Thursday, 20 June 2013

Keir Starmer's Obscene Solution

Today the Director of Public Prosecutions issued “Guidelines on prosecuting cases involving communications sent via social media” here.

They arrived after a consultation period, including round-table discussions with the DPP. I attended the discussion for legal professionals.

I asked two questions:

How would “indecent” and “obscene” be defined, interpreted and therefore applied?

The first question has been answered by the today’s guidelines. I’ll be brief. They haven’t been defined at all. Simples.

In avoiding defining “indecent” the guidelines refer to a case that states that: ‘indecent or grossly offensive’ - “were said to be ordinary English words”.

This is factually accurate. The words ‘Indecent or grossly offensive’ are indeed words. As are the words “deeply unhelpful”.

The Google definition of “indecent” is: “not conforming with generally accepted standards of behaviour or propriety; obscene”. We’re not getting much further.

Could “indecent” be interpreted as akin to the offences of possessing (abusive) “indecent images of children” or “outraging the public decency”?

Infuriatingly, the guidelines give no indication whatsoever.

This is a serious problem as, without such clarity, citizens are unable to moderate behaviour in order to abide by law.

Perhaps we need further guidelines to clarify this?

The second question was:

Would the Obscene Publications Act case of R v GS be applied as an alterative?

The guidelines do not address this issue at all. They do not have to.

This omission concerns me very deeply.

I have blogged about the implications of R v GS before (as well as publishing the full judgment) here.

To explain: the Court of Appeal decided that private fantasy one-to-one text chat (on the internet) counts as “publication” under the OPA.

So what does that mean for me?

Sending a private message (for example a DM on twitter, email or MSN chat message); intended solely for a single recipient (sent in good faith with the expectation that no-one else will see the contents); about an “obscene” sexual act (for example fisting, an act which is legal to perform); which is purely a fantasy (in the sense that it is an expression of a desire); rather than a statement of an intention to perform that act - means you could be sent to prison.

Sound like thought crime to you, too?

Okay, so tell me what I can’t talk about.

The OPA guidelines state that the categories of material most commonly prosecuted include: 

1) Sexual act with an animal.

Nice starter.

However, as animals cannot consent at law I would have have no issue with this, if we were talking about images.

2) Realistic portrayals of rape.


If it said images of “rape” I’d be in absolute agreement.

However “realistic portrayals of rape” suggests simulation, role-play and acting.

This raises the question of evidence of harm to both performers and viewers.

However, as I discussed those issues in detail in yesterday’s blog, here, I won’t repeat myself. Please draw your own conclusions. 

Yet, if we're talking about text, then I'd disagree, especially since there are no performers.

3) Sadomasochistic material which goes beyond trifling and transient infliction of injury.

Ah, R v Brown my old nemesis, we meet again.

Brown states that individuals cannot consent to injuries “beyond trifling and transient” in a sexual context.

The CPS now defines this level of injury as: “significant medical intervention and/or permanent effects”.

Whilst I fundamentally disagree with Brown on the basis that I find it a paternalistic, homophobic and arcane decision from another age by the Lords; I acknowledge, with extreme regret, that it is still currently binding law.

However, when it comes to text, again I cannot see any evidence to suggest anyone is harmed by the words (no performers) and therefore see no criminal mischief.

4) Torture with instruments.

If this means images of torture in the Guantanamo Bay or Al Quaeda beheading sense of the word, then I fully support this.

However, given that obscenity is constructed in the context of this list, to be exclusively sexual, somehow I doubt it.

Therefore my questions are: what amounts to “torture” in a sexual context and what is meant by “instruments”?

5) Bondage (especially where gags are used with no apparent means of withdrawing consent).

Bondage is obscene?

Like, seriously?

6) Dismemberment or graphic mutilation;

I have no issue with the inclusion of “dismemberment” images. Fantasy text is a different matter.

I want to know what the hell constitutes “graphic mutilation”?

How about images of female genital mutilation? If so, then I’m down with prohibiting that. That’s clearly abusive and non-consensual.

However, I suspect that the emphasis is on consensual sexual activities like “needle-play” (temporary piercing, by the insertion of sterile surgical needles into the skin) and “blood play” (similarly, cutting the top layer of skin), irrespective of whether they are performed with safety and risk awareness.

If I’m correct, this seems like an unnecessary repetition of sadomasochistic material and torture with instruments provisions above.

Nonetheless, it also calls into question the legal status of permanent piercings and body modification like nipple rings or tattoos.

7) Activities involving perversion or degradation
(such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta). 

All these activities are legal to perform in real-life. With consent.

Yet they are classified as “perversion” and “degradation”. Sigh.

8) Fisting.

Likewise, humble fisting (both vaginal and anal) is legal to perform in real-life.

Yet the representation thereof is illegal. So why is it compared to bestiality?

Yes, despite the jury finding Micheal Peacock not guilty in his #ObscenityTrial, the guidelines haven’t been updated since.

Oh well, whatever, nevermind.

What if I make it clear that I’m writing a fantasy?

Sorry. No. That’s the whole point of R v GS.

It criminalises not only the written word, but fantasy.

I’m concerned, what can I do to avoid prosecution?

You’re fine having a private one-to-one conversation in person.

The moment you transmit that conversation as data by, for example: text message; email; DM on twitter; private message on facebook; MSN, Yahoo or Skype text messenger, IRC, Chatroom you’re in trouble.

How can I do something to clarify this situation?

Please feel free to write a (non-obscene) suggestion on the back of a postcard, addressed to:

The Director of Public Prosecutions,
The Crown Prosecution Service, 
Rose Court, 2 Southwark Bridge, 
London, SE1 9HS.

Tuesday, 18 June 2013

Is the rape porn cultural harm argument another rape myth?

“Myths arise from people's need to make sense of acts that are senseless, violent or disturbing.  They attempt to explain events, like rape and abuse, in ways that fit with our preconceived ideas about the world - they arise from and reinforce our prejudices and stereotypes”.

Crown Prosecution Service Guidance on Rape Myths (Chapter 21)

(Trigger Warning – This article contains frank discussion of simulated adult consensual rape fantasy pornography)

As a criminal defence lawyer I believe that the rates for reporting, attrition and conviction in cases of rape bring shame on our criminal justice system.

As an activist I have attempted to redress this by campaigning to increase rape-crisis centre funding; and supporting the London Slutwalk (the anti victim-blaming marches) by acting as a legal observer.

Hence I appreciate that any discussion of rape issues will inevitably raise powerful emotions.

As a specialist in obscenity law, having represented Micheal Peacock in his #ObscenityTrial under the Obscene Publications Act 1959 and Simon Walsh in his #PornTrial under the “extreme pornography” legislation in the Criminal Justiceand Immigration Act 2008 (both of which featured images of consensual adult sexual activity) I acknowledge that certain sexual fantasies or depictions may feel disgusting to some readers and viewers, regardless that they are consensual.

Evidence of harm

So it is with mixed emotions that I embark on a critique of recent proposals by a coalition including Rape Crisis South London, End Violence Against Women and Professors Clare McGlynn and Erika Rackley of The University of Durham to extend criminal liability for the possession of “staged” or “simulated” consensual adult rape-fantasies based on the assertion that:

“Sexual violence as a form of entertainment causes a huge cultural harm to our society”.

This argument acknowledges that there is no evidence of a causal link between viewing consensual adult rape-fantasies and the commission of non-consensual sexual offences such as rape. The campaign briefing from Rape Crisis South London in support of a change in the law expressly states that:

“Direct links between ‘regular’ pornography and sexual violence have been scientifically difficult to quantify”.

The Rackley and McGlynn legal briefing also states:

“This is not to suggest that the viewer of pornographic images of rape will necessarily go on to rape or commit other acts of sexual violence”.

The 2005 Home Office Consultation On the possession of extreme pornographic material in stated:

“As to evidence of harm, conducting research in this area is complex. We do not yet have sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind of material on individuals generally”.

It is interesting to note that despite acknowledging that no link can be proven between consensual adult fantasies and any evidence of harm, all three of these statements suggest an assumption of harm despite the absence of evidence. In contrast The Ministry of Justice criminal policy unit’s statement is clear and unequivocal:

"We have no evidence to show that the creation of staged rape images involves any harm to the participants or causes harm to society at large”.

Cultural Harm

Thus, in the absence of any provable causal link, the prohibitionist argument falls back on the perception that consensual adult rape-fantasies cause “cultural harm”. The notion of cultural harm seems predicated on the concept of “rape culture” which links “rape and sexual violence to the culture of a society in which prevalent attitudes and practice normalise, excuse, tolerate or even condone rape”.

On first inspection the notion of cultural harm is absolutely impossible to refute, as it is a nebulous concept, conveniently avoiding definition. It acknowledges a possibility, rather than asserting a certainty. It is a mere “may” instead of an absolute “does”.  For example there is no evidence whatsoever to suggest that the simulated violence in computer games “does” cause actual violence. However, it “may”. Hence my concern is: should a mere “may” be sufficient to justify criminalising possession of material that some people find questionable?

How about applying the “cultural harm” argument to other scenarios where actual (rather than simulated) consensual violence is legal for both the participants and viewer? The “properly regulated” sport of boxing has been a legally recognised form of “violent” entertainment since the case of R v Coney in 1882 (which was relied upon by the House of Lords in deciding the extent of consent to assault in a sexual context in the case of R v Brown (1993) or the “Spanner” Case) Yet there is absolutely no persuasive evidence to suggest that viewing boxing “does” cause viewers to commit violent offences. However, it “may” cause cultural harm to “normalise, excuse, tolerate or even condone” violence.

By that rationale, should the law criminalise the possession of
depictions of consensual boxing because it “may” contribute to a culture in which violence is acceptable?
This also questions the effectiveness of the rationale of criminalising the end consumer, rather than the producers of the material. Furthermore, would the position be more pronounced if watching boxing sexually aroused the viewer?


Section 74 of the Sexual Offences Act 2003 defines consent as:

“If he agrees by choice, and has the freedom and capacity to make that choice”.

The CPS Guidance breaks this down to a two-stage test:

“Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.

Whether he or she was in a position to make that choice freely, and was not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice”.

Furthermore, it is an established principle that those who are not capable of giving consent at law include: children under the age of sixteen, animals, cadavers and persons with a mental disorder impeding choice.

Hence the criminal offence of rape is absolutely about the absence of consent. As previously discussed, consensual adult rape-fantasies are absolutely about the consent of the participants. Therefore any images of an actual rape would be prima facie evidence of an offence under Section 1 of the Sexual Offences Act.

Finally, whilst the age of consent is sixteen under Section 1 of Sexual Offences (Amendment)Act 2000; the age for legally performing in pornography was extended to eighteen by virtue of Section 45 of the Sexual Offences Act 2003. This disjunct between the age of consent and what I refer to as “the age of representation” becomes important when considering conflation arguments regarding the protection of children; and any link between consensual adult fantasy pornography and indecent images of children, which are by definition non-consensual.

According to the CPS’ Legal Guidance on indecent images of children:

“The two main offence provisions in this area are section 1 of the Protection of Children Act 1978 (PCA 1978) and section 160 of the Criminal Justice Act 1988 (CJA 1988)”

Thus the law penalises the possession, making, distribution, showing and advertisement of indecent images of children who are under the age of eighteen. It is essential to understand the absence of consent in these offences when attempting to identify arguments that conflate consensual activity with non-consensual activity.

Conflation Arguments

Many of the arguments for proposing the criminalisation of possession of consensual adult rape-fantasies have cited the existence of already criminalised indecent images of children as a justification for the former. Hence non-consensual activity is cited to justify the criminalisation of currently legal consensual adult sexual activity. To return to the boxing analogy, that is the equivalent of calling to criminalise “properly regulated” legal boxing on the basis that illegal street-fighting is morally reprehensible.

In this current cycle, the prohibitionists and certain media commentators have cited the murder convictions of Mark Bridger and Stuart Hazell, both of whom were in possession of reprehensible and illegal indecent images of children, in support of the proposition for criminalising the possession of consensual adult rape-fantasies.

For example, a Guardian editorial appeared on the Comment is Free website on the 30th May 2013 stating that all “internet pornography… should be banned.” The article was amended the following day to clarify “that the intention of the editorial was to propose restrictions on violent and abusive pornography, as opposed to pornography in general”. Despite that clarification, the readers' editor posted a further clarification of “the Guardian's view on pornography” ten days later.

Nonetheless, a comparison of the original text and the amended version can be found here. The original text calls for the banning of all internet pornography with the unsupported assertion that it is “usually abusive and often violent” then, by citing Mark Bridger’s conviction in the next line, seems to conflate consensual and non-consensual images alike.

The full text of the first paragraph reads as follows:

“Internet pornography is usually abusive and often violent. Mark Bridger, convicted yesterday of the murder of April Jones, had compiled a store of it. Pornography is easily and freely accessible, and at most requires only a credit card. The link between such material and violence, most commonly against women and children, is not quite beyond dispute - occasional studies claim there is, as one headline had it, a sunny side to smut. But there is strong evidence that at the very least it is addictive, can normalise violence, and at the same time diminishes sympathy for its victims. It is a kind of incitement to hate. It should be banned. But that is easier to say than to do.”

The same conflation of consensual with non-consensual sexual images can be seen in the Rape Crisis South London letter to the Prime Minister, which states:

“The recent murder convictions of Mark Bridger and Stuart Hazell, involving violent and misogynistic pornography, have been both shocking and distressing.”

Bridger and Hazell’s actions were without question shocking and distressing. That they were in possession of indecent images of children amounts to separate criminal offences. Yet citing evidence of non-consensual images in order to justify the criminalisation of consensual adult sexual images is a classic logical fallacy typical of the “moral panic” argument, as Laurie Penny argues in the New Statesman:

The worst thing about this debate is that it turns a real-world, complex problem into a simple moral choice”.

Assumption and Exclusion

The prohibitionist arguments are also based on a number of assumptions and exceptions that, unfortunately, exclude certain voices from the debate.

The Rackley and McGlynn paper frames the debate in terms of violence against women:

“The existence and use of extreme pornography contributes to the cultural context within which society fails to take sexual violence against women seriously”.

In doing so, this excludes the experiences of male and transsexual rape survivors. As the CPS’ rape myths state this arguably “re-traumatises and stigmatises male survivors”. Hence the “cultural harm” argument is weakened by the prohibitionists’ own cultural assumptions about victimhood in society.

The CPS’ Policy for Prosecuting Cases of Rape contextualises the issue in more even handed terms:

“We recognise that both men and women can be victims. Although the majority of victims are women, and taking action against rape is included as part of the CPS Violence Against Women Strategy”

Likewise this exclusion also assumes that all consensual adult rape-fantasies feature female “victims,” which also ignores the prevalence of male-on-male or “gay” rape porn fantasies.


Likewise the word fantasy is also excluded from the debate. As Louise Mensch notes in opposition to the prohibitionist arguments:

Rape fantasy is an incredibly common female fantasy. It is VITAL that we distinguish this fantasy from rape apology, rape excuse, or anything to do with real rape”. 

Likewise, in discussing fantasies of Consensual Non Consent (CNC), rape survivor and campaigner against the extreme pornography laws, Emily claims:

“We can’t censor our fantasies – and should have access to visual and written depictions of those fantasies, where those depictions involve consenting adults”.

Finally, Laurie Penny identifies the connection between fantasies and consensual adult pornography:

“I do not want to live in a world where the government and a select few conservative feminists get to decide what we may and may not masturbate to, and use the bodies of murdered women or children as emotional pawns in that debate.”

However, were the criminalisation of the possession of such fantasy material successful, defendants would be at risk of a three year custodial sentence and inclusion on the Sex Offenders’ Register as well as the potential impact of losing their jobs and contact with their families. I have to question whether criminalising the end consumer of consensual adult rape-fantasies, rather than regulating the manufacture, production and publication of such material is the most effective method of raising awareness of rape culture and the offence of rape.

The law as an instrument of prohibition

It is my suggestion that the criminal law is not the appropriate mechanism for addressing concerns about consensual adult rape-fantasies. The law that the prohibitionists seek to extend is section 63 of the Criminal Justice and Immigration Act 2008. The CPS’ Guidance states that in determining what material constitutes extreme pornography a threefold test must be applied, namely:

1.    That the image is pornographic; and
2.    That the image is extreme namely grossly offensive, disgusting, or otherwise of an obscene character; and
3.    That the image portrays in an explicit and realistic way any of the extreme acts set out in section 63(7).

It is the word “realistic” in the third clause that is most significant. Can staged or simulated consensual adult rape-fantasies ever be realistic if they are simulated? Pretend? Play-acting? Realism was the key issue in two previous extreme pornography trials: the Mold “Tiger Porn” case and the Stafford “death fetish” trial (both of whom were defendants I represented).

In the Mold case the defendant was indicted with possessing a video of a woman having sex with a tiger. Except it wasn’t realistic because the “tiger” in question was actually a human male in a tiger skin costume who, according to The Telegraph, “turned to the camera and roared: ‘That beats the Frosties advert!’.” Hence a man was prosecuted for being in possession of a joke. Except it wasn’t funny for the defendant who, despite being found not guilty of the offence, had his name become a humiliating joke in the press and globally on the internet.

Likewise, in the Stafford case, which was a test-case for the extreme pornography legislation, the defendant was acquitted by the jury despite the prosecutor’s assertions in Court that the: “obviously faked death images were in fact realistic depictions of sexual violence; despite the prosecution having to accept, before the trial even began, that the images were clearly staged”. Staged. Simulated. Hence the criminal justice system is familiar with simulated images being confused with actual images of violence. Yet expert witness for the defence Prof Feona Attwood of Sheffield Hallam University described the images in Court as being: “less realistic than the average British soap opera.”

Secondly, as in Simon Walsh’s #PornTrial, this law also has the ability to criminalise the depiction of acts that are legal to perform, such as fisting. Hence it is legal to perform acts of vaginal and anal fisting in real life, yet the possession of images of these acts could be subject to prosecution. This is analogous with consensual adult rape-fantasies, since to “pretend,” “simulate” or “role-play” rape is not illegal, yet the prohibitionist argument seeks to criminalise the possession of representations of these sexual fantasies. In fact, it could be argued that criminalising the representation of legal acts, thereby denying individuals the right to express their legal sexual fantasies, amounts to thought crime.

Thirdly, it is my suggestion that in theory the concept of “cultural harm” is incompatible with the way in which the criminal law constructs notions of harm caused to the victims of sexual offences. When scrutinised as a motivation to criminalise the possession of consensual adult rape-fantasies the cultural harm argument is incompatible with the legal mechanisms for recognising harm.

The CPS’ Full Code Test has two stages: firstly the “evidential stage”; then the “public interest” stage. With regards to the evidential stage, prosecutors should consider whether the evidence is admissible, reliable and credible. It is my contention that the notion of cultural harm is too abstract to be admissible, reliable or credible as evidence to justify prohibition; given the previously discussed absence of a proven evidential link between consensual adult rape-fantasies and the commission of actual sexual offences.

The next stage of the Full Code Test, the public interest stage, specifically references harm, by asking “What are the circumstances of and the harm caused to the victim?” With regard to sexual offences the notion of harm caused to the “victim” is constructed at law to mean actual, identifiable individuals or persons. Thus not harm caused to society, or “cultural harm”.

Hence I suggest that the justification for criminalising the possession of consensual adult rape-fantasies, of a “cultural harm” is fundamentally flawed, as it is incompatible with the way in which the criminal law recognises that victims of sexual offences have to be identifiable individuals.


Whilst I believe that the “rape culture” thesis is an extremely compelling cultural argument when deployed by, for example, activists in support of rape crisis centre funding or dispelling victim-blaming myths. I do not think that the “cultural harm” assertion is sufficiently strong as a legal argument to justify criminalisation of possession of consensual adult rape-fantasies. Furthermore, as I have argued, I cannot see that proposed criminalisation of the possession of consensual adult rape-fantasies on the basis of perceived harm would be effective in combating the actual harm caused by non-consensual sexual violence in criminal offences such as rape.

Hence it is with deepest regret that I express my belief that in deploying the cultural harm argument the proponents of this proposal have made an assumption about the nature, role and function of the criminal law and in doing so have perpetuated a rape myth. Nevertheless I hope to continue to support campaigns to improve rape crisis funding and repudiate the culture of victim-blaming. However, given these circumstances, I remain unconvinced that in attempting to criminalise the possession of consensual adult material as a means of reducing the instances of non-consensual sexual violence, the criminal law is the correct instrument to achieve these laudable aims.

I agree with The Human Rights organisation Liberty, who raised this concern in their Second Reading Briefing on the extreme pornography legislation:

“We fear that the proposed overbroad offence would criminalise those who do no harm to others and detract attention from those who cause genuine hurt”.

COMMENTS – I have intentionally disabled comments from this blog, on the basis that I am preparing to appear on BBC Radio 4’s Moral Maze at 8pm tonight and therefore will not have sufficient time to moderate comments, if necessary.

However, please feel free to tweet at me as @ObscenityLawyer