The parliamentary debate on “violent pornography” is in danger of allowing personal tastes to overshadow compelling, factual arguments, writes Julian Petley
In June 2007, the government introduced its 54th Criminal Justice Bill. This puts 19 new offences onto the statute book, and the probation officers union estimates that these could add 3000 more people to the prison population (already at a record 81000). Amongst these could well be people guilty of possessing, albeit unwittingly, the “wrong” kind of pornography.
Clause 64 of the bill criminalises the possession of what it calls “extreme pornographic images.” Such an image is one which both “appears to have been produced solely or principally for the purpose of sexual arousal” and “is an image of any of the following—
where (in each case) any such act, person or animal depicted in the image is or appears to be real.”
The operative word here, of course, is “appears”, which will criminalise the possession of not only vast swathes of perfectly consensual BDSM material but will make anyone think twice before purchasing, say, a DVD of a fictional feature film which contains scenes of real sex but simulated violence. For example, the hard-core version of Tinto Brass’s Caligula, which I’ve just purchased from that sink of pornographic depravity Amazon.com.
This is the culmination of a long, but little-reported, process that started in August 2005 when the Home Office published its Consultation on the Possession of Extreme Pornographic Material. This was largely a response to the murder in 2003 of Jane Longhurst by Graham Coutts, who visited websites that contained pornography featuring violence. Mainly as a result of a petition started by Longhurst’s mother and supported by Labour MPs Martin Salter and David Lepper, along with the Daily Mail, the government made abundantly clear its determination to outlaw the possession of what the consultation document variously described as “material which is violent and abusive”, “sexual material containing violence, cruelty or degradation” and material which may feature “activities which are illegal in themselves”.
The vast majority of individuals who responded to the consultation document were extremely hostile to its proposals, and the breadth and depth of the various arguments marshalled against them were remarkably impressive. However, it was abundantly clear from the tone of the document that the government’s mind was firmly closed on this matter, so Clause 64 of the Criminal Justice Bill is as predictable as it is authoritarian and visually illiterate.
Although the pornography clauses account for only a small part of the bill, they loomed relatively large in the debate on its second reading on 8 October 2007. Thus Jack Straw, Secretary of State for Justice and Lord Chancellor, introduced a reference to pornography (which he is known personally to loathe) in his opening remarks, referring to “deeply offensive, violent and illegal pornography” and to “this vile material”. He was immediately interrupted by Martin Salter, who asked if he had had the opportunity to meet Liz Longhurst, “who has campaigned tirelessly for three years for precisely this measure to clamp down on extreme internet images, which she and many others are convinced directly led to the murder of her lovely daughter, Jane”. Straw indicated that he had indeed met her and added that he would “like to applaud the campaign that she has so skilfully and resolutely waged. I hope that the clauses in part 6 will at least go some way to meeting her concerns.” Later in the debate, further confirmation of the genesis of this measure was provided by David Lepper, who stated that “there has been determination on the part of Mrs. Longhurst—the fact that we are discussing the issue is a tribute to her—and on the part of many of the predecessors of those on the government front bench.”
Salter, who regards part 6 of the bill as “well crafted, sensible and well thought through”, referred patronisingly and dismissively to opposition he had received from “groups claiming to represent the bondage, domination and sado-masochistic communities. I have learned that they organise themselves into munch clubs—I do not want to go any further into that. Let me make it clear to them that nobody is seeking to introduce a new level of censorship; we are talking about imagery that is already illegal. If people want to do weird things to each other they still can, but I say, “Don’t put it on the internet”. I do not need to see it and nor do my constituents—and, more importantly and seriously, those of an unbalanced mind who could be tipped over the edge by violent and extreme imagery do not need to see it, and we do not need to live with the consequences of their actions if they were to see it.”
He also indicated that the proposed measures are but the start of a campaign that is far broader in scope and ambition, stating that “much more needs to be done, but this is a good start. Ideally, we would like blocking measures that prevent access—they now exist—to be brought in. We would like all PCs to be fitted with a blocking mechanism before they are sold on the open market—as cars are automatically fitted with seat belts. An obvious measure would be to go after the banks and credit card companies whose processing of payments lubricates this evil trade.” No doubt someone will soon propose making it illegal for sex offenders to possess debit or credit cards.
Salter’s final contribution to the debate was to read out a letter from Liz Longhurst which concluded: “if these measures can be enacted, I feel this will be a fitting memorial to my lovely daughter Jane who was murdered by a man addicted to extreme violent internet pornography.” So, no emotional pressure there, then. And entirely unsurprisingly, particularly given this crude level of debate, the Tories made it abundantly clear that though there was much in the bill with which they disagreed, the pornography clauses were fine by them. Indeed, like Salter, the Tory MP Charles Walker clearly had further targets in his sights; focusing on the film Hostel: Part II, which he admitted he had not actually seen, he argued that “from beginning to end, it depicts obscene, misogynistic acts of brutality against women—an hour and a half of brutality—yet that film has been passed by the British Board of Film Classification for public release to people aged 18 and over. I understand that, although the bill will not make that film illegal, it could make it illegal for someone to take stills from that film, because they could be deemed to have a purely pornographic nature. If it were deemed that stills from a film such as Hostel: Part II were of a pornographic and unacceptably violent nature, it seems madness that that film should be allowed on general release.”
It’s also worth noting that during the bill’s committee stage, Walker complained that “huge numbers of images are available on terrestrial television of violence towards women and of violent pornography. A series called Wire in the Blood routinely depicts what I would call violent pornography and violence towards women.” He also returned to the theme of BBFC-certificated films, enquiring: “Why is extreme pornographic violence worse than any other extreme violence? […] Why is it that more serious than vivid images of people having their eyes gouged out, or their faces burned off by a blow torch in films on general release?” He concluded: “There is a far too casual approach in society to violence. We in this place should legitimately debate violence and our approach to it, and perhaps return to the discussion in a separate bill entitled “Possession of Extreme Violent Images”. Let us be honest: in the media over the past year, there have been several horrific cases of murder in which a person has been detained against their will by gangs or groups of people and brutally tortured in ways that Mr. Roth’s films [Hostel and Hostel: Part II] depict very graphically. There are huge similarities between the two. They were not sexually tortured, but they were tortured in a vile and violent way. Therefore, as Members, we should consider the issue in the round. I do not think that pornographic torture is any better or worse than the extreme torture that I have described, so I hope that we can reflect on this aspect of the bill, organise cross-party discussions about how we can introduce a bill that would set new parameters of acceptability in society, and start to roll back the appalling levels of violence that we so often see depicted in films and on television.”
After these various onslaughts, it was left to lone Labour MP Harry Cohen gingerly to raise the point that the word “appears” will catch “all sorts of things that it should not … The government should consider that sub-paragraph, which could be problematic for the future.” He was followed by the Liberal Democrat MP Dr Evan Harris, who quoted from Liberty’s briefing on the bill to the effect that: “Extreme caution should be exercised when new criminal laws are imposed with the intention of imposing a subjective opinion on what is morally acceptable.” Noting that Liberty was concerned about “the breadth of the proposed new offence” that “might criminalise people who cause no harm to others and who possess pornographic material involving consensual participants” he also quoted their conclusion that it is vital that “legitimate and undamaging behaviour is not unintentionally criminalised by carelessly drafted, over-broad criminal offences.” He also pointed out that “ministers have not provided an evidence base for some of the material that will be covered by the measure. Despite the eloquent testimony that Members have given about an individual case, if we do not have evidence that the material causes harm, it is right that the House should subject the proposals to close scrutiny.”
In his conclusion, the Minister of State at the Ministry of Justice, David Hanson, inevitably returned to the Longhurst case. Noting that “my honourable friends have particularly welcomed the measures on extreme pornography” he concluded: “I welcome Liz Longhurst’s campaign in memory of her daughter Jane and the support of my honourable friends the Members for Reading West, for Brighton Pavilion and for other constituencies for the legislation.”
Evan Harris’s comments about the lack of evidence of the supposedly harmful qualities of the pornographic material targeted by the bill echoed precisely the same point made by numerous respondents to the consultation, including the present writer. So, almost exactly two years after the initial consultation, the Ministry of Justice produced, like a rabbit out of a hat, and on the principle of “fire, take aim, ready”, a Rapid Evidence Assessment entitled The Evidence of Harm to Adults Relating to Exposure to Extreme Pornographic Material.
The authors of this document are:
– Catherine Itzin, Professor of Violence Abuse and Mental Health at Lincoln University and Senior Policy Official, Department of Health Mental Health Programme.
– Ann Taket, Professor of Primary Health Care at London South Bank University, UK, and Professor and Director of Centre for Health Through Action on Social Exclusion, Deakin University, Melbourne, Australia.
– Liz Kelly, Roddick Chair of Violence Against Women and Director of Child and Woman Abuse Studies Unit, London Metropolitan University. She is also Chair of the Sexual Violence Sub-Group of the Women’s National Commission, which is the government’s independent advisory body on women’s issues.
These are not exactly people with open minds on the subject of pornography. For example, in her response to the original consultation document on behalf of the Child and Woman Abuse Studies Unit, Kelly stated that pornography “eroticises dominance, not only in terms of gender but also with respect to racialised imagery and the fetishising of disability. Adult pornography in its extreme forms should be considered in the same way that child pornography is – a record of sexual abuse. At the same time all heterosexual pornography constructs women’s resistance as something men must overcome and ignore when it conflicts with their wishes and desires.” She also argues that “our interest has never been in “proving” direct causal links between pornography and specific acts of sexual violence, although there certainly is strong evidence with respect to individual cases, but to suggest that the existence and now virtual ubiquity of pornography creates a cultural context which devalues women’s humanity and dignity. Treating human beings as commodities constitutes a human rights violation whether this sale is into contemporary forms of slavery or through commercial representation.” Kelly also endorsed the Lilith Project’s response to the consultation, which stated that: “Lilith would like to see the UK government acting to protect women by defining all pornography as harmful to women and thus restricting all content which depicts women in sexually degrading imagery. The violation to women produced by pornography is not limited to material that shows violent acts, as this consultation paper suggests is the case.” They therefore want banned:
– Any material that has scenes of sexual violence, not just those which are deemed to be showing “serious” sexual violence.
– Any material that shows women’s bodies being abused in any way.
– Any material that is hostile to women by showing them in passive roles in sexual activity or being dominated.
– Any material that features naked women for the sole purpose of sexual gratification (and therefore not, for example, for educational or anatomical purposes).
Meanwhile, Catherine Itzin edited and contributed several chapters to the 1993 collection Pornography: Women, Violence and Civil Liberties, to which Kelly was also a contributor. This is a book which absolutely, indeed slavishly, endorses the Catherine MacKinnon/Andrea Dworkin line on pornography. So, for example, Itzin confidently states that pornography “sexualises violence, connects violence with sex and sexual arousal, makes violence sexy. It legitimates violence against women. It is used in the sexual abuse of some women. It stimulates some men to commit specific acts of sexual violence against women … Pornography is one of the factors contributing to sexual violence, and there is an abundance of evidence of harm, both correlational and causal, of links between pornography and rape and child sexual abuse.” This is typical of the approach taken by many contributors to the collection, in which, all too frequently, sheer assertion takes the place of rational argument and the provision of proof. Thus Itzin again: “There is evidence of causal links between pornography and rape. This evidence … comes from social science and psychological research, from studies of sex offenders, and from the personal testimony of both the perpetrators of sexual violence and their victims. There are cases of copy-cat crimes, where men act out on women the scenarios they have seen depicted in pornography and actually use pornography during the assaults.” (Emphases in original).
Hardly surprisingly, the REA’s findings are as follows:
– The REA supports the existence of some harmful effects from extreme pornography on some who access it. These included increased risk of developing pro-rape attitudes, beliefs and behaviours, and committing sexual offences. Although this was also true of some pornography which did not meet the extreme pornography threshold, it showed that the effects of extreme pornography were more serious.
– Men who are predisposed to aggression, or have a history of sexual and other aggression were more susceptible to the influence of extreme pornographic material. This was corroborated by a number of different studies using different methods and different samples.
However, the REA gets off to a bad, if all too predictable, start by simply accepting the definitions of “extreme pornographic material” laid down by the consultation document, when these are in fact highly questionable and controversial. It thus entirely begs certain fundamental questions that any more open-minded review would have addressed right from the start. It then goes on to state that “the majority of research on pornography effects has been experimental studies conducted under laboratory conditions.” This is largely true, but what it entirely fails to address is the extent to which findings derived from such experiments have any validity or generalisability outside those laboratory conditions. Nor does it constitute an original piece of research but a critical review of “five high quality meta-analyses” and of “32 studies not previously reviewed in the meta-analyses.” But so specific to a certain kind of US-based model of psychological investigation and so extraordinarily narrow and exclusionary are the methodologies of the studies analysed that it is extremely difficult to agree with the REA’s conclusion that “taken together … the methodologies employed and the findings of studies reported in the REA provide a scientific basis on which to consider the harm effects on victims, including the damage it does to the attitudes, beliefs, fantasies, desires and behaviour of some of those who use it”. In particular, the sense in which an approach with which many psychologists themselves would violently disagree can be accurately described as “scientific” is highly questionable, to put it mildly.
Ample proof of the pragmatic genesis of this document is offered by the government’s responses to criticisms of the pornography clauses during the bill’s committee stage. Thus, for example, on 16 October Harry Cohen, who was to introduce a series of amendments to the bill, noted that in August 2006, the Government had stated that: “Given the many different approaches to conducting the research and framing the questions, as well as differences in the nature of the material examined, we are unable, at present, to draw any definite conclusions based on research as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behaviour.” Quick as a flash, Maria Eagle, Parliamentary Under-Secretary of State for Justice, replied that: “the evidence is contained in that Rapid Evidence Assessment which … did find that there were some harmful effects on some of those who viewed it, particularly men who were predisposed to aggression or had a history of sexual aggression … It showed that there was cause to have concern in certain circumstances for what is, no doubt, a smallish number of the population who might be susceptible to their behaviour being affected by viewing extreme pornography.”
Cohen, at one point aided by Gareth Crossman, appearing as a witness in his capacity as Policy Director, Liberty, did his best to advance the by now well-rehearsed arguments against the pornography proposals contained in the bill: that the offences are drafted far too broadly, that there is confusion between what is harmful and what is merely distasteful or immoral, that there is a danger of that the law will be used to impose subjective judgements about what is and is not morally acceptable, and that no account is taken of images of violent activity which is in fact either consensual or wholly fictional. Also extremely critical of this aspect of the bill were the Tory Edward Garnier and the Liberal Democrat David Heath. Thus, for example, the former made the important point that: “an image could have been produced in identical form, but for different purposes. If I were to possess an extreme pornographic image which had been produced solely or principally for the purposes of sexual arousal, I would apparently be guilty, but if I produced exactly the same image, but it was not produced solely or principally for the purpose of sexual arousal, I would not be guilty of an offence.” He also raised questions about the highly subjective nature of the offence; noting that an image is defined as pornographic by the Bill “if it appears to have been produced solely or principally for the purpose of sexual arousal”, he enquired: “Who is to decide whether it so “appears”? Is it the judge, the policeman, the viewer or the maker?” He concluded: “It strikes me, as one unpicks the clause, that it is riven with uncertainties, which will make its enforcement difficult. It will make its understanding by members of the public difficult and it will bring the law into disrepute.”
David Heath also raised the issue of how members of the public can be expected to understand exactly what material the bill intends to make it a criminal offence to possess. Returning to the vexed but central question of “appears to”, he argues that “a vagueness runs through the entire clause, which is difficult to construe legally. Much of it will have to be determined by a case being put before a court. That, too, is a problem for those who may wonder, “Is what I am doing illegal? Are these pictures that I have in my possession illegal? Should I destroy them as a consequence? Do they have a sufficient level of realism for me to be concerned, or can anybody see that they are staged?””
Turning to the equally vexed matter of causation, Heath argued that: “if the government want to persuade us that the legislation is necessary, they must establish a degree of causation between what is to be banned and another illegal activity.” Citing Liz Longhurst’s petition, he stated that it was “constructed on the basis that there is a causal relationship between such material and violence against women. Of course, anyone would be against it if that level of causation could be shown, but the evidence is extremely thin.”
But all of these objections were airily dismissed by the government. Thus Maria Eagle admitted that creating a new offence of possession was a “serious step”, but averred: “We have taken that step after a long period of public consultation and discussion and in response to concerns about the increasing availability of the most disturbing types of violent and abusive pornographic material, particularly on the internet.” What, of course, she omitted to mention was that the vast majority of well-informed responses to the consultation were intensely critical of its proposals. She also noted that “a gap has opened up because of the huge technological developments over the last few years and in our ability to control such material. My right honourable friend the prime minister recently announced a review looking at, among other things, how parents can protect their children from exposure to potentially harmful material on the internet. That is why we felt it necessary to take the serious step of criminalising possession of such images.” This is the review being conducted (admirably sensibly, as it happens) by Dr Tanya Byron. However, such a response immediately raises the question of whether it would not have been more prudent to wait for the results of the review before legislating. Again, this is the “fire, take aim, get ready” principle at work.
Accepting that the measures outlined in the bill are a departure from the 1959 Obscene Publications Act, which criminalises publication, but not possession, of obscene images, Eagle continued: “we are trying to deal with a technological change that means that publication takes place abroad—beyond our jurisdiction. Possession and downloading such images now equate to what would have been publication many years ago without this technology.” However, this is quite simply arrant nonsense, and a good example of how normally intelligent people frequently appear to totally abandon their intellectual faculties the minute they start discussing the changes allegedly wrought on our society by the great panjandrum “new technology.”
But, of course, the killer blow was delivered by deploying the Rapid Evidence Assessment once again, which Eagle quoted from several times, once to point out that it supported “the existence of some harmful effects from extreme pornography on some who access it”, including “increased risk of developing pro-rape attitudes, beliefs and behaviours and committing sexual offences…Although this was also true of some pornography which did not meet the extreme pornography threshold”, and again to emphasise its point that “men who are predisposed to aggression, or have a history of sexual and other aggression, were more susceptible to the influence of extreme pornographic material.” “That”, she concluded, “is the harm that the clause seeks to tackle.”
Eagle also stated: “I am perfectly happy to reflect on any concerns that that Members of the committee have raised and see whether we can improve the wording of the clause”, at which Cohen withdrew his amendments. However, the rather more robust Garnier asked Cohen (in vain) “to extract from the government a commitment to do something rather more than say, “We will look at it again,” because too often the government say that they will look at a matter again in order to avoid a further debate and we never see it again. It is really quite important that we get the clause right, because, as it is currently drafted, will cause more problems than it will solve, for many of the reasons that the honourable gentleman set out in his earlier speech. I am not at all sure, and I hope that he is not at all sure either, that the minister’s response to his arguments about the subjectivity issue has been adequate. When we finish this short debate, I urge him to urge the minister to do something really quite radical, either on report or in the other place, so that the bill is produced in a sensible form. Otherwise, as I just said, the bill will cause more trouble than it will solve.”
When the bill returned to the Commons for its report stage on 9 January, not only was Clause 64 unchanged—it, along with the other clauses pertaining to the possession of pornography, was not even discussed, due to lack of time. Indeed, a bill with over 100 new clauses was “debated” in two hours flat. And politicians have the gall to blame the media for people’s disaffection from Westminster politics…
Given the forces arrayed in favour of the pornography clauses, the chances of their being even modified, let alone dropped, seem slim indeed. Of course, they still need to be opposed root and branch, but campaigners on this issue now need to reconcile themselves to digging in for an extremely long haul and to prepare to challenge these measures under the Human Rights Act. More urgently, though, they need to watch out for the next turns of the censorship ratchet, whose instigators have been thoroughly emboldened by the passage of this bill. Thus, for example, on 5 December the Tory MP Julian Brazier introduced (for the second time) a private members bill “to make provision for parliamentary scrutiny of senior appointments to the British Board of Film Classification and of guidelines produced by it; to establish a body with powers to hear appeals against the release of videos and DVDs and the classification of works in prescribed circumstances; to make provision about penalties for the distribution of illegal works; and for connected purposes.” One of those supporting this measure is Keith Vaz, the chair of the Commons Home Affairs Committee, who has been urging for stricter censorship of video games ever since a murder in his Leicester constituency in 2004 was blamed on that popular scapegoat Manhunt. And so it goes on.
Don’t say you haven’t been warned.
The Bill goes for its Second Reading in the Lords on 22 January.
Julian Petley is Professor of Film and Television at Brunel University. His book Censoring the Moving Image, co-written with Philip French, is about to be published by Seagull Books/Index on Censorship