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[2007] Crim.L.R. Striking a Balance
1
Striking a Balance: arguments for the criminal regulation
of extreme pornography
Clare McGlynn and Erika Rackley
Department of Law, Durham University
Summary: This article examines the Government’s proposals to criminalise the
possession of extreme pornography. Drawing on the diverse responses to the
Government’s 2005 consultation paper, it argues that the ‘categories’ approach to
regulating pornography, underpinned by a focus on ‘harm to women’, is preferable to the
traditional morality-based obscenity standard found in the Obscene Publications Act
1959.
Introduction
In 2005 the Government consulted on proposals to criminalise the possession of
‘extreme’ pornography, defined as material which is already unlawful to produce and
disseminate under the Obscene Publications Act 1959 (OPA), but now easily available on
the internet, particularly visual material depicting necrophilia, bestiality, serious sexual
violence and serious violence in a sexual context. 1 While the Government’s purpose was
to ‘close’ a ‘gap in existing legislation’2, if the proposals are enacted they would, of
course, extend much further. They would represent a new form of regulation of adult
pornography, creating the first possession offence in respect of adult pornography in
Europe.3
Those against the measures are resolute in their condemnation of what they see as
a serious incursion into the freedom of individuals4: an ‘Orwellian victimless crime
enforced by Thought Police’5 which will restrict the ability of ‘millions’ to view the
sexual expression which they consider fulfilling.6 In a similar vein, Julian Petley argues
that this measure ‘has been at least partly prompted by hysterical, ill-informed and
1 Home Office, Consultation: On the possession of extreme pornographic material (Home Office: London, 2005). See Jacob
Rowbottom, ‘Obscenity and the Internet: targeting the supply and demand’, [2006] Crim LR, Feb, 97-109.
2 Home Office, 2005; p 2 and para 35.
3 Home Office, 2005; para 55.
4 The responses to the 2005 Consultation are not available on the Home Office web site, unlike the Scottish ones which are
available at: http://www.scotland.gov.uk/Topics/Justice/criminal/17543/ExtremePornograhicMateria/Response [visited 8 May 2007].
We obtained a CD from the Home Office which contains copies of all 397 responses, excluding a few which were removed for legal
reasons connected with the Coutts trial (see below). Each response is numbered and referenced accordingly in this article. Copies of
many of the responses, including some omitted from the Home Office CD, are also available on
http://www.dur.ac.uk/law/research/politicsofporn/ and http://www.backlash-uk.org.uk/responses/ [visited 15 April 2007].
5 Campaign Against Censorship, Response No 217.
6 Deborah Hyde, ‘Deborah Hyde at Durham University’ http://www.backlash-uk.org.uk/dhDurham.html [visited 8 May
2007].
[2007] Crim.L.R. Striking a Balance
2
censorious press coverage’.7 At the other end of the spectrum, there are those who are
critical of the Government for not going far enough and make a case for the regulation of
all forms of pornography (including the written word) with almost no exceptions. For
example, Justice for Women state that ‘[a]ll pornography is degrading to women’ and
should, therefore, be included within the scope of the proposals.8 Similarly, the Lilith
Project advocates the restriction of all material which ‘depicts women in sexually
degrading imagery’, including material ‘featuring naked women for the sole purpose of
sexual gratification’.9 Indeed, as the Government noted in its 2006 response to the
consultation process, the ‘vast majority’ of responses were either ‘strongly supportive or
strongly opposed’.10 In fact, the debate over ‘extreme’ pornography has – at least to date
– been largely framed by, and taken place at, these extremes.
In this article, we seek to carve out a space for dialogue somewhere in the centre
ground, to strike a balance between the extremes. To this end, our exploration of the
responses to the 2005 consultation not only reveals relevant and constructive arguments
from both sides of the debate, but also where, and why, we diverge from the
Government’s ultimate conclusions. Accordingly, while we broadly support the
Government’s proposals in relation to extreme pornography (with some reservations
detailed below), we would go no further in regulating pornography via the criminal law.
Indeed, we advocate significant changes to the OPA that would remove much material
from its purview and we would, ideally, repeal it. In its place we would seek to regulate
pornography along similar lines to the ‘categories’ approach employed in the
Government’s proposals which, in contrast to the OPA’s generic and opaque ‘deprave
and corrupt’ terminology,11 specifies in some detail the material to be covered. In
addition, we argue that the Government’s focus on the harm which extreme pornography
causes to women, rather than the moral, paternalistic core of the OPA, is a more
appropriate conceptual foundation on which to ground the criminalisation of the
possession of extreme pornography.12
Taking Action: Government proposals to criminalise the possession of extreme
pornography
The Government was spurred into action after Jane Longhurst died during
asphyxial sex, at the hands of a man who had a proclivity for extreme pornography
involving necrophilia, asphyxiation and rape.13 Trial evidence included details of the
suspect visiting sites such as ‘rapepassion’, ‘hanging bitches’ and ‘deathbyasphyxia’ on
7 Julian Petley, Response No 355, para 1 (not on Home Office CD), but available from
http://www.melonfarmers.co.uk/agcjp.htm [visited 8 May 2007]. See also Julian Petley, ‘Appearance and Reality’:
www.indexonline.org/en/news/articles/2006/3/britain-violent-porn-bill-addresses-public-a.shtml [visited 15 April 2007].
8 Response No 219.
9 Response No 375.
10 Home Office, Consultation on the Possession of Extreme Pornographic Material – summary of responses and next steps
(Home Office: London, 2006); para 1.
11 Secs 1 and 2 OPA 1959, as amended by the OPA 1964.
12 The terminology ‘harm to women’ reflects the Government’s approach to these issues and is used here to emphasise that
the harms discussed do generally concern women and the pornographic material is generally heterosexual. Nonetheless, this
terminology should be taken to include all forms of sexual violence, as well as gay/lesbian pornography, where relevant.
13 R v Coutts [2006] UKHL 39. Graham Coutts’ murder conviction was quashed by the House of Lords on the basis that the
jury should have been offered the possible verdict of manslaughter. Coutts remains in prison and is being retried in June 2007. The
arguments and justifications for action do not rest on a re-conviction. What we are saying is that this was the public ‘event’ which
prompted Government action.
[2007] Crim.L.R. Striking a Balance
3
the day before the death.14 Heated public debate ensued, partly sparked by a vigorous
campaign by Liz Longhurst, Jane’s mother, to take action against such sites. The
Government’s 2005 Consultation document refers specifically to the Longhurst case,
noting ‘increasing public concern’ about the availability of extreme pornography
‘highlighted by the case of a young woman who was murdered by a man who had been
accessing extreme pornographic websites’.15 Further, the publication in 2006 of the
Government’s ‘Summary of Responses and Next Steps’ was also accompanied by much
public debate and discussion of the Longhurst case.16
This background context is important as it highlights the concerns which led to,
and informed, the proposals. In particular, it reveals the Government’s recognition of the
problem of sexual violence against women, perhaps exacerbated by the availability of
extreme pornography on the internet. This ‘harm to women’ perspective (to be compared
to the OPA’s moral approach) informs the proposals in a number of ways. First, the
Government, in its description of the types of material that are of concern, almost
exclusively refers to depictions of sexual violence against women: including ‘the torture
of (mostly female) victims who are tied to some kind of apparatus or restrained in some
other ways and stabbed with knives, hooks and other implements’ presented in a
‘sexually explicit context’17; and ‘material contains sexualized images of women hanging
by their necks from meat hooks, some with plastic bags over their heads’, as well as
‘extensive availability of sites featuring violent rape scenes’.18
Secondly, the proposals refer to the Government’s desire to reduce the demand
for such material to help ‘protect those who participate in the creation of sexual material
containing violence, cruelty or degradation, who may be the victim of crime in the
marking or the material whether or not they notionally or genuinely consent to take
part’.19 This represents a move away from the obscenity standard (where the focus is on
the potential moral harm to consumers who view the material) mirroring many arguments
over recent years regarding the harm caused to women involved in the pornography
industry.20 Finally, while the Government’s stated aim to ‘send a clear message’ that
extreme pornography has ‘no place in our society’21 is more open to the charge of
moralising, significantly the proposals do not shy away from the problematic causal
connection between viewing extreme pornography and carrying out acts of sexual
violence. Although unable to reach any ‘definite conclusions’ as to the ‘likely long term
impact of such material on individuals generally’22, the Government acknowledges the
possibility that extreme pornography ‘may encourage [and ‘reinforce’] interest in violent
or aberrant sexual activity’.23
The proposed offence, as outlined in the 2005 consultation document, seeks to
criminalise the possession of pornographic material (defined as material produced solely
14 R v Coutts [2005] EWCA Crim 52 (CA), para 91.
15 Home Office, 2005; p 1 and para 10.
16 Geneviève Roberts ‘Bereaved mother's campaign leads to a ban on possession of violent porn’ The Independent, 31 August
2006; Esther Addley ‘Jane’s legacy’ The Guardian, 2 September 2006.
17 Home Office, 2005; para 5.
18 Home Office, 2005; para 5.
19 Home Office, 2005; p 2 and para 34.
20 Catharine MacKinnon and Andrea Dworkin, In Harm’s Way (Cambridge, Mass: Harvard University Press, 1997); Karen
Boyle, Submission to the Equal Opportunities Committee of the Scottish Parliament on the impact of pornography (2007) available at:
http://ics.leeds.ac.uk/papers/ks/exhibits/119/Submission_from_Dr_Boyle.doc
21 Home Office, 2005; p i, 1 and paras 11 and 27.
22 Home Office, 2005; para 31
23 Home Office, 2005; para 27.
[2007] Crim.L.R. Striking a Balance
4
or primarily for the purpose of sexual arousal) which includes explicit actual scenes or
realistic depictions (thus excluding written work, cartoons and drawings) of four kinds of
material: intercourse or oral sex with an animal; sexual interference with a human corpse;
serious violence in a sexual context; and serious sexual violence.24 ‘Serious violence’
was to involve, or appear to involve, ‘serious bodily harm in a context or setting which is
sexual’, for example, ‘images of suffocation or hanging with sexual references’.25
‘Serious sexual violence’ was to involve ‘serious bodily harm’ where the violence is
sexual and, in both cases, ‘serious bodily harm’ was violence in respect of which a
prosecution for grievous bodily harm could be brought.26 The Government stated that
defences would mirror those in place in respect of possession of child abuse images.27
These proposals were roundly criticised, even by those generally supportive, due
to their vagueness, especially the terms ‘serious sexual violence’ and ‘serious violence in
a sexual context’. As a result, revised proposals were published in 2006 which detailed
just three categories of material to be covered: intercourse or oral sex with an animal;
sexual interference with a human corpse; and, the significant change, ‘serious
violence’.28 ‘Serious violence’ was further defined as ‘images of acts that appear to be
life threatening or are likely to result in serious, disabling injury’.29 The other elements of
the offence remained the same.
Examining the Extremes: Reviewing the Responses to the 2005 Consultation
As noted above, public debate has been dominated and constructed by the
‘extremes’ of the arguments. In this section, we explore these seemingly incompatible
positions as we seek create a space in which to strike a balance between them.30 This
analysis is important for a number of reasons. First, the responses to the 2005
Consultation are not easily accessible and so our discussion will bring them to a wider
audience.31 Second, the responses, and how the Government responded to them, is
instructive in evaluating the aims of the legislation and how it might be received in
practice. Thirdly, it is necessary to counteract some of the misleading information and
arguments that have been put forward in this debate. Finally, our approach to this issue is
informed by many of the arguments at the extremes.
The Coalition in Support: feminism and conservatism
There was considerable support for the Government’s proposals from a broad
constituency comprising feminist groups, as well as conservative organisations, including
the Conservative Party, religious groups and various police forces.32 What unites these
24 Home Office, 2005; paras 37-39.
25 Home Office, 2005; para 40.
26 Home Office, 2005; paras 40-41.
27 Home Office, 2005; paras 53-54 and 49.
28 Home Office, 2006; part II, paras 12-14.
29 Home Office, 2006; para 14. The Government conceded that the terms ‘serious violence in a sexual context’ and ‘serious
sexual violence’, as well as the proposed GBH threshold, were ‘not sufficiently precise, would be difficult to apply and would draw in
material that did not pass the obscenity threshold’ (Home Office, 2006; part II, para 14).
30 Our analysis is not presumed to be a definitive analysis of every response. We seek to draw out some of the most salient
issues and the parallels between some responses.
31 See above note 4.
32 Of the 397 responses, the majority of responding organisations supported the proposals. In contrast, the majority of
individual respondents expressed their opposition: 241 respondents were ‘against’ the proposals, answering ‘no’ to the question as to
[2007] Crim.L.R. Striking a Balance
5
respondents, as well as their broad support for the proposed measures, is their general
perception that all or most forms of pornography are objectionable and as a consequence
regulation should extend far beyond the scope of the Government’s proposals. What
distinguishes these respondents, however, are the differing bases on which they reach
these conclusions. In fact, there is a considerable conceptual gulf between the overall
aims and objectives of many of these organisations, most particularly the divergence
between the feminist and conservative groups.
The feminist organisations which positively responded to the Consultation were
united in their concern that the ubiquity and general misogyny of pornography is
implicated in the prevalence of violence against women. For example, Object concludes
that there is ‘overwhelming evidence of the harm of violent pornography’ and ‘abundant
evidence’ of a ‘clear causative effect’ of pornography.33 The Lilith Project’s response,
which was endorsed by a number of other organisations, including the Women’s National
Commission, states unequivocally that there is evidence of a causal link between
pornography and sexual violence.34 Other feminist organisations were less concerned
with ‘proving’ direct causal links, but, as the Westminster University Child and Woman
Abuse Studies Unit (CWASU) argues, with the ‘existence and now virtual ubiquity of
pornography creates a cultural context which devalues women’s humanity and dignity’.35
Rights of Women maintain that irrespective of a lack of evidence demonstrating a causal
link, the materials under consideration ‘not only perpetuate gender inequalities but
worsen gender them through the objectification of women and the normalisation of
sexualised violence’.36
Despite these differences in opinion regarding the empirical evidence, all the
supporting feminist organisations agree that there is strong experiential evidence of the
adverse effects on women of pornography. It provides the ‘cultural backdrop against
which the abuse of women is mainstream and endemic’.37 It ‘eroticises dominance’38 and
is a ‘record of sexual abuse’.39 In this light, it is perhaps no surprise that these
organisations, while welcoming the Government’s consultation, suggest that the
Government should regulate far more pornography than is set out in the 2005
Consultation, as noted above. In particular, there are concerns that focusing on a category
of materials that are deemed ‘extreme’ creates unfortunate distinctions between different
types of pornography, rendering non-‘extreme’ pornography harmless or less serious.40
Another constituency broadly in favour of the Government’s 2005 proposals are
the more conservative organisations.41 The most significant point of departure between
these organisations and the feminist groups is that while the latter focus on harm to
women, the former identify a broader range of moral harms as the basis for action. So,
whether the law needed to be strengthened, with 143 responses answered yes (13 of the respondents did not state a preference): Home
Office, 2006; part I, para 4.
33 Response No 357.
34 Response No 375.
35 Response No 307.
36 Response No 326, not on Home Office CD for ‘legal reasons’, but available at
http://www.rightsofwomen.org.uk/pdfs/consultation/PEP_response.pdf [visited 8 May 2007].
37 Wearside Women in Need, Response No 303.
38 CWASU, Response No 307.
39 Ibid.
40 Ibid.
41 Including the Conservative Party, mediawatch-uk, mediamarch, all the police forces which responded and all the religious
organisations which responded including the Lawyers Christian Fellowship, the Christian Institute, the National Council of Hindu
Temples (UK), the Christian Institute, the Salvation Army and the Church of Jesus Christ of the Latter-Day Saints.
[2007] Crim.L.R. Striking a Balance
6
mediawatch-uk argues that that all pornography ‘contributes significantly to the social
problems of sexual dysfunction, the continually rising rates of sexually transmitted
infections, the increasing rate of marital breakdown and the annually rising sexual crime
rate’ and ‘encourages a distorted attitude to human sexuality’.42 Similarly, the
Conservative Party expresses its concern over images which are ‘deeply depraved and
corrupting’.43 The Lawyers’ Christian Fellowship maintains that pornography
‘encourages a distorted and selfish view of sexuality’ which ‘divorces sex from love and
tenderness’.44 These are very different justifications to those advanced by the feminist
organisations, the key difference being that the conservative organisations generally
object to explicit material per se, whereas the feminist argument is about material which
is degrading and harmful, not simply explicit.
However, there is agreement among all these groups in favour of the proposals
that they do not go far enough. Various police forces, for example, suggest adding to the
list of material covered the ‘eating of faeces or urine’45, coprophilia which is stated to be
an example of ‘the total degradation of the person subject to such acts’ and
belonephilia.46 Kent Police even suggested that the offence should include written
material of this nature as it is ‘equally as disturbing as the images and equally contributes
to an offender’s motivation and fantasy behaviour’.47 The Christian Institute similarly
criticise the Government for not going further as there needs to be, they argue, a ‘far
more wide-ranging strengthening of the laws against pornography’.48
There is also agreement regarding either the existence of empirical evidence of a
link between sexual violence and pornography (the Christian Institute and Lawyers’
Christian Fellowship) or professional experience suggesting such a link. For example,
Nottinghamshire Police consider that ‘viewing pornography increases a person’s
toleration of sexually violent acts’ and links the increasing availability of pornography to
the ‘year on year increase in the number of recorded sexual offences’.49
The coming together of otherwise diverse groups in the fight against pornography,
with not just disparate, but opposing, aims and perspectives on so many issues, has been
the subject of much debate and challenge in north America. Nevertheless, the views and
arguments of this coalition of feminist organisations and conservative groups were
clearly influential to the Government continuing with its plans to enact legislation putting
their ideas into practice. While some changes were made to the proposals, following the
Consultation, in principle the objectives and approach remains broadly similar.
The Coalition Against: anti-censorship and sexual freedom
There was considerably more homogeneity in the responses of those against the
proposals. They coalesced around two related concepts: anti-censorship generally and
sexual freedom. The anti-censorship position is premised on the assumption that absent
any cogent evidence of harm to individuals, the state should not interfere with the rights
42 Response No 255, not available on Home Office CD, but available at
http://www.mediawatchuk.org/publications/Violent%20and%20Abusive%20Porn.htm.
43 Response No 262.
44 Response No 295.
45 West Midlands Police, Response No 175.
46 Nottinghamshire Police, Response No 212.
47 Response No 284.
48 Response No 330.
49 Response No 212.
[2007] Crim.L.R. Striking a Balance
7
of citizens to choose how to live their lives. The ‘sexual freedom’50 organisations (and
individuals) agree with the general anti-censorship position, but apply it particularly to
the case of sexual expression. Their particular concern is that the proposals (as set out in
the 2005 Consultation) were so broad and vague that they were likely to capture a
considerable amount of material beyond their apparent remit, including images of
consensual sexual acts, especially those taking place within the ‘bondage, domination,
submission and mastery’ (BDSM) community.51 The Sexual Freedom Coalition (SFC)
were also concerned about possible harassment ‘of otherwise law-abiding individuals and
groups leading an alternative lifestyle’ especially those who practice ‘extreme consensual
sexual behaviour’.52
Key to the opposition to the Government’s proposals is the absence of any
definitive evidence of the harm caused by pornography. Accordingly, Cyber-Rights &
Cyber-Liberties argue that the proposals are based ‘solely on moral and political grounds
rather than on public safety’.53 Similarly, the SFC focus on the Government’s use of the
term ‘aberrant’ to describe some forms of sexuality, which they rightly criticise as
implying that certain behaviours are ‘bad/wrong’ and ‘leads us to suspect that those
engaging in consensual BDSM practices are viewed by the Home Office as “aberrant”’.54
Another point of contention in the anti-proposal responses is the extent to which
the measures were simply ‘closing a loophole’ in the existing legislation. Backlash, an
organisation formed to campaign against these measures, has repeatedly challenged the
Government’s claim that the material under consideration is55 already illegal to produce
and disseminate under the OPA.56 This reflects the concern of the sexual freedom
organisations that the scope of the measures is far wider than the Government’s stated
intention. Other responses addressed the human rights implications of the proposals. The
Spanner Trust obtained an Opinion from Rabinder Singh QC in which he cautiously
concludes that the legislation as proposed (in the 2005 consultation) ‘gives rise to real
concerns’ as to its compatibility with the European Convention on Human Rights
(ECHR).57 Singh’s Opinion has been widely (mis)cited by the backlash organisations.
Unfettered reinterprets Singh’s Opinion as ‘recommending’ that Government action
‘would breach’ the ECHR.58 Backlash state that the Opinion provides that the measures
would ‘very likely prove incompatible’59 with not just the ECHR, but also the HRA
itself, despite Singh addressing the early, much broader, proposals and the ECHR on 60
ly.
This leads us to a further feature of some of the discussion of these measures by
those opposed: the use of inaccurate analogies. For example, the Campaign Against
50 The 2006 Consultation refers to ‘sexual freedom organisations’ and includes within this term the Spanner Trust,
Unfettered, the Sexual Freedom Coalition and SM Pride: Home Office, 2006; para 3.
51 We consider that some of the concerns raised regarding the definitions have been met, in part, by the 2006 amended
Government proposals. However this view is still held by some groups and individuals, eg, Julian Petley, ‘New Criminal law
provisions will do nothing for real victims of sex crimes’: www.indexonline.org/en/news/articles/2006/3/britain-extending-police-
powers-over-porn.shtml [visited 15 April 2007].
52 Response No 301.
53 Response No 124.
54 Response No 301.
55 Home Office, 2005; 1. Although later in the document it states that the Government ‘believes’ that the material would
contravene the OPA (para 20).
56 Backlash, above note 6.
57 The Spanner Trust, Response No 39 and available at
http://www.spannertrust.org/documents/rabinder_singh_opinion_consultation_paper_extreme_porn.pdf [visited 9 May 2007].
58 Response No 305.
59 http://www.backlash-uk.org.uk/unintend.html [visited 8 May 2007].
60 http://www.backlash-uk.org.uk/oppose.html [visited 8 May 2007].
[2007] Crim.L.R. Striking a Balance
8
Censorship states that proscribing images of bestiality ‘would criminalise classical art,
such as Leda and the Swan and The Rape of Europa’.61 Similarly, the Bar Council
claimed that the proposals would induce unusual results by rendering a video of a
performance of the play Romans in Britain, which depicts anal rape, unlawful to possess,
although the performance itself would not be unlawful.62 Both these concerns fail to
consider the specifics of the proposals. To come within the proposed offence, the material
must be ‘pornographic’, defined as material which is produced ‘solely or primarily’ for
the purposes of sexual arousal.63 Such works of art, therefore, would not come within
these measures. Further a painting depicting Leda and the Swan is not real or a ‘realistic
depiction’, nor is it explicit, nor does it involve intercourse or oral sex with an animal.
Likewise a video of the above play as a work of art (however disturbing and graphic)
would fall outside the scope of the proposals since it would not be pornographic.
Finally, while the organisations in support of the Government’s proposals are in
favour of greater regulation of all pornography, in contrast the anti-censorship
organisations advocate reform and repeal of most regulation of pornography.64 For
example, Nigel Meek, of the Libertarian Alliance, argues against existing laws
prohibiting the production and dissemination of obscene materials, ‘utterly condemn[ing]
any restrictions on the creation, distribution and possession by willing adults of willing
adults of “extreme pornographic material”’.65
Striking a Balance: Arguments in Favour of Criminalising the Possession of
Extreme Pornography
We find many persuasive arguments in the responses from both extremes.66 We
recognise, in common with the respondents against the Government’s proposals, the very
real dangers of assuming a common sexual morality, of censorship catching genuine
artistic works, of discrimination against sexual minorities and the reality that technology
is usually one step ahead of the regulators. We also agree with the substance (although
not the tone or pejorative description) of some of the criticisms of many of the supporting
respondents, particularly their demands for action far beyond the limits of the
Government’s proposals. We also share concerns that this measure could potentially be
incorrectly used, that it may be a sop to certain political classes or media outlets and that
resources would be well placed in other areas to focus on sexual violence against women.
We do not, however, go as far as in holding the proposals to be an attack on all forms of
pornography. Nor do we agree that all censorship is offensive. We agree with the
supporters of the proposals that there are some websites which are sufficiently damaging
61 Response No 217.
62 Response No 256.
63 Home Office, 2005; para 37.
64 There is some consensus around the depiction of real acts of sexual violence with the melonfarmers stating, for example,
that ‘images of real rape are abhorrent and there could be some sympathy with legislation that targets such material’:
www.melonfarmers.co.uk/agcmf.htm [visited 16 April 2007]. In addition, backlash appears to support measures criminalising the
possession of actual images of sexual violence: http://www.backlash-uk.org.uk/amend.html [visited 11 May 2007].
65 Nigel Meek, ‘The Backlash Campaign: defending S&M is defending individual freedom’ (February 2006):
http://www.libertarian.co.uk/lapubs/cultn/culindex.htm [visited 8 May 2007].
66 It should also be noted that some organisations responded on what might be termed technical matters, declining to
comment on the validity of enacting such legislation. The BBC and Channel 4, for example, say very little on the sorts of material
which is the specific object of the measures, but do express important concerns about the potential ‘spill-over’ effect of the proposals,
if enacted. Some of these concerns have been alleviated by the 2006 Government response, most particularly the tightening up of the
definitions and the decision to exclude all BBFC rated works from the scope of the legislation (2006: part II, para 18).
[2007] Crim.L.R. Striking a Balance
9
to warrant challenge, that do appear to glorify violence against women, and that their
proliferation (and even existence) does tell us something disturbing about our society.67
A balance, therefore, has to be found somewhere between the extremes. It is in this
centre-ground that our broad support for the measures and suggestions for further specific
amendments are located.68
The Government’s proposals embody what might be termed a ‘categories’
approach to the regulation of extreme pornography. Accordingly, rather than the fluid
‘deprave and corrupt’ terminology of the OPA, there are the categories of ‘serious
violence’, ‘sexual interference with a human corpse’ and ‘intercourse or oral sex with an
animal’. Although there are arguments about whether these provisions are sufficiently
precise, and there will be debates over the interpretation of the wording, in principle the
move towards a categories approach has much to commend it.69 It more succinctly
identifies the types of material at which regulation is aimed, in contrast to the opaque
criteria of the OPA. This is important. As demonstrated above, regulation in this area is
highly controversial. It necessarily infringes on individuals’ capacities to determine for
themselves what material they choose to view. Restrictions should therefore only be
entertained where there is a broad consensus that such material should be restricted and a
clear understanding of what material falls within the scope of provisions.70
A further positive aspect of the proposals is that they are premised on the reality
of harm to women, especially sexual violence against women, rather than traditional
notions of moral harm either of society as a whole (via the dissemination of
‘pornographic materials’) or harm to the (male) consumer. There are two distinct, but
related, aspects to this conceptual basis. First, there is the concern regarding the
conditions and experiences of those working in the pornography industry, representing a
departure from obscenity’s concern only with the consumer. The Government expresses
its desire to act to ‘protect those who participate in the creation of sexual material
containing violence, cruelty or degradation, who may be the victim of crime in the
making of the material whether or not they notionally or genuinely consent to take
part’.71 It also states that in reducing the demand for such material, it hopes to ‘lessen the
67 Some examples may be necessary. These examples are not suggested to be the ‘worst’, but are simply emblematic of the
sort of material we are discussing. For example: brutalzone.biz which advertises ‘real’ rape pictures and declares that ‘[n]othing is
better than seeing these good looking sluts getting raped’ and that ‘[a]ll the girls are violently raped, the[y] cry and resist without any
mercy from the rapist’. Rape-reality.org advertises that ‘[y]ou’ll see what happens when men lose control and don’t give a fuck
whether she says yes or no. Damn, in fact, the guys enjoy a “no” more!’. Exploited-bitches.com suggests to its viewers that it is ‘time
to become Tough Guys. Right now’. Realrape.net advertises ‘rape photo materials made by real criminals’. Brutalpassions.com offers
material where ‘it doesn’t matter if they want it or not’. It should also be noted that on many of these sites there is a considerable
amount of incest related material, as well as an obsession with ‘teens’ and ‘young girls’ (brutalpassions.com), ‘raped schoolgirls’
(realrape.net), ‘tiny teens’ (ritual666.com), ‘little schoolgirls’ (rapedbitch.com). These sites are all free to access and all display
numerous photos showing non-consensual material, often involving multiple assailants and weapons. There is also much disturbing
material showing what are said to be real rapes of Iraqi women by Western armed forces. All visited 3 May 2007. Finally, in our view,
these rape sites are poles apart from the ‘rape’ fantasies of women in books such as Nancy Friday’s My Secret Garden (Quartet Books,
London: 2006).
68 The Liberty response also occupies this ground, arguing that the Government’s aims are ‘reasonable’ (response no 374).
69 There are antecedents to this approach. In 1996-97, the Earl of Halsbury introduced a private member’s bill on Obscenity
which proposed a two-part test, the first part of which was that material fell within the list of proscribed content. However, the benefits
of such a list were undermined by the second part of the test which required the material to be ‘grossly offensive’ to a ‘reasonable
person’. As pointed out during debate, this was little more specific than the existing ‘deprave and corrupt’ test: House of Lords, col
1133, 27 May 1999. It is also arguable that the Canadian obscenity test set out in R v Butler [1992] 1 SCR 452 is an example of a
categories approach.
70 It will, therefore, be essential for the Government to provide the ‘non-statutory guidance on the type of injury’ to come
within the category of ‘serious violence’ that it has mooted (Home Office, 2006; Part II, para 14).
71 Home Office, 2005 – p 2 and para 34.
[2007] Crim.L.R. Striking a Balance
10
human cost in its production’.72 Object agrees, arguing in its response that the ‘majority
of “consenting” girls and women involved in the sex industry are survivors of child sex
abuse, dependent drug users, driven through economic necessity or experience coercion
and abuse within the industry’.73 It further accepts that there may be a ‘tiny proportion’
of women who ‘genuinely choose to participate in pornography’ but it is necessary to
restrict the rights of such individuals due to the ‘extensive harm experienced by the
overwhelming majority of women within the porn industry’.74 While there are clearly
genuinely consenting actors, there are serious doubts about the lack of choices for many
women involved in the pornography industry. The point we wish to make here is that
while legitimate debate over the conditions and choices of porn actors will continue, what
is important about these proposals is that this is at least a topic for debate, as opposed to
the obscenity standard’s disregard for such concerns.
Secondly, there is the harm that extreme pornographic material does to women in
terms of appearing to legitimate certain activities – for example, that the mere depiction
of rape for sexual gratification, legitimates rape, or makes rape appear not to be a serious
harm. This leads to an argument that viewing extreme pornography may dispose some
individuals toward carrying out harmful acts. As it is not premised on an attestable causal
connection, this aspect of the Government’s ‘harm to women’ perspective is, perhaps,
more problematic. Their stated wish to discourage an interest in material which it
‘consider[s] may encourage or reinforce interest in violent and aberrant sexual activity to
the detriment of society as a whole’75 echoes the paternalism of the traditional obscenity
approach and reinforces criticisms of proposals as ‘anti-sex’ or at least ‘anti-
pornography’. However, in our view, a more explicit focus on ‘harm to women’ may, in
fact, obviate some of these more general criticisms. The motivation behind the proposals
is not, as the Melonfarmers suggest, to deny people ‘the right to sexual entertainment’,76
but rather a concern about the prevalence of violence against women in society generally,
about the welfare and consent of women involved in the production of pornographic
materials, and about the messages that such material conveys. The Government’s agenda
should be focussed solely on tackling harm and violence against women, rather than a
moral crusade against material that is ‘aberrant’ or simply explicit.77
This adheres to the Government’s portrayal of the measures as addressing a
loophole in existing legislation. While this description is somewhat disingenuous the
proposals do largely cover the depiction of acts which are already unlawful. This
correlation is important as it makes the provisions clearer in terms of individuals knowing
that what they possess falls within their scope. In fact, the proposals should be tightened
to ensure consistency with existing legislation particularly in relation to bestiality and
necrophilia. Section 70 of the Sexual Offences Act 2003 (SOA) proscribes sexual
penetration of a dead person, while the proposals extend to ‘sexual interference’ with a
72 Home Office, 2005 – p ii.
73 Object, Response No 357.
74 Ibid.
75 Home Office, 2005; p 1 and para 27.
76 Response No 386 (not on Home Office CD), but available from: www.melonfarmers.co.uk/agcmf.htm [visited 16 April
2007].
77 We have argued that the simple depiction of explicit material is unproblematic, it is explicit material which is also violent
which is rightly of concern. See ‘Pornography, Harm and Exploitation: starting a conversation on Destricted’, forthcoming. The
Government does unfortunately defend a ‘moral’ case where it states in the 2005 consultation that it does not consider the ‘do nothing’
option a viable option as they ‘consider the moral and public protection case against allowing this kind of material is sufficiently
strong’ to demand some action (Home Office, 2005; para 52).
[2007] Crim.L.R. Striking a Balance
11
human corpse and are therefore wider than the SOA.78 In relation to animals, the
proposals seek to criminalise the possession of pornographic material depicting
‘intercourse or oral sex with an animal’. Again this does not exactly correlate to the SOA
which proscribes, in section 69, penile penetration of the vagina or anus of a live animal,
or penile or anal penetration by a live animal, but not therefore oral penetration.
It seems likely that the Government went down this route as much of the
pornographic material available on the internet, of acts of bestiality and necrophilia, are
much broader than the prohibitions in the SOA. In the area of bestiality, in particular,
depictions of oral sex are common and would not be caught did the provisions not go
beyond the SOA. Nonetheless, including intercourse and oral sex means that manual
masturbation of/by an animal is not covered, which is also freely and easily available.
This means that viewing pictures of intercourse or oral sex would be unlawful, but
viewing masturbation of an animal would not, which would obviously be difficult to
police. It is not always possible to determine what sort of activity involving an animal is
to be covered on the website. As a result, a person knowing that viewing intercourse and
oral sex with animals is unlawful and therefore seeking only masturbation or other sexual
acts, could while searching come across intercourse or oral sex by accident or on the
preview page of a website. This highlights an argument that either all sexual activity is
covered, or none.79
While the category of ‘serious violence’ - images ‘of acts that appear to be life
threatening or are likely to result in serious, disabling injury’ – is more contentious, it too
covers acts proscribed by current law, including sado-masochistic activity resulting in
serious harm.80 What it is not clear, however, is whether this category includes serious
and disabling mental injury so as to cover images of rape, unaccompanied by additional
physical violence. ‘Serious disabling injury’, as defined by the Law Commission,
includes ‘serious impairment of mental health’ and would therefore include such rapes.81
Thus far, the Government has stated that it intends that ‘some depictions of rape will be
covered’ by the measures.82 Rape sites, such as those described above, should come
within the scope of these proposals, whether or not the rape involves additional physical
violence, and we hope that the aforementioned non-statutory guidance will clarify the
position to include such cases.
There remains some inconsistency and illogicality between the proposed
measures and the OPA. In the context of these debates, it has been argued that the much
criticised morality-based test of whether material will ‘deprave and corrupt’ represents a
higher standard than that proposed by the Government regarding extreme pornography.83
If, therefore, the proposals were adopted, some lawful sexual activities, such as
coprophilia, generally assumed to breach the OPA84, will rightly not be covered by the
78 This was the focus of much criticism after the 2005 consultation, but the Government remained with its original proposal in
its 2006 document without specifying why (part II, para 12).
79 While we would usually argue that the extreme pornography provisions should mirror the criminal law, in this instance we
think the Sexual Offences Act should be extended to include ‘sexual activity’ with an animal.
80 R v Brown [1993] 2 All ER 75 and R v Emmett [1999] EWCA Crim 1710.
81 Law Commission, Consent in the Criminal Law: A Consultation Paper, No 139 (1995), para 4.51.
82 As stated in a letter from the Home Office Minister Vernon Coaker, 20 September 2006, posted onto the melonfarmers
web site at: http://www.melonfarmers.co.uk/argch06.htm [visited 8 May 2007].
83 Backlash: http://www.backlash-uk.org.uk/brief609.pdf [visited 9 May 2007].
84 CPS Charging Standards include ‘activities involving perversion or degradation (such as drinking urine or smearing
excreta on a person’s body)’: Crown Prosecution Service, Obscene Publications - Code for Crown Prosecutions:
www.cps.gov.uk/legal/section12/chapter_e.html [visited 11 April 2007]. In addition, HM Customs seizes ‘obscene’ materials and its
[2007] Crim.L.R. Striking a Balance
12
proposals. There is a good argument that only those acts which are unlawful should fall
foul of obscenity regulations and that the focus of new legislation would be better aimed
purely at harmful and violent material, rather than material deemed (with uncomfortable
echoes of a moral-based obscenity standard) ‘abhorrent’ or ‘degrading’.
In fact, there are strong arguments for the need to consider a complete overhaul of
the legal regulation of pornography, including the repeal of the OPA, perhaps by
establishing a review committee similar to that of the Williams committee.85 However at
present, the Government is in favour of retaining the OPA, hence their recommending a
free-standing offence of possession of extreme pornography.86 This means that there are
going to be two different legal regimes operating in respect of extreme pornography: the
possession offence and the OPA. Producers and distributors, as well as being potentially
liable under the OPA, will also be open to prosecution under the possession offence.87
Given that a conviction under the proposed measures will be more straightforward than
one using the OPA, it is likely that prosecutions under this Act will continue to fall.88
Any confusion is likely to be exacerbated further due to the lack of a ‘public good’
defence (found in section 4 of the OPA) to the proposed measures. While the
corresponding ‘pornographic’ restriction contained in the proposals will ensure that most
works which would come within the ‘public good’ defence of the OPA will not fall foul
of the possession offence, it is possible that there might be work deemed both
‘pornographic’ and in the public good but which would, nevertheless, come within the
scope of the proposals.89 For this reason, and to ensure clarity in relation to legitimate
works of art, news, film and commentary, we would therefore include a public good
defence in the new measures.
Conclusions
In this article, we have sought to carve out the middle ground – to strike a balance
between the opposing positions regarding the regulation of extreme pornography. We
find many persuasive arguments in the responses from both sides. Some of the arguments
of the opponents, including those highlighting the importance of respecting sexual
difference and the dangers of images of extreme violence generally and not just sexual
violence, have much to commend them. Equally, valid claims are made by those who
support these proposals and who indeed would advocate far greater action. Thus, while
we do not consider all pornography per se to be harmful, we agree that some of the
websites against which the measures are directed do nothing less than glorify violence
against women. In other words, our objection to these sites is based on their display of
unlawful activity, such as rape and other forms of sexual violence, as opposed to simply
finding material portrayed unsavoury or distasteful or even simply too explicit. In short, it
is the harmful and violent nature of the material to which we object; that is, our
official guidance includes coprophilia, as well as ‘fisting’, the ‘smearing’ of menstrual blood on the body, as obscene: HM Revenue
and Customs, C4-34: Indecent and Obscene Material, available at: http://customs.hmrc.gov.uk [visited 8 May 2007].
85 Bernard Williams, Report of the Committee on Obscenity and Film Censorship, Cmnd 7772, London: HMSO, 1979.
86 Home Office, 2005; para 21.
87 As acknowledged by the Government: Home Office, 2005; para 49.
88 The number of prosecutions under the OPA has been falling in recent years, with only 39 being brought in 2003 (Home
Office, 2005; para 15).
89 As pointed out by the BBFC, Response No 194.
[2007] Crim.L.R. Striking a Balance
13
perspective is one of a concern over violence against women, rather one fuelled by a
moral agenda seeking to limit expressive sexual material.
It is from this viewpoint that we have argued that a ‘categories’ approach to
regulating pornography, underpinned by a focus on ‘harm to women’, is preferable to the
traditional obscenity standard. However, while we broadly support the proposals (subject
to our concerns in relation to a public good defence and inconsistencies with existing
legislation) we would not wish to extend them further. Indeed it may well be that
‘extreme’ pornography, being in its very nature extreme and therefore rare, is not what is
most harmful to women. In fact, once harm is understood as a concept to critique and
understand, as opposed to regulate, pornography, the insidious, implicit nature of the
abuse and misogyny evident in non-extreme porn and, indeed, mainstream cinema,
especially the ‘torture porn’ genre, might be seen as more harmful.90 Thus, we see no
further role for the criminal law. This does not mean that we endorse other forms of
pornography. But, rather, we recognise the limits of the law and the necessity of engaging
in political campaigning and debate.
90 Kira Cochrane ‘For your entertainment’ The Guardian 1May 2007; Jenny McCartney ‘The films get sicker - so does
society’ The Sunday Telegraph 22 April 2007.
