Unintended consequences

The potential for miscarriages of justice and other problems will be huge. This will be an unenforceable and easily abused law.

People won't know where they stand

The Government says it will move away from the existing Obscene Publications Act test of "deprave and corrupt" because that is too subjective and juries have the inconvenient tendency to acquit.

So it intends to create a new crime that targets "realistic depictions" of violence - i.e. fictional material. But what is "realistic" supposed to mean here? The Government says "whatever appears to be real and convincing".

OK, but now the question is: appears to be real and convincing to whom? The police? But how are the police supposed to consistently apply such a subjective criterion?

And how are individuals, trying to decide if they are about to commit a crime, supposed to do so? Or Juries ?

The answer is: opinions will vary. So enforcement would be pretty arbitrary.

Pornography

The Government says it isn't targeting "mainstream" films that feature violent scenes. Violent material will only qualify as illegal if it is pornography - i.e. "material that has been solely or primarily produced for the purpose of sexual arousal".

Well, first of all, that makes this a thought crime - you could have two scenes that were almost indistinguishable, but only one was produced to arouse people sexually. So it would only be illegal because of what the producer intended – i.e. thought crime.

Second, with sexual fetishes in general, people get aroused by material that isn't explicitly sexual. Someone with the relevant fetish might get turned on by a picture of a teapot. With "extreme" pornography, the material needn't show a sex act at all - it might show a (fictional and/or consensual) violent act instead. So who's to tell what's pornographic and what isn't?

How are such films to be distinguished from, say, low-budget horror films, which are often both sexually suggestive and violent? Once again, the criterion is subjective – therefore unenforceable, and/or easily abused.

Effect on the law and policing

Good policing requires clear law, and this proposal is anything but. Unclear law is easy to abuse and often leads to miscarriages of justice. The result is that respect for both the law and the police suffers.

Here are some more problematic consequences:

Large numbers of law-abiding people who pose no threat to society will be criminalised. Examples include:

The BDSM community - an estimated 10% of the adult population, i.e. up to 4 million people (a News of the World survey found that around 50% of people had at some time engaged in some form of BDSM activity).
The Goth community, members of which enjoy material featuring depictions of death that could easily be counted as pornographic under the proposed definition.
Enthusiasts of low-budget horror films.

Anyone who falls foul of this law is to be placed on the Sex Offenders Register. So the SOR will cease to concentrate on paedophiles and genuinely dangerous offenders, and its importance will be correspondingly diluted.

Police resources will be diverted from matters that involve proven harm to matters that do not.

Effect on the BDSM community

The BDSM community is large (up to 4m people, with over 80,000 actively signed up to online forums such as Informed Consent), and is represented across the UK by munches (informal get-togethers), clubs, exhibitions and workshops.

Social attitudes towards BDSM are increasingly relaxed and tolerant, but the Government's proposal will criminalise the depiction of many activities enjoyed.

The irony is that the community is well known to lay considerable emphasis on

the importance of consent, and of being clear about giving it
maintaining a clear distinction between fantasy (fiction, role play) and reality
safe practice

Most pornography tends to be produced for enthusiasts by enthusiasts (of either sex), for little commercial gain, and in line with the above principles. This contrasts with the Government's "exploitation"/"condones violence" characterisation.

The proposed legislation will drive people back into the closet, thus undermining an ethical, self-policing community, and creating a gap which will inevitably be filled by criminals. This will create a problem that the Government says it is trying to address - safeguarding individuals involved in production.

With all these problems why do they want this legislation?

You might well ask. Here are the Government's justifications.