Imagine you are a member of a private WhatsApp group of friends. One day one of your friends sends a picture of an extreme pornographic act – let’s say fisting. You send a reply making a jokey remark about it but think little more about it. Some months later your phone is seized by the Police as part of a criminal investigation concerning your workplace. Nothing comes of it, but while they’ve got your phone they find this pornographic image, and they charge you with possessing an ‘extreme pornographic image’ as a so-called consolation prize offence. You go to court. You’re cleared, but your life lies in ruins.
In short, even though ‘fisting’ is a perfectly legal act it’s now against the law to use an image of it in a pornographic film or an image in this country. It’s not an act I have ever wished to experience or perpetrate, or even fantasise about, but I’ve long come to realise that in the sexual world, we all have very different tastes. But if an act is perfectly legal to act out, why on earth should the depiction of it be illegal?
Back in 2008 the then Labour government banned the possession of what it called ‘extreme pornography’. To you and me, that might mean that anything to do with bestiality, child sex or the like would be banned, although I’m pretty sure it already was.
Last year the Conservative government amended and expanded the remit of this law. The images must be a) intended for sexual arousal, b) be realistic and c) grossly obscene. All of those are incredibly subjective. In addition, the images must include at least one of the following: a) acts of non-consensual penetration, b) an act which threatens a person’s life, c) an act which causes harm to a person’s breasts, genitals or anus, d) bestiality e) necrophilia. Again, what constitutes ‘harm’?
In 2014 there were more than 1600 prosecutions under this law. It should be said that the majority involved bestiality, although one failed prosecution involved a man having sex while wearing a tiger costume. And who said the law is an ass? According to the Adam Smith Institute, which has recently published a paper calling for this law to be abolished, or at least amended, these cases involved spending £15 million of public money.
According to a survey of 19,000 adults in the United Kingdom 86% of men and 56% of women had viewed pornography; 29% fantasise about playing a dominant or “aggressive” role during sex; 33% fantasise about playing a submissive or “passive” role during sex; 4% fantasise about being “violent” towards someone else; and 6% fantasise about violence being inflicted on them by another person. So more than two million men and women have violent sexual fantasies of some kind, and nearly a third of all British adults fantasise about sexual domination and submission.
Crucially, these fantasies seem to be shared by a large number of women. Arguments in favour of restricting the circulation of pornography usually revolve around the need to protect women from violent men, who might try to act out their fantasies. As the ASI study says: “The argument in favour of criminalising extreme pornography has been characterised as a means of protecting women and supporting women’s interests and standing in society. Unfortunately, these claims discount the potential impact of criminalisation on female viewers of pornography.”
There is no such thing as absolute freedom of expression. I do not advocate a complete free for all. I accept that there is a need to regulate things like pornography, but surely if an act depicted in an image on film is a legal act in itself, or clearly meant as fantasy, then I cannot for the life of me what good is done by criminalising someone who possess it.
In the United States, if you possess films or images depicting consensual events or obviously fictional performances you are constitutionally protected under the First Amendment. We clearly need a First Amendment type protection in the UK, which would protect us against interfering, albeit often well-intentioned but ill-informed, politicians and civils servants.
The trouble is, the few politicians who are at all interested in this issue are understandably afraid to put their heads above the parapet. Or put their fists…. [That’s enough, Ed].
This article first appeared in Attitude Magazine – indeed, it was my final column for them!
