publication under the OPA as well?