Inconsistencies with other legislation within the extreme pornography provisions of the Criminal Justice and Immigration Bill will lead into definitional problems, and disproportionate penalties argues Dr. Yaman Akdeniz.

According to subsection 7 of Clause 62 of the Criminal Justice and Immigration Bill (HL Bill Third Reading) on Possession of extreme pornographic images, an “extreme image” falls within this subsection if it portrays, in an explicit and realistic way, any of the following—

(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.

However, section 69 of the Sexual Offences Act 2003 criminalizes intercourse with a living animal (rather than a pseudo-animal). Unlike the proposed clause 62 provisions, section 69 does not cover oral sex with animals. Similarly, section 70 of the Sexual Offences Act 2003 criminalizes sexual penetration of a corpse but unlike the proposed clause 62 provisions it does not cover “sexual interference” with a human corpse.

Under clause 65 of the Criminal Justice and Immigration Bill (HL Bill Third Reading) which deals with penalties for possession of extreme pornographic images, the commission of a possession offence in relation to clause 62(7)(c) (an act which involves sexual interference with a human corpse) or 62(7)(d) (a person performing an act of intercourse or oral sex with an animal) attracts a penalty on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both. However, currently, a person guilty of an offence under section 69 or section 70 of the Sexual Offences Act 2003 face the same amount of penalty – on conviction on indictment, to imprisonment for a term not exceeding 2 years.

Surely, intercourse with a living animal or the sexual penetration of a corpse under the 2003 Act are more serious offences than simple possession of a real or appears to be real image. Therefore, the proposed possession offence penalties under clause 65 of the Criminal Justice and Immigration Bill (HL Bill Third Reading) remain disproportionate.