Why criminalise the possession of rape pornography?

It is time for a new law which places the cultural harms of pornography at its centre.

Hidden amongst the more high profile reforms, in the newly published Criminal Justice and Courts Bill 2014, is a proposal to extend the law on extreme pornography. This law, first enacted in 2008, criminalises the possession of pornographic images which are grossly offensive, disgusting or otherwise obscene and which explicitly and realistically depict bestiality, necrophilia or violence that is life-threatening or likely to result in serious injury.

The law specifically did not include pornographic images of rape, a gap in the law which the Scottish Government closed with its own extreme pornography law in 2010.

Fast forward to the summer of 2013 and to the successful campaign to #banrapeporn by Rape Crisis South London and the End Violence Against Women Coalition. We supported this campaign. As did 72,000 other people who signed an online petition, and the Prime Minister, David Cameron, who swiftly came on board promising to extend the extreme pornography law to include images of rape. Such pornography he said:

can only be described as extreme; I am talking particularly about pornography that is violent and that depicts simulated rape. These images normalise sexual violence against women and they’re quite simply poisonous to the young people who see them

And so to February 2014 and section 16 of the new Criminal Justice and Courts Bill. This does exactly what the Prime Minister said it would – and more. Not only is the possession of pornographic images of rape to be criminalised, but also those images depicting other forms of non-consensual sexual penetration.

This reform rightly addresses the failure of the current law to take a strong stance against the normalisation of sexual violence. Rape pornography eroticises violence. It sustains a culture in which a 'no' to sexual activity is not taken seriously, in which sexual violence is seen as entertainment, and in which equality and dignity are not protected.

A culture in which, research for the Children’s Commissioner suggests, young people, turning to pornography for guidance on sex, are engaging in risky behaviours, are uncertain as to what consent means, and develop harmful attitudes towards women and girls. Rape pornography is a form of cultural harm. And it is this cultural harm that justifies legislative action.

This is not to suggest that those who view rape pornography will necessarily go on to commit rape. Such arguments of direct, causal links between pornography and violence are over-simplistic.

Nor does our endorsement of these changes extend uncritically to the entirety of the extreme pornography laws and the proposed reforms. Further amendments are crucial to ensure both the effectiveness of the new law and that it targets culturally harmful material.

First, we recommend the inclusion of a provision requiring reference to be made to the context - description, sounds, narrative – of the image when determining whether or not it is one of ‘rape’. Scottish law already includes such a provision and it helps make it clearer which images fall within the remit of the legislation.

Second, we recommend extending the defence of ‘participation in consensual acts’. This would be a further signal that the target of the legislation is not – and should not be – private depictions of consensual BDSM activity. As we have argued elsewhere, the law currently allows for the criminalisation of many images which, when carried out with consent and produced for private use, should not be covered by this law. Extending the defence to ensure such images would not be captured by it would remedy this flaw in the current offence.

Finally, the law should include a public good defence, as in the Obscene Publications Act 1959, as this would alleviate concerns that the extreme pornography provisions extend to works of art.

In the end, however, while we welcome and support the Government’s recognition that rape pornography is ‘extreme’ enough to be included in extreme pornography law, we hope that these measures are just the beginning.

If we truly want to address the harms of pornography, what we need is a wholesale review and revision of the obscenity and pornography laws.

This would include a reform of the Obscene Publications Act 1959 and its focus on the ‘depravity’ of the consumer of obscene materials. It would entail an examination of the prosecutorial policy which continues to label as ‘obscene’ material that may be distasteful for some but is not unlawful to perform. It would require ensuring that the law is up-to-date for our technological age, particularly around the difficult questions of what ‘possession’ actually means, as well as the implications of increasingly realistic computer generated images.

It is time for a new Commission on Pornography and Obscenity, 30 years on from the Williams Report at the end of the 1970s. It is time for a new law which places the cultural harms of pornography at its centre.

Clare McGlynn and Erika Rackley are Professors of Law at Durham University with particular expertise in the legal regulation of pornography, rape law and gender equality in the legal profession. Follow them on Twitter @McGlynnClare @erikarackley.

Rape pornography is a form of cultural harm. Photo: Getty
FAYEZ NURELDINE/AFP/Getty Images
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Under pressure at home, Donald Trump will struggle to deliver what Saudi Arabia wants

Above all, the Gulf states want stability. Can this beleaguered US president bring order?

There is a nervous energy around Riyadh. Fresh palm trees line the roads from the airport, punctuated by a wall of American flags and corporate slogans: “Together we prevail.” All the street lights are suddenly working.

The visit of any American president is always a lavish affair in Saudi Arabia, but there is an optimism to this visit that evaded the Obama years and even the recent visits of Theresa May and Angela Merkel.

Yet, there are two distinct parts to this trip – Trump’s first overseas engagement as president – that will determine its success. The first is relatively straightforward. Trump will sign huge defence contracts worth billions of dollars and offer trading opportunities that allow him to maintain his narrative of economic renewal for American businesses.

For the Saudis, too, these deals will fit into their ambitious project – known as Vision 2030 – to expand and diversify their economy away from its current dependence on oil revenues. Both parties are comfortable with this type of corporate and transactional government, enjoying the gaudy pomp and ceremony that comes with the signing of newly minted deals.

The more complicated aspects of the trip relate to its political dimensions. As the Middle East continues to convulse under the most significant turmoil to envelope it since the collapse of the Ottoman Empire, what Gulf leaders desperately want is the re-establishment of order. At its core, that is what will define Donald Trump’s visit to Saudi Arabia – and the Saudis are optimistic.

Their buoyancy is borne of shared regional interests, not least curbing Iranian influence. Ever since the Arab uprisings in 2011, Tehran has asserted itself across the Levant by organising hundreds of proxies to fight on its behalf in Syria and Iraq. Closer to home, too, the Gulf states accuse Iran of fomenting unrest within Shia communities in Saudi Arabia’s eastern provinces, in Bahrain, and in Yemen.

All of this has left the House of Saud feeling especially vulnerable. Having enjoyed an American security umbrella since the 1970s, Obama’s pursuit of the Iran deal left them feeling particularly exposed.

In part at least, this explains some of the Kingdom’s more frantic actions at home and abroad – including the execution of prominent Shia cleric, Sheikh Nimr al-Nimr, and the war in Yemen. Both are really about posturing to Iran: projecting power and demonstrating Saudi resolve.

Trump shares these concerns over Iranian influence, is prepared to look the other way on Saudi Arabia’s war in Yemen, and is deeply opposed to Obama’s nuclear deal. Riyadh believes he will restore the status quo and is encouraged by the direction of travel.

Just last month Trump commissioned a review of the Iran deal while the US Treasury imposed sanctions on two Iranian officials. Saudi Arabia also welcomed Trump’s decision to launch cruise missiles against a Syrian military base last month after Bashar al-Assad used chemical weapons in the town of Khan Sheikhoun.

These measures have been largely tokenistic, but their broader impact has been very significant. The Saudis, and their Gulf partners more generally, feel greatly reassured. This is an American presence in the region that is aligned to their interests, that they know well and can manage.

That is why Gulf states have rushed to embrace the new president ever since he first entered the Oval Office. Saudi Arabia’s deputy crown prince, Mohammed bin Salman (colloquially known simply as “MBS”), already visited him in Washington earlier this year. The Emiratis and others followed shortly afterwards.

A spokesman for Mohammed bin Salman later described the meeting with Trump as an “historical turning point” in relations between the two countries. A White House readout of the meeting baldly stated: “The President and the deputy crown prince noted the importance of confronting Iran's destabilising regional activities.”

Now that Trump is visiting them, the Saudis are hoping to broker an even broader series of engagements between the current administration and the Islamic world. To that end, they are bringing 24 different Muslim leaders to Saudi Arabia for this visit.

This is where Trump’s visit is likely to be fraught because he plans to deliver a major speech about Islam during his visit – a move that has seemingly no positives associated with it.

There is a lot of interest (and bemusement) from ordinary Saudis about what Trump will actually say. Most are willing to look beyond his divisive campaign rhetoric – he did, after all, declare “I think Islam hates us” – and listen to him in Riyadh. But what can he say?

Either he will indulge his audience by describing Islam as a great civilisation, thereby angering much of his political base; or he will stick to the deeply hostile rhetoric of his campaign.

There is, of course, room for an informed, careful, and nuanced speech to be made on the topic, but these are not adjectives commonly associated with Donald Trump. Indeed, the pressure is on.

He will be on the road for nine days at a time when pressure is building over the sacking of the former FBI director James Comey and the ongoing investigation into former national security advisor Michael Flynn’s contacts with Russia.

It is already being reported that Trump is not entirely enthusiastic about such a long overseas programme, but he is committed now. As with almost everything concerning his presidency, this extra pressure adds a wild air of unpredictability to what could happen.

Away from the lucrative deals and glad-handing, this will be the real standard by which to measure the success of Trump’s visit. For a relationship principally defined by its pursuit of stability, whether Trump can deliver what the Gulf really wants remains to be seen.

Shiraz Maher is a contributing writer for the New Statesman and a senior research fellow at King’s College London’s International Centre for the Study of Radicalisation.

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