The proposed extreme porn law (which is part of the large Criminal Justice and Immigration Bill 2007, a package that also includes proposed legislation having to do with immigration, terrorism, national security, drugs and other matters) would make it a felony, with possible prison sentences of up to three years, to download erotic material that could be interpreted as violent, abusive or injurious in some fashion. Civil libertarians in the U.K. have been arguing that because the proposal is vaguely worded, the potential for human rights violations is enormous.
XBIZ discussed the law with several U.K.-based civil libertarians, including Demolition Red, an activist for the group Backlash, which has been aggressively lobbying against the proposal; Derek Cohen, the chairman of the Spanner Trust, a BDSM rights organization that is comparable to the National Coalition for Sexual Freedom in the U.S.; Avedon Carol of Feminists Against Censorship; and journalist/ author Daryl Champion. All of them are quite concerned about the harm that may result if the law is passed.
The thing that makes the proposal historic — and not in a good way, civil libertarians argue — is the fact that it specifically targets possession of allegedly obscene porn rather than production or distribution of it.
The U.K., like the U.S., is a place where anti-porn prosecutors historically have gone after people for producing and distributing adult entertainment they considered obscene, but not for simply possessing it. Child pornography has been flat-out illegal to possess in the U.K. and the U.S., but when it comes to adult entertainment, obscenity prosecution in both Great Britain and the U.S. has historically dealt with creation and distribution rather than mere possession.
U.K.-based webmasters have been arrested, prosecuted and jailed for having allegedly obscene adult websites, but residents of England, Wales, Scotland and Northern Ireland have not been prosecuted for patronizing those sites. However, if the "extreme porn" law is passed, Internet users living in the U.K. could face felony charges and a three-year prison sentence for downloading "extreme porn" or "violent porn."
The question is: What exactly will U.K. law enforcement officials consider to be "violent" or "extreme?" Outlines of the proposal have mentioned depictions of necrophilia and bestiality as well as pornographic images of acts that "threaten or appear to threaten a person's life" and pornographic images of acts that "result in or appear to result (or be likely to result) in a serious injury to a person's anus, breasts or genitals," but civil libertarians fear that enforcement of the law would be much more far-reaching than politicians are saying.
The legislation's opponents fear that BDSM-related material in general will become a major target and that merely downloading content from a spanking, tickling or rope-bondage website could result in three years behind bars and being permanently labeled a sex offender.
"The law specifically relieves the prosecution of the burden of having to prove that any crime was committed, or that any real harm was actually done in the production or the consumption of 'extreme' material," said Champion, who has written about civil liberties issues extensively and is a contributor to London's fetish-themed Skin Two magazine.
"Thus, images produced by consenting adults — including professional models and actors — fantasy scenarios and digitally manipulated images produced without the participation of real people, stand to be legally equated with pedophile imagery."
Civil libertarians and BDSM enthusiasts have been citing many reasons why the "extreme porn" law is seriously flawed. Among them: it does not distinguish between consensual and nonconsensual activity; it could imprison U.K. residents for possessing kinky material that wouldn't even be considered obscene in much of Western Europe; and it could make possession of isolated clips from even a mainstream, non-adult film a felony if a prosecutor felt that those clips — absent from the film as a whole — were used as "extreme porn."
The London-based Cohen said: "If you were to take a small clip of a film or some stills of a film — a perfectly legitimate DVD being sold on the High Street — and it was deemed that the clip or stills were used as pornography and were taken out of the context of the film, you could go to jail even though it is from a certified film that is perfectly legal to own."
"This legislation deals with possession in the U.K. irrespective of where the material comes from," Cohen added. "In fact, it is targeted at material that comes from outside of the U.K. — especially from Eastern Europe, but from the U.S. as well."
To understand how the proposed "extreme porn" legislation came about, one has to go back to March 2003 — when British schoolteacher Jane Longhurst died tragically in the presence of Graham Coutts, a Scottish salesman and part-time musician (he played guitar in a Who tribute band called Substitute) who was obsessed with erotic asphyxia.
Prosecutors said that Coutts, after strangling Longhurst, hid her body in a storage container for three weeks before setting fire to it; in February 2004, he was convicted of murder and sentenced to a minimum of 30 years in prison (the U.K. does not have the death penalty).
During the trial, Coutts did not deny killing Longhurst but maintained that her death was a tragic accident that resulted from consensual breath-control play gone awry; the prosecution, however, insisted that her death was no accident and convinced jurors that Coutts was guilty of premeditated murder. The prosecution said that Coutts, for years, had been fantasizing about strangling women and noted his interest in websites dealing with strangulation and necrophilia. One of the American websites he allegedly visited was NecroBabes.com, a self-described "erotic horror website" that includes nude female models who are made up to look like dead women.
Coutts appealed his conviction and eventually the House of Lords granted him a new trial on the grounds that jurors in the original trial were not given the option of convicting him of manslaughter instead of murder. In June 2007 Coutts was retried, and jurors' options included convicting him of manslaughter, convicting him of murder or acquitting him; Coutts was convicted of murder on July 3 and given a minimum sentence of 26 years in prison the following day.
Coutts' conviction was applauded by Jane Longhurst's mother, Liz Longhurst, who had been leading a very vocal and well-publicized campaign against "extreme porn" websites since 2004. The campaign included getting 50,000 signatures for a petition (which was submitted to the government) that demanded a ban on "extreme Internet sites promoting violence against women in the name of sexual gratification." In 2005, Britain's Home Office began to seriously discuss the possibility of such a ban.
Of course, adult webmasters who don't live or work in England, Scotland, Wales or Northern Ireland fall outside the jurisdiction of U.K. officials, which is why supporters of the "extreme porn" law have targeted possession within the U.K.
Cohen stressed that if Parliament does pass the "extreme porn" law, it could have consequences in the U.S. as well as Great Britain. For one thing, Cohen noted, American adult webmasters specializing in BDSM content are likely to take a financial hit when their U.K. customers — fearing three years in prison — cancel their memberships. Cohen also warned that given the way the U.S. and Great Britain have tended to influence one another legally over the years, American webmasters cannot rule out the possibility of a Republican or Democrat proposing a similar possession-oriented "extreme porn" law for the U.S.
"I think it's important for XBIZ readers to understand that this sort of legislation may come to the U.S., where the British legal system is often seen as something that should be copied," Cohen said. "There was a case in the U.S. — Lawrence vs. Texas — in which the Spanner case in the U.K. was actually quoted in the trial. Don't be surprised if someone in the U.S. says, 'Hey, this British law seems like a good idea. We should do it here as well.'"
And if such legislation did come to the U.S., Cohen added, Americans who visit BDSM websites would be facing what BDSM enthusiasts in the U.K. will likely be facing in the near future — they would have a hard time knowing if the kinky material they were downloading was legal or illegal for them to possess.
"The difficulty is that because the legislation is so loosely worded," Cohen said, "a married couple could go to prison for photographs of their own SM activity. And that's the real danger with the legislation: it doesn't distinguish between consent and non-consent. Nor does it distinguish between real activities and staged activities."
Proponents of the "extreme porn" law — who Carol described as a combination of religious moralists and radical feminists — argue that it will protect British women. But Carol, an American expatriate who grew up in Maryland but has lived in London since 1985, counters that it will actually harm British women by driving safety-related BDSM information underground.
"This law is not going to make life better for women," Carol said. "I don't see anything good coming out of legislation like this, and I regard the fact that this could promote a lack of information about BDSM as a serious danger. The more you restrict the possibility of having material about BDSM, the more you restrict the possibility of people being able to educate themselves. That, in itself, is endangering people's lives."
Carol added that if the "extreme porn" law passes, it will no doubt cause a great deal of pointless and unnecessary suffering.
"It's all very well to say, 'This law doesn't ban such and such.' But if the porn cops want to come after you, they will find a way to prosecute you over nothing," Carol said. "And it doesn't matter if you will be exonerated in court because by that time, you will already have had your life ruined by the charge. It's very difficult to keep an arrest a secret; very often, they arrest people at their places of employment and they lose their jobs instantly. Nobody waits to find out whether or not you will be convicted; by the time you've been exonerated in court, your life has been ruined. And there is never a follow-up story on the front page of the newspaper about how the police ruined your life; there is never a follow-up that counteracts the scandalous coverage they gave to your arrest."
Carol seriously doubts that the "extreme porn" law will not be passed. "It looks like it's pretty much a done deal," Carol said. "I don't really hold out much hope of it not passing."
As Backlash's London-based Demolition Red explained, "As opponents of this proposal, all we can do is persuade the select committee charged with drawing up the final wording of the law to make the proposals as specific and targeted as possible. Once it is law, there is very little we can do."
"Since the government believes the final definition of what will be illegal will be defined in the courts by juries, all we would be able to do is raise money to pay for good defense lawyers for anyone charged under the law," Red added.
Exactly how the U.K. government will enforce the "extreme porn" law when Internet users are downloading material in the privacy of their own homes remains to be seen.
"I guess ISPs would be obligated to report usage," Red said. "Also, ex-partners and others who have a grudge could report people for looking at pictures. The government says very few people will be arrested because the material they are targeting is very extreme, but I think they have misunderstood how loose their definitions are and how many people look at pictures that could be covered by their plans."
"I presume it will be pursued in a similar way to child porn," Champion said. "A prevalent feeling and fear in U.K. fetish/BDSM communities is that easily targeted individuals will be prosecuted as 'test cases' to establish precedent with the law. The law is vague when it comes to defining exactly what material — when it gets down to ground-level reality — will be proscribed. So this will need to be established by actual cases, and in so doing, innocent lives will be ruined."