Andrew Murray

Consent and Harm in Relation to Pornography

A Comment on s.63 of the Crime Justice and Immigration Act 2008

London School of Economics, May 2009

It is now a little over four months since s.63 of the Crime and Immigration Act came into force. While we await the first case to come to trial we may consider the implications of a law developed in response to a campaign following a single tragic incident.

Section 63 came about as a response to the Longhurst campaign to criminalise possession of violent pornography: images portraying sexual asphyxia, necrophilia and rape. Mrs. Longhurst had a good reason to campaign, she had lost her daughter in the most tragic of circumstances: raped and murdered by a man who seemingly had lived out his fetish for sexual asphyxia through his victim.

But law made on the back of a single issue campaign, like this one, is often “bad law” and it is my belief that s.63 misses nearly all it targets.

The problem is the way the law is framed: it criminalises possession of “extreme pornographic images”, these being images “produced solely or principally for the purpose of sexual arousal” which portray one of four categories of “extreme acts”: (1) an act which threatens a person’s life; (2) An act which results in or is likely to result in serious injury to a person’s anus, breast or genitals; (3) An act involving sexual interference with a human corpse, or (4) A person performing an act of intercourse or oral sex with an animal, and which is grossly offensive, disgusting, or otherwise of an obscene character.

The Government stated during the passage of the Act that their aim was to criminalise possession of “images at the very top end of what most people would consider viewable” but in giving such a wide and subjective standard they have arguably criminalised possession of a large proportion of BDSM material widely produced and circulated within the BDSM community: in so doing they are placing BDSM content on a par with images of child abuse (previously the only pornographic content it was illegal to possess in the UK). We can fairly ask whether they have acted proportionately in so doing.

The criminalisation of the possession of child abuse images is widely justified on two grounds: the direct harm principle and the indirect harm principle.

The first is that to produce an image of child abuse a child must be abused: causing direct harm to the child. The resultant image is therefore “fruit of a poisoned tree” and anyone in possession of the image possesses evidence of a criminal offence which, if not passed to the authorities in a timely manner can taint him also. In this way we can see a similar root to the criminalisation of the possession of s child abuse image as with receiving stolen property: the direct harm to the original victim taints all those who possess the fruits of the harm.

The second principle: the indirect harm principle, applies when there is no original victim, but the existence and use of the item in question may lead to the harm of others. This principle is applied to the criminalisation of so-called pseudo-images: images which appear to be photographs of child abuse but are in fact computer generated images created using powerful photo-manipulation tools. Here there is no original victim and so no direct harm.

The law criminalises possession of these images because there is clear scientific evidence that individuals who possess and collect such pseudo-images are more likely to either progress to the collection of real child abuse images, or even to commit abuse themselves, meaning that there is an increased likelihood of future harm to a child caused by these images. They are therefore criminalised in a similar manner to tools used for the commission of a future crime (such as credit card “blanks”). In general therefore we criminalise the mere possession of items when there is evidence that the items have either already caused harm to another or they are likely to cause future harm to another.

When consulting in advance of the drafting of s.63 though, the Government was forced to make an admission. There was no direct harm in the production of much of the material s.63 was to outlaw as it was produced consensually within the BDSM community and they could not prove a link between the consumption of material of this nature and further offending as was the case with pseudo-images. Despite this the Government concluded their consultation paper by asking “In the absence of conclusive research results as to its possible negative effects, do you think that there is some pornographic material which is so degrading, violent or aberrant that it should not be tolerated?”

By taking this approach, the Government signalled a departure from its commitment to evidence based policymaking: instead the government had decided to outlaw the possession of extreme pornography purely on public policy grounds, believing that evidence of the success of the Longhurst campaign showed strong public support for this course of action.

Despite it appears at best a mixed public response, s.63 was quickly piloted though Westminster, despite some strong opposition in both Commons and Lords Committee.

What though does it say about the lawmaking process in the UK today?

For the first time it is now illegal to possess material which is produced consensually and without harm to anyone, and which is unlikely to cause harm in the future.

This is a sea change from the provisions of the Obscene Publications Acts which outlawed the sale or supply, but not the possession, of obscene material. Section 63 basically says some material is so harmful to society as a whole (the public policy argument) that anyone who possesses it is harmful and/or dangerous to society.

Elsewhere on this site Rabinder Singh QC argues that s.63 is disproportionate and may adversely affect the rights of individuals to freedom of expression and to the private enjoyment of their home and family life.

More than that, it may be argued that s.63 represents the first effective censorship measure which to ban the possession of non-harmful material in the UK.

It is not just the BDSM community that is affected by this it is anyone who enjoys their freedom to speak and express themselves without fear of censorship.

About the Author:

Andrew Murray is Reader in Law at London School of Economics and Political Science. He is an expert in matters of internet law and regulation and has written many books and articles on the subject. The concepts discussed here are developed more fully in his article “The Reclassification of Extreme Pornographic Images”. Available at:

http://www3.interscience.wiley.com/cgi-bin/fulltext/121589446/PDFSTART

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