Alexandra McGregor and Becky Dwyer were invited by Ann Oxley back in January 2009 to discuss the extreme pornography legislation of the Criminal Justice and Licensing Bill in the beginning of March. On 13 March 2009, Ms. McGregor and Ms. Dwyer were met by Ann Oxley at St. Andrew’s House, Edinburgh, and introduced to Gery McLaughlin.
Mr. McLaughlin explained that both he and Ms. Oxley are civil servants working with, advising, and otherwise representing MSPs and the general Scottish Government. He said they were unable to meet during the actual writing of the bill as that would have violated Parliamentary confidentiality agreements. He further explained that the bill is now “property of the Scottish Parliament” and that their position was merely to explain the law and its background to us.
In other words, we were being set up for a colossal waste of time.
However, this meeting was not without some high points. In the hour and 20 minutes Ms. McGregor and Ms. Dwyer talked with Mr. McLaughlin and Ms. Oxley, some facts were revealed that would help in the future.
Mr. McLaughlin was quite clear that he was merely representing the government, and it appears from the arguments he presented that this was the case. He did not produce any new arguments. In the justification for the law itself, he argued that the material “was already illegal” under the 1982 Obscene Publications Act and that this law was being proposed to allow police to prosecute someone with a large stash of (what would now be called) extreme pornography when they were unable to prove intent to distribute. Along these lines, he said that the small number (71) of child porn possessions would indicate that not many people would be affected by this law, especially as child porn is higher priority. (Ms. McGregor’s arguments of a “climate of fear and oppression” were lost on him.) He also brought out the old nut about “not being sure if the person in the image was being harmed or not” and how this is about “risk”, not evidence. These are not new arguments, and I feel it is safe to say that any previously used argument in favour of the extreme pornography law would eventually be pulled out again. Thus, we can work to tear down these arguments with our own evidence.
Some small points were also raised about the law. Mr. McLaughlin was under the impression that the defense in section 51C stated that a person had to appear in the image, and was surprised to see that the law instead stated that a person had to “directly participate” in the image. He had no response to the scenario of a participant who is not in the image still possessing the image, and finally resulted to a tough luck stance, because the government feels burden of proof should be upon the alleged offender. This point should be raised to MSPs because I believe they may not be aware of the possibility (or likelihood!) of this happening.
Along the issue of the use of the phrase “and the sounds accompanying the image” in the law and the word “educational” in the explanatory notes, Mr. McLaughlin agreed that a potentially pornographic image might be construed as legal if given a soundtrack of “academic” interpretations, “of the lighting” and such. When pressed directly on the legality of BDSM safety material, Mr. McLaughlin said that he was unsure if BDSM safety material would be legal or not. However, given that this is a man who stated that spanking “could be” assault, it is possible that he is simply unfamiliar with BDSM safety material and its necessity. This point should also be presented to MSPs, preferably with demonstration videos of what BDSM material looks like so that they know what they’re banning.
On the Human Rights aspect, Mr. McLaughlin did not appear to have heard of Spanner. He quite easily quoted that Scottish Common Law (which, as we are reminded, is based on Roman Law) states that a person cannot consent to assault, though he admitted that this is not in any written statute. He was not concerned with the Scottish Law Commission’s recommendation to decriminalize sadomasochism, though he appeared offended when Ms. Dwyer said it had been rejected by the Catholic Parliamentary Group. The usual arguments (The Spanner case made it illegal, it would confuse cases on domestic violence) were oddly missing. While I doubt MSPs are so ill-informed, it may be worthwhile investigating how familiar MSPs are with the Human Rights side of the argument.
At the end of the meeting, Mr. McLaughlin and Ms. Oxley were given a copy of CAAN’s Oct 2008 memorandum and a brief handout explaining our objections to the extreme pornography bill. Statement – Mar 2009
Overall, there was little new knowledge to be gained from the meeting, as expected. Mr. McLaughlin and Ms. Oxley suggested our time would be better spent giving evidence to the committees (here, the Justice Committee and Financial Committee), and we agreed. They said that the “call for evidence” would appear on the committee webpages. Somewhere. Ms. Oxley said she would be willing to help find any documents on the Scottish webpage that are difficult to locate.
But the meeting was not a complete waste of time. If anything, we now know that we can predict which arguments will be presented, and how many of our standard arguments will be received. In preparing our evidence for the committees, we should take this into consideration. We should highlight the gap in the defense for consenting partners who are not in the image, as well as continuing to educate our audience to the importance and content of BDSM safety material.