March 01 2015
We wrote recently about the new offence of revenge porn. This isn’t the only new offence in the area of indecent or pornographic imagery prosecutions. The Criminal Justice and Court Bill Act (effective 13th April 2015) introduces an extension of the offence of extreme pornography; specifically criminalising the possession of pornographic images depicting rape and assault by penetration.
“An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following:
(a) an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis, or
(b) an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else”
The intention of this legislation is to protect young people who may be influenced by such material, specifically signalling that “images depicting women and men being sexually abused are not a legitimate form of pornography”.
The legislation covers both real acts and realistically staged ones. Whilst BBFC-classified material is exempt from this (unless rape scenes are specifically extracted from the film and possessed separately), the large number of films including depictions of rape illustrates the potential scale of such material easily accessible.
The introduction of the Criminal Justice and Court Bill Act actually brings England and Wales in line with Scotland, where rape pornography was covered by the original extreme pornography legislation which came into force in January 2009. A review of many mainstream pornography websites (hosted outside the UK) is likely to show a number of videos that realistically appear to depict rape but are in fact staged. Despite such pornography being professionally produced with consenting actors, it will be illegal to possess in the UK. When material which is illegal under UK law can be legally hosted on mainstream pornography websites from other countries, there is potential for accidental access. Careful analysis of a user’s actions will be critical to assess whether they appear to have been seeking such material or whether their access could have been inadvertent.
One of the main issues in the prosecution of possession offences is their definition. Unlike prosecutions under the Protection of Children Act 1978, in relation to indecent images of children, there is no offence of making. The Court of Appeal in R v Porter [2006] EWCA Crim 650, however, gives guidance in relation to the possession of indecent imagery, albeit in that case of children, but which is equally applicable to extreme pornography cases; can the charged images be considered to be in the possession of the defendant on the dates alleged? For example, is a user aware that viewing a video online, even for a second, can automatically cause a copy to be stored on their computer? Careful analysis of where the images are stored, along with assessment of any evidence relating to the access or accessibility of the images, can provide valuable information to help answer this question.
If you wish to discuss the forensic evidence possibilities of the new rape pornography legislation, contact one of our Digital Forensic Investigators in our Durham office on 0191 332 4999.
