All posts edited by Madeline Ricchiuto.

Thursday, May 9, 2013

Extreme Porn and the Law - What Can Be Done and What Should Be Done

Yesterday, I attended a seminar at Durham University on extreme pornography and the law. Speakers and attendees came from all over the UK, coming from universities, rape counseling centers, or as people who had interaction with the UK laws on extreme porn.

The seminar started by exploring some of the ways the current laws for England and Wales, set out in the Criminal Justice and Immigration Act 2008 (CJIA), are misunderstood or misapplied. Professor Erika Rackley discussed the failure of the law to include images portraying rape under the umbrella of extreme porn.

Following Rackley there was a presentation by Simon Walsh, a barrister in London, and his interaction with the extreme porn laws. His presentation highlighted how easily the current laws are able to be misused and abused. His case exemplified how such laws can be used as a malicious attack on sexual minorities.

There was also a presentation given by Alex Dymock, a PhD candidate at the University of Reading, which criticized the current law's punishing of the possessor of porn rather than the producers. She questioned many of the arguments used to ban such pornography, primarily the 'protection of society'.

From these presentations and the subsequent discussions of them I would like to explore the idea of extreme porn and what the law can do.

The first thing we need to do is find our starting point. What do we mean when we're talking about 'extreme' porn? Well right now, extreme porn in English law is defined as :
(6)An “extreme image” is an image which—
     (a)falls within subsection (7), and
     (b)is grossly offensive, disgusting or otherwise of an obscene character.
(7)An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
     (a)an act which threatens a person's life,
     (b)an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals,
     (c)an act which involves sexual interference with a human corpse, or
     (d)a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.
AND
(3)An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

In short, an image is considered porn if produced for sexual gratification and is considered extreme if it is considered 'offensive, disgusting, or otherwise obscene' and depicts life threatening activity, acts that result or are likely to result in serious injury, necrophilia, and beastiality. All of this is can be found in section 63 of CJIA.

First, I would like to draw attention to subsection 6 part b, which states that for something to be considered extreme it has to be considered offensive, disgusting, or otherwise obscene. I do not particularly agree with the wording of this. This allows for people to be prosecuted merely because what they do is seen as 'disgusting'.

I think as people we should be able to agree that just because someone may find one act disgusting should not make that act illegal. Many people to this day find homosexuality and sex between two men to be 'disgusting' and 'obscene,' but I like think that even they would agree that it shouldn't be illegal. I would propose moving away from using a highly subjective test and instead test/focus a little more on something more concrete such as harm (although this too can be considered subjective by some).

In addition to the current laws having a focus on 'obscenity' and 'disgust' when determining what is or isn't illegal, they also have a tendency for shaming when forming a defense against such charges. One such defense (if the image is a personal one) is to show that they (the defendant) were participating in the act and that all participants were consenting. So a person who is in court because of a picture that is considered 'disgusting' has to prove to a judge and jury that they were not only present but participating?

Many times proving such things requires people to go to great lengths. Simon Walsh said that during his trial it was not sufficient for him to state that he was present and participating, but that further proof was required. It was put on him to provide photo or video or witness evidence for his claim. This raises the point of proving all parties are consenting. In order to do this it would generally require the other parties to be present or be somehow brought into the trial. But as Simon Walsh put it, who would want to admit and publicly claim to be part of an image that may or may not be illegal; something which is to be determined by the court that is asking about your participation?

I understand some of the rationale behind this defense and some of the requirements but at the same time it almost seems to be purposefully weeding out those who are 'disgusting' and 'obscene' to be put into the public's eye and shamed. It seems that, even if unintentional, this seems to be the outcome of legal regulation of sexuality.

It seems really easy to just say that the current law isn't working, and many people (in fact everyone at the seminar) agree on this. Debate seems to stem on what should be done about this legal shortcoming. In order to answer this question we need to address some of the very basics.

The first thing we need to contend with is what the purpose of law is and what is should do. Law is about protecting people and a society in most cases from harm. Law is about protecting liberties for all not just the few. So when considering a new law we need to keep this in mind.

When thinking about this I tend to ask would the proposed law, or changes, serve this function? Many, like Professor Rackley and her colleague Professor Clare McGlynn, are of the opinion it would in this case. They, and others, assert that by legislating and regulating extreme porn consumption we can reduce cultural harm such as misogyny, sexual objectification of women, and the failure to take violence against women seriously.
"Arguments of direct, causal links between pornography and violence are over-simplistic. Nevertheless, the proliferation and tolerance of such images [images of rape], and the message that they convey, contributes to the creation and perpetuation of a cultural climate in which sexual violence is condoned, and seen as a form of entertainment."
To accept this argument one needs to first accept a causation between seeing the images and violence against women. As stated above, direct causal link is not easily found and seems to be simplistic; there are those who do not accept that the indirect causation is enough of a justification for said laws. Dr. Clarissa Smith, Associate Director of CRMCS, Co-editor of Porn Studies, and editorial board member of the Journal of Gender Studies, Sexualities, Cine-Excess eJournal, and Participations, takes the stance that there needs to be a stronger causal link between such pornographic images and violence against women. She also contends that there can be legitimate reasons for accessing such images; noting that many survivors of sexual violence go to such sites and that many go to such sites to get a sense of such a sensitive subject.

Others at the seminar also expressed similar views, claiming that evidence of a correlation between sexual violence and pornographic images is not enough evidence to justify banning the possession of such a law. Alex Dymock, suggested that such laws may be misplaced. She put forth the idea that putting the spotlight on the consumer may not do or fight the harms as some propose. Rather it is proposed to focus on those producing and distributing such images.

Its a difficult topic to reach a consensus on, however it was noted that a new comprehensive study on the causal link is to be released May 24th. The study is said to take hundreds of other studies and compare their results. Maybe with this new piece of of research more of a consensus can be reached. Until then, it seems more prudent to me to not rush into banning or criminalizing possession of certain types of images without sufficient evidence of harm.

An important topic of this is to discuss images where is seems like there was not consent; the prime example being rape fantasies. Some pornography depicts scenes of rape but the actors are all fully consenting (this can be extended to other types of porn as well). Just as above there are many who look to ban such images from possession in addition to images of actual rape (yes those exist as well). Its an important question to ask, should something be illegal to make and distribute where everyone involved is consenting adult? We hold this notion that consent is an important part of sexual conduct (and in most everyday life) so why would the law seemingly go against that?

In response to such proposal's I would like to shed some light on some of what is depicted. I do not visit such sites but from discussion at the seminar we have learned some things about them. To start with many of the sites make claims that the depictions are of real rape. This is done to ensure that the fantasy isn't questioned and is therefore heightening please. Many of the tag lines can also be quite disturbing; things like "Nothing is better than seeing these good looking sluts getting raped" or "It doesn't matter if they want it or not." The language plays into the fantasy and is very clearly degrading towards, at least but not limited, the women involved in the fantasy. 

These two factors combined to me raises a real problem. We have disclaimers on television shows such as Law and Order: SVU, to say that the stories and depictions are fictional, so why is it acceptable to not do the same for something as sensitive as violent pornography? Will it undermine the fantasy? Yes. But isn't that on some level good? It may not be necessary to ban the whole image entirely from being viewed but I think making clear that it is not something that should be done or is condoned is important. The disclaiming needs to reinforce the idea that it stays as a fantasy and does not become reality

Many use the example of television as a way to say that such bans on imitated rape etc. should remain unbanned. A common counter argument used to that is there is a difference when the images are being used for sexual gratification. It is a counter argument that has some merit in my view but I think the difference is not great enough to counter the effectiveness of such disclaimer. To say otherwise seems to imply that people, in spite of warnings, are incapable of discerning what is and is not acceptable in real situations.

Questions, thoughts, comments, and opinions are all welcome! Send me a message or leave a comment below.

To read more on CJIA click here.
To read more on the seminar click here

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