This legislation is likely to have serious unintended consequences, such as miscarriages of justice and other problems.
An unenforceable and easily abused law
Much concern has already been expressed at the decision to include
staged material (as opposed to that featuring real acts and non-consenting participants). Staged material would be caught if it “conveys a realistic impression of fear, violence and harm”.
The question, of course, is: what counts as realistic? But there cannot be a clear answer to this because the criterion is in its very definition subjective.
The Government has said it is happy for this to be tested in the courts, but what this means in practice is that no one will know whether they are breaking the law (or not!) until they have been through the trauma of a trial. It may seem plausible to subject publishers, who can at least seek legal advice, to such a lottery, but individuals will find themselves playing dice with three years of their lives whenever they download an image.
It is also well known that unclear laws are easy to abuse. This is not to say that the police are corrupt, but opportunities for abuse should perhaps not be written into legislation.
Finally, the lack of clarity here is an issue that is expected to lead to problems under the ECHR and HRA
The Government claims that “mainstream” films that feature violent scenes will not be affectedby the legislation, because violent material will count as illegal only if it is pornographic – i.e. “material that has been solely or primarily produced for the purpose of sexual arousal”. Again, the Government regards this definition as clear enough to be practical.
It is not. Fetishistic material in general need not be explicitly sexual (someone with the relevant fetish might be aroused by a picture of a teapot). So material of the kind under discussion might not depict asex act at all – it might show a staged/consensual) violent act instead. But 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, easily abused and problematic under the ECHR and HRA.
A further point: to make the legal status of a scene dependent on what is in the mind of its producer (and viewers) is nothing less than the introduction of thought crime.
Further 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 sometime engaged in some form of BDSM activity)
- ~ the Goth community, members of which enjoy material featuring depictions of deaththat could easily be counted as pornographic under the proposed definition
- ~ people who own low-budget thrillers/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.
This legislation isÂ very likely prove incompatible with the European Convention on Human Rights (and therefore the Human Rights Act), according to Rabinder Singh QC.
The legislation will undermine the BDSM community, which allows individuals with similar interests to get together, and offers advice and education on consent and safe practice. Undermining this community will create a problem that the Government says it is trying to address – safeguarding individuals involved in these kinds of practices.