Original URL: http://www.theregister.co.uk/2009/03/16/scottish_extreme/

Scottish Parliament pr0n law faces angry opposition

Dead horse flogging farce limps on

By Jane Fae Ozimek

Posted in Law, 16th March 2009 10:45 GMT

Last week, the long-awaited Scottish extreme porn bill (pdf) was published — s34 of the Criminal Justice and Licensing (Scotland) Bill — and it hasn’t gone down well at all.

The proposal was much as expected; similar to the English version, but slightly more extreme. However, unlike the English version, which avoided the trap of appearing to criminalise pictures of people flogging a dead horse — by criminalising sado-masochism or bestiality or necrophilia — Scottish legislators have walked straight into it, seeking to make it illegal to own pictures of anyone having sex with an animal carcass.

Those familiar with the English law on this subject will be aware that it is now illegal, in England, Wales and Northern Ireland, to possess ‘extreme’ pornographic pictures. These are defined as images that show damage to genitals, breast or anus, or depict a threat to life in a pornographic context: so it is now OK to while away the dark winter evenings ogling mass murder, so long as one’s interest in the topic is purely psychotic.

The English law also criminalises the possession of pictures of bestiality or necrophilia.

Excepted are pictures in which those who possess them are also the principal actors in the pictures — a peculiar get-out, which appears to encourage the acting-out of fantasy. Pictures with a BBFC rating are also exempt — so long as you possess the film, the whole film and nothing but.

What then of the Scottish law? It is tighter than the English law in several places. Harm has been extended beyond the specific (body) parts listed in the English law.

A close reading suggests that in England, a court might permit you to possess a depiction of a consensual act that you were involved in that may result in “threat to life” or “serious injury” — the Scottish version now reads “severe” for some reason — but in Scotland, consent no longer counts.

The other area in which the Scottish law plays fast and loose with the concept of consent is in respect of “rape or other non-consensual penetrative sexual activity”. The key point here is that even if it was actually consensual, an image will be illegal if it looks non-consensual or if it appears to show harm.

An image will be judged as “pornography” — or not — solely by looking at the image, accompanying sounds, and where the image is part of the series, the context in which it appears. Intriguingly, the English version of the law makes no reference to sounds: so possibly jurors will be required to watch any prosecutions south of the border without sound.

The only positive aspect to this proposal is that the Scottish Government appear not to have attempted the English trick of creating a new definition of obscenity based on the dictionary, relying instead on the pre-existing s51 of the Civic Government (Scotland) Act 1982.

Opposition to this proposed legislation is both broader and louder than it was in England. The usual suspects are there: Becky Dwyer, convenor for Consenting Adult Action Scotland, is actively campaigning against the legislation and met on Friday with civil servants responsible for the redrafting of the legislation.

Such a meeting had not been possible until after the Bill was published, they claimed, because that might breach parliamentary procedure — but they couldn’t amend the proposal now because it was with Parliament. So much for consultation.

An academic soundtrack — including “comments about the lighting” — might actually turn porn into non-porn.

After the meeting, Miss Dwyer described herself as utterly flabbergasted. “The amount of research this team have put into the issue was pathetic. It hadn’t even occurred to them that someone participating in a scene might not be in a photo.

“Meanwhile, they have given no assurances whatsoever that BDSM safety material will be excluded on educational grounds. For a government allegedly interested in safety, this is a shameful omission.”

Unlike the English Parliament — where not a single elected member felt the interests of the sado-masochistic community warranted a voice — a number of politicians and lawyers have already spoken out against this proposal. Most prominent is leader of the Scottish Greens, Patrick Harvie, MSP, who said:

“Too much Scottish legislation still suffers from outdated and puritanical ‘anti-sex’ attitudes. The law should have a basic respect for the freedoms of consenting adults, and for the diversity of their sexualities.

“There are new proposals in both the Sexual Offences Bill and the Criminal Justice Bill which risk criminalising people needlessly, and I have already had useful meetings with the Consenting Adult Action Network to hear their concerns, and with the Cabinet Secretary for Justice to put the arguments to him.

“I will be meeting the Government again next week, and while I doubt that any radical amendments will gain a Parliamentary majority, I am hopeful that at least some improvements can be made.”

So what about the stipulations on shagging the proverbial dead donkey? Mindful of the offence that some vegetarians might take to simulated sausage sex, El Reg did ask a spokesman for the Scottish Justice Ministry how they defined an animal carcass. Did the definition, perhaps include meat products? Leather jackets?

Their answer was decidedly unhelpful. ®