© Informed Consent
This was sent to EHRC in October 2008.
The Case for Sexual Rights
Memorandum, October 2008.
The Case for Sexual Rights.
CAAN (Consenting Adult Action Network) was born in April 2008, in response to the present Government's legislation concerning extreme pornography. This may be found in sections 63 to 67 of the Criminal Justice and Immigration Act 2008, which will soon make it illegal for individuals to possess certain erotic images which include consensual adult acts and acted-out adult fantasies. This includes materials, which despite government claims that this is in line with the Obscene Publications Act, have never been illegal to possess before in this country and put us apart in terms of lack of tolerance from the whole of the western democratic world. The text of section 63, which defines this offence, is in the Appendix.
At the time that this legislation was passing through parliament, many serious objections were put forward, by politicians and legal experts as well as concerned members of the public. This law was not founded on any evidence of harm – an objection the government eventually finessed by setting up a heavily skewed and partial “rapid evidence assessment” to prove its case: according to Human Rights lawyer, Rabinder Singh, it would breach Human Rights, both in terms of right to privacy and the right to clear understanding of the law; it would casually criminalise millions of people for doing nothing other than looking at images. Section 63 creates an offence without victims. The law makes harmless people into criminals.
What became clear was that the government was not especially interested in listening to objections. They had no direct evidence of harm caused by the material in question: rather, they argued that demand drove supply, and by criminalising demand, they would eventually cause supply to dry up. It mistakes the nature of the material on the internet, presuming it to be almost all commercially driven: moreover, for such a strategy to work would require a clampdown so wide and so draconian that it would make Prohibition look like a model of laissez-faire. Large amounts of police time will be wasted in enforcing this law.
Beyond this, what seemed to emerge, from pronouncements by Lord Hunt, was that there was a general distaste on the government benches for material that depicted non-standard sexual activity, and that the police ought to have the power to do something about it where they found evidence this was going on. It is an ethical argument that, we believe, was not very long ago applied to gay men, by individuals who were disgusted by the simple mechanics of buggery.
CAAN's initial campaign against the extreme pornography law broadened very quickly, first into a campaign against other legislation in similar vein (most notably the Safeguarding Vulnerable Groups Act, which may bar individuals from work for mere possession of sexual material that also depicts violence); and then, against all government intervention in the bedrooms of consenting adults. If the participants are aware of the risks attached to their behaviour, we believe it is not business of the government to legislate about their sex lives.
Therefore, a campaign based originally in what is referred to as 'the BDSM community' has now broadened out to take in all those who resist government efforts to control how they express their sexuality. This is our statement of principles:
'We believe in the right of consenting adults to make their own sexual choices, in respect of what they do, see and enjoy alone or with other consenting adults, unhindered and unfettered by government.'
'We believe that it is not the business of government to intrude into the sex lives of consenting adults.'
Origins vs. Choices: Being vs. Doing
It has been suggested that individuals ought not to be penalised for their origins; however, their choices may be “fair game”. We see this argument as creating an entirely false dichotomy – as well as apparently advocating the philosophy of biological determinism, which human rights and equality campaigners have fought against for many years.
We agree that it is wrong to treat an individual differently merely on the basis of some facet of their appearance or biology, or the accident of their birth. Such discrimination still occurs and should always be opposed. However, we suspect that even more discrimination is now founded on what the law regards as indirect discrimination: treating individuals differently because of choices that they as individuals make and which are more likely to be made by individuals possessing a particular group characteristic.
Women tend to get pregnant: they therefore tend to take time out of work. Is their availability for work a choice? Clearly, there are significant strands of political opinion that would argue that it is – and therefore that the gender gap when it comes to pay is also as much the result of individual choice as discrimination against origin. The law of this country rightly discourages discrimination on those grounds, however.
Whether the origins of BDSM and fetish sexuality are genetic or not, there is very strong evidence that they are hardwired in by early socialising. By the time an individual reaches adulthood, they can as easily deny their sexual nature in this way as a gay person can deny theirs.
Nonetheless, we would argue against this simplistic classification of individuals according to what they “are”. Is a gay person a homosexual when they are celibate: is an individual who spends most of their life indulging in heterosexual activity – and then has one homosexual encounter – to be classed as “gay”? These are labels and, like any other labels, limited in their reach. We think that what we should also be focussed on is what individuals do – not just what they supposedly “are”. If what they do does not cause direct and non-consensual harm to others, then we do not see any reason why those activities need to be policed.
The government's stance at present is very reminiscent of those who once were anti-homosexual. They have a view of what a sexual 'pervert' looks like, do not like it, and are against people carrying that label. This way, intolerance lies.
The reasons why people need kinky sex are irrelevant. The only justification for restricting sexuality is the possibility of non-consensual harm to others. There is no evidence that involvement in kinky sex does increase the risk of such non-consensual harm.
The effects of de-liberalisation: the “rights of others”
The question has been posed: “How does giving individuals the right to express their sexuality freely impact on others?” It is sometimes couched in elitist terms: perhaps it is OK for a few individuals to express themselves freely, but what happens when the “hoi polloi” – the unwashed masses – have the temerity to take up this right for themselves?
Again, we would argue that this is the wrong question. It stems from an analysis that is based on prudery and a sort of bowdlerised feminism, rather than any evidence. This is the idea that society – and individuals – always progress from bad to worse: that social interaction consists of a series of slippery slopes, and that once an individual embarks down one, the end is both inevitable and awful.
It is amazing how closely this argument mirrors texts of the 1930's, warning young men (and boy scouts) of the evils that attended masturbation (or “beastliness”). It starts with masturbation – but before you know it, you are having other ideas, and will without doubt end up as an utter deviant. It would be important if there was even a shred of evidence to support it – but there isn't.
Or rather, individuals already convicted of sexual crimes often confess to a gradual slide into depravity. What else would one expect? That a serial killer wakes up one morning and decides that that is what they wish to be? Longitudinal studies across years and involving overall criminal statistics suggest that far from sexual libertarianism leading to more crime, it tends to be associated with reduced numbers of sexual offences being committed; one notable example being the study by Berl Kutchinsky [i], which recorded a drop in sex crimes following the legalisation of pornography in Denmark in 1969.
The question – “how can we justify relaxing the law on sexual activity?” – perhaps should be turned the other way: how can some individuals justify tightening the law in this area when there is strong evidence that the result will be more individuals raped, assaulted and killed? That aside, we believe the question about how upholding the sexual rights of an individual might affect others is the wrong question. The more important question is, what affect failing to uphold these rights is likely to have on society as a whole.
There are two answers to this. The first lies in a judgment handed down by the US Supreme Court in In 2001[ii], in respect of proposed restrictions on film, designed to attack the child porn industry. They eventually held that although the intention of the proposed law was benign, its negative effects – in particular, its chilling effect on speech – was a sufficient harm to the whole of society for them to reject it.
Second, a Law Commission Report on BDSM – Consent and the Law, 1995[iii] – held that maintaining the status quo, with tough laws against BDSM and related activity was counter-productive. In addition to being a blackmailer's charter, the law had two pernicious effects:
- individuals involved in the BDSM “scene” would be less likely to assist police with any inquiries;
- members of the BDSM community would adopt a more confrontational attitude towards policing.
We would argue that both these negative effects – the general chilling of speech and the alienation of the BDSM community from the authorities – are now well underway. Tragically, the chilling effect is beginning to be seen in the taking down of sites that educated individuals toward expressing their sexuality safely.
The end result of the government clampdown is likely to be not a reduction in harm, but a serious increase in it.
[i] Studies on Pornography and sex crimes in Denmark – Berl Kutchinsky, University of Copenhagen (New Social Science Monographs, Denmark 1970)
[ii] Supreme Court Of The United States: Ashcroft, Attorney General, et al. v. Free Speech Coalition et al. Certiorari to The United States Court Of Appeals for the Ninth Circuit, No. 00—795. Argued October 30, 2001–Decided April 16, 2002
[iii] The Law Commission: Consultation Paper No 139, 1995 – Consent in the Criminal Law: para 10.39 Appendix
Criminal Justice and Immigration Act 2008 section 63 63 Possession of extreme pornographic images
(1) It is an offence for a person to be in possession of an extreme pornographic image.
(2) An “extreme pornographic image” is an image which is both—
(a) pornographic, and
(b) an extreme image.
(3) An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.
(4) Where (as found in the person's possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—
(a) the image itself, and
(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.
(5) So, for example, where—
(a) an image forms an integral part of a narrative constituted by a series of images, and
(b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal, the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.
(6) An “extreme image” is an image which—
(a) falls within subsection (7), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.
(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person's life,
(b) an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.
(8) In this section “image” means—
(a) a moving or still image (produced by any means); or
(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).
(9) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).
(10) Proceedings for an offence under this section may not be instituted—
(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or
(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
Sign up to our statement of principles for the freedom of consenting adults to express themselves! http://www.caan.org.uk/sign.php
Please see our new website: http://www.caan.org.uk/