On Monday 26 January 2009, yup, that's tomorrow, the Extreme Pornography legislation comes into effect.
This means that, from tomorrow, it will be illegal for anyone in England and Wales to possess an "extreme" image, even if the activity itself is legal.
So, here are the relevant parts for us bloggers. Taken from the Criminal Justice and Immigration Act of 2008.
Part 5
Criminal law
Pornography etc.
63 Possession of extreme pornographic images
(1) It is an offence for a person to be in possession of an extreme pornographic image.
(2) An “extreme pornographic image” is an image which is both—
(a) pornographic, and
(b) an extreme image.
(3) An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.
(4) Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) 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) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been 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.
(6) An “extreme image” is an image which—
(a) falls within subsection (7), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.
(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),
and a reasonable person looking at the image would think that any such person or animal was real.
(8) In this section “image” means—
(a) a moving or still image (produced by any means); or
(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).
(9) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).
(10) Proceedings for an offence under this section may not be instituted—
(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or
(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
66 Defence: participation in consensual acts
(1) This section applies where—
(a) a person (“D”) is charged with an offence under section 63, and
(b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section.
(2) It is a defence for D to prove—
(a) that D directly participated in the act or any of the acts portrayed, and
(b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and
(c) if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse.
(3) For the purposes of this section harm inflicted on a person is “non-consensual” harm if—
(a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or
(b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.
Let's make it quite clear here that I am totally in favour of anything that protects animals or, indeed, corpses from sexually related involvement. Just as with children, these groups have no ability to consent and, therefore, it is degrading and unacceptable for them to be a part of any such activity.
However, where these rules are to be applied to human beings, I do have a bit of a problem. I can see the reasoning behind wanting such a law if it protects those who get involved without realising the implications of what is about to happen and put themselves at risk. But this Act is not actually outlawing the activity, but, rather, possessing images of it. When this type of sexual congress occurs between consenting adults and then is viewed by other consenting adults, why should Government have a say in whether it is right or wrong? Restriction of this nature starts to smack of Big Brother and should remind us that homosexuality was once also against the Law.
What is the purpose here? Is it to stop people from dying or being seriously injured as a result of such acts going wrong or is it to stop other people looking at pictures or videos and being encouraged to try such actions for themselves? Surely, seeing someone badly injured, or worse, as a result of a sexual proclivity is more likely to make any prospective protagonists more careful?
Furthermore, amidst the talk of remotely accessing people's hard drives, how can having such a picture but not distributing it be committing an offence? If the content is of a consensual act between adults and was taken for their own private memories...?
Which brings us on to who decides what constitutes something that is 'grossly offensive, disgusting or otherwise of an obscene character'?
I find the concept of having someone poop on me quite revolting so I choose not to look at images depicting it, but I'm not about to stop people who like it from enjoying themselves. Is posting scat pictures on the web going to become illegal? I'm sure that ingesting faeces must have the possibility of life-threatening consequences.
Obviously, there is a limit to my liberal attitudes when it comes to being seriously physically harmed as part of anyone's sexual gratification but does our Government really feel it needs to protect people from themselves in quite such an intimate area? As with all games that involve a partner, there has to be an element of trust or you don't make a good team. However, again, my interpretation of the Law is that it's not the act itself that is being policed but the photographing of it.
Some people might have found the image that I posted last year of the results of having my bottom spanked with a crop comprising metal balls quite disgusting. Whilst others may have become sexually aroused by the sight. Does this mean that any possible prosecution would rest on the two points of whether someone in law enforcement deems the image offensive and whether I posted the image with the intent to provoke sexual arousal? Or could I use the defences that my life was never threatened, my anus and genitals not at risk due to the protection of my pert derriere and that I was actively and consensually involved in what occurred? Well, until the last couple of strokes anyway. I was going to ask if being spanked with a crop is legal but, of course, that doesn't matter. It is the possession of the photograph showing the act that is the offence. However, this particular picture shows the implement and the effects, not the spanking itself so does that mean it is exempt?
It's all very confusing.
Backlash, a consortium of a number of sex-positive interest groups, has put together an info-packed website, which I encourage you to visit for advice on future blog content, as well as to support their campaign against the Act itself.
In the meantime, I have thought about pulling the the image in question... But, since possession seems to be the key here, even having such a picture on my hard drive could be considered illegal so deletion would be the only option.
I really do hate being censored.