Millian Liberalism and Extreme Pornography

What is it about?

In August 2012, Simon Walsh, a prominent lawyer and former aide to London mayor Boris Johnson, was prosecuted for possession of ‘extreme pornography’. The alleged crime was possessing digital photographs depicting ‘fisting’ and ‘urethral sounding’ taken at a private all-male sex party where Walsh was a participant. The prosecution claimed that the acts depicted were extreme because they could cause serious harm. The jury heard expert evidence from a surgeon that the acts, which are relatively commonly practiced within the LGBT community, could be conducted safely. It took the jury just a few minutes of deliberation to reject all charges. Despite the ‘not guilty’ verdict, the trial came at personal cost to Walsh. Intimate details of his sex life were exposed in a public forum. Moreover, the Crown Prosecution Service continues to argue that the grounds for prosecution were sound and that the images were ‘extreme’, leaving open the possibility of continued prosecutions. This suggests a particular legal vulnerability for gay men and other sexual minorities. This is a perverse result for a law that was originally intended to address violence against women. The British government banned extreme pornography in 2008. There are now more than 1000 prosecutions a year in the United Kingdom. We know comparatively little about the circumstances of most cases, possibly because, unlike Walsh, most defendants accept a sanction to avoid public attention and the greater risk of a prison sentence. Prosecution statistics indicate that many cases involve depictions of bestiality. While bestiality raises real concerns with animal cruelty, many images may amount to harmless (if poor taste) jokes. For example, one failed prosecution in Wales involved possession of an image of a man having sex with a woman while wearing a tiger costume. I argue that this approach to regulating pornography is disproportionate to any notional public benefit, and cannot plausibly protect women’s interests or improve their social status.

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Why is it important?

My article highlights some illiberal aspects of the ban. First, ‘extreme’ is defined in terms of what the image appears to depict, rather than any actual harm done in creating the image. This means that records of acts safely performed by consenting adults can nevertheless be criminalised. Second, the law bans possession, not publication. This means that the law respects no boundary between private and public, and does not consider the context in which an image is found or displayed. These features would have a strong chance of rendering such a ban unconstitutional on first amendment grounds if the law were passed in the United States. It is somewhat less clear whether it infringes European human rights law. Regardless of where positive law stands, I argue that liberal defences of privacy and free expression extend to extreme pornography.