Pornography essay - “Drawing upon feminist perspectives in your answer, critically assess whether the law relating to pornography is adequate.” PDF

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Essay for "drawing upon feminist perspectives in your answer, critically assess whether the law relating to pornography is adequate.”...

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“Drawing upon feminist perspectives in your answer, critically assess whether the law relating to pornography is adequate.”

Introduction: Tension – morality v the role of law. (comparable to the control of prostitution) – what should the law try to do? Should it regulate, abolish etc and if so, regulate what? Defining pornography: The Williams Committee: “[Pornography has] a certain function or intention, to arouse its audience sexually, and also a certain content, explicit representations of sexual material (organs, postures, activity, etc). A work has to have both this function and this content to be a piece of pornography.” (This committee was formed the determine the harm in porn, and they said it was negligible.) What the problems are: porn is subjective, and means different things to different people. So how do we regulate private sexual practice? Old law focused on morality, new law focuses on harm (or was meant to). Feminist perspectives Liberal – very much about privileging freedom (x ref with prostitution) -

Questions the role of law – should the law regulate private sexual activity? Take caution when law seeks to limit our behaviour based on morality. Recognises that some women watch porn, it can be beneficial. Minimum state interference. Do what we want in private (Wolfenden committee) There can be some harmful stuff but censorship is worse for society.

Radical – porn as/is violence (x ref with prostitution) Porn glorifies sexual violence, ‘rape play’, eroticises dominance – could have harmful effects on peoples attitudes toward women, consent. C McKinnon – porn sees women as sexual objects and are used and abused by men – women are portrayed in porn as wanting this. Does it contribute to the idea that no does NOT mean no? Radical perspective focuses on HARM. Liberal perspective does not. MCkINNON and the radical approach in general has been CRITICISED due to the suggestion of ‘false consciousness’ (x ref prostitution) – infantilises women.

These feminist perspectives are polarised and little room for compromise. Neither really provides the practical solution which may require something of both. How to reconcile these approaches? Old law Obscene Publications Act 1959 Governs obscenity, and indecency. Makes it criminal to publish or possess for gain obscene articles. Simple possession is not covered, so you can technically possess porn. Good: Because it targets dissemination of obscene materials – in public. Bad – does not focus on private use - What about private consumption? Can this lead to harm e.g. Graham Coutts case (Killed Jane Longhurst) and had extreme violent porn on his PC. This law is about policing public morality rather than harm. Why this is/was not good law: How do we agree on what constitutes obscene? It is subjective….. McGlynn and Rackley argue that some material is covered without clear rationale. And, vague and subjective and moralistic terms such as ‘disgust’ and ‘offence’ are used. Criticism of the law – obscenity law is inspired by conservative ideas of what appropriate sexuality is (such as coprophilia.) The OPA did allow for a defence of ‘public good’….what is that? Could be rather broad. Background to the current law The Williams Committee in the 1970s decided there was no harm to the public through porn consumption or production. BUT…..Report from 2017 “Sexual harassment of women and girls in public places” (House of Commons Women and Equalities Committee) considered a possible link between porn and harassment of women and girls. The government do not yet fully accept or recognise this link. Links between porn and violent sexual behaviour? Graham Coutts was convicted of the murder (later manslaughter) of Jane Longhurst in 2003. Home Office Consultation: On the Possession of Extreme Pornographic Material (2005)  Morality-based arguments

“to target images of suffering, pain, torture and degradation of a kind which we believe most people would find abhorrent” (p6)  Harm to women •

Document focuses on images of violence towards women

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Aims: reduce demand; protect those involved in the production of such materials.

So, the legal focus was turning away from the issue of public morality, and on to potential harm instead. The current law Criminal Justice and Immigration Act 2008 Only addresses possession – quite narrow focus. The Consultation doc indicated focus on harm to women – does the law actually do this? s.63 focuses on possession of EXTREME porn images (explicit, realistic ones) ‘Pornographic’ mean intention to sexually arouse (the statute states this) What is Extreme? ‘Extreme’ has two elements: Content-based: s63(7)(a)-(d) –

Acts threatening a person’s life

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Acts resulting or likely to result in serious injury to anus, breasts or genitals

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Acts involving interference with human corpse

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Intercourse or oral sex with an animal (whether dead or alive)

Character-based: s63(6)(b) –

Image must be grossly offensive, disgusting or otherwise of an obscene nature

This law creates a distinction between good and bad porn – this could be agued as good or bad. It at least tries to recognise that some porn might cause harm. -

Criticisms of the law

UK is first EU country to criminalise possession – so the UK has led on this (moralitybased?) Moralistic terms still being used – obscene, disgusting – what are these things, they are subjective, and are they useful tests anyway??? Why are we still using these terms when they were critiqued in the first place.

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Good things about the law

Focus on possession gives the law more reach and can now delve into the private sphere, which was ignored by the OPA. Tension between state interference in private choice and morals, but where depictions of illegal acts like rape or child abuse – perhaps there is a place for state intervention and paternalism here? Perhaps the interference with Art 8 ECHR is justified on the basis that the porn targeted depicts things that much of society would find objectionable. McGlynn and Rackley argue that the law is inconsistent e.g. bestiality law and bestiality porn. The new law does not cover production of pornography, this is only regulated by regulations (kind of like guidelines, but they do have force) in the UK. Problem of regulation production – it can be produced and held anywhere online. The new law does not have the defence of public good. There is ‘legitimate reason’ i.e. authorities may have to see the porn as evidence. When does someone ‘possess’ porn? If you have viewed something it might be in your cache, but if you have deleted it you can argue you don’t possess it. What if someone sends you something you didn’t request? Is that possession? Arguably still not enough focus on harm to women… McGlynn and Rackley stated that the 2008 Act is “a pale imitation of that originally proposed”. McGlynn and Rackley: “It is important to stress the specificity of this provision: it does not include serious injury to any other part of the body. Pornographic images of harm to the buttocks, for example, will not be covered, nor will people having their limbs broken or suffering other lasting disabling injuries (unless they can be considered life-threatening) to other parts of the body.”… “this excludes many pornographic rape images.” McGlynn and Rackley: “…despite the publication of non-statutory guidance on the sorts of images to be covered, there remains uncertainty about what images will be covered…” McGlynn and Rackley – issue of what constitutes ‘possession’? e.g. if extreme images are in the cache files, a defendant could argue they didn’t know and get away with it. McGlynn and Rackley also recognise incongruence with acts of bestiality and bestiality porn. Conclusion McGlynn and Rackley “In short, it is the harmful and violent nature of the material to which we object……rather than a fuelled moral agenda seeking to limit ….sexual materials.”...