The consultation paper condensed
SnowdropExplodes, 02 Sep 2005 22:47:12
It still bothers me that there still seem to be misunderstandings about what the paper actually contains, so I have tried to condense it down as much as possible, basically showing the parts that debunk the various myths that are going around.
As has been observed, it seems that as well as the media, some Govt. ministers and Home Office spokespersons are also helping to fuel these misunderstandings, either because they do not know the content of the paper, they wish to make it seem tougher than it is, or because the consultation itself will have no effect on the legislation that is produced.
Firstly, the reasons for the proposals:
The paper states:
[Our proposals to strengthen controls on extreme pornographic material are based on:
* a desire to protect those who participate in the creation of sexual material containing violence, cruelty or degradation, who may be the victim of crime in the making of the material, whether or not they notionally or genuinely consent to take part;
* a desire to protect society, particularly children, from exposure to such material, to which access can no longer be reliably controlled through legislation dealing with publication and distribution, and which may encourage interest in violent or aberrant sexual activity.]
It also states categorically that there is no evidence for a link between pornography and sexual crime, and that therefore the Jane Longhurst situation is not a part of the reasons for their proposals.
The writers of the paper also state in the paper: "The underlying premise of this document is that this material should have no place in our society. The fact that it is widely accessible over the Internet does not legitimise it."
These are the full reasons given for the proposed legislation. If anyone says anything else, then they are not using material that is a part of the consultation paper.
Secondly, what the proposals cover:
The paper states categorically that the proposals only cover material that is already illegal under UK law, under the Obscene Publications Act. This runs right through the paper, and judging from the report in Annex C, an entirely new process would have to be begun if material not already covered by the OPA were to be restricted.
The paper is very specific about what is covered:
[38. The offence would be limited to explicit actual scenes or realistic depictions of the specified types of material. By “explicit” we intend the offence to cover activity which can be clearly seen and is not hidden, disguised or implied. The intention is also only to cover actual images or realistic depictions of the activities listed (but not, for example, text or cartoons). By realistic depictions we intend to capture those scenes which appear to be real and are convincing, but which may be acted. This follows the precedent of the child pornography legislation and is in part necessary to avoid the need to prove the activity actually took place, as this would be an insuperable hurdle for the prosecution, particularly if the material comes from abroad. In addition, there is no requirement that the activity is real in the OPA or the CG(S)A.]
and
[39. We propose restricting the offence to explicit pornography containing actual scenes or realistic depictions of:
i) intercourse or oral sex with an animal;
ii) sexual interference with a human corpse;
iii) serious violence in a sexual context, and
iv) serious sexual violence.
40. In (c) above, “serious violence” will involve or will appear to involve serious bodily harm in a context or setting which is sexual – for example, images of suffocation or hanging with sexual references in the way the scenes are presented. In (d) above “serious sexual violence” will involve or will appear to involve serious bodily harm where the violence is sexual.]
The definition of serious violence in iii) and iv) is given as "violence in respect of which a prosecution of grievous bodily harm could be brought in England and Wales or in Scotland, assault to severe injury."
The paper goes on to make three suggestions for legislation. The first is that the offence should be added to the existing OPA, so that owning any material currently outlawed by the OPA would be an offence; the second is that the OPA should be modified to include a new offence that relates only to a subset (as described above) and the third is to create an entirely separate piece of legislation that deals only with the described subset of material covered by the OPA.
The paper suggests two options for penalties: the first is to leave the OPA maximum sentence of 3 years imprisonment, and set the new offence at a lower rate, or the writer's preferred option, whch is to increase the OPA maximum to 5 years and set the new offence at a maximum of 3 years.
The paper concedes that there are human rights issues relating to activities in the privacy of one's own home, but feels that the desire to control the production of these images (they say that by deterring consumers, they hope to break the supply-demand-supply cycle) outweighs the human rights issues. They claim that they believe that because the material is already illegal under the OPA that the Government's obligations under the Human Rights Act Articles 8 & 10 are met by the proposals.
I think it is very important not to get carried away with claims that it could affect material that is currently legal, or that it is about the Longhurst case, or anything like that. Stick to dealing with what the paper says, and challenge anyone (especially a government representative!) who makes statements that are not supported by the text of the consultation paper.
Ta,
SnowdropExplodes
Tanos, 02 Sep 2005 23:37:09
snowdrop-explodes@talk21.com wrote:
> I think it is very important not to get carried away with claims that it
> could affect material that is currently legal
The thing is, it's not at all clear what is legal under the Obscene
Pulications Act (it never is, because of the burden it places on the jury)
at the moment. If you look at the CPS charging guidelines, it says:
http://www.cps.gov.uk/legal/section12/chapter_e.html#_Toc44581751
* sexual acts with children
* sexual assaults upon children
* portrayal of incest
* buggery with an animal
* rape
* drug taking
* flagellation
* torture with instruments
* bondage (especially where gags are used)
* dismemberment or graphic mutilation
* cannibalism
* activities involving perversion or degradation (such as drinking urine or
smearing excreta on a person's body)
You can't get a BBFC certification for a DVD involving bondage and
gags (so can't legally sell it), and it would appear that the CPS
thinks that kind of image could be itself be obscene and therefore illegal.
So saying that no legal images would be affected isn't really the issue:
it's which potentially illegal images would be affected that counts from
a practical point of view. (From a strategic point of view, I think we
should campaign against anything which denies "freely given informed
consent by an adult of sound mind" as a defence, but that's another
issue.)
Regards,
Tanos
SnowdropExplodes, 02 Sep 2005 23:53:25
--- Tanos wrote:
> snowdrop-explodes@talk21.com wrote:
>
> > I think it is very important not to get carried
> away with claims that it
> > could affect material that is currently legal
>
> The thing is, it's not at all clear what is legal
> under the Obscene
> Pulications Act (it never is, because of the burden
> it places on the jury)
> at the moment. If you look at the CPS charging
> guidelines, it says:
>
>
http://www.cps.gov.uk/legal/section12/chapter_e.html#_Toc44581751
>
> * sexual acts with children
> * sexual assaults upon children
> * portrayal of incest
> * buggery with an animal
> * rape
> * drug taking
> * flagellation
> * torture with instruments
> * bondage (especially where gags are used)
> * dismemberment or graphic mutilation
> * cannibalism
> * activities involving perversion or
> degradation (such as drinking urine or
> smearing excreta on a person's body)
>
> You can't get a BBFC certification for a DVD
> involving bondage and
> gags (so can't legally sell it), and it would appear
> that the CPS
> thinks that kind of image could be itself be obscene
> and therefore illegal.
>
> So saying that no legal images would be affected
> isn't really the issue:
> it's which potentially illegal images would be
> affected that counts from
> a practical point of view.
Well, from the point of view of campaigning against
the proposals in the consultation paper, the material
that is affected is very clearly defined in the paper,
none of which could currently get a certification from
the BBFC and therefore is illegal in this country.
I think it is important not to use alarmist tactics
and make claims that will easily be rebuffed by those
involved with the consultation process.
> (From a strategic point
> of view, I think we
> should campaign against anything which denies
> "freely given informed
> consent by an adult of sound mind" as a defence, but
> that's another
> issue.)
Absolutely. It is possible, of course, that if the
consultation paper responses are heavily in our
favour, that it could be a springboard to campaign
against censorship in general. We can but hope!
Ta,
SnowdropExplodes
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rosalee, 03 Sep 2005 00:17:06
I agree generally with this but the 'sound mind' bit worries me. That is so subjective.
Ginny
----- Original Message -----
: Tanos, 03 Sep 2005 00:17:06
Sent: Friday, September 02, 2005 11:36 PM
Subject: Re: [backlash] The consultation paper condensed
(From a strategic point of view, I think we
should campaign against anything which denies "freely given informed
consent by an adult of sound mind" as a defence, but that's another
issue.)
Regards,
Tanos
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Manniq, 03 Sep 2005 17:04:32
Author wrote:
> It still bothers me that there still seem to be misunderstandings about what the paper actually contains, so I have tried to condense it down as much as possible, basically showing the parts that debunk the various myths that are going around.
> As has been observed, it seems that as well as the media, some Govt. ministers and Home Office spokespersons are also helping to fuel these misunderstandings, either because they do not know the content of the paper, they wish to make it seem tougher than it is, or because the consultation itself will have no effect on the legislation that is produced.
Snowdrop,
I am not going to take issue with your analysis, since I have appreciated what you have done so far and think you are making a very valuable contribution to the cause.
What I would take issue with is your acceptance of the overt messages being put around, and dismissal of the tacit or implied stuff. For instance, you are quite right that the paper STATES that the Jane Longhurst case has nothing to do with this....except a) it is mentioned in the paper (and why mention it if it has nothing to do with it?) and b) it will run through the public narrative of this campaign like Blackpool through a stick of rock.
I suppose what I am trying to say is that the important is not so much what spokespeople say, but the perceptions of what they say: it is the latter that people usually take home; and these people (in government) are past masters of leaving one impression whilst using words that mean something else entirely.
Yes, the nit-picking battle will be fought over the detail of any proposed Bill: but the PR war will depend wholly on the impressions given and the perceptions created.
Regards,
M
SnowdropExplodes, 03 Sep 2005 17:14:28
I think you have misunderstood the purpose of what I am saying. Yes, the Jane Longhurst thing will form a huge part of the media image of this, and so will what the Govt. spokespeople say, so I think it is very important to be able to explain that, actually, tis consultation paper recommends that a different approach should be taken to that which is demanded by the Jane Longhurst petition (which demands a rewriting of the OPA, while the preferred option of the writers of the paper is to create a separate, free-standing piece of legislation) and that it is expressly stated in the paper that there is no demonstrable link between the use of pornography (including extreme pornography) and crimes being committed.
The only way to counter misleading images is to give the truth, and to work to make that the image that remains in people's minds. To do that, we need to know what the truth is, and to be able to explain clearly to others why the perception is wrong.
We achieve nothing by replacing the government's false impressions with equally false impressions of our own, and so to prevent false impressions being created, I have tried to create resources that enable people campaigning on this issue to be as well-informed as possible.
Ta,
SnowdropExplodes
manniq@hotmail.com wrote:
What I would take issue with is your acceptance of the overt messages being put around, and dismissal of the tacit or implied stuff. For instance, you are quite right that the paper STATES that the Jane Longhurst case has nothing to do with this....except a) it is mentioned in the paper (and why mention it if it has nothing to do with it?) and b) it will run through the public narrative of this campaign like Blackpool through a stick of rock.
I suppose what I am trying to say is that the important is not so much what spokespeople say, but the perceptions of what they say: it is the latter that people usually take home; and these people (in government) are past masters of leaving one impression whilst using words that mean something else entirely.
Yes, the nit-picking battle will be fought over the detail of any proposed Bill: but the PR war will depend wholly on the impressions given and the perceptions created.
Regards,
M
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dan brusca, 04 Sep 2005 17:32:28
> What I would take issue with is your acceptance of the overt messages
> being put around, and dismissal of the tacit or implied stuff. For
> instance, you are quite right that the paper STATES that the Jane
> Longhurst case has nothing to do with this....except a) it is
> mentioned in the paper (and why mention it if it has nothing to do
> with it?) and b) it will run through the public narrative of this
> campaign like Blackpool through a stick of rock.
Who says there will be much of a public narrative to this though?
The story dropped out of the mass media after about a day and isn't
likely to reappear until a green paper appears, if at all.
--
dan brusca
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