When does kinky porn become illegal?

By Chris Summers
BBC News

A bill outlawing the possession of "extreme pornography" is set to become law next week. But many fear it has been rushed through and will criminalise innocent people with a harmless taste for unconventional sex.

Five years ago Jane Longhurst, a teacher from Brighton, was murdered. It later emerged her killer had been compulsively accessing websites such as Club Dead and Rape Action, which contained images of women being abused and violated.

When Graham Coutts was jailed for life Jane Longhurst's mother, Liz, began a campaign to ban the possession of such images.

WHAT IS EXTREME PORNOGRAPHY? As defined by the new Criminal Justice Bill An act which threatens or appears to threaten a person's life An act which results in or appears to result in serious injury to a person's anus, breasts or genitals An act which involves or appears to involve sexual interference with a human corpse A person performing or appearing to perform an act of intercourse or oral sex with an animal

Supported by her local MP, Martin Salter, she found a listening ear in then home secretary, David Blunkett, who agreed to introduce legislation to ban the possession of "violent and extreme pornography".

This was eventually included in the Criminal Justice and Immigration Bill, which gets its final reading this week and will get Royal Assent on 8 May.

Until now pornographers, rather than consumers, have needed to operate within the confines of the 1959 Obscene Publications Act (OPA). While this law will remain, the new act is designed to reflect the realities of the internet age, when pornographic images may be hosted on websites outside the UK.

Under the new rules, criminal responsibility shifts from the producer - who is responsible under the OPA - to the consumer.

But campaigners say the new law risks criminalising thousands of people who use violent pornographic images as part of consensual sexual relationships.

People like Helen, who by day works in an office in the Midlands, and enjoys being sexually submissive and occasionally watching pornography, portrayed by actors, which could be banned under the new legislation.

She feels the new law is an over-reaction to the Longhurst case.

"Mrs Longhurst sees this man having done this to her daughter and she wants something to blame and rather than blame this psychotic man she wants to change the law but she doesn't really understand the situation," says Helen.

"Do you ban alcohol just because some people are alcoholics?"

She has an ally in Baroness Miller of Chilthorne Domer, a Liberal Democrat peer who has fought to have the legislation amended.

"Obviously anything that leads to violence against women has to be taken very seriously," says Baroness Miller. "But you have to be very careful about the definition of 'extreme pornography' and they have not nearly been careful enough."

She has suggested the new act adopt the legal test set out in the OPA, which bans images which "tend to deprave and corrupt".

But the government has sought to broaden the definition and the bill includes phrases such as "an act which threatens or appears to threaten a person's life".

Speaking from her home in Berkshire, Mrs Longhurst acknowledges that libertarians see her as "a horrible killjoy".

I'M NOT DOING ANYTHING WRONG A lot of people would like to march and demonstrate against this law but if you stick your head above the parapet you are going to get yourself in the firing line Helen defends extreme porn Click here to read more

"I'm not. I do not approve of this stuff but there is room for all sorts of different people. But anything which is going to cause damage to other people needs to be stopped."

To those who fear the legislation might criminalise people who use violent pornography as a harmless sex aid, she responds with a blunt "hard luck".

"There is no reason for this stuff. I can't see why people need to see it. People say what about our human rights but where are Jane's human rights?"

What is considered obscene has changed over the years

Recently, the much-publicised rompings of Formula 1 boss Max Mosley have served as a reminder that kinky sex is found in all walks of society.

And just as Mr Mosley is fighting the expose of his antics, calling it an invasion of private life, so Baroness Miller says the new law also threatens people's privacy.

"The government is effectively walking into people's bedrooms and saying you can't do this. It's a form of thought police."

She says there's a danger of "criminalising kinkiness" and fears the legislation has been rushed through Parliament without proper debate because it is a small part of a wider bill.

Deborah Hyde, of Backlash, an umbrella group of anti-censorship and alternative sexuality pressure groups, has similar concerns.

Having engaged in it consensually would not be a crime, but to have a photograph of it in one's possession would be a crime. That does not seem to make sense to me Lord Wallace of Tankerness

"How many tens or hundreds or thousands of people are going to be dragged into a police station, have their homes turned upside down, their computers stolen and their neighbours suspecting them of all sorts?"

Such "victims" won't feel able to fight the case and "will take a caution, before there are enough test cases to prove that this law is unnecessary and unworkable".

Another opponent of the new law is Edward Garnier, an MP and part-time judge, who questioned the clause when it was debated in the Commons.

"My primary concern is the vagueness of the offence," says Mr Garnier. "It was very subjective and it would not be clear to me how anybody would know if an offence had been committed."

But the Ministry of Justice is unrepentant, saying the sort of images it is seeking to outlaw are out of place in modern-day Britain.

"Pornographic material which depicts necrophilia, bestiality or violence that is life threatening or likely to result in serious injury to the anus, breasts or genitals has no place in a modern society and should not be tolerated," says a spokeswoman for the ministry.

Graham Coutts, who killed Jane Longhurst after viewing extreme pornography

Yet opponents have also seized on what they see as an anomaly in the new law, noted by Lord Wallace of Tankerness during last week's debate in the House of Lords.

"If no sexual offence is being committed it seems very odd indeed that there should be an offence for having an image of something which was not an offence," he said.

With that partly in mind, the government is tabling an amendment that would allow couples to keep pictures of themselves engaged in consensual acts - but not to distribute them. Lord Hunt, who has charge of the bill in the Lords, admits it is being rushed through to meet a deadline. But he denies the law has not been thoroughly considered and maintains it will only affect images that are "grossly offensive and disgusting".

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A selection of your comments appears below.

The sad thing is that no matter what laws are brought in they will never stop the monsters like Graham Coutts! and innocent people with "kinks" will suffer... more and more of peoples rights are being taken away, we are supposed to be a free country yet they go after innocent people and continue to let out monsters who do the damage! isn't it time that laws were passed to put these monsters away forever rather than giving them a second chance!
Claire, Worcestershire, UK

Seems like the dictatorship of the opinions of a minority, which is not my idea of a democracy..
bob, London

Speaking as a psychologist who has taught for nearly 10 years the alleged links between violent media and aggression, I think we need to take a step back here. Despite popular assumptions that watching violent images 'causes' aggression, the evidence (around 1000 published studies) that it does is contradictory and far from conclusive. It is one thing to say that a deeply disturbed and dangerous person may seek out violent pornography to fulfil their deviant fantasies: however it is an entirely different matter to say that normal, well adjusted people will be inspired to commit violent crimes if they watch such images. If we wish to avoid such tragedies happening again, we should take a wider look at how people become so disturbed that they lose the ability to judge right from wrong and commit such atrocities. A debate over whether such pornography is banned or not is therefore a side issue as it does not adequately address this matter.
Dr Chris Cocking, London

If owning material that contains "An act which threatens or appears to threaten a person's life" becomes illegal, then almost every film I own will be illegal. Even if the violence must be in a sex scene I can think of several mainstream films this would include. Basic instinct and Goldeneye to name two.
DaVe O, Cardiff

I completely agree with this Bill. It's disgusting to think that someone finds it "kinky" to watch a women being raped, or having sex with a dead person and that their "rights" should be protected. What about the people in the video being raped??? Surely the people that like to watch "kinky porn" agree that there is a line, and surely if people cross the line should held accountable (and I'm talking about extreme cases, not just someone who finds bondage kinky). They say the ultimate pornography is murder, don't you think that these videos are stepping-stones to the ultimate act? Don't you watch porn to fulfil your fantasies? I think if this becomes "acceptable" behaviour, then people will be able to argue that processing child-porn is just as innocent.
Victoria, London

What utter nonsense. Jane Longhurst was murdered by a psychotic, not a photograph of a fetishist sex act. I'm so sick of Labour's moral posturing...
Nick, Edinburgh

Anyone who doesn't agree with new law has serious mental health issues...
Daniel, Oxford

There is more violence and incentive to cause violence and death in modern day video games, which are freely available to under 18s, than in the vast majority of porn films. But the government will not try to ban them because they generate a lot of income tax. The country and do-gooders have gone crazy.
Myles Povey, Chester

I would consider myself a stable and well adjusted woman with no desire to harm another living creature especially a human. Yet my partner and I enjoy a deep and loving relationship which is what many would consider "kinky" or deviant.

Whilst I do genuinely feel for Mrs Longhurst, I was under the impression we live in a democracy where people who were considered old enough to vote were also allowed to enjoy their own sexual preferences in their own home between consenting adults. The people in these images have consented to the act and are enjoying it, but I can be prosecuted for viewing it. Absurd!
Libby Hill, Dudley