This has the paradoxical effect of shifting the burden of prohibition from the creators of essentially extreme imagery onto viewers (willing or unwilling) of extreme imagery. An image broadcast across the nation from an established institution is perfectly legal. That same image on someone’s hard-drive could constitute a criminal offence. There isn’t any logical or empirically justified reason for considering one more dangerous than the other. A possible explanation for this  is that those with institutional power (like the BBC) are considered to be in need of protection, while the rights of ordinary individuals are considered expendable.

Now it appears that the police officer’s account may have not been entirely accurate, and that an additional statement used to bolster it may have been fabricated. But it is important to step back from the mistakes of individuals in this case and look at how laws can end up turning minor incidents into sources of conflict and controversy.

The idea that swearing at or in front of police officers should, on its own, constitute an offence draws not so much from a practical concern about keeping order on the street. It comes much more from a symbolic concern about showing respect to those that represent and enforce the law. The problem with symbols is that in a relatively free society, they are easily contested and subjective. Symbolic acts can mean very different things to different people. (It is no wonder that magistrates usually prefer not to convict in such cases.)

Laws that govern symbolic behaviour easily generate conflict. If being subjectively disrespected is a crime than that means that agents are encouraged to feel disrespected. The symbolic grievance becomes a way of exercising personal power. It encourages individuals, who would otherwise demonstrate skill, experience and endurance, to act as if they have been victimised and lack basic self-respect. It then encourages organisations to demand ever more deference to members. An arms race between different groups can even break out, in which legal protections for one group show ‘disrespect’ to groups that are not included. Failure to show expected levels of respect then becomes a genuine source of hurt.

This is how the law ends up distorting individual behaviour in utterly perverse (and often self-defeating) ways; in this case apparently a police officer trying to impersonate a member of the public to back up a shaky story to get at a minister they feel has slighted them.

We need fewer laws that are founded in subjective and symbolic concerns, and especially those that rely on the subjective opinions of police officers. This is a common problem of many laws that attempt to regulate speech and personal expression, including the public order act, many forms of ‘hate’ crimes, as well as prohibitions on pornography (which famously, is almost impossible to define and delimit). At once, they give over too much power to the police, while also, paradoxically, putting too much pressure on them to make impossible judgements.

If we want the police to be accountable, we need to make the laws they are expected to enforce clear.

Nichi is now a journalist. Earlier this year she wrote about the significant case of r v Peacock, where Myles Jackman, Backlash’s legal adviser, contributed to the defence.

by saying that the movement to ban the purchase of prostitution should not be deterred by the lack of statistics, in fact she said, “we don’t need numbers just now”.

The rest of the account is highly recommended. Two characteristic attitudes of some at the conference seem to stick out. The first is a willingness to throw statistics into the mix when they seem to support a feminist argument, but to retreat into moralising when the details of the statistics are picked over. Statistics never stand on their own (they always require critical analysis) but without them, you don’t know how big the problems are and how well adjusted a remedy might be to a situation. The second is a perverse silencing of views even when those offering alternative perspectives are actually present. Questions and perspectives offered by sex workers may have been heard, but they weren’t necessarily listened to, only tolerated. One speaker says the only people against prohibition are “punters”, while two sex workers are standing right their willing to defend the legitimacy of their occupation. This is terribly ironic considering the emphasis that feminist theorists tend to put on the importance of personal testimony, and how patriarchal concepts have traditionally had an easy-ride in political situations because women (especially of low-status) are ignored.

This lax approach to evidence and alternative perspectives was, unfortunately, also very common amongst many supporters of the ban on extreme pornography. The result wasn’t just a law that has probably done an awful lot more harm than the notional good it may have achieved, it also meant that many predictions made by its supporters turned out to be unsound. Rather than a few dozen ‘symbolic’ cases a year, we have ended up with many hundreds. Rather than images that portrayed the exploitation of women, we have ended with up images of private parties of consenting men landing gay men in court.

Those were the unintended consequences of banning extreme porn. What will the unintended consequences of banning sex work be?

It is worth noting the extraordinary narrowing of acceptable views on sexuality that are faced by individuals in a variety of occupations and professions that are considered sensitive, including many public services. Being publicly exposed as having an interest in kinky sex can get you sacked and labelled as potentially unfit to serve in some professions. By contrast, failing fully to respect specifically protected sexualities, such as homosexual orientations, can also have highly damaging effects on your employment and career prospects. This situation does no-one, gay, straight, queer, puritan or libertine, any favours. Workers should be judged on their ability to serve their customers or service-users, not their political and moral views outside the workplace.

Section 5 of the UK’s Public Order Act 1986 has several parallels with the ban on extreme pornography. They permit prosecutions of  harmless and non-threatening acts that are judged subjectively to be offensive. They introduce significant and ambiguous limits on freedom of expression, so that people cannot reasonably know whether they have committed a crime before being charged. Both seem little understood by police officers and are used in a startling wide range of circumstances that were probably not intended, or even considered as possible, by parliament. Repeal Section 5 is a campaign with an impressively wide range of supporters, from religious preachers to strident athiests, and from young and old. They are very worthy of support.

His work with Backlash has been crucial  to clarifying what English juries consider to be ‘realistic’ and ‘harmful’ depictions of sexually explicit acts. He is also an outspoken critic of extreme pornography legislation, which criminalises the representation of sexual acts between consenting adults that are legal to perform. The law makes illegal depictions of a number of acts that are important personal expressions of adult sexuality. He blogs as Obscenity Lawyer.

A salutory analysis of sex trafficking for the Olympics and the lasting damage evangelists caused.

Much as the extreme images legislation was based on fiction not fact, another fashionable trope du jour blithely ignoring evidence – or lack of – does have real, on the ground, repercussions.

“We are currently picking up the pieces; it is going to take us a long time to restore sex worker faith in institutional support. Where once the relationship between sex worker services and clients was good, it is now broken.”

“Where once sex workers may have felt it possible to report crimes against them to the police, there is now a dangerous and distrustful environment in London with crimes going unreported for fear of unwanted repercussions.”

Read Georgina Perry’s excerpt from a paper to be presented at the October 2012 ‘City Health Conference’ in London, UK www.cityhealth.org.uk

We will not know the full significance, for legal practice, of the acquittal of Simon Walsh of possession of extreme pornography for some time. However, the way the case has unfolded allows us to challenge some of the claims made by academic legal theorists who either supported legislation banning possession of extreme pornography, or at least felt that the concerns raised by so-called “liberal fundamentalists” (such as myself) were somewhat overwrought or unjustified.

Read more at Freedom in a Puritan Age