Consenting adult fetishists may be wrongly prosecuted, legal research suggests
When Graham Coutts strangled Jane Longhurst with a pair of tights in 2003, he was convicted of murder after the prosecution placed great weight on his possession of 'extreme pornography' depicting simulated strangulation, rape and necrophilia.
Miss Longhurst's mother, Liz, organised a petition of 50,000 people and succeeded in persuading David Blunkett, the then Home Secretary, to introduce legislation to try to control the availability of violent sexual images on the internet.
Unable to shut down the websites, many of which were legally hosted in the UK and US, the Home Office decided to criminalise the possession of violent pornography. The new law, known as Section 63 of the Criminal Justice and Immigration Act 2008, came into force earlier this year (2009).
One of Britain's leading experts on internet law is Andrew Murray, a Reader in Law at the LSE who says the legislation will be impossible to enforce as intended.
In an article in the Modern Law Review, a leading academic journal, Mr Murray criticises the new law, arguing that it will be used instead to prosecute consenting adults who indulge in fetishes such as bondage, dominance and sado-masochism (BDSM).
'The outcome of the lawmaking process seems to have left both sides dissatisfied,' he comments.
'This law has been more than three years in the making and has involved a considerable degree of public participation, Parliamentary scrutiny and media analysis, yet despite all this neither side is fully satisfied that the law has achieved its aims or that their concerns have been met in the lawmaking process.
'Those who support a strong legal response to the challenge of extreme pornography are disappointed that in the Lords Committee stage key concessions were made which appear to have diluted the applicability of the new law to all but the clearest examples of harm, violence or threat.
'Rape fetish images appear to have escaped the attentions of Section 63 except in their most severe form, while images of sexual violence, torture or threat to life must now pass a number of hurdles including that they are grossly offensive, disgusting or otherwise of an obscene character, and that they must portray in an explicit and realistic way the illegal act in question. These seem substantial hurdles for the prosecution to surmount when the first cases come to trial.'
Mr Murray shares the concerns of Backlash, a campaign run by the SM group Unfettered, which opposes the legislation because it could be used to persecute those taking part in consensual sexual activity.
'From the alternate point of view there remains real concern that Section 63 will be used as a proxy to crack down on the activities of fetish communities,' he explains.
'It has been within the authority of the police to charge participants in BDSM activity with a variety of offences including assault occasioning actual bodily harm.
'The number of such actions remains though extremely low as to do so involves usually the Police having to enter a private property while the activity is ongoing: a challenge of both logistics and Article 8 of the ECHR.
'The fear is that as trading in sadomasochistic pornography is the soft underbelly of the BDSM community; police will use Section 63 as a Trojan Horse to regulate the underlying activity.'
Mr Murray says the success of the new legislation will depend on how it is interpreted by the courts.
'Whether Section 63 is a success of the lawmaking process in providing a settlement between two polarised views: the result of the democratic process in action or the failure of Parliament and the Government to grasp the nettle of this difficult and divisive issue will probably only become apparent once courts and jurors are asked to rule on and apply its terms.'
The problem of controlling internet pornography is extremely challenging, Dr Murray admits: 'Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the Internet age.
'With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide.'
Mr Murray has examined the government's consultation process and concludes that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy.
He also analysed whether this weakness in the foundations for the proposed new offence caused the proposal to be substantially amended during the Committee Stage of the Criminal Justice and Immigration Bill to the extent that the final version of Section 63 substantially fails to meet the original public policy objective.
The new law, known as Section 63 of the Criminal Justice and Immigration Act 2008 covers what is being classified as 'extreme pornography.'
To be illegal under the new law an image has to fulfil the following criteria: -
That the image is pornographic;
That the image is grossly offensive, disgusting, or otherwise of an obscene character, and
That the image portrays in an explicit and realistic way, one of the following extreme acts: - An act which threatens a person's life; - An act which results in or is likely to result in serious injury to a person's anus, breast or genitals; - An act involving sexual interference with a human corpse, - A person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that the people and animals portrayed were real.
The Reclassification of Extreme Pornographic Images [PDF]
For full details of Mr Andrew Murray's research and publications see his profile in the LSE Experts Directory: Mr Andrew Murray
Department of Law