This Section outlines the existing regulatory framework pertaining to pornographic materials in England, Wales and Scotland. As there has, to date, been no empirical research on young people’s perspectives on the legal regulation of pornography in England and Scotland, this Section discusses only the current legislation and the criticisms of these provisions. Section 1.3.1 begins with an overview of the OPA, and then outlines the main criticisms of the Act in Section 1.3.1.1. Section 1.3.2 then provides an overview of the provenance and specific provisions of the current ‘extreme’ pornography legislation in England and Wales (the CJIA 2008 in Section 1.3.2.1) and in Scotland (the CJL(S)A 2010 in Section 1.3.2.2), while Section 1.3.2.3 outlines how ‘possession’ is defined in criminal law regimes. Finally, Section 1.3.2.4 discusses specific notable elements – and resulting criticisms – of the provisions pertaining to animated and computer-generated materials (Section 1.3.2.4.1) and depictions of rape (Section 1.3.2.4.2).
1.3.1 Obscene Publications Acts
Receiving Royal Assent in 1959, the purpose of the Obscene Publications Act 1959 was to
‘amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography’ in England and Wales. In addition to the OPA 1959, the Obscene Publications Act 1964 was enacted to ‘strengthen the law for preventing the publication for gain of obscene matter and the publication of things intended for the production of obscene matter’, which amended some elements of the original OPA of enacted in 1959. For this reason, the discussion of the OPA in this Section refers to the parliamentary Acts of both 1959 and 1964, in England and Wales.
The OPA makes it an offence to ‘publish, or possess for gain, obscene articles’ (McGlynn and Rackley 2009: 246), punishable by up to three years imprisonment8. The OPA states that it is an offence to publish obscene articles whether for gain or not, while the possession offence within the OPA relates only to possession for the purpose of (presumably financial) gain meaning that – unlike the CJIA 2008 and CJL(S)A 2010 to be discussed later in this Section –
8 As McGlynn and Rackley (2009: 246) explain, ‘the CJIA 2008 increases this to five years: OPA 1959 s.2(1), as amended by CJIA 2008 s.71’.
33 | P a g e there is no criminal offence for simple possession of materials proscribed by the OPA. There are defences in the OPA that rest upon whether a material is deemed to be for public good.
Indeed, the 1959 Act ‘removed certain restrictions from texts hitherto banned as obscene or pornographic if they could be justified as art’ (McNair 1996: 11) having ‘recognised that there was a difference between sheer pornographic representation and works of art, literature or learning which may necessarily contain material which some people do not consider to their taste’ (Harris 2007: 55) – D.H. Lawrence’s Lady Chatterley’s Lover being the best-known beneficiary of the law (McNair 1996: 11).
1.3.1.1 Criticisms of the OPA
Over time the OPA has received much criticism, with many of these criticisms being directed toward the ‘test for obscenity’. Obscene materials are defined under the OPA as those which
‘whose effect, taken as a whole, is such, in the view of the court, to tend to ‘deprave and corrupt’ those likely to read, see or hear the matter contained or embodied within it’
(Hargrave and Livingstone 2006: 220). McGlynn and Rackley (2009) offer three broad criticisms of the OPA, which will inform the structure of this Section: Firstly, lack of clarity as to what constitutes ‘obscene’ materials; secondly, lack of clear rationale for proscribing materials, and; thirdly, the basis of the legislation upon subjective notions of ‘appropriate’
sexuality and expressions of sexuality.
The lack of clarity of what constitutes an ‘obscene’ material is the first main criticism directed toward to the OPA. In terms of deciphering whether a material qualifies under the legislation as ‘obscene’, the test for obscenity within the OPA relies upon whether the material has the capacity to ‘deprave and corrupt’ those consuming the material in question. However, ‘the offence itself is notoriously opaque’, write McGlynn and Rackley (2009), and ‘[no] one really knows what constitutes obscene material’. Indeed, the offences proscribed within the OPA remain framed within anachronistic terminology dating from the original Obscenity Bill of 1580 (see Robertson 1979; McNair 1996: 54-55) to that of the 1868 Hicklin ruling, which spoke of the tendency of obscene materials to ‘deprave and corrupt’: ‘[Whether] the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall’ (R v Hicklin 1868).
34 | P a g e Such ‘focus on depraving and corrupting the consumers of obscene materials clearly highlights the moralistic nature of this regulation’ (McGlynn and Rackley 2009: 246), which also, argues McNair (1996: 55) ‘reinforces the highly subjective nature of the pornography debate’ as a whole. Indeed, this moralistic terminology underpinning much of the current regulation of sexually explicit materials clearly bears the traces of conservative-Christian ideology, with the rhetoric of obscenity and capacities for depravity and corruption manifesting throughout legal discourse like a lingual accent. Furthermore, the law has not yet fully abandoned the rhetoric of its origins, with the term ‘obscene’ also being used in the context of setting out what constitutes ‘extreme pornography’ in the CJIA 2008 and CJL(S)A 2010, as will be outlined later in this Chapter.
The second main criticism of the OPA is that it fails to set out a clear rationale for proscribing materials. As the OPA’s definition of the ‘obscene’ material it proscribes focuses on whether the material has the capacity to ‘deprave or corrupt’ those exposed to the materials, this test not only uses subjective language as discussed above, but also ‘focuses on the effects on the consumer’ (Edwards 1998). Hargrave and Livingstone (2006: 175) describe this test for obscenity in the OPA as ‘an explicit effected-based test’, yet the OPA does not detail how the effects of obscenity can be quantified as amounting to sufficient causation of depravity or corruption as to regard materials as ‘obscene’ and therefore liable for prosecution under the Act. Barnett and Thompson (1996, cited in Hargrave and Livingstone 2006: 175) state that
‘the definition of depravity and corruption has been left to jurors in individual cases, but it is clear that some kind of change in mental or behavioural orientation is implied’ and it is, according to Hargrave and Livingstone (2006: 175), ‘not enough merely to have offended people, even in large numbers’ to count as causing corruption or depravity within the remit of the OPA.
However, write McGlynn and Rackley (2009: 246), under the OPA ‘there is no requirement to demonstrate harm (other than (presumably) moral harm to the consumer) and no further elucidation as to exactly what types of material might have this effect’. Indeed, the remit of what may be regarded as being ‘obscene’ under the OPA is subject to changeable circumstantial, cultural and temporal conditions, as McNair (1996: 55-6) writes:
35 | P a g e Definitions are relevant only to particular communities at particular times, while a sexually explicit image may only sanctioned as ‘obscene’ if the community within which it is circulated declares it to be so… [Continually] shifting notions of depravity and corruption… make objective, rational judgements on allegedly obscene materials difficult to make.’ (McNair 1996: 55-6).
McNair’s above comments introduce the third and final main criticism of the OPA, as discussed by McGlynn and Rackley (2009) – that is, the capacities of the legislation to be used to enact moral judgements around ‘appropriate’ and ‘inappropriate’ forms and expressions of sexuality. Herein lie two main issues: firstly, that the vague and subjective nature of the test for obscenity potentially leaves the legislation open to abuse, for example the targeting of specific sexual communities, and; secondly, that materials depicting acts that may be subject to rulings under the OPA are not necessarily consistent with the behaviours proscribed by the Sexual Offences Act 2003.
According to the Home Office (2005: 7), ‘[prosecutions] brought under the Obscene Publications Acts 1959 and 1964 have declined from 309 in 1994 to 39 in 2003’. Although ‘this may be the effect of new legislation that targets indecent images of children’ (Johnson 2010:
162 n. 10) thus redirecting prosecutions to legislation specifically pertaining to child protection such as in the Sexual Offences Act 2003, scholars have also pointed to advancing technologies to explain the gradual decrease of prosecutions brought under the OPA (Harris 2007; Hargrave and Livingstone 2006). In particular, the advent of the internet as a means to access pornographic materials complicated the tactile notions of distribution in the context of the OPA. Indeed, the internet has transformed the production, distribution, possession, consumption and availability of pornographic materials, thus urging legislators to readdress how pornography – and ‘extreme’ pornography in particular – is legislated against.
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