Criminal Justice and Courts Bill
Written evidence submitted by Professor Clare McGlynn and Professor Erika Rackley at Durham Law School, Durham University (CJC 12)
1.0 Executive summary
1.1 We welcome the Government’s intent to extend the extreme pornography offence at section 63 of the Criminal Justice and Immigration Act 2008 (CJIA) to cover the possession of extreme images that depict rape and assault by penetration.
1.2 Legislative action against extreme pornography , including ‘rape pornography’, is justified because of the ‘ cultural harm’ of such material . The existence and use of extreme pornography , including pornographic images of rape, sustains the cultural context in which society fails to take sexual violence seriously.
1.3 We welcome the fact that these proposals place some responsibility for the harms of extreme pornography on the user. However, the effectiveness of this strategy, namely targeting demand in order to reduce the prevalence of extreme pornography, will depend on prosecutorial policy.
1.4 Further amendments are crucial to ensure both the effectiveness of the new law and that it targets culturally harmful material. We make five key recommendations:
1.4.1 We recommend the inclusion of a provision stating clearly that the ‘realistic’ portrayal of the act/s in question refers to both real and simulated images.
1.4.2 We recommend the inclusion of a provision requiring reference to be made to the context - description, sounds, narrative – of the image when determining whether or not it is one of ‘rape’.
1.4.3 We recommend clarifiying the defence of ‘participation in consensual acts’.
1.4.4 We recommend the inclusion of a public good defence.
1.4.5 We recommend the removal of the requirement that the image be ‘grossly offensive, disgusting or otherwise of an obscene character’.
1.5 Our support of the proposed changes to the law on extreme pornography does not extend uncritically to the entirety of the current regulation of obscenity and pornography. We further recommend the establishment of a Commission on Pornography and Obscenity, to be tasked with the wholesale review of obscenity and pornography regulation. This Commission would also consider potential actions beyond the criminal law. 
2.1 We have particular expertise in the legal regulation of pornography, rape law and gender equality. Our scholarship has shaped public debates on the legal regulation of pornography law and we are regular commentators in the broadcast and print media on these issues. 
2.2 This evidence submission is based on the findings of our extensive research, with a particular focus on their analysis of the English legislation detailed in:
o ‘Striking a Balance: Arguments for the Criminal Regulation of Extreme Pornography’ (2007) Criminal Law Review 677-690;
o ‘ Criminalising Extreme Pornography: A Lost Opportunity ’ (2009) Criminal Law Review 245-260  ; and
o ‘Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law’ (2013) Criminal Law Review 400-405.
2.3 In 2009 during discussions of the Scottish ‘extreme pornography’ provisions, the Scottish Justice Committee endorsed our argument that the use of the term ‘obscenity’ should be reviewed and that greater consideration should be given to the ‘cultural harm’ of extreme pornography. 
2.4 We have worked closely with a range of NGOs and women’s groups in England & Wales, and Scotland, on pornography regulation, including supporting the campaign to include rape in the extreme pornography laws led by Rape Crisis South London and the End Violence Against Women Coalition in 2013. 
3. 0 Justifications for action : the cultural harm of extreme pornography
3 .1 We welcome the Government’s intent to extend the extreme pornography offence at section 63 of the CJIA to cover the possession of extreme images that depict rape and non-consensual sexual penetration.
3.2 This reform rightly addresses the failure of the current law to take a strong stand against the normalisation of sexual violence. It is our view that the extreme pornography provisions in the CJIA 2008 represented a missed opportunity ‘to consider the broader arguments of harm, extreme pornography and sexual violence…’ , with the debate instead focusing on ‘moralistic and disgust-based justifications’ that fail to fully consider the implications of such material. 
3.3 Criminalising the possession of extreme pornography is a serious matter. Legislative a ction must only be taken if we are certain that there is sufficient justification. Typically drawing on John Stuart Mill, the standard liberal position is to resist legislative a ction on the basis that there is no direct causal connection between the viewing of extreme pornography and sexual violence . It is then suggested that in the absence of direct harm , there can be no regulation.
3.4 We suggest that liberalism can be used to justify legislative action against pornography.  John Stuart Mill, for example, was far more receptive to radical legislative intervention that is often assumed.  Our liberal democracy champions the values of equality and dignity which are directly challenged by much violent pornography, especially rape pornography, thus demanding regulatory action. We further argue that the law has a precautionary role; to anticipate, preclude and counter the risk of harm to society and to individuals. As John Stuart Mill himself said: ‘It is the business of the law to prevent wrongdoing, and not simply to patch up the consequences of it when it has been committed’.
3.5 We consider that arguments of direct, causal links between pornography and sexual violence are over-simplistic. Our argument is not that the person who views extreme pornography, such as pornographic images of rape, will then go on to commit rape. Rather, as we have argued elsewhere , ‘the proliferation and tolerance of such websites and images, and the messages they convey, contributes to a climate in which sexual violence is condoned, and seen as a form of entertainment’.  Rape pornography sustains a culture in which a ‘no’ to sexual activity is not taken seriously. It promotes the myth that women enjoy being coerced into sexual activity, and that they enjoy violent, non-consensual sexual activity.
3. 4 This is a culture in which, as research for the Children’s Commissioner suggests, young people are turning to pornography for guidance on sex, are engaging in riskier behaviour as a result of viewing pornography, are uncertain as to what consent means, and develop harmful attitudes towards women and girls.  Rape pornography, therefore, generates cultural harm and it is this cultural harm which justifies legislative action.
3.7 We urge the Committee to recognise the significance of the cultural harm of extreme pornography as a justification for legislative action .
4.0 Clarification of the definition of ‘realistic’ image
4.1 In order fall within the remit of the CJIA, and the proposed amendment, the image in question must be an ‘explicit and realistic’ portrayal of a particular act/s.  ‘Realistic’ may have, at least, two meanings in this context: (a) that the image must depict ‘real’, as opposed to simulated/acted, activity; and/or (b) that the image must be of a ‘real’ human, as opposed to a cartoon or computer generated (CGI) image.
4.2 The requirement that an image is ‘realistic’ does not require the act depicted to be ‘real’. This is why the law refers to images which are ‘realistic’, meaning those which resemble or simulate real life. The use of the term ‘realistic’ also mirrors international provisions on pornography which similarly include real and simulated images.  The current extreme pornography laws, and the proposed new provision, thus cover both real and simulated images. For example, there is little doubt that section 63(7)(c) of the CJIA extends to include ‘realistic’ images of necrophilia where the ‘dead’ person is not in fact dead. Similarly, in the proposed new law, a ‘realistic’ explicit image of rape and/or assault by penetration, that is an image of ‘rape’ which not, in fact, rape (ie it is acted or simulated) should be covered by the proposed amendment.
4.3 However, in view of the fact that there has been some debate over the meaning of ‘realistic’, we recommend, for the avoidance of doubt, the inclusion of the following clause:
"For the purposes of subsection 7, ‘realistic’ includes real and simulated images".
4.4 In relation to cartoons and computer generated images, we do not consider that the current law covers such material. We do not recommend that the law on extreme pornography is extended to cover cartoons and computer generated images.
5. Importance of ‘context’ in the definition of an ‘extreme’ image
5.1 The context of an image is valuable in determining whether the pornographic images are ‘extreme’ . Simulated images of rape are widely available on free-to-access pornography websites.  The images are often accompanied by banners and text which glorify rape and sexual violence : " these girls say no but we say yes ’; ‘ see what happens when men lose control and don’t give a f*ck whether she says yes or no. Damn, in fact, the guys enjoy a "no" more’ ".  The narrative of the ‘story’ similarly conveys such meaning, as do es the soundtrack . This contextual material makes it clear that the image/s is intended to be of rape or other non-consensual sexual activity. The non-cons ensual aspect, or what makes the image one of ‘ rape ’ , is clear from this overall context.
5.2 Under the CJIA, the ‘context’ of a particular image is only relevant to whether or not the image is pornographic.  This is in contrast to the use of context in the Scottish extreme pornography provisions. The Criminal Justice and Licensing (Scotland) Act 2010 includes provision to ensure that the ‘context’ of the image (eg descriptions or sounds accompanying the image) is relevant to the determining whether an image is ‘extreme’. This ensures that simulated images of rape come clearly within the remit of the legislation, whether or not the actual act was itself consensual (i.e. whether or not the actors in the image were consenting).
5 . 3 We recommend the inclusion of a similar clause in the proposed amendment:
" In determining whether (as found in the person’s possession) an image depicts an act mentioned in subsection (7), reference may be had to
(a) how the image is or was described (whether the description is part of the image itself or otherwise)’;
(b) any sounds accompanying the image; and
(c) where the image forms the integral part of a narrative constituted by a series of images – (i) any sounds accompanying the series of images; (ii) the con text provided by that narrative" . 
5.0 Clarifying the defence of ‘direct participation in consensual acts’
5.1 The current law includes a defence where the defendant ‘directly participated’ in the acts portrayed (section 66 of the CJIA). The proposed amendment extends this defence of ‘direct participation’ to images of rape or assault by penetration which though portrayed as non-consensual were in fact consensual. We welcome the extension of this defence.
5.2 The target of the extreme pornography legislation is not – and should not be – private depictions of consensual BDSM activity. The current law, however, covers images which, when carried out with consent and produced only for private use, should not fall within its remit.  One reason for this is the limited interpretation of ‘direct participation’ – usually understood as requiring the defendant to be visible in the image in question.
5.3 The Committee may wish to consider clarifying the scope of this defence so that it permits the possession of images taken of those participating in consensual acts and which are for private use only.
6.0 Inclusion of a public good defence
6.1 The Obscene Publications Act 1959 includes a defence where the material in question is for the ‘public good’ (section 4). The absence of a public good defence in the extreme pornography law reinforces the fear that the provisions could be used to criminalise the possession of legitimate works of art, film and s uch like . The introduction of a ‘public good’ defence would demonstrate that there is no intention to bring educational, legitimate artistic or similar works within the scope of the legislation and would help to ensure that only harmful material is covered by the provisions.
6 .2 We recommend the inclusion of the following clause:
" A person shall not be convicted of an offence [under section 63] if it is proved that the extreme image is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern ". 
7 .0 Removal of requirement for image to be ‘obscene’
7.1 The current law provides that for an image to be ‘extreme , ’ it must also be one which is ‘grossly offensive, disgusting or otherwise of an obscene character’ (section 63(6)). The current amendment would preserve this provision. We urge the Committee to reconsider the use of the language of obscenity. The use of the term ‘obscenity’ has long been criticised on the basis that it is typically deployed to capture material which is not only harmful, but which also causes offence or disgust. It is also typically focussed on the impact on the consumer of the material, rather than wider considerations of harm.
7.2 We recommend that the extreme pornography law is justified on the basis of its cultural harm, not obscenity. We also contend that the criminal law is not used to prohibit material on the basis that it is considered ‘disgusting’. We recommend, therefore, the removal of the requirement that the image be ‘grossly offensive, disgusting or otherwise of an obscene character’.
8.0 Definition of penetration
8.1 We note that proposed new section 7(B) states that ‘penetration is a continuing act from entry to withdrawal’. This provision mirrors section 79(2) of the Sexual Offences Act 2003 which defines penetration, for the purposes of the various sexual offences, as being a ‘continuing act from entry to withdrawal’. This provision is included in the Sexual Offences Act so that where, for example, the initial consent to penetration is withdrawn during penetration, if the penetration continues, then the offence of rape or assault by penetration may still be made out. A similar provision is included in section 62(8) of the Coroners and Justice Act 2009 which proscribes the possession of a prohibited image of a child.
8.2 In the context of pornographic images, including this provision will ensure that where a sequence of images suggests initial consent to penetration, but this consent is withdrawn during penetration, the offence may still be made out as the continuing non-consensual penetration does constitute an offence.
9 .0 Recommend Establish a C ommission on Pornography and Obscenity
9.1 We welcome the Government’s recognition that rape pornography is ‘extreme’ enough to be included in extreme pornography law.
9 .2 We hope, however, that these amendments are just the beginning of a new approach to the regulation of obscenity and pornography, focussing on its cultural harm.
9 .3 We recommend the appointment of a Commission on Pornography and Obscenity tasked with the wholesale review and revision of the obscenity and pornography laws. This Commission should consider reform of the Obscene Publications Act 1959 and its now outdated and erroneous focus on the ‘depravity’ of the consumer of obscene materials. It should examine the prosecutorial policy which continues to label as ‘obscene’ material that may be distasteful for some but is not unlawful to perform. It should review and recommend revision of the law and regulation to ensure that it is up-to-date for our technological age.
10 .0 Relevant publications
McGlynn, C. and Rackley, E. ‘Criminalising Extreme Pornography: A Lost Opportunity’ (2009) Criminal Law Review , 245-260. Available at: http://dro.dur.ac.uk/8111/1/8111.pdf?DDC117+DDC72+DDC71+DDD19+dla4jap+dla0cmm+dul4eg
McGlynn, C., and Rackley, E. ‘Why Criminalise the Possession of Extreme Pornography’ New Statesman , 12 February 2014. Available at: http://www.newstatesman.com/politics/2014/02/why-criminalise-possession-rape-pornography .
Rackley, E. and McGlynn, C. ‘Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law’ (2013) Criminal Law Review 400-405 .
McGlynn, C. and Rackley, E. ‘Striking a Balance: Arguments for the Criminal Regulation of Extreme Pornography’ (2007) Criminal Law Review 677-690.
McGlynn, C. and Rackley, E. ‘The Politics of Porn’ (2007) New Law Journal 1142. A vailable at: http://www.newlawjournal.co.uk/nlj/content/politics-porn
McGlynn, C. and Ward, I., ‘Pornography, pragmatism and proscription’ (2009) 36 Journal of Law and Society 327-351.
McGlynn, C and Ward, I, ‘Would John Stuart Mill have Regulated Pornography?’ (2014) Journal of Law and Society forthcoming.
 As recommended in McGlynn & Rackley, ‘Why Criminalise the Possession of Rape Pornography?’ New Statesman, 12 February 2014, available at: http://www.newstatesman.com/politics/2014/02/why-criminalise-possession-rape-pornography
 See, for example: McGlynn & Rackley, ‘Why Criminalise the Possession of Rape Pornography?’ New Statesman, 12 February 2014, available at: http://www.newstatesman.com/politics/2014/02/why-criminalise-possession-rape-pornography and BBC Radio 4 Woman’s Hour: ‘Extreme Pornography - should the laws be reformed?’ 8 May 2013available at: http://www.bbc.co.uk/programmes/p018rdr5.
 Scottish Justice Committee Report, SP334, 18th Report (2009) Stage 1 Report, [292-294; 310].
 See further, End Violence Against Women Coalition "Campaign to ban 'rape porn'"
 http://www.endviolenceagainstwomen.org.uk/media-sexism [accessed 8 March 2014].
 McGlynn and Rackley, ‘Criminalising Extreme Pornography: A Lost Opportunity’ (2009) Criminal Law Review 245-260.
 McGlyn and Ward, ‘Pornography, pragmatism and proscription’ (2009) 36 Journal of Law and Society 327-351.
 McGlynn and Ward, ‘Would John Stuart Mill have Regulated Pornography?’ (2014) Journal of Law and Society forthcoming.
 McGlynn and Rackley ‘Why Criminalise the Possession of Extreme Pornography?’ Durham Law School Briefing Paper (Feb 2014), available at: https://www.dur.ac.uk/resources/law/research/RapePrnFeb14.pdf.
 Office of the Children’s Commissioner, ‘Basically ... porn is everywhere’, 2013, available at: http://www.childrenscommissioner.gov.uk/content/press_release/content_505.
 CJIA s 63(7) and Criminal Justice and Courts Bill clause16(2)(c).
 Article 9 of the Council of Europe Convention on Cybercrime (2001) (Offences related to child pornography) extends to ‘realistic images’ which, the explanatory notes state, includes ‘real and simulated images’.
 http://www.endviolenceagainstwomen.org.uk/data/files/Closing_the_loophole_on_rape_pornography.pdf [accessed 10 March 2014].
 Quoted from Factsheet on Pornographic Rape Websites: https://www.dur.ac.uk/resources/glad/GLADFactsheet.pdf.
 CJIA S63(5).
 This mirrors section 42(2) of the Criminal Justice and Licensing (Scotland) Act 2010.
 As we have argued in more detail in: Rackley and McGlynn, ‘Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law’ (2013) Criminal Law Review 400-405.
 This mirrors section 4 of the Obscene Publications Act 1959.