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
Photo: Getty
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What's happened to the German left?

For a fourth successive election, the left seems to be failing to challenge the status quo.

When Germany goes to the polls this weekend, Angela Merkel is expected to win a fourth term in office. Merkel has maintained her commanding lead in the polls on 37 per cent, while her closest competitor, the Social Democratic Party (SPD) has been relegated to, at best, a possible coalition partner. 

The expectation that the status quo will continue has left commentators and politicians of all stripes asking: what has happened to the German left?

Lagging behind in the polls, with just 20 per cent of the country's voting intention, Martin Schulz’s SPD has slumped to its lowest level this year only days before the vote, according to the latest poll by Infratest dimap for ARD television.  

Even the prospect of a left-wing alternative to a Merkel-led coalition appears to have become unpalatable to the electorate. An alliance between the SPD, die Grünen (the Greens) and the socialist party die Linke (the Left) would not reach the threshold needed to form a government.

One explanation for the German left's lack of impact is the success Merkel has had in stifling her opposition by moving closer to the centre ground. Over the last four years, she has ruled a grand coalition known as GroKo (Große Koalition) with the centre-left SPD, leaving many of its voters believing their party was no longer any different to the chancellor's conservative Christian Democratic Union (CDU).

Rolf Henning, 34, has been a member of the SPD since 2004. Campaigning in Pankow, a diverse area of eastern Berlin which has traditionally voted on the left, he told the New Statesman that although the coalition had enabled the SPD to push its social agenda, the party did not receive any credit for it.  

“It is now hard to motivate people to vote for the SPD because people think it will not make any difference. If we were to enter a coalition again with Merkel and the CDU then our support base will drain even further,” he said.  

Another grand coalition between the CDU and the SPD is very much on the cards, as Merkel is unlikely to win an outright majority. But while the arrangement has seemingly worked out well for the chancellor, its benefits for the SPD seem rather less certain.

“The political strength of the left is an illusion," says Gero Neugebauer, a political analyst and a former senior researcher at the Freie Universität Berlin, "The SPD did a good job in the coalition to push issues of social policy and family policies, but Ms Merkel took the credit for a lot of it. People saw the car and the chauffer rather than paying attention to the engine."

In 2015, under pressure from the SPD, the Merkel administration introduced a minimum wage in Germany, a benchmark for many in the party which yet did little to gloss over the SPD’s image. On the contrary, Merkel’s election campaign sought to win over disillusioned SPD voters.

According to Neugebauer, the left-wing parties have failed to work together to form a real alternative coalition to the Merkel administration. He warns that Germany’s left-wing camp has become “an illusion” with “virtual power”.

For a short-lived moment the election of Martin Schulz, the former president of the EU Parliament, to head the SPD, brought hope to the idea of a left-wing coalition. 

Stefan Liebich, a member of parliament for die Linke representing the Pankow district, says the SPD initially rose in the polls because people thought there could be an alternative coalition to Merkel. "But then the SPD made a lot of mistakes and they were wrongly told they would lose support if they worked with us," he adds.

"Now nobody believes a left-wing coalition could ever happen because the SPD is so low in the polls.” 

Before Schulz took over the SPD, few believed that after four years in the coalition government the party had a good chance in the upcoming election. “But Schulz arrived and said ‘I will be chancellor’ and it was like a phoenix rising from the ashes,” says Neugebauer.

Schulz revived the social-democratic tradition and spoke about social justice, but the delay of his election programme left many wondering whether he would be able to walk the walk – and his popularity started to fall.

“Compared to Merkel, he became less credible and less trustworthy,” says Neugebauer.  

The SPD are, of course, not the only left-wing party running. Back in Pankow, Caroline, a lawyer and a long-time SPD voter said she was considering voting for the more left-wing die Linke because she did not want to give her ballot to Schulz.

“There is something about him, he is not straightforward and he is too much like the CDU," she continues. "As the head of the EU Parliament, Schulz was good but I don’t think he has what it takes to tackle issues in Germany."

For Ulrike Queissner, also a Pankow resident, the SPD’s lurch to the centre convinced her to vote for die Linke: “The SPD has become mainstream and part of the establishment. It has become too close to the CDU and has no strong position anymore.”

Stable at about 8 per cent in the polls, die Linke is still trailing the extreme-right Alternative fur Deutschland (AfD), which is anticipated to win between 8 and 11 per cent of votes. This means it would enter the German parliament, the Bundestag, for the first time, becoming its third biggest party.

At the core of die Linke’s manifesto is the redistribution of wealth, a peaceful foreign policy and measures to stamp out the remaining social rift between east and west Germany.  

The party strives to challenge Merkel’s feel-good slogans by putting the spotlight on the discrepancies between rich and poor, and east and west.

 “When we look around to Portugal, Spain, Italy, and maybe even to the UK, we seem happy," says Liebich. "We don’t have an exit [from the EU] debate or a high unemployment rate. And yet, there is a part of Germany that sees that things are not going so well."

And for some of die Linke’s eastern electorate, immigration is at the top of the list of grievances, putting pressure on a party which has always defended an open door-policy – something Liebich acknowledges.

“In Berlin a majority of voters say they are open to people who need help, but in the eastern states, where we have a high unemployment rate and a lot of people who are not used to living with people of other cultures, there is a lot of anger."

That will add to concerns that large numbers of silent AfD supporters could create a surprise in the traditionally left-wing area of east Germany, where the far-right party is capitalising on the anti-immigration sentiment. The left seems to be squeezed between Merkel’s move to the centre ground and the AfD’s growing populist threat.

For Neugebauer the prospect of AfD members in parliament should force left-wing parties to sharpen their political lines, and form a consensus bloc against the rising extreme-right. The silver lining lies in the hope that all three left-wing parties – die Linke, die Grünen and die SPD – find themselves together in the opposition.

“Then, there would be an opportunity to start a conversation about what the parties have in common and start working together," he says. "It would be a chance for the German left to find itself again and create a vision for co-operation.” 

And yet, commentators still anticipate that at least some part of the left will end up working with Merkel, either through a grand coalition with the SPD or a three-way “Jamaica coalition”, with the pro-business FDP and the Greens. For the German left the time for cooperation, and a shot at taking charge of Germany's future, may still be some years away.