rehearsing arguments

razorsmile, 04 Sep 2005 18:54:48

Firstly, this is long and perhaps repetitive of existing discussion and so I apologise in advance for that. Your indulgence is appreciated.

I have read through the discussion so far and it does seem unclear what exact focus opposition to the proposed legislation should take. I thought I would try and clarify the various possible arguments to myself and post the results here and see whether they make any sense or help in the discussion. I have tried to find arguments IN SUPPORT of this legislation in order to think through the logical possibilities, not because I support the legislation. I have also suggested that there are three main arguments so far being motivated and we need to consider a fourth position which may or may not be placed central to any campaign against the legislation.

1) We oppose censorship and a move to criminalise certain sorts of thoughts/fantasies.

Response: the proposed legislation restricts itself to amending and adjusting the already existing Obscene Publications Act.

The principle of censorship is thus accepted already by society and oppositon to censorship per se would mean opposition to the OPA. That is a seperate issue and thus not relevant. Moreover it is incumbent upon legislators to update their laws as society develops and the proposed legilsation is nothing more than an update to an already well accepted principle and law. (Moroever some restriction or censorship of speech is also accepted in the idea of incitement to racial violence, a law that itself is being updated with regard to incitement to religious hatred.)

Counter-response: the OPA requires the publication of material whereas this proposal criminalises the possession of material. In effect this means that someone who videos their own sexual acts and then watches the video later - even though the material is never intended for public viewing - could be prosecuted.

Response: the principle has already been accepted in the case of the Child Protection Act that viewing and possessing certain

images is illegal. Moreover the OPA includes the simple act of distribution to 'friends' as a form of publication. This is a necessary adjustment to legislation in the face of changes in society, notably the internet, which further blurs the boundary between simple production or recording and publication (witness the case of Star Wars Kid, p2p networks and file exchange generally). The concept of 'publication' is no longer as clear cut as it was when the OPA was originally established and this change is one of the key facts that necessitates the new legislation.

2) We oppose legislation that criminalises activities in which there is no victim.

Response: whilst viewing sexually violent imagery may not create 'victims' of the viewers, the industry that exists to produce such imagery does create victims (perhaps citing the case of Lovelace or somesuch to back up this argument). The
legislation is explicitly designed to counter the rise of violent or extreme sexual pornography and reduce the number of people harmed in the production of such imagery.

3) We oppose legislation that restricts activities on the basis that they are in bad taste as a form of social engineering.

Response: social engineering is entirely acceptable as a basis for the creation of law since law reflects moral codes society accepts (OPA for example). It could be argued that the welfare state is premised on the fact of social engineering and liberal/social democratic policies presuppose such social engineering. Only absolutist free marketeers would oppose any
legislation that hinted at or implied social engineering. (Obviously the 'social engineering' term would no doubt be
replaced by 'improving society' or something similiar).

Counter-response: activities in which there are no victims but which are merely distasteful to a majority of society cannot be legislated against as this would imply that society has the right to determine what we should like and dislike, effectively creating a 'thought-police'. Social engineering (improving society) may be acceptable to a degree, but only on the basis of the fact of harm.

Response: the idea that there are no victims would only hold if there was no extreme porn industry. The extreme porn industry causes harm and thus legislation that attempts to reduce the power of the extreme porn industry through attacking the demand for such images is premised not on taste but precisely on harm. It is naive to assume there is no connection between the existence of extreme porn and an extreme porn industry. In reality if we are to remove the harm caused by the industry then all citizens must accept some restriction in the possible imagery that is created - all reasonable citizens will be willing to do so and only those who hold to abstract principles about censorship will oppose the legislation and we all know that legislation cannot be based on absolutes but must deal with the practical realities of the case which are always more complex. The Executive Summary clearly states that "We are determined to act where we can against publishers but
require the individual to take greater responsibility if we are to maintain our controls on illegal material. We believe the
material which is under consideration would be abhorrent to most people and has no place in our society."

Counter-response: The consultation paper states that "the underlying premise of this document is that this material should have no place in our society". This is clearly a moral position based on taste and not harm - it demands the limitation of human imagination.

Response: The paper clearly distinguishes between pornography and other forms of human expression. Paragraph 37 states that "It is not the intention to capture medical or scientific material, educational, artistic, mainstream broadcast entertainment, or news footage." There is thus no intention to limit the human imagination and this is simply another abstract argument from those who would hold to their absolute principles in the face of concrete reality.


Summary:

So far then there seem to be three argumentative strains - against censorship, against attacks on taste (these two very closely linked) and against victimless crimes.

In all of these cases the key thing is in fact the legitimacy or otherwise of legislating against certain tendencies in society. The consultation paper begins from this point and identifies its target as 'extreme pornography' and NOT pornography per se (paragraph 4).

The difficulty here, particularly with the 'censorship' argument, is that whilst in principle we may oppose censorship, in practice we all submit to its necessity. For example, the principled opposition to any censorship would have to concede the right to invade another's privacy, perhaps through a form of extreme reality TV (which already occurs in at least one US show which follows someone whose partner is committing some form of 'adultery' and the exposes the adulterer. There is also an increasing ambiguity over permission to use images of individuals - at one point film-makers had to have 'consent forms' from their participants in order to broadcast but this is now much more flexible - though still 'in principle needed' - with the idea that if you can see you're being filmed and make no objection then you have implicitly consented.) We always balance one principle (for example, against censorship) with others (such as, a right to privacy).

This of course also means that we can put forward the anti-censorship principle as a legitimate element of any discussion and necessary to limit totalitarian tendencies (perhaps phrased in terms of 'encroachment of government').

The one argument that doesn't seem addressed by the consutlatative document is the fact that this legislation would criminalise a large and growing BDSM community which is based in informed consent. The criminalisation (even inadvertently) of a minority may well be the weakest link in their chain. The more open and explicit we are about our existence and the necessity of informed consent in our community, the more we may be able to argue that the legislation is made in igonarance of the detrimental effect it will have on a legitimate minority.

Thus I think the argument does need to be had on all three areas so far but an important - and perhaps central - FOURTH argument needs to be made - viz., that the legislation will criminalise a legitimate sexual practice (bdsm) which bases itself on informed consent amongst adults. The only response to this argument seems to be that BDSM is an aberrant and illegitimate sexual practice and this is a very weak and explicitly moralistic argument that I think would be a very unpopular one for the legislators to use, even if they wanted to. I would tentatively suggest that this is the key weakness in their approach and thus the first place to begin any attack.

ttfn

razorsmile


SnowdropExplodes, 04 Sep 2005 19:37:46

The human rights element (i.e. anti-censorship) can be examined by looking that the restrictions allowed by the European Convention of Human Rights, which includes prevention of crime, prevention of defamation (i.e. libel/slander) and protection of the public health or morals.

Thus, the three arguments overlap. Firstly, do these measures prevent crime, protect public health or morals, or protect against libel?

The fourth element is a false one, because BDSM is already illegal in this country, as a form of ABH or GBH.

To counter the proposals, we must also undermine a huge raft of current legislation.

As noted, the OPA must be taken on (although it need not be done directly, it must at least be criticised implicitly). So must the Spanner trial precedent (which says that consent is not a defence). The paper suggests (paragraph 28) that the production of the material must in some cases require that the participants be the victims of crime "whether or not they have given notional or genuine consent", although it also states in paragraph 38 that proving that a crime had been committed in the making of the material would be "an insuperable challenge" for the prosecution.

Fortunately, the judiciary have been challenging some of this themselves, because although BDSM is illegal (as according to the precedent of the Spanner trial) in recent years in cases where consenting BDSM couples have been brought to trial, the judges have refused to hear the case, saying that what consenting adults do in private is not the concern of the court.

However, undermining the OPA is a much bigger challenge. While I think that on the bigger picture of BDSM rights, doing so is essential, and that inasmch as this battle is a part of that larger war, it should form a part of our plan of attack, to win this battle (which is essential, because this is talking about cementing in standards that would otherwise be flexible and could be attacked by case precedents) may require a slightly different approach. A more subtle argument that might be effective: it can be argued that the OPA, since publication suggests a desire to cause people to view the material (and in particular, publication for profit requires finding more customers), does serve to protect the public morals, but that criminalising simple possession does not serve the same purpose.

Ta,
SnowdropExplodes


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razorsmile, 04 Sep 2005 20:15:00

Yes the illegality of bdsm activity would be a major stumbling block, though
perhaps the very fact that the judiciary is taking a particular stance could
be used as a basis for some work there. Also the argument about consent -
which as you note is attacked in the working paper in the phrase 'notional
or genuine consent' - is difficult but one that also draws a clear line
between actions that 'look similar'.

The problem with the paper, as I read it, is that it begins from a liberal
protection agenda - prevent harm etc - but is underpinned by a subtle
moralising about 'aberrant sexual behaviour', 'notional consent' etc. That
underpinning is likely to be implicitly taken for granted and the liberal
protection agenda is seen as reasonable by many in this society, which in
effect means that there is a form of 'trojan horse' moralism being
introduced on the basis of good intentions.

The key thing is, should it be illegal to possess certain images. The
simple answer would be; yes, those produced without consent. If the content
of an image is limited merely to its material representations rather than
its social role then we're probably fucked. The politicians will use this
as a way to manipulate the desire for 'something to be done' about internet
porn, implicitly painting all who view any image of 'extreme sexual
violence' as degenerate psychopaths.

I agree however when you say

"A more subtle argument that might be effective: it can be argued that the
OPA, since publication suggests a desire to cause people to view the
material (and in particular, publication for profit requires finding more
customers), does serve to protect the public morals, but that criminalising
simple possession does not serve the same purpose."

This is a good possible 'inside' argument, ie; one to put to the executive
and legislative bodies to undermine the paper. I still tend to think that a
public campaign against 'outlawing pervs' may well be a way to actually
reclaim some of the already twisted agenda in the consultation paper,
painting the politicians as moralistic bigots who like being caned in
private whilst making it illegal in public (the whole 'you're a hypocrite.
One law for them and another for us' line of getting public support).

Ttfn

razorsmile


E.Vie, 04 Sep 2005 20:15:06

To address a specific point, that "BDSM is illegal"-
no it isn't. Sorry to be picky, but if we wish to
address matters of law we must be accurate and
specific, as the law itself often turns on matters of
semantics.

Acts which may be seen as fulfilling the criteria for
a successful prosecution for Grievous Bodily Harm
_are_ illegal. However, not all acts that are part of
the wider spectrum of BDSM satisfy these criteria.
Hence, the broad statement that "BDSM is illegal" is a
gross generalisation. If we are to tackle the
challenges raised by these proposals, we must first be
very clear on what area we believe we are addressing.
If we are talking about acts which break the skin,
rather than other practices falling under the very
broad umbrella of BDSM, we must say so. It doesn't
make for easy reading, which is why legal documents
are often considered to be rather impenetrable, but
that's the way it is, and the only way we will be
credible.

EVie & slutty

--- -OJT- wrote:

> The human rights element (i.e. anti-censorship) can
> be examined by looking that the restrictions allowed
> by the European Convention of Human Rights, which
> includes prevention of crime, prevention of
> defamation (i.e. libel/slander) and protection of
> the public health or morals.
>
> Thus, the three arguments overlap. Firstly, do
> these measures prevent crime, protect public health
> or morals, or protect against libel?
>
> The fourth element is a false one, because BDSM is
> already illegal in this country, as a form of ABH or
> GBH.
>
> To counter the proposals, we must also undermine a
> huge raft of current legislation.
>
> As noted, the OPA must be taken on (although it need
> not be done directly, it must at least be criticised
> implicitly). So must the Spanner trial precedent
> (which says that consent is not a defence). The
> paper suggests (paragraph 28) that the production of
> the material must in some cases require that the
> participants be the victims of crime "whether or not
> they have given notional or genuine consent",
> although it also states in paragraph 38 that proving
> that a crime had been committed in the making of the
> material would be "an insuperable challenge" for the
> prosecution.
>
> Fortunately, the judiciary have been challenging
> some of this themselves, because although BDSM is
> illegal (as according to the precedent of the
> Spanner trial) in recent years in cases where
> consenting BDSM couples have been brought to trial,
> the judges have refused to hear the case, saying
> that what consenting adults do in private is not the
> concern of the court.
>
> However, undermining the OPA is a much bigger
> challenge. While I think that on the bigger
> picture of BDSM rights, doing so is essential, and
> that inasmch as this battle is a part of that larger
> war, it should form a part of our plan of attack, to
> win this battle (which is essential, because this is
> talking about cementing in standards that would
> otherwise be flexible and could be attacked by case
> precedents) may require a slightly different
> approach. A more subtle argument that might be
> effective: it can be argued that the OPA, since
> publication suggests a desire to cause people to
> view the material (and in particular, publication
> for profit requires finding more customers), does
> serve to protect the public morals, but that
> criminalising simple possession does not serve the
> same purpose.
>
> Ta,
> SnowdropExplodes
>
>
> ---------------------------------
> To help you stay safe and secure online, we've
> developed the all new Yahoo! Security Centre.
>


Graham Marsden, 04 Sep 2005 22:14:52

matt.lee7@ntlworld.com wrote:

> I have read through the discussion so far and it does seem unclear what
> exact focus opposition to the proposed legislation should take.
> I thought I would try and clarify the various possible arguments to
> myself and post the results here and see whether they make any
> sense or help in the discussion.

An excellent idea! :-)

> 1) We oppose censorship and a move to criminalise certain sorts of
> thoughts/fantasies.
>
> Response: the proposed legislation restricts itself to amending
> and adjusting the already existing Obscene Publications Act.
>
> The principle of censorship is thus accepted already by society
> and oppositon to censorship per se would mean opposition to the OPA.
> That is a seperate issue and thus not relevant. Moreover it is
> incumbent upon legislators to update their laws as society develops
> and the proposed legilsation is nothing more than an update to an
> already well accepted principle and law.

> (Moroever some restriction or censorship of speech is also accepted
> in the idea of incitement to racial violence, a law that itself is
> being updated with regard to incitement to religious hatred.)
>
> Counter-response: the OPA requires the publication of material

I don't think this is an ideal counter. Here's some alternatives:

Firstly: Opposition to the OPA is a not a separate issue since this
legislation would affect the OPA.

Secondly: In recent years the OPA has been relaxed in many ways in that
an erect penis is no longer considered "obscene", depictions of "mild"
consensual BDSM activities are no longer illegal, showing oral/ genital
contact etc is now permitted, so the trend is actually towards *less*
censorship rather than more.

Thirdly: "Incitement to racial hatred" is not a relevant comparison
since nobody, by publishing this material is "inciting" anyone to engage
or participate in these acts, any more than movies "incite" people to
drive cars to fast or engage in vigilante justice etc.

> 2) We oppose legislation that criminalises activities in which there
> is no victim.
>
> Response: whilst viewing sexually violent imagery may not create
> 'victims' of the viewers, the industry that exists to produce such
> imagery does create victims (perhaps citing the case of Lovelace
> or somesuch to back up this argument). The legislation is
> explicitly designed to counter the rise of violent or extreme
> sexual pornography and reduce the number of people harmed in the
> production of such imagery.

I think that this argument should be rather that "We oppose legislation
that criminalises activities in which all participants are consenting
adults".

This effectively negates the counter since if any participant is *not*
consenting, there are already laws in place to deal with such things and
new legislation is not necessary.

> 3) We oppose legislation that restricts activities on the basis that
> they are in bad taste as a form of social engineering.

I'm not sure this is a good argument either since as your response/
counter-responses demonstrate, it gets bogged down in minutae.

I would suggest that it would be more simply stated that "we oppose
legislation that allows the majority to determine what the minority may
or may not see or view, based simply on the majority's opinion of the
subject matter. If we allow this we may as well hand the legislative
process over to The Sun and the Daily Mail".

(Possibly not that last bit! :-) )

[...]

> The difficulty here, particularly with the 'censorship' argument,
> is that whilst in principle we may oppose censorship, in practice
> we all submit to its necessity. For example, the principled
> opposition to any censorship would have to concede the right to
> invade another's privacy, perhaps through a form of extreme reality
> TV (which already occurs in at least one US show which follows
> someone whose partner is committing some form of 'adultery'
> and the exposes the adulterer.

I don't think this follows. I object to censorship, however I do not
believe that one right should infringe upon another to the detriment of
the latter.

For instance I have the right to freedom of speech, but not to incite
others to racial hatred (thus infringing on the the rights of those
affected by said hatred).

Likewise, in the above case, the right to privacy is being infringed by
someone else exercising the right to freedom of speech and, as such, the
infringement should not be allowed.

This is not "censorship", but common sense.

> There is also an increasing ambiguity over permission to use images
> of individuals - at one point film-makers had to have 'consent forms'
> from their participants in order to broadcast but this is now much
> more flexible - though still 'in principle needed' - with the idea
> that if you can see you're being filmed and make no objection then
> you have implicitly consented.)

I don't think this is right. You have no copyright over your image and I
do not have to get your permission to take a photograph of you (or film
you). What I *cannot* do, however is defame you, eg if I was doing a
piece on obesity and filmed and showed various "fat" people as
"examples", that could well be considered defamatory.

In any case, this wouldn't be relevant to this legislation if our
objections are based on the principle of consenting adults who know what
they are doing.

> We always balance one principle (for example, against censorship)
> with others (such as, a right to privacy).
>
> This of course also means that we can put forward the anti-censorship
> principle as a legitimate element of any discussion and necessary
> to limit totalitarian tendencies (perhaps phrased in terms of
> 'encroachment of government').

That I can agree with.

> The one argument that doesn't seem addressed by the consutlatative
> document is the fact that this legislation would criminalise a large
> and growing BDSM community which is based in informed consent.

The document says there is "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", so, once again, they're really doing it for our own good (hah!)

> The criminalisation (even inadvertently) of a minority may well be
> the weakest link in their chain. The more open and explicit we are
> about our existence and the necessity of informed consent in our
> community, the more we may be able to argue that the legislation
> is made in igonarance of the detrimental effect it will have on a
> legitimate minority.
> Thus I think the argument does need to be had on all three areas so
> far but an important - and perhaps central - FOURTH argument needs to
> be made - viz., that the legislation will criminalise a legitimate
> sexual practice (bdsm) which bases itself on informed consent amongst
> adults.

The problem with this is that the precedents are somewhat mixed, ie
(IIRC, please someone correct me if I'm wrong):

1) Regina vs Brown (Operation Spanner, "consent is not a defence") and

2) Regina vs Wilson (husband arrested after doctor sees wife's buttocks
are branded, Judge throws this out as what consenting adults get up to
in private is their own business).

> The only response to this argument seems to be that BDSM is
> an aberrant and illegitimate sexual practice and this is a very weak
> and explicitly moralistic argument that I think would be a very
> unpopular one for the legislators to use, even if they wanted to.

Except that it *is* a "mental illness" according to the World Health
Organisation see: http://www.revisef65.org/ and that gives the response
"legitimacy" :-(

> I would tentatively suggest that this is the key weakness in their
> approach and thus the first place to begin any attack.

Regrettably if we do that we're going to be fighting on two fronts as
we'd first have to prove that F65 is not legitimate before we have a
chance of making the second argument.

Please note, by the way, I'm not trying to be negative here, but just
expressing my views on what is, as I've said, an excellent idea :-)


Tanos, 04 Sep 2005 22:45:19

E.Vie wrote:
> To address a specific point, that "BDSM is illegal"-
> no it isn't. Sorry to be picky, but if we wish to
> address matters of law we must be accurate and
> specific, as the law itself often turns on matters of
> semantics.
>
> Acts which may be seen as fulfilling the criteria for
> a successful prosecution for Grievous Bodily Harm
> _are_ illegal.

It's currently Actual Bodily Harm:
http://www.spannertrust.org/documents/smandthelaw.asp

The proposed violent pornography legislation sets the
standard higher, at the level of Grievous Bodily Harm
which involves a lot more harm than ABH. However, since
the proposed legislation includes staged depictions of
GBH too, then it's arguably a bigger restriction (you
could do someone no harm whatsoever and it could still
look like GBH.)

Regards,

Tanos


SnowdropExplodes, 04 Sep 2005 22:52:45

--- "E.Vie" wrote:

> To address a specific point, that "BDSM is illegal"-
> no it isn't. Sorry to be picky, but if we wish to
> address matters of law we must be accurate and
> specific, as the law itself often turns on matters
> of
> semantics.
>
> Acts which may be seen as fulfilling the criteria
> for
> a successful prosecution for Grievous Bodily Harm
> _are_ illegal. However, not all acts that are part
> of
> the wider spectrum of BDSM satisfy these criteria.
> Hence, the broad statement that "BDSM is illegal" is
> a
> gross generalisation. If we are to tackle the
> challenges raised by these proposals, we must first
> be
> very clear on what area we believe we are
> addressing.
> If we are talking about acts which break the skin,
> rather than other practices falling under the very
> broad umbrella of BDSM, we must say so. It doesn't
> make for easy reading, which is why legal documents
> are often considered to be rather impenetrable, but
> that's the way it is, and the only way we will be
> credible.

Ooh, hoist by my own petard!

I agree, and you are of course correct.

The issue here is that in the material to be
restricted, the acts portrayed (whether they actually
happened or are simply realistic depictions) are
already illegal.

The distinction that needs to be made at the
consultation level at least, is between those where
consent cannot have been given, and those where
consent of those involved in making the images/footage
can have been obtained.

However, I am not sure the subtle distinctions are
going to help much at the "public" level.

Ta,
SnowdropExplodes



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Tanos, 04 Sep 2005 22:53:30

Matt Lee wrote:
> Yes the illegality of bdsm activity would be a major stumbling block, though
> perhaps the very fact that the judiciary is taking a particular stance could
> be used as a basis for some work there.

There is a recommendation from the Law Commission too, from 1994:

http://www.spannertrust.org/documents/sexualoffencesreview.asp#_ftnref20

"The Law Commission proposed that a person should be able to consent to any
injury excluding a \x{201C}seriously disabling injury\x{201D}. They defined a serious
disabling injury as an injury that causes serious distress or involves the loss
of a bodily member, permanent bodily injury, serious disfigurement, severe and
prolonged pain or prolonged unconsciousness."

Which is quite like the GBH standard of the violent pornography consultation,
except for the whole business of staged images being illegal too.

Regards,

Tanos


dan brusca, 05 Sep 2005 07:33:57

> The distinction that needs to be made at the
> consultation level at least, is between those where
> consent cannot have been given, and those where
> consent of those involved in making the images/footage
> can have been obtained.

I've yet to read a convincing argument that consent is an issue at all.

Going back to basics, this legislation is about the possession of
extreme pornography and it's impact on those who view it. Whether or not
consent has been given makes no difference.

--
dan brusca
http://pandemos.net - Domina directory, fetish resource
http://pandemos2.net - femdom and fetish photo site


Laurence, 05 Sep 2005 10:53:24

There are some excellent and very valid points made on this thread. At the moment I am still working through them and comparing them with the proposals so specific comment will have to wait.

Having said that there are a few observations I would like to throw into the melting pot.

It is famously the case that legislation *should* be of benefit to the public (i.e. in the public interest and/or for the public protection) and any legislation *should* be workable. Bad govenment produces bad laws which harm society. Simple dislike of something by a group is no ground for legistation.

Apply Occams Razor to the issue.
The proposals are concerned with prohibition to effect a change in peoples behaviour.
Said prohibition is deemed to be necessary for the protection of the public.

Response.
Prohibition does not change peoples behaviour. The experiment has already been conducted and the case proven. If prohibition was effective as a behaviour modification tool then there would be no gun crime, no drug problem and no bars anywhere in Chicago since the '30s. Prohibition does have two very significant other effects though. Firstly it drives the price of the prohibited commodity up and secondly it 'glamorises' it generating a curiosity value that draws people towards said 'commodity', thus having quite the reverse effect from the one intended.

Despite many longtitudinal studies and considereable expenditure no causal link between pornography and abberant behaviour has ever been established by any reputable clinical research project. It *may* act as a disinhibitor in certain cases where the perpetrator of a crime may have used it to overcome his/her internal inhibitions but in those cases there has to be a predisposition towards 'offending behaviour'. Disinhibition as a primary argument has scant validity as there are far greater disinhibitors in everyday life - alcohol, stress, olfactory cues, the list is long and often 'person specific'.

Even the empirical evidence flies in the face of the 'public good' lobby. Given the range and amount of pornography available and the obvious widespread exposure to it why are there not armies of depraved and corrupted individuals roaming the streets? The answer one suspects is that pornography does not itself deprave and corrupt.

Amongst my many case histories from my 20 years in the criminal justice system I had a number of individuals who, for reasons of situation, were isolated from access to images of their preferred 'sexual' outlet - this did not reduce their interest in the behaviour - it merely caused them to produce their own material by adapting ordinary photographs, making sketches and writing stories.

The arguments raised against pornography are emotive and generalised. They have to be simply because the exponants have no hard evidence to present and this is their weakness. This is why so many cases are thrown out at court - a good Judge requires evidence to be presented not opinion nor heresay. Politics is a bit different where the idiom 'Vox Populi Vox Dei' holds more sway and sadly even a good Judge must adhere to legislation once it is made by the politicians.

A view.
At the core of any campaign against these proposals must be the cry of 'Show your evidence - Prove your case to prohibit'. A defensive campaign is unlikely to work, the other side will simply flow round the objections. Only by being proactive will success be a possibility. This does mean publicity, the media circus and some very careful choreography. The message of 'Your individual freedoms are being taken from you - it may not be your thing today but tomorrow they may come for you' needs to be sent to the 'vanilla' world.

Kind regards
Laurence


Lothario, 05 Sep 2005 11:40:22

I second all that, broadly.

"No harm, no victims, no crime" has to be a central theme. It's where
the proponents are weakest. The phrase "vicitmless crime" is one that
everyone can understand.

The government's case is premised on the flimsy idea that "society" is
the principal victim of these activities. While they do mention that
they would like to protect people (willingly or unwillingly)
participating in activities of which pictures are taken, they don't
make the case convincingly that prohibition will have significant
impact on production which they acknowlege takes place almost
exclusively abroad and sells to a global market.

We need to propose the idea that society can quite well decide for
itself what it finds abhorrent (ie. offensive to taste) without
needing to ban it. We need to establish a right to be offensive and
tolerate others exercising that right.

We also need to counter the reductionist case which is the essence of
the Jane Longhurst campaign. Effectively, "We don't have any evidence
that banning these images will prevent another similar crime, but if
by some chance it did, it would be worthwhile." On that basis, we'd
ban just about everything. What's wrong with this argument is that
it's speculative and disproportionate. It's not based on evidence,
just emotion and prejudice.

We should always be suspcious when new laws are brought in as a
response to a specific event that apparently uncovers an intolerable
situation that has been prevalent for some time. Porn, including
extreme and violent porn, has been easily available online for long
enough now to know whether it has increased the incidence of violent
sexual crimes. It hasn't.

Which comes back to the whole evidence of harm thing. "Evidence, not
prejudice." We don't want to be defending the indefensible, or be seen
to be doing so. So when the evidence changes, we can change our minds.
Until then:

1. Society can tolerate offensive yet harmless activities. We don't
need the state to cover our eyes and pass us a hankie.

2. No harm, no victims, no crime.


Graham Marsden, 05 Sep 2005 12:12:56

Lothario wrote:

> I second all that, broadly.
>
> "No harm, no victims, no crime" has to be a central theme. It's where
> the proponents are weakest. The phrase "vicitmless crime" is one that
> everyone can understand.

A problem I see with this is that it has resonances with the pro- and
anti- prostitution arguments with the anti- groups claiming that women
who are forced into it through poverty/ drugs/ violence *are* victims
(ignoring, of course, the fact that these are *already* crimes and there
are laws in place that should protect these women).

Ok, it's not exactly the same in this case, but it think the point needs
to be mentioned.

> We need to establish a right to be offensive and tolerate others
> exercising that right.

I see what you're saying, but we shouldn't say it like that, because it
sounds like we're going to set out to *be* "offensive" by shoving this
stuff into other people's faces, something which, of course, we have
absolutely no intention of doing.

> We also need to counter the reductionist case which is the essence of
> the Jane Longhurst campaign. Effectively, "We don't have any evidence
> that banning these images will prevent another similar crime, but if
> by some chance it did, it would be worthwhile." On that basis, we'd
> ban just about everything. What's wrong with this argument is that
> it's speculative and disproportionate. It's not based on evidence,
> just emotion and prejudice.

The problem with this is that the emotion and prejudice are very strong
in arguments like that and rational thought more than somewhat lacking.

(I had problems trying to explain to some people in other forums that
there were negative elements present in the idea of stopping and
searching young "Muslim looking" men carrying bags on the underground
"just in case they were carrying bombs" because "if it did stop a bomb
it would be worthwhile", missing the point that risking alienating these
people could create more bombers. However that's by-the-by.)

> We should always be suspcious when new laws are brought in as a
> response to a specific event that apparently uncovers an intolerable
> situation that has been prevalent for some time. Porn, including
> extreme and violent porn, has been easily available online for long
> enough now to know whether it has increased the incidence of violent
> sexual crimes. It hasn't.
>
> Which comes back to the whole evidence of harm thing. "Evidence, not
> prejudice." We don't want to be defending the indefensible, or be seen
> to be doing so. So when the evidence changes, we can change our minds.

This is, IMO, a good counter.

We should also bring up the point, as I mentioned before, that someone
who is charged with a crime like this is very probably going to use the
porn as a convenient scape-goat to "excuse" their behaviour ("the porn
made me do it"), even though the evidence is very much more towards them
looking at it because they were already inclined that way.

> Until then:

> 1. Society can tolerate offensive yet harmless activities. We don't
> need the state to cover our eyes and pass us a hankie.

We are adults. We are capable of making up our own minds as to whether
something is acceptable or not. We don't need the Nanny State and the
Thought Police to make up our minds for us.

(The words "Nanny State" and, possibly, to a lesser extent, "Thought
Police" should, IMO, be used frequently because they are two concepts
that I think the majority consider unacceptable! :-) )

> 2. No harm, no victims, no crime.

Yep.


SnowdropExplodes, 05 Sep 2005 18:14:40

--- graham wrote:

> > 1. Society can tolerate offensive yet harmless
> activities. We don't
> > need the state to cover our eyes and pass us a
> hankie.
>
> We are adults. We are capable of making up our own
> minds as to whether
> something is acceptable or not. We don't need the
> Nanny State and the
> Thought Police to make up our minds for us.
>
> (The words "Nanny State" and, possibly, to a lesser
> extent, "Thought
> Police" should, IMO, be used frequently because they
> are two concepts
> that I think the majority consider unacceptable! :-)
> )

Definitely!

It's why I think that having something in the mae of
the campaign about thought police, restriction of
fantasies or whatever, is a good idea.

I think that this is the strongest line to take when
going to the public with our views.

Ta,
SnowdropExplodes





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Kramel, 05 Sep 2005 19:10:27

Laurence

as a foundation for the argument as I see it, you have hit the nail squarely
on the head. If we are to use management speak for this campaign and need a
Vision and Mission Statement (shiver) you have covered all the points
required.

I also agree with your focus. We should run this campaign not on the
negative, but on the positive. With every challenge there are opportunities and
this is a golden opportunity for us to educate the masses with facts rather
than prejudice. A forward thinking active approach will gain momentum and wider
support than a negative defence.

It might also make the Special Branch more comfortable about overtime as
they've no doubt already begun the infiltration process and are equally no doubt
bricking themselves about the idea of 30,000 rubber and leather clad
individuals handcuffed to the lamp posts of Whitehall. After all, we've probably go
more handcuffs that the entire police forces of the UK.

"Constabule, handcuff that man, hmmmm woman, er, person." "Where abouts
sarge? They've already got four pairs on that I can see".

J



In a message dated 05/09/2005 10:53:51 GMT Standard Time,
lolsemail@yahoo.co.uk writes:

There are some excellent and very valid points made on this thread. At the
moment I am still working through them and comparing them with the proposals
so specific comment will have to wait.

Having said that there are a few observations I would like to throw into the
melting pot.

It is famously the case that legislation *should* be of benefit to the
public (i.e. in the public interest and/or for the public protection) and any
legislation *should* be workable. Bad govenment produces bad laws which harm
society. Simple dislike of something by a group is no ground for legistation.

Apply Occams Razor to the issue.
The proposals are concerned with prohibition to effect a change in peoples
behaviour.
Said prohibition is deemed to be necessary for the protection of the public.

Response.
Prohibition does not change peoples behaviour. The experiment has already
been conducted and the case proven. If prohibition was effective as a
behaviour modification tool then there would be no gun crime, no drug problem and no
bars anywhere in Chicago since the '30s. Prohibition does have two very
significant other effects though. Firstly it drives the price of the
prohibited commodity up and secondly it 'glamorises' it generating a curiosity value
that draws people towards said 'commodity', thus having quite the reverse
effect from the one intended.

Despite many longtitudinal studies and considereable expenditure no causal
link between pornography and abberant behaviour has ever been established by
any reputable clinical research project. It *may* act as a disinhibitor in
certain cases where the perpetrator of a crime may have used it to overcome
his/her internal inhibitions but in those cases there has to be a predisposition
towards 'offending behaviour'. Disinhibition as a primary argument has
scant validity as there are far greater disinhibitors in everyday life - alcohol,
stress, olfactory cues, the list is long and often 'person specific'.

Even the empirical evidence flies in the face of the 'public good' lobby.
Given the range and amount of pornography available and the obvious widespread
exposure to it why are there not armies of depraved and corrupted
individuals roaming the streets? The answer one suspects is that pornography does not
itself deprave and corrupt.

Amongst my many case histories from my 20 years in the criminal justice
system I had a number of individuals who, for reasons of situation, were isolated
from access to images of their preferred 'sexual' outlet - this did not
reduce their interest in the behaviour - it merely caused them to produce their
own material by adapting ordinary photographs, making sketches and writing
stories.

The arguments raised against pornography are emotive and generalised. They
have to be simply because the exponants have no hard evidence to present and
this is their weakness. This is why so many cases are thrown out at court -
a good Judge requires evidence to be presented not opinion nor heresay.
Politics is a bit different where the idiom 'Vox Populi Vox Dei' holds more sway
and sadly even a good Judge must adhere to legislation once it is made by
the politicians.

A view.
At the core of any campaign against these proposals must be the cry of 'Show
your evidence - Prove your case to prohibit'. A defensive campaign is
unlikely to work, the other side will simply flow round the objections. Only by
being proactive will success be a possibility. This does mean publicity, the
media circus and some very careful choreography. The message of 'Your
individual freedoms are being taken from you - it may not be your thing today but
tomorrow they may come for you' needs to be sent to the 'vanilla' world.

Kind regards
Laurence






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Manniq, 05 Sep 2005 19:18:26

Author wrote:
> Firstly, this is long and perhaps repetitive of existing discussion and so I apologise in advance for that. Your indulgence is appreciated.
> I have read through the discussion so far and it does seem unclear what exact focus opposition to the proposed legislation should take. I thought I would try and clarify the various possible arguments to myself and post the results here and see whether they make any sense or help in the discussion. I have tried to find arguments IN SUPPORT of this legislation in order to think through the logical possibilities, not because I support the legislation. I have also suggested that there are three main arguments so far being motivated and we need to consider a fourth position which may or may not be placed central to any campaign against the legislation.
> 1) We oppose censorship and a move to criminalise certain sorts of thoughts/fantasies.
> Response: the proposed legislation restricts itself to amending and adjusting the already existing Obscene Publications Act.
> The principle of censorship is thus accepted already by society and oppositon to censorship per se would mean opposition to the OPA. That is a seperate issue and thus not relevant. Moreover it is incumbent upon legislators to update their laws as society develops and the proposed legilsation is nothing more than an update to an already well accepted principle and law. (Moroever some restriction or censorship of speech is also accepted in the idea of incitement to racial violence, a law that itself is being updated with regard to incitement to religious hatred.)
> Counter-response: the OPA requires the publication of material whereas this proposal criminalises the possession of material. In effect this means that someone who videos their own sexual acts and then watches the video later - even though the material is never intended for public viewing - could be prosecuted.
> Response: the principle has already been accepted in the case of the Child Protection Act that viewing and possessing certain
> images is illegal. Moreover the OPA includes the simple act of distribution to 'friends' as a form of publication. This is a necessary adjustment to legislation in the face of changes in society, notably the internet, which further blurs the boundary between simple production or recording and publication (witness the case of Star Wars Kid, p2p networks and file exchange generally). The concept of 'publication' is no longer as clear cut as it was when the OPA was originally established and this change is one of the key facts that necessitates the new legislation.
> 2) We oppose legislation that criminalises activities in which there is no victim.
> Response: whilst viewing sexually violent imagery may not create 'victims' of the viewers, the industry that exists to produce such imagery does create victims (perhaps citing the case of Lovelace or somesuch to back up this argument). The
> legislation is explicitly designed to counter the rise of violent or extreme sexual pornography and reduce the number of people harmed in the production of such imagery.
> 3) We oppose legislation that restricts activities on the basis that they are in bad taste as a form of social engineering.
> Response: social engineering is entirely acceptable as a basis for the creation of law since law reflects moral codes society accepts (OPA for example). It could be argued that the welfare state is premised on the fact of social engineering and liberal/social democratic policies presuppose such social engineering. Only absolutist free marketeers would oppose any
> legislation that hinted at or implied social engineering. (Obviously the 'social engineering' term would no doubt be
> replaced by 'improving society' or something similiar).
> Counter-response: activities in which there are no victims but which are merely distasteful to a majority of society cannot be legislated against as this would imply that society has the right to determine what we should like and dislike, effectively creating a 'thought-police'. Social engineering (improving society) may be acceptable to a degree, but only on the basis of the fact of harm.
> Response: the idea that there are no victims would only hold if there was no extreme porn industry. The extreme porn industry causes harm and thus legislation that attempts to reduce the power of the extreme porn industry through attacking the demand for such images is premised not on taste but precisely on harm. It is naive to assume there is no connection between the existence of extreme porn and an extreme porn industry. In reality if we are to remove the harm caused by the industry then all citizens must accept some restriction in the possible imagery that is created - all reasonable citizens will be willing to do so and only those who hold to abstract principles about censorship will oppose the legislation and we all know that legislation cannot be based on absolutes but must deal with the practical realities of the case which are always more complex. The Executive Summary clearly states that "We are determined to act where we can against publishers but
> require the individual to take greater responsibility if we are to maintain our controls on illegal material. We believe the
> material which is under consideration would be abhorrent to most people and has no place in our society."
> Counter-response: The consultation paper states that "the underlying premise of this document is that this material should have no place in our society". This is clearly a moral position based on taste and not harm - it demands the limitation of human imagination.
> Response: The paper clearly distinguishes between pornography and other forms of human expression. Paragraph 37 states that "It is not the intention to capture medical or scientific material, educational, artistic, mainstream broadcast entertainment, or news footage." There is thus no intention to limit the human imagination and this is simply another abstract argument from those who would hold to their absolute principles in the face of concrete reality.
> Summary:
> So far then there seem to be three argumentative strains - against censorship, against attacks on taste (these two very closely linked) and against victimless crimes.
> In all of these cases the key thing is in fact the legitimacy or otherwise of legislating against certain tendencies in society. The consultation paper begins from this point and identifies its target as 'extreme pornography' and NOT pornography per se (paragraph 4).
> The difficulty here, particularly with the 'censorship' argument, is that whilst in principle we may oppose censorship, in practice we all submit to its necessity. For example, the principled opposition to any censorship would have to concede the right to invade another's privacy, perhaps through a form of extreme reality TV (which already occurs in at least one US show which follows someone whose partner is committing some form of 'adultery' and the exposes the adulterer. There is also an increasing ambiguity over permission to use images of individuals - at one point film-makers had to have 'consent forms' from their participants in order to broadcast but this is now much more flexible - though still 'in principle needed' - with the idea that if you can see you're being filmed and make no objection then you have implicitly consented.) We always balance one principle (for example, against censorship) with others (such as, a right to privacy).
> This of course also means that we can put forward the anti-censorship principle as a legitimate element of any discussion and necessary to limit totalitarian tendencies (perhaps phrased in terms of 'encroachment of government').
> The one argument that doesn't seem addressed by the consutlatative document is the fact that this legislation would criminalise a large and growing BDSM community which is based in informed consent. The criminalisation (even inadvertently) of a minority may well be the weakest link in their chain. The more open and explicit we are about our existence and the necessity of informed consent in our community, the more we may be able to argue that the legislation is made in igonarance of the detrimental effect it will have on a legitimate minority.
> Thus I think the argument does need to be had on all three areas so far but an important - and perhaps central - FOURTH argument needs to be made - viz., that the legislation will criminalise a legitimate sexual practice (bdsm) which bases itself on informed consent amongst adults. The only response to this argument seems to be that BDSM is an aberrant and illegitimate sexual practice and this is a very weak and explicitly moralistic argument that I think would be a very unpopular one for the legislators to use, even if they wanted to. I would tentatively suggest that this is the key weakness in their approach and thus the first place to begin any attack.
> ttfn
> razorsmile

At the risk of blowing my own trumpet, can I direct you towards the thread I started on 'A very important ruling'....if you dig into the arguments raised and rebutted there (in the US Supreme Court Ruling), you can go a long way.

Regards,

M


Manniq, 06 Sep 2005 09:25:00

Author wrote:
> --- "E.Vie" wrote:
> > To address a specific point, that "BDSM is illegal"-
> > no it isn't. Sorry to be picky, but if we wish to
> > address matters of law we must be accurate and
> > specific, as the law itself often turns on matters
> > of
> > semantics.
> >
> > Acts which may be seen as fulfilling the criteria
> > for
> > a successful prosecution for Grievous Bodily Harm
> > _are_ illegal. However, not all acts that are part
> > of
> > the wider spectrum of BDSM satisfy these criteria.
> > Hence, the broad statement that "BDSM is illegal" is
> > a
> > gross generalisation. If we are to tackle the
> > challenges raised by these proposals, we must first
> > be
> > very clear on what area we believe we are
> > addressing.
> > If we are talking about acts which break the skin,
> > rather than other practices falling under the very
> > broad umbrella of BDSM, we must say so. It doesn't
> > make for easy reading, which is why legal documents
> > are often considered to be rather impenetrable, but
> > that's the way it is, and the only way we will be
> > credible.
> Ooh, hoist by my own petard!
> I agree, and you are of course correct.
> The issue here is that in the material to be
> restricted, the acts portrayed (whether they actually
> happened or are simply realistic depictions) are
> already illegal.
> The distinction that needs to be made at the
> consultation level at least, is between those where
> consent cannot have been given, and those where
> consent of those involved in making the images/footage
> can have been obtained.
> However, I am not sure the subtle distinctions are
> going to help much at the "public" level.
> Ta,
> SnowdropExplodes

I think a fundamental thing which needs to be blown wide open is this government claim that they would not go after images that are artistic or made by legitimate commercial enterprise. I very much doubt that that formulation would survive the first encounter of this proposal with reality.

This proposal talks about the effect that 'possessing images' might have - whilst current legislation talks about the rationale for publishing and distributing.

Last night, we watched a film that is fine under the OPA: 'House of 9'. Didn't much care for it: too much blood. But my partner likes these sort of slasher pics.

If you took a sequence of stills from this film out of context, there are all manner of images of men and women who have met gruesome ends that I am sure someone somewhere would wank over.
If the case for this proposal is that such images cause harm (I know the government says not) then they must ban these images too.

If they don't, then there is a flaw in their argument.

Regards,

M
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