Government attempts to get to grips with violent pornography

Abstract Crime analysis: Myles Jackman, a solicitor-advocate specialising in obscenity and extreme pornography, responds to the governments latest clampdown on the possession of violent pornography depicting simulated rape. Original news Financial Times, 22 July 2013: Google and Microsoft have now agreed to cooperate with the government in tackling illegal online pornography following David Camerons warning that a new law will be introduced against the companies if they fail to act. What is the government proposing in relation to pornography containing simulated rape? In a speech to the National Society for the Prevention of Cruelty to Children on 22 July 2013, Prime Minister David Cameron stated that pornography that depicts simulated rape normalise(s) sexual violence against women, despite the absence of any evidence proving such a causal link. By way of contrast, the Ministry of Justice criminal policy unit previously stated it had no evidence to show that the creation of staged rape images involves any harm to the participants or causes harm to society at large. Nonetheless, the Department for Culture Media and Sport then released a paper on 30 July 2013 entitled 'Connectivity, Content and Consumers which stated that *it is+ also closing a loophole in the Criminal Justice and Immigration Act 2008 (CJIA 2008), so that it is a criminal offence to possess extreme pornography that depicts rape. It is important to note that rape-pornography as defined by the government would only apply to consensual, simulated, fantasy material. Therefore, the possession of an image capturing an actual rape, for example CCTV footage, would not be illegalbut a make believe image created by and for consenting adults would be open to prosecution. How do the governments proposals fit in with the law on the possession of extreme pornography? In brief, they dont. According to the CPS Guidance on the elements of the offence and the CJIA 2008, s 63(7), such an image must be explicit and realistic. It would seem inconceivable for a consensually created adult image depicting a simulated act to be considered realistic. Thus, the attempt to shoehorn the rape-porn amendment into s 63 would seem to be defeated by the existing legislations realistic test. The realistic test was applied in the test case trial of R v Webster (unreported), where the defendant was charged with possession of fake-snuff pornography. In R v Webster the same performer demonstrated a Lazarus-like resurrection ability to die seven times subject to different make-up, wardrobe and location changes. An expert witness for the defence called the images less realistic than the average British soap-opera. The jury found the defendant not guilty.

Could the criminalisation of such images be open to challenge and on what grounds? There may be scope for both judicial review and legislative challenges based on Articles 8, 9 and 10 of the European Convention on Human Rights (the rights to respect private life; freedom of thought, conscience and belief; and freedom of expression); as well as challenging the vagueness of the law. Watch this space for further updates. What does this development tell us about the governments approach to pornography? Like the police, prosecutors, the judiciary, and even defence solicitors, it would seem that the government does not understand either pornography or the global nature of the Internet. It would appear to me that the government has attempted to use rape-porn and Internet filtering as a smokescreen to distract voters from more pressing issues like: poverty, austerity, immigration, privacy and surveillance. The fact that Claire Perry MP and others have suggested Internet filtering as a solution to the availability of pornography, along with eating disorder websites and other esoteric material (all under the aegis of child protection, rather than education, discussion and parental responsibility) suggests the government saw this as a quick-fix measure. The growing opposition to these measures suggests these propositions will not be as easy to pass as the government may have anticipated. What are your predictions for the future? The Prime Minster has already suggested that not only will pornography be filtered, but so will selfharm material, which is both a dangerous conflation and an indication of the prohibitionist tendency within government. Furthermore, I also anticipate a deliberate crackdown on text-based fantasy material in line with the decision in the case of R v GS [2012] EWCA Crim 398 prohibiting consenting adults from discussing their sexual fantasies in recorded text form. Myles Jackman practices general crime and has developed a niche specialty in Extreme Pornography and Obscenity offences, having acted in a number of high-profile cases. As a consultant at Hodge Jones & Allen, he is also interested in supporting the rights of protesters, mental health issues within the criminal justice system, privacy and developing sexual civil liberties law. He was awarded Law Society Junior Lawyer of the Year in 2012 for his outstanding work on obscenity law. You can follow Myles on Twitter at @ObscenityLawyer. Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.