Advertise

Rape Porn: When Does Pornography Become ‘Extreme’?

Rape Porn: When Does Pornography Become ‘Extreme’?

The Criminal Justice and Immigration Act 2008 (CJIA) introduced an offence making it illegal for an individual to possess ‘extreme pornography’. Prior to this, the law of England and Wales only placed a prohibition on the distribution of ‘obscene materials’. The definition of such materials encompassed pornography which ‘depraved’ and ‘corrupted’ those who viewed it.

The CJIA introduced an offence making it illegal for an individual to possess ‘extreme pornography’.

Whilst this offence offered some level of protection against the harm such materials can cause to society at large, prosecutions for obscenity became less common. This was largely due to the fact that much of the pornography which fell within this category, whilst viewed by individuals in the UK, was often produced outside the jurisdiction and obtained via the Internet. Whilst the Sexual Offences (Conspiracy and Incitement) Act 1996 and Section 72 of the Sexual Offences Act 2003 made some provision for extra-territorial jurisdiction on the courts in relation to numerous sexual offences, the law on particularly obscene pornography was considered largely ineffective.

Although the law has gone some way in attempting to protect against individuals who misuse technology and the Internet, it is still largely inadequate in relation to certain types of extreme pornography. One such category is that of ‘rape porn’.

What is ‘rape porn’?

There are considered to be two categories of rape porn:

  1. Pornography which depicts the actual rape of (mostly) women.
  2. Pornography which depicts ‘rape fantasy’: the ‘rape’ is not a rape in its legal sense, but a role play where the woman acts as if she is being raped.

Both can be easily accessed via the Internet. This article will be concerned with the first of these categories, that is, pornographic images of genuine rapes with no element of consent. Worryingly, this category of pornography is incredibly easy to find.

There is no offence which specifically covers the possession of such pornography, and, as will be discussed, rape porn is outside the remit of the current legal definition of ‘extreme pornography’. This article is not concerned with the process by which the footage has been obtained, but merely about the act of downloading these images by third party individuals.

What is extreme pornography?

Sections 63-67 of the CJIA makes it an offence to possess ‘extreme pornography’ (Section 63(1)). The Home Office consultation on this offence stated that the proposed restrictions on extreme pornographic material were based on two factors:

  1. The need to protect those who participate in the manufacture of such material, who may be the victim of crime in the creation of said material, whether or not they consent to participate in the making of the material.
  2. The need to protect society from exposure to such material.
There are three elements which must be proven for an individual to be guilty of the offence:

  1. The image must be pornographic.
  2. The image must be extreme, grossly offensive, disgusting or otherwise of an obscene nature.
  3. The image must portray in an explicit and realistic way any of the extreme acts set out in Section 63(7) (see below).

The Act defines pornography as follows:

Rape porn is a category of pornography which is readily available on pornography sites.

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 (section 63(3)).

It also defines an ‘extreme image’ as an image which is ‘grossly offensive, disgusting or otherwise of an obscene character’ (Section 63(6)(b)), or an image which portrays (Section 63(7)(a)-(d)):

  • An act which threatens a person’s life.
  • An act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals.
  • An act which involves sexual interference with a human corpse.
  • A person performing an act of intercourse or oral sex with an animal (whether dead or alive).

‘Image’ includes a moving or still image produced by any means, or data which is capable of being converted into an image (Section 63(8)).

To summarise, extreme pornography is pornographic material which is grossly offensive, disgusting or otherwise obscene (Section 63(6)(b)) and realistically depicts life threatening injury, serious injury to an individual’s breasts, anus or genitals, bestiality, or necrophilia (Section 63(7)(a)-(d)).

Does the law offer sufficient protection against rape porn?

Rape porn is a category of pornography which is readily available on pornography sites. There are many websites dedicated to this type of pornography. Such websites pride themselves on the ‘extreme brutal’ and ‘homemade forced’ intercourse which they depict.

Whilst rape porn is harmful on many different levels, including its glorification of sexual violence, it may not fall within the definition of ‘extreme pornography’ as defined in Section 63-67 of the CJIA. There are two reasons for this. First, rape porn, whilst often violent, may not necessarily depict an act which threatens the victim’s life. This precludes the possibility of the images falling within Section 63(7)(a).

Rape porn is harmful to society because it glorifies violence against women and deifies the men who rape.

Second, whilst rape porn may depict an act which results or is likely to result in serious injury to a person’s anus, breasts or genitals, this may not necessarily be the case. Whilst many rape porn sites use descriptors such as ‘brutal’ and ‘hard’, the acts depicted in the porn may not be as such to cause serious injury to the aforementioned body parts. Thus, rape porn may not always necessarily fall under section 63(7)(b).

Participation in consensual acts

Section 66 of the Criminal Justice and Immigration Act provides a defence to the Section 63 offence (possessing images of extreme pornography). If the individual who possesses an image of extreme pornography can prove that:

  1. He was a participant in the act depicted, and
  2. No harm, other than harm that can be seen and was lawfully consented to, occurred to any of the participants.

The defence does not apply to extreme pornography images which involve images of bestiality or necrophilia.

Is the law on extreme pornography sufficient?

Whilst the provisions in the CJIA provide much needed protection against certain types of extreme pornography, in some respects the categories of pornography which it defines are rather narrow. Thus, the phenomenon of rape porn may not fall within the four restrictive brackets of Section 63. Furthermore, the defence of participation in consensual acts is largely irrelevant given that individuals who view such images are not the individuals portrayed in the footage.

Pornographic images which depict rape are extreme pornography, but the law needs to acknowledge rape porn as a separate category as it does not necessarily fit within Section 63(7)(a) or (b). Rape porn is harmful to society because it glorifies violence against women and deifies the men who rape. Rape is a criminal offence because, in an effort to protect society against violence, the law recognises that non-consensual sex is wrong. Rape porn transmits messages that such sexual violence is acceptable and therefore needs to be explicitly addressed.

Exclusive email insights, members-only careers events, insider tips and more.