Backlash against Crown Prosecution Service’s ‘homophobic witch-hunt’
Obscenity law expert fears CPS using porn laws to persecute gay men
The CPS is targeting gay men for looking at legal adult pornography, an experienced defence solicitor warns. The Crown Prosecution Service pursued a gay man for possession of alleged indecent pornographic images over a 580-day ordeal. They continued long after the man’s defence produced conclusive evidence that all participants in the pornographic images were of legal age of consent.
The charges were finally dismissed when solicitor advocate Myles Jackman,Backlash legal adviser and expert in obscenity law, proved to prosecutors there was no case to answer. Wrongfully accused of viewing images of child abuse, the defendant suffered severe psychological harm and disruption to his life. This could have been avoided had the CPS taken a more common-sense approach to what was easy to establish as legitimate adult gay pornography.
Innocent viewing The false charges related to an incident in September 2011, when the defendant stayed overnight for a conference and used a computer provided in his bedroom to browse gay pornography. These images, of young-looking adult men, often known as ‘twink porn’ within the gay community, were discovered by a subsequent guest using the same room and reported.
Myles Jackman, Backlash legal advisor and advocate at Hodge Jones & Allen solicitors, used forensic experts to establish the age of all actors in the images. However, this was not sufficient to bring the prosecution to a halt. The CPS continued to pursue the case long after receiving conclusive evidence that all the images were legitimate gay adult pornography, and not of child abuse. In Jackman’s opinion, these actions could amount to a ‘homophobic witch-hunt’.
Badly written anti-sex laws encourage discrimination
Jackman has defended several gay men on allegations relating to their sexual identity. Charges have been made under the Obscene Publications Act, possession of so-called ‘extreme pornography’, and alleged indecent images.
In each case, the prosecution has either been thrown out before trial, or rejected by the jury on hearing the evidence. This suggests that the CPS’s charging decisions regarding possession and distribution of pornography are significantly out of step with what the general public consider to be criminal acts. The minority status of the defendants suggests that the CPS is targeting gay men for disproportionate scrutiny of their private sex lives. Even defendants eventually found innocent face having their most intimate sexual interests revealed and shamed in a public court.
Urgent action is necessary to prevent badly written legislation and poor charging procedures from discriminating against gay people and offering a state-sanction to hatred of sexual minorities.
The CPS’s pattern of victimisation
Michael Peacock (#ObscenityTrial) – sex worker, prosecuted for distributing gay fisting pornography. Found not guilty by jury in Southwark Crown Court in January 2012.
Simon Walsh (#Porntrial) – former aide to Mayor Boris Johnson and barrister specialising in police misconduct. Prosecuted for possession of images of a private adult sex party, in which he was a participant. Found not guilty by jury in Kingston Crown Court in August 2012.
#TwinkTrial – A gay man of high professional standing, charged by CPS in November 2012 with possessing pornographic images of alleged underage participants. Case dismissed months after evidence of no underage participants shown, 1 November 2013.
Further information
Myles Jackman, criminal defence solicitor: 07791 436100
Backlash – contact@backlash-uk.org.uk
Notes to Editors: 1. Backlash is an umbrella campaign providing academic campaigning and legal resources in the defence of freedom of sexual expression. 2. Myles Jackman specialises in sexual obscenity cases and is the legal adviser to Backlash. He was made Junior Lawyer of the Year by the Law Society in 2012. His blogs at Obscenity Lawyer.
3. Myles Jackman’s commentary on the case has been published by The Independent.
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Well “twinks” are the ‘barely legal’ category of boys just 18. I suppose some of those might look like it was uncertain whether they were 17 or 18, but no twinks look pre-pubescent. So the problem here is the 18 yo age limit for erotic videography – this age limit is between 5 and 7 years after the age of puberty and cannot be a genuine guideline to “paedophilia”. As far as I know, all reputable producers of pornography require documentary evidence of the age of the “actors”… I don’t think this a crackdown on gay men as such – more part of the paedophilia hysteria.
By the way, if 16 years of age is the age of consent, and the age you can legally consent to be sent to the front line in Afghanistan and be shot at by the Taliban, then that should also be the age for performing in pornographic videos. Whether people approve of such ways of earning money is neither here nor there – are you telling me soldiers on the front line in Afghanisatn are legally children?
Another thing is the burden of proof here. Do the people watching these videos have to prove the age of all the actors to the police? Or do the police have to prove the actors were under age? In any genuine justice system, it should be the latter – and if the identities of them are not known, and it is not possible to find out for sure the ages, then surely it should be visibly obvious if the actors are post-pubescent… and if they are… there should be no prosecution.
Yes, the “gay” part of this is the red herring. The vast majority of men being arrested for this kind of thing are straights, looking at straight porn. In ideological terms, the paedophilia campaigners would take the view that looking for porn in which the participants appear to be under age specifically is the same sin as looking at genuinely under-age performers; that is it is indicative of a paedophile nature in the viewer, regardless of the reality of the performers’ age.
I must admit that despite this being a subject I’m always on about, i have yet to ascertain any certainty as to whether proving that a picture depicts somebody 18 or over is a defence if they “appear” to be younger. I know that some jurisdictions it is not; Germany for instance.
The problem is, in many cases it would be impossible to know anyway. A porn loop from the 1970s depicting Tiny Tove Jansen, for instance; she was famously young looking at that was part of her popularity. It is known she was actually over 18, but I’m not sure how you would prove that. In some cases the provenance of a porn clip that has circulated on the internet might be entirely unknown. Where it has come from a modern, identifiable website, it should have a 2257 statement and thus be very legally clear.
But so far as I can tell, what is going on is that porn is simply being presented to courts as “looking” underage and it is basically down to the jury to make a judgement on that.
But as I said, the gay emphasis in this seems like a rather desperate special pleading to PC minority sympathies. The majority of cases are straight men with straight porn.
And as DJ says, the basic problem is pretending that a 17 year old is some kind of “paedophilia” anyway.
Depressing, really, that the porn laws never went away, but were only relaxed for reasons of technical unenforceability.
Well, depressing but also instructive.
There is something like the acquis communitaire in every State. Once the government has assumed a power over some sphere, it never relinquishes it. In a liberal zeitgeist, it may relax the rules. But it never returns a power to the people. So you may get liberal censorship, or illiberal censorship, but never does the government deprecate its right to censor.
Or, take energy. The government took power over the electricity grid. It then “privatised” it. But it never gave up the right to rule that sphere, and just replaced nationalised controls with “regulators”.
So really we have to take to heart your repeated statements that should a government of liberty ever take power, it must wield an axe, viciously and rapidly. Not just close down a department or privatise something, but destroy their records and obliterate them. And it must actually say, “we are not changing the rules. We are not just abolishing the rules. We are abolishing the government’s power to make the rules”.
Statist governments create structure, which exists long after the politicians have moved on. OFCOM, the Food Standards Agency, whatever the Equalities Mob are currently calling themselves still exist though Tony Blair is long gone, gadding about the yachts of oligarchic friends. We must set our sights on destroying structure. The particular rules vex us, but it’s the power to make the rules that counts.
Ian – i agree that the problem is much wider than gay porn and Backlash defends all consensual adult porn. Nevertheless, this particular case did seem to target gay sex disproportionately. Over-18 teen porn for straight people doesnt seem to have been targeted in the same way and with such aggression as it was here.