Scottish Executive Justice Department

Analysis of the Scottish Responses to the joint Scottish Executive and Home Office consultation on the possession of extreme pornographic material

June 2006


Contents

Acknowledgements Page 3

Introduction Page 4

Comments on the Consultation Page 7

Responses to Consultation Questions Page 11

Question 1 Page 11

Question 2 Page 15

Question 3 Page 19

Question 4 Page 23

Questions 5&6 Page 24

Question 6 Page 26

Annex A - List of consultation respondents

Annex B - List of cross border organisations

Annex C - Table of responses to each question


Acknowledgements

  1. We are grateful to the respondents who contributed their views to the consultation on the possession of extreme pornographic material. The purpose of the consultation was to elicit the widest range of views possible and the responses to this consultation will help to inform policy in future.


Introduction

Background

  1. The Scottish Executive and the Home Office consulted jointly on proposals to create an offence of possession of extreme pornographic material. The consultation sought to determine whether advances in technology, particularly the use of the internet, have resulted in a need for the law in this area to be strengthened.
  1. The consultation set out options for creating an offence of possession of extreme pornographic material containing explicit actual scenes or realistic depictions of:

·  Intercourse or oral sex with an animal;

·  Sexual interference with a human corpse;

·  Serious violence in a sexual context;

·  Serious sexual violence (“serious violence” means violence in respect of which a prosecution of assault to serious injury could be brought under Scots Law)

  1. The Consultation on the Possession of Extreme Pornographic Material was issued on the 30 August 2005. As well as being available online, hard copies of the consultation document were circulated to 254 Scottish recipients including BDSM groups[¹], legal professionals, police, local authorities, women’s groups and MSPs. Replies were requested by 2 December 2005.

Responses

  1. 93 Scottish responses were received, 59 of which were personal responses and 34 responses from organisations. In addition to these, responses from 49 cross border organisations have been included in the analysis of the Scottish results.


Respondents

6.  The table below shows the number of responses by respondent type, and includes the cross border organisations.

Type of Respondent Number & %

Individual 59 (41%)

Local Authority 11 (8%)

Criminal Justice Organisation 9 (6%)

Women’s Organisation 14 (10%)

BDSM Organisation 7 (5%)

Civil Liberties Organisation 11 (8%)

Media Organisation 4 (3%)

Children’s Organisation 5 (4%)

Religious Organisation 9 (6%)

IT/ISP/Telecoms Organisation 10 (7%)

Other 3 (2%)

Total 142 (100%)

  1. A list of respondents who have given permission for their responses to be shared is provided at Annex A along with the list of cross border organisations at Annex B, whose views have been incorporated into this analysis.
  1. Copies of the responses (except those marked confidential) are available from the Scottish Executive library at Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD ( telephone 0131 244 4565)
  1. Responses can also be viewed on the Scottish Executive website at:

http://www.scotland.gov.uk/Topics/Justice/criminal/17543/ExtremePornograhicMateria/Response92

  1. Where a quote from a personal response has been used in the analysis, this has been referred to by the response number alone in order to preserve confidentiality. Where the response is from an organisation, the organisation has been named and the response number cited.

Approach to Analysis

11.  Although much of the analysis was based on descriptive free text, where it has been possible to apply quantitative analysis to the results, this has been recorded and these tables are attached in Annex C. Due to the open nature of the consultation questions many respondents provided more general comments, rather than responding to each question specifically and this is reflected in the main body of the text. With this in mind, qualitative figures should be viewed as indicative of the views of the group, rather than absolute.

Factual Accuracy

  1. The views presented in this analysis are the opinions and comments of the individuals and organisations who responded to the consultation. They have not been vetted for factual accuracy.


Comments on the Consultation

  1. The general content and approach of the consultation document itself prompted comments from those who were opposed to and those who were in favour of the creation of a new offence. As these comments fell outwith the scope of the individual questions these issues have been highlighted here.

Public Message

  1. Some respondents in favour of the proposals felt that to try to define some forms of pornographic material as distinct and different from others, and therefore requiring special treatment sent a message in favour of legitimising “mainstream” pornography.

“Although the proposed new legislation would contribute to bridging the gaps between current legislation, it will leave significant cracks and will not be sending out the fundamental and crucial zero tolerance message that is needed to combat this genre of crime.” (Response no. 50)

“By legislating against ‘extreme pornography’ it is creating two tiers of pornography; one tier that is wrong and a second that is acceptable, therefore legitimising the sexual exploitation of (mostly) women involved in what the consultation refers to as ‘mainstream pornography’.” (Response no. 61)

Consultation Questions

  1. Respondents for and against the proposals highlighted their disappointment at the phrasing of the consultation questions.
  1. Several of the respondents felt that the definitions outlined in the consultation paper were poor and lacked clarity on what the legal position would be.
  1. In addition, most of the respondents who identified themselves with the BDSM community and most of those who responded on behalf of civil liberties organisations felt that the consultation questions were loaded in order to solicit a positive response to the consultation.

“I am disturbed that the tone of the consultation document is not neutral. It is actually structured in such a way as to lead ill-informed readers to the conclusion that some action should be taken despite confirming elsewhere in the document that no evidence can be found to connect extreme imagery with actual violence.” (Response no. 69)

“These consultation questions appear to be rigged in order to obtain the answers the government wants!” (Response no. 34)

“Although I have answered the questions as asked, I am very concerned that they seem heavily loaded in favour of creating an offence and punishing it harshly. In particular, asking “which penalty option do you prefer” is totally inappropriate, as it prejudges the issue of whether to legislate at all.” (Response no. 45)

  1. A few of the organisations representing the justice system in Scotland felt that it would be inappropriate for them to comment on the consultation document stating that they felt the issues were matters of policy development and therefore outwith the scope of their organisations. (Scottish Court Service (40), Faculty of Advocates (12), Sheriff’s Association (25)) The Scottish Court Service did however highlight that additional costs may arise if a new offence is created.

References to Children

  1. A number of respondents in these groups also felt that the placement of paragraphs on child pornography immediately before the consultation questions was a deliberate attempt to skew the views of respondents in order to encourage them to consider the issues addressed in the consultation in the same light as child abuse.

“It is morally wrong to attempt to put consensual BDSM activities in the same category as crimes such as bestiality, necrophilia and child pornography.” (Response no. 30)

  1. Respondents to the consultation were universal in their condemnation of indecent images of children.
  1. Other respondents highlighted the need to protect children from any danger of being exposed to material of the type described in the consultation. Views expressed around this were varied. Many people who were in favour of the proposals stated that they felt it was important that people in general and children in particular could use the internet without fear of coming across images of the type described in the consolation paper.
  1. On the other hand, responses both in favour of and opposed to the creation of a possession offence indicated that they felt there were sufficient parental controls available for the internet, and that parents should themselves be taking proactive steps to supervise internet use and prevent children coming into contact with such images inadvertently.
  1. Some of these responses also made the point that while there is undoubtedly an abundance of pornography on the internet, more specialist pornography like BDSM and fetish sites, as well as the more hardcore sites are unlikely to be found by accident, so the risk of accidental exposure is in their view minimal.

"This material is generally of a highly specialised nature and considerable effort has to be made to find it. As such it's quite unlikely that general web use will result in anything more than superficial exposure to the innocent or unwilling.” (Response no. 4)

The Murder of Jane Longhurst

  1. The murder of Jane Longhurst which was referred to in paragraph 10 of the consultation document prompted comment from those in favour of and those opposed to the proposals.
  1. Many of those responding against the proposals cited the reference to this case in the consultation document as evidence of a “knee-jerk” reaction by the government and indicated that they felt it inappropriate that this be used as a driver behind new legislation.
  1. A number of the respondents also expressed the view that as violent sexual crime existed before the Jane Longhurst case, any new legislation introduced to tackle these kinds of images would not be effective in preventing similar crimes as anyone prepared to commit such a horrendous act would have scant regard for new legislation.

“There was sexually motivated crime long before the internet came into being and I believe that the proposals are a knee jerk reaction to one high profile crime.” (Response no. 30)

“ This proposal is a knee jerk reaction to a particular well publicised case that will wrongly punish many people and not stop those with genuine intent from committing crimes.” (Response no. 66)

  1. Other respondents also indicated that they felt it would be unwise to press ahead with a programme of legislation to a timetable set in motion by this tragic event. They stressed that in order to come up with effective and enforceable legislation a considered and evidence based approach should be taken.

“The necessity to be seen to respond to the Longhurst petition must not result in precipitate action that could fail to accomplish the desired outcome.” (The British Computer Society, Response no. 285)

  1. Having said that, a number of the responses in favour of the proposed legislation cited the Jane Longhurst case in their responses.
  1. A petition was submitted by the Jane Longhurst Trust to the Home Office in response to this consultation. As the petition was addressed to the Home Office, these responses have not been included in the Scottish analysis however they will be taken into consideration in the Home Office analysis of consultation responses.

Comments from the BDSM Community

30.  A number of the BDSM respondents criticised the Home Office and the Scottish Executive for not taking the time to gather evidence and gain an understanding of BDSM as a sexuality. They highlighted the fact that BDSM is a well organised, well run and responsible community. Details of the protections which are in place on BDSM community websites were highlighted as an example of how this community polices its own content and tries to ensure that anyone viewing the material is doing so knowingly. Many others stressed the point that all BDSM activity is dependent upon the informed consent of the participants and that this is paramount. The BDSM ‘safe, sane and consensual’ code of practice was also mentioned on numerous occasions.

  1. In this regard the creation and distribution of images within this community was described as being used, not only for the purposes of sexual gratification, but also for the purposes of education, to ensure that the ‘Safe, Sane and Consensual’ code of practice is adhered to and that those experimenting with new techniques can do so safely. With this in mind the BDSM community felt that it was vital that any change in the law would not criminalise the possession of or prevent the distribution of this type of material.

“The consultation document refers to one tragic case where a convicted murderer was linked to extreme images he accessed from the Internet. I understand that man was not a member of our community and BDSM itself did not feature in the case. Yet the consultation document proposals could profoundly affect our community, our lifestyle and our human rights to view or possess images which reflect our lives, our sexuality and our artistic tastes.” (Response no. 69)

Responses to Question 1 – Do you think the challenge posed by the internet in this area requires the law to be strengthened?

  1. Responses from police organisations were generally in favour of the creation of a new offence. While the Scottish Police Federation (SPF, 37) did not wish to comment specifically on the moral aspects of the creation of a new offence, ACPOS, Scottish Police Authorities Conveners Forum (SPACF, 67) and the Association of Scottish Police Superintendents (ASPS, 78) all cited technological advances as the main reason they consider a change in the law is required.

“Existing legislation, in the main, was drafted long before the advent of the internet, and as such requires to be critically reviewed, amended, and strengthened.” (ASPS, 78)

“Members agree that the law requires to be strengthened as all of the existing statutes referred to in this consultation were drafted to protect the public from material of this nature relevant to the available means of communication at that particular point in time. The development of the Internet and other modern communication technologies has offered individuals a faster, more convenient and, more importantly, an anonymous means to collect and distribute pornography of this type.” (ACPOS, 43)

  1. The points raised by law enforcement organisations were similar to those of local authorities who agreed that technological advances required the law to be strengthened in this area. Some also stated, as three out of four police groups and the Scottish Court Service did, that it would be important to ensure that adequate enforcement provisions are developed along with any new legislation;

"…care should be taken when drafting new legislation. Unless appropriate enforcement mechanisms are put in place, then unrealistic expectations could be raised, as enforcement would be largely ineffective” (City of Edinburgh Council, 63)