Cookies

We use cookies to ensure that we give you the best experience on our website. You can change your cookie settings at any time. Otherwise, we'll assume you're OK to continue.

Gender and Law at Durham

The Legal Regulation of Pornography

Clare McGlynn and Erika Rackley's research on pornography, and in particular their argument that criminal sanctions for the possession of extreme pornography can be justified on the basis of its cultural harm, has had a significant impact on the legal regulation of pornography. Since 2007, they have argued for the inclusion of pornographic images of rape with the extreme porn laws. In May-July 2013, they worked with the End Violence Against Women Coalition and Rape Crisis (South London) on their successful 'Stop Rape P*rn' campaign to criminalise the possession of rape pornography, which led to a commitment by the Prime Minister in July 2013 to 'clos[e] the loophole [in the existing legislation] making it a criminal offence to possess internet pornography that depicts rape'. The Criminal Justice and Courts Bill 2014-15, which includes provisions to this effect, is currently being debated in Parliament. During these discussions McGlynn and Rackley have also informed and shaped debate around the introduction of an offence criminalising so-called 'revenge porn'.

Since the seminar, members of GLAD have continued to research in this area. In reverse chronological order:

April 2015 - Professor McGlynn calls for law to be extended to cover upskirting

Professor Clare McGlynn and Julia Downes argue that the law on revenge pornography should be extended to cover the growing phenomenon of upskirting. In their blog post in Inherently Human, they argue that a new law covering all forms of non-consensual distribution of private sexual images is needed which cover the range of circumstances in which private sexual images are distributed without consent, including the well-known forms of revenge pornography, as well as upskirting, voyeurism and dissemination following hacking.

April 2015 - Professor Clare McGlynn speaks at seminar on Revenge Porn: the New Law

Durham Law Professor Clare McGlynn was a speaker at a seminar on the new Revenge Pornography law introduced in the Criminal Justice and Courts Act 2015. Professor McGlynn worked with Professor Erika Rackley of Birmingham University, to influence the law reform process, with their work cited in Parliament. They have blogged on the new revenge porn law.

Further information on the seminar is available here.

A copy of Professor McGlynn's presentation slides are available here.

September 2014 - Professors McGlynn and Rackley Research Briefing of Proposals to Criminalise Revenge Pornography

Professors McGlynn and Rackley welcome the Government's decision to introduce new legislation to address the harm caused by the publication of private sexual images. In particular, they welcome the move away from the language and motivation of 'pornography' and sexual gratification and a focus on specific body parts contained in earlier amendments.

As drafted, the new law acknowledges that the publishing of a private sexual image of an individual without their consent is a form of harassment, abuse and bullying. It makes clear that such actions are wrong and as such places responsibility for the harm on the publisher, rather than the victim of the crime.

However, the requirement that the "disclosure causes distress to the person who is the subject of the image" (s1) is likely to significantly limit the effectiveness of the offence. Focusing on the victim's 'distress', and the offender's intentions in relation to this, risks drawing attention away from the key mischief this offence is seeking to address, namely the offender's harmful actions in publishing of private images without consent.

In addition, they also have concerns about the requirement that a specific person is clearly 'identifiable' in the relevant image.

Research Briefing to Parliament available here.

July 2014 - Durham Law Professors welcome proposed action over revenge pornography

Copy of Professor McGlynn and Rackley's Research Briefing to Parliament on Revenge Pornography available here.

Durham University researchers welcomed the Government’s decision to examine and debate whether ‘revenge pornography’ should be criminalised.

However, Professors Clare McGlynn and Erika Rackley, of Durham Law School, caution that any new legislation should not distract political and public focus away from the harm of revenge pornography.

Professor Erika Rackley said: “Despite its name, revenge pornography is not ‘pornography’. Rather it is a form of, and is motivated by, harassment and abuse”.

She continued: “The explicit nature of the images are simply the vehicle though which the revenge – the abuse and harassment – is exacted”.

This is recognised by Scottish Women’s Aid in their powerful campaign to ‘Stop Revenge Porn’ in Scotland.

Professor Clare McGlynn said: “A new offence criminalising revenge pornography would be a welcome acknowledgement of the harm of revenge pornography. However, a new offence must only play a small part in addressing the underlying culture that creates and legitimises sexual violence.”

She continued: “It is vital that the Government commits not just to headline-making legislative reform, but also to law enforcement and compulsory sex and relationships education in schools”.

Professors Clare McGlynn and Erika Rackley are long-term critics of the current pornography laws. In research published in 2009 they argued that the failure of the law to include rape pornography represented a “missed opportunity” to take strong action against the normalisation of sexual violence.

You can read a full briefing on the amendments to the Criminal Justice and Courts Bill here.

Research Briefing on Rape Pornography available here.

June 2014 - Professors McGlynn and Rackley's research endorsed by the Joint Committee on Human Rights

The Joint Committee on Human Rights has, in a recent report, welcomed the provision in the Criminal Courts and Justice Bill, extending the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. In their written submission to the committee, Clare McGlynn and Erika Rackley argued that the provision is “human rights enhancing” and that “rape pornography generates cultural harm and it is this cultural harm which justifies legislative action”.

The Committee agreed concluding:

“We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life (Article 8 ECHR) and freely to receive and impart information (Article 10 ECHR)”. [1.50]

You can read more about McGlynn and Rackley’s research on criminalising the possession of rape pornography here and here.

February 2014 - Durham Law Professors Welcome Reforms to Extreme Pornography Law

Professors Clare McGlynn and Erika Rackley, of Durham Law School, welcome the Government announcement that the possession so-called ‘rape porn’ will be criminalised in the new Criminal Justice and Courts Bill. In research published in 2009 they argued that the failure of the law to include rape pornography represented a “missed opportunity” to take strong action against the normalisation of sexual violence. Further information can be found here.

February 2014 - McGlynn and Rackley publish opinion pieces in the New Statesman

Clare McGlynn and Erika Rackley have written an opinion piece for the New Statesman on the Government’s plan to extend to extend the current extreme pornography law to include pornographic images of rape. Welcoming the changes, they argue that such images glorify and eroticise sexual violence and contribute to the creation and perpetuation of a cultural climate in which sexual violence is condoned. Their response was also covered regionally including The Northern Echo and Sunderland Echo.

July 2013 - McGlynn and Rackley support campaign to close the pornography loophole

During June-July 2013, McGlynn and Rackley supported the high profile campaign lead by Rape Crisis (South London) and the End Violence Against Women Coalition to close the rape pornography loophole. The campaign garnered considerable support. Over 72,000 people signed a Change.Org petition (CHANGE.ORG) and the campaign was widely reported in the UK and international media. McGlynn and Rackley produced a briefing for MPs on the legal issues raised by the campaign, which you can read here.

On 22 July 2013, the Prime Minister announced that the Government was going to ‘clos[e] the loophole, making it a criminal offence to possess internet pornography that depicts rape’. You can read his speech here: https://www.gov.uk/government/speeches/the-internet-and-pornography-prime-minister-calls-for-action


June 2013 - Clare McGlynn discusses extreme pornography on Law In Action

Clare McGlynn joined Joshua Rozenberg and Myles Jackman to discuss the regulation of extreme pornography on Radio 4's Law in Action. You can listen again here: http://www.bbc.co.uk/programmes/b0213yg9 (at 22mins)

May 2013 - McGlynn and Rackley call for new laws on extreme pornography

Clare McGlynn and Erika Rackley appeared in the Northern Echo and the Sunderland Echo arguing that the current legislation was in urgent need of reform as it excludes the vast majority of images of rape. Their comments followed the publication of an open letter to the Prime Minister from the End Violence Against Women Coalition call on the Government to put in place a programme of work to prevent violence against women and girls. You can read their letter here.

May 2013 - Extreme Pornography Blog Carnival

Papers from the conference on the anniversary of the enactment of the extreme pornography legislation have been published on the GLAD blog 'Inherently Human'. The seminar brought together academics, activists, policy-makers and other regulatory authorities to evaluate the success or failure of the legislation and to ask what, if any, reforms are necessary to secure progress toward this objective. Delegates were encouraged to tweet using the hashtag #EP5.

Introduction to the Blog Carnival and a Storify by Chris Ashford

Five Years On – McGlynn and Rackley on The Extreme Pornography Provisions: A Misunderstood and Misused Law

Dymock on The question of regulating pornography: is criminalisation the answer?

Antonsdóttir on Legislating against Violent P_rn: A View from Iceland

Dustin and Elvines on Ending Simulations of Rape, Incest and Childhood Sexual Abuse in/as Pornography

May 2013 - Criminalising Extreme Pornography - 5 Years on

On the 5th anniversary of the royal assent of the extreme pornography legislation, we organised a conference examining the impact of the legislation and the potential for reform. It brought together academics, activists, policy makers and other regulatory authorities to evaluate the success or failure of the legislation and to ask what, if any, reforms are necessary to secure progress toward this objective. Speakers included Simon Walsh (barrister and alderman of the City of London), Fiona Elvines (Rape Crisis, South London), Holly Dustin (End Violence Against Women Coalition), Alex Dymock (University of Reading), Clare McGlynn and Erika Rackley (Durham Law School) and Hildur Fjóla Antonsdóttir (Centre for Women's and Gender Research, University of Iceland).

May 2013 - Clare McGlynn discusses extreme pornography on Radio 4's Women's Hour

Clare McGlynn joined Jenny Murray and Hildur Fjola Antonsdottir from the University of Iceland on Woman's Hour to discuss whether the extreme pornography law should be reformed. She argued for reform on the basis that the law is both misunderstood by members of the public and misused in the types of cases being brought by the police and CPS.

April 2013 - Criminal Law Review Publication

Prosecuting the Possession of Extreme Pornography: A Misunderstood and Mis-used Law' has just been published in the Criminal Law Review. In this article Erika Rackley and Clare McGlynn discuss the prosecution and acquittal, in August 2012, of Simon Walsh for the possession of ‘extreme pornography’ and argue that 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. In concentrating on the margins of the law, they argue, we have lost sight of what should be the focus of laws on extreme pornography – the prevalence of images which glorify sexual violence. Paradigmatically, this means pornographic images of rape which inexcusably remain beyond the laws on extreme pornography.

April 2013 - Professors Clare McGlynn and Erika Rackley draft a briefing paper to help inform debates on restricting access to pornography in Iceland

Criminalising Extreme Pornography: Lessons from England & Wales’ outlines the current law and England and Wales, and how it has been applied since its enactment in 2008. It then goes on to recommend reforms of this over - and under - inclusive legislation, with a focus on the inclusion of rape pornography. The briefing paper has been sent to relevant Icelandic politicians, academics and organisations to help inform current debates on restricting access to violent or hateful pornography in Iceland. You can view the briefing paper here.

March 2011 - Clare McGlynn awarded a prestigious Leverhulme Research Fellowship.

The Fellowship, tenable for twelve months, enables Professor McGlynn to undertake the project 'Reforming Pornography Law: liberal justifications and proposals for change'.

March 2010 - Clare McGlynn and Erika Rackley (with Ian Ward) cited in the Home Office review - Sexualisation of Young People

In March 2010 the Government published a review into the Sexualisation of Young People written by 'Big Brother' psychologist Linda Papodopolous. The review cited (pp 12 and 69) the work of Clare McGlynn, Erika Rackley and Ian Ward debating the regulation of extreme pornography in England and Wales.

November 2009 - Scottish Parliament Justice Committee Report on Extreme Pornography

The Report of the Justice Committee of the Scottish Parliament on whether to introduce a new offence criminalising extreme pornography refers to and endorses Clare McGlynn and Erika Rackley's submission that the use of the term 'obscenity' should be reviewed and that greater consideration should be given to the 'cultural harm' of extreme pornography.

July 2009 - Extreme pornography article quoted in The Guardian

Clare McGlynn and Erika Rackley's Criminal Law Review article is quoted in The Guardian. The newspaper article written in response to the (dropped) obscenity trial against the author of 'Girls (scream) Aloud', a violent rape fantasy, explores the strength of obscenity laws in the UK.

June 2009 - Clare McGlynn gives Plenary Lecture at Porn Cultures conference

The Porn Cultures and Policy Network hosted its second international conference at Leeds University in June 2009. The conference Porn Cultures: regulation, political economy, technology heard presentations from Julian Petley, Gail Dines, Sheila Jeffreys and many others. Clare McGlynn's lecture was entitled 'Regulating Extreme Pornography in the UK: the turn to law' and critiqued the new extreme pornography laws, arguing that they represent an unsatisfactory compromise between the demands of moral-conservatives and fundamentalist liberals. The polarisation of debate between these two broad constituencies largely obscured feminist arguments (from all perspectives). In doing so, a positive opportunity to rethink the regulation of pornography was lost.

June 2009 - Scottish Parliament Justice Committee debate Extreme Pornography

The Justice Committee of the Scottish Parliament, which is debating the introduction of a new offence criminalising extreme pornography, is debating whether legislation covering 'realistic' material will include computer-generated images. In discussion, the submission of Clare McGlynn and Erika Rackley is discussed.

April 2009 - Submission to the Scottish Parliament on Extreme Pornography

Clare McGlynn and Erika Rackley submitted written evidence to the Justice Committee on the Extreme Pornography provisions in the Criminal Justice and Licensing (Scotland) Bill.

April 2009 - Criminal Law Review Publication

Clare McGlynn and Erika Rackley, 'Criminalising Extreme Pornography: A Lost Opportunity' is published in (2009) 4 Criminal Law Review 245-260. In this article McGlynn and Rackley consider the provisions criminalising the possession of ''extreme pornography'' in the Criminal Justice and Immigration Act 2008. It outlines the current criminal law regime governing pornography, before considering the new measures in detail. The article highlights the areas which are most likely to witness challenges, and the areas about which confusion seems inevitable. It concludes by considering the arguments for proscribing the possession of extreme pornography and possible ways forward, while recognising that, regrettably, the legislative opportunity to take action in this field has most likely now been lost.

January 2009 - Durham Law Professor comments on new pornography proposals reported in The Scotsman

Clare McGlynn writes in favour of the new measures to criminalise the possession of extreme pornography in Scottish law.

December - 2008 McGlynn & Rackley urge Scottish Minister for Justice to introduce law covering rape pornography

In December 2008, Clare McGlynn and Erika Rackley wrote to the Scottish Cabinet Secretary for Justice, Kenny MacAskill MSP, outlining the key lessons to be learned from the English law on extreme pornography and including a Factsheet on Rape Pornography which can be accessed here. They argued that the law should be extended to encompass pornographic images of rape, justified on the basis of their cultural harm. A copy of the letter can be accessed here.

May 2008 - Government Response on Child Sexual Abuse images cites Clare McGlynn

In May 2008, the Government published its 'Summary of Responses and Next Steps', responding to its earlier consultation on the criminalisation of non-photographic images of child sexual abuse (see below). Clare McGlynn's comments were positively cited by the Government a number of times, particularly on the need for a 'public good' defence and the problems with debating 'causal effects'.

February 2008 - Sex and Censorship Panel Discussion with Clare McGlynn

In February 2008, Ulster University convened a panel discussion on 'Sex & Censorship', followed by a screening of the controversial film Destricted, at which Clare McGlynn spoke. Other panel members included the Director of the British Board of Film Classification, David Cooke. Following the panel discussion, Clare was interviewed for BBC Radio Ulster.

November 2007 - Criminal Law Review Publication

Clare McGlynn and Erika Rackley, 'Striking a Balance: Arguments for the Criminal Regulation of Extreme Pornography' (2007) Criminal Law Review 677-690.This article considers provisions criminalising the possession of 'extreme pornography' in the Criminal Justice and Immigration Act 2008. It begins by outlining the current criminal law regime governing pornography, before considering the new measures in detail. It highlight the areas which are most likely to witness challenges, and the areas about which confusion seems inevitable. It closes by considering the arguments for proscribing the possession of extreme pornography and possible ways forward, while recognising that, regrettably, the legislative opportunity to take action in this field has most likely now been lost.

October 2007 - Clare McGlynn comments on police seizure of artwork

GLAD Co-Convenor, Clare McGlynn, comments on police seizure of work by US artist Nan Goldin from The Sir Elton John Photography Collection.

July 2007 - Action urged to tackle extreme internet porn

Clare McGlynn and Erika Rackley urge changes to the Criminal Justice Bill to include pornographic rape web sites.

April 2007 - Reforming Law on Child Sexual Abuse Images

In April 2007, the Home Office published a consultation paper "Consultation on Possession of Non-photographic Visual Depictions of Child Sexual Abuse" which seeks the views on the issues in respect of cartoons, drawings, computer generated images and other non-photographic representations of child sexual abuse. GLAD co-convenor, Clare McGlynn, produced a response to the consultation.

2007 - Conference: Positions on the Polotics of Porn

In April 2007 Durham Law School hosted a seminar on the British Government's proposals to the criminalise possession of extreme pornography. Positions on the Politics of Porn sparked considerable public debate, including in The Times, on Radio 4 Women's Hour and local press. Follow the link below to find out more about the seminar itself, to read the seminar report as well as the responses to the Government's original 2005 consultation document.