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Scotland's porn laws: Can we talk about this like grown-ups?

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While England is very soon to begin the interesting experiment of sending people to jail for possession of dangerous pictures, the Scottish Government is only just getting its act together on the subject.

Not to be outdone, their proposed new Law goes significantly further than the English one, creating the very real possibility that travellers could depart London with nothing but legal pictures on their laptop – and pull into Edinburgh Waverley facing arrest for their hard-drive smut.

Meanwhile, as protesters against the Law collide with over-zealous Scottish filtering, a senior Scottish politician - no less than Conservative MSP Bill Aitken, the convener of the Justice Committee - has expressed doubts about the proposed legislation.

Let’s start with the Scottish proposal. The English Law criminalises the possession of material that depicts various sexual acts – in essence, those of an extreme and violent nature. As that law has moved on to the statute books, the pro-censorship lobby have regularly expressed surprise to discover that the depiction of rape is not explicitly included.

In fact, this is not quite the omission it is made out to be. In order to demonstrate that the crime of rape took place, prosecution must show that the perpetrator lacked a reasonable belief that consent was present. Recent amendments to the law have made it easier to argue the absence of reasonable belief from the facts of a case – such as where the victim was asleep or drugged. In general, though, it would be very difficult to prove the state of mind of a perpetrator on the basis of a picture or even a set of pictures.

Of course, in many cases where the sex act is accompanied by violence, it is arguable that the English Law would already apply. This, however, is not good enough for the Scots, who have proposed that their new legislation will include "rape and other non-consensual penetrative sexual activity, whether violent or otherwise". The Scottish proposal also includes a far milder test for "extreme" violence.

The mind boggles! This has either not been thought through – or is targeted at video depictions of the crime. If the latter, then unless the Scottish legislation includes an exemption for mainstream film, similar to those in the English Law, then they could soon be on a collision course with the British Board of Film Classification, which tends not to draw the line at rape.

For a country that is seen by many as much more puritan than its southern neighbour, Scotland appears capable of having a debate on the issue that is already far more grown-up and wide-ranging than took place in England. A significant article in the Scotsman set out the proposals in detail, and carried arguments for and against the Law. This included comment from Clare McGlynn, Professor of Law at Durham University (pro) and Becky Dwyer, Spokeswoman for Consenting Adult Action Network, Scotland (anti).

More significant were the concerns of Conservative MSP Bill Aitken over how the proposed new law might work. Pointing out that Shakespeare was just one dramatist well-known for the creation of violent imagery, he said: "While I would prefer that they were not too explicit, any proposal to make the watching of such scenes illegal could be seen as an attack on artistic freedom and an illiberal move."

Aitken’s comments are important, because, as convener of the Justice Committee, he will be directly involved in scrutinising the Criminal Justice and Licensing Bill, which contains these proposals, once it has been published.

Another unlikely bedfellow in the alliance against this legislation is the right-wing Freedom Association. They criticised the law for setting a dangerous precedent, in turn, drawing rebuttal from the government, that "there is already a definition over what extreme pornography is" in Scottish Law.

If this reflects the Government’s intent, then it is likely to introduce yet further confusion into the picture, as that definition is not the same as the definition now used in the English Act.

Meanwhile, leading Scottish QC Paul McBride weighed in. He said: "There's a danger that a huge number of people who watch normal adult pornography may end up as convicted sex offenders."

While high profile objectors have been getting their message across, those wishing to join the debate have been finding it more difficult. When Becky Dwyer attempted to send her response to the consultation on the matter, she found her email initially blocked by filtering software that took exception to the word "pornography". Much the same happened with the initial consultation three years ago, which suggests that the Scottish Government’s IT is slow to learn.

Meanwhile, a CAAN supporter who attempted to back up a comment on the Scotsman article with our favourite picture (NSFW) of the Satanic Sluts found their post was blocked. The Scotsman’s automated moderators don’t like "sluts".

We asked our own government’s tireless regulators what might be bounced by their software. The Home Office responded with a po-faced "We do not discuss our IT security systems."

However, the Cabinet Office were far more forthcoming. They owned up to using Blue Coat with a Websense plug-in to filter websites, "mostly for porn, gambling, and anything else considered inappropriate".

Email is scanned with MessageLabs software, with checks run for images, spam and viruses - but not bad language. They added: "Sending death threats won't automatically lead to a knock on the door from the police, but procedures exist to report threatening emails as appropriate, so it's probably best not to risk it." ®

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