Tag Archives: extreme porn

Obscenity law liberalised

This is a cross-post from my contribution to the Adam Smith Institute blog.

Last week the Crown Prosecution Service published updated guidance for prosecutions under the Obscene Publications Act (1959). Legal campaigning has brought about a big change: the liberal tests of harm, consent and legality of real acts are now key parts of their working definition of obscenity. The CPS explain:

… conduct will not likely fall to be prosecuted under the Act provided that:

  • It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined from the material itself); and
  • No serious harm is caused
  • It is not otherwise inextricably linked with other criminality (so as to encourage emulation or fuelling interest or normalisation of criminality); and
  • The likely audience is not under 18 (having particular regard to where measures have been taken to ensure that the audience is not under 18) or otherwise vulnerable (as a result of their physical or mental health, the circumstances in which they may come to view the material, the circumstances which may cause the subject matter to have a particular impact or resonance or any other relevant circumstance).

The guidance supports a realistic notion of consent which means that depictions of most safe, consensual activities under the umbrella of BDSM are unlikely to be subject to prosecution:

“Non-consent for adults must be distinguished from consent to relinquish control. The presence of a “gag” or other forms of bondage does not, without more, suffice to confirm that sexual activity was non-consensual.”

The CPS acknowledge the damaging impact on the rule of law when prosecutors rely on subjective notions when making charging decisions:

“An ill-defined concept of moral depravity or corruption does not provide for legal demarcation of sufficient precision to enable a citizen to regulate his or her conduct. However, where conduct or an activity is itself criminalised, that may be a clear indication as to its tendency to deprave or corrupt.” 

This is a substantial improvement for the OPA which has previously been used to prosecute consensual sexual expression, including publications depicting and defending LGBTQ sexual practices.

For now, the guidelines relate only indirectly to decisions to prosecute for possession of Extreme Pornography (Section 63 of the Criminal Justice and Immigration Act 2008). They appear to clarify that prosecutors should not normally be targeting depictions or records of legal acts between consenting adults. This avoids the logical incoherence at the heart of previous obscenity definitions that meant people could be prosecuted for publishing or possessing visual records of practices that were perfectly legal to conduct, such as fisting.

This is good news for liberals and anyone with an interest in freedom of sexual expression. We have to remain vigilant to see how prosecutors use these guidelines in practice. But this is at least a substantial improvement on past definitions that provided little guidance for citizens, producers or prosecutors.

What is responsible for this surprisingly liberal turn? There is little we can say with absolute certainty other than that the CPS has wisely chosen to adjust its prosecution practice to better reflect contemporary public attitudes towards minority sexual practices and porn producers.

There are a few likely contributors to this reform. Various, sometimes overlapping, strategies formed an ecology of activism and advocacy that changed the legal and policy environment. Central to the story is the civil liberties group Backlash (declaration of interest: I have volunteered my research expertise at Backlash). It began as an advocacy group, campaigning against the extension of obscenity law to include possession of extreme images that the Home Office presumed to be a necessity in the Internet age.

After the law was passed despite well-informed opposition, obscenity lawyer Myles Jackman joined Backlash as legal advisor. In a switch in strategy, Backlash started providing legal advice and financial support to defend some criminal allegations that involved consenting acts between adults.

Juries tended to favor the defence in these cases that Backlash identified as consensual. Juries rejected prosecutions for the possession of erotic horror images, possession of fisting and urethral soundings, ‘twink’ porn, as well as the sale of fisting videos. These criminal cases couldn’t set legal precedents as they never got to the stage of appeal. Nonetheless, these failed prosecutions probably deterred the CPS from pursuing many future cases.

Meanwhile, other campaigners brought this issue to wider public attention. Jerry Barnett’s website Sex and Censorship and book Porn Panic helped to link the anti-porn agenda to a wider pro-censorship movement that is now prominent in some Internet political movements. Sexual freedom campaigner, Charlotte Rose, organized a ‘face-sitting’ protest outside Parliament aimed specifically at new media regulations and helped to raise the profile of sexual freedom more generally.

The protest attracted mainstream media attention. Pandora Blake used regulatory action against her website as a test case to quash some of the more subjective regulations. Blake then ran a campaign to show that it was the Obscene Publications Act, underlying these new inconsistent and censorious regulatory practices, that needed reform. The lost cases and reaction from vulnerable parties together prompted the CPS to consult on adjusting their guidelines to better represent what the general public evidently thought to be worthy of criminalization and censorship.

Obscenity and pornography regulation has attracted a great deal of scholarly interest. Initially, from critical supporters of the ban on extreme pornography from the field of feminist legal theory. Media communications scholars, especially Feona Attwood and Clarissa Smith, in the nascent porn studies sub-discipline, challenged the idea that porn had systematically negative impacts on culture, society and the status of women.

My article, ‘Millian Liberalism and Extreme Pornography’ showed that there was a surprising overlap between the interests of queer sexual politics, including the freedom to engage in transgressive expression and a right to establish safe spaces for minorities to support and cultivate their identities, and the classical liberal approach to freedom of expression and association. My Adam Smith Institute report, ‘Nothing to Hide’ argued for making consent to legal acts the primary way of judging the legality of sexually explicit images. It prompted LGBTQ media to highlight the risks of the law for their audience, and to start quizzing the Home Office about how they intended the law to be used.

Initially, academic feminist proponents of the extreme porn ban, including Clare McGlynn, sought quite a broad application.  They argued explicitly that the law should not apply to a narrow notion of harm but also to ‘cultural harm’ or the imputed indirect, social impact of the availability of pornography, not just those participating in the acts themselves). More recently, these proponents have accepted a greater role for consent in defining the limits of image prohibition.

They now focus on the problem of ‘revenge pornography’ (the non-consensual sharing of sexually explicit private images). In contrast to ‘extreme pornography’ and obscene publications in general, ‘revenge porn’ constitutes a personal violation and severe social problem that both liberals and feminists agree requires civil and criminal remedies. Fortunately, there has been some degree of agreement on where future criminal justice activity needs to be directed.

Criminal obscenity law is just one strand in a tangle of issues threatening sexual expression and freedom of expression in the UK. This change doesn’t do very much to make the government’s age verification system and broader surveillance of Internet access safe. It only marginally improves the legal protection of sex workers who use or offer online services. So there are a great deal more liberal reforms needed. Nevertheless, this success shows that campaigning, through legal challenges, protests and informed scholarship, can lead to genuine reform. I see this as a model for future campaigns aiming for greater personal liberty.

extreme porn law

Adam Smith Institute Questions “Extreme Porn” Law

This blog recently published a paper by Nick Cowen on the UK’s extreme porn law. This paper now forms the basis of a briefing from the Adam Smith Institute (ASI), which is available here.

As someone who, until recently, considered myself left-wing, I am ever bewildered and anguished by the fact that the defence of individual liberty, once a cornerstone of the left, is now the preserve of the free-market right: the Adam Smith Institute being a good example. Meanwhile, the left has become increasingly intolerant to free expression in many forms, of which porn is merely the most obvious: I document this strange reversal in political polarities in my book Porn Panic.

The word “extreme” in “extreme porn law” refers to the porn, though may be better used to describe the law. The law is odd for at least two reasons: first that it outlaws the depiction of acts that are popular between consenting couples; second that it targets the consumer rather than the producer.

The first aspect is strange: numerous acts such as whipping and fisting are perfectly legal to do in the privacy of one’s own bedroom. Yet the moment they are recorded, the video becomes illegal to possess.

The second aspect is dangerous: millions of people (including, probably, you) have broken the law and risk being imprisoned and listed as sex offenders. If you have looked at porn without using your browser’s incognito mode, your browser cache will be full of images from the pages you looked at. To merely have an “extreme” image on one’s phone or PC, or stored somewhere in a cloud email or storage account that you own, makes you a possessor of extreme porn. And who knows what constitutes extreme? Nick Cowen does, I do, and possibly a couple of thousand other people in the UK. To create a law that most people will never understand, yet carries heavy penalties, is draconian.

The law originated with a moral panic following the killing of a teacher, Jane Longhurst, by a man who had an interest in BDSM pornography. Clearly, nobody had explained to the government that correlation does not equate to causation: that the fact that a violent person might watch violent porn doesn’t mean that porn causes violence.

The Home Secretary who signed the law into force was Jacqui Smith; yet when I interviewed her, she was unaware of the law’s detail, or of its consequences (over a thousand people a year are now arrested for possessing extreme porn). To find that such a dangerous and unnecessary law could come into being without any serious political opposition or thought was a depressing realisation as to the nature of politics.

Nick’s ASI paper is worth reading; for those short on time, here is its executive summary:

  • The ban on possession of ‘extreme pornography’ was introduced in 2009 and extended in 2015. The law, as drafted, bans depictions of some sex acts that can be conducted safely and consensually between adults, with a specific risk of prosecution posed to LGBT minorities.
  • The Crown Prosecution Service reports more than a thousand offences prosecuted each year, implying significant enforcement costs that could be deployed effectively elsewhere.
  • A significant minority of the British population enjoy sexually aggressive fantasy scenarios but do not pose a specific risk of committing violent or sexual offences.
  • Access to pornography has increased dramatically in recent years, yet social harms imputed to pornography (especially violence against women) have reduced moderately but significantly.
  • While some survey evidence claims a correlation between individual use of pornography and sexual aggression, econometric evidence suggests this is not a causal relationship and that, if anything, increased access to pornography can reduce measurable social harms.
  • The ban itself represents a potential risk to political integrity. Like the ban on homosexuality in much of the 20th century, prohibitions on private sexual conduct can be used to silence, blackmail and corrupt individuals in positions of authority and responsibility.
  • There are better policies for reducing violence against women in the dimensions of criminal justice, education and economic reform.
  • The prevailing free speech doctrine in the United States shows that it is realistically possible to simultaneously tackle damaging forms of expression and maintain strong protections for innocuous forms

Liberalism and Extreme Pornography

Nick Cowen is a PhD student, who has recently published an academic paper on Millian Liberalism and Extreme s200_nick.cowenPornography. In this, he argues that apparently ‘liberal’ justifications for banning ‘extreme porn’ in the UK are misguided. The Sex & Censorship campaign agrees: trying to justify censorship from a liberal perspective is a contradiction in terms. Below, Nick explains his argument in brief. His full paper can be downloaded here.

In August 2012, Simon Walsh, a prominent lawyer and former aide to London mayor Boris Johnson, was prosecuted for possession of ‘extreme pornography’. The alleged crime was possessing digital photographs depicting ‘fisting’ and ‘urethral sounding’ taken at a private all-male sex party where Walsh was a participant.

The prosecution claimed that the acts depicted were extreme because they could cause serious harm. The jury heard expert evidence from a surgeon that the acts, which are relatively commonly practiced within the LGBT community, could be conducted safely. It took the jury just a few minutes of deliberation to reject all charges.

Despite the ‘not guilty’ verdict, the trial came at personal cost to Walsh. Intimate details of his sex life were exposed in a public forum. Moreover, the Crown Prosecution Service continues to argue that the grounds for prosecution were sound and that the images were ‘extreme’, leaving open the possibility of continued prosecutions. This suggests a particular legal vulnerability for gay men and other sexual minorities. This is a perverse result for a law that was originally intended to address violence against women.

The British government banned extreme pornography in 2008. There are now more than 1000 prosecutions a year in the United Kingdom. We know comparatively little about the circumstances of most cases, possibly because, unlike Walsh, most defendants accept a sanction to avoid public attention and the greater risk of a prison sentence.

Prosecution statistics indicate that many cases involve depictions of bestiality. While bestiality raises real concerns with animal cruelty, many images may amount to harmless (if poor taste) jokes. For example, one failed prosecution in Wales involved possession of an image of a man having sex with a woman while wearing a tiger costume.

I argue that this approach to regulating pornography is disproportionate to any notional public benefit, and cannot plausibly protect women’s interests or improve their social status.   My article highlights some illiberal aspects of the ban. First, ‘extreme’ is defined in terms of what the image appears to depict, rather than any actual harm done in creating the image. This means that records of acts safely performed by consenting adults can nevertheless be criminalised. Second, the law bans possession, not publication. This means that the law respects no boundary between private and public, and does not consider the context in which an image is found or displayed.

These features would have a strong chance of rendering such a ban unconstitutional on first amendment grounds if the law were passed in the United States. It is somewhat less clear whether it infringes European human rights law. Regardless of where positive law stands, I argue that liberal defences of privacy and free expression extend to extreme pornography.

I argue instead that images used to expose or harass individuals (or ‘revenge porn’) are legitimately prohibited.  On my account, consent to view or be depicted should be the key test of legality, a test that the current definition of ‘extreme pornography’ sadly ignores.

Nick Cowen is a PhD student in political economy at King’s College London and a volunteer policy researcher for Backlash

Tiger Porn: “Extreme Porn” Law to be Challenged

A few weeks ago, I blogged about the dangerous proliferation of content possession laws that have sprung up in the UK. These have resulted in a series of draconian rulings, including one that decided a teenage girl was a sex offender for taking a photograph of herself naked. This conviction was made under a law designed to prevent child abuse. Such badly drafted laws surely do nothing to achieve this, and plenty to tie up police resources that could be better directed elsewhere.

Content possession laws are dangerous, regardless of what they criminalise, because content possession is such a vague idea. How many people realise that receiving a photograph by email or WhatsApp constitutes possession, whether or not you even look at it? Or that browsing to a web page containing a banned image will store that image in the web browser cache, making the user a criminal? And most important, how can members of the public know what images might or might not be considered “extreme” by the prurient British state?

 The “extreme porn” law, introduced by the last Labour government in 2008, is perhaps the most dangerous of them all, criminalising a vast array of content, from bestiality to acts that might “result in serious injury to a person’s anus, breasts or genitals” – this would cover consensual and legal acts like fisting or the use of a large sex toy.

One of the most ludicrous prosecutions to arise from this law was the infamous “tiger porn” case, in which Andrew Holland was prosecuted for possessing a video of – it was claimed – a woman having sex with a tiger. This would certainly represent a dangerous sex act!

The police and prosecutors decided there was a case, and proceeded. When the case finally reached court, the judge requested that the video be played with sound – something the police hadn’t thought of doing. During the scene, the “tiger” turned to the camera and said “that’s grrrrreat!”, in the style of Tony, the Frosties tiger. It’s clear that police and CPS training doesn’t include the skills to distinguish between a real tiger and a pretend one. Holland was acquitted.

But during the legal process, he had been branded a sex offender, experienced vigilante attacks, and been prevented from seeing his daughter for a year. He suffered a heart attack during this time.

The obscenity law specialist Myles Jackman announced yesterday that Holland would be launching a judicial review against the extreme porn law.

This is good news indeed; besides potentially overturning an atrocious piece of legislation, it may also help disrupt yet another bad law, the impending “rape porn” legislation, which, rather than criminalising porn featuring rape (as it sounds), will leave police and a judge to decide whether a sex act looks like it might be non-consensual, and would thus criminalise bondage and other non-standard – but consenting – sex acts.

In the mean time, millions of people risk being branded sex offenders simply for receiving a message from a friend (or enemy) or browsing the web. They can, to some extent, protect themselves by using private browser settings, and asking their friends not to share any kind of sexual imagery. But it is ludicrous that they should have to.

Criminalised For Receiving “Extreme Porn” Via WhatsApp

Two UK men in their twenties have been convicted of possessing extreme pornography in a case involving the distribution of images featuring beastiality.

Despite the judge accepting that that the two men had not solicited the images Gary Ticehurst, 28, of Canvey Island, Essex, and Mark Kelly, 25, of Romford were both given a two-year conditional discharge and ordered to pay £500 costs.

Both pleaded guilty to possessing the images on their smartphones. Kelly pleaded guilty to one count of “possessing an extreme pornographic image likely to cause injury”, and three counts of possessing pornographic images involving animals. Ticehurst admitted one count of possessing an extreme pornographic image as well as two counts of possessing pornographic images involving animals.

The images were found after Police had stopped the two men for unrelated matters and a routine inspection of their phones was carried out.

Both men defended themselves in court. Kelly said he had deleted the received videos from his WhatsApp, adding that he was unaware that images were saved to his camera roll. “I didn’t even watch the full content of the video. It was very sick and disturbing,” he told the court.

Judge Paul Worsley told the court that his was imposing a “lenient” sentence, accepting that neither man had solicited the content nor had attempted to share it with others.

“You have pleaded guilty to possessing truly disgusting images,” Judge Worsley said adding “It makes a big difference if someone goes out of their way to seek it, or if they’re sent it by some mischievous colleague.”

Even after the judge’s leniency and appearing to have accepted the indirect means the duo were sent the offending images he still imposed a significant punishment.

These kind of cases are always frustrating for me to listen to or read about. Yes I find beastilaity disgusting, yes it’s currently a crime HOWEVER i’ve had random WhatsApp messages from people i’ve met once or twice, or on occasion never, there is no telling what content is in them.

It is literally like trying to convict someone of possessing an e-mail selling illegal viagra. There will be lots of truly innocent individuals caught up in these kind of charges.

My mind is pondering the demo sex and censorship held outside the UK launch of Stop Porn Culture. It would have been so easy for the Police to have stopped and searched any one of us on the basis that we were demonstrating and who knows how many of us the could have detained on these ambiguous, spurious and damn right silly charges.

That is the kind of abuse these laws, coupled with heavy handed powers can fuel.