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Extreme porn now illegal north of the border

Scotland falls into line

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If you thought you could hide your extreme porn stash in a secluded location north of the border – think again. For this week, the Scottish Parliament finally fell into line with its English counterpart south of the border, passing laws - included within the Criminal Justice Bill - making it a criminal offence to possess images that were extreme and pornographic in nature.

Like the English law on this topic, passed in May 2008, the Scottish law will focus on images that are realistic, pornographic and of an extreme nature.

In addition, however, the Scottish law adds an extra clause, bringing within this Bill images which are believed to depict "rape or other non-consensual penetrative sexual activity".

Quite how useful this clause may turn out remains to be seen. The Register has analysed nearly 50 cases that have been brought in the rest of the UK since the Westminster law went live. Our analysis reveals that in the vast majority of cases, the extreme porn in question featured bestial imagery ("human-on-animal" action) and not "human-on-human" action of the sort that the law’s proponents claimed it was designed to act against.

We believe that there are two reasons for the low incidence of such cases. First, in the days after the law went live, the Association of Chief Police Officers (ACPO) advised English police forces not to police this law pro-actively, so the majority of convictions have been in association with other offences: they have been "add-on" charges. Second, while it is relatively easy to identify bestial images, the threshold for identifying human-human extreme porn is far more difficult, and hard-pressed police and prosecution may have better things to do with their time.

Few cases have been defended, but where they have the end result has been embarrassing for the authorities.

According to Becky Dwyer, Convenor for Consenting Adult Action Network (CAAN) Scotland, the fact that such a large number of cases have now been prosecuted in England would have been good grounds for the Scottish Parliament to wait a little longer.

As far as Becky is concerned, this is not a neutral law. She told us: "The law does not appear to be doing what it is meant to do – but the negative side-effects are themselves extreme, with bdsm websites encouraging practitioners towards safer play being taken down over the last year and a half.

"It may not be too much of an exaggeration to say that this law has made the world a far less safe, more dangerous place."

This call for a pause was echoed by Patrick Harvie MSP, one of the few Scottish politicians to publicly speak out against the extreme porn clauses. Intervening toward the end of yesterday’s parliamentary debate, he said: "[Cabinet Secretary Kenny MacAskill] will be aware that the measure [on extreme pornography] that exists in England and Wales is having no effect in reducing the production of genuinely violent or abusive images, but is being used just as a top-up charge in a small number of cases in which the most serious offence is rape or sexual assault, which attract a higher sentence.

"If we end up in a similar situation with the charge being used in a similar way in Scotland, as a mere top-up, will we not have to look again at whether it serves any purpose?"

Responding for the government, MacAskill indicated that he would be happy to discuss that issue after the debate. However, the fact that he then appeared to suggest that the legislation would "protect our children from sexual perverts", has been described by Harvie as "unhelpful".

Nonetheless, Harvie told us that he would take up the opportunity to discuss the extreme porn provisions with MacAskill, looking particularly at how the equivalent provisions are used south of the border. He concluded: "It would serve no purpose whatever if we were simply to reproduce a situation in Scotland which seems to be failing elsewhere."

Ironically, as the remainder of the UK now falls into line, the last censorship-free zone in the British Isles may be the Isle of Man - or even the Channel Isles - both areas that have in the past been lambasted on mainland Britain for their quaint approach to law-making. ®

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