Regulation and sexually explicit media

In the UK the notion of ‘obscenity’ has played a central role in deciding what kinds of sexual representations are permissible and the ‘obscenity test’, where the jury is asked to decide whether an image or text is likely to ‘deprave and corrupt’ viewers[255], has been used to determine standards of sexual decency, morality, and taste.

Under the Obscene Publication Acts of 1857 and 1959 books such as Lady Chatterley’s Lover (1928) have been prosecuted, but increasingly juries have acquitted publishers accused of obscenity. The purpose of the obscenity act has been repeatedly debated in relation to shifting sexual norms and following the outcomes of some court cases prosecuted under the Act, there have been claims that it is out of date and irrelevant[256].

Newer legislation – section 63 of the Criminal Justice and Immigration Act (2008) – focuses on ‘extreme’ material that ‘appears to have been produced solely or principally for the purpose of sexual arousal’. This legal provision identifies material as ‘extreme’ if it is ‘grossly offensive, disgusting or otherwise of an obscene character’ and, subject to prosecution, if it is represents in ‘an explicit and realistic way’ an activity that could threaten the person’s life, or be ‘likely to result in serious injury to a person’s anus, breasts or genitals’[257].

As with the Obscene Publications Act, a number of cases have led to debate about the legislation on extreme pornography. Criticisms of the legislation note that it allows for the criminalization of the depiction of sexual practices that are legal to perform, such as fisting. It also criminalizes depictions of consensual BDSM[258]. This is particularly
problematic given that BDSM is still often misunderstood and pathologized[259], and that BDSM representations may be an important aspect of the BDSM community and a useful way of learning to conduct BDSM practices safely[260].

More recently it has been argued that legislation around extreme pornography should focus on images which portray staged or simulated consensual adult rape-fantasies. However, there is no evidence of a causal link between viewing consensual adult rape-fantasies and non-consensual sexual offences such as rape. It has been argued that such images may cause ‘cultural harm’, defined as a change in public opinion, contributing to a climate in which violence is condoned. Yet there is no evidence of a change in public opinion or of cultural harm. Images of actual rape remain evidence of an offence under the Sexual Offences Act[261].

There has also been a more general move away from the regulation of sexual images of children as a record of abuse to focus on images of fictional minors[262]. In a number of countries what can be prosecuted under anti-child pornography laws has expanded to include pseudo and virtual pornography[263]. In the UK the Coroners and Justice Act of 2009 has criminalized a wide number of images, including Japanese comic books and animated films that depict ‘grossly offensive’ images of fictional minors[264].

Section 4: Young people, Sex and Sexuality

255. Obscene Publications Act 1959, http://www.legislation.gov.uk/ukpga/Eliz2/7-8/66/section/1
256. Nelson Jones, ‘Defending Obscenity’, Heresy Corner, http://heresycorner.blogspot.com/2012/01/defending-obscenity.html
257. CJIA (2008) Criminal Justice and Immigration Act. Section 63, Possession of extreme pornographic images, http://www.legislation.gov.uk/ukpga/2008/4/section/63; For discussions, see Murray, A.D. (2009). The reclassification of extreme pornographic images. The Modern Law Review, 72(1), 73-90; Wilkinson, E. (2009). Perverting visual pleasure: Representing sadomasochism. Sexualities, 12(2), 181-198; Petley, J. (2009). Pornography, Panopticism and the Criminal Justice and Immigration Act 2008. Sociology Compass, 3(3), 417-432; Attwood, F. & Smith, C. (2010). Extreme concern: regulating ‘dangerous pictures’ in the United Kingdom. Journal of Law and Society, 37(1), 171-188; Carline, A. (2011). Criminal justice, extreme pornography and prostitution: Protecting women or promoting morality? Sexualities, 14(3), 312-333; For an overview of recent shifts in regulation see Attwood, F. & Walters, C. (2013). Fifty Shades and the law: Regulating sex and sex media in the UK, Sexualities, 16(8), 974-979.
258. See Backlash for an overview of the debates, http://www.backlash-uk.org.uk/wp/
259. Langdridge, D. & Barker, M. (Eds.) (2007). Safe, Sane and Consensual: Contemporary Perspectives on Sadomasochism. Basingstoke: Palgrave Macmillan.
260. Wilkinson, E. (2011). ‘Extreme pornography’ and the contested spaces of virtual citizenship, Social & Cultural Geography, 12(5), 493-508.
261. See Obscenity Lawyer for an overview, http://obscenitylawyer.blogspot.co.uk/
262. Stapleton, A. (2012) ‘Border Patrol: Trevor Brown, Aesthetics and the Protection of Fictitious Children’ in Attwood, F., Campbell, V., Hunter, I.Q. & Lockyer, S. (Eds.) Controversial Images; Media Representations on the Edge. London: Palgrave Macmillan, 115-130.
263. McLelland, M. (2012). Australia’s ‘child-abuse material’ legislation, internet regulation and the juridification of the imagination. International Journal of Cultural Studies, 15(5), 467-483.
264. Petley, J. (2012). Punishing the Peep Show: Carnality and the Dangerous Images Act in Mendix, X. (Ed.) Peep Shows: Cult Film and the Cine-Erotic. New York: Columbia University Press, 251-263.

Section 4: Young people, Sex and Sexuality

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