To the censors, we’re all Aboriginals now

On 22 June, in response to a report showing high levels of sexual abuse of Aboriginal children, the Australian government announced a ban on Aboriginals accessing pornography. The ban was denounced in Australia and across the world as racist, unworkable and largely irrelevant to the problem.

On 26 June 2007, the New Labour government in Britain introduced its fifty-fourth Criminal Justice Bill, adding 19 new criminal offences to the 3,000 created since it came to power. The probation officers union estimated that this will add another 3,000 people a year to the prison population, currently at a record 81,000. One of the new offences will be the possession of ‘extreme pornographic images’ and those found guilty risk three years in jail, or a hefty fine, or both. They will also be put on the Sex Offenders Register, and thus have their lives wrecked. However, the announcement of this draconian measure has caused barely a ripple of comment in the British media.

Like the Aboriginal ban, the British one has its origins in reaction to an actual event, namely the death in 2003 of Jane Longhurst. In 2004, Graham Coutts was convicted of her murder, and much of the prosecution case hinged on Coutts’ frequent visits to internet sites containing violent pornography – to the delight of much of the press, of course. As a result, Longhurst’s mother Liz, greatly helped by the Labour MP Martin Salter, organised a 35,000-strong petition calling for the banning of such sites. Inevitably the Daily Mail became a cheerleader for the cause, shrilling that the murder was ‘unequally disturbing in that it could have happened only in this high-tech age, committed by someone whose murderous fantasies were fuelled by appalling images freely available on the internet’.

However, not only did the court case produce no evidence of a direct, causal connection between Longhurst’s death and Coutts’ internet visits, but last year Coutts won an appeal against his conviction. The Law Lords ruled that the jury should have been offered the verdict of manslaughter, and not simply murder, on the grounds that Coutts had always claimed that Longhurst’s death was an accident during consensual sex. The new trial began in June, and is continuing.

In the wake of the original trial, in the usual spirit of Something Must Be Done to appease the Mail-reading classes, the Home Office produced the knee-jerk and ill-considered Consultation on the Possession of Extreme Pornographic Material (1). As I and others pointed out in responses to this document, this wasn’t actually a consultation at all but an excoriation of certain kinds of pornography and an invitation to acclaim a decision which had already been taken – namely to make it a criminal offence to possess these kinds of pornography (2).

In my own response, I specifically complained that the whole sham exercise breached the Cabinet Office Code of Practice on Consultations; in particular, there were no informal discussions on its content with relevant stakeholders; it did not properly seek to gather evidence; it did not invite challenge to its premises; the questions were leading; and alternatives to regulation were not properly considered (3). My complaint was quite simply ignored.

The Home Office received a total of 397 responses to the ‘consultation’ (4). While the majority of individuals who responded opposed the proposals, the majority of organisations supported it (whilst mostly complaining that they did not go far enough). The organisations consisted mainly of police forces, moral entrepreneurs and groups representing women, children and religious interests. The table below shows the numbers of individuals and groups who said ‘yes’ or ‘no’ to the government’s proposals:

That a clear and substantial numerical majority opposed the proposals, however, cut no ice with the Home Office, which noted in its response that: ‘The outcome of the consultation…has not been based on a numerical assessment of those in favour, or those opposed, to the proposal but on a detailed analysis of the responses which have been submitted.’ Similarly, a letter of complaint about the proposal elicited the response from the Criminal Law Policy Unit at the Home Office that: ‘We did not simply take account of the number of respondents who were in favour of, or opposed, the proposal but also considered the weight of the arguments advanced.’

In this case, then, one would have expected the arguments advanced by the supporters of the proposal to be far more convincing in every respect than those of its opponents. However, to say that exactly the reverse is the case doesn’t even begin to do justice to the yawning intellectual and – yes – moral gap between the two sides. Considering that they were mostly written by ordinary members of the public and not academic or legal experts, the opponents’ responses were really quite extraordinarily well-informed and cogently argued. In glaring contrast, the responses from the proposal’s supporters were, for the most part, apocalyptic (individuals), dogmatic and intellectually dubious (certain women’s groups), and downright authoritarian (the police). The Home Office response noted that many of the opponents of the measure ‘made similar arguments, some citing or using wording from the “Backlash” campaign’, but its authors were apparently too stupid to have noticed, or more likely were too intellectually dishonest to want to note, the remarkable similarities between the responses of many of the supporters of the measure, which had all the hallmarks of at least one lobby (5).

The gist of the opponents’ case was that the proposed measure hinged on a clumsily bureaucratic, aesthetically illiterate and thus entirely untenable distinction between ‘extreme’ and other kinds of pornography. As a consequence (and particularly given the illiberal and gung-ho attitudes of the police in this matter), vast swathes of pornography could be brought, albeit unintentionally, within its ambit. Members of the BDSM communities (bondage and discipline, domination and submission, and sadism and masochism) argued that it could become an offence to possess any BDSM material which appears to involve non-consensual sexual activity, even though this actually involves willing participants – whereas I pointed out that the net is actually cast far wider than that, and could catch any film not classified by the British Board of Film Classification (BBFC) which contains both un-simulated sexual scenes and scenes of violence, including simulated ones.

Thus, for example, collectors of the work of Jess Franco, Joe d’Amato and other Euro-trash sleaze meisters, all of whose works are readily available from that sink of pornographic depravity, Amazon.com, could soon find themselves locked up for a considerable period of time. This is a crucial point – the government is busily engaged on a disinformation campaign aimed at persuading people that this measure should concern only those possessing a very limited range of pornographic images. The truth is very different indeed.

To say that these responses were quite simply ignored would be a remarkable understatement. The measures unveiled in the Criminal Justice Bill are actually even more draconian and ill-conceived than the original proposals, and can only be regarded as a direct smack in the faces of those who had the temerity to object in the first place.

The bill defines an ‘extreme pornographic image’ as one which both ‘appears to have been produced solely or principally for the purposes of sexual arousal’ (doh!) and ‘which is an image of any of the following:

(a) an act which threatens or appears to threaten a person’s life;
(b) an act which results in or appears to result in (or be likely to result in) serious injury to a person’s anus, breasts or genitals;
(c) an act which involves or appears to involve sexual interference with a human corpse;
(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal

where (in each case) any such act, person or animal depicted in the image is or appears to be real.’

Now, you don’t have to be a media studies graduate to realise immediately that the key word here is, of course, ‘appears’. This, unequivocally and indubitably, brings within the bill’s ambit both images of consenting BDSM activity and films not classified by the BBFC which involve, and not necessarily simultaneously, scenes of unsimulated sexual activity and scenes of simulated violence, necrophilia or bestiality.

With regard to the criminalisation of the possession of BDSM images, the bill is quite clearly yet another malign consequence of the Spanner case in the UK. In the course of a house search (apparently without a warrant) in 1987, police discovered a videotape of what they naively but entirely typically believed to be a ‘snuff’ movie. During their enquiries, they discovered that it was actually a record of a number of gay men involved in heavy, but consensual, sado-masochistic activity.

And there, of course, the matter should have stopped. But, whether motivated by outraged moral rectitude or the desire to have something to show for the £4million which the investigation allegedly cost, the police and prosecuting authorities insisted on proceeding with charges of assault occasioning actual bodily harm. And, in a completely bizarre judgement in 1990, Judge Rant (sic) ruled that BDSM activity provides no exception to the general rule that consent is no defence to a charge of assault occasioning actual bodily harm or causing grievous bodily harm. The defendants were thus either sent to jail, given suspended jail sentences or fined, and, extraordinarily, their convictions were upheld by the Court of Appeal, the Law Lords and the European Court of Human Rights.

As a result of this truly shocking case, people taking part in entirely consensual sado-masochistic activity have had to come to terms with the fact that their consent is not in fact valid at law, a point which the notes attached to this Bill are at pains to rub in, pointing out that ‘the material to be covered by this new offence is at the most extreme end of the spectrum of pornographic material which is likely to be thought abhorrent by most people. It is not possible at law to give consent to the type of activity covered by the offence, so it is therefore likely that a criminal offence is being committed where the activity which appears to be taking place is actually taking place.’ And in the case of purely staged activities, ‘the government believes that banning possession is justified in order to meet the legitimate aim of protecting the individuals involved from participating in degrading activities’. Thus is revealed the mark of the true authoritarian: promoting oppressive legislation on the grounds of protecting people from themselves.

‘Degrading’, ‘abhorrent’ – this is the overheated language of the moral crusader, not the dispassionate prose of the legislator. But frightening people into behaving ‘properly’ and appeasing the moral authoritarians has always been at the root of this measure. Indeed, the accompanying notes are remarkably upfront about this, stating that ‘the government considers that the new offence is a proportionate measure with the legitimate aim of breaking the demand and supply cycle of this material which may be harmful to those who view it. Irrespective of how these images were made, banning their possession can be justified as sending a signal that such behaviour is not considered acceptable. Viewing such images voluntarily can desensitise the viewer to such degrading acts, and can reinforce the message that such behaviour is acceptable.’

However, the vainglorious idea that this measure will break the ‘demand and supply cycle of this material’ shows that the government knows absolutely nothing about the internet, and still less about the global pornography market. Even if the entire UK population could be completely and instantaneously cut off from the entire supply of internet porn, it would register barely a blip in the global economics of the industry.

Seriously to believe that international porn barons give a damn about what the British government does or doesn’t do betrays a quite stupefying overinflated sense of this country’s importance in the scheme of things. Furthermore, the ‘message’ which this measure sends out is not the one which is so portentously intended. Rather, it says that for all its encomia to modernisation, New Labour is actually profoundly ignorant of, and ill-at-ease with, the modern media. As far as attitudes to the internet are concerned, New Labour is quite happy to place itself in the same camp as not only Australia, but also Saudi Arabia, China and North Korea.

Julian Petley is professor of film and television at Brunel University. His forthcoming book Censoring the Word, will be published by Seagull Books.

(1) See the Consultation on the Possession of Extreme Pornographic Material

(2) Read the responses here

(3) Read Julian Petley’s response here

(4) See the Home Office website

(5) New steps to extend police powers to punish porn users, Julian Petley, Index on Censorship