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My response to the obscenity consultation

Posted at 17:00 on 26 Oct 2018 by Pandora / Blake

Tags: consultation, CPS, Obscene Publications Act, obscenity, politics, porn law

The Crown Prosecution Service (CPS) recently ran a public consultation on the Obscene Publications Act (OPA) - submissions closed last week. I was really glad to see them open the consultation, as the current guidance is out of date with case law and with modern social standards of obscenity, and is well overdue for review.

The fact that the CPS are considering updating their guidance is massive. The CPS Guidance on the OPA is what's behind the 'facesitting law' (AVMS 2014) which criminalised the depiction of facesitting, fisting, watersports, BDSM that leaves marks, full bondage with a gag, etc in online porn. These same rules were nearly reinforced with new draconian web blocking penalties via the Digital Economy Act 2017 - thankfully we were able to talk them out of it via an amendment in the Lords. And they are also behind the BBFC classification guidelines, and the reason these acts are banned from classification even under R18, the highest classification (and therefore from DVD distribution) in the UK.

I've been advocating an update to the guidance (and a root and branch review of obscenity law in general) for years now: seeing the OPA Guidance finally updated would be a huge win for freedom of expression, sex positivity, and fair representation of diverse sexualities.

The draft guidance under consideration can be viewed here.

Here's a summary of my position:

Sexual vs non sexual acting

  • "Realistically depicting" covers staged, fictional sexual acts represented by consenting actors - these should not be "obscene". 
  • We need to end the stigmatising double standard between mainstream entertainment and sexual entertainment.
  • The acted depiction of "crimes" is no more obscene in a sexual context than in any other context (eg action films).

Consent

  • Performer consent is paramount. It is real progress that the CPS propose to take into account whether or not the activity is consensual. This move is to be supported.
  • Paragraph 12 specifies that "Non-consent for adults must be distinguished from consent to relinquish control." This adds much needed nuance and reflects the realities of consensual BDSM.
  • Paragraph 16 represents sensible and welcome change. 
  • Non-consensual themes can be depicted by consenting actors. To shift the focus from the illusion created to the realities behind it, the Guidance might take into account whether or not the consent of the actors is made explicit in the materials under consideration. 

Serious harm

  • "Serious harm" is not clearly defined and might cover consensual BDSM activity.
  • Whether or not an activity caused the actor "serious harm" is hard to tell from fictional materials, particularly where colour grading and special effects are used.
  • The police do not routinely enforce R v Brown (1994) in the context of consensual BDSM. They know the difference between consensual BDSM and domestic violence. Consensual BDSM is practised every day by many thousands of people in the UK, and yet and there have been no prosecutions of consensual BDSM as assault occasioning actual bodily harm since R v Brown

I've posted my full respose as a public post on my Patreon - read it here:

I cannot emphasise strongly enough my points above regarding the difference between fictional productions starring consenting actors (which are analogous to consensual BDSM), and recordings of criminal activity (which are analogous to domestic violence). The police know how to differentiate between the two, and the same differentiation should be made in respect of materials when assessing "obscenity". Film producers have a duty to make performer consent explicit: but the police and CPS also have a duty to recognise that UK adults often consent to activities which may appear, to an untutored eye, to be non-consensual. I applaud the steps the CPS have taken to recognise adult consent in the new Guidance, and would like to see this recognition extended more completely, particularly in regard to fictional depictions of criminal activity.

This work was made possible by the support of my Patrons. Support my campaign to defend the rights of kinky individuals in the UK here.

 

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