Wednesday, 8 August 2012

#PornTrial: a little background

Some of you, who follow me on Twitter or Facebook, will know that I've been tweeting about the #PornTrial that has just ended – and ended in the jury throwing out every single charge against Simon Walsh.

I will be writing, at length, about this specific case in due course, but the prosecution was brought under legislation passed some years ago.

The consultation exercise for that legislation was one that I took part in. The prospect then was of deeply flawed legislation: in becoming law, nothing has changed.

I thought that it would be interesting, therefore, to post here an article that I wrote about that subject in late 2005. For many people, it's an awkward subject and, perhaps because of that, nobody that I approached was prepared to run the article.

Looking back on it, I realise that it still more than holds up.

For the record, nothing has been changed from the original, except paragraph length, to make it easier to read online, since it was originally written for the print media, and the removal of one extraneous word.

Otherwise, I think – I hope – that it provides some background and perspective to the events of the last week.

Labour’s Section 28?

Jane Rogers* hardly cuts the sort of figure that, if you passed her in the street, would instantly suggest the words ‘criminal’ and ‘pervert’ to you.

But if the government gets its way that is exactly how she – and many others – could be branded. And with that tag will come the possibility of prosecution and prison. What can she be guilty of?

When Rogers was approaching 40, her ultra-religious background finally caught up with her. Out of the crisis that followed, she realised that she was bisexual and kinky.

The latter was the hardest to deal with, but one of the things that helped was the internet, both in terms of online communities that made her feel less isolated and the pornography that helped her to explore her own sexuality.

Now, however, possession of some of that porn could see her on the wrong side of the law, if the government’s proposed legislation on the Possession of extreme pornography passes onto the statue book.

The Home Office’s current consultation process is nearing the end of its first stage, but the consultation document itself is fraught with problems, while guidelines borrowed by the HO from the British Board of Film Classification flatly contradict the document and suggest that what is being proposed is little more than an attempt to control the sexual behaviour of thousands of consenting adults.

Let’s start with the consultation process itself. According to the Spanner Trust, which defends sadomasochists and campaigns to reverse the court ruling that made some consensual SM activities illegal, the Home Office has not even followed its own rules, which are set down in the Cabinet Office Code of Conduct on Consultations.

In a letter to the HO’s Consultation Coordinator, Pio Smith, the Trust lays out a series of ways in which the process was defective from the start. These included:

• a lack of informal discussions on the content of the document “with relevant stakeholders”;

• the HO failed to send the consultation to appropriate groups;

• no list of those consulted was originally attached to the document: when the Trust asked the HO about this, it was to discover that only the Metropolitan Police had been consulted.

At the time of writing, the Trust has received a reply stating that their questions have been handed on to the HO’s legal department.

So let’s move on to the consultation document itself.

In the introduction, it states that “any new offence would apply only to pornographic material containing explicit actual scenes or realistic depictions of:

i)     intercourse or oral sex with an animal;

ii) sexual interference with a human corpse;

iii) serious violence in a sexual context;

iv) serious sexual violence.”

In the case of the first category, the BBFC, in its response to the Home Office, states that it appears to be at odds with the definition in the Sexual Offences Act 2003 which only refers to penetration involving a penis and a vagina or anus.

“It might be curious,” says the BBFC, “to specifically criminalise possession of material which depicts an activity which is not itself illegal.”

The Board also expresses concern about the second category, on the grounds that it too suggests a wider definition than appears in the Sexual Offences Act of 2003, which only refers to acts of penetration with a corpse.

In the case of the final category, the document itself has a footnote to ensure clarity: “By “serious violence” we mean violence in respect of which a prosecution of grievous bodily harm could be brought in England and Wales or in Scotland, assault to severe injury.”

But this is not such a straightforward matter as it might appear. In reality, the HO is compiling a list of exactly what activities will be included in this definition of “sexual violence”, which it has largely taken from the BBFC’s own guidelines on what can be shown in R18 films.

These cover a variety of acts including defecation and “urolagnia” – in other words, passing excrement and urination in conjunction with a sexual act, urinating on someone or drinking urine.

The list also includes scat, which is an interest in smearing or eating excrement. And fisting is off the agenda too, although this makes no sense whatsoever, when the list also includes “insertion of an object. Only where the insertion clearly inflicts pain”.

Whatever you may personally think about water sports or scat, where is the “sexual violence” in them? And how did the HO legal bods decide that fisting – an activity that is particularly popular in some gay and lesbian circles – is sexually violent and, presumably, must inflict pain?

But then again, as was mentioned above, this list of verboten activities is coming from the BBFC, a body which, as Avedon Carol of Feminists Against Censorship points out, refuses to accept that such a thing as female ejaculation exists and bans anything that claims to show this on the grounds that it is ‘obviously’ urine.

It highlights a problem that she characterises as society having moved on sexually, while the people who sit in judgment on such issues have not, and often retain the attitudes of a generation or two ago.

Carol notes that the kind of people making these judgments start from an “assumption that anything sexual is degrading to women”… “they struggle to realise that fucking isn’t degrading to women.”

But the document gets worse. For instance, it talks in broad strokes about “aberrant sexual behaviour”, without ever bothering to define this or to explain who will decide what is “aberrant” and what is not, although it makes clear that the aim of any legislation would be to “discourage interest in this material which we consider may encourage or reinforce interest in violent and aberrant sexual activity.”

There it is again: by their own admission, this is not just about trying to stop violence, but about other, non-violent behaviour that they consider “aberrant”. 

The document also makes clear that we are in the terrain of deciding what may “deprave and corrupt” (a phrase invented by the Victorians when they created the concept of pornography) those who see it, which even the HO admits is an idea that is susceptible to great subjectivity.

Yet the nannying tone gets even more explicit when the document states that “our proposals… are based on… a desire to protect those who participate in the creation of sexual material containing violence, cruelty or degradation… whether or not they notionally or genuinely consent to take part.”

Yet since the justification for proposed legislation is the protection of women, this infers that women who choose to participate in whatever acts the HO doesn’t like need protecting from themselves. In other words, we are in the realms of the government wanting to decide what sexual behaviour is “degrading” for women in particular.

In sections 28 and 29 of the main document, it informs the reader that “there is a substantial body of research which explores the effects of pornography on attitudes, beliefs and behaviour”.

It goes on to tell us a little more about the kinds of research that have been undertaken, and then points out that “the interpretation of the findings of this research has been the subject of reviews commissioned by governments in the US, UK, Australia and elsewhere over several decades, and the subject of public debate is often coloured by a moral or political outlook.

This has made it difficult to get a clear picture and understanding of the possible harmful effects of pornography.” In other words, even the HO knows that there is no evidence that links pornography of any kind with increased violence against women or anyone else.

Indeed, in the Executive summary, earlier in the document, the authors admit that: “As to evidence of harm, conducting research in this area is complex.

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, on those who may already be predisposed to violent or aberrant sexual behaviour.”

What the authors won’t admit is that not only does no such evidence exist, what evidence does exist is contrary to the conclusion that they have already made and want evidence for. “We know a lot about sex crime,” explains Carol, “but you can’t say it.

Nobody wants to acknowledge that most offenders come from sexually repressive, religious backgrounds – not the homes of relaxed atheists with Playboy lying around.”

It can be no coincidence that, along with one of the highest levels of censorship of pornography and erotic materials anywhere in the Western world, Britain also has one of the highest levels of sexual assault. Given that countries with lower levels of censorship have lower levels of sexual assault, perhaps someone should ask ministers whether they’re actually trying to cut violence against women – or increase it?

The document admits that the “proposal which we have set out will impact upon the freedom of individuals to view what they wish in the privacy of their own homes.”

Let’s extrapolate a little. If the HO’s definition of “serious violence” apparently means “violence in respect of which a prosecution of grievous bodily harm could be brought in England and Wales or in Scotland, assault to severe injury,” while their BBFC-inspired list of unacceptable practises for porn includes non-violent ones, does that mean that consenting adults will, in future, be able to be prosecuted for spanking games that leave reddened the buttocks? Or for peeing on one another in the privacy of their own bathrooms?

And if you think that all this sort of thing is of interest to just a tiny minority of the population, then think again: whilst most of the data is from the US, Kinsey’s findings on BDSM (bondage-dominance/dominance-submission/sado-masochism) show that:

• 5-10% of the US population engages in SM for sexual pleasure at least occasionally (Lowe, 1983).

•14% of men and 11% of women have had some sexual experience with SM (Janus & Janus, 1993).

•11% of men and 17% of women said that they had tried bondage (Lowe, 1983).

For the sake of the argument, let’s assume that the figures in Britain would be similar. If we take the first percentage, for engagement in SM on at least an occasional basis, turn it into a median of 7.5% and calculate for a British population of approximately 60 million, then that’s 4.5 million British people who like a little kinkiness in their sex lives. That’s a lot of people.

So what is the government attempting to do with this proposed legislation? Its own admission that no evidence exists to suggest that the proposals would make an iota of difference to rates of violent assault against women suggests that something else is on the agenda.

Can it really be trying to legislate for what sort of sex it considers appropriate, particularly for women?

Paul Goggins MP, the undersecretary for state who is heading the drive for legislation is an ardent Catholic. According to the Spanner Trust, so are three of his five HO advisors helping to push this through. The premise that “anything sexual is degrading to women”, as Carol noted, is a dominant one in Roman Catholicism and continues to inform much of the church’s stance on women.

Is it really the best judge on female sexuality in a largely secular society?

Or is the push for legislation, as Carol asserts, “a distraction”, from Iraq, from “keeping people in prison for three years without due process”, from “a number of difficulties”?

Or is it an attempt to sneak through invasive and controlling regulations – possibly, as with other aspects of its onslaught against civil liberties, on security grounds – on the back of an emotive issue?

The consultation document mentions child pornography on a number of occasions, with no apparent aim other than to link that with what consenting adults may or may not wish to do and see. In other words, to raise the spectre of abuse.

And after all, who is going to say that trying to stop abuse and violence against women is a bad thing? But if that is the case, then the government is doing a huge disservice to precisely the people that it claims to wish to protect.

Back to Rogers. She laughs at the suggestion that she is an exploited woman who needs protection from her “aberrant” sexual desires and behaviour. Such a concept doesn’t really tally with the improvements in her own life that she cites since starting to openly explore her sexuality.

Not only does she explain that she is she more confident in ordinary life (and, as such, not the subject of verbal abuse in the street as she used to be), but her sex life has improved.

“I no longer think orgasms are an invention of glossy mags,” she says with a wry smile. “Is it any of the government’s business how I get them – as long as it doesn’t involve anything non-consensual or kids?”

She might well ask.

*Name changed to protect the guilty.


  1. During the commons committee of the bill containing the legislation, the man who is now the government's solicitor general looked askance at what is now section CJIB 63 and said this -

    "Proceedings for an offence under this section may not be instituted without the consent of the DPP. I hope that a sensible DPP, faced with
    such a charge under this clause as currently drafted would say "no"

    -Edward Garnier QC, MP shadow justice minister, CJIB committee


    "something really quite radical, either on report or in the other place (the Lords), so that the Bill is produced in a sensible form".

    -Edward Garnier QC, MP shadow justice minister, CJIB committee

    Those of us who tried to warn at the time about the danger this needless and idiotic legislation could represent to just about anyone didn't get far-but we are being proved right about Blunkett, Straw and Salter's folly, which gives the authorities wide new powers to launch sexual persecutions against individuals over their private lives. It's far more evil than Thatcher's section 28 which didn't threaten to drag people into prison and onto the SOR. The law has ruined many lives and made the country a laughing stock among sanely governed countries. But this government, with its solicitor general, second highest legal officer of the government, who admits sec 63 is dangerously absurd legislation, shows no interest in repealing or even amending this deranged law.

    1. Watching 'Newsnight' last night, I couldn't help but nurse a hope that Paul Coggins feels a tad ashamed for his role in shaping and pushing through the legislation. I suspect it's a forlorn one, though.

      You could, of course, bring wrongful prosecutions using good law – but this has never been good law, from its inception.

      I don't think we should forget that Section 28 is widely said to have led to increased homophobic bullying, never mind leaving teachers confused and scared over what they could and could not say in a classroom, with a fear of possible prosecution. In that way, I think this mirrors Section 28 – not least as it is essentially so open to subjective views.

  2. Hi Amanda, thanks for a good write up and overview of this, have been only vaguely following it, so useful to get a picture of the background. I think it's a really difficult issue for people to come on board with - either they're not kinky so think 'ew, yuck', or 'nothing to to do with me' or they are afraid to come out. Perhaps what's needed is kink lib?

  3. Thank you.

    And yes, I think you're absolutely right. It must have been awkward for the jury too.

    And yes – kink lib next. :-)

  4. The home office department is a panorama-fail of shit, authoritarian legislation and is seemingly fairly free from political control. Next up snooper's charter.
    This piece really deserved to be picked up when it mattered.