Response to Reply from my MP
Graham Marsden, 07 Nov 2005 00:07:46
Having written to my MP and had a reply here's my response to his
comments which I thought may be of interest.
I've edited out certain non-relevant parts, but what's left here is the
important bits...
* * * * *
> It may help you to know that the Liberal Democrat Home Affairs
> Spokesman, Mark Oaten has said: "Sensible measures which protect
> children from extreme sites should be warmly welcomed. However, the
> government must avoid creating a nanny state or introducing laws that
> can't be enforced. It must also provide a very clear and succinct
> definition of what constitutes violent and abusive pornography."
Whilst these sentiments are laudable, the consensus that seems to exist
in the BDSM community is that a "definition of violent and abusive
pornography" would actually be counter-productive since it could appear
to be validating what the government is doing.
It should not be up to the State to determine for its citizens what they
can or cannot view or read and it is surely the job of parents to ensure
that their children are protected, without the State trying to do that
job for them (or take it from them!) and thereby infringing on the
rights of adults.
Indeed, I can cite your Party Leader, Charles Kennedy who, in a reply to
another group http://www.melonfarmers.co.uk who wrote to him expressing
their concerns about these proposals, quoted John Stuart Mill:
"The only purpose for which power can be rightfully exercised over any
member of a civilised society, against his will, is to prevent harm to
others. His own good, either physical or moral, is not a sufficient
warrant" On Liberty, (1859).
It would be nonsensical to propose that simple possession of the
material addressed in this consultation constitutes actual "harm to
others", so we are only left with the suggestion that it is "for our own
good" which is nothing more than a Nanny State argument.
> As I understand part of the problem comes from the fact that under the
> Obscene Publications Act (OPA) the possession of obscene adult
> pornography is not offence but the distribution or publication of it
> is.
This is certainly part of it, but the Home Office seems to want to
restrict what adults look at to what *they* consider to be acceptable,
and not what they consider to be "abhorrent" or to "not have a place in
society" which is just an attempt to introduce State Censorship and an
Orwellian "Thought Crime".
There are, I would mention at this point, regimes in this world who have
enacted laws prohibiting the expression or discussion of particular
concepts, ideas or beliefs.
This country is supposed to be a bastion of freedom against such
intolerance, but these proposals are simply the thin end of a very large
wedge that could drive its way through the basic and fundamental rights
which many have fought and died to preserve.
> The problem of the internet seems to be a twofold one. If possession
> becomes an offence, it would be difficult for people to know with
> absolute clarity whether adult pornography they downloaded was legal
> or illegal - particularly at the borderline. However the reverse of
> that is, given that prosecution of the publication on the internet
> outside the UK is pretty much impossible then the question becomes how
> one controls it if it not possible to prosecute the possession of
> material that would be prosecutable under the OPA if published in this
> country "physically" in magazines or video cassettes.
This is very true, these proposals would be virtually unpoliceable.
But surely the question should be "Should such material be controlled or
prosecutable?" and my response is that it should not.
I feel that, given the "control freak" mentality that seems to be
becoming more obvious from this Goverment (the 90 day internment of
terrorist suspects, the smoking ban, a proposed ban on a video game that
hasn't even been released!), the underlying aim of these proposals is to
create a precedent that would support future control (ie censorship) of
the internet.
Once it is accepted that certain material should be restricted because
it is "unacceptable", it is not a very big step to the definition of
what is "unacceptable" being expanded to anything else the Government
doesn't like.
> The Government is saying that it is not going to make illegal material
> that is not currently prosecutable under the OPA which includes
> material only available from a licensed sex shop rated R-18.
The problem with this is that the R-18 guidelines state that "The
following content is not acceptable:
"The portrayal of any sexual activity which involves lack of consent
(whether real or simulated). Any form of physical restraint which
prevents participants from indicating a withdrawal of consent
"The infliction of pain or physical harm, real or (in a sexual context)
simulated. Some allowance may be made for mild consensual activity."
So it is not permissible to show someone engaged in BDSM whilst gagged
since this would preclude the withdrawl of consent (they've obviously
never heard of "safe signals", eg indicating with fingers held up or
dropping a bunch of keys or a small bell if something is going too far,
methods well known in the BDSM community).
It is also not permissible to show someone being caned or flogged if it
is more than "mild" (a very wooly expression and one that would not
permit depictions of "strong" consensual activities I have seen).
As such, these proposals would actually *extend* what is illegal to view
in photographic form since simple images of people using gags or being
caned etc would then be covered, even if the images of them were of
canings or floggings or gags used by consenting adults in the privacy of
their own home.
This would effectively criminalise photographs of *legal* activities!
> The question becomes where the line is to be crossed between material
> available and legally published in this country and material
> containing what the Government calls "serious violence in a sexual
> context" or "serious sexual violence". I must say that I have not
> personally looked at videos or magazines dealing with say BDSM themes
> that are currently legal but I can imagine that there is a difficulty
> in differentiating between those and what the Government is proposing
> to be illegal and probably even more difficult to find a legal
> definition.
It is most certainly difficult, if not impossible, to make such
distinction as I mentioned above and also see the examples I will cite
shortly.
I would also point out that material that is legal *in Europe* which
deals with strong BDSM themes may well be held to be illegal in this
country and which could, under these proposals, be defined as "serious
sexual violence" even though it involves consensual activity.
Given that we are part of the European Union and a signatory to the
European Convention on Human Rights this is a ludicrous situation.
> The Home Office consultation document says that:
> "The material under consideration [to be banned] is of an extreme
> nature; it does not depict consensual sexual activity, nor even the
> milder forms of bondage and humiliation which is available in legal
> pornographic material. It depicts suffering, pain, torture and
> degradation..."
>
> But as I say and where you may as I understand it have concerns, the
> exact legal definitions of this I think will be difficult and will
> ultimately be where this legislation will be judged.
This is, of course, the problem.
As I have said, an exact defintion would be counter-productive (unless
it was to prove so laughably ill-defined that nobody could take it
seriously) and would end up covering photographs of legal activities,
despite the Home Office's claims to the contrary.
> Having said that and it may be that we disagree somewhat here I
> personally can conceive of material that is so extreme in its violence
> that it should be controlled
I have no doubt I could also conceive of such material, however I would
not agree that it should be controlled.
Let me give you some examples:
Two young naked women macramed together by meathooks, strung upside down
from a bridge and swaying gently in the breeze.
Should this be illegal?
Should it be prosecuted?
This was a scene from the BBC's programme "Messiah: The Harrowing"!
Or how about a man being flogged until the blood ran down his back and,
when the flogging was over said "Is that it? I was just beginning to
enjoy myself!"
That was also from the BBC, a scene from the new series "Rome".
But if someone were to take screen-captures of those images and it were
to be found on their computer, they could be jailed for "possession of
extreme pornography" and, even if they weren't, by the time it got to
court, their lives and career could well have been destroyed by the
sheer stress involved.
In a similar vein, one of my hobbies is photography and on a site called
http://www.net-model.com there are often images posted of models into
the "Goth" scene.
Many of these feature (fake) blood-soaked and often apparently "dead"
girls, perhaps with their throats or wrists slit, some with other models
present, presented in what could be described as at the least a
"sensual" or "erotic" context.
Those images could easily be counted under the classification of
"serious sexual violence" (or possibly even "sexual interference with a
human corpse"!) even though they are actually posed by consenting models.
Yet another example would be if someone were to photograph a model
emulating a classical image of the Martyrdom of one of the Christian
Saints (who are often shown dying with seeming looks of ecstasy on their
faces).
If anyone were to so much as look at these images on their computer,
even if they then deleted them, the traces of those pictures would still
be there and they could subsequently be charged with a crime under these
proposals, even though no real offence has taken place.
To return to your point, I consider there to be *no* reasonable grounds
for control of "extreme" material except for that which involves the
sexual abuse of children since it can be used by abusers to subsequently
"groom" other children.
However virtually all the material under discussion actually involves
*consenting* adults and I think you would agree that what consenting
adults do is no business of anyone but themselves.
Interestingly, the law also agrees with this, in the case of Regina vs
Wilson (1996) where a husband was prosecuted for branding his initials
on his (consenting) wife's buttocks.
The Appeals court ruled that "(1) What the appellant had done, if
carried out with the consent of an adult, did not involve an offence
under section 47, albeit that actual bodily harm was deliberately
inflicted. (2) Consensual activity between husband and wife, in the
privacy of the matrimonial home, is not a proper matter for criminal
investigation or prosecution."
It would be ironic if they had taken photographs of their activities
and, having been acquitted by the courts, they were subsequently found
guilty of possession of images of "serious sexual violence"!
> and while I and indeed the Home Office consultation itself does admit
> that the evidence is confused,
"Confused" is putting it mildly.
The consensus from impartial researchers (if you wish, I can provide
many cites for this) is that there is *no* such link between "extreme
pornography" and the consultation merely attempts to weasel around this
by implying that there may *yet* be evidence found, despite the mass of
credible research that shows the opposite.
(There is research that has claimed there are links, however these
studies are generally dismissed by serious investigators who have found
them flawed due to poor technique or sheer bias in reporting)
> I have very grave concerns resulting from the Longhurst case.
As do I.
In the past it has been known for rapists to blame pornography for their
actions and use it as an exculpatory excuse (one that, to my knowledge
is thankfully no longer accepted by the courts).
This is all that Graham Coutts was attempting to do with what he had
looked at, but the decision to commit murder was his and his alone.
I would also point out that, given that there must be many more people
who have seen such material and *not* committed murder, to ban it
because of just one such act would make as little sense as banning
alcohol because a minority drink and drive!
> As to your specific point, I don't think that showing simply people in
> bondage would be prosecutable under the OPA at the moment and so
> shouldn't be made illegal in the future.
It *shouldn't* be, no, however see my comments regarding gags etc above.
My concern, however, is that under these proposals, I could still be
arrested for possession of an image, taken consensually, of a consenting
adult if someone took it into their head that it was not legal.
(ADDENDUM: It gets worse, I've just read about the "Serious Organised
Crime and Police Act" which, from January will make virtually *any*
offence arrestable, thus permitting the taking of DNA and photographs
and allowing the Police to search the arrestee's house for "evidence".
How on earth did *that* ever get through Parliament??)
The Police could then sieze my computer (where they could find traces of
the "dead girl goth images" I mentioned above), plus all of my CDs,
DVDs, mail order catalogues for my business, magazines and so on and
hold on to them until such time as I was (hopefully!) acquitted by the
courts.
In the mean time, my business would be destroyed, my reputation ruined
and my life left in tatters, simply because someone didn't understand
what they were looking at.
(If you don't believe such things can happen, read the following article
about a successful businessman who had the same thing happen to him when
Customs found the Japanese equivalent of a St Trinians film in his
luggage: http://www.derbygripe.co.uk/state2.htm and believed he was
engaged in producing and distributing child pornography)
This is an intolerable situation and one that should *NOT* exist in this
supposedly free country.
> I hope this gives some idea of where the Liberal Democrats and I are
> coming from on this issue.
I am very grateful for your response and your comments and I hope that
you and your party will take on board my reply and those from others who
have also written to their MPs and that you and they will do your utmost
to ensure that these "confused" proposals never make it any further than
this consultation.
Yours Sincerely,
Graham Marsden.