The Criminal Justice and Licensing Bill (CJLB)
CJLB Background
Planning for the future fight
UPDATE!
The CJLB is now in Stage 2 of the legislative process. Stage 1 was passed 12 November 2009. Section 34 about the extreme pornography was included in the law.
The good news:
The Justice Committee writes:
“We agree that the Bill is right to distinguish between the possession of an image by those who participated in the sexual activity depicted and the onward transmission of that image to third parties.”
So they accept that it is okay for a person to have a picture of themselves, and may accept the defense that the owner of the picture actually participated (though that remains to be tested).
The bad news:
The Scottish Government writes:
Our view is that there is a risk that such images normalize sexual violence and that the risk is greatest where such activities are depicted in a realistic manner. Where the image is realistic, the person possessing it may have no way of knowing that it does not depict a real image of a serious sexual offence.”
We’re idiots who don’t know what special effects look like.
The good news:
The Scottish Government continues:
“Although there is no requirement that it is actually real, the offence does not apply to cartoons or other animations which clearly do not depict real people carrying out real acts.”
So cartoons and animations are in.
The other good news:
They may not have listened to CAAN, but they show that they heard us!
http://www.scottish.parliament.uk/s3/committees/justice/reports-09/jur09-18-02.htm#16
283. Most of those who commented on this section supported the creation of an offence of possessing extreme pornography, although some argued that there is no evidence that pornography increases sexual offending and opposed these provisions as an unjustifiable intrusion into the private lives of citizens. 217
See that “some”? That’s right, CAAN is in the footnote!
And even better, section 313:
“The Consenting Adult Action Network, which opposes making possession of extreme pornography a criminal offence, questioned whether the provision for “excluded images” was appropriate—
“If the material in question causes demonstrable harm, then it is totally utterly irresponsible on the part of government to insert the BBFC exemption – and suggests a bowing to commercial (film) pressure in preference to a genuine desire to protect members of society. Further, would not most BBFC material fail the ‘realistic’ or ‘pornographic’ test once it is known that the material is from a film? There is no reason for this section to be in there.” 245
Thus ended Stage 1. Now the fun part, Stage 2, happens, with its pork-barrel amendments.
Section 34 amendments
Amendments 361, 362, 363, 364, 366
Minor changes moving the “and sounds accompanying it” to a different part of the legislation. Will not drastically affect the law.
Amendments 365, 367, 368, 369
Minor changes to the classified works section of excluded images and minor syntactical changes. Will not drastically affect the law.
Amendment 517
Adds extreme pornography to the list of sexual offences. Will not drastically affect the law.
So, overall, no huge changes to the extreme pornography section.
In summation, the Criminal Justice and Immigration (Scotland) Bill appears to have considered the arguments presented by opponents to the extreme pornography ban: safety material, sadomasochistic rights, attempts to self-censor, and more importantly subtly rejecting Spanner. They have considered these arguments, and have provided lip service, but no actual protection. The best scenario would be striking the section completely from the bill, and there are still the issues of “realistic” and “proof” for defense, and we will continue to work on that level.