#PornTrial: Masking the real questions

It's been a pretty dismal few weeks for the director of public prosecutions and Crown Prosecution Service. And a remarkably good time for civil liberties and free speech - although it's certainly not safe to take anything for granted.

First up was what became known as the 'Twitter joke trial', where one Paul Chambers had been prosecuted for a tweet about a nearby airport:

"Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!"

It wasn't the greatest example of Twitter humour, but although it attracted no panic initially, it was handed on upwards, until a subsequent decision was reached to do a spot of belated panicing.

Result? It was decided that the tweet was "a communication of menacing character".

Chambers was arrested at his place of work, marched out in handcuffs. He was charged and, in May 2010 found guilty at Doncaster Magistrates' Court, and fined £1,000. On appeal, it was upheld at Doncaster Crown Court, where he was faced with a further £1,000 costs.

Judge Jacqueline Davis declared: "We are satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear."

You do wonder what world (some) judges inhabit.

In February, two more judges at the High Court couldn't agree, so it went before a three-judge panel in July. Finally, common sense prevailed and Paul Chambers was acquitted, as the legal trio decided that nothing suggested that the original tweet had contained a real threat.

So, if at some date in the future, I tweet that, 'come the revolution, X, Y and Z will be first up against the wall', there is now a legal precedent in place to understand that this is humour - dry and probably not particularly funny, but nonetheless, not a serious threat either.

But if the CPS got its fingers burned over that idiocy, it was up to its elbows just a few weeks later.

#PornTrial as it became known on Twitter - it was the first case to be live tweeted from the courtroom - took things to a whole new level.

At this stage, I'm going to say that plenty of good articles and blogs have been penned since - but with the bulk of mainstream media ignoring it, the questions need repeating.

And there a few points that I in particular wish to look at.

However, let's start from the beginning. To précis: Simon Walsh is a barrister working on police disciplinary cases (remember this) and a member of the City of London Corporation, and Boris Johnson had appointed him mayor's representative to the London Fire Authority.

An openly gay man, he suddenly found himself at the centre of a police investigation, with some suggestions that they thought he had child porn.

So, first of all, they investigated his computers, at home and work, finding no porn at all.

Then they decided they'd better check his email (Walsh gave them the passwords) - and in doing so, helped to contaminate any evidence.

On a personal Hotmail account, they found 'dodgy' pictures.

One of the pictures was of a man in a gas mask. An 'expert' for the police claimed that this was very, very bad, since a gas mask could cause serious harm to the wearer - even death by asphyxiation.

Which is quite some stretch of the imagination, since the piece of equipment in question was specifically designed to assist breathing.

In a rare display of common sense as far as this case is concerned, charges pertaining to this picture were dropped.

The police quizzed his goddaughters, asking whether he'd abused them.

And they found a small number of pictures Walsh openly said he'd taken, of himself and (adult) male friends enjoying some fun - and an unsolicited email, which they could not prove had been opened, but which included a picture of a young male they claimed was below the age of consent.

That was enough for the Director of Public Prosecutions, who decided to press ahead, using the legislation enacted by the Labour government, known as On possession of extreme pornography.

Now I explained here why that legislation, and the consultation process that preceded it, was deeply flawed.

Everything about this case shows that my analysis at the time - in 2005 - was correct. With knobs added.

Expert witnesses proved, to the satisfaction of the jury (which unanimously acquitted Walsh on all six counts), that the young man in the picture that the prosecution claimed was evidence of child porn, that he was an adult male.

The picture had been unsolicited.

The prosecution could not prove otherwise - or even that Walsh had ever opened the attachment.

What's in your inbox or even your junk mail folder?

That's one aspect of the case. Let's move on.

Simon Walsh and his friends were consenting adults. What they did between themselves is in no way illegal.

You might not fancy the idea yourself - you might even be repulsed by the thought of it. But that does not mean it's illegal - or that anyone has a right to say that someone else should be prosecuted for it.

While certain acts may not themselves be illegal, the question was whether representing them (in pictures or on film) was against the law.

The law centres on whether the activities shown could produce serious injury.

The CPS barrister, Thomas Wilkins, decided to suggest to one expert witness that only people with 'risky' sex lives used sexual health clinics. That was rebutted by the witness, who responded by stating that clinics are used by anyone who takes their sexual health seriously.

Other expert witnesses testified that fisting and sounding (insertion of a tube into the penis - something also done for medical reasons) is unlikely to cause serious injury. Indeed, none of them had ever seen an example in lengthy careers.

Trying desperately to get the jury on his side by illustrating just how awful fisting is, Wilkins then suggested that, if it involved women, it would be "dehumanising".

Perhaps he'll explain that to women who enjoy fisting - whether heterosexual, lesbian or bi. Because the sticky reality is that some women do it, some women have it 'done' to them, and this is because they enjoy it.

It should never, ever be the business of the CPS to go around suggesting what, in effect, is acceptable sexual behaviour for women. And the point of the law should not be to make such moral judgements.

And the very fact that the CPS tried to use ideas of women - and prudish ideas at that - to support a case against a gay man, about a form of gay male sexual behaviour, is bang out of order.

Not that things ended there. In his summing up, Wilkins actually announced to the jury that the defendant had fantasised about orgies.

It's now an indicator of criminal behaviour to fantasise about an orgy? It's not even an indicator of criminal behaviour to take part in one!

And for goodness sake, that's probably a vast proportion of the population you've just effectively criminalised, since it's quite likely that many, many people have, at the least, fantasised about sex in such a situation.

But let's be absolutely clear: on the basis of Wilkins's summing up, even fantasies of perfectly legal acts can be used as evidence against you.

Your fantasy life is no longer yours.

In a case of extraordinarily intrusive behaviour, this little gem says so much.

The CPS has been in trouble before with stupid prosecutions under this legislation.

It prosecuted somebody for having footage of an animated tiger having sex with someone - because it was too dumb to turn up the sound and realise that there was a punchline at the end, and that the tiger was a CGI creation.

There are many questions raised by this case. Lawyer David Allen Green phoned the CPS press office pretty much the moment Wilkins came up with his 'risky sex' suggestion about sexual health clinics. They distanced themselves from that one pretty quickly.

But the performance on BBC's Newsnight, after the trial, of Alison Saunders, the chief Crown Prosecutor for the CPS, was hardly one to inspire confidence.

Saunders denied any connection with Simon Walsh's job - of course - but it remains to be clear as to just what the police had as a basis to even start the investigation.

And she appeared downright uncomfortable, if not embarrassed, to be facing such questions. As she should.

Are the CPS simply idiots - or is there an agenda here; either one of stopping Walsh's work, or a puritanical, controlling agenda, whereby some people at least are seeking to foist their mores on to the rest of the population, and particularly on those whose sexual behaviour they view as abhorrent?

Did the CPS really believe that fisting and sounding is likely to cause injury? Or did they quite deliberately lie to the jury to suggest this, as they needed to do if the images involving these things were to fall within the abysmally-worded legislation?

There is something utterly nasty about the prosecution - and persecution - of Simon Walsh.

And a further matter. Whereas the Twitter joke trial attracted widespread coverage, #PornTrial has seen much of the supposedly serious media rather quiet on the matter.

Are elements in the media simply embarrassed by some of what was discussed in court - or are they secretly disgusted, and possibly homophobic, and have allowed that to cloud their minds to the issues?

The Guardian should be praised for being open and covering the case well. The Independent came late to the table with a rather wishy-washy piece, but that was better than most. Perhaps surprisingly, the Sunday Sun deserves praise for a short opinion piece that was remarkably sound and sane, and not sensationalistic.

The Mail had managed, online at least, to do some smearing by misrepresenting the case early on - challenged by Myles Jackman of the defence team. But then, the Mail has no shortage of form in the area of LGBT issues. It did publish (online at least) a report of the acquittal.

The defence team are due great credit for their work - as is the jury, which took just 90 minutes to reach its conclusion.

But in both these cases - and others - we see some serious and worrying things that have the potential to rear their heads again unless the CPS and the police rethink their cack-handed onslaught on some very basic ideas of privacy and free speech.

The legislation that was so flawed to start with needs to go too, but that's unlikely at present. Let's face it, no mainstream political party is currently going to want to risk the wrath of the Mail by being perceived to 'support' alternative sexual activities and porn.

I'd like to think that this was the end of the war. Unfortunately, I suspect it's but a single battle. And it seems entirely possible that there will be more victims.

And these are not just cases about bad jokes and a few perves.


15/08/12 UPDATE: Interview with Simon Walsh at the London Evening Standard.

#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.