More Dangerous Porn…Government publishes extreme porn extensions to include images depicting non-consensual sex

Posted: 9 February, 2014 in Dangerous Pictures Act
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Comments from Jon
See Criminal Injustice and Courts Bill index page from services.parliament.uk
See extreme porn extensions from publications.parliament.uk

House of Commons logoThe Criminal Justice and Courts Bill has been published and includes a section extending the definition of extreme porn to include depictions of non-consensual sex.S63 CJIA 2008 will be extended to include rape material, but the definition looks to be so wide that it might include the majority of bondage related material.

This is the crucial bit: –

Clause 16 will extend CJIA 2008 S 63 (7) legislation by inserting provisions which include: –

16(2)C: after subsection (7) insert—

(7A): An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following: –

(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.

(7B): For the purposes of subsection (7A): –

(a): penetration is a continuing act from entry to withdrawal;

(b): vagina includes vulva.

16 (3): In section 66 (defence: participation in consensual acts): – a. before subsection (1) insert—

(A1): Subsection (A2) applies where in England and Wales: –

(a): 5a 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 subsection (7)(a) to (c) or (7A) of that section (but does not portray an act within subsection (7)(d) of 10that section).

(A2): 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, and

(d): if the image portrays an act within section 63(7A), that what is portrayed as non-consensual penetration was in fact consensual.

My reading of this is that it is for the defence to prove that that any act was consensual. If it looks non-consensual (and a large proportion of bondage material will be interpreted that way) then the person found to be in possession of such material will have to prove that the act was in fact consensual.

The Impact Assessment

There is an impact assessment which provides more information, but some of it is misleading (for example 1. the justification is said to be the desire to reduce violence against women and 2. an inference might be drawn from the 1 case that is believed to have been prosecuted in Scotland). The reality is that in England thousands of people have been caught out by S63(7) and thousands more will now fall foul of the new law.

Page 7 of the IA suggests that there will be some protection but I can’t see any: –

28. There are minor risks that anti-censorship groups could see this step as an infringement on private consensual sexual activities, for example staging consensual acted rape scenarios. However, we intend to provide a limited defence to address some of these concerns. Alongside this the measure is likely to be well received across Parliament and a range of women’s rights groups in particular.

29. We also intend to make available for the purposes of the images covered in the extended offence, the existing defence for participants possessing images of themselves, provided that no harm was caused to any participant, or if harm were caused, it was harm which was and could be lawfully consented to.

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