I got back from my weekend away to discover I’d been mentioned on a mainstream political blog. No, I’m not famous yet – the blogger is my excellent friend Penny Red, and she wanted a quote from me on the violent porn legislation that comes into force on Monday. (In fact, she texted me to ask if I was available for a quick phone interview, but I was neck-deep in Shakespeare at the time and missed my chance.)
I have not, however, missed my chance to attend the demonstration at Parliament Square this Sunday, protesting the ban. The action is being organised by CAAN, the Consenting Adults Action Network. The Spanking Writers have already written this week about CAAN and the legislation; I’ve already discussed my own point of view at some length.
As Abel has already argued, I don’t think most spankos are in danger of becoming criminals next week. Here’s the relevant section again:
(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).
6b is explicitly and worryingly subjective. The News of the World believes that a private judicial caning carried out by consenting adults is gross, disgusting and obscene; the Sunday Mercury thinks that filming spanking porn with consenting adults is a sex crime. (If you disagree, feel free to contact the journalist and explain why – a sample letter and his email address are available here, courtesy of SpankedHortic.) Let’s hope none of their fans have jury duty coming up any time soon.
Section 7 is more precise, but significant subsets of BDSM porn are covered by the legislation. An abduction scene where the victim is threatened with a knife? Illegal. A photo of a blade lightly pressing against a throat? Illegal. Sexy shots of someone fellating a gun? Illegal. Erotic asphyxiation? Illegal.
I love non-consent games. Coercion roleplay? Sign me up. I wouldn’t enact it with most people, but my fantasies overflow with forced sex, blackmail, kidnapping, restraint, slavery, objectification, threats and brutal discipline. Force me up against a wall and growl into my ear exactly why I have no choice but to submit and I’ll be wet before you start. Hold a sword to my throat and I’ll give up on even trying to pretend I’m not enjoying it. I get off on breath play so much it’s been known to make me come on the spot. As such, I heartily support the existence of erotica depicting these acts. I don’t own anywhere near as much of it as I’d like, but will defend the rights of anyone who’s been lucky enough to get hold of the good stuff.
As a spanking model, the kind of porn I own most of just about, assuming a sympathetic jury, slips through this new net. Half of it has me in it, which potentially provides a defense under section 66 (although it’s debatable whether it’s possible to consent under law to, for example, the caning I received in my recent Pain4Fem film). But even if I’m not technically going to be criminalised next week it doesn’t mean there’s nothing wrong. Something is very wrong.
Images of violence, actual bodily harm, threats to a person’s life have been acceptable as popular entertainment for years. The only legal difference between “extreme porn” and half of Hollywood is that the former was “produced solely or principally for the purpose of sexual arousal”. Owning a copy of the torture scene in Casino Royale, for instance, is not criminalised because the film as a whole is not deemed pornographic. You tell me that half the people watching that scene weren’t enjoying Daniel Craig’s exposed body and delicious vulnerability. And yet an identical scene produced for publication on, say, this blog would be illegal.
This photo of Chris Burden holding a knife to a reporter’s throat is either journalism or performance art, and therefore legal. This image of a handcuffed Asian girl being threatened with a knife is far more ambiguous. In many ways it is less violent than the Chris Burden photo. Was it created for purposes of sexual arousal? No-one knows but the photographer. (And would he be believed in court if he denied it?)
Essentially, the content of the images is irrelevant to this legislation. The intent is the deciding factor. This legislation is so significant because it is the first instance in UK law of a thought crime.
Which is why I’ll be at Parliament Square at 2pm this Sunday, defending my right to make and own porn depicting scenes I can legally and consensually enact in private. I hope I’ll see some of you there.
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I wish I could be there in London, but I made other arrangements before knowing about the protest that I can’t really get out of. I might try to rearrange though, this is way too important to just let it go by. *sigh*
These kinds of legislation always make me feel like someone out of George Orwell’s 1984. Big brother is watching you indeed. Let them ban these aspects of porn and they’ll be banning all bdsm porn next. Ugh.
Good luck on Sunday, Pandora, and perhaps I’ll see you there!
I agree with the gist of your post, but I think you’re wrong on the law in a few points.
If you own a copy of just the torture scene from Casino Royale (as opposed to the whole film, when you are safe), then you won’t benefit from the s64 exemption, if it must reasonably be assumed that the extract has been taken for the purposes of sexual arousal (which I think is likely to be the case).
On the other hand, I think you’re being a bit over cautious in what is caught by s63(7). I don’t think that a scene of someone fellating a gun could be caught under the new law: clearly that does not threaten their life. Threatening someone with a knife might or might not be caught, depending on the nature of the threat.
The question of intent is an objective, not a subjective test, so the actual intention of the photographer is irrelevant. The question is whether a reasonable person would conclude from an image (taking into account its context in a series of images where relevant) that it must have been produced solely or principally for the purposes of sexual arousal.
(On this basis, taking into account the context, I would say that the picture of the Asian girl is pornographic, but I don’t think it realistically depicts an action which threatens her life. Which is fortunate, because it’s in my cache now.)
Gun fellation? There’s a an example in at least one BBFC certified film – “Lady of the Night”, a dubbed English version of “La Signora della Notte”, starring Serena Grandi.
I think that the gun fun was most likely the bit where cuts were waived in the recent DVD release.
Apart from the obvious issue of possession the scene on its own possibly being an offence under the new law, there may also be aquestion about the effect of the legislation on future BBFC practice.
The general “cover all” nature of 6b is the most worrying part and because of the way the British legal system works, there is no way to tell what implications it will have until it is actually tested in court.
I’m feeling a bit guilty now, not being able to come to the protest and sitting in relative safety her in Belgium, where I enjoy some basic protections under the law. There must be so many people who want to go to the protest but cannot due to fear of identification. Lets hope that enough can go to reflect the unity of the community. Thanks to all in the UK who are standing up to be counted.
Prefectdt
Robert: regarding guns. Putting that end of one in your mouth is dangerous. The viewer can’t tell if the gun was loaded… therefore, it absolutely is life-threatening.
And thereby we prove Pandora’s point; the law is sufficiently unclear that it allows the moralist to put the kinkster in a catch-22 situation.
A further point which has just occured to me is: how far is the Act compatible with our Article 8 and Article 10 rights? (Article 8 deals with respect of private life, Article 10 with freedom of expression.)
I’ve discovered that this point was considered by the Joint Committee on Human Rights in this report. The Government responded here, starting from paragraph 48.
There are two points here. Firstly, under s3 of the Human Rights Act, the courts will be bound to interpret s63 of the CJIA in accordance with our Article 8 and Article 10 rights, if possible. This may limit the scope of the offence.
Secondly, the offence may simply be contrary to these rights. The Joint Committee certainly seems to have considered this a serious possibility, and it is not clear that the Government’s response has fully addressed their concerns. If and when prosecutions are brought under the section, a reference to Strasbourg seems very possible. (And I for my part would be willing to contribute to the costs of such a reference.)
As to Mr Cameron’s point, I maintain my position. There is no magic about statutory interpretation. An image portrays, in an explicit and realistic way, an act which threatens a person’s life, if you look at it and think that someone might be about to die. The mere fact that the image contains a gun is clearly not sufficient.
(Of course, an image of someone fellating a gun might be caught if there were other factors involved. For instance, if it was a video in which loaded and cocked a gun, then demanded you fellate it, and said I’d pull the trigger if you were insufficiently enthusiastic, then that might be a realistic threat to your life.)
I mention all this because I suspect that the Government’s intention with this law is that people will censor themselves, rather than that the police will seriously enforce it. Taking an excessively cautious approach to what material might be caught rather plays into their hands.
Robert:
I mention all this because I suspect that the Government’s intention with this law is that people will censor themselves, rather than that the police will seriously enforce it.
Interesting. I’m very sure that this is precisely not the case, because of the sociology of it.
The power of a government over its people is limited to criminals: a free citizen who has broken no law can’t be controlled by the government. Governments intrinsically want more power, therefore they criminalise more things, because they can only achieve true control if every citizen is a criminal (see speed cameras and Boris’ alcohol-on-public-transport laws for recent examples of this thinking).
The point of this law is it means that if, say, some dreadful oik who didn’t go to Eton gets on the wrong side of a local JP for being offensively left-wing and also right, this law says that completely legally, the judge can throw him in jail if he happens to own some spanking porn. This law also says that if the judge himself owns such spanking porn, well, there’s nothing wrong with that ‘cos he’s clearly One of Us.
Cui Bono? Selectively applicable criminal law is Totalitarianism 101. Build a legal system where everyone is guilty of something. Then you only have to enforce the law on those you wish to control, and those you wish to remain free can do so.
Robert: On the European Convention of Human Rights, also see their justifications for why they believe it to be justified under the law: http://www.publications.parliament.uk/pa/cm200607/cmbills/130/en/07130x-n.htm#index_link_206 . And if you haven’t already seen it, a lawyer’s opinion is at http://www.backlash-uk.org.uk/qcopinion.html .
Re: Gun fellatio – I see both points of view here. On the one hand, I can easily see a prosecutor arguing that the risk entails it is a life threatening act. OTOH, I can see it’s unreasonable to say that you can threaten yourself. Still, the fact that people disagree on this suggests the risk that some in the police or jury may think it can, and also shows the uncertainty of the law – who wants to take the risk in court?
What somebody ought to do, after this law comes into force, is to release an informative video on the subject of bdsm.
Include a preface explaining the safe, sane and consensual aspects, preferably with prominent psychologists because people like them. Next some long drawn out sections on the correct ways to handle implements, tricks like holding a book under your arm when you’re learning to use a cane. Intersperse roughly 30 seconds of spanking for every five minutes of lecture by a dull man in a suit.
Finally a section about safewords, ideas of what to use and why you should never be afraid to use them. Include some longer spanking scenes involving traffic-light safewords to show that even professional spanking models do use them.
With proper disclaimers that the video is not meant for sexual arousal I think it could actually get a bbfc classification, become semi-mainstream and later on be used to force a review of things like the EP law.