Five years after the government enacted a controversial law criminalising the possession of extreme pornography, it is clear that the legislation is deeply flawed, not least because it fails to cover pornographic images of rape.
For the purpose of the legislation, “extreme pornography” is broadly defined as images that contain bestiality, necrophilia and life threatening or serious injury to a person’s anus, breasts or genitals. There is no mention of rape, though most would agree that it doesn’t get more extreme than that.
It’s a widespread problem: pornographic images of rape are everywhere. A survey of the “rape porn” content on freely available websites by Rape Crisis South London found that of the top ten Google search results for “free porn”, half the websites hosted free rape pornography. Of the top 50 accessible “rape porn” websites, over half advertised rape content involving guns or knives and which the women showed signs of visible distress or pain. The viewers of these sites are encouraged to believe these images are real, that they are watching “real rape”.
The images are typically accompanied by slogans such as, “Nothing is better than seeing these good looking sluts getting raped”, and “Men lose control and don’t give a fuck whether she says yes or no … in fact the guys enjoy a "no” more".
And, so long as the violence doesn’t amount to life-threatening or serious injury to the participant’s anus, breasts or genitals, these images fall outside of the law. Hence the campaign led by Rape Crisis South London petitioning the Prime Minister to “close the rape porn loophole”.
So, how did we get here?
While it has been illegal to produce and distribute the material covered by the extreme pornography law since 1959 (under the Obscene Publications Act), by the late 2000s obscenity prosecutions had become increasingly rare, largely because the images were being produced outside of the UK and distributed via the internet.
The then Labour government’s solution was to shift the focus from the producers to consumers – targeting the users of pornographic material by enabling prosecutions to be brought against anyone downloading, and therefore generating the demand for, such material. At least at the outset, the government’s rhetoric related to concern about sexualising violence against women, what we have referred to elsewhere as the “cultural harm” of pornography. This provided grounds for a cautious welcome.
But by the time the new measures were adopted the government’s focus had shifted. The government became bewitched and distracted by arguments demanding evidence of physical harm and direct, causal links, before ultimately retreating to the weakest possible justification for action: disgust.
What we have now is a law which is both under-inclusive, in allowing images of rape porn, as well as being over-inclusive. It is over-inclusive because it allows for the criminalisation of many images which are commonplace and, when carried out with consent, unproblematic, including many average depictions of consensual sadomasochistic (BDSM) material.
That said, it should be noted that as yet, despite ongoing concerns in the media, BDSM activity does not appear to be being singled out for targeting. The latest figures from the Crown Prosecution Service reveal the vast majority of cases for possession of extreme pornography (86%) reaching a hearing between July 2008 and November 2011 relate to images of bestiality.
Of course, this is not to downplay the prosecutions that have been brought under the life-threatening or serious injury provisions. Nor should we ignore the valid criticism that police and prosecutors have been going after easy targets such as City barrister Simon Walsh, who was eventually cleared of any wrongdoing but not until the details of his sex life made very public.
Without doubt extreme pornography laws are in urgent need of reform. It is time to amend the legislation, along the lines of the Scottish law (enacted two years after the legislation in England and Wales), so that it includes pornographic images of rape and includes a focus on context (how the image is described, accompanying sounds, part of narrative and so on). At the same time, the participation in consensual acts defence must be widened.
Further to this, it is time to look at pornography laws generally – and in particular the focus on obscenity and disgust. The discussion of the extreme porn legislation is, of course, only part of general debates around the prevalence and use of pornography.
Of course, law is not the only solution. But insofar as the law does have a role in setting norms and providing a context for these discussions we need – and should have – better legislation.