Well, it’s finally happened. The previously ranted-about Criminal Justice and Immigration Bill has been passed, and we in the fetish community are now told, in a disturbingly ambiguous fashion, that the BDSM porn (previously legal, gloriously violent, and starring consenting adults) on our hard drives may be enough to land us in the perv-kicking wing of the local prison.
And what, I hear you yelp, constitutes an “extreme” image…?
Well, nobody is entirely sure, but some kind soul at Informed Consent wrote to Lord Hunt for an explanation and got the reply posted below, which clarifies things very, very, very slightly:
|“Ministry of Justice” wrote:
Thank you for your email of 19 April to Lord Hunt, about the Government’s proposals in the Criminal Justice and Immigration Bill, to create a new offence of possession of a limited range of extreme pornographic material. Your letter has been forwarded to the Ministry of Justice which holds policy responsibility for this part of the Bill and I have been asked to reply.As you may now be aware, the Government has amended the clauses in the Bill which set out the scope of the new offence (clauses 113 and 114). One important change is that the amendment specifies that an extreme image must be “grossly offensive, disgusting, or otherwise of an obscene character.” Taken together with other changes, described below, this should ensure that the offence only catches material which would be caught by the Obscene Publications Act 1959 were it to be published in this country.It may be helpful if I briefly outline the revised proposed offence. Firstly the material must be “pornographic”, that is, it must be of such a nature that it must reasonably be assumed to have been produced solely or principally for the purposes of sexual arousal. This would be an objective test for the jury.It must also contain extreme images which portray in an explicit and realistic way the acts listed below:an act which threatens a person’s life; this could include depictions of hanging, suffocation, or sexual assault involving a threat with a weaponan act which results in, or is likely to result in, serious injury to a person’s anus, breasts or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals
an act which involves sexual interference with a human corpse
a person performing an act of intercourse or oral sex with an animal.
In all cases the person or animal depicted in the image must be such that a reasonable person looking at the image would think they were real. This is a high threshold.
Finally, as set out above, the material must meet the new test of being grossly offensive, disgusting, or otherwise of an obscene character.
The proposals themselves are not aimed at any particular part of society and are not intended to target the legal material (i.e. that which does not breach the Obscene Publications Act 1959) which already circulates. Their target is material which it is already an offence to publish or distribute but which can now no longer be adequately controlled through the Obscene Publications Act with the advent of the internet and other forms of electronic communication. The proposals are not intended to limit private sexual activity but are concerned with combating the circulation of extreme pornographic images. Once an image is created it has endless potential for circulation, particularly via the internet, and for having an effect on others not involved in its creation.
It is not the case that all individuals convicted under the proposed legislation will appear on a ‘register’. The maximum sentence under the proposed offence is three years imprisonment, under which there is a wide range of sentencing options. Only the most serious offenders who receive two years imprisonment or more would be made subject to the notification requirements set out in the Sexual Offences Act 2003.
You expressed particular concern that the offence may capture images of consensual activity; which is not of itself illegal, and which may be possessed by the participants for their own use. Consent by itself does not make violent sexual acts legal. Furthermore, it is very difficult to tell from an image whether true consent has been given. The focus of this offence is on the images themselves and the impact they may have on those who view them. The further clarification of the offence which I have described sets a very high threshold and we have therefore taken the view that the question of consent is not a consideration which should be woven into the offence.
The discussions which we have had on these clauses during the Bill’s Parliamentary Stages have assisted us in bringing forward several important amendments. As you know we have clarified the threshold of the offence, and we have provided alignment with the obscenity test in the “Obscene Publications Act (OPA) 1959. We have also refined the list of extreme acts, removing “appears to” and making it clear that the acts must be explicit and realistic. We believe that the three elements of the offence: the pornography test, the explicit, realistic, extreme act test, and the grossly offensive, disgusting or of an otherwise obscene character test, when taken together, should ensure that the offence only captures material which it would be illegal to publish. We have also listened to the concerns expressed by the Joint Committee on Human Rights and by groups representing the BDSM community about a possible anomaly in respect of adults participating in lawful consensual acts who wish to record their activities for their own private use. Under the offence as previously drafted it would have been possible for a person to commit an offence by possessing an image of an act which he or she undertook lawfully. We introduced an amendment at Third Reading in the Lords which provides a defence for participants in consensual acts in the first two categories of listed extreme acts. It will not apply to bestiality images or necrophilia images which involve a real corpse. The defence applies only in respect of harm to which consent can lawfully be given but is so constructed that, if the law on that point should change, the defence would move with it. We understand the concerns which have been expressed about the offence by people who download images for their own private use but we feel that we have gone as far as we can to set a high threshold for this material and define the extreme images which would be caught. Pornography users who have been downloading material which would be lawful to publish under the OPA should we believe be able to continue to do so with confidence.
I hope you find this information useful.
Confused…? You’re not the only one.