The Criminal Justice and Licensing Bill (CJLB) Background
The CJLB was proposed 25 September 2009 by Kenny MacAskill. The bill was published on the internet for the purposes of gathering views on the various proposals it contained. The section on “Extreme Pornography” was brief and lacked clarity, but by that time Westminster had already published the guidance for their Criminal Justice and Immigration Bill, so we had an idea of what to expect, and encouraged people to send letters and emails accordingly.
On 6 March 2009, The CJLB was published and entered Stage 1 of the legislative process. The extreme pornography section is section 34, and appears on page 56 of the Proposed Wording of the bill , page 26 on the Explanatory Notes and page 24 on the Background Information and Policy Memorandum.
In general, the wording of the bill is quite similar to Westminster’s. That said, there are some bustle differences.
“Obscene” is no longer qualified by “grossly offensive, disgusting” in the requirements. (CJIA: 63:6b; CJLB: 34:51a:2b) This definition of “obscene” is based upon the 1982 Civic Government (Scotland) Act, which relies upon the ever-changing common law definition of “obscene”. The good news is that perhaps one day in the future, consenting adult sexual images will no longer be legal and hence not fall under this law. The bad news is that we’re not there yet. The Scottish Government justifies this act by saying that “it only bans images which are already illegal” under the old notion of obscenity. Gery McLaughlin said in interview that this law is supposed to allow police to prosecute and arrest people with large collections of extreme images that they can’t prove were for distribution. So this law is nothing but a reason for police to feel good about themselves?
Another small difference is in the inclusion of the phrase “and any sounds accompanying it [the image]” (CJLB: 34:51A, 4) when describing the effect of the “context” of the image. This phrase is not included in the CJIA. The effect of the addition of sounds is that the image may indeed be deemed to not be pornographic. Gery McLaughlin stated that an image with an “academic” soundtrack might, as an example, not be illegal. This coincides with the Explanatory Notes for the CJLB providing the example of “educational purposes” being a non-pornographic work. One might logically infer that BDSM safety material would be included in this “educational” category, but Gery McLaughlin denied to comment on the legal status of BDSM safety material, suggesting that it still might be illegal. This must be clarified.
In the list of acts which are to be considered “extreme”, Scotland has made much of the addition of “rape or other non-consensual penetrative sexual activity” non-violent or otherwise. This appears to be a sort of one-up-manship. They did not flout the change from “serious” to “severe” and the removal of “a person’s anus, breasts or genitals”. It is unclear what the difference is between “serious” and “severe”. Under a more pessimistic interpretation, the Scottish law is much more draconian than the Westminster law and covers a wider range of activities. Under a more optimistic interpretation, the two laws might cover different activities altogether, meaning that an amputation would be illegal in Scotland but not in England, while genital piercing would be illegal in England but not in Scotland. Again, more clarification is needed.
Even the word “explicit” takes on a slightly different meaning in Scotland. Both the CJIA and the CJLB require that the image be “explicit and realistic”, and both use the phrase “appears reasonable person… to be real” (the CJIA uses the phrase in the law itself; the CJLB in the Explanatory Notes). Yet the CJLB Explanatory Notes include “clearly seen, lifelike and convincing” which could remove from censorship images that are pixelated, in shadow, and are obviously fake. A single breath or wink in a necrophilia film might be enough to make it legal. They are quick to follow up the lessened “reality” with the statement “It is not required that the act itself is real,” yet the additional requirements for explicit to narrow down the amount of banned material. The drum rolls on: more clarification is needed to protect our rights.
In sections 64 and 51B of the CJIA and CJLB, there is little difference in how the two laws treat classified material. The CJIA includes the words “recording of”, whereas the CJLB merely says “extract”. It is unclear what this means. The CJIA seems to be aimed at TV and film (it also mentions advertisements), yet the CJLB seems to be more vague. The CJLB does seem to have a firmer grasp on digital storage, however. They also include “how the image was stored”. So presumably if one clip is titled “Hostel2-clip1” and is stored in a folder marked “random movie clips”, it will be treated differently than the same clip titled “HotHostel2TortureScene” kept in a folder marked “Wank Fodder”.
The defence section is much harder to consider. Essentially, the Scottish CJLB allows a person to have a picture of themselves if the act is faked. The act must be fake (not involve a real corpse, animal, animal carcase, severe injury, or non-consent). The person possessing the image must have directly participated in the act depicted. The burden of proof is upon the possessor, not the prosecutor.
This is absurd because not all tops/dominants appear in the images they participated in; usually it’s just a picture of a bruised bottom. It is very difficult to prove you participated in the image if you’re not in the image. Further, it is difficult to prove consent when the partner has left (another reason to destroy those pictures of your ex).
In addition, the CJLB is quite explicit that it is illegal to share the legal photos of yourself with other people. It should be legal to share legal pictures of yourself. This creates a policy of “don’t ask don’t tell” requiring people who enjoy these hobbies to remain isolated and in secrecy, which will lead to depression and other mental problems, possibly including criminal activity.
This “defence” is rubbish. Who only keeps pictures of themselves? And who doesn’t like sharing pictures of themselves?
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.