The Reclassification of Extreme Pornographic Images

Publication Date01 Jan 2009
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00734.x
AuthorAndrew D. Murray
LEGISLATION
The Reclassi¢cation of Extreme Pornographic Images
Andrew D. Murray
n
Legalcontrols over the importation and supplyof pornographic imagerypromul-
gated ne arly half a cent ury ago in the Ob scene Publ ications Acts h ave proven to b e
inadequate to deal with the challenge of the internet age. With pornographic
imagery more readilyaccessible in the UK than at any time in our history, legis-
lators have been faced with the challenge of stemming the tide. One particular
problem has been the ready accessibility of extreme images which mix sex and
violenceor which portraynecrophilia or bestiality.This article examinesthe Gov-
ernment’s attempt to control the availabil ity of such material through s.63 of the
Criminal Justice and Immigration Act 2008, which criminalises possession of
such images. It begins by examining the consultation process and concludes that
an underlying public policy objective was the root of the newo¡ence despite the
lack of a clear mandate for such a policy.The article then examines whether this
weakness in the fou ndations for the propose d new o¡ence caused the proposa l to
be substantially amended during the Committee Stage of the Criminal Justice
and Immigration Bill: tothe extent that the ¢nal version of s.63 substantially fails
to meet the original public policy objective. The article concludes by asking
whether s.63 may have unintended consequences in that it fails to criminalise
some of the more extreme examples of violent pornography while criminalising
consensual BDSM images, and questions whether s.63 will be enforceable in any
meaningful way.
BACKGROUND
On 14 March 2003 Jane Longhurst, a teacher from Brighton, was strangled by
Graham Couttswith a pair of tights, apparentlyduring sexual intercourse.Coutts
was known to Miss Longhurs t, but he was also a man with a dangerous obsession
whichbecame apparent following his arrest whenan examinationof his computer
revealed it contained a series of violent images downloaded from a varietyof inter-
net sites containing portrayals of sexual asphyxiation, rape, torture and violent
sex.
1
During his trial, the Crown Prosecution Service brought further evidence
that Coutts’ consumption of violent internet pornography had been high on 13
March 2003, but had been markedly reduced between 14 March and 24 March.
2
n
Law Department,London School of Economics
1R.vCoutts [20 05] 1 W LR 1605.
2ibid at [41].
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(1) 73^90
Coutts was eventually convicted of Miss Longhurst’s murder,
3
but the tragic
events of 14 March 2003 were to signal the beginni ng of a campaign to ban pos-
session of violent images (suchas those held by Coutts)which reached fruitionon
8 May 2008 with the promulgation of s.63 of the Criminal Justice and Immigra-
tion Act 2008.
4
Following the conviction of Coutts, Liz Longhurst, Miss Longhurst’s mother,
began a campaign to criminalise possession of violent pornography: images por-
trayingsexual asphyxia,necrophilia and rape. In an interviewin 2006 Mrs. Long-
hurst gave her reasoning behind the campaign, which went much further than
simplytaking direct action against what many saw asthe root cause of her daugh-
ter’s death. She said she believedthat ‘the internet gives some kind of legitimacy to
those who ¢nd sexual grati¢cation in such images’
5
and that these images ‘could
be seriously corrupti ng. But if you want to look at them now, you’re not breaking
any law whatsoever.
6
Mrs. Longhurst acknowledged her campaign would be dif-
¢cult: to pass such a law would not be‘as easyas passing a law on child pornogra-
phy, because you can always say the children couldnt give their agreement.Well,
my feeling is that a lot of the women who are used in these horrible videos, the
tra⁄cked women, have not agreed to it.
7
Despite these di⁄culties, Mrs. Long-
hurst found support for her campaign not on ly from the ¢fty-thousand sign a-
tories for her petition to criminalise possession of violent pornography, but also
from the incumbent Home Secretary David Blunkett.
8
With Mr. Blunketts sup-
port the Home O⁄ce and the Scottish Executive produced a joint consultation
paper: Consultation: on the possession of extreme pornographic material and the processto
bring Mrs. Longhurst’s campaign to fruition had begun.
9
3 Couttswas found guilty of murder at LewesCrown Court on 3 February 2004, but he appealed on
the grounds that the Jury were not o¡ered a manslaughter alternativeand that the Jury was i nade-
quately directed on the internet evidence. It was dismissed by the Court of Appeal (Coutts n1
above), but on appeal the House of Lords overturned the murderconviction, ruling that the jury
should havebe en presented with a possible manslaughter verdict (R.vCoutts [20 06] 1W LR 2154).
A new trial took place inJune 20 07 when Coutts was again co nvictedof murderand was se ntenced
to a life term (see H. Carter,‘Teacher’skil ler found guiltyof sex murder on retrial’,The Guardian5
July 2007).
4 The Act received Royal Assent on this date. s.63 will be brought into force in January 2009 by
Order of the Secretaryof State (see n 61below and accompanyingtext).
5 There is a similarity here with Sunstein’s ‘personalisation and democracy’ thesis found in C. Sun-
stein Republic.com (Princeton NJ:Pri ncetonUP,20 01),i nparticular his second e¡ect of digital per-
sonalisation that ‘Without shared experiences, a heterogeneous society will have a much more
di⁄cult time in addressing social problems.’ (at 9).
6 These quotes are taken from E. Addley,‘Jane’s Legacy’,The Guardian 2 September 2006. Available
from: http://www.guardian.co.uk/commentisfree/2006/sep/02/comment.ukcrime (visited 13 May
2008).
7ibid.
8 See D.Blun kett,‘Liz leads ¢ght to end violentporn’,The Sun 1 April 2008. Availablefrom: http://
www.thesun.co.uk/sol/homepage/news/columnists/blunkett/article988550.ece (visited 13 May
2008).
9 HomeO⁄ce/Scottish Executive,Consultation:on the possessionof extremepornographicmaterial, August
2005. Available from: http://www.homeo⁄ce.gov.uk/documents/cons-extreme-porn-3008051/
cons-extreme-pornography?view=Binary(visited 13 May 20 08).
The Reclassi¢cation of Extreme Pornographic Images
74 r2009 The Author.Journal Compilation r200 9 TheModern Law Review Limited.
(2009) 72(1) 73^90

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