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Clause 16 - Possession of pornographic images of rape and assault by penetration

Criminal Justice and Courts Bill – in a Public Bill Committee at 2:15 pm on 18th March 2014.

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Photo of Dan Jarvis Dan Jarvis Shadow Minister (Justice) 2:15 pm, 18th March 2014

I beg to move amendment 14, in clause 16, page 16, line 30, leave out from ‘explicit’ to end of line 31 and insert

‘way, real or simulated depictions of either—’.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

With this it will be convenient to discuss the following:

Amendment 29, in clause 16, page 16, line 31, leave out from ‘of’ to end of line 37 and insert

‘the portrayal of sexual activity which involves real or apparent lack of consent,’.

Amendment 28, in clause 16, page 16, line 37, at end insert—

‘(c) sexual activity where one of the participants is portrayed in such a way as to make them appear under 18;

(d) a person participating in a sexual activity with someone who is depicted as a member of their immediate family; and

(e) sexual activity incorporating sexual threats, humiliation or abuse which do not form part of a clearly consenting role-playing game.’.

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Justice)

First and foremost, may I wholeheartedly welcome the inclusion of clause 16 in the Bill? I thank the Government for introducing this important measure.

Clause 16 will extend the definition of an extreme image in the Criminal Justice and Immigration Act 2008 to ban the possession of extreme pornographic images that depict rape and other explicit, non-consensual sexual acts. Its inclusion in the Bill is a real victory for groups like Rape Crisis South London and the End Violence Against Women coalition that have long campaigned against rape pornography. Their open letter to the Prime Minister last summer was signed by more then 100 women’s groups, academics and campaigners and has been instrumental in bringing us to this place. The Opposition know that the Prime Minister is personally committed to this proposal and wants to make it work. We are eager to work with the Government to help to ensure that we get this right and to stamp out such abhorrent images. It is in that spirit that we tabled these amendments to explore how the Bill might be improved.

The Committee will remember the evidence that we heard last week from the British Board of Film Classification, which has a key role in deciding what should be classified as sexually violent and abusive pornography. The verdict that we heard from its assistant  director, David Austin, was clear. He confirmed that some examples of sexually violent material, including violent and abusive pornography, would not be caught by the Bill. With that in mind, we feel that three issues need clarification, the first of which relates to amendment 14.

Subsection (2)(c) clearly states that an image will come within the scope of the offence if it portrays something in an “explicit and realistic way”. As Mr Austin explained, that could allow material that is badly acted, such as clearly fictional depictions of rape with actors acting a script, escaping the scope of this legislation. That could be the case even if the works include scenes of relentless, aggressive abuse, threats of physical violence with weapons and forced acts of sex. I understand that the Government plan to issue revised explanatory notes to the Bill to clarify the issue, but with those not yet published, I would very much appreciate any detail the Minister can offer on how that will be done.

The second issue is captured by amendment 28. Again, it is a drafting issue with the current wording making it clear that material would only be legal if it showed explicit content. Therefore, for example, an extreme video showing a woman being aggressively raped at gunpoint could escape sanction if it did not show any penetration. That sort of material is viewed by the BBFC as harmful and not allowed. It is unclear whether clause 16 would have the same impact.

The third issue is reflected in amendment 29. Ultimately, one of the biggest challenges in this debate is that material that is strictly prohibited offline can be available online at the click of a mouse. The Prime Minister has a clear aspiration to resolve this. Last year, he said:

“Pornographic videos streamed online in the UK should be subject to the same rules as those sold in shops.”

There is some ambiguity, however, on whether clause 16 will achieve this. Concerns have been raised, for example, about videos portraying under-age sex, many of which feature women who are over the age of 18 but look far younger and are purposely depicted as pre-pubescent. That is exacerbated by pairing them with much older actors, resulting in material that has been described as looking just like child abuse.

The Prime Minister sought to clarify whether this is an issue in his letter to my hon. Friend the Member for Kingston upon Hull North (Diana Johnson). In the letter, which members of the Committee may have seen in the Library, the Prime Minister said that it would be possible to ban this material through powers in the Criminal Justice Act 2009. However, guidelines provided by the Ministry of Justice and the Crown Prosecution Service related that legislation more to drawings and photographs than to video content.

As well as the under-age issue, there are similar concerns about material portraying incest or scenes of humiliation and abuse that go far beyond the boundaries of consent. Amendment 29 would insert three terms from the BBFC’s guidelines into the Bill. Material that fitted within those definitions would not be classed as R18 and would not be not acceptable, even in licensed sex shops. Will the Minister assure us how that legislation will be amended to close those apparent loopholes?

We appreciate that the amendments raise complex issues. For that reason, we will not press them if the Minister can provide an undertaking that the Government  will look carefully at these issues. I am sure that there is full agreement across the Committee that such images are unacceptable. Just as the last Labour Government acted to ban pornography depicting harmful and life-threatening acts, we are ready to work with this Government to send a clear message that extreme material that glorifies sexual violence is not acceptable.

Photo of Sarah Champion Sarah Champion Labour, Rotherham

It is a pleasure to serve under your chairmanship, Sir Roger. I will start by reading some of the witness evidence from David Austin:

“Yes, there are examples of sexually violent material that are not caught by the Bill. There are a number of areas of violent and abusive pornography that are not caught. It might help if I list one or two of those areas.

Clause 16 clearly talks in terms of realistic and explicit depiction of rape in pornography. We deal with quite a large number of pornographic works every year and have done for many years. Some of these feature clearly fictional depictions of rape and other sexual violence in which participants are clearly actors, acting to a script. These works may include scenes of relentless aggressive abuse, threats of physical violence with weapons and forced acts of sex. Depending on how realism is interpreted in future—certainly it has been interpreted very narrowly in the past, but I understand that the Government will amend some of the explanatory notes to the Bill on realism—that may change.

Another area where we cut porn on harm grounds under the Video Recordings Act relates to abduction scenarios where individuals are shown bound, kidnapped, struggling with bonds, and whimpering—shown as victims restrained against their will with no other context. We also cut grooming scenarios which feature the grooming of individuals portrayed as youthful, sometimes youthful and vulnerable—sometimes they may have the appearance of children, although they are not children but adults—by characters in dominant roles. Animation is another area which we cut. There is a Japanese genre called hentai which is a pornographic genre which features things like incest, underage sex and forced sex. They may be realistically animated but you could argue that they are not realistic in the terms of the Bill. The fact that animated images can be harmful is already accepted by Parliament in the Coroners and Justice Act where pseudo images of children in sexual abuse situations are illegal.

The final area relates to explicit rather than realistic. We remove from pornographic works sexually violent content that in our view is harmful, where, for example, you cannot see the explicit act of penetration but the viewer is led to believe that this is a rape scenario, albeit acted. We remove that content.”––[Official Report, Criminal Justice and Courts Public Bill Committee, 13 March 2014; c. 114, Q251.]

Can the Minister reassure us about animation? I did not realise that there was such a genre, and I am not convinced that the Bill will capture it. Is there a way that we can incorporate it?

There is growing evidence of the impact of this sort of product, particularly on young people. I have heard from young girls who see such hard-core pornographic material and are genuinely fearful of their first sexual encounter, because they think that that is what sex is about and that they ought to endure this sort of abusive experience. I have also heard from young boys who, as young boys do, when they are searching around to try to figure about a bit more about sex, stumble across this material and therefore think that this is the way they should act towards a woman. How would those young people be captured by the Bill? Would a young teenage boy who came across this material be caught by the offence? Are there ways that we can protect them here?

More broadly, I welcome the clause because it sends out a strong message that this is completely unacceptable. A number of women’s charities and child protection charities are pleased that the clause has been included, and I second that. When I asked the witnesses whether they felt that the law protected against child abuse images, they said that it did, so I am comforted by that.

Are there ways to strengthen the message that the Government are sending out that this is wholly unacceptable and to ensure that the producers are shamed, caught and convicted, so that they are unable to continue to create this—I do not know what to call it—material? At the moment, the clause seems much more focused on the person who is in possession rather than the people who create the material. I have not tabled an amendment, so I assume it is too late to weave that into the fabric of the Bill, but it would be great if at a later date the Minister could consider that. I would like the people who are creating such material to be captured by the Bill, too.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

It is a pleasure to follow the hon. Member for Rotherham, who rightly outlines the reasoning behind the introduction of this very necessary measure. It is about the detrimental effects that extreme, violent pornography has on society as a whole. It is about trying to counter a climate where this sort of behaviour is condoned and seen as somehow normal. As she rightly said, exposure to this type of violent material leads young people to believe that that is the way to behave. There is quite clearly a societal imperative for us to take action on such material.

I am interested in the Opposition amendments, particularly amendment 14, which relates to how the definition of what is realistic could be clarified. I welcome indications that the explanatory notes will be further clarified to encompass all the simulated activity that we would want to be included within the definition in the Bill. I am grateful for the evidence that we received from Professors McGlynn and Rackley at Durham law school.

I have to declare an interest: I graduated in law from Durham university, but my extra-curricular activities tended to predominate somewhat, so I cannot aspire to the distinction to which the two learned professors rose. But I am grateful to them for outlining their approach to the Bill. They quite rightly say that the use of the term “realistic” mirrors international provisions on pornography that are designed to cover both real and simulated images. They argue in support of an amendment to suggest that some clarification of what “realistic” means would be helpful. I am fairly open-minded about how we do that. It could be done in the Bill, but if my hon. Friend the Minister can assure me that there are better ways to achieve such clarity, I will be content to listen to his argument.

Clearly, this is an opportunity to fill a gap that some of us would say has existed for too long. I think that we all share the difficult aspiration for criminal law not to have to play catch-up constantly with the more alarming developments with which the otherwise welcome innovation of the internet presents us from time to time.

I hope that my hon. Friend will be able to answer some of the points raised, particularly my point about the definition of “realistic”, so that we can ensure that the measure is as comprehensive as possible and will  protect those in society who are not only vulnerable but liable or exposed to undue influence if such material is seen as normal or part of normal life.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice 2:30 pm, 18th March 2014

I think that we are all conscious of the fact that in discussing the clause and the amendments, we must strike a delicate balance as legislators. We are talking about the most extreme and disturbing images, but also those that, although distasteful to most, might not warrant the intervention of the criminal law. We must therefore be careful to balance our distaste, and in some cases disgust, against the personal sexual freedoms of consenting adults to behave as they wish without undue state interference. We must also bear in mind the existing criminal law in related areas.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

It is helpful that the Minister has started his speech by emphasising that the subject is complicated as well as difficult and often distasteful, and regard must be had to freedom of speech, even in this. He is right about that, and he is therefore balancing that against ensuring that there is a societal imperative, as the hon. Member for South Swindon said, that will criminalise types of behaviour that it is reasonable to criminalise. I have an open question for the Minister: does he think that he has got the balance right in the light of the amendments? There is only the single new offence in the Bill. I will not say that it has been done in haste, but it has clearly been done to address a specific problem. Does he think that during the course of the Bill’s passage he should think about it a bit more and perhaps make some refinements?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I think that Ministers and everyone else should be humble enough to accept that we may not have got everything right, but inevitably, wherever we decide to draw the line, there will be disagreement about whether we have drawn it in the right place. There will be those who say—they have already said it during the course of this Committee’s deliberations—that we have not gone far enough on the offence; others will say that we have gone too far. I do not think that there is a good argument that we have gone too far; we will certainly always consider whether there is further action that we can take.

In relation to the amendments, it may be helpful for me to explain why I do not support the particular direction that the hon. Member for Barnsley Central has taken, but do not for a moment dispute that his intention is to ensure that we have the right balance, exactly as the hon. Member for Hammersmith set out. I think that I indicated that amendment 14 is unnecessary, given that the clause already covers the depiction of real or simulated non-consensual penetration where that is pornographic and obscene. To come to the point made by my hon. Friend the Member for South Swindon about what is realistic and what is not, and to deal with what the hon. Member for Barnsley Central said, we intend to reconsider the explanatory notes to see whether we can bring greater clarity, particularly on the point that the offence we have in mind would cover both staged and real depictions of rape or other penetration. However, I do not believe that the wording in amendment 14 is the right way to bring that additional clarity.

Amendment 28 would extend the parameters of the existing offence. It would widen the scope of the existing extreme pornography possession offence to cover depictions that appear to portray incest, under-age sexual activity and scenes involving sexual threats, humiliation or abuse. Now is probably the best time for me to provide some background on the law as it stands.

It is an offence under section 63 of the Criminal Justice and Immigration Act 2008 to possess an extreme pornographic image. Depending on the content of the image, the offence is subject to a maximum sentence of either two or three years’ imprisonment. The offence is narrowly targeted, for good reason. Hon. Members will recall that the original offence was created by the then Government following a full public consultation, and it is deliberately targeted at the extreme end of the scale. Material prohibited includes pornographic images—images that can reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal—which are grossly offensive, disgusting or otherwise obscene and which explicitly and realistically depict necrophilia, bestiality or violence that is life threatening or likely to result in serious injury to the anus, breasts or genitals.

Photo of Sarah Champion Sarah Champion Labour, Rotherham

I am delighted to say that I did not know very much about rape pornography before serving on the Committee. I speak specifically as a woman. Research conducted by Rape Crisis in south London in 2011 looked at the top 50 rape porn websites: 78% advertised rape content involving under-18s, or schoolgirl rape; 44% advertised rape content which involved incest; 44% advertised rape content where the woman is unconscious, semi-conscious or drugged; 82% of perpetrators used restraint by force; 71% of women showed signs of visible distress; 65% of women expressed pain—but 100% of those being assaulted are women.

Ten years ago, I would have said that I was a post-feminist. I thought we were on top of this. Now I speak as a feminist because rape porn and these abuses are happening specifically to women to degrade them. As the hon. Member for South Swindon said, the corrosive effect that it is having on young people is shocking. I worry as they grow older that this abuse of women will become the norm. In its briefing to the Committee, Durham university said:

“While those who view extreme pornography will not necessarily go on to commit sexual offences, their use of such materials sustains a culture in which a ‘no’ to sexual activity is not taken seriously; in which equality and dignity are not protected”.

I share the Minister’s concerns about this and am very pleased that this legislation is going forward. However, if there is a way in which the amendments can underline what is and what is not acceptable, instead of having these broad parameters, it would help people to understand what is and is not appropriate behaviour. Anything we can do to get more support for women at a time when support for them seems to be being trampled over will be most appreciated.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I do not for a moment dispute what the hon. Lady says. I think she is right that few of us knew anything about this subject before arriving at this Committee’s deliberations and probably were better off for it. There is no doubt that the preponderance of the material about which we are concerned affects women.  I simply observe that clause 16 is not gender specific: it would permit us to outlaw that kind of material relating to men as well. I will come to her point about children later.

To conclude my remarks on the development of section 63 of the Criminal Justice Act 2008, during the public consultation, there was considerable concern among respondents and in Parliament that the offence could have a serious impact on people’s private sexual behaviour and personal freedoms. The offence was carefully and deliberately constructed with these concerns in mind. The offence focuses on the high end of the scale—for example, possession of images depicting extreme sexual violence and serious physical harm. It was never the intention that the offence should be used to censor depictions of all activities that may appear distasteful or that would not, for example, appear in a film classified by the British Board of Film Classification.

As the Committee will be aware, following a recent campaign led by women’s groups the Government have decided to extend the parameters of the offence to capture extreme pornographic images depicting rape and other non-consensual penetrative sexual activity. This is a relatively modest but important extension to the offence. It brings the offence more in line with that applicable in Scotland, but remains focused on the original intent. It is clear from what members of the Committee have said that there is concern to ensure that children are protected from sexual abuse and exploitation depicted in these images. I understand and share that concern.

I must make it clear that the Government consider the protection of the country’s children from sexual abuse a top priority, and we are always open to and appreciative of suggestions to strengthen the law where necessary. However, to extend the offence to cover depictions of apparent under-age sexual activity is unnecessary. Although images of children are not specifically excluded from the parameters of the Government’s extended extreme pornography offence, we already have a range of offences to cover the possession of indecent images of children, with suitably robust sentencing levels and much lower thresholds for the content of the images themselves. It is, for example, already an offence under the Protection of Children Act 1978 to take, make or permit to be taken, distribute, or distribute with a view to possession, any indecent photograph or pseudo-photograph— an image which appears to be a photograph—of a child under the age of 18. These offences carry a 10-year maximum prison sentence.

Photo of Sarah Champion Sarah Champion Labour, Rotherham

Would that cover animation? I do not really know anything about animation, but does the Minister think that animated images of a child would be covered?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I will answer that in a moment, I promise.

It is also an offence under the Criminal Justice Act 1988 to possess an indecent photograph or pseudo-photograph of a child under the age of 18. That offence carries a five-year maximum prison sentence. In these cases it is a matter for the jury to decide on the age of the victim appearing in the images.

Section 62 of the Coroners and Justice Act 2009 created a new offence to criminalise possession of a prohibited image of a child. That offence attracts a maximum three-year prison sentence. This comes to the hon. Lady’s concern. A “prohibited image” excludes an indecent photograph or indecent pseudo-photograph of a child, which is covered elsewhere, as I have outlined. In effect, that offence targets non-photographic pornographic images—in other words computer generated images, drawings and so on—that depict the graphic sexual abuse of children. It follows therefore that images of incest involving children would fall foul of the existing law. So I can assure the Committee that our laws are now fully equipped to deal with images of the sexual abuse of children.

In addition, although I find the depictions of sexual threats or humiliation and simulated acts of adult incest deeply distasteful, as I am sure does everyone else, there are others—competent adults—who do not share our views. In a liberal democracy, the law intervenes only when necessary. It would be stretching the definition of “necessary” to include these extensions. I do not feel that it is appropriate to broaden the terms of the existing offence any wider than the Government propose.

It is important to state that the extreme pornography offence is one of simple possession, not of publication, dissemination or broadcast. The publication of obscene material is covered by other legislation, including the Obscene Publications Act 1959, but the law should be slow to intervene in simple possession and should do so only where there is a real need. I believe that depictions of rape constitute such a need but that a wider case for prohibition is not made out. I am grateful for the support shown for our proposal across the Committee, but for the reasons explained I am convinced that it is both unnecessary and inappropriate to extend this offence to cover the images that this amendment would capture. I cannot therefore support it.

Amendment 29 would broaden the scope of the extreme pornography offence to cover the portrayal of sexual activity with real or apparent lack of consent. Again, I am afraid I think the amendment is too broad. I understand the intent, but the effect would not be as the hon. Member for Barnsley Central wishes. The amendment would have the effect of bringing within the parameters of this tightly drawn offence the possession of extreme images that depict any non-consensual sexual activity. That would arguably capture relatively low-level sexual contact such as kissing and touching. Of course, we are not here to defend non-consensual sexual activity in any form, but I do not think it is appropriate to target the depiction of the broader spectrum of such activity in this offence.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 2:45 pm, 18th March 2014

I follow what the Minister is saying in relation to subject of image. Is he sure, given the variety of means of communication that there are now—he said himself that computer-generated images are different and that animation is different—that the technical side of it is adequately but not excessively covered?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

Yes, I am as sure as I can be. The hon. Gentleman will appreciate that technology moves on and we attempt to keep pace, but of course the images  that we are talking about here are images in any form that are found in the possession of the individual. Work is ongoing with my colleagues in the Department for Culture, Media and Sport to look at some of the issues that the BBFC witnesses put before us last week, particularly around video on demand. There are points of discussion there that do not, I think, properly fall within the parameters of the Bill, but I can assure the hon. Gentleman that they are being worked on.

Finally, as I have stressed, the Government’s proposal continues, in the manner of the original offence, to target the most extreme images and those that cause the most concern. It is not the intention to capture images that could depict relatively low-level acts. I hope, in view of what I have said, that the hon. Member for Barnsley Central will feel able to withdraw his amendment.

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Justice)

As I said, the amendments were tabled in good faith, to make possible the useful and constructive debate that we have just had. I am grateful for hon. Members’ contributions and for the Minister’s assurances. He is absolutely right: there is a difficult balance to be struck, and the matter is one on which opinions will differ, but I think there is widespread agreement in the Committee and across the House that action is needed, and I am pleased that the Minister has confirmed that the Government will be looking at the explanatory notes.

We look forward to working with the Government to ensure that the clause is as effective as possible, but given the assurances received, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 ordered to stand part of the Bill.