Part 2: ‘Rape porn’: What will be criminalised and why?

Tanya Palmer
Tanya Palmer

Clause 18 of the Criminal Justice and Courts Bill proposes an extension to the existing offence of possession of extreme pornographic images, to cover images of rape and assault by penetration.

The existing offence, contained in the Criminal Justice and Immigration Act 2008, was a response to ‘increasing public concern’ about the availability of ‘extreme’ pornography, particularly in the wake of the murder of Jane Longhurst by Graham Coutts, a man ‘addicted’ to violent pornography. However, while the initial government consultation proposed to criminalise possession of images of ‘serious sexual violence’, the resulting offence was limited to pornographic material that portrays bestiality, necrophilia, or acts which are life-threatening or likely to result in serious injury to a person’s anus, breasts or genitals. The proposed amendment seeks to remedy this perceived loophole in the law by criminalising the possession of depictions of (some) non-consensual sexual activity.

The justification for criminalising possession of ‘rape porn’ images has been framed by proponents of the new law in terms of ‘cultural harm’. Professors Clare McGlynn and Erika Rackley of Durham University claim that while ‘arguments of direct, causal links between pornography and violence are over-simplistic’, depictions of rape normalise sexual violence and ‘sustain a culture in which a ‘no’ to sexual activity is not taken seriously, in which sexual violence is seen as entertainment, and in which equality and dignity are not protected.’

The use of ‘cultural harm’ as an appropriate target of the criminal law is, however, contentious. Myles Jackman describes it as a ‘nebulous concept’ which is not sufficiently strong to justify criminalisation, while Alex Dymock argues that a criminal offence ‘atomises and individualises the problem’ and is therefore an inappropriate response to a harm that is cultural rather than individual. I would add to these concerns a question about the extent to which the proposed offence will challenge cultural attitudes to rape, when assessments of whether an image depicts non-consensual activity will be made by those same police officers, prosecutors, magistrates, judges and jurors whose ability to recognise (non)consent in the case of a rape complaint is regularly called into question. Given the questionable nature of the basis for criminalising possession of extreme pornography, it is crucial that any extension to the existing law is limited to those images that can be most closely shown to manifest the cultural harm described by McGlynn and Rackley.

Under the amended law it will be an offence punishable by up to three years in prison and inclusion on the sex offenders register to possess a ‘pornographic’ image which ‘portrays, in an explicit and realistic way’:

(a) an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis, or

(b) an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else,

and a reasonable person looking at the image would think that the persons were real.

In addition the image must meet the separate criterion that it is ‘is grossly offensive, disgusting or otherwise of an obscene character’.

Despite the seemingly careful wording, there are important questions to be asked about what, precisely, the offence will cover. Pornographic depictions of non-consensual sexual penetration could apply to a wide spectrum of materials. It would clearly apply to images that are explicitly advertised as involving sexually violent content and which are marketed in such a way as to encourage viewers to believe that they are watching an actual (as opposed to simulated) rape. It may also apply to images of ‘consensual non-consent’, also referred to as ‘rape play’, which involve staged scenarios of non-consensual sex within pre-agreed limits, often bookended by clips of the performers negotiating their boundaries prior to the scene and reflecting on it afterwards.

It is the former type of image that the campaign to ban ‘rape porn’ led by Rape Crisis South London and the End Violence Against Women Coalition (EVAW) had in mind. Their research highlights ‘discernable stylistic differences’ between the two types of content. However, no such distinction exists in the proposed wording of the law. McGlynn and Rackley recommend the inclusion of a clause modelled on Scottish law on “extreme pornography”, which allows the image to be looked at in context when deciding whether it is a depiction of non-consensual sex. Such a clause should be adopted as a bare minimum. Ideally, the Act and accompanying guidance should carefully spell out what types of imagery are to be covered, perhaps defining ‘realistic’ portrayals of rape such that it would clearly exclude those images that are obviously staged.

An additional concern about the proposed law, fuelled by high profile cases such as the trial of Simon Walsh, is the possibility that it prevent adults from possessing images of sexual activity in which they consensually and legally participate. The proposal to criminalise possession of ‘rape pornography’ is accompanied by a version of the existing ‘participation in consensual acts’ defence which allows the defendant to escape liability where s/he directly participated in the act portrayed, provided that s/he additionally proves that ‘what is portrayed as non-consensual penetration was in fact consensual’. Where a person has engaged in perfectly lawful sexual role play and kept an image of that activity for personal use, it is unfair to place the onus on that person to prove that their activity was consensual, and therefore lawful, in order to avoid a possession charge. Where the images appear to portray genuinely non-consensual activity featuring the defendant, the proper course of action should be to investigate the defendant for rape or assault by penetration, with the onus on the Crown to make out its case. Such defendants should not be diverted to a less serious charge of possession of extreme pornography, which mislabels their wrongful conduct.

Parliament must learn from the criticisms of the 2008 Act so as not to misfire a second time. It would be deeply disappointing if a law intended to target pornography that normalises, condones or glorifies sexual violence ended up catching materials that promote negotiation and clear boundary-setting, or images of defendants’ private consensual sexual activity. Moreover, if the coalition government is serious and sincere about addressing the cultural roots of rape and sexual assault, solutions must be sought beyond the reactive mechanisms of the criminal law, most obviously through comprehensive sex and relationships education.

Dr Tanya Palmer is a Lecturer in Law at the University of Sussex

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