Porn Trial: How Consenting Sex May Be Illegal in the UK

Met Police
Coming Soon To A Bedroom Near You

Here’s a perfect illustration of how authoritarians make use of moral panics to persuade people that personal freedoms must be monitored and attacked by the state.

In 2003, a Brighton teacher called Jane Longhurst was killed by Graham Coutts. Coutts claimed that she had died during consenting sexual asphyxiation play, but the prosecution suggested that the two had not been lovers, and that she had been raped and murdered. He was convicted of murder and imprisoned. Much attention in the trial focused on Coutts’ interest in asphyxiation, and on his possession of pornographic images depicting this.

Although no evidence was provided to show that the porn had led Coutts to kill Longhurst (and indeed, such porn has become widespread without an increase in such crimes), a moral panic began over “violent porn”. The Labour government, already hugely authoritarian in many ways, first tried to ban web sites carrying “violent pornography”. When this moronic attempt at censorship failed, their next approach was even more authoritarian: to ban the possession of “violent” pornographic imagery. This was put into law as Section 63 of the Criminal Justice and Immigration Act 2008, better known as the Violent Porn Law.

Starting from the killing of one woman, and based on unfounded rumours that her killing had been linked to pornography, the UK government had instituted one of the most draconian pieces of legislation in recent British history. Now, a person could be imprisoned for downloading or possessing on video or DVD any pornography that might breach the law, even if they were unaware of the law’s existence.

The key parts of the law defining violent porn are as follows:

  • An act threatening a person’s life
  • An act which results (or is likely to result) in serious injury to a person’s anus, breasts or genitals

So for example, sexual asphyxiation could be deemed to threaten a person’s life. Although many people enjoy this act, possessing an image of someone enjoying it is now illegal. Note that the owner of the image has responsibility not just to be familiar with the law, but to make the decision as to whether is it “life-threatening” or not. In other words a video of two consenting adults engaging in asphyxiation, and causing no harm to each other, may still be deemed illegal, and result in a prison sentence for anyone possessing it.

The second provision is similarly vague. Anal fisting is an act enjoyed by many people, gay and straight. It’s perfectly legal to fist (or be fisted) so long as the act is consensual. And yet, if a photograph is taken, published on the Internet and downloaded, the person downloading it can be imprisoned.

The New Labour control-freaks have triumphed yet again: viewing of a consenting sexual act has become illegal. The government feels it has a right to decide which consenting sex acts are unsuitable for the British public. And to be clear, the key word here is consenting.

As I write this, Simon Walsh is on trial at Kingston Upon Thames Crown Court for possession of images of anal fisting. The police had raided him, found no imagery on his work computer, but then gained access to his email and found images attached to emails that he had received. The police have no evidence that the attachments were ever opened. By the fact that Walsh had simply received images of consenting sexual activity, the police and Crown Prosecution Service have decided there is a case to answer – and Walsh is facing up to three years imprisonment.

It gets murkier: in his professional life, Simon Walsh has been involved in… guess what? Prosecuting police officers who are charged with disciplinary offences. Perhaps this explains the police enthusiasm in finding pornography in his “possession” – and then proceeding with a prosecution.

I wish Simon Walsh all the best in winning his case, and furthermore hope that his victory will be a first step in revoking this ludicrous, draconian law.

The ongoing case can be following via the Twitter hashtag #porntrial. Walsh’s lawyer is Myles Jackman, who can be followed at @ObscenityLawyer and via his blog.

21 thoughts on “Porn Trial: How Consenting Sex May Be Illegal in the UK”

  1. The police gained access to his personal emails, they knew his username and password. How did this information get into the hands of the policemen?
    It’s disgusting arresting people like that. Truly disappointed that this is happening in our country. I am sure Simon will win this, and those officers will be (i hope)embarrassed.

  2. If Walsh was found guilty (unlikely providing anyone in court appreciates IT?) what would stop them firing off emails with fisting attachments to whomever they might want to put away?

  3. Simon Walsh gave his username and password to the police because as far as he knew, he had not been doing anything wrong.

    Even if fisting was illegal, he did not request the immages, search for them etc. and they were not in his history.

    Thanks to ineptitude of the police and the way they opened the emails, it is no longer possible to tell if Simon had ever viewed them.

    But still the decided to prosecute!

  4. Another example of our justice system being completely inept and behind the times.

    Even if everything else were on the side of this being illegal, having downloaded an image cannot possibly be grounds for arrest. How the hell can you know what’s in an image until its downloaded and viewed? Now, if an illegal image can be proved to have been resident on a computer and viewed multiple times that would be different but this is clearly not the case.

    It would be possible with some concerted effort to post an illegal image online, call it cutekitten.jpg and manipulate google into bringing it up when anyone googles for images of cute kittens. The police need a better IT consultant.

    To be fair though, this case goes beyond farce well before it gets to any thoughts on IT.

  5. Saying that the Violent Porn Law “makes consenting sex illegal” is tending towards moronic Daily Mail style reporting.

    I’m not entirely sure I agree that acts which threaten your a life or are likely to result in serious injury are made OK by being consensual, but fair enough there’s a debate to be had there. Labour did have a worrying authoritarian streak during their last term, and perhaps the Violent Porn Law was passed without enough public debate on issues like this. To be honest, I don’t think any Bill is passed with enough public debate. They’re mostly rammed through by vested interests or knee-jerk reactions.

    The problem is, in this article you’re citing the restrictions placed on some “freedoms” to suggest that all sexual freedoms are under threat. That’s how tabloid logic works. Are you sure you’re not subliminally picking up some traits from the morons you’re watching?

  6. Mark – “The problem is, in this article you’re citing the restrictions placed on some “freedoms” to suggest that all sexual freedoms are under threat.”

    Authoritarianism works in small steps. Try to remember that Clare Perry MP is currently trying to have ALL porn filtered by default by ISPs; also remember that the Labour govt flirted with making it illegal to pay for sex. Also note that some strip clubs are being closed down. Also note that swinging and fetish clubs operate in legal grey areas – it only takes a local change in police policy for raids to take place.

    We’re living in the most authoritarian era since the 30s, and the trends are all looking bad. This article is about one specific case, but a police force that can intervene in one man’s private life has the mindset to intervene in anyone’s. If you’re a heterosexual-monogamous-sex-behind-closed-doors-and-don’t-watch-porn kinda guy, that’s fine – but remember, a very large minority are not.

  7. All good points, and I’ll join you in defending minorities from mob rule. But I still hold that it’s a bit disingenuous and sensationalist to report that “consenting sex may be illegal”.

    I speak as a follower and supporter of yours, so I value friendly disagreement. In a previous life, I was involved in fighting the Labour government over the removal of the two-in-a-bar rule in the Licensing Act 2003. I recall a Labour peer at the time saying something along the lines of “if we allow people to sing songs in pubs without a license, then it’ll only be a matter of time before pubs are showing children the unexpurgated version of the Texas Chainsaw Massacre!”

    In all probability you’re right on this, and the knee-jerk reaction to a couple of extreme (and debatable) cases is being used as a pretext by the sex police to dictate what consenting adults get up to in the bedroom. We can certainly expect them to use disingenuous sensationalism to pursue their agenda. That’s the way most politicians seem to play these days. I just think we should be fighting this by nurturing a culture which can spot exaggeration a mile off and counters it with evidence and a cool head. Instead, I thought I caught more than a whiff of exaggeration-for-the-sake-of-effect in your headline, if not in the post itself.

    Keep up the Good Stuff though – much appreciated.

  8. Mark – the other aspect to look at is: why is Walsh being prosecuted at all? The police say it was a “fishing expedition”. What does that mean? They raided him and gained access to his email account… on what grounds?

    As I mentioned in my post, Walsh used to be involved in prosecuting bent cops. Putting aside the sexual aspect of the case, this seems to be yet another case of the police being dangerously out of control, and increasingly they don’t seem to be answerable for their actions. Some of that has been exposed by Leveson. Then again, it’s now a year since Mark Duggan’s shooting and no officer has yet been interviewed. It’s also apparent in a number of other cases I’m watching, such as this jaw-dropping example: http://ianpuddick.com/

  9. Jaw-dropping indeed. I fully share the concerns there. If we had laws and public policy based on research and evidence, and police who were accountable and followed due process, we might begin to be the country that many naïvely believe we already are.

  10. As I understand it, consensual BDSM sex between adults is illegal in the UK by the Spanner precedent which went all the way to the European Court, though the CPS have declined to prosecute since R vs Wilson (1996), aka the Doncaster Bottom Branders in which a consensual heterosexual couple were found not guilty at Crown Court.

    I think this is likely to be a test case for the deliberately poorly written 2008 ‘extreme porn’ law and it is going to entirely depend on the jury and the judge’s directions.

    I find it rather suspicious that the accused was previously known for prosecuting corrupt police officers, and also that the way the evidence was ‘discovered’ seems a bit shifty. It’s also worrying that images of something that it’s legal to consensual to do should be a gaol offence.

  11. An act threatening a person’s life? So an image of someone smoking a cigarette would be illegal? It’s fine to view a video of people having sex, but if they share a post-coital cigarette, it’s violent porn?

  12. Seems like this is a very cunning route to get people you don’t like in trouble – e-mail them something nasty, then report them to the police. Usually, that would be called a frame-up, but apparently not this time.

  13. Tweets from the court suggest some remarkable lines of questioning from the prosecution – including the suggestion that somebody who visits a sexual health clinic must have been indulging in risky sexual behaviour.

    It also suggests that much was made by the prosecution for the potential for particular sexual acts to be harmful, despite little evidence that such sexual acts, when performed by consenting sexual partners rather than during a rape or assault, are commonly harmful. “Normal” penis-in-vagina sex, done roughly with a non-consenting or resisting partner can damage the genitals; and even when done by consenting partners it can occasionally (if rarely) cause injury.

    So, as I see it, it’s not the potential for particular sexual acts to be harmful, but the likelihood that they actually will be harmful that should have been tested – and I’m not sure from the twitter reports – that it was.

    That said, of course, it is a thoroughly bad law, which should be thrown at immediately.

  14. The formulation of this law was clearly flawed, but it is not an isolated incident.
    There are also many serious issues about supervision and control of the police, far beyond those identified in this blog or the linked videos.

  15. Very good to hear that Simon Walsh has been cleared on all counts today, with the jury making their decision in very short time.

    It is bad legislation – and this will be of absolutely no surprise to anyone who had any knowledge of the consultation process before the law came into being.

    I wrote an article on that at the time (as I contributed to that process as an individual). Nobody was interested, at the time, in publishing it.

    It is as true today as it was then – if not more so – and provides an interesting introduction to the legislation in question.

    http://thevoluptuousmanifesto.blogspot.co.uk/2012/08/porntrial-little-background.html

  16. So – are pics of nipple-clamping illegal, then? (“Damage to breasts”.) The Internet is full of that sort of thing! Millions of teenagers are downloading it as we e-chat..

    I hate corrupt cops! A thousand poxes on them and may many be caught with child prostitutes and jailed as those Asian non-cops were.

    And – KROLL?!? Wasn’t that the name of a giant squid villain on the old Tom Baker Dr Who?!

  17. Notable that several years after the jury so quickly decided that anal fisting was not obscene, extreme or offensive, the act is still listed on the CPS OPA guidelines – and while the BBFC wanted to include fisting as a permitted act in the recent updates, they couldn’t because the CPS still list it as obscene.

    The UK has the most disturbingly draconian legislation against sexual differences. At about the same time that MILLIONS of women have been reading about and fantasising about kinky sex in 50 Shades, some acts have been banned by the BBFC as depraving and corrupting and owning pictures of some of the acts depicted in that book and film, if used for sexual purposes, now probably make you a sex offender if you look at them to get off from (or the authorities can prove you did, because you kept it on your computer, even if you didn’t know it was there).

    Most of today’s internet porn consists of tube sites, which host all kinds of videos and images. Even general law abding citizens who watch heteronormative, bog standard clips on such sites, could be arrested as sex offenders if someone notices they have thumbmails of something considered “extreme” (ie disgusting to the people who don’t understand sexual diversity) stored in their cache.

    Most people don’t even know about this law, whenever I tell people they are quite shocked. That Britain, always going on about “the freedoms we value”, has some of the most draconian and repressive pornography laws in the the world. Thought crime laws like this are an absolute disgrace.

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