Last week the Crown Prosecution Service published updated guidance for prosecutions under the Obscene Publications Act (1959). Legal campaigning has brought about a big change: the liberal tests of harm, consent and legality of real acts are now key parts of their working definition of obscenity. The CPS explain:
… conduct will not likely fall to be prosecuted under the Act provided that:
- It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined from the material itself); and
- No serious harm is caused
- It is not otherwise inextricably linked with other criminality (so as to encourage emulation or fuelling interest or normalisation of criminality); and
- The likely audience is not under 18 (having particular regard to where measures have been taken to ensure that the audience is not under 18) or otherwise vulnerable (as a result of their physical or mental health, the circumstances in which they may come to view the material, the circumstances which may cause the subject matter to have a particular impact or resonance or any other relevant circumstance).
The guidance supports a realistic notion of consent which means that depictions of most safe, consensual activities under the umbrella of BDSM are unlikely to be subject to prosecution:
“Non-consent for adults must be distinguished from consent to relinquish control. The presence of a “gag” or other forms of bondage does not, without more, suffice to confirm that sexual activity was non-consensual.”
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