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Victory for #Porntrial Victim Simon Walsh - Or Yet Another Liberty Taken by the Moral Majority?

Posted: 10/08/2012 15:52

At around 2:30 p.m. GMT theTtwittersphere -- or at least that bit of it that had been following the #porntrial topic in the UK -- erupted. Simon Walsh, who for the last 16 months has been waiting the chance to clear his name in court on charges of possessing extreme porn was found "not guilty".

That is a magnificent result, demonstrating beyond a shadow of a doubt the ridiculousness of CPS and the Met police dragging an individual through the courts, thereby destroying both their career and personal life, in respect of simple possession of images depicting activity between consenting adults.

The case, depending on your point of view was either ludicrous (an opinion expressed by many U.S. tweeters) or malicious. Could it possibly be coincidence, as civil liberty campaigner Ben Goldacre pointed out, that Simon Walsh had previously made a name for himself bringing corrupt police officers to book.

Still, with this acquittal, normal service is resumed and we can all go back to living ordinary -- or not-so-ordinary -- sex lives.

That is the conventional view. Unfortunately, there is a rather darker interpretation to the outcome of this case that, far from heralding a bright new dawn, bodes ill for sexual freedom in the UK.

Viewed over the longer term, the UK courts have had considerable difficulty in policing "smut". Pass an ostensibly straightforward piece of law, such as the Obscene Publications Act, which criminalises publication of material that tends to "deprave and corrupt" and - blow me! - a jury only goes and spoils things. For on the law's first major outing, against "Lady Chatterley's Lover", a jury refused to convict.

And so it goes, with some failure, some success, and the overall tally of OPA prosecutions dropping away over the years.

Various factors contributed to its erosion. Certain channels, certain focuses became subject to other law. Child abuse imagery now has a whole legal chapter to itself. Video Recordings are legislated separately.

And in 2008, following a case in which it was claimed but never proven that "extreme porn" led to a particularly awful murder, the government moved to dam the tide of internet filth by making it unlawful to possess images that depict extreme porn. The latter is defined as images of bestiality, necrophilia or realistic porn featuring risk to life or risk of serious injury to breasts, genitals or anus. Hold on to that definition.

At the time this law was passed, we were assured that it would be used only in the most extreme cases - 30 prosecutions a year were estimated - where real harm was involved. Three years later - and last year's tally alone included over 1300 prosecutions and an unknown number of cautions (in English law, the equivalent of a conviction).

Many of these were never tested at law. They are the judicial equivalent of bullying, as increasingly the Police seem thoroughly uninterested in the letter of the law, using it - as parliament was mendaciously assured they would not - as a means to punish those who are guilty of no other offence. But now, even single images sent as a joke and never actually viewed, can land people with a criminal record and entry on the sex offenders' register.

Horrid stuff, made all the worse when you factor in the way that even in the silliest cases - in one instance, a prosecution for "animal sex" of an image featuring a man in a tiger suit! - the CPS regularly wait until the door of the court room before acknowledging they haven't a case. This may be all in a day's work for them - yet from the perspective of the defendant, it means, as in the Walsh case, a life on hold, a life ruined, while the lawyers play judicial games.

The real issue, though, is how UK law constantly evolves. The Video Recordings Act was possibly extended by judicial ruling to police not just games and DVD's that might cause harm...but those that cause "potential" harm. A similar slippage is constantly on view in other areas of the law governing sexuality: laws against real abuse, real violence, real harm, all too often shift along the way to realistic depiction of these. Or potential harm, as was much in evidence during the latest trial.

Also slipped in at the end was as neat a piece of judge-made law as ever seen. Remember that original definition of "extreme porn": the one involving "serious injury to anus, breasts or genitals"? Summing up, the trial judge explained to the jury that when the law talked of injury this could refer to 'physical, mental or moral harm'.

At risk of being ever so slightly facile: some people do indeed appear to think with their genitals. But translating injury to genitals into mental or moral harm is a new one - and possibly, whether intended or not, the legal establishment's answer to the gradual dwindling of the OPA.

Because if the OPA is dead, extreme porn law certainly is not. And by extending it to cover the mental and moral, we have essentially travelled full circle: re-criminalising that which might deprave or corrupt - only now extending that provision to possession and not just publication of material.

 

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