The status of violent and degrading pornography is changing under English law. The new legislative approach seems to be having some success, but these revisions to the statues still need further testing in case law. We can’t be complacent about their fair enforcement, given the dangers that inevitably attend the criminalisation of (a) particular sexual preferences (and these new laws DO effectively do that) and (b) the sharing of such fluid stuff as digital information.

In the course of researching the social impact of porn in recent months, I found that Google often headed its results with chilly blue textboxes warning me that seeking out certain material was a criminal offence, or primly informing me that certain results had been withheld because they contravened obscenity laws. Considering the material that is legally available, I don’t doubt the illegal stuff is horrendous. I should be glad it is not available at the click of a mouse. Still, those text boxes made me nervous. Searching for journalism on Max Hardcore’s obscenity conviction, I was required to use keywords toe-curling enough to make me type “I am a journalist and this is research” into the Google bar and hit enter. What apotropaic force was I trying to invoke with that sentence? It’s an uncomfortable thing to think about in the wake of the Snowden revelations. I didn’t think it likely that a team of armed police was likely to break down my door – but then, I haven’t done anything to piss off anyone important lately. If we’re going to create legal consequences for accessing – or even enquiring about – explicit sexual material online, those laws will henceforth be applicable with good intent or ill – so we had better draft them with care and keep an eye on how they are enforced.

The categories of porn that are actually banned under English law are deliberately narrow. Possession of child abuse images has been illegal since 1978, and even seeking such material out can result in criminal charges. Since 2008, a few categories of what the government calls ‘extreme’ porn are also illegal to possess: video or photographs of necrophilia, bestiality, life-threatening physical harm, or serious injury to the genitals, anus, or breasts. Since the law came into effect, there has been a ‘quite staggering’ number of arrests, according to Andrew Murray, professor of Law at LSE: 2236 prosecutions brought to the end of November 2011, which he estimates has probably doubled since, resulting in at least 3500 convictions Murray echoes the concerns of BDSM advocacy groups like Backlash, that S.36 (the relevant part of the Criminal Justice and Immigration Act) might be used by unscrupulous police to go on ‘fishing expeditions’ in the browser caches and hard drives of people they wish to compromise. The case of gay politician Simon Walsh, who braved a humiliating public trial to clear himself of an S.36 charge, suggests this law is open to abuse, and must be applied with caution. There is evidence to suggest LGBTQ and BDSM sexualities are more vulnerable to opportunistic S.36 prosecutions.

On the other hand, most convictions under this section are for bestiality material, which surely fails our culture’s minimum Millsian test for sexual gratification: that it should be a matter for consenting adults. So it seems that, in the overwhelming majority of cases, S.36 is being correctly applied. This would nevertheless be cold comfort to an individual who was prosecuted out of malice.

Critics of S.36 argue that the identification of extreme porn material should depend more on issues of consent and context, as it does in Scottish law. This would help to distinguish ‘harmless’ porn depicting physically-punishing-but-consensual sex from that which celebrates genuine distress and humiliation. I argued in my article, as have many feminist commentators before me, that porn that shows people willingly subjecting themselves to pain and degradation is problematic in its own way – especially if it is watched frequently, especially by the very young. But if we are going to formulate a collective response to that, it should apply equally to people (and to porn) of all sexual orientations. If we accept that some porn is degrading and extreme, to the point that it might be harmful to the viewer’s attitudes, that either means banning all hardcore material, even the most cerebral feminist pro-queer stuff (however that is defined by this or that subjective point of view), or it means thinking about exactly what contextual cues code a sexual act as violent and degrading, and how we are going to set such pornography apart. Anal fisting, for example, is just a thing two bodies can do. It might not be everyone’s cup of tea, but if done properly (and that involves a lot of lubing and stretching that almost always happens off-screen in mainstream porn) the risk level for injury is put within acceptable bounds, and many people choose to include it in their sexual repertoire. In order to code this act as degrading or sadistic, ‘extreme porn’ relies on a range of cues that create a certain atmosphere. Subtleties like these are very difficult to fix in legislation, and would no doubt be time-consuming to evaluate case by case. It may not be easy to include considerations of context and tone in obscenity law, but ignoring them is not an option – unless we are prepared to tolerate the disproportionate criminalisation of queer and BDSM sexual expressions.

To be clear, in no way do I think queer people are naturally kinkier than straight people. But we still, as a culture, tend to rank the ‘extremity’ or ‘perversity’ of sexual acts by heteronormative standards that privilege reproduction over other motives for having sex. For example, blowjobs are either ‘dirtier’ than p in v, because not required to make babies, or an acceptable virginity preserver, because the only ‘real’ sex is the sex that makes babies. Gay sex is obviously outside that system, so already ‘queer’ – and this is more threatening, of course, with gay male groupings than with lesbian ones, since gay male sex involves the misuse of that life-giving magic wand, the penis.

That means that many of us, including police, legislators and juries, are still more likely to see queer sex, especially between men, as obscene. Perhaps this also makes people who engage in queer sex more likely to essay a broad range of sex acts, props, and erotic attitudes that stand outside the baby-factory hetero order, since they’re already outlaws (I remember when I first travelled to the UK in the mid-2000s, emerging from my liberal cocoon in world’s-biggest-pride-march Sydney, being shocked at how frequently gay men were reduced synecdochically to their anus-penetrating penises via epithets like ‘benders’, ‘bummers’, and (most tellingly, I think) ‘arse bandits’) (what are bigots going to call gay men now that ‘persuading’ your gf to do anal is the new gold standard in successful heteromasculinity? Who aint a bender? Tell me that) (I’m also aware of the ambiguity between the transitive and intransitive uses of the verb ‘to bend,’ and how that plays into macho masculinities and paranoia about gay sex as violation, but I’m getting my parentheses in a bunch).

All this to say: while I do not think that violent and degrading sexual acts magically become fine-and-dandy when they are done in non-heterosexual groupings; and while I do not think that a sex act should be protected from obscenity laws just because it marks itself as BDSM and is therefore associated with a ‘lifestyle’ or ‘identity’; I am also aware that systemic homophobia can lead to the unbalanced application of obscenity laws, and that’s a problem.

Consent, at least, is easier to identify in porn. And it’s crucial that we do so – not just because of the message this sends to porn viewers, but because it is frequently impossible to know if a given piece of rape porn is staged rape, or an actual rape captured on film. If you want to know more about this problem, Fiona Elvines of Rape Crisis South London wrote an excellent piece informed by years of activism, advocacy and research, and you should go read it. Aside from the scary reality check about exactly what kind of rape porn material is out there, it goes into the issues of context and tone I was talking about above. She makes a compelling case that much of the rape porn which is defended as ‘fantasy material’ for women and men alike is actually very clearly addressed to men who dream of raping and getting away with it.

Thanks to sustained campaigning by Rape Crisis South London and the End Violence Against Women Coalition, a bill is currently before parliament to ban porn that celebrates rape. This is clearly a step in the right direction. Nevertheless, the Ministry of Justice has said it is extremely wary of catching up ‘harmless’ pornography in this serious criminal category. Which means the web will continue to abound with material that is legal, but pretty horrible. Adults will be free to watch it or not. It doesn’t seem fair that this should simply become the new normal for kids as well.

Those interested in tracking the progress of the rape porn prevention bill can do so here.

Thank you to Andrew Murray of LSE for the email interview.

Oh – and the cover image for this article is a photograph I had lying around of a protective amulet from Late Middle Kingdom Egypt for mothers and (think-of-the) children. Conceptual link: apotropaic. Practical reason: wordpress kept refusing to upload the photograph of a BDSM club night I found on Flickr CC search.