Arguments against

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General arguments

  • The Law is unnecessary.
  • The Law would constitute criminalizing thoughts and fantasies.
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The types of materials covered under the legislation

  • We wish to protect our right to view images of consensual SM acts between adults, which is currently legal.
  • We, like the vast majority of people, abhor and condemn all non-consensual acts such as rape, bestiality and necrophilia (which are already illegal).
  • The law already exists to punish perpetrators of illegal acts, both here in the UK, and overseas, particularly in Western Europe and the USA where the vast majority of internet material originates.
  • The majority of consensual BDSM does not fall within this "illegal acts" category, yet hundreds of thousands of law abiding citizens would still be criminalised under these confusing and poorly written proposals.
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The proposed scope of the legislation

  • How can there be any justification for criminalizing possession of fake images, or pseudo images, of acts between adults? Surely this would have a chilling effect on free speech and artistic expression.
  • The government has been frighteningly vague with regards to the definitions of “sexual violence”. And as the proposals stand, the legislation would cover not just images of acts that most people could agree were abhorrent, such as non-consensual rape or non-consensual violence, but also images of consensual, and completely legal, activities commonly practiced by the BDSM community in the UK and throughout Western Europe and the USA.
  • The definition of pornographic - appears to have been produced solely or principally for the purpose of sexual arousal - is also frighteningly vague. Since people can be aroused by almost anything, it creates a thought crime and sets the authorities the impossible task of getting inside the head of the producer.
  • The definitions outlined in the Government consultation reply may not be the final ones. Vernon Coaker stated "The detail is still being considered but it is likely that some depictions of rape will be covered" [2]; depictions of rape would not be covered by the existing proposed definitions.
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Legality of the acts in question

  • We agree that non-consensual acts are and should be illegal. However, the government in it's consultation has very disingenuously suggested that almost all acts covered under the category of “sexual violence” would already be illegal to perform, and that this legislation is somehow just “closing a loophole”. This is untrue, as the legislation includes acts which appear to be life threatening and are likely to result in serious injury, as well as covering depictions which appear to be real acts, therefore including acts which are themselves legal. Examples could include suspension or strappado bondage, knifeplay, as well as any simulations of dangerous or harmful acts.
  • Under these proposals, the government may well make illegal the possession of images of legal acts. Surely this would be an untenable position for any society that values civil liberties?
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The assertion that this material is already illegal under the Obscene Publications Act

  • A conviction under the Obscene Publications Act requires proof that would "deprave and corrupt" people exposed to it. With the proposed offence, the threshold is merely that images are "grossly offensive, disgusting or otherwise of an obscene character", a far less demanding test. (The Obscene Publications Act makes it clear that the "deprave and corrupt" definition of obscenity is only for the purposes of that Act - with the extreme porn law, Lord Hunt has stated this is the dictionary definition of obscene.)
  • The Bill has an exemption for classified works - why would this be necessary, if the new law only applied to images which were already illegal? Furthermore, an image extracted from a classified work, if extracted for purposes of sexual arousal, could fall under the law, meaning that an image could be illegal to possess even if the film it was extracted from was entirely legal.
  • On the other hand, there exists material which is likely to be illegal under the Obscene Publications Act, but not covered by this legislation. This includes anything which is considered degrading or violent, and would cover most BDSM activities, urination and female ejaculation. If extending law to possession is merely "closing a loophole", then these should all be illegal - but does it make sense that just because we can't buy a DVD with it on, partners should be criminalised for photographing, say, female ejaculation in private?
  • The move from policing what may be published to policing simple possession is not a mere "update". Rather, it constitutes a serious incursion into private life. Such incursions can in principle be justified if the arguments are strong enough (as with child pornography), but it is misleading to describe this as merely "closing a loophole".
  • It is one thing that someone wishing to publish should be aware of what would be illegal, and to have the work classified by the British Board of Film Classification. It is far less reasonable to expect an individual to be aware of what images are or aren't legal when for example browsing the Internet, importing an unclassified film, or taking a private photo with his or her partner, nor is it reasonable or practical to have to subject every such image for classification.
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The assertion that there is a causal link between the viewing of violent pornography and sexual offending

  • The government has already admitted in it's proposals that there is no proof of any causal link between extreme pornography and sexual offending.
  • What the government fails to mention is the large body of evidence that strongly suggests pornography of all types actually DECREASES sex crime rates, and that these proposals may in fact lead to an INCREASE in sex crimes and incidents of abuse.
  • A number of cathartic effects have been found for pornography, but perhaps the most widely cited is the so called "Danish experience." In the 1960's Denmark experienced a "porno wave", but rather than censoring this content, in 1967 the government lifted all restriction on pornography (save a 16 year old age limit for purchasing porn). Yet rather than experiencing a wave of sex crimes as some had predicted, sex crimes actually declined. For example, Kutchinsky (1970; 1985; 1987; 1991) found that from 1965 to 1982 sex crimes against children declined from 30 per 100,000 in '65 to about 5 per 100,000 in '82. Similar evidence is found for rape rates. Kutchinsky concludes that this is likely the effect of pornography providing potential sex offenders an alternate means of sexual satisfaction, most likely through masturbation.
  • Another example of a nation with high amounts of pornography yet low sex crime rates is Japan. As Abramson and Hayashi (1984) have found, pornography in Japan is often featured in general interest newspapers and magazines, and can be seen on prime time television. Not only is porn in Japan widely available but much of its adult content depicts the bondage and rape of young women. "In fact, one of the best ways to ensure the success of a Japanese adult film is to include the bondage and rape of a young woman (Abramson and Hayashi,1984: p. 178)." Despite this, Japan's rape rate is roughly 8 times lower than that of the U.K. (2.4 rapes per 100,000 in Japan compared to 16 per 100,000 population in UK.). This discrepancy can not be explained by variance in laws, or Japanese women's reluctance to report rape. Instead, the Japanese view the availability of such stimuli as a cathartic valve. It is presumed to provide vicarious satisfaction of a socially unacceptable behavior.
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Women's rights and equality

  • Faust (1982) studied countries with the most and least equality achieved between men and women. She found that in nations like the U.S. and the Scandinavian countries which highly value women's equality, pornography was widely available. In contrast, in countries repressive towards women, like Iran, Saudi Arabia, and the former Soviet Union, little or no pornography was available.
  • The government is being extremely disingenuous in suggesting that most 'victims' in these images are women. They are not. There are more images of submissive men than of women online, as any google search will confirm. Sites like Necrobabes are mirrored by sites such as NecroDudes, which depict men instead of women.
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Censorship

  • Very limited censorship is a function of every modern state. The debate in this country has only ever been about the extent of that censorship.
  • There are regimes in this world who have attempted to introduce and, indeed, have actually enacted laws such as the one being proposed, criminalising the expression or discussion of particular concepts of alternative sexuality, ideas or beliefs. But does the United Kingdom (which already has the strictest censorship of any western nation) really wish to be so closely associated with the restrictions of regimes such as Saudi Arabia, Iran, Libya, Afghanistan, etc.
  • If we censor material based on the actions of unstable people, no work of art or literature would be safe. Mark D. Chapman (John Lennon's killer) was inspired by The Catcher in the Rye. Should we therefore ban that book?
  • If and when the government proposes a model to actually censor the internet (and this consultation is not that model) there will be a very dynamic debate as to whether the traditional models of censorship are appropriate or even workable in the new age of the internet. That debate is happening, and this proposal pretends to be a part of it. In fact it is not, it is something much worse, namely, punishing the perverts.
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Why this legislation protects no-one, it only punishes those considered deviant

  • If this legislation is successful, while a person who viewed an image is thrown in prison the picture he viewed will remain on the internet for others to view, (and perhaps then also be punished), as the vast majority of these images feature only acts between consenting adults and are thus completely legal in most civilised nations, where the websites are hosted.
  • This is a really fundamental point. These proposals censor nothing. They only punish. The proposal is to change the UK model of censorship from one that protects people from depravity to one that punishes people for depravity.
  • A proposal to lock up people for what they look at, rather than what they do, is a dramatic shift away from freedom in this country. It is a gross authoritarian measure that doesn't even address the question of whether censorship (restricting the availability of material) is acceptable in the age of the internet.
  • The proposal involves the violation of privacy, snooping on personal electronic communications, and ultimately self-censorship through fear.
  • "Locking up the deviants" smacks of Germany in 1939, and cannot be the right thing to do in a progressive member state of the European Union in 2005, surely no one can miss that point?
  • There is simply no possible legal, moral or ethical justification for attempting to criminalise possession of images of acts which are legal, either here or throughout the western world, no matter how morally distasteful they may be to some members of our government.
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Why have we not yet learned the lesson? (The historical comparison)

  • The BDSM community is a significant sexual minority, however we fully accept various members of the Government may not agree with our activities, and may even find them distasteful. However this is no more a legitimate reason to persecute us than it was for homosexuals.
  • Various UK Governments have in the past persecuted sexual minority groups purely on moral grounds. Sellers of hardcore pornography and homosexuals being prime examples. However both these activities are now legal.
  • Such persecution involved enormous distress and suffering to those unfortunate enough to be involved and were entirely unjustified and unnecessary, especially so in light of subsequent changes in law legalising such activities.
  • Therefore these crimes are in effect thought crimes, subject to the whims and temporary moral indignation of the day, and have no place in a civilised society.
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Moral crusades make for bad politics

  • When legislating over matters that seriously affect people's lives the law must be based on reliable evidence. We were very shocked to read that the Government appears to have abandoned this approach in favour of a more subjective and emotive one. After all, the govt admits there is no proof of any causal link to harm.
  • If it is acceptable to criminalise ordinary law abiding people in the absence of any reliable evidence of harm based on what is primarily intuition and moral arguments, then the basic fabric of our legal system and society is at risk from being subject to the constant whims of moral crusaders, and this is surely unacceptable to everyone.
  • This legislation will be ineffective in reducing supply and demand, and instead will just criminalise hundreds of thousands of ordinary people.
  • Given the admission that international cooperation is essential in combating violent pornography, and furthermore given the fact that this material is legal in most civilised Western Nations, and that there is little or no international support for this legislation, then any attempt to criminalise possession in the UK will have absolutely no effect on supply and demand. The producers of this material are, and will remain, out of the reach of British law enforcement.
  • The United States Supreme Court found in 2002 that the law against faked depictions of even child pornography were a violation of the First Amendment (Ashcroft v. Free Speech Coalition). It is therefore hard to see how laws against depictions of violent pornography would not also be unconstitutional in the US, and hence greatly impede any attempts at international cooperation.
  • Although likely to be generally ineffective there would undoubtedly be some “success” in prosecuting known members of the BDSM community in the UK for possession, probably the more naïve and vulnerable members of this group, for the crime of enjoying their own innate sexuality in private.
  • This is not morally right, however “convenient” it might be for the police or the Government.
  • Despite the Governments assertation to the contrary, consumers of mainstream pornography would be in constant fear of contaminating their computer hard drives with illegal content, due to it's widespread availability and it being completely legal in most of the western world.
  • This risk is completely different in nature to that involving child abuse images because violent content is far more widely available and is also often mixed with mainstream pornographic content and consumers can expect to encounter it regularly in searches for a variety of other pornographic material. In many cases it would be impossible to determine if images had been downloaded accidentally or not, turning prosecution into a lottery.
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Societal Impact

  • The proposals would exacerbate the problems of repressed sexuality that are so endemic in British society increasing prejudice and irrational fear that might well lead many well intentioned parents to become overprotective and more interventionist in their teenagers sexual development. Such over-protective action can cause serious resentment, frustration and anger which can be very damaging and in some individuals may help awaken the aberrant sexual behaviour that these proposals are aimed at suppressing. The proposals may in fact make the situation worse and what little reliable evidence there is concerning pornography supports this viewpoint.
  • Images of child abuse are completely different in principle to images of violent pornography. Children cannot give their consent by definition, being below the age of consent whereas adults are free agents who can.
  • The case of consensual violent pornography, which constitutes the overwhelming majority of such images, is the exact opposite of the case with images of child abuse as far as consent is concerned.
  • If it has been concluded that these proposals could be brought into law with universal support to provide a simple cheap and just way of dealing with immorality in society then we believe that a serious error of judgement has been made.
  • Any possession law based on these proposals would be a disaster for British justice, would be very costly in both human and financial terms and would be vigorously resisted by a sizable minority of the population, measured in tens of thousands throughout the UK.
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Fake child porn is illegal, why shouldn't fake violent images also be illegal?

  • The law on fake child porn only applies to faked images ("pseudo-photographs"), not to actual photos of simulated scenes. This law refers to "realistic depictions", and seems to apply to a photo of a simulated scene (which is what Necrobabes et al consist of). Does it follow that, since fake child porn is illegal, an image of people roleplaying underage play - e.g., your girlfriend dressing up as a schoolgirl and shaving her pubic region - should be illegal?
  • The main argument for criminalising depictions of child abuse is that they are used for "grooming" children. This argument does not apply to adult porn. Without this argument, there is little argument in favour of criminalising depictions.
  • Another argument is that this avoids having to tell if an image is real or not, and given that there is a large real problem of actual child porn, it is arguably a necessary step to criminalise fictional images too. Compare with extreme porn, where there is not even a single example of "extreme porn" involving non-consenting adults.
  • Not everyone agrees that fake child porn should be illegal - the issue of fake child porn is controversial, and it is only illegal in some countries. Just because we already have a bad law, doesn't mean that more bad laws should be made.
  • The Government is also considering criminalising cartoons of underage sex - if this happens, should cartoons of s&m also be criminalised?
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Why should we care?

(Occasionally people into BDSM, or those who are accepting of BDSM, will ask why we should care, saying that the proposals will only cover "really extreme material" that does not include BDSM or any images we would wish to view. Here are some reasons why people should care about this law)

  • The law specifies images portraying "an act which threatens a person’s life", or "an act which results, or is likely to result, in serious injury to a person’s anus, breast or genitals" - this would certainly include consensual breathplay, and could include suspension bondage, strappado bondage. The Explanatory Note for the bill explicitly states that "threatens a person's life" includes for example "sexual assault involving a threat with a weapon" (so knifeplay images for example could be counted as threatening someone's life) - it is not restricted to life threatening injuries. The law also gives as examples of serious injury "the insertion of sharp objects into or the mutilation of breasts or genitals."
  • The law explicitly states "sado-masochists", justifying the law with the fact that acts of actual violence are illegal, even if the participants consent. [3] It therefore seems that the Government intends S&M images to be included in the law.
  • The law includes "depictions which appear to be real acts"; this would include staged acts, whether those of partners roleplaying in private, or fantasy images with consenting actors on BDSM and fetish sites.
  • Whilst BDSM and fetish sites keep a clear distance from anything involving non-consenting acts or children, this is not true regarding the material covered by this law. Non-UK sites are highly unlikely to change this based on UK law. Therefore even if one has no desire to view the "extreme material", there is the risk of viewing material which would be covered if someone accesses BDSM porn sites, blogs and so on. Accessing or being a member of such a site could be grounds for police obtaining a search warrant for those people. Whilst accidently stumbling on a website may be a defence for images in one's browser cache, this may not apply if it is clear that you are a member of the site. (This risk also applies to for example batch downloading from Usenet or filesharing, where images are downloaded without checking them individually first, and many BDSM/fetish groups may have a large number of illegal images mixed in.)
  • The proposals are vague, with the Government being unwilling to give clear specific examples of what would and would not be illegal. Perhaps BDSM acts may well all remain legal, but this may still end up going to court to find out. There would still be the ordeal of arrest, trial, and possibly being labelled a "pervert" by the press. Innocent people may be scared into accepting a police caution rather than go to court and risk prison - which would still mean being placed on the Sex Offender register.
  • This law would set the precedent that possession of depictions of consensual adult sexual acts can be criminalised.
  • The consultation response stated that many of those campaigning for the law believe that the law "should go much further, and that tighter restriction on all pornography should be imposed". Mediawatch-uk are campaigning for the law to include a much wider range of pornographic imagery, such as R18 material - R18 material covers explicit sexual acts, so this would criminalise partners simply filming themselves during sex. BDSM would certainly be included, and it is unclear what they have in mind by "much wider range". Even if the current proposed law does not include such things, these groups will continue to campaign for further laws.
  • It is not inconceivable that future laws will cover anything which would not be classified as legal by the BBFC. This includes anything considered degrading or violent, and would cover most BDSM activities, urination and female ejaculation.
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See also

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External links

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