1. What are the Government proposing in relation to pornography containing simulated rape?
In a speech to the NSPCC on the 22nd July 2013 Prime Minister David Cameron stated that pornography that depicts simulated rape “normalise(s) sexual violence against women," despite the absence of any evidence proving such a causal link. By way of contrast The Ministry of Justice criminal policy unit had previously stated 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”.
Nonetheless, the Department for Culture Media and Sport then released a paper on the 30th July 2013 entitled Connectivity, Content and Consumers, which stated that: “we are also closing a loophole in the Criminal Justice and Immigration Act 2008, so that it is a criminal offence to possess extreme pornography that depicts rape”.
It is important to note that “rape-pornography” as defined by the Government would only apply to consensual, simulated, fantasy material. Therefore the possession of an image capturing an actual rape, for example CCTV footage, would not be illegal; but a “make believe” image created by and for consenting adults would be open to prosecution.
2. How do the Government's proposals fit in with the law on the possession of extreme pornography?
In brief: they don’t. According to the CPS’ Guidance the elements of the offence can be found here; and according to section 63 (7) of the CJIA 2008, such an image must be “explicit and realistic”. It would seem inconceivable for a consensually created adult image depicting a simulated act to be considered “realistic”. Thus the attempt to shoehorn the rape-porn amendment into s63 would seem to be defeated by the existing legislation’s “realistic” test.
The “realistic” test was applied in the test case trial of R v Webster, where the defendant was charged with possession of “fake-snuff” pornography; in which the same performer demonstrated a Lazarus-like resurrection ability to die seven times subject to different make-up, wardrobe and location changes. An expert witness for the defence called the images “less realistic than the average British soap-opera”. The jury found the defendant Not Guilty.
3. Could the criminalisation of such images be open to challenge and on what grounds?
There may be scope for both: judicial review and legislative challenges based on Articles 8, 9 and 10 of the European Convention on Human Rights (the rights to respect private life; freedom of thought, conscience and belief; and freedom of expression); as well as challenging the vagueness of the law.
Please watch this space for further updates.
4. What does this development tell us about the Government's approach to pornography?
Like the police; prosecutors; the judiciary; and even defence solicitors, it would seem that the Government do not understand either pornography or the global nature of the Internet. It would appear that the Government have attempted to use rape-porn and internet filtering as a smokescreen to distract voters from more pressing issues like: poverty, austerity, immigration, privacy and surveillance.
The fact that Claire Perry and others have suggested Internet filtering as a solution to the availability of pornography, along with “eating disorder” websites and other “esoteric material”; all under the aegis of child protection, rather than education, discussion and parental responsibility; suggests that the Government saw this as a quick fix measure. The growing opposition to these measures suggests that these propositions will not be as easy to pass as the Government may have anticipated.
5. What are your predictions for the future?
The Prime Minster has already suggested that not only will pornography be filtered, but so will “self-harm” material; which is both a dangerous conflation and an indication of the prohibitionist tendency within Government. Furthermore, I also anticipate a deliberate crack down on text based fantasy material in line with the decision in the case of R v GS ; prohibiting consenting adults from discussing their sexual fantasies in recorded text form.
This article was first published on Lexis®PSL Crime on 13 August 2013.