Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law

Abstract

On 8th August 2012, Simon Walsh was acquitted of five counts of possessing extreme pornography. The case was not, of course, the first prosecution under the extreme pornography provisions contained in the Criminal Justice and Immigration Act 2008 (CJIA). Crown Prosecution Service (CPS) figures indicate that there were 799 prosecutions in 2011. However, unlike many of the other prosecutions, Walsh’s case was the focus of extensive public debate. It was touted in the press as a ‘landmark’ case defining the boundaries of the extreme pornography provisions, in which ‘common sense prevailed’ through a ‘sensible jury verdict’. The Walsh case provides an opportunity to revisit what continues to be a misunderstood and, in this case, mis-used, law. The CJIA is a flawed piece of legislation. It represents a lost opportunity by the previous Labour Government to take bolder and more intellectually defensible steps to tackle harmful extreme forms of pornography. This marginalisation of feminism is also evident in the debate around the Walsh case. In the end, discussion focussed on practices which when carried out with consent are unproblematic. What the Walsh case highlights is the need to shift debate from the margins of what is included within the law, to focus on the extreme. There is, of course, a role for law in determining the boundaries of the law and legal cases are all about interpretations on the edge of the law – the simple cases being clear-cut. But, we have lost sight of what, in our view, should be the focus of laws on extreme pornography, namely the pornographic images of rape which inexcusably remain beyond the law.