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

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

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

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.