Criminal Justice and Courts Bill

Written evidence submitted by Backlash (CJC 08)

Relevant section: section 16 - Offence of possession of extreme pornographic images

About Backlash

1. Backlash is an umbrella organisation composed of volunteers, which provides academic, legal and campaigning resources in defence of sexual freedom of expression. We support the rights of competent adults to participate in consensual sexual activities; and to watch, read or create an actual record or fictional interpretation of this in any media. We were established in 2005.

2. Our core legal work has focused on clarifying and challenging the law which prohibits the possession of ‘extreme pornography’. Alongside our legal adviser Myles Jackman (a solicitor advocate at Hodge, Jones & Allen LLP), we provided support in the successful defences in R v Holland, R v Webster and R v Walsh against such charges. Mr Jackman was awarded the Law Society’s Junior Lawyer of year 2012-2013 awar d in recognition of his work challenging the legal framework imposing regressive sexual morality in obscenity cases.


Summary

3. The amendment to ban ‘rape pornography’ risks criminalising more than a million otherwise law-abiding people in the United Kingdom. Nonetheless, there is no evidence of any corresponding public benefit from the proposed prohibition. Conversely there is a strong risk (based on our experience with the present extreme pornography offences contained within S63 (7) of the Criminal Justice and Immigration Act 2008), that any such prosecutions will be disproportionally deployed against sexual minorities; at significant cost to public funds that could be spent investigating crimes that provably harm the general public.

4. There is a significant amount of bondage themed material catering for those who enjoy submissive fantasies. Fantasy and fictional portrayals of ‘forced’ sex, which are likely to be the vast majority of images criminalised under the proposed amendment, are too commonly enjoyed to be reasonably subject to prohibition.

5. Hence we propose the amendment should either be rejected, or limited in scope to only prohibit images that are provably produced in circumstances where there is an absence of consent (either to the acts portrayed in the images or dissemination of the images themselves).

6. Should the legislation be enacted, we would therefore appeal for absolute clarity in the meaning and operation of the law: to enable the public to identify the difference between an "act which ‘realistically’ depicts rape" and the huge quantity of material that depicts sex and bondage.

Evidence of widespread impact on law-abiding citizens

7. Systematic academic research of the consumption of pornography and the prevalence of violent sexual fantasies in the population of the United Kingdom is lacking. However, the most persuasive recent evidence is taken from the British Sexual Fantasy Research Project: 2007. [1] Based on a representative sample survey of 19,000 adults in the United Kingdom, it found that: 86% of men and 56% of women had viewed pornography. [2] 29% fantasise about playing a dominant or "aggressive" role during sex; 33% fantasise about playing a submissive or "passive" role during sex; 4% fantasise about being "violent" towards someone else; 6% fantasise about violence being vested on themselves by another person. [3]

8. Thus around 2.2 million men and women have violent sexual fantasies of some kind, and nearly a third of all British adults fantasise about sexual domination and submission.

9. These statistics indicate that the number of men and women interested in fantasy pornographic depictions of non-consensual sexual encounters is likely to be very high. A central, perhaps conservative, estimate might be around 930,000 men and 640,000 women. There is no evidential link to suggest that any of these individuals pose a risk of committing sexual offences.

10. Crucially, fantasy rape scenarios are shared by both men and women, in which neither of whom are established as the passive or dominant participant in such a fantasy sexual encounter. Hence both men and women fantasise about aggressive sex in both the dominant and submissive role.

11. Yet the argument in favour of criminalising extreme pornography has been characterised as a means of "protecting" women and supporting women’s interests and standing in society. The above figures suggest that these claims ignore the impact of criminalisation on a large number of female viewers of pornography. Since it is widely held that the prosecution and possible resulting punishment of women within the criminal justice system can be particularly damaging, the committee might be well placed to consider whether exposing the private sexual fantasies of women in Court proceedings could actually lower their social standing.

12. As it can be psychologically and personally destructive for an individual of any gender to have their private consensual fantasies exposed for public scrutiny; such prosecutions should need to be justified only to combat extra-ordinary threats to the general public.

13. Our work in defending innocent people facing prosecution and trial for offences under S63(7) CJIA 2008 has revealed that a large proportion of defendants give serious consideration to suicide.

14. By way of comparison with existing legislation, fewer than 0.5% of individuals surveyed acknowledged fantasising about necrophilia (S63(7)(c) CJIA 2008), and only 3% acknowledged fantasising about bestiality (S63(7)(d) CJIA 2008. [4] Hence the proposed ban on ‘rape pornography’ extends the reach of this legislation to much more commonly held sexual fantasies.

15. When the criminalisation of possession of extreme pornography was first proposed, Ministers predicted a handful of cases. The Regulatory Impact Assessment that accompanied CJIA 2008 predicted around 30 convictions per annum (at Appendix 1 we set out MoJ and CPS data on the number of prosecutions). With 1,348 prosecutions in the year 2012/13 alone, we now know that far more cases have been prosecuted than Parliament or the public were led to believe would proceed, with an implied cost of more than £13 million to the criminal justice system in 2012/2013 (about the same as the total annual budget of the Government Equalities Office).

16. Given the fact that far more people enjoy submissive and domination themed fantasises and the material depicting this, than those who seek the four categories of material prohibited by S63(7) CJIA 2008, the Committee should consider whether many thousands more people will fall foul of the proposed "rape" category alone.

17. Furthermore, certain ‘extreme images’ are not possessed for the purpose of sexual arousal (and are therefore not ‘pornographic’ under the act) but are viewed as jokes in bad taste. Also, they can come into an individual’s possession unintentionally (and sometimes without knowledge) while browsing the Internet for unrelated material (for example via pop-up webpages or malware). Thus the range of people affected by the amendment extends to ordinary Internet users, not just viewers of pornography with particular themes.

No evidence of harm to public

18. Milton Diamond is an international expert on human sexuality. In a recent evidence review of the effects of pornography on society, he concluded: ‘objections to erotic materials are often made on the basis of supposed actual, social or moral harm to women. No such cause and effect has been demonstrated with any negative consequence. It is relevant to mention here that a temporal correlation between pornography and any effect is a necessary condition before one can rationally entertain the idea that there is a positive statistical correlation between pornography and any negative effect.’ [5]

19. While the claim that access to pornography harms women is very poorly evidenced, there is some evidence that pornography may have some beneficial effects. Increased access to pornography is associated with decreases in sexual assaults. [6] The evidence for no harmful effects on society or women from pornography is a strong finding in the academic literature. The evidence for positive benefits is weaker but indicative. There is a risk that extending the definition of extreme pornography could lead to more violence against women rather than less.

Evidence of harm to protected minorities

20. The most prominent prosecution under extreme pornography legislation was of barrister Simon Walsh, a former aide to Boris Johnson, whose legal practice had included investigating corruption within British police forces. His career in public life was severely impaired by a prosecution. His intimate life as a gay man was revealed to the public without his consent.

21. Such prosecutions threaten the reputation of the Crown Prosecution Service as an impartial public servant by showing that gay men risk having their lives destroyed in court over intimate acts which are consensual, safe and commonly practiced within the LGBT community.

22. The proposed amendment will criminalise material that depicts same-sex material. It will not only criminalise material that depicts women, but also a huge amount of material available that depicts gay sex and sexual penetration with themes of domination and submission.

23. This highlights a particular problem with defining ‘extreme pornography’ around the concept of obscenity. Obscenity is not a useful concept for directing how police and prosecutors should make use of the law. The requirement that obscene material ‘deprave or corrupt’ the viewer is arcane, and not based on any scientific or psychological test. As a result, law enforcement risks ending up treating ‘extreme’ as simply a synonym for ‘marginal’, or non-mainstream material used by sexual minorities. The Government has not presented adequate evidence showing that sexual minorities will not be subject to a disparate and disproportionate impact from this amendment.

Experience of aberrant use of legislation

24. Backlash arranges advice for members of the public facing charges of possession of extreme pornography under the existing legislation. As we have suggested, the number of people technically in breach of the law is orders of magnitude higher than those actually prosecuted. The police could not realistically hope to have the resources necessary to investigate this. Instead, cases are passively acquired, often through police investigations of other unrelated allegations; and malicious allegations.

25. In our experience, women are at least as likely as men to become the subject of police investigations which threaten to expose their private sex lives in personally damaging ways. We have encountered former partners making malicious allegations to the police regarding possession of pornography. People who have suffered a falling out in the workplace or in a business arrangement have been subject to abusive threats and allegations regarding their pornography usage and sexual interests.

26. In such cases, the police are often required to investigate, taking up their resources. But since possession of consensual adult pornography is essentially harmless, it means that the police are unnecessarily drafted in to assist the persecution of an individual to satisfy a private animus.

27. The committee might recall that one of the key reasons for decriminalising homosexuality was not because of widespread moral acceptance of homosexuality (which was to come somewhat later) but because the prohibition had become a ‘blackmailer’s charter’. The ban on homosexual acts had not caused people to stop engaging in such acts, but it had exposed many otherwise law-abiding citizens to being branded criminals. Extorting money, or favours, from homosexuals in return for not revealing their sexual orientation was commonplace. [7]

28. In extending the regulation of extreme pornography to popular sexual fantasy material, the Government risks reintroducing this sort of scenario and making blackmail over private sexuality a common problem once again.

Proposals for amendment

29. Given the scale of risk associated with this proposed legislation, we strongly advise that this amendment be abandoned. However, the legislation could be focussed more narrowly on genuinely abusive situations where there is actual non-consensual abuse and harm.

30. It should be noted that when S63 CJIA 2008 was debated in the Lords an assurance was given, in response to concerns expressed regarding the need to properly define the law that guidance would be issued to the public. However clear guidance on two categories (S63(7)(a) and (b) was never issued. As a consequence the legislation has been used in a way that Parliament never intended (R v Walsh) and hence we appeal to the committee to take this opportunity to repeal S63(7)(a) (life threatening) and (b) (serious injury). These two categories never have and probably never can be clearly defined.

31. If, despite this evidence, legislation is enacted it is vital that absolute clarity be provided to the public, to ensure that people can clearly determine material which is legal to possess and that which could result in a lengthy custodial sentence and inclusion on the sex offenders register. The penalties are so extreme that the public must be given absolute certainty and clarity.

March 2014

Appendix 1. Data on prosecutions

Offences charged and reaching a first hearing in Magistrate’s Courts: -

2008/09 2009/10 2010/11 2011/12 2012/13

7a 0 5 38 40 30

7b 0 52 132 102 98

7c 0 0 0 6 5

7d 2 213 995 1171 1179

Total 2 270 1165 1319 1348

Definitions: -

S63(7)(a): an act which threatens a person’s life

S63(7)(b): an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals

S63(7)(c): an act which involves sexual interference with a human corpse

S63(7)(d): a person performing an act of intercourse or oral sex with an animal (whether dead or alive)


[1] Brett Kahr, Sex and the Psyche: The Truth about Our Most Secret Fantasies (London: Penguin, 2008).

[2] Ibid., 88.

[3] Ibid., 588.

[4] Ibid., 590.

[5] Milton Diamond, "Pornography, Public Acceptance and Sex Related Crime: A Review," International Journal of Law and Psychiatry 32, no. 5 (September 2009): 304–314, doi:10.1016/j.ijlp.2009.06.004.

[6] Christopher J. Ferguson and Richard D. Hartley, "The Pleasure Is Momentary…the Expense Damnable?," Aggression and Violent Behavior 14, no. 5 (September 2009): 323–329, doi:10.1016/j.avb.2009.04.008; W. Wongsurawat, "Pornography and Social Ills: Evidence from the Early 1990s," Journal of Applied Economics 9, no. 1 (2006): 185–213; Berl Kutchinsky, "Pornography and Rape – Theory and Practice: Evidence from Crime Data in 4 Countries Where Pornography Is Easily Available," International Journal of Law and Psychiatry 14 (1991): 47–64.

[7] Christie Davies, The Strange Death of Moral Britain (New Brunswick, N.J.: Transaction Publishers, 2004), 93.

Prepared 12th March 2014