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This is somewhere between a rant and a stream of conciousness,… - Sally's Journal
November 29th, 2005
12:20 pm

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This is somewhere between a rant and a stream of conciousness, that I wrote when reading the government consultation on extreme pornography. It was supposed to be a happy fluffy post about how wonderful multispas are, but I got distracted.

How odd. We currently have a situation where possessing "extreme pornography" is perfectly legal, but publishing, selling, and importing it is illegal. This is the kind of situation that really flags up my "gah! inconsistent and hypocritical!" buttons.

(The first time I was annoyed about this was about smoking. It seemed fairly lilly-livered of the government to make it illegal to advertise smoking and illegal to smoke in any public places all because smoking is Evil and Bad and Wrong, and yet not actually make it illegal to smoke. I mean, either something is Evil, Bad and Wrong, or it isn't. I'm prepaired to admit that a gentle reactionary approach to the legal system is wise, and if the current laws are the first step towards making smoking illegal, but in a way that doesn't drive an entire class / generation into becoming criminals then as a halfway house I'll accept it. But it has to be a half-way house on the way to being a full-way house... I will accept that it is a stage the law has to pass through, but won't accept it as a long term position.)

We also currently have a situation where (according to the consultation document) "the material depicts activities that are illegal in themselves". Now, this could mean one of two things.

It could mean that the people in the picture really are doing a thing that is illegal (eg really heavy BDSM, see the Spanner case), which I shall call Real Pictures of Bad Things. In this case it is missing the point to squabble over whether people should be allowed to have pictures of the act, and of far more importance to argue whether the act should be illegal or not. After all, it is probably a Bad Thing to have pictures of people robbing a bank, or at least a thing that would take some explaining (send all of Crimewatch to jail! Now!) and it is definitely a bad thing to let people know people want pictures of people doing bad things (working modulo the idea that things that should be illegal are Bad Things) as then not only do you get people robbing banks because they want to rob banks, you get the people robbing banks because they know they can sell the pictures. So if we are arguing about photographs of things that are actually illegal that we consider Not Bad Things, we should go and argue about whether the act should be legal or not, and then the photographs will sort themselves out naturally.

Or it could mean that the people in the picture are pretending to do a thing that is illegal (Fake Pictures of Bad Things). Someone wanted to watch people robbing a bank, so they faked up some swag bags and got some toy guns, and made a cardboard casheirs desk and took some pictures. No banks were harmed in the making of this photograph. This is people pretending. Make believe. Not real. People are an imaginative species. This makes the world go round. It is far better to imagine what cheating on your partner would be like than to cheat on your partner. It is far better to imagine shoving your supervisors severed head up his horses backside than it is to actually sever his head. Acknowledging we have dangerous emotions and need to deal with them is far better than repressing everything pressure cooker style. (Also, the world of drama would be a much poorer place. Where would The Bill be if we couldn't depict illegal activities?)

I can see the flip side to that one. I can see that allowing yourself to dwell on something in your imagination, obsessing on things that are fundamentally Bad Things To Do, is not healthy. I would be worried if I spent all my days dreaming of another man instead of M, and worried if I spent all my days planning how to murder my supervisor, whether or not I actually did anything wrong. But I would be quite worried if I spent all my days obessessing about something that was perfectly legal. If my every waking thought was how to aquire more chocolate, for example. I don't think I would expect the law to make chocolate illegal because I couldn't cope. The interesting question is what happens if making chocolate legal leads to a whole section of the country being unable to cope. If ten percent of the population became such chocoholics that they couldn't act as fully functioning members of society, is it then in the good of the nation to make chocolate illegal? I suppose this is the drugs argument. And I suppose that this is where we need proof - how many people would fall pray to dangerous addictions they could otherwise have controlled if extreme pornography is more widely available? And how many of those would become so twisted by it that they would go and do Bad Things because they allowed their waking mind to be filled with the thought of Bad Things?

Can we prove anything about this without doing it, though? Can we know if legalising cannibis would give us a nation full of stoners without legalising cannibis, and running the risk of ending up with a nation full of stoners? How can we make sensible intelligent predictions without destroying civilisation as we know it? (Maybe this is why I want to work for the government statistical service)

However, the government report on extreme pornography states quite clearly "we do not yet have sufficient evidence to draw any definite conclusions as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or abberent sexual behaviour". So with no evidence that access to fake pictures of illegal acts does any Bad Stuff, I don't see any need to ban them. Maybe over the years that they are not banned a body of evidence that this access does cause Bad Stuff will build up, and yes, maybe then it will be harder to ban things once 10% of the population are addicted to them and prepaired to rape anyone who stands in the way of their hit. But I think that's a risk you have to take if you want to be a liberal society that allows people, if it harm none, to do what they will.

And whether or not children are reading the internet does seem to me to be a huge red herring. Maybe there's a good arguement for catagorising the internet more (so that only .xxx is a dangerous place, and not The Whole Internet) but that's a different kettle of fish all together. If The Whole Internet is a dangerous place, don't let your kids out alone in a dangerous place until you think they're old enough to be safe. That's all there is to it. Likewise, one should not be able to play the "This means we can Get Paedophiles!" card - a law that sent every UK adult to gaol would, no doubt, catch a lot of paedophiles, but that doesn't make it a good law!

Also, in a country where it is viewed as Very Bad to want to look at fake pictures of Bad Things, how are you ever going to get decent research done into whether it does do any harm? People who look at fake pictures of bad things are going to keep this very quiet. So the Mad People who look at fake pictures of bad things will get caught raping people, confess that the fake pictures made them do it (after all, they really need a good excuse right now) and the amount of evidence linking Mad People to fake pictures of bad things will build up. Sane People who look at fake pictures of bad things will keep very very quiet about it, if they don't want to lose their job, their friends, their standing in society, and indeed, their liberty, if this law goes through.

And all these carefully drawn distinctions between whether the intent of the picture was pornography (BAD) or medical, scientific, educational, artistic or news (GOOD)! This rings all my irregular verb bells - I am a scientist so cut up bodies, he is an artist so cuts up bodies, they are perverts and think cutting up bodies is (errgh!) sexy, BTW do you want to buy my anatomy textbook?... Sheesh, people, understanding intent and motivations is a minefield, and should be avoided in the law if at all possible. Which it is - if having these pictures available is bad (which we still have no proof about) then surely it doesn't matter if people are masturbating over badthings.xxx.com or news.bbc.co.uk?

And if this report goes on about what All Normal People must find abhorrent one more time... *rolls eyes*. The given definition is "serious violence in a sexual context" and "serious sexual violence". "Serious sexual violence means anything in which a GBH prosecution could be brought". However, five minutes of googling has led me to several sites that say "there is no legal definition of GBH, it must be serious eg a broken bone but is up to the jury to decide". So, AFAICT they've defined "serious sexual violence" as something that has no definition. Sheesh, is it just me thinking this is madness? And a madness that definitely seems to include anything that breaks the skin. How perverted is perverted? How many people live in fear that the world would hate them if they knew what turned them on? Everyone?

Anyway, the consultation ends on Friday. You can email them if you don't have the energy to set pen to paper. You'll have to work your way through some horribly convoluted and biased questions if you want to be a statistic though...


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Edited to add: Yes, obviously Sheesh, people, understanding intent and motivations is a minefield, and should be avoided in the law if at all possible was over simplified and possibly wrong. But I'm damned if I'm going to cut and paste my reply to every person who can't be bothered to find out if a question has been asked already or not. So here it is, as I replied to neonchameleon:

"Interesting... You believe there should be no legal difference between manslaughter and murder? Between fraud and carelessness?

And such principles make any notion of consent meaningless - what does that do to rape law?"


"Hmm, I don't know, I hadn't really thought about it that much. I did say it was a stream of conciousness.

You're obviously right.

But at the same time if the problem is that people can access material that is causing them harm the problem is just as present if the image is on a porn website or the catalogue of an art gallery.

There tends to be some lower bound of punishment for doing a Bad Thing even if you have excuses. So if it is manslaughter instead of murder, there is still a crime of manslaughter. Obviously if good motivations for doing a bad thing can be understood, or if the bad thing was completely accidental, then the crime is less bad, but it tends to still be a crime - harm has still been caused. People can be prosecuted for hitting someone in their car and killing them, even if they never intended to hit a person. It seems odd that the act of making this material publically available is defined as harmful enough to be a crime when it is done in some contexts, but not harmful enough to be a crime in others."

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[User Picture]
From:king_of_wrong
Date:November 29th, 2005 01:36 pm (UTC)
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Someone wanted to watch people robbing a bank, so they faked up some swag bags and got some toy guns

... and got arrested under Section 19 of the Firearms Act (1968)?
From:tamsinj
Date:November 29th, 2005 01:42 pm (UTC)
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fake registers, filmed on private land.
From:ex_robhu
Date:November 29th, 2005 01:41 pm (UTC)
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The first time I was annoyed about this was about smoking. It seemed fairly lilly-livered of the government to make it illegal to advertise smoking and illegal to smoke in any public places all because smoking is Evil and Bad and Wrong, and yet not actually make it illegal to smoke. I mean, either something is Evil, Bad and Wrong, or it isn't.
An issue with smoking is that people smoking in public places directly affect other non smoking people.

So with no evidence that access to fake pictures of illegal acts does any Bad Stuff, I don't see any need to ban them
Here here! If everyone is consenting and there is no direct cause of harm to other people I think it should be allowed.

And whether or not children are reading the internet does seem to me to be a huge red herring. Maybe there's a good arguement for catagorising the internet more (so that only .xxx is a dangerous place, and not The Whole Internet) but that's a different kettle of fish all together.
The big problems being that it is impossible to control the internet because it is entirely international and that there are no good definitions of what is porn (especially when you take other cultures into account).
From:nlj21
Date:November 29th, 2005 02:08 pm (UTC)
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The big problems being that it is impossible to control the internet

Ummmm, except that is not true. ICANN control the assignment of TLD and could quite easily create an .xxx TLD. And I'm sure the US governement will happily provide a good definition of what porn is which ICANN would have to use.

Yes, in theory everyone could use different root servers, but in practice, apart from a few hardcore geeks, they won't.
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From:aldabra
Date:November 29th, 2005 01:42 pm (UTC)
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What seems most broken is that the pictures are deemed to be Bad even if you can demonstrate that the subjects genuinely consented. Even if, for example, the subject is you yourself, where you might think you yourself would have a better idea of whether you'd consented than the police. It's rather like outlawing taking photos of your kids in the bath because paedophiles like pictures of naked children. Parents like pictures of naked children too. The presumption of paedophilia does harm in itself.

I mean, if you're assuming lack of consent in all cases then *all* pornography is Bad because all sex is rape in the absence of consent.
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From:atreic
Date:November 29th, 2005 01:43 pm (UTC)
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I mean, if you're assuming lack of consent in all cases then *all* pornography is Bad because all sex is rape in the absence of consent.

Oh, that's a wonderful summerising soundbite. I like
From:tamsinj
Date:November 29th, 2005 01:49 pm (UTC)
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i think my main problem with this is that its target is "realistic depictions" of 'bad sex stuff'(tm). the only reason this is even getting thought about is because they're waving the SEX joker-card. if you took that word out of all their arguments; all war films and horror films would be illegal due to their depiction of frankly abhorant things (decapitation etc).
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From:atreic
Date:November 29th, 2005 01:52 pm (UTC)
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Well, exactly. But I'm worried that I'm going to get a whole page of LJ comments of people agreeing with me, but no-one will go and fill in their consultation. And if no-one says to them "this is a stupid idea" then we have no excuse when it does get passed.
From:neonchameleon
Date:November 29th, 2005 01:57 pm (UTC)
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Wrong on the legal definition of GBH - it includes anything that breaks the skin (at least according to my pet lawyers). This is clearly unworkable therefore the practical definition of GBH needed to bring prosecution is somewhat greater (and undefined) - but as a GBH prosecution could be brought for anything that breaks the skin, it really hampers certain types of pornography.
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From:robert_jones
Date:November 29th, 2005 03:04 pm (UTC)
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You're thinking of wounding. s20 of the Offences Against the Person Act covers both GBH and wounds. The former is "really serious harm" and the latter requires the breaking of both layers of skin.
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From:cartesiandaemon
Date:November 29th, 2005 02:00 pm (UTC)
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Yes.

Though I think in some circumstances prohibiting dealing but not posessing could make sense. For instance, you might say "We can't easily tell the difference between someone having this picture appear in an unsolicited pop-up and someone downloading it, and prosecuting the latter wouldn't really help, so we'll just forget it and target the servers."
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From:atreic
Date:November 29th, 2005 02:36 pm (UTC)
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Yes, but the laws about dealing and possessing are hang overs from the pre-internet age. I can see people receiving unsolicited pop ups, but keeping piles of unsolicited pornographic magazines seems less likely...
From:nlj21
Date:November 29th, 2005 02:00 pm (UTC)
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Sheesh, people, understanding intent and motivations is a minefield, and should be avoided in the law if at all possible.

I disagree - I think the complete opposite is true, that the law should not just me looking at people's actions, but also the motivations for their actions. (And as far as I am aware this is what happens in court)

I think avoiding doing so is not possible, and can't really think of a reason you would want to, other than that everything would be much easier if you could - which sounds to me like just trying to pretend that things are less complex than they are.
From:ex_robhu
Date:November 29th, 2005 02:57 pm (UTC)
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But if we do that we end up in stupid situations where people say ridiculous things like imagining having an affair is like having the affair itself!
From:neonchameleon
Date:November 29th, 2005 02:08 pm (UTC)
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, people, understanding intent and motivations is a minefield, and should be avoided in the law if at all possible.

Interesting... You believe there should be no legal difference between manslaughter and murder? Between fraud and carelessness?

And such principles make any notion of consent meaningless - what does that do to rape law?
[User Picture]
From:atreic
Date:November 29th, 2005 02:18 pm (UTC)
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Hmm, I don't know, I hadn't really thought about it that much. I did say it was a stream of conciousness.

You're obviously right.

But at the same time if the problem is that people can access material that is causing them harm the problem is just as present if the image is on a porn website or the catalogue of an art gallery.

There tends to be some lower bound of punishment for doing a Bad Thing even if you have excuses. So if it is manslaughter instead of murder, there is still a crime of manslaughter. Obviously if good motivations for doing a bad thing can be understood, or if the bad thing was completely accidental, then the crime is less bad, but it tends to still be a crime - harm has still been caused. People can be prosecuted for hitting someone in their car and killing them, even if they never intended to hit a person. It seems odd that the act of making this material publically available is defined as harmful enough to be a crime when it is done in some contexts, but not harmful enough to be a crime in others.
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From:edith_the_hutt
Date:November 29th, 2005 02:08 pm (UTC)
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The most convincing argument in that document which you haven't mentioned is that banning the possession of such material (accidental or minimal exposure aside) is that it hampers the demand and supply of the material (while the effect would be to drive production underground this is not much change from the status quo and is in line with the Use fuels demand argument which they're clinging to).

The documents asserts that much of the current "extreme"1 porn is produced under exploitation and without consenting adults. If this is the case then it forms a much stronger argument for prohibition than "we think it might make people more nasty but don't have the evidence for or against this" at least in my view. Of course then we get onto alternatives such as ensuring that the material is produced under controlled and regulated conditions which potentially opens up a whole wasps' nest of related issues such as government sanctioned abuse as well as huge wreaths of red tape surrounding the regulation. Arguably there are issues there which need to be addressed but that's another LJ post I suspect.

1. I am informed by certain persons who have yet to send me the relevant links and will be prodded on Wednesday that "extreme" may be less extreme than is suggested by the consultation document, thus the quotation marks.
From:neonchameleon
Date:November 29th, 2005 02:26 pm (UTC)

Meaning of "extreme"

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Extreme means GBH. Full legal definition of GBH (and completely ignored in practice)1 is defined under the Offences Against the Person Act of 18612. Under the act, breaking the skin is equivalent to GBH (which has some point if you expect cuts to regularly get infected - medical conditions have significantly improved since 1861).

Therefore anything that causes a wound is GBH.

1 http://www.cps.gov.uk/legal/section5/chapter_c.html
2 href="http://www.swarb.co.uk/acts/1861OffencesAgainstThePersonAct.shtml
From:ex_robhu
Date:November 29th, 2005 03:01 pm (UTC)
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To be honest I don't think this law is a good one but I'm not sufficiently motivated to do anything about it as it doesn't affect me at all.
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From:robert_jones
Date:November 29th, 2005 03:45 pm (UTC)
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I'm puzzled as to why we need a separate category of "serious sexual violence" as surely any serious sexual violence will fall within "serious violence in a sexual context." Unless you can have serious sexual violence outside a sexual context?

I feel that what they must mean, although it's not what they say, is that category (c) covers depictions GBH in a sexual context, and category (d) covers depictions of serious offences contrary to the sexual offences act, such as rape. It seems fairly clear from the document (para 5) that they do wish to criminalise depictions of violent rape, which presumably doesn't just mean rape which is also GBH. But that definitely isn't what they say at paras 40 & 41.

I don't think there is any serious problem with restricting the offence to "pornography". The problem HMG are seeking to address is people with great collections of "extreme" porn sitting on their computers, not people who are titillated at news reports, or The Rape of the Sabine Women.

The vagueness of GBH is more worrying. It doesn't cause any real problem in terms of GBH itself, because if you're even nearly commiting a s20, then you are necessarily committing a s47, which you shouldn't be doing in the first place. But I do think people need to know whether they may or may not possess some particular image. Principle of legal certainty, and all that. But then how would you come up with a precise definition, since these things are generally going to be questions of degree?

Why is it, BTW, that R v Brown is referred to in BDSM circles as "The Spanner case"?
[User Picture]
From:atreic
Date:November 29th, 2005 03:51 pm (UTC)
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If I moved in BDSM circles, maybe I'd know :-p
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From:pjc50
Date:November 29th, 2005 04:21 pm (UTC)
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Sheesh, people, understanding intent and motivations is a minefield

Yes. It's also vital. Otherwise you can't distinguish murder, manslaughter, and causing death by dangerous driving. You can't distinguish rape. You can't distinguish fraud from error. Intent matters in all sorts of things.
[User Picture]
From:atreic
Date:November 29th, 2005 04:25 pm (UTC)
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[User Picture]
From:pjc50
Date:November 29th, 2005 04:23 pm (UTC)
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As Spy blog says, why are they bothering about this when they're not signing up to the much more important European convention against people-trafficing?

http://www.spy.org.uk/nulabour/human_trafficking_convention/
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From:arnhem
Date:November 29th, 2005 09:02 pm (UTC)
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Aside from the directions this discussion has already gone in: this "discussion document" feels oddly reminiscent of "give 'em the prospect of 90 days without trial, and they'll be delighted to beat you down to 28".
From:emarkienna
Date:November 30th, 2005 11:49 pm (UTC)
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We currently have a situation where possessing "extreme pornography" is perfectly legal, but publishing, selling, and importing it is illegal. This is the kind of situation that really flags up my "gah! inconsistent and hypocritical!" buttons.

I don't think it is. The most obvious example is a private couple who take photos of their own activities, or someone who makes a pornographic "depiction" for his own enjoyment, with no intention of making it publically available. Another point is the idea that the person who downloads isn't the one producing it - they might consider this person as someone in need of help, but it is not the same as someone who produces it and/or profits from it. The claim, I presume, is that this porn corrupts people to do bad things, in which case the producers/distributers (who are therefore corrupting other people) are different to those who view it (presumably these people are already corrupted).

I don't think smoking laws are inconsistent. Advertising arguably causes harm to others by persuading them to take it up. Smoking in public causes harm to others. If a person chooses to smoke nonetheless, it only harms himself, and punishing him helps no one.

Another example would be sex and prostitution - is it inconsistent that the latter is illegal whilst the former is not? I think that prostitution should be legal, but I don't think it's inconsistent for it to be illegal. Even if it was legalised, there'd probably be regulations (eg, requiring prostitutes to be tested) which wouldn't apply to sex in general.

It's not so much about whether things are "Evil, Bad and Wrong" or not, but whether a particular thing causes harm, and whether it would be useful or not to make it illegal.

In this case it is missing the point to squabble over whether people should be allowed to have pictures of the act, and of far more importance to argue whether the act should be illegal or not.

It is, yes, which does make things trickier. But this consultation doesn't ask our opinions on that.

In some sense yes, it's the original laws which make certain BDSM illegal that are wrong, and need to be changed. Nonetheless, I will oppose any new laws which seek to make things even worse (in my opinion). Also, even for people who are of the opinion that people who perform such acts should be locked up, they might be persuaded that someone who merely looks at an image should not be - and especially, they might be persuaded that making depictions should not be treated the same as actually committing the act (I don't think even fake child porn is currently illegal?)

Also I should point out here that it's not necessarily just "really heavy BDSM" which is currently illegal, depending on your definition of "really heavy". They were prosecuted with ABH, so theoretically anything which leaves marks such as a cut, or bruises from a beating, could be illegal. And talking of inconsistencies, it's inconsistent in my opinion that we live in a world where you can nonetheless consent to piercings, tattoos, or being punched in the face for "sport".

If this legislation was limited to actual events of GBH, even if that included consenting cases, I wouldn't be too worried. I'm not going to be too bothered to argue the right to consent to severe things like breaking bones, nor would I want to view porn of actual such events. But the fact that it includes mere depictions is a lot more worrying - that less severe cases could be considered to depict more severe ones, both in terms of BDSM I'm involved in, and porn I might want to look at (or read, if that's included?)

Also there's the worry that once this is in place, it will be a small step to extend it to less severe cases, most likely cutting (which as far as I can tell, is "wounding" and not GBH, but seems to be treated much the same as GBH).
From:emarkienna
Date:November 30th, 2005 11:50 pm (UTC)

continued...

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People who look at fake pictures of bad things are going to keep this very quiet. So the Mad People who look at fake pictures of bad things will get caught raping people, confess that the fake pictures made them do it (after all, they really need a good excuse right now) and the amount of evidence linking Mad People to fake pictures of bad things will build up. Sane People who look at fake pictures of bad things will keep very very quiet about it, if they don't want to lose their job, their friends, their standing in society, and indeed, their liberty, if this law goes through.

Yes exactly - this is exactly the current situation regarding drugs. For most people, they only hear about "drug users" with respect to criminals, or otherwise with the intent of making someone look bad.
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