Banning rape pornography won’t work and is wrong in principle

Now that the Boy George is safely home, thoughts are turning to who will be the next Royal Nanny. Although it is said that Kate’s mother Carole is to be a very “hands-on” mother-in-law my guess is that before long the strain will tell on her and a nanny will be appointed. In these enlightened days they will probably avoid someone like Prince Charles’ former nanny, Helen Lightbody, who was said to be “as imperious as old Queen Mary”. According to www.royalcentral.co.uk she would insist “… on the infant Prince having his own special lunch, something quite different from what was served to anyone else. Helen would then reject the meal that was first offered and demand another choice.” One would hate to think that the next but one heir to the throne would inadvertently be taught such finickiness by those who have charge of his moral welfare. My guess is that they will opt for someone a little more chilled out, probably an Australian. Their Royal Highnesses could perhaps start their search by seeking advice from the Prime Minister’s fair dinkum blunt speaking special adviser Lynton Crosby.

In the first few years George’s nanny will no doubt concentrate on feeding, changing and amusing her charge. A capacity for hard and boring work combined with a sunny outlook on life’s rich tapestry is what is required. But however relaxed she, or he, is the time will come when even a cheerful Antipodean with a nose stud and dreadlocks will need to consider the Prince’s moral education. She will have to take a very strong line against George viewing, and perhaps developing an appetite for, internet pornography, particularly if the young Prince’s curiosity leads him – as, who knows, one day when nanny is out of the room it might – to depictions of simulated rape and sado-masochistic orgies. If the royal nanny cannot keep the future monarch away from such things then there is a risk that he may grow up as a 21st century version of Edward VII. A future King caught downloading dodgy or illegal images would make the baccarat affair look like a nursery-room squabble over the snakes and ladders.

Where the moral welfare of our future King is concerned the principle that Nanny knows best is a sound one. It is rather less sound when it comes to governing the country. So when Mr Cameron dons his metaphorical Norland Manny uniform and calls for our children to be protected from pornography it is reasonable to ask whether his motives are entirely to do with the best governance of the country, or whether he has half a raffish eye on a slick political seduction of the female electorate. According to Louise Mensch it is “incredibly common” for women to indulge in rape fantasy. Apparently “in these fantasies the rapist looks like Khal Drogo from Game of Thrones.” Fortunately for most would-be bounders, you do not do not need to look like Mr Drogo, a long haired and heavily bearded warrior who generally goes around half-naked, to achieve your caddish ends. Smooth-chinned weaklings can achieve the same results by appearing to be morally strong, upright and best of all child-friendly. The clean-shaven Mr Cameron is striving to demonstrate all of these qualities, which it is quite possible he does in fact possess anyway.

Insofar as his proposals directly involve the criminal law his main plan is to extend the definition of “extreme pornography” (which is illegal) to include depictions of rape.

The idea is to amend S.63 of the Criminal Justice and Immigration Act 2008 which currently defines extreme pornography. In order to be illegal at present the images have to be:

  1. Pornographic;
  2. Grossly offensive, disgusting or otherwise of an obscene character; and
  3. Depicting various specified activities.

A pornographic image is defined as one which:

… is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.”

Such images are not illegal unless they are “extreme” as defined by S.63 (7). This sets out various activities the depiction of which “in an explicit and realistic way” is illegal if they are also grossly offensive, disgusting or otherwise of an obscene character.”

(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.

It is the depiction of the images (or the possession of such images) that is illegal, and the illegality does not depend upon the activity shown actually having taken place. Presumably the Cameron plan would be to add a paragraph (e) to this list:

a person raping another.”

But it is immediately obvious that a simple amendment of that sort won’t really do. For a start, it fails to deal with the depiction of what might be called, for want of a better word, the “introduction” to a rape. Images of tying up, torture, and sexual humiliation falling short of intercourse would not be covered by such a simple amendment. Very well then, what about:

a sexual activity to which any party was not consenting.”

Already we are beginning to stray from the comparatively modest-seeming change that Mr Cameron proposed. We are are now into the area of bondage, role playing games and fantasy enjoyed by large numbers of perfectly respectable consenting adults including, perhaps, even nannies. And how would you prove that an image depicts a “non-consenting” participant? It can be hard enough for even a living breathing and talking witness to persuade a jury that she did not consent. How can one possibly make the same judgement when what is shown is just a picture or a film? It is all very well if the actors and actresses are screaming and fighting. It is not so clear if what is shown is, like most real rapes, not achieved by overt violence but by implicit threats and coercion. What of the porn actress breathily panting “Will you force me?” to a Kahl Drogo lookalike standing over her: if he replies “yes” does that make it rape?

But even if Mr Cameron’s objective could be achieved by a clever parliamentary draftsman would it be justified?

One needs to go back to first principles. It is not the function of government to act as the nation’s nanny. A government should not criminalise activity that it disapproves of unless, at the very least, it does harm to others. This was, of course, the philosophical basis upon which homosexuality was decriminalised. The onus should always be on those who would ban an activity to justify the prohibition.

Fair enough, say Mr Cameron’s supporters. Depictions of rape cause men to go out and commit rape. If that were so the implications would be enormous. It would mean that there would be a powerful case for banning the depiction not just of pornographic depictions of rape, but of all such depictions, whether on the internet, on film, or indeed in writing. And rape, after all, is just one type of violence: if depictions of non-sexual violence lead people to commit non-sexual violence then perhaps all depictions of violence, of any sort, should be banned as well. The prohibition of pornographic depictions of rape would be merely another step down a slippery slope which could end with no depictions of any violence at all.

So given where this could lead, the onus on those who wish to impose further prohibitions on what we are allowed to see must be a heavy one. Mr Cameron has not begun to discharge it. Such studies as there have been have demonstrated no causal link at all between a taste for violent pornography and a propensity to commit sexual violence.

Without evidence of such a link the only reason for banning depictions of rape is because we want to stop others doing something that we disapprove of: watching the staged depiction of sexual violence.

That, of course, is precisely what one would expect of a nanny. It is not what we should expect of a principled Conservative Prime Minister.

 

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

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