I explained to MSP Harvie about CAAN’s establishment in early 2008 in response to the extreme pornography legislation in Westminster, and that we are a grassroots loosely-knit group of individuals with no central member list, working to protect the rights of consenting adults. I presented him with a copy of CAAN’s statement from a memorandum (Oct 2008). He explained that CAAN’s statement: “We believe that it is not the business of government to intrude into the sex lives of consenting adults.”, closely aligns with the Green Party’s perspective.
MSP Harvie has been working to protect the rights of consenting adults in Scottish legislation in his work as an MSP. He has spoken with Kenny MacAskill regarding the extreme pornography section of the Criminal Justice and Licensing Bill (published 6 March, now entering stage 1), and is working on placing an amendment into the Sexual Offenses Bill (now in stage 2) stating that the government should not prosecute cases where consent is not contested (where both adults consent). He understands the challenges that face people involved in BDSM, and recognises that this is not a topic where people feel free to step forward (public and MSP). I mentioned some cases of discrimination against BDSM practitioners, and he agreed that this should not be the case, comparing it to the situation of LGBT in the 60′s. He is familiar with Backlash, Spannertrust, Feminists Against Censorship, and now CAAN.
Looking at the drawn up law together, we attempted to identify specific problem areas within the legislation. For the positive side, I said that this bill was better than Westminster’s with the inclusion of the word “educational” in the explanatory notes for acceptable material was good, as well as the use of ”context” to define illegality. I expressed concern over the term “realistic” (section 51A), the difficulty in a person proving that they (as photographer, often the top/dom/me) directly participated in the creation of the consensual image (defense 51C), and the contradiction in the fact that it is okay for me to have a consensual image of myself, but illegal for others to have it. MSP Harvie agreed with these sentiments, adding that the issue for erotic photographers is complicated in the creation of and distribution of what could be illegal images. Both of us agreed that the part banning extracts of classified films (section 51B) was convoluted, contradictory, and ill-thought out. MSP Harvie listened to my objections to the bill, and while he doubted we could get the whole thing excluded, it may be possible to change small parts in a positive way.
In the area of action, I explained that CAAN is currently lobbying MSPs, though we face strong resistance along the party lines, which he agreed with. He explained that the distraction of the under-21 alcohol addition to the CJLB may be a good way to draw attention from the extreme pornography section, possibly allowing for change. As pornography is an issue where MSPs feel obliged to “do something”, or be seen doing something, media attention may encourage them to dig their heels in, whereas a weaker spotlight may let them feel more free to step forward to dissent.
MSP Harvie is also concerned about the human rights aspect to the law. Scottish law is subjugated to European Human Rights law, and any legislation that is found to be in violation is struck down and overturned. (This is not the case in the rest of the UK.) As the CAAN statement presented had a reference to Human Rights lawyer Rabinder Singh, he suggested that we approach Scottish Human Rights Commissioner Alan Miller with Singh’s statement to see if Miller thinks there may be human rights issues at stake with this law. We will do this, sending a copy to MSP Harvie as well.
MSP Harvie pointed out that any discussion or evidence given during the creation of the law may be important later. When a case is looked at, first they consider the legislation itself. Then they consider the “intention” behind the legislation, which can be referenced by the explanatory notes, commentary, discussions, and evidence given in both committees and on the Parliament floor, and essentially any public record relating to the law. Thus, even though the law itself may be vague, commentary on the intention on a specific section may lead courts to a different decision than one would otherwise think. This bodes well for the more subjective sections of the law.
I presented MSP Harvie with a statement from CAAN, and asked for a formal statement. I explained that people may be more likely to participate and comment if they knew that there was at least one voice in the Scottish Parliament who is willing to listen and understand. He agreed with this and said that some formal statement would be emailed for CAAN to share with others. This statement will probably be less extreme than CAAN’s statement, but will nonetheless be helpful.
I encourage outside organisations who share concerns about the extreme pornography legislation to speak with MSP Harvie. Individuals who have concerns about anonymity should write to MSP Harvie as well, because I feel he would be sympathetic towards these fears of job loss, etc.
11 March 2009