“Myths arise from people's need to
make sense of acts that are senseless, violent or disturbing. They
attempt to explain events, like rape and abuse, in ways that fit with our
preconceived ideas about the world - they arise from and reinforce our
prejudices and stereotypes”.
(Trigger Warning – This article contains
frank discussion of simulated adult consensual rape fantasy pornography)
As a criminal defence lawyer I
believe that the rates for reporting, attrition and conviction in cases of rape bring shame on our
criminal justice system.
As an activist I have attempted to
redress this by campaigning to increase rape-crisis centre funding; and
supporting the London Slutwalk (the anti
victim-blaming marches) by acting as a legal observer.
Hence I appreciate that any
discussion of rape issues will inevitably raise powerful emotions.
As a specialist in obscenity law,
having represented Micheal Peacock in his #ObscenityTrial under the Obscene Publications Act
1959 and Simon Walsh in his #PornTrial under the “extreme pornography” legislation in the Criminal Justiceand
Immigration Act 2008 (both of which featured images of consensual adult
sexual activity) I acknowledge that certain sexual fantasies or depictions may
feel disgusting to some readers and viewers, regardless that they are
consensual.
Evidence of harm
So it is with mixed emotions that I
embark on a critique of recent proposals by a coalition including Rape Crisis South London, End Violence Against
Women and Professors Clare McGlynn and Erika Rackley of The University of Durham to extend criminal
liability for the possession of “staged” or “simulated”
consensual adult rape-fantasies based on the assertion that:
“Sexual violence as a
form of entertainment causes a huge cultural harm to our society”.
This argument acknowledges that there
is no evidence of a causal link between viewing consensual adult rape-fantasies
and the commission of non-consensual sexual offences such as rape. The campaign briefing from Rape
Crisis South London in support of a change in the law expressly states that:
“Direct links between
‘regular’ pornography and sexual violence have been scientifically difficult to
quantify”.
The Rackley and McGlynn legal
briefing also states:
“This is not to suggest
that the viewer of pornographic images of rape will necessarily go on to rape
or commit other acts of sexual violence”.
“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”.
It is interesting to note that despite acknowledging
that no link can be proven between consensual adult fantasies and any evidence
of harm, all three of these statements suggest an assumption of harm despite
the absence of evidence. In contrast The Ministry of Justice criminal policy unit’s
statement is clear and unequivocal:
"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”.
Cultural Harm
Thus, in the absence of any provable
causal link, the prohibitionist argument falls back on the perception that
consensual adult rape-fantasies cause “cultural harm”. The notion of cultural
harm seems predicated on the concept of “rape culture” which links “rape and
sexual violence to the culture of a society in which prevalent attitudes and
practice normalise, excuse, tolerate or even condone rape”.
On first inspection the notion of
cultural harm is absolutely impossible to refute, as it is a nebulous concept,
conveniently avoiding definition. It acknowledges a possibility, rather than
asserting a certainty. It is a mere “may” instead of an absolute “does”. For example there is no
evidence whatsoever to suggest that the simulated violence in computer games
“does” cause actual violence. However, it “may”. Hence my concern is: should a
mere “may” be sufficient to justify criminalising possession of material that
some people find questionable?
How about applying the “cultural
harm” argument to other scenarios where actual (rather than simulated)
consensual violence is legal for both the participants and viewer? The
“properly regulated” sport of boxing has been a legally recognised form of
“violent” entertainment since the case of R v Coney in 1882 (which was
relied upon by the House of Lords in deciding the extent of consent to assault
in a sexual context in the case of R v Brown (1993) or the “Spanner” Case) Yet there is
absolutely no persuasive evidence to suggest that viewing boxing “does” cause
viewers to commit violent offences. However, it “may” cause cultural harm to
“normalise, excuse, tolerate or even condone” violence.
By
that rationale, should the law criminalise the possession of
depictions of consensual boxing because it “may” contribute to a culture in which violence is acceptable? This also questions the effectiveness of the rationale of criminalising the end consumer, rather than the producers of the material. Furthermore, would the position be more pronounced if watching boxing sexually aroused the viewer?
depictions of consensual boxing because it “may” contribute to a culture in which violence is acceptable? This also questions the effectiveness of the rationale of criminalising the end consumer, rather than the producers of the material. Furthermore, would the position be more pronounced if watching boxing sexually aroused the viewer?
Consent
“If he agrees by choice, and has the
freedom and capacity to make that choice”.
“Whether
a complainant had the capacity (i.e. the age and understanding) to make a
choice about whether or not to take part in the sexual activity at the time in
question.
Whether
he or she was in a position to make that choice freely, and was not constrained
in any way. Assuming that the complainant had both the freedom and capacity to
consent, the crucial question is whether the complainant agrees to the activity
by choice”.
Furthermore, it is an
established principle that those who are not capable of giving consent at law
include: children under the age of sixteen, animals, cadavers and persons with
a mental disorder impeding choice.
Hence the criminal
offence of rape is absolutely about the absence of consent. As previously
discussed, consensual adult rape-fantasies are absolutely about
the consent of the participants. Therefore any images of an actual rape would
be prima facie evidence of an offence under Section 1 of the Sexual Offences
Act.
Finally,
whilst the age of consent is sixteen under Section 1 of Sexual Offences
(Amendment)Act 2000; the age for legally performing in pornography was
extended to eighteen by virtue of Section 45 of the Sexual Offences
Act 2003. This disjunct between the age of consent and what I refer to as “the
age of representation” becomes important when considering conflation arguments
regarding the protection of children; and any link between consensual adult
fantasy pornography and indecent images of children, which are by definition
non-consensual.
“The two main offence
provisions in this area are section 1 of the Protection of Children Act 1978
(PCA 1978) and section 160 of the Criminal Justice Act 1988 (CJA 1988)”
Thus the law penalises the possession, making,
distribution, showing and advertisement of indecent images of children who are
under the age of eighteen. It is essential to understand the absence of consent
in these offences when attempting to identify arguments that conflate
consensual activity with non-consensual activity.
Conflation
Arguments
Many of the arguments for proposing the
criminalisation of possession of consensual adult rape-fantasies have
cited the existence of already criminalised indecent images of children as a
justification for the former. Hence non-consensual activity is cited to justify
the criminalisation of currently legal consensual adult sexual activity. To
return to the boxing analogy, that is the equivalent of calling to criminalise
“properly regulated” legal boxing on the basis that illegal street-fighting is
morally reprehensible.
In this current cycle, the
prohibitionists and certain media commentators have cited the murder
convictions of Mark Bridger and Stuart Hazell, both of whom were in possession
of reprehensible and illegal indecent images of children, in support of the
proposition for criminalising the possession of consensual adult
rape-fantasies.
For example, a Guardian editorial appeared on the Comment
is Free website on the 30th May 2013 stating that all “internet
pornography… should be banned.” The article was amended the following day to
clarify “that the intention of the editorial was to propose restrictions on
violent and abusive pornography, as opposed to pornography in general”. Despite
that clarification, the readers'
editor posted a further clarification of “the Guardian's view on pornography” ten days later.
Nonetheless, a comparison of the
original text and the amended version can be found here. The original text
calls for the banning of all internet pornography with the unsupported
assertion that it is “usually abusive and often violent” then, by citing Mark
Bridger’s conviction in the next line, seems to conflate consensual and
non-consensual images alike.
The full text of the first paragraph
reads as follows:
“Internet pornography
is usually abusive and often violent. Mark Bridger, convicted yesterday of the
murder of April Jones, had compiled a store of it. Pornography is easily and
freely accessible, and at most requires only a credit card. The link between
such material and violence, most commonly against women and children, is not
quite beyond dispute - occasional studies claim there is, as one headline had
it, a sunny side to smut. But there is strong evidence that at the very least
it is addictive, can normalise violence, and at the same time diminishes
sympathy for its victims. It is a kind of incitement to hate. It should be
banned. But that is easier to say than to do.”
The same conflation of consensual with non-consensual
sexual images can be seen in the Rape Crisis South London letter to the Prime Minister, which states:
“The recent murder convictions of Mark
Bridger and Stuart Hazell, involving violent and misogynistic pornography, have
been both shocking and distressing.”
Bridger and Hazell’s actions were without question
shocking and distressing. That they were in possession of indecent images of
children amounts to separate criminal offences. Yet citing evidence of
non-consensual images in order to justify the criminalisation of consensual adult
sexual images is a classic logical fallacy typical of the “moral panic”
argument, as Laurie Penny argues in the New Statesman:
“The worst
thing about this debate is that it turns a real-world, complex problem into a
simple moral choice”.
Assumption and Exclusion
The prohibitionist arguments are also
based on a number of assumptions and exceptions that, unfortunately, exclude
certain voices from the debate.
“The existence and use
of extreme pornography contributes to the cultural context within which society
fails to take sexual violence against women seriously”.
In doing so, this excludes the
experiences of male and transsexual rape survivors. As the CPS’ rape myths state this arguably “re-traumatises
and stigmatises male survivors”. Hence the “cultural harm” argument is weakened
by the prohibitionists’ own cultural assumptions about victimhood in society.
“We recognise that both
men and women can be victims. Although the majority of victims are women, and
taking action against rape is included as part of the CPS Violence Against
Women Strategy”
Likewise this exclusion also assumes
that all consensual adult rape-fantasies feature female “victims,” which also
ignores the prevalence of male-on-male or “gay” rape porn fantasies.
Fantasy
Likewise the word fantasy is also excluded from the
debate. As Louise Mensch notes in opposition to the prohibitionist
arguments:
“Rape fantasy is an incredibly common female fantasy. It is VITAL that we distinguish
this fantasy from rape apology, rape excuse, or anything to do with real rape”.
Likewise, in discussing fantasies of Consensual Non
Consent (CNC), rape survivor and campaigner against the extreme pornography
laws, Emily claims:
“We can’t censor our
fantasies – and should have access to visual and written depictions of those
fantasies, where those depictions involve consenting adults”.
“I do not want to live in
a world where the government and a select few conservative feminists get to
decide what we may and may not masturbate to, and use the bodies of murdered
women or children as emotional pawns in that debate.”
However, were the criminalisation of
the possession of such fantasy material successful, defendants would be at risk
of a three year custodial sentence and inclusion on the Sex Offenders’ Register
as well as the potential impact of losing their jobs and contact with their
families. I have to question whether criminalising the end consumer of
consensual adult rape-fantasies, rather than regulating the manufacture,
production and publication of such material is the most effective method of
raising awareness of rape culture and the offence of rape.
The law as an instrument of prohibition
It is my suggestion
that the criminal law is not the appropriate mechanism for addressing concerns
about consensual adult rape-fantasies. The law that the prohibitionists seek to extend is section 63 of the Criminal
Justice and Immigration Act 2008. The CPS’ Guidance states that in
determining what material constitutes extreme pornography a threefold test must
be applied, namely:
1. That the image is pornographic; and
2. That the image is extreme namely grossly
offensive, disgusting, or otherwise of an obscene character; and
3. That the image portrays in an explicit
and realistic way any of the extreme acts set out in
section 63(7).
It is the word “realistic” in the third clause that is
most significant. Can staged or simulated consensual adult rape-fantasies ever
be realistic if they are simulated? Pretend? Play-acting? Realism was the key
issue in two previous extreme pornography trials: the Mold “Tiger Porn” case and the Stafford
“death fetish” trial (both of whom
were defendants I represented).
In the Mold case the defendant was
indicted with possessing a video of a woman having sex with a tiger. Except it
wasn’t realistic because the “tiger” in question was actually a human male in a
tiger skin costume who, according to The Telegraph, “turned to the camera
and roared: ‘That beats the Frosties advert!’.” Hence a man was prosecuted for
being in possession of a joke. Except it wasn’t funny for the defendant who,
despite being found not guilty of the offence, had his name become a
humiliating joke in the press and globally on the internet.
Likewise, in the Stafford case, which was a test-case
for the extreme pornography legislation, the defendant was acquitted by the
jury despite the prosecutor’s assertions in Court that the: “obviously faked death
images were in fact realistic depictions of sexual violence; despite the
prosecution having to accept, before the trial even began, that the images were
clearly staged”. Staged. Simulated. Hence the criminal justice system is
familiar with simulated images being confused with actual images of violence. Yet expert
witness for the defence Prof Feona Attwood of Sheffield Hallam University
described the images in Court as being: “less realistic than the average
British soap opera.”
Secondly, as in Simon Walsh’s #PornTrial, this law also has the ability to
criminalise the depiction of acts that are legal to perform, such as fisting.
Hence it is legal to perform acts of vaginal and anal fisting in real life, yet
the possession of images of these acts could be subject to prosecution. This is
analogous with consensual adult rape-fantasies, since to “pretend,”
“simulate” or “role-play” rape is not illegal, yet the prohibitionist argument
seeks to criminalise the possession of representations of these sexual
fantasies. In fact, it could be argued that criminalising the representation of
legal acts, thereby denying individuals the right to express their legal sexual
fantasies, amounts to thought crime.
Thirdly, it is my suggestion that in theory the
concept of “cultural harm” is incompatible with the way in which the criminal
law constructs notions of harm caused to the victims of sexual offences. When
scrutinised as a motivation to criminalise the possession of consensual adult
rape-fantasies the cultural harm argument is incompatible with the legal
mechanisms for recognising harm.
The CPS’ Full Code Test has two stages: firstly the “evidential
stage”; then the “public interest” stage. With regards to the evidential stage, prosecutors
should consider whether the evidence is admissible, reliable and credible. It
is my contention that the notion of cultural harm is too abstract to be
admissible, reliable or credible as evidence to justify prohibition; given the
previously discussed absence of a proven evidential link between consensual
adult rape-fantasies and the commission of actual sexual offences.
The next stage of the
Full Code Test, the public interest stage, specifically references harm, by
asking “What are the
circumstances of and the harm caused to the victim?” With regard to sexual
offences the notion of harm caused to the “victim” is constructed at law to
mean actual, identifiable individuals or persons. Thus not harm caused to
society, or “cultural harm”.
Hence I suggest that the
justification for criminalising the possession of consensual adult rape-fantasies, of a “cultural harm”
is fundamentally flawed, as it is incompatible with the way in which the
criminal law recognises that victims of sexual offences have to be identifiable
individuals.
Conclusion
Whilst I believe that the “rape culture” thesis is an
extremely compelling cultural argument
when deployed by, for example, activists in support of rape crisis centre
funding or dispelling victim-blaming myths. I do not think that the “cultural
harm” assertion is sufficiently strong as a legal argument to justify criminalisation of possession of consensual adult
rape-fantasies. Furthermore, as I have argued, I cannot see that proposed
criminalisation of the possession of consensual adult rape-fantasies on the
basis of perceived harm would be effective in combating the actual harm caused
by non-consensual sexual violence in criminal offences such as rape.
Hence it is with deepest regret that
I express my belief that in deploying the cultural harm argument the proponents
of this proposal have made an assumption about the nature, role and function of
the criminal law and in doing so have perpetuated a rape myth. Nevertheless I
hope to continue to support campaigns to improve rape crisis funding and
repudiate the culture of victim-blaming. However, given these circumstances, I
remain unconvinced that in attempting to criminalise the possession of
consensual adult material as a means of reducing the instances of
non-consensual sexual violence, the criminal law is the correct instrument to
achieve these laudable aims.
I agree with The Human Rights
organisation Liberty, who raised this concern in their Second Reading Briefing on the extreme
pornography legislation:
“We fear that the
proposed overbroad offence would criminalise those who do no harm to others and
detract attention from those who cause genuine hurt”.
COMMENTS – I
have intentionally disabled comments from this blog, on the basis that I am
preparing to appear on BBC Radio 4’s Moral Maze at 8pm tonight and therefore
will not have sufficient time to moderate comments, if necessary.
However, please
feel free to tweet at me as @ObscenityLawyer
