When the sex offenders register was first conceived, we can presume it wasn’t intended to include teenagers taking photos of themselves. That would be absurd and no right-minded lawmaker would wish it. But laws, like pets, have a life of their own. Take your eye off them and they will shit in your house.
This week, a teenage girl was given a police caution for taking a photo of herself partially undressed and sending it to her boyfriend. In any normal conception of the world this would be considered regrettable teenage behaviour. In the brave new world in which we live it is ‘distributing indecent images of a child’.
Mercifully, a caution was given instead of a charge, with the result that she was not put on the register, an outcome which would have had her down as a sex criminal for life, unable to visit children’s playgrounds and facing all the stigma that comes with it. But instead of recognising the danger of an important piece of child protection law being used in cases for which it was not intended, the police went in the other direction. Detective sergeant Jan Rusdale of the Nottinghamshire police force warned young people about the consequences of ‘sexting’.
“They could end up on the register for a couple of years. When they come to getting a job this would then count against them,” she said. “We just want to get the message out there that this is a very serious offence. We need parents and children to realise this.”
The point where law meets sexuality has become a dangerous and opaque place, a region where the everyday habits of harmless people are quite unexpectedly met by a particularly harsh form of law enforcement.
Earlier this month, the government proudly announced the arrest of 650 people for possessing child sex abuse images. What the public do not know is how easily they could become one of them.
A person is included as having ‘possessed’ an image of child sex abuse if they ever visited a page which contained an image of an underage boy or girl on it. You might not wish to have done so, but if you are a regular viewer of pornography online there is a very high chance that you have anyway. Did you scroll all the way down the porn site’s homepage last time you visited? Or the time before that? Because legally speaking you ‘posses’ every image that has appeared on every page you’ve visited on the laptop you’re reading this on.
If among those images there is one which could be considered potentially under-age, you can be charged with possessing sexual images of a child.
This type of dubious legal standard can be seen wherever parliament tries to tackle online sexual content.
In a few months, rape porn will be made illegal. The criminal justice and courts bill is currently at committee stage in the Lords, but there is little evidence that it will substantially amended. It will ban any image or video which features “explicit and realistic depiction of an act which involves the non-consensual penetration of a person’s vagina, anus or mouth”.
We know the vast majority of these films – probably without exception – are filmed using consenting adult porn stars. The bill will deny them the right to take part in whatever fantasy scenario they chose, for payment or pleasure, just as it prevents the viewer from exploring their own.
The bill will incorporate rape into the definition of extreme porn found in the Criminal Justice and Immigration Act 2008. This bill criminalised the portrayal of acts which could cause harm to the breast, anus or genitals. The BDSM community was up in outrage. More often than not, their hobby features breasts bound in rope or clips attached into genitals. That’s how they roll. When the bill was passed, the Home Office assured them they had nothing to worry about.
Not so. Simon Walsh had his professional and personal life ruined before a jury decided the images on his laptop of him attending fisting parties did not contravene the Act or feature anyone underage. Many others have been criminalised without actually being arrested – a state of affairs which anyone with respect for the proper function of law would find intolerable.
You might not even know you own the video. Perhaps you clicked on a video which promised two lesbians kissing and switched it off after (a predictable) seven minutes, unaware that a moment later one of them beat the other across the tits with a whip. No matter. You still possess those images.
There is a defence that you didn’t know or suspect it would feature extreme imagery. You can look forward to your day in court, making the case for your defence by going into the detail about the wank you had five years ago. By then, of course, your professional and personal life will be ruined.
“It’s difficult to explain to people what happened, because the moment you mention the suspicion of child porn most people close down,” Walsh told the Evening Standard after he’d been acquitted. “Not that it’s much easier talking to friends and family about fisting. And it’s not something I would have chosen to have done. My father has never been happy about my sexuality and it’s always been a difficult issue. I tried to keep this whole thing from him, but some helpful soul sent him the press cuttings, which is how he found out.”
The truth is, by the time you go to court on a sex charge, your life is already over. An acquittal doesn’t repair the damage, the broken relationships, the humiliation of having your sex life discussed in the papers and the courts, the sudden social stigma or the unemployability. It is rare for anyone to go through it without considering suicide.
A similarly catastrophic imbalance between offence and punishment will rear its head when, as seems inevitable, revenge porn is outlawed. Revenge porn is an unfortunate new phenomenon whereby people – usually embittered former-lovers, always men – upload sex tapes of their partner to huge websites, with an international reach of hundreds of thousands of people. It is an act of grotesque violation, a betrayal the women in question must go through every day. It should be harshly punished.
But it must be punished in a way that differentiates between the idiot teenager showing his friends a photo of his latest conquest and the cynical adult, hatefully destroying the dignity of his former partner. There is precious little in politicians’ track record to suggest they are capable of doing this.
Instead we will get more of the insane heavy-handed policing which would put a teenage girl on a sex offenders register for sending her boyfriend a picture of herself.
How have we got to a place where we would call teenagers paedophiles? Where we would criminalise all porn users or ban a form of sexual play which consenting adults choose to pursue behind closed doors?
There are many reasons, but at the heart of the matter is our inability to have an honest debate. We are too shy, too embarrassed. That is true in the kitchen, when the father talks about sex to his son, as it is in parliament, where these debates have been avoided in pursuit of a hysterical witch hunt against the ever-present paedophile.
This has led us to give the police far too much discretion, by virtue of sloppily written law. As the teenage ‘sexting’ response demonstrates, it is a discretion they cannot be trusted with.
It has led to a ‘something must be done’ political culture which has hopelessly muddied the difference between child sex abuse and adult pornography, which turned frenzied tabloid headlines into badly-written law. This broad, muddle-headed approach makes it harder for us to focus resources on catching actual child abusers.
It has led to a fundamental disrespect for the principle of consent: that adults should be able to choose to do as they please as long as they do not hurt anyone else. The fact that this consent is being ignored in order to ban rape porn is a childish irony, but one that is entirely in keeping with the maturity of those who pursue it.
Sexuality is a messy dream-world of desires and activities which would horrify us if they were conducted in the cold light of day. Communication technology has dragged them kicking and screaming from the closed curtains of the bedroom to the hard reality of record, to the courtroom and the internet history page. It’s shown us, after all this time, how bashful and hopeless we are when it comes to speaking honestly and maturely about sex.
That used to be silly and British. Now it is deadly serious. It is criminalising people who have done no harm and letting real child abusers run amok.