Law, Morality and Disgust: The Regulation of ‘Extreme Pornography’ in England and Wales
| Author | Paul Johnson |
| Date | 01 June 2010 |
| DOI | 10.1177/0964663909351438 |
| Published date | 01 June 2010 |
| Subject Matter | Articles |
Social & Legal Studies
19(2) 147–163
Law, Morality and
ª The Author(s) 2010
Reprints and permission:
Disgust: The Regulation
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DOI: 10.1177/0964663909351438
of ‘Extreme
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Pornography’ in England
and Wales
Paul Johnson
University of Surrey, UK
Abstract
The Criminal Justice and Immigration Act 2008 introduced the new offence of
‘Possession of extreme pornographic images’ (section 63) into English law. One
aspect of the framework that section 63 uses to determine which images will fall
within its scope is explicitly concerned with questions of morality: images must be
deemed ‘grossly offensive, disgusting or otherwise of an obscene character’. This
article examines some of the justifications for, objections to, and implications of the
inclusion of the moral component of section 63 and situates these arguments within
long-standing debates about the relationship between law, sexuality and morality.
Returning to the influential but much critiqued work of Patrick Devlin, it argues that the
framework that section 63 offers for the moral evaluation of extreme images is an imper-
fect but appropriate method for determining the level of social toleration for the private
possession of violent pornographic imagery. After considering some of the arguments
made against the moral framework, and in favour of a harm-based approach, it concludes
by arguing that the morality component offers both a practical way of evaluating images
in relation to contemporary standards of obscenity and provides a protective mechanism
for limiting the scope of the law’s application.
Keywords
consent, disgust, harm, indecency, morality, obscenity, pornography, violence
Introduction
The Criminal Justice and Immigration Act 2008 introduced the new offence of ‘Posses-
sion of extreme pornographic images’ (section 63) into English law. It is notable for
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Social & Legal Studies 19(2)
being the first offence in the European Union to criminalize the simple possession of
adult pornography. The offence contains four ‘tests’ to determine the types of images
that fall within its scope: first, an image must be ‘pornographic’ such that it may ‘reason-
ably be assumed to have been produced solely or principally for the purpose of sexual
arousal’; second, an image must contain one or more of four acts:
(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).
Third, the act in an image must be ‘explicit and realistic’ so that a ‘reasonable person’
seeing it would think that any ‘person or animal was real’; and, fourth, an image must
be ‘grossly offensive, disgusting or otherwise of an obscene character’.
It is this fourth test that concerns me in this article. Its inclusion means that the Act is
concerned not only with the potential physical harm to persons or animals created by
extreme pornographic images but also with a moral evaluation of their content. The eli-
sion of morality and pornography is not uncommon in English law since the Obscene
Publications Acts 1959 and 1964 are used as a moral compass to determine how the pro-
duction and distribution of sexually explicit materials is regulated. What is novel about
section 63 is that it will require jurors, for the first time, to make moral evaluations about
the obscene, offensive, or disgusting character of adult pornography in order to adjudi-
cate a defendant’s innocence or guilt in privately possessing it.
Whilst there are critics of the ‘morality test’ in section 63, I want to argue in support
of its inclusion for three reasons. First, it provides a practical resource that allows for a
moral evaluation of images in relation to contemporary standards of both obscenity and
indecency. The test draws upon conventional legal understandings of obscenity – as
expressed in the Obscene Publications Acts 1959 and 19641 – and of public indecency
– as contained in the Indecent Displays (Control) Act 19812 – to provide a framework
through which to measure the level of offence of extreme images to standards of moral
propriety. This is consistent with the understanding outlined in R v Stanley where
obscenity and indecency are deemed equivalent terms that provide a scale or continuum
on which to measure moral offence.3 Second, by incorporating this resource, the legis-
lation makes its moral basis clear, transparent and central to its enforcement – something
that, I will argue, is important at times when moral arguments about pornography often
masquerade as ideas about physical harm. And third, the morality test has the potential
to limit the scope of the law’s application rather than, as some claim (for example,
Wilkinson, 2009), open its use to impose a conventional sexual morality on everyone.
However, in incorporating a morality test, section 63 raises a difficult and long-
standing question about the relevance of public reactions, such as disgust, to the legal
regulation of ‘private’ sexual life. In this article I examine this question in relation to
some of the justifications for, objections to, and implications of section 63. I begin by
outlining the legislative background to the offence, describe the context of its genesis,
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and explore a number of responses to it. I pay particular attention to debates about
morality and harm to show that, whilst section 63 poses new challenges to the legal
regulation of sexuality, it is located within a much older landscape of contestation about
the relationship between public morality, private sexual expression and law. In consid-
ering arguments both in favour of and against the enforcement of morality through the
law, and in particular the role it plays in justifying any enforcement of ‘feelings’ such
as disgust, I return to the influential work of Patrick Devlin (1965). In reconsidering Dev-
lin’s thesis I argue that it offers useful conceptual tools for understanding the relationship
between law, morality and society. In particular, I argue that it allows us to consider the
beneficial and moderating, rather than simply negative and invasive, effects of applying
the criminal law in relation to social morality. I conclude by arguing that the framework
that section 63 offers for the moral evaluation of extreme images is both an imperfect but
appropriate method for determining the level of social toleration for the private posses-
sion of violent pornographic imagery in contemporary society.
Background to the Offence: A Moral Preoccupation
Legislators conceived section 63 as a response to the ineffectiveness of existing statutory
provisions (most notably, the Obscene Publication Acts 1959 and 1964) in regulating a
class of pornographic images that are produced outside of, but subsequently procured by
Internet users within, England and Wales. In criminalizing the possession of images
(which are already illegal to distribute and sell in England and Wales), and shifting the
legal culpability from producers and distributors to individual owners, section 63 was
designed to address the challenges created by the Internet to the existing legal framework
of moral regulation in England and Wales.4
Whilst debate had taken place in Parliament since the early 1990s about the need to
reformulate obscenity provisions in order to enable the more effective regulation of Inter-
net images, the development of section 63 was given impetus by a specific criminal case:
the detection and prosecution of Graham Coutts for the murder of Jane Longhurst in 2003.
Longhurst was killed, by ligature strangulation, in Coutts’ home and at the original trial the
prosecution alleged that Coutts had murdered Longhurst in order to satisfy his sexual
fantasies, which included strangulation and necrophilia. The prosecution placed great
emphasis on the fact that Coutts was a regular visitor to a range of pornographic websites
that portrayed women in sexual activities involving strangulation and death.
Whilst the prosecution presented no research or case evidence to support a causal link
between the use of these Internet sites and Coutts’ subsequent actions, the Internet evi-
dence was deemed both admissible and important by the original trial judge who, in his
summing-up, stated that the jury were ‘entitled to weigh up the likelihood’ of the murder
‘occurring by accident and it happening by coincidence within hours of a man having
fuelled his fantasies for such activities by one of his regular visits to sites on his computer
dealing with such activities’ (R v Coutts [2005] EWCA Crim 52). The idea that con-
sumption of pornography had ‘fuelled’ Coutts’ sexual desire and ensuing murderous acts
was a potent argument subsequently presented by the Jane Longhurst Trust, in a petition
comprising 50,000 signatures, that called for the government to legislate in relation to
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‘extreme internet sites promoting violence against women in the name of sexual
gratification’ (http://www.jltrust.org.uk/).
The government did use the Longhurst case as an expedient basis for introducing the
legislation, but it is striking that they never offered evidence to support a causal link
between extreme pornography and criminal or physical harm. The government’s original
consultation document acknowledged from the outset that ‘whilst we consider that it is
possible that...
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