Criminalisation of Extreme Pornography: An Anti-Pornography Feminist Perspective

AuthorFiona Raye Clarke
[2014] Sou tha mpton Stud ent Law Review Vol.4
Criminalisation of Extreme Pornography: An Anti-
Pornography Feminist Perspective
Fion a Raye Clark e
The Pro blem of Re gu lat ing Po rnogr aph y
t has been argued th at ‘[c]r im es ar e generally acts which have a particularly
harm ful effect on the public and do m ore than interfere with mere pr ivate
rights’.1 Thu s, the reasons for criminalisation of any given activity are crucial,
and identifyin g the precise harm of a crim e is necessary in alleviatin g the crime’s
effects. Regulation of pornography and public moralit y, have long been debated in
the United Kingdom, the most fam ous debate being that between Lord Devlin and
HLA Har t on t he relationship b etween law and m orality. 2
Homosexuality was legalised in England after the Wolfenden Rep or t, an d Lord
Devlin argues again st this liberal movem en t posit ing the existence of ‘public
morality’ which criminal law can be used to ‘preserve’.3 HLA Hart, however , argues
against Lord Devlin’s position, holding that ‘a society [does not] have the right to
take any step necessary for its preservation4 in criminalisin g activity thatmoral
con servatism’ finds abhorrent.
Regulation of porn ograph y in th e United Kingdom is principally set down in the
Obscen e Publications Act 1959. The Act ‘criminalises th e produ ction an d distr ibution
of “obscen e” mat er ials: defined as those which m ay “dep rave an d corrupt” the
consumer (subject to a d efence for mat er ials deemed to be in the “pu blic good”)’.5
The use of the wor ds ‘deprave and corrupt ’ to define obscene mat er ial, however,
indicate that the primary justification for the cr im in alisation of such m aterials is a
con tinu ation of th e mor alism advocated by Lord Devlin.
1 David Ormerod, Smith and Hogan’s Criminal Law (13th edn, OUP 2011) 5.
2 See HLA Hart, Law, Liberty and Morality (OUP 1963); Patrick Devlin, The Enforcement of Morals (OUP
3 Ormerod (n 1) 9.
4 Hart (n 2) 82.
5 Clare McGlynn, ‘Mar ginalizing feminism?: Debating extre me pornography laws in public and policy
discourse’ in Karen B oyle (ed) Everyday pornography (Routledge 2010) 191.

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