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On its 10th Anniversary, Here are 10 Reasons to be Concerned about the “Extreme” Pornography Law – Tara Beattie

Last month saw in the tenth anniversary of the “Extreme” Pornography Possession Offence coming into force. This means that English and Welsh citizens could find themselves liable to a three-year spell in jail, and registered as a sex offender, for watching adult pornography in the privacy of their homes. 

To mark the occasion, here are ten reasons to be concerned about the offence.

  1. It’s not clear exactly what the offence is supposed to do.

Campaigners wanted to introduce a law that would protect women and girls against sexual violence. The murder of Jane Longhurst, by a man who had watched violent pornography shortly beforehand, had sparked concern that certain kinds of pornography were encouraging viewers to be sexually violent. But other arguments for regulation soon muddied the waters. Disturbingly, the perceived unpopularity, and “abhorrence”, of extreme porn soon became one of the most frequently trotted out arguments in favour of the offence.  It’s no surprise that this confused hodge-podge of reasoning resulted in an equally confusing offence.

  1. The definition of violence is (almost) laughable.

The Act criminalises depictions of acts that risk causing serious injury – but only to the breasts, genitals or anus (apparently, serious injury to any other body-part is not “extreme” enough). It’s also not clear what “serious risk of serious injury” means, exactly, but case-studies show that police are prosecuting material that involves things like ‘chopsticks clamped onto [..] nipples’. That suggests a threshold so low that it would be laughable – if it didn’t risk criminalising swathes of porn-viewers interested in light bondage.

“Life threatening” acts are also included. This likely includes things like breath-play and face-sitting – again, bad news for anyone who watches pornography with a kink.

  1. Sexual taboos make a mystery appearance.

The Act also criminalises depictions of bestiality and necrophilia. These are acts which are socially taboo, and criminal to carry out, but they have little to do with the offence’s original aim of combating violence against women. To add to the confusion, “bestiality” under this Act actually goes further than the real-life crime – meaning that it’s legal to perform fellatio on an animal, but not to possess a picture of it.

  1. “Rape pornography” was included…eventually.

While rape pornography may seem like an obvious candidate for an extreme pornography offence, it was only added in 2015, after years of further campaigning by activists. This raises further questions as to the motivations for introducing the Act, in the first place.

  1. It doesn’t matter whether the acts are real, faked or consensual.

The “extreme” images don’t have to be real; there doesn’t even have to be real actors in them, so long as they could be considered “realistic”. And the threshold for “realistic” appears to be low enough to include materials which are obviously staged and studio-made.  The offence can even include images taken from mainstream, commercial films.

  1. If we’re concerned about culture, then singling out “extreme” porn is over-simplistic.   

Some argue that the real harm of extreme pornography is that it helps to normalise sexual violence in society.

It seems obvious that we are all, at least partly, the products of our social environment. And if the #MeToo movement has taught us anything, it is that we do have a serious, cultural problem with sexual violence. But what role does “extreme” pornography – which covers only a narrow range of “violent” or “taboo” activities – have to play? Nearly all research suggests that only a minority of pornography depicts violence of any kind. And while pornography is widely accessed in the West, it is nowhere near as widespread as the sexual, sexist and sexually violent messages that individuals are bombarded with on social media, in adverts, films, books, and by pre-eminent figures.

With that in mind, the drastic measure of criminalising individuals just for watching a few, narrow categories of porn, seems a simplistic and heavy-handed solution to a much bigger, complex problem.

  1. “Possession” is a terrible standard…

What do you have in your “possession”? This could include all of those long-forgotten downloads, automatically saved pictures from a WhatsApp group, even random images from a website that you visited once, which have been stored in your computer cache. You don’t have to intend to ever use or share these images.

On the other hand, it seems that you can stream extreme pornography to your heart’s content, since this doesn’t involve anything that could be downloaded into your “possession”.

As a result, those who are “caught” by the offence appears to be more out of randomness than anything else.

  1. …And incredibly intrusive to individuals.

We can ask why simply possessing images should be a crime. If pornography is an embodiment of individuals’ sexual thoughts and desires, then criminalising people for using it seems to come pretty close to criminalising “unacceptable” sexual thoughts. This is problematic for a society that prides itself on its liberal values and promotion of freedom of thought.

If you find yourself on trial, meanwhile, you can expect your back-catalogue of pornography, all of your most intimate and private sexual fantasies, to be laid bare: such salacious stories are frequently covered in newspapers. This is what happened to Simon Walsh, who, despite being found innocent, had his sexuality and sexual interests splashed across the media, and his professional reputation destroyed.

  1. The Act is badly enforced.

The vast majority of charges (85%) are brought for bestiality, with only 1%  brought for rape pornography. This means that the Act is being used overwhelmingly to punish people for looking at material that is morally taboo – not material which involves sexual violence against women.

  1. There are better solutions out there.

Whether it be new age-verification requirements and website-blocking powers, or the recent drive to get pornography on the school curriculum, numerous methods of regulating against the potential harms of pornography are currently being explored.  While some of these are not without controversy, they are less intrusive, and potentially more effective, than threatening pornography-viewers with a criminal record.

The offence is existentially confused, poorly designed, and almost archaically severe. This year, therefore, I’ll be wishing the Offence a very unhappy birthday: may there not be many more to come.

Tara Beattie, Law PhD Candidate and Part-Time Tutor at Durham University. AHRC Northern Bridge Scholar.

Image Attribution: © User:Colin / Wikimedia Commons / CC BY-SA 4.0 

1 Comment

  1. Jane

    Interesting article. I’m not sure if 5 is entirely the case since ‘and a reasonable person looking at the image would think that any such person or animal was real’ is a requirement. Nonetheless I completely agree!

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