Legal certainty
From Seenoevil
The transformation of the subjective (and highly personal) concept of pornography and realistic into a definition giving rise to criminal culpability is likely to create substantial problems with legal certainty.
People will not know which images they can possess without risk of intrusive investigations, breach of privacy, imprisonment and/or possible entry on the Sex offenders register. How will a citizen know whether the police or the Crown Prosecution Service or ultimately a jury will share his or her opinion that the image is art or news, not realistic or whether the broadcaster is mainstream or whether the documentaries are in the public interest?
- Miscarriages of Justice;
- A chill factor where people self censor and avoid either creating or possessing legal images
- Censorship of the internet by blocking access to or the removal of material that is, in fact, legal.
- Inconsistencies in enforcement leading to unintended consequences
- An acceleration and popularisation of technological developments to protect privacy which will increase the burden on law enforcement agencies that are investigating terrorism, child pornography and other serious crimes
Problems with the definition in more detail
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"for the purpose of sexual arousal"
The Home Office defines pornography as material "that has been solely or primarily produced for the purpose of sexual arousal". The definition appears to disregard the generally accepted but hard to define distinction between erotica and pornography - when is material produced for the purpose of sexual "arousal" and when is it produced to stimulate the erotic imagination?
Against this background, how is an intent to "arouse" to be understood? Or does the Government intend to regulate not only the means of"arousal" but also stimuli to the erotic imagination"?
"Solely or primarily produced for the purpose of"
The definition, as currently drawn, requires the viewer (and subsequently the police, Crown Prosecution Service and ultimately the jury) to form an opinion as to the purpose for which the material was produced. The conviction will be be based on the the presumed intent of a possibly remote or unknown producer rather than the defendant's own intent to become aroused.
That the Defendant's intent is irrelevant is presumably an acknowledgement of the fact that viewers may also be aroused by violent sexual scenes that appear all over the mainstream media. Women or men who have rape fantasies may be aroused by scenes from a film such as the Accused (1988).
It would also appear that the Defendant's state of arousal (or not) on sight of the images is also irrelevant, as the images need to have been "produced for the purpose of sexual arousal" - arousal of whom is not specified.
On the strict definition of the wording, one could be in possession of the images for purely legal purposes (i.e. to defend a client), and still break the law. This would seem to run against several general principles of Common Law. The saving appears to be in 64(2) - where there is a get-out if the possessor has the image for "a legitimate reason" (in the same way that the Vatican possibly kept a collection of the books on the Index Librorum Prohibitorum so that it knew what was banned.
"Explicit and Realistic"
Both these tests must be passed, i.e. the image must be both explicit and realistic.
explicit:
This seems to imply that what is happening must be clear, but the word also means "containing material (e.g. language or film footage) that might be deemed offensive or graphic"
realistic:
Is "Manga" or Hentai realistic? If the act being performed is physically impossible or clearly set in a fantasy environment is this "realistic". There has been some comment on the legality of "Lolicon" - on 23 November 2006, Vernon Coaker, the Parliamentary Under-Secretary of State for the Home Department, stated that "Although cartoons depicting child abuse are deeply offensive, they do not in themselves constitute abuse of a child".
If the work has been "photoshopped" so that all the characters have the face of a well known personality is that "realistic".
One sensible definition of the term would be that the image must be such that the view could believe that this was an actual event.
"Pornography"
The Government believes that the use of the word pornography will eliminate works classified by the BBFC, photographs of works of art, news and documentary programmes by mainstream broadcasters which are of public interest.
(1) The proposed exception for material certified by the British Board of Film Classification ("the BBFC")
The proposed exceptions in relation to material classified by the BBFC also creates difficulties. The BBFC under its current guidelines will classify [source needed]. It will not classify material which it believes to be in breach of the criminal law. Thus a treatment of a theme that would satisfy the current guidelines but contains an image that falls foul of the new law will not, in future, be certified, regardless of artistic merit and context.
The logical outcome would appear to be that the intended exemption for material certified by the BBFC could only be available where certification was granted prior to the commencement date of the new law. Material that contains equivalent material but is submitted for certification after that date would breach the criminal law and will not be certified and will not be eliminated from the scope of the new law. For more information on this anomaly and the BBFC guidelines see British Board of Film Classification.
The proposals do not envisage that material certified by the BBFC as R18 for sale only in licensed sex shops would be eliminated from the offence. While it is highly likely to be the case that this material is pornographic, the possibility remains open that material that has already been given R18 certification would none the less fall foul of the new laws. Material that has R18 certification can include sexual threats, humiliation or abuse where they form part of a clearly consenting role-playing game. The Government has made it clear that there will be no exemption for material that shows apparent or actual consent by the actors or participants. Material of that kind could not be certified in the future.
(2) The proposed exception for Art
