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08/30/2005: "The worst email address in the world ..."

But before I get to that, just a few comments on the Home Office's consultation on 'extreme pornography'. (Beware: it's a pdf) Having just had a look through the consultation document, I am simultaneously appalled & reassured.

Reassured because the preferred option of the HO is not to use the ludicrously subjective & wide-ranging definition of 'obscene', contained in the OPA & in our Civic Govt (Sc) Act, as the basis for the proposed new offences. (It should be noted, though, that although the HO doesn't favour it, the option to use that definition is 'on the table'.)

This means that, if the HO get their way, the ludicrous 'elephant test' (not nearly as imaginative as it sounds, alas, but stupider than you are probably imagining) will be replaced - for the purposes of the new law - with a much more strictly defined category of material. I won't go into specifics here, but suffice to say we aren't talking mild BDSM here, but rather, pretty extreme - albeit simulated - acts of sexual violence & torture. (See Paragraphs 5 & 11 if you want the gory details.)

None of which appeals to me in the slightest - in fact, I share a good measure of the visceral repugnance at the almost unbelievably misogynistic material that is can confront even the casual Google browser. But this is the crux of the argument, isn't it? Am I willing to acquiesce in the prohibition of something just because it triggers my personal 'yuk' response? Or do I need something more substantial before being happy to see people jailed for fiddling about in the privacy of their own bedrooms?

The HO's rationale appears to be threefold. First, we have the suggestion that the material in question could result in - or more accurately, from - actual harm to the folk in the pictures.

Our proposals to strengthen controls on extreme pornographic material are based on:
a desire 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...

Read that last part again. They may be the victim of a crime, whether or not they are genuinely consenting. This, I can only assume, derives from the absurd 'Spanner' judgment, the patently ludicrous decision that consent is no defence to a charge of assault in cases of (fairly serious) S&M.

That this decision was perverse & arbitrary was quickly obvious to those of us who cringed at the attempts to distinguish consensual S&M from, say, boxing, and was made to look even dafter when, three years later, the Court of Appeal held that a guy who had branded his intials into his wife's backside could rely on her consent as a defence. (R v Wilson). But that, alas, is the law we have.

But the new proposals go further. The proposed offence will not just extend to cases of actual violence, but will also include 'realistic depictions'. That means it will be a crime to get off on pictures of people pretending to do stuff to one another, even when both viewer & participant are fully aware that it's all rubber knives & ketchup.

So the rationale for the new crime is, in part, to protect adults who 'genuinely consent' to participation in 'realistic depictions' of sexual violence, but who sustain absolutely no harm in the process (except, perhaps, to their immortal souls).

Assuming we can disregard that piece of nonsense, what else do we have? Second up is the old chestnut that such material will, in some undefined way, lead those who view it to emulate it. The consultation doc even makes reference to a convicted murderer who had previously accessed the kind of sites the HO wants to ban (see Para. 10).

I'm not planning the rehash the old arguments about the possible links between porn & sexual violence, but it is interesting to note that the HO actually admits that no such link can be clearly established:

We do not yet have sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind opf material generally, or on those who may already be predisposed to violent of aberrant sexual behaviour.

Personally, I'm with Mill & Feinberg on this; the onus is on those who would curb my, or your, freedom to show a damn good cause for doing so. If they can't discharge that burden of proof, then they have no business invoking the criminal law. My response to this part of the HO's case would be: come back when you have persuasive proof, 'cos otherwise, the 'liberty presumption' holds fast.

Third strand of the argument is the lamest of all: the belief by the HO that this is the sort of material that 'most people would find abhorrent'. Dear me. If that's where we stand on the debate about individual liberty vs. public opinion, then Herbie Hart might just as well have been talking to himself instead of the Wolfenden Committee, & JS Mill could have saved his breath about the 'tyranny of the majority'. My rights & freedoms should not depend on their being popular, with public or government; if they were popular, I wouldn't need them.

So, 2 thoughts. First: though I am repulsed by extreme violent porn, & have absolutely no desire to look at it, I'll still defend your right to do so, at least until someone shows me some evidence of the harm it causes. Second: assuming this is banned, how long before we hear a causal argument along the lines of the 'cannabis = gateway drug to heroin' variety? How long before someone makes the connection between mild bondage or spanking porn to the 'hard' stuff, and thence between mainstream 'vanilla' porn & the milder BDSM, & in turn onto top shelf material, & so forth? No appetite springs into existence ex nihilo, everything follows from something. And the connection between Playboy & 'extreme porn' is surely no more distant or tenuous than the purported connection between looking at what you know to be a simulation, & actually kidnapping, raping & murdering someone.

Oh yeah, the email address? The chances of the Scottish Exec receiving many responses to their consultation seem to be slightly diminshed by the fact that any of us who access the web from work will need to send an email - via the work server - to extremepornography@scotland.gsi.gov.uk.

Given that Carol cannae even get access to gmail ...