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Section 63 of the Criminal Justice and Immigration Act 2008 is a piece of legislation in the United Kingdom that criminalises possession of what it refers to as "extreme pornographic images".[1] The law was enacted from 26 January 2009.[2][3] It refers to pornography, defined as an image "of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal", which is "grossly offensive, disgusting or otherwise of an obscene character", and portrays "in an explicit and realistic way" any of the following:
and a reasonable person looking at the image would think that any such person or animal was real.
The term covers staged acts, and applies whether or not the participants consent.[4][5] Classified works are exempt, but an extract from a classified work, if the image was extracted for the purpose of sexual arousal, would not be exempt. Whether an image is "pornographic" or not is up to the magistrate or jury to determine simply by looking at the image; it is not a question of the intentions of those who produced the image.[6] If an image is held in a person's possession as part of a larger series of images, the question of whether it is pornographic is also determined by the context in which it appears. Therefore an image might be legal in some contexts, but not in other contexts. Serious injury is not defined by the act, but is up to the magistrate or jury.[6] Guidance on the bill gives examples of acts which would be covered: depictions of hanging, suffocation, or sexual assault involving a threat with a weapon; the insertion of sharp objects into or the mutilation of breasts or genitals.[6]
The definition of "obscene" is not the same as that used in the Obscene Publications Acts, which requires that an image "deprave and corrupt" those likely to view it; instead this is the ordinary dictionary definition of "obscene". "Grossly offensive" and "disgusting" are given as examples of "obscene".[6]
There is a defence for the defendant if he can prove that he "directly participated" in the act, and where the participants consented, but only if the acts are those that can be legally consented to in the UK (see Operation Spanner). This defence is also not available to the photographer, or other "onlookers" who were present, but did not directly participate.[6]
Where clauses (a) or (b) apply (of the above), the maximum sentence is 3 years; otherwise the maximum is 2 years. Adults sentenced to at least two years will be placed on the Violent and Sex Offender Register.
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After Graham Coutts's conviction in February 2004, the Government and police forces called for "violent" adult pornography sites to be shut down.[7][8][9] Jane Longhurst's mother and sister launched a campaign against such sites. A petition promoted by MP Martin Salter which gained 50,000 signatures was submitted to the government demanding a ban of "extreme internet sites promoting violence against women in the name of sexual gratification".
The Government was unsuccessful in shutting down such sites, since they are based in other countries and are legally made with consenting adults. In August 2005, the British government consulted on instead criminalising the possession of such images.
On 30 August 2006, the government published the results of the consultation and announced its intention to introduce a possession ban on all extreme pornography as soon as the legislative timetable allows. Opinions on the proposals were sharply divided in the consultation, with 61% (241 out of 397) of responses rejecting the need for stronger laws in this area, and 36% in favour (3% gave no opinion). The proposed maximum penalty for possession of these images was three years imprisonment.[10]
On 26 June 2007, the government published the plans as part of the Criminal Justice and Immigration Bill. The bill extended the scope of the proposals from "serious, disabling injury" to "serious injury".
The law came into force on 26 January 2009.
In July 2009, Baroness O'Cathain proposed an amendment to the Coroners and Justice Act that would bring in an equivalent law for "extreme pornographic writings".[11][12]
A 20 year old St Helens man was prosecuted for having "extreme" images involving women and animals on 10 February 2009.[13] The images were reported by a PC repair shop. He was given an 18-month supervision order, 24 hours at an attendance centre, and had to pay costs of £65.[14][15]
As of June 2009, The Register claimed that, according to their sources within law enforcement, there have been two or three prosecutions against people selling Chinese pirated DVDs, which include some bestiality DVDs.[16] A later case in 2010 also involved the use against someone selling pirated DVDs.[17] In January 2011 a South African national living in Berkshire was sentenced to 12 months in prison to followed by deportation for having downloaded 261 videos of people having sex with dogs, pigs, horses and donkeys. He also received additional concurrent sentences of two months and one month for four images of children which he had also downloaded, it was claimed inadvertently.[18]
On 31 December 2009, a man was found not guilty under the law. The man was cleared by the judge after the prosecution offered no evidence against him. The film he was charged with possessing depicted a sexual act with a tiger, but it emerged that the tiger in the film was not real, and the image was a joke. Police and prosecutors admitted that they had not listened to the film with sound turned on.[19] In March 2010 the same man pleaded guilty on a second charge for a six second video clip involving humans.[20] He later changed his plea to Not Guilty due to advice from the organisation Backlash,[21] and the charges were later dropped.[22][23] The law has been used against people possessing only images of human adults (as opposed to the animal clauses), who have pleaded guilty.[24][25]
In January 2011, a man was tried before Stafford Crown Court for possession of staged images, depicting a knife attack and a drowning in a bath. The prosecution said "There is a need to regulate images portraying sexual violence, to safeguard the decency of society and for the protection of women". Expert witness Feona Attwood for the defence said the images were like stills from a 1970s Hammer horror film. The case was a landmark trial, possibly the first case tested by a jury. It was also notable as a case where he admitted that he intentionally downloaded and retained the images in question (as opposed to, for example, accidental downloading).
On 6 January, the jury took only 90 minutes to return a unanimous verdict of not guilty. The judge told them afterwards that this trial had been a test case, and that the legislation in question was still being interpreted.[26][27][28][29][30]
In 2004 in Scotland, a committee of Members of the Scottish Parliament backed a call to ban adult pornography as the Equal Opportunities Committee supported a petition claiming links between porn and sexual crimes and violence against women and children.[31] A spokeswoman said "While we have no plans to legislate we will, of course, continue to monitor the situation." In 2007, MSPs looked again at criminalising adult pornography, in response to a call from Scottish Women Against Pornography for pornography to be classified as a hate crime against women. This was opposed by Feminists Against Censorship.[32][33]
In September 2008, Scotland announced its own plans to criminalise possession of "extreme" pornography, extending the law further, including depictions of rape imagery and other non-consensual penetrative sexual activity (whether or not the participants actually consented).[34][35] The new law is included in Section 42 of the Criminal Justice and Licensing (Scotland) Act 2010, and covers images which realistically depict[36][37]:
Again, the law covers images of staged acts, and applies whether or not the participants actually consented.
The Government consultation stated that "the material may often cause serious physical and other harm to those involved in making it; in some cases the participants are clearly the victims of criminal offences". The consultation did not attempt to estimate the frequency of these events, and there is no evidence that such content is being distributed at all. The law would cover images whether or not the participants consented, and would include not only images where extreme violence is taking place, but also fictitious images where people are role playing such violence.
Material is considered extreme pornography only if the main purpose of creating it was to produce sexual arousal. This rules out most mainstream films, documentaries, war footage or instructional videos, regardless of content, though these would be included if images were extracted from them for the purpose of sexual arousal. Textual material or cartoon depictions are also excluded regardless of theme or detail.
The consultation stated "it is possible that such material may encourage or reinforce interest in violent and aberrant sexual activity to the detriment of society as a whole" but also that they do not have "sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind of material" and that there was an "absence of conclusive research results as to its possible negative effects".
The consultation cited the case of Graham Coutts who killed Jane Longhurst, suggesting a link between violent pornography and the murder. Coutts had previously accessed websites that offered such pornography, although he had been practicing erotic asphyxia for five years before exposure to such material, and had told psychiatrists in 1991 that he feared his thoughts may lead to criminal behaviour.[38]
The Government also wishes to criminalize possession of the material in order to attempt to reduce the risk of children coming into contact with it. The consultation cited a study which reported "57% of all 9-19 year olds surveyed who use the Internet at least once a week had come into contact with pornography online", but it did not distinguish between different forms of pornography, and the government has no plans to criminalize all pornography for the same reason.
In discussing the 2006 quashing of the conviction of Coutts, Jane Longhurst's purported killer, a barrister supporting the Backlash stance observed:[39]
Lord Hutton's judgment points out that Coutts had engaged in breath play sexual games with previous partners years before he started to use internet porn. The Judge commented that if the same Defendant guilty of the same conduct been tried before the same jury, but without the evidence that he used internet porn, the jury would have been very likely to accept that he did not intend to kill. It is hard to escape the conclusion that the Judge thought the evidence that Coutts used porn prejudiced the jury and led to unfounded assumptions about Coutt's intent. What this judgment shows is that the obsession with criminalizing the users of porn will further prejudice juries and lead to miscarriages of justice.
In September 2007 the Government published a Rapid Evidence Assessment by Catherine Itzin, Ann Taket and Liz Kelly, investigating "the evidence of harm relating to exposure to extreme pornographic material".[40] This was criticised in a statement signed by over forty academics as being "extremely poor, based on contested findings and accumulated results. It is one-sided and simply ignores the considerable research tradition into "extreme" (be they violent or sexually explicit) materials within the UK's Humanities and Social Sciences." [41]
The law has been criticised as likely breaching Articles 8 and 10 of the European Convention on Human Rights.[42][43] The Government also states this, but believes "this is justified as being in accordance with the law, and necessary in a democratic society for the prevention of crime, for the protection of morals and for the protection of the rights and freedoms of others".[44]
The Government has conflated the issue with participants being abused in the production of such images, with Martin Salter claiming the existence of snuff films where women are raped and murdered on camera in Guatemala.[45][46] However, no such examples of images have been shown to exist, and the sites referred to by the Government are instead those produced in the UK and US with consenting actors (see "Sites labelled as "extreme pornography"", below).
The law has been criticised for criminalising images where no crime took place in their creation. In the House of Lords debates, Lord Wallace of Tankerness stated "Having engaged in it consensually would not be a crime, but to have a photograph of it in one's possession would be a crime. That does not seem to me to make sense."[47] The law has also been criticised for covering images of consenting adults, for example including some forms of BDSM or bondage pornography.[48][49][50]
In 2009, the organisation Comic Shop Voice said that the law may result in the ban certain comic books, such as Watchmen, Batman: The Killing Joke and several collections of manga. They said in a statement: "Because this is a minefield for the law it then falls on the Police to enforce it, and it is their judgement that could lead to a prosecution. We COULD get to a point where the police could legitimately visit your home or workplace, and sanctioned by an un-elected magistrate or judge go through your collection and if they find any comic book that they feel will cause sexual arousal or displays extreme violence then they could arrest you."[51]
A group of King's College London students have produced a film in 2010, Hanging Perverts, debating the perils and moral issues behind the law. It includes interviews with several public and political figures, such as Baroness Sue Miller of the Liberal Democrats, bondage photographer Ben Westwood, son of Vivienne Westwood, as well as people working in the industry, such as hardcore BDSM pornographic actress Masie Dee.[52]
In 2004 following Graham Coutts's conviction, an Early Day Motion listed the websites "necrobabes", "deathbyasphyxia" and "hanging bitches" as examples of sites that should be shut down.
Necrobabes is a website hosting images of women pretending to be dead.[53] The site is subtitled "erotic horror for adults". Necrobabes was included as an example of a site that relatives of Jane Longhurst, who was murdered by Graham Coutts, thought should be banned.
Membership of Necrobabes was used as evidence in the murder trial of Patrick Anthony Russo, a musical director at a Texas church, who murdered Diane Holik in 2001. During the subsequent police investigation it was found out that Russo had been a paying subscriber to Necrobabes. Partly because of his Necrobabes membership and other evidence found from his computer, including browser history and web searches for "asphyx", Russo was found guilty of strangling Holik to death.[54][55][56]
Russo was given a life sentence.
However, the site owners assert "The material we produce is fanciful, even cartoonish in many regards; there is nothing realistic about it. Our viewers know this. Far from normalizing violence, it relegates it squarely into the realm of fantasy." It states that scenes are simulated, and that no one was harmed during the making of our photo stories and videos. They claim that, contrary to the aforementioned petition, they "do not encourage nor condone real-life violence against others". The site states that there is no pornography on the site, and claims that it is exempt from the record keeping requirements of 18 U.S.C. § 2257, because there are no images of actual sexually explicit conduct.
The site is registered with the ICRA so that it can be blocked by Microsoft Internet Explorer's Parental Controls.[57] As of December 2009, the site's contents are unavailable.[58]
The Early Day Motion[59] referred to Necrobabes as "corrupting". The Sun referred to sites such as Necrobabes as "sick".[60]
The Guardian suggested that the worst still from Hitchcock's Frenzy "is easily the equal of any Necrobabes gore".[61]
The site has been covered in the US media, which support that the site is entirely fantasy using consenting models.[62][63][64]
Necrobabes is hosted in the United States and has been online since 1997. The UK Government has attempted without success to get the US authorities to shut down sites such as Necrobabes.[65] Such images are legal in the US, and it has been claimed they would be hard to ban without violating the First Amendment.[66]
The site hangingbitches.com was run by Frans van der Hulst. The site was shut down, but he has since opened more sites. The images are produced in the United Kingdom with British model actors who have been shown alive and unharmed.[67]
Backlash launched a campaign in 2005 to challenge the joint UK Home Office and Scottish Executive proposals to criminalize simple possession of material.
The Consenting Adult Action Network is a growing grass-roots network which opposes the law and any other legislation that restricts the sexual choices of consenting adults. It has organised protests against the new law.[68][69]