10 - The prohibition of publications

Summary

The need for prohibition

10.1 In the previous chapter we explained our decision that the principal objective of the law should be to prevent offence to the public at large and to protect young people from exposure to unsuitable material. We described how some witnesses thought that measures of that kind were the limit of the law's concern, how others felt they were no more than a starting point and how others considered that the appropriate course was to supplement them by more rigorous measures against certain types of material. We shall consider in this chapter what the law needs to do once it has secured its prime object of curbing public offensiveness. Is there anything that one should prohibit totally, even for adults who want to have it?

10.2 Under the general principles discussed in Chapter 5, any such proposal has to be related to harms. Our proposals in this chapter therefore have to take account of the detailed study we made of allegations of harm in Chapter 6. Leaving aside offensiveness, which is dealt with by restriction, some of our witnesses thought that there were no harms involved in pornography which were not already outlawed by other penal provisions; we could either leave protection from those harms to be dealt with by the schemes of law concerned, or simply provide a prohibition on material depicting acts which contravened the law. At the very least, this would have to be a prohibition on pictures which not only depicted an illegal act but were also offensive; otherwise it would be illegal for there to be a photograph of someone driving across a double white line. But even with material within our terms of reference, great anomalies would be involved.

The depiction of sexual offences

10.3 A basic problem is that the present law on sexual offences itself contains anomalies, so that to use these laws as the basis of prohibitions on pornography would produce very odd results. What two consenting male adults do in private is not by and large the concern of the law. Heterosexual buggery, on the other hand, even between a married couple, constitutes an offence.