Deborah Orr: A law that limits people's actions, not their thoughts

Can it be humane to insist that the sexually disturbed be shielded from self-knowledge?

The dead cannot give consent. Nor can animals. That's why even those most passionately opposed to the Government's new offence of possession of extreme pornographic images have no quibble with a couple of the sub-clauses within section 63 of the Criminal Justice and Immigration Act 2008.

Few protest at the possibility that a person may be prosecuted for accessing images of "an act involving sexual interference with a human corpse" or "a person performing an act of intercourse or oral sex with an animal (whether dead or alive)". This is because objections are centred on the idea that consenting adults should be allowed to do whatever they like in private, and also, more pertinently, look in private at depictions of other consenting adults doing whatever they like too.

One is tempted to point out that if the latter group kept their own activities out of the public domain, then there wouldn't be a problem. This, I think, is exactly the point Max Mosley made successfully in the courts, when he won his privacy case against the News Of the World. If people wish to take part in private sadomasochistic sexual activity, then that's up to them, and no one has the right to expose them to uninvited public examination. Mosley is to be admired for setting a legal precedent in this case, and his victory was more generally reassuring in a cultural climate that routinely opines that the law is an ass.

Yet there are legal precedents in Britain dictating that even sadomasochistic behaviour, and its portrayal and consumption, should have its limits. The new legislation seeks further to define these limits. Critics say that the legislation is so vague that it is pointless. Perhaps that is true, although it doesn't seem so terribly vague to me – not as vague as the arguments that have been offered against it, anyway.

The legislation suggests that other than necrophilia or bestiality, only pornography (material made solely or principally for sexual arousal) portraying an act which threatens a person's life, or which results or is likely to result in serious injury to a person's anus, breast or genitals, should be considered to be extreme violent pornography. Crucially, Section 63 also insists that images of these acts are not illegal unless they are "grossly offensive, disgusting or otherwise of an obscene character" and explicit and realistic enough that "a reasonable person looking at the image would think that the people and animals portrayed were real".

So, contrary to some reports, drawings or cartoons would not be deemed illegal. Section 63 stresses that a requirement under the act would be that "only photographs and films, and images which are indistinguishable from photographs and films, will be caught by the offence".

Nor would scenes of straightforward bondage and discipline, dominance and submission, or sadism and masochism be "caught by the offence". Although life-threatening is not defined in the act, and "therefore takes its ordinary English meaning", the examples given are "depictions of hanging, suffocation or sexual assault involving a threat with a weapon". Serious injury is not defined in the act either, although reference is made to grievous rather than actual bodily harm, and the examples given are "the insertion of sharp objects" or "the mutilation of breasts or genitals".

So when Ben Westwood, a photographer who is vociferous in his opposition to the legislation, complains that it will place great limitations on his artistic work, this is the sort of artistic work he is presumably referring to. I've only ever seen his photographs of comely wenches wearing high boots and corsets, and don't feel at all deprived because I have been denied the pleasure of seeing the comely wenches realistically portraying having their breasts slashed or being erotically and persuasively asphyxiated. I suggest that like the rest of his family, Mr Westwood is most happy when drumming up self-publicity by portraying himself as more shocking than he really is.

No doubt it's terribly patronising to suggest that those who do consider visual prompts displaying extreme pornographic violence to be vital to their contented existence are disturbed, and awfully judgemental to suggest that those who want to make their living from pandering to such disturbance are exploitative. But that seems to me to be the real pity of this legislation. It targets those who compulsively consume material showing sexual cruelty because technology has made it so very difficult and expensive to find and prosecute its producers.

Rather too much has been made of the link between Liz Longhurst's campaign to criminalise access to images showing erotic asphyxia, and the progress of this legislation. Prior to luring and abducting Longhurst's daughter Jane, Graham Coutts had accessed websites portraying erotic asphyxia many thousands of times. Campaigners against the legislation insist that it sentimentally appeases a bereaved mother, and that those who are aroused by watching portrayals of people being mutilated and killed should not be victimised because of this one man's terrible crime.

This argument advances the idea that extreme and perverted sexual violence against others is perfectly acceptable, as long as it stays in the head of the consumer, or is portrayed hyper-realistically, rather that being real. Any attempt to interfere with the enjoyment of such thoughts is wrong, a thought crime.

Yet this legislation does not attempt to limit people's thoughts. It merely attempts to limit the tools people can access in order to intensify and further stimulate those thoughts. If others should not interfere in private and personal thoughts, then surely it is the purveyors of material designed further to arouse such thoughts who are committing an assault on minds. Can it really be humane to insist that the sexually disturbed should be shielded from the knowledge that they are doing something wrong and damaging to themselves?

The law says it is not humane, and has said so since long before this legislation was tabled. Many of the pressure groups that are now organising against this legislation came into being in protest against Operation Spanner, in 1987. In this landmark case, Manchester police convicted 16 men of various charges, including actual bodily harm, after they had been filmed carrying out consensual sadomasochistic acts on each other.

All of the men entered guilty pleas, but took an appeal to the High Court, then the House of Lords and eventually to the European Court of Human Rights. In Britain, it was upheld that a person does not have the legal ability to consent to receive an act that will cause extreme harm, even in the name of sexual pleasure. In Europe, the right of Britain to decide this for itself was affirmed.

What this means is that all those who insist that this legislation will criminalise the ownership of a staged image of an act that is perfectly legal, are talking absolute rubbish. It is not legal to asphyxiate a man because he asked for it – as campaigners for euthanasia know well. It is not legal to put a sharp instrument into a woman's vagina "if she wants it". And any image or film suggesting that sometimes women may want such a thing is indeed "corrupting of public morals", whether the cuts and lacerations are "real" or just fantastically orgasmic.

d.orr@independent.co.uk