Criminalisation of Extreme Pornography: Analytical Essay

‘Pornography containing violent imagery is undoubtedly problematic. However, increased censorship, in the form of criminalizing the possession of extreme pornographic materials, is a step too far.’

Critically analyze this statement in light of the broader themes of Law and Social Justice, using examples to illustrate your points.

Introduction

The regulation of extreme pornography has been a matter of intense debate throughout the United Kingdom's judicial system for many years. With the impact of technology and the internet, the circulation of extreme pornography has grown intensely. In 2005 the Government consulted on proposals to criminalize the possession of 'extreme pornography', which included particularly visual material depicting necrophilia, bestiality, serious sexual violence, and serious violence in a sexual context. The principle of extreme images causing harm to those who are included within them, and also those who view them, is elite in the discussion of criminalization. However, despite the ongoing references to the harm that extreme pornography may cause, there are many conflicting debates relating to the restriction of sexual freedom and anti-censorship.

This essay will demonstrate the reasons both for and against the regulation and criminalization of extreme pornography. There will be a discussion surrounding why it may be necessary to regulate extreme pornography to reduce the harm caused, mainly towards women, however, why it also may be a step too far, particularly about those consenting within pornography and anti-censorship. Relevant cases will be used to support the points raised in this essay.

What is extreme pornography?

The first significant pornography offense came to light in 2008, in section 63 of the Criminal Justice and Immigration Act 2008 (CJIA 2008), which was established to protect those who participate in the creation of sexual material containing violence and also to protect society from exposure to such material. The offense contained within section 63 of the act was only deemed to regulate the possession of extreme pornography, whereas the previous offenses contained in the Obscene Publications Act were created to regulate the production and distribution of pornographic images. This new offense contained in section 63 focused mainly on consumers. Soon after the offense was created, there were quickly several prosecutions, with figures revealing 2236 cases being heard between July 2008 and November 2011, showing emphasis being placed on possession had been successful.

The act makes it clear that the defendant must have custody and control over the item, however, must have knowledge of the pornographic image in question. For example, in the case of Ping Chen Cheung, the defendant knew he had in his possession DVDs, which he did not know contained extreme pornography.

Defined in s.63(3) of the CJIA 2008, a 'pornographic' image is of 'such a nature that it must be reasonably assumed to have been produced for the purpose of sexual arousal”. The test is objective, and the intention of those who created the images will be irrelevant. To reach the threshold of an extreme image, it must portray in an explicit or realistic way any of the acts set out in section 63(7): [a] an act which threatens a person's life; [b] an act that results, or is likely to result, in serious injury to a person's anus, breast or genitals; [c] an act that involves sexual interference with a corpse; and [d] a person performing an act of intercourse or oral sex with an animal. 'Image' implies a moving or still image, and 'explicit' and 'realistic' carry their definitions contained within the dictionary and convey that the images need not portray real activities.

Pornography and the harm principle.

The development of the criminalization of extreme pornography was given impetus by the case of Jane Longhurst in 2003. Longhurst was killed by ligature strangulation in Coutts's home during sexual intercourse to satisfy Coutts' fantasies, including strangulation and necrophilia. The prosecution in the case mentioned, with high importance, the fact that Coutts was a regular visitor to pornographic websites that portrayed women in sexual activities involving strangulation and death. This evidence was deemed admissible and essential by the trial judge, who stated the jury was 'entitled to weigh up the likelihood' of the murder occurring by accident, and it happening in coincidence within hours of the man watching pornography. There was this precise analysis that derived from the case that the consumption of the viewing of this extreme pornography had 'fuelled' the defendant's sexual desire and ensuing murderous acts, which was an essential argument within the Jane Longhurst Trust- who presented a petition comprising of 50,000 signatures. This case was a stand-out interpretation that extreme pornography produced harm to not only those women in it but also those who watched it- which was problematic and gave support to why extreme pornography needed to be criminalized. The Government used the case as a basis for introducing the legislation, which produced a debate in which both supporters and detractors rejected a morality-based argument and instead focused on the argument about the potential for extreme pornography to produce criminal and physical harm.

The Home Office proposals in 2005, and also the Government’s summary of ‘Responses and Next Steps’ in 2006 were accompanied by much discussion of the Jane Longhurst case. Both the proposals refer to the desire to reduce the demand for such material to help 'protect those who participate in the creation of sexual material containing violence, cruelty or degradation, who may be the victim of crime in the making of the material'. The proposals made clear the problematic causal connection between viewing extreme pornography and carrying out acts of violence and acknowledged that the possibility of extreme pornography might 'encourage interest in violence or aberrant sexual activity'. The proposals were, however, criticized due to their vagueness, especially the terms' serious sexual violence' and 'serious violence in a sexual context'.

Subsequent to the consultation, the government engaged in Rapid Evidence Assessment in order to address the issue of causation. Throughout the process, the government would refer to the assessment to justify the creation of the legislation.

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Harm or morality?

A key issue that arose during the debates surrounding the criminalization of pornography is the lack of conclusive evidence between viewing material and committing criminal acts that were relied upon within the Rapid Evidence Assessment. The consultation paper stated: 'We do not yet have sufficient evidence from which to draw any definite conclusions as to the likely long-term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behavior’. This statement showed that no causal link could be proven, despite what the Government and Home Office proposed.

The Government's justification for the legislation can be said to have remained centered on moral arguments. This idea is made clear by Lord Hunt in the House of Lords when saying 'I frankly find it horrific that they are available, and people can see them’ - a highlighted moral issue. This precludes academics from showing that the legislation created is entirely based on the harm caused to those within the material and those who view it. Lord Hunt, as previously mentioned, makes it clear that section 63 is based on ideas of moral protection. The legislation criminalizes the possession not to protect from physical harm, but, instead, to extend obscenity provisions and to regulate images that people may find disgusting. This can, therefore, be said to be a step too far in criminalizing extreme pornography due to legislation being only based on the moral compass of those who created it. This moralistic value may be different from what is accurate with regard to the link between viewing extreme pornography and the harm it could potentially cause.

A step too far- consent

There is concern surrounding the issues of consent from those within the extreme pornographic material. Consent is insufficient in terms of extreme pornography; made clear in the case involving BDSM- R v Brown, Laskey, and Jaggard, where a group of men was consenting to violent acts for their sexual pleasure. The existence of consent to extreme violence for sexual gratification, as claimed by some, does not negate the fact the behavior is harmful and also degrading. However, the provisions in the CJIA extend to realistic images or depictions of violence which critics see as oppressive, and a step too far.

However, despite claims that individuals cannot fully consent to violent acts during the creation of pornographic material, there are issues that legislation may criminalize law-abiding citizens due to the fact the provisions are overbroad. Stigmatization may arise with regard to those who take photographs of themselves and their partners for their personal purposes with the consent of all those involved. This issue was raised by those within the BDSM community, who point out that those participating in sadomasochistic acts could be committing an offense if images are found. Those in the BDSM community also wanted an exception for educational material. They could provide safety advice and workshops to show how to practice safe sadomasochistic practices. The idea arises mainly due to deaths that occur during these particular acts, for example, in the recent case of Grace Millane, where her killer then went and watched extreme pornography after her death during sexual activity and was also part of a BDSM online community.

Backlash argues that if legislation is necessary, it should be limited to material that involves abused and non-consenting participants, so those who participate in staged and non-abusive productions are excluded. They also distinguish between those who enjoy viewing the material which reflects their own sexual identities and those viewing the material who enjoy seeing violent acts such as rape for their sexual gratification- clearly a harmful concept. It is, however, difficult to see how a jury would apply such a distinction during trials.

Supporting arguments for the criminalization of extreme pornography

There has been a considerable amount of support for the Government's proposals from a wide variety of feminist groups as well as conservative organizations. What unites both of these groups to create a strong support force is their perception that all forms of pornography are objectionable. Both conservative and radical feminists believe the Government should go further in their proposals to criminalize extreme pornography, with examples such as the 'eating of facies and urine' being put forward to be added to the list by various police forces.

Radical feminists take a strong view that harm is gendered, involving men's violence and the exploitation of women. Feminist organizations which support the consultation were united in the concern that the ubiquity and misogyny of pornography are implicated in the prevalence of violence against women. The Westminster University Child and Women Abuse Studies Unit argue that the 'existence of virtual ubiquity of pornography creates a cultural context which devalues women's humanity and dignity'. This statement, again, highlights the problematic imagery within extreme pornography.

The conservative groups that support the criminalization of extreme pornography focus mainly on the moral harms as a basis for the action. Mediawatch-UK argues that pornography 'encourages a distorted attitude towards human sexuality’. This approach is contrasting with that of feminist organizations, with conservative groups objecting to explicit material rather than arguing about criminalizing material that is abusive and degrading towards women.

Is criminalization a step in the wrong direction?

Anti-censorship and sexual freedom are one of the leading arguments against the criminalization of extreme pornography. Anti-censorship is based on the idea that the state should not interfere with the rights of citizens to choose how to live their lives, and concerning this matter, those who choose to participate in pornography. Sexual freedom organizations apply for the anti-censorship position, particularly in the cases of sexual expression. As mentioned previously, this is particularly impactful on the BDSM community, who consent to what could be seen as criminalizing acts during sexual intercourse. The Sexual Freedom Coalition was also concerned with the possible harassment of citizens leading an alternative lifestyle, especially those who practice extreme consensual sexual behavior. The consultation paper seems to imply that practices relating to this do not exist. Those subject to sexual violence are seen only as victims who require protection by law.

In addition to this, the theory claiming people should be punished for viewing an image that involves the idea of sexuality with violence, rather than a real instantiation of it, shows the proposal being made is to introduce a form of 'thought crime'. This criminalizes what people think- another conception that this legislation may be a step too far.

Conclusion

In this essay, there is clear debate surrounding both the arguments for and against, the criminalization of extreme pornography. However, as MacKinnon claims, 'discussion has regressed to its old right/left, morality/freedom rut, making sexual violence against women irrelevant and invisible’. This statement is evident since parliament has failed to consider broader arguments of harm, extreme pornography, and sexual violence, and has failed to specify where the harm lies in extreme pornography. There are no clear conceptions and conclusive evidence as to why this pornography should be criminalized, and what harm it actually can cause. Cases such as Longhurst are sporadic, so should people be restricted from sexual freedom and censorship? Despite this, it is also clear to see that it could be harmful to those who participate in the extreme, especially non-consensual, pornographic material, which is why regulation may be necessary to prevent this.