Pornography and thoughtcrime in Britain
May 1, 2008
The British government, net exporter of liberty, is going to make it a criminal offence, punishable by a prison term of five years, to have in one’s possession an image or video of adults consensually engaging in a non-criminal act.
This ludicrous situation has arisen in the new Criminal Justice and Immigration Bill, which outlaws the possession of “extreme pornographic images”. What is an “extreme pornographic image”? It is, of course, the Bill tells us:
an image which is both—
(a) pornographic, and
(b) an extreme image.
Don’t laugh yet. It does explain itself further. First, what is pornographic?
(3) An image is “pornographic” if it appears to have been produced solely or principally for the purpose of sexual arousal.
(4) Where an image forms part of a series of images, the question whether the image appears to have been so produced is to be determined by reference to—
(a) the image itself, and
(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.
5 So, for example, where—
(a) an image forms an integral part of a narrative constituted by a series of images, and
(b) it appears that the series of images as a whole was not produced solely or principally for the purpose of sexual arousal, the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.
Yes: we all know that if it’s got a good story, it can’t be pornography. And if it hasn’t got a story, it must be filth. Producing something “for the purpose of sexual arousal”, without even a story, is the business of evil merchants of libido-terrorism. Photographs of American torture and sexual humiliation at Abu Ghraib, on the other hand, can’t be “pornography”, because everyone knows they were produced not “for the purpose of sexual arousal”, but for shits and giggles.
Well, these things are easy to decide. But now you are chafing at the bit to know what an “extreme image” is. Is it an image with extremely high resolution, like twenty TERAPIXELS? Or is it a painting like Les Demoiselles d’Avignon, shocking to all notions of art and good taste? Or is it a racist Danish cartoon? The Bill rolls imperturbably on:
(6) An “extreme image” is an image of any of the following—
(a) an act which threatens or appears to threaten a person’s life,
(b) an act which results in or appears to result (or be likely to result) in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves or appears to involve sexual interference with a human corpse,
(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal,
where (in each case) any such act, person or animal depicted in the image is or appears to be real.
Is or appears to be real? Here is the crux. Not satisfied with outlawing the possession of images of actual sexual violence, necrophilia or bestiality, the Bill seeks to criminalize the possession of images that only simulate them. As you can imagine, I am glancing nervously at my DVD of Pier Paolo Pasolini’s Salò right now, and wondering whether some buffoon will consider that it was produced for the purposes of sexual arousal. Bizarrely, while the Bill’s definition of “pornography” seems designed to include the “Hey, it’s art!” defence, the subsequent definition of an “extreme image” seems to shut it out. Mimesis or not, it — or rather the consumer of it — is to be stamped upon.
So we have before us another case (as in the case of simulated child pornography) of thoughtcrime. The government, it appears, seeks to criminalize the possession of images that record people merely pretending to do something it thinks shouldn’t even enter virtuous heads. It is at times like this that one remembers to be grateful that the House of Lords hasn’t yet been completely “reformed”. In its debate on the Bill last week, Baroness Miller pointed out that the Bill’s new criterion of something having been “produced for the purposes of sexual arousal” is in conflict with the established criterion of the Obscene Publications Act of whether material is “likely to deprave and corrupt”, which already causes juries “difficulty” enough.1
All this talk of sex, meanwhile, seemed to cause a rush of blood to some noble members. Lord McIntosh confessed:
I spent nearly 20 years on one Front Bench or another, and during that time I never quite had the guts to say what I really thought about these issues. I never quite had the guts to quote Kenneth Tynan, who in a review of eastern erotic art said, “All my life I have enjoyed having erections, and I have been grateful to the people and the works of art that made them possible”. Now I have said it, and no one can accuse any political party of having any involvement in that.
But he then went on to make an impeccable liberal case against the Bill:
Before I went on to any Front Bench, I was involved in the proceedings on the Video Recordings Bill 1983, which became the Video Recordings Act 1984. Three of us — Douglas Houghton, Hugh Jenkins and I — fought against that Bill all by ourselves and to no real effect. The starting point was that what we do in our homes — the possession of books or images — is no business of the Government or the courts. What we have on our bookshelves is still not their business, but something has encouraged Governments of both persuasions to think that what we may have in terms of video recordings or pornographic images on the internet, or whatever they may be, is the concern of government.
Of course, if any of those images involves the commission of a crime in their production, an existing law deals with that, which none of us can contest. This is not an argument for child pornography, for bestiality, for snuff movies or anything like that. No one is defending that and there is a perfectly good law to deal with it. Having said that, what does it matter to the Government whether what we have in our homes for our own purposes is for sexual arousal or not? What is wrong with sexual arousal anyway? That is not a matter for Parliament or government to be concerned about. I am opposed in principle to interference in the private lives of adults as long as what they do does not cause harm to anyone else, or arises from or causes any offence under criminal law.
One small victory for the critics was that Lord Hunt of the “Ministry of Justice”, defending the Bill on behalf of the government, promised to introduce a defence for images recording acts of consensual S&M, which are also criminalized by the Bill as currently drafted (clause 6(b))— but that defence, it appears, will only be available if the possessor of the image was also an actor in the image. Own a video of strangers engaged in bondage and you’re shit out of luck.
On the matter of thoughtcrime, meanwhile, Hunt would not budge an inch. The bill must criminalize simulations, rather than being limited to images that show real crimes, Hunt said, “because the material itself, which depicts extreme violence and often appears to be non-consensual, is to be deplored”. And only
Big Brother the government can save us from this tsunami of depravity:
As a society we have a duty to protect people. It is appalling that this material is available and we have to do something about it.
We have to do something — anything, even if it’s passing yet another crappy piece of ill-thought-out legislation. At least, you know, it will send a message. Baroness Miller responded:
[T]he Minister is in danger of leading his Government into becoming the thought police. There is no direct connection with committing a crime.
Of course, that did not stop them with ASBOs. And, as Miller was not successful in proposing her amendments to this Bill, it seems it won’t stop them here either.
Have you got any “extreme images”, readers?
- It’s interesting to note that the established criterion for obscenity is at least predicated on some notional concern for the consumer’s moral welfare, whereas the new one talks about the intention of the producer, but is really worried about the consumer’s sexual arousal. ↩