Criminal Justice and Courts Bill

Written evidence submitted by Feona Attwood (Professor, Middlesex University), Martin Barker (Emeritus Professor, University of Aberystwyth) and Clarissa Smith (Professor, University of Sunderland) (CJC 06)

Section 16 - Offence of possession of extreme pornographic images

1. We write as academics with considerable experience in the research of pornography and other controversial media. In our submission we draw the Committee’s attention to the absence of robust evidence for the proposed extension of the extreme pornography offence at section 63 of the Criminal Justice and Immigration Act 2008 to cover the possession of extreme images depicting rape and non-consensual sexual penetration.

2. Feona Attwood is Professor of Cultural Studies, Communication and Media at Middlesex University, UK. Her research focuses on onscenity; sexualization; sexual cultures; new technologies, identity and the body; and controversial media. Professor Attwood is the editor of Mainstreaming sex: The sexualization of Western culture (2009) and porn.com: Making sense of online pornography (2010) and the co-editor of Controversial images: Media representations on the edge (2013, with Vincent Campbell, I.Q.Hunter and Sharon Lockyer). She co-edits the journal, Sexualities and is the founding co-editor of the journal, Porn Studies.

3. Martin Barker is Emeritus Professor at the University of Aberystwyth. He began researching moral campaigns against ‘dangerous media’ in the 1980s including a study of the 1950s campaign against ‘horror comics’ and the so-called "video nasties".  His published works include ‘Audiences and Receptions for Sexual Violence on Screen’ – co-authored report funded by BBFC, 2006; The Crash Controversy: Censorship Campaigns and Fim Reception (with Jane Arthurs and Ramaswami Harindranath, 1998) and Ill Effects: the Media-Violence Debate (with Julian Petley, 1991).

4. Clarissa Smith is Professor of Sexual Cultures at the University of Sunderland, UK. Her research focuses on sexual cultures, practices and representations. In particular, she is interested in pornography and other sexually explicit media, their institutional practices, representational strategies, uses and meanings. Her publications include One for the girls! The pleasures and practices of pornography for women (2007), Studying sexualities: Theories, representations, practices (2013, with Niall Richardson and Angela Werndly). She is the founding co-editor of the journal, Porn Studies.

5. Two of us (Attwood and Smith) have been involved as expert witnesses in a number of prosecutions - R v Holland, R v Webster and R v Walsh - on charges of possession of extreme pornography. In each of these trials we presented testimony exploring the textual formations and histories of specific pornographic genres and their production as well as investigations into audience interests in sexually explicit media and particular sexual practices such as BDSM (Bondage, Domination, Submission, Masochism). Such testimony is not presented as a defence of pornography but as a means of guiding members of the Court towards an understanding of the specificities of particular texts as representations and how and why they might fail to meet the provisions of the legislation, particularly around questions of realism and likelihood rather than risk of serious injury.

6. All three of us have been involved in research into various kinds of sexual media, their contents, production histories and their consumption [1] and have designed and undertaken research projects in order to find ways to hear and understand the thoughts and responses of the actual audiences of pornography and other ‘taboo’ media. We are currently undertaking analysis of more than 5,000 responses to a questionnaire hosted at www.pornresearch.org. This research indicates that current understandings of sexual fantasies as essentially unproductive, deficient, and dangerous, are, at best, flawed. [2]

Previous Submission Regarding Extreme Pornography

7. During 2008, along with more than fifty academics in Media & Cultural Studies, [3] we made representations to the Committee considering the original proposals on Extreme Pornography. At that time we pointed out that the proposed legislation was driven by an amorphous ‘increasing public concern’; couched in languages of concern and with little acknowledgement of a vast body of work on a variety of media, including pornography, and their audiences, which would significantly complicate the picture of effects which underpinned the proposed legislation. Furthermore we suggested that the definitions of what counted as ‘extreme’ were vague and that the intention to criminalise images which ‘appear to be real’ demonstrated ignorance of the ways in which people relate to the media which interest them.

8. At that time the government relied on a Rapid Evidence Assessment [4] which surveyed a range of research predominately informed by American Psychological traditions and which ignored the considerable research tradition into ‘extreme’ (be they violent or sexually explicit) materials within the UK’s Humanities and Social Sciences. We suggested that a law drafted on such foundations could not be reliable.

9. The provisions have been in operation for five years and have resulted in prosecutions far in excess of the numbers predicted in 2008. From our own experiences of the current extreme pornography law (S63 (7 CJIA 2008), we know that some prosecutions have been deployed against sexual minorities and with scant regard to the particular provenance or contexts of the materials on the charge sheet (R v Holland; Webster; Walsh). While the provisions on bestiality may be transparent, the first two provisions are absolutely not.

10. The amendment to ban ‘rape pornography’ risks adding to the number of prosecutions for possession of images which offend particularly normative ideas of what constitutes ‘good or healthy sex’, including representations of sexual acts which are entirely legal to engage in. The new amendments risk criminalising many more otherwise law-abiding people, while proponents of the amendments have not provided robust evidence of benefit to the public.

Widespread Engagement with Fantasies of Submission

11. A project undertaken by psychologist Brett Kahr [5] , using a representative survey of 19,000 UK adults, found: 90% of men and 60% of women have viewed pornography at some time. 29% fantasise about playing a dominant role during sex; 33% fantasise about playing a submissive role during sex; 4% fantasise about being violent towards someone else; 6% fantasise about violence being done to them by someone else. [6]

12. Thus many people enjoy submissive fantasies but the reasons for such enjoyment are complicated. [7] It is unreasonable to prohibit such imagery when its meanings and significances are disparate and the numbers of people who could be caught by any such law are potentially so large.

13. There is little systematic academic research on consumers of ‘mainstream’ or ‘ordinary’ pornography, and even less on the particular interests in fantasies of rape, even as such fantasies form the basis of many kinds of narrative from formula romances (such as Mills & Boon) through cinema and television, and ‘high culture’ literature. Representations of rape and sexual violence constitute a significant part of the phenomenon of ‘extreme cinema’. Understanding audience pleasures and engagements with these is, thus, a fraught and risky business. The idea of showing sexual violence carries with it a host of perceived worries. A key one is the fear that depictions of rape may cause sexual arousal.

14. Our culture maintains a pretty tight line on this – any depiction judged likely to arouse viewers, and especially male ones, is per se dangerous. There is however a powerful discourse of ‘redemption’ for representations of sexual desire (especially in ‘arthouse’ cinema), whereby critics and regulatory bodies, such as the BBFC, redefine unusual and/or dangerous images as ‘unerotic’ in order to make them ‘safe’. To admit to films being sexually arousing is to attach a smell of danger to them, because arousal is seen as basic, compulsive, overriding.

15. Equally, representations explicitly targeted to female audiences are often justified as ‘safe explorations’ of rape – interesting to women precisely because they allow them to experience the possibility of ‘giving in’ to kinds of sex they would avoid in ‘real life’. Men are not given the same ‘excuse’: for a man to fantasise rape, or to enjoy a rape fiction, is to be complicit in actual violence against women.

16. The recognition of female rape fantasies has generated its own difficult concerns. Brought to prominence by Masters and Johnson’s (1966) [8] research and made concrete by the Hite Report (2003) [9] and Nancy Friday’s (1973, 1975, 1991, 2009) [10] work into women’s sexuality, ‘force fantasies’ are enjoyed by a substantial proportion of women. [11] But that has aroused powerful fears that this might be misread in for instance judgments by the BBFC on films containing ‘sexual violence’.

Making Women Safer?

17. Arguments in favour of criminalising extreme pornography are presented as a matter of protecting women and eradicating violence against them. The research indicating that large numbers of women engage with fantasies of rape also suggests that women viewers may well be criminalised by these new proposals: making many women’s most private thoughts the subject of public criticism and even prosecution will not operate in women’s best interests.

18. It is true that many people understand the viewing of fantasy rape to be de facto problematic behaviour but there is no robust evidence that such viewing leads to actual harm to others, thus banning fictional pornographic depictions of rape is not justified. Arguments by, amongst others, the Rape Crisis Centre have made much of the fact that pornography was found in the possession of two convicted murderers, Mark Bridger and Stuart Hazell – making the association of their viewing of pornography with the commission of their crimes. These sad cases do not in themselves justify prohibition. As academic Brian McNair has recently argued ‘Porn, like the knife in every household kitchen, is used by the vast majority of people in ways which cause no harm to others. Only a small minority will use it to injure another, which is why we do not ban kitchen knives (although some jurisdictions restrict possession outside the domestic zone).’ [12]

Misunderstanding the Technology

19. Many images designated as ‘extreme’ are not used solely for the purposes of sexual arousal, but can be viewed out of curiosity or distributed amongst friends as ‘bad taste’ jokes. In this era of social networking, cookies, internet caches, and malware, such images often come into someone’s possession without their knowledge or intention while browsing on the Internet for entirely ‘innocent’ material. Thus the range of people affected by the amendment will probably extend to ordinary Internet users, not just the minority of viewers of ‘aberrant’ pornography.

Not Only Fantasy

20. Our own research with more than 5,000 self-identifying consumers of pornography is too complex to distil for this submission, but our findings demonstrate that there are multiple reasons for accessing pornography and that such consumption is significant for many people, not least in enabling exploration of the possibilities and opportunities for sexual feeling; finding out about what interests and arouses and excites. Pornography is not ‘only fantasy’, it is much more than that: it speaks to the relations between bodies, selfhood, and social and cultural permissions and forbiddings. As researchers in this field for more than 20 years, we know that ‘pornography’ is not a singular media form, with an inherent tendency to become more extreme, and more gross, nor is it the case that what happens there can be read as a sign of what men and heterosexual masculinity are veering into. The picture is much complex than that. We would be happy to meet with the Committee to discuss this more fully.

Problematic Evidence Base For the Legislation

21. In May 2013, we asked a PhD researcher to investigate some of the rape porn titles cited in Rape Crisis London & EVAW’s research. [13] Despite extensive searching, almost all of the titles were either not found or lead to ‘deadlinks’. This may mean that they have been picked up by IWF and removed or that their titles are simply ‘click-bait’ to attract websurfers to other material. We should note that RCL & EVAW do not discuss the actual content of images in their presentation - giving only site names, titles and tags. If those videos did exist, they do not seem to now, which renders the validity of the claims of forever availability suspect, and moreover undermines McGlynn and Rackley's assertion that ‘pornographic images of rape are everywhere’. [14]

22. Other Google searches to query the claims made in McGlynn and Rackley’s briefing document [15] lead to the site, 'Heavy-R' which does host some clips of what could be considered ‘exploitative’ and ‘unpleasant’ material. Many of these have their genesis in exploitation cinema rather than being produced as pornography (indeed one clip was from the BBC production The Tudors). Perhaps that does not matter to the Committee and proponents of the legislation as the clips are displayed on Heavy R as 'rape porn', however testing these clips in the Crown Court may well lead to acquittal, because their provenance as clips from exploitation films/television drama/consensual fantasy commercial porn content is easy to ascertain, and their consensual nature, ie that they were filmed by consenting adults and featuring consenting adults, will be easily verifiable. [16]

23. It should be noted that if images are available which record actual sexual assaults, rather than scripted and/or acted performances of rape or coerced sex, then these are prima facie evidence of crimes having been committed - there are sufficient existing laws to prosecute the offenders. If such images have been posted without the consent of those involved then other offences may have been committed. Some proponents of the current amendment have suggested that demand for images of actual rape creates the conditions for such images to be produced, again we would suggest that existing legislation should be used to prosecute those who have incited such attacks. There is no credible evidence to suggest that criminalizing possession of images of staged/fantasy rape will prevent actual sexual assault.

No evidence of cultural harm

24. Arguments in favour of the proposed provisions insist that the existence of representations of rape and/or forced sex constitute ‘cultural harm’ to women. The dimensions and scope of such harm are not spelt out in any of the arguments by, amongst others McGlynn and Rackley [17] (key proponents of this legislation) nor are they based on any robust or extensive research.

25. Proponents of the provisions have suggested that the new legislation will bring England and Wales into line with the law in Scotland. We would draw the Committee’s attention to the following: 1) the law in Scotland is drafted more explicitly with regard to the provisions on realistic representations and injury. Thus any intention to follow the Scottish model should include redrafting of the existing provisions relating to Extreme Pornography. 2) The Scottish statute has been in operation since 2011 and yet proponents of changes to English law do not make any reference at all to successful prosecutions in Scotland, or to any (however small) changes in the status of women, reduction in violence towards women or to the prevention of sexual assault as a result of those prosecutions. 3) If changes are to be made, they should draw on detailed monitoring and assessment of the number and nature of prosecutions across the border. The necessity for the changes to the law in England and Wales has not so far been evidenced.

Proposals for amendment

26. While the legislation could be focussed more narrowly on genuinely abusive images where there is evidence of real non-consensual abuse and harm, we would suggest that criminalisation of possession is not the most appropriate way to prevent these abuses.

27. When S63 CJIA 2008 was debated in the Lords concerns were raised regarding the absence of proper definitions of the law; at that time, assurances were given that full guidance would be made available to the public, especially on two categories (S63 (7)(a) and (b) – this was never issued. In practice (for example in R v Walsh), the legislation has been used in ways never intended by Parliament. This consultation presents the opportunity to revisit the two categories S63 (7)(a) (life threatening) and (b) (serious injury) to offer clear guidelines as to the scope and definitions of these provisions and we would urge the Committee to do so.

28. In its current form the amendment is unclear. We suggest it should be rejected because it has no evidence base and ignores research which demonstrates a much more complex terrain. If not rejected, then the amendment should be improved to limit its scope to images where it can be shown that the acts depicted are of actual assault, or where dissemination of those images has occurred without the consent of their participants.

29. If the legislation is enacted, absolute clarity in the meaning of the law will be required. The proposed penalties - up to three years imprisonment - are such that citizens must be clear about what is legal to possess and what is not.

March 2014