Comment: Prosecutors, extreme porn and 50 Shades of Grey
By Alex Dymock
An openly gay barrister, magistrate and alderman for the City of London has today been acquitted of possessing five images of 'extreme pornography' and one purportedly indecent image. The jury at Kingston Crown Court returned a not-guilty verdict on all counts, clarifying the extent of what remains a confused and confusing piece of legislation.
The case of Simon Walsh raises new and important questions about the legal status of possessing images of consenting adults engaging in kinky sex acts, even if the acts themselves are legal to practice. This landmark case also indicates you could be prosecuted for images found in your email that you neither requested nor opened. As kinky sex becomes ever more normalised, particularly in light of the huge commercial success of E.L. James’s erotic trilogy, Fifty Shades of Grey, and the media storm around the novels, it seems a good time to reconsider whether sexual acts mentioned in the novel such as fisting are publicly considered extreme or even abnormal any longer.
Walsh was originally arrested on the suspicion that he had viewed indecent images of children. Police officers raided his home and office and took his computers and camera. No illegal material was found on any of the equipment, but in an online email account entitled 'citypiss', six images were recovered. In Walsh's 'sent folder' three images depicting men engaged in fisting, and two images involving the use of urethral sounds (medical rods inserted into the urethra for sexual pleasure) were found.
In his inbox was also an email from 2008 with an attached image depicting what the Crown Prosecution Service (CPS) alleged to be a boy aged 14 years old. On the back of their findings, the CPS charged Walsh with five counts of possession of 'extreme pornographic' images under Section 63 of the Criminal Justice and Immigration Act 2008, and one count of possessing an indecent image.
The subsequent trial at Kingston Crown Court rested upon several issues. Firstly, with regard to the 'extreme porn' charges, the jury had to consider whether the images depicted acts 'likely to result in serious injury to a person’s anus, breasts or genitals'. It was also up to the jury to decide whether the images found were 'grossly offensive, disgusting or otherwise of an obscene character', as Section 63 of the Criminal Justice and Immigration Acts (S.63) states. In respect of the indecent image, it was a matter for the jury to decide firstly whether or not there was sufficient proof that the attachment had indeed been opened, and secondly, whether the male depicted in the image was indeed under the age of 18.
So, what exactly is 'extreme pornography'? The images found in Walsh's email were not made for commercial consumption or profit, but were images recording legal sexual acts performed by consenting adults in private. This raises interesting questions about what we now consider to be pornography and the effects of the changing nature of the pornographic industry on what we view. With the industry in 'Porn Valley' on the verge of collapse after the proliferation of sites like redtube.com, from which you can live-stream clips taken from commercial pornographic films for free, and the rise of ‘amateur pornography’, from which no profit is made, it becomes increasingly difficult to define what pornography actually is.
With regard to S.63, it seems the CPS interprets pornography as any image you 'possess' for the purpose of sexual gratification, and that the burden should fall upon you, as consumer, to decipher whether or not an act is 'likely to cause serious injury'. If we take the statute literally, this could even cover stills or clips taken out of context from non-pornographic films. In Walsh's case, it is debatable whether the images aroused, or whether they were merely a recording of an enjoyable sexual encounter. Walsh contended in the trial that although he found the acts depicted erotic, the images themselves were of little interest to him personally. They were in his 'sent' folder, not his inbox.
What is 'serious injury'? The judge in Walsh stipulated that this could refer to 'physical, mental or moral harm'. Is there a sufficient evidential basis to back up the claim that 'extreme pornography' or the acts depicted in it cause any of these? Can one’s genitals, anus or breasts suffer mental or moral harms? Medical experts were brought in by both prosecution and defence counsels to give their opinions on the practices of anal fisting, the use of urethral sounds and the likelihood that these practices cause 'serious injury'.
On the subject of fisting, Datta, consultant colorectal surgeon at Guys & Thomas' NHS Trust gave evidence for the CPS and contended that a fist is a "foreign body" that may cause trauma or damage to the sphincters and bowel if "violently and forcefully" inserted. Demonstrating the action of insertion by rolling his hand into a fist and violently thrusting it repeatedly into the air, Datta told the jury that there are potentially "serious injuries" that may be caused by the insertion of foreign bodies into the anus, but admitted that he had never treated a patient who had suffered injuries caused by fisting. Jenkins, consultant colorectal surgeon at St Mark’s NHS Trust who provided expert testimony for the defence, refuted Datta’s claim that injury was "likely", suggesting that although there may be potential risks in partaking in anal fisting, it was a common enough practice amongst the gay and MSM (men who have sex with men) population and risks are significantly reduced if finger nails are trimmed, latex gloves worn and lubricant used. Extracting data from the Gay Men’s Sex Survey taken in 2006 and handed out at sexual health clinics, Jenkins surmised that 12.8% of those asked had participated in fisting. Based on "crude calculations" he estimated that the number of men participating in fisting in London alone would amount to 29,000 each year. This suggests that fisting is not only a reasonably common sexual practice, but also that those who partake in it are concerned about their sexual health.
Evidence was also given by Dr Clarissa Smith, reader in sexual cultures at the University of Sunderland. Smith was grilled by prosecutor Mr Wilkins about whether she thought the "extreme" images were "degrading and dehumanising". When Smith disputed this, Wilkins suggested that if the images had depicted a woman her opinion would be rather different. Again, she disputed this. To the astonishment of the public gallery, Wilkins then insinuated that users of sexual health clinics such as those who took part in the Gay Men’s Sex Survey were more likely to engage in risky practices. Smith denied this, saying: "No, people who attend sexual health clinics take their sexual health seriously". Nevertheless, in his closing address Wilkins said that the evidence she had given was "disingenuous, self-serving and dishonest".
In conclusion, the case of Walsh will raise serious concerns, not simply for anyone who partakes in and records 'extreme' sexual activities, but also for anyone who uses online email. It suggests that a single ill-advised click of the mouse could land you in court. The inquiry and subsequent trial have caused utter devastation to Simon Walsh’s life and career. When a case as flimsy as Walsh’s is taken by the CPS as far as Crown Court, it seems quite clear whom Section 63 aims to protect, and whom it aims to punish.
Alex Dymock is reading for a PhD in law at the University of Reading. She writes and publishes on the jurisprudence of regulating sexual perversion in England & Wales and has worked with the pressure group Backlash for many years. She tweets at @lexingtondymock.
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