Eine Kleine Nichtmusik

Witty and pertinent observations on matters of great significance OR Incoherent jottings on total irrelevancies OR Something else altogether OR All of the above

Sunday, June 01, 2008

Simulacra and Simulation

Obviously it may not get printed, but I just wrote the following letter to the Guardian in response to an article yesterday by Mark Lawson.


Mark Lawson's article (This loophole is real. But the remedy is really perverse, 31 May 2008) is welcome, but not as timely as he imagines. British law has made no distinction (other than in sentencing guidelines) between real and computer-generated or otherwise faked indecent images of children since the Protection of Children Act 1978, whose paras 7.7 and
7.8 state

(7) “Pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

(8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

I haven't read the new proposals in detail, but they would appear to change only the applicable penalties rather than introducing any new legal concepts more sinister than the existing ones.

So there will be no need to rename 2008 as 1984: people have been criminalised for possessing wholly imaginary images for thirty years now. But thank you, Mark, for drawing attention to this "perverse remedy".


Just for completeness, I should add what I omitted from the letter, which is that in Scotland the cited paragraphs appear as the Civic Government (Scotland) Act 1982, Part IV, paras. 52(2A) and 52(2B). The law is the same, only the citation is different.

When I last posted on this topic I hadn't realised that the law involved had been around for so long. It seems likely that it only began to be used to a significant extent with the advent of widespread internet access and availability of applications such as Photoshop, all of which were some way in the future back in 1978, when the Commodore Pet and the Apple II were state of the art. Even the Sinclair ZX80 wouldn't arrive until 1980.
Update: as Gill O points out, it was printed in Wednesday's edition, alongside one from David Hockney. Never mind Keith Flett: being published alongside DH gives me the same kind of vicarious thrill as did graduating from Edinburgh University at the same ceremony in which Hamish Henderson was awarded an honarary D.Litt.


At 02 June, 2008 15:32, Blogger JoeinVegas said...

Of course, everyone knows that imagination is just as bad as reality, and should be equally punished.

At 04 June, 2008 21:11, Anonymous Gill O said...

Seems you hit home. Two letters published on the topic today - you and David Hockney. Dave spotted it and asked just how many Rob Saunderses there were likely to be in Edinburgh. We are as awed as you might expect to be connected to someone in the same league as Keith Flett....

At 07 June, 2008 16:37, Anonymous Gert said...

When I read the Green Paper I got a sense that this was intended to get the 'obviously guilty' and not let them off on a technicality rather than bang Jilly Cooper up for writing novels that feature under-age shagging. I hope that that is really the case. I just think it's one of those areas that is very very difficult to draft a loophole-free statute that doesn't then have unintended consequences (what I like to call the Jilly Cooper effect)

At 10 June, 2008 22:13, Blogger Rob said...

Gert - I don't buy it, I'm afraid. 'Obviously guilty' of what? If they're obviously guilty of possessing child pornography then why not require the police to produce some child pornography, rather than redefining other things as child porn? If they're obviously guilty of some other offence, whether child-related or not, their guilt will be shown by evidence: so let's see it. The only "technicality" avoided by removing the tedious need for child porn to involve either children or pornography is what most people call "innocence". It's rather like accepting a change in the law so that possession of heroin is an offence even if it's certain that the police planted it on someone who didn't have any (but was, you know, a bad guy).

As David Hockney pointed out in his contribution to the debate, non-erotic images of naked children have appeared in paintings for centuries, yet possession of such images by someone "obviously guilty" could land him on the Sex Offenders register. This is a sick statute with no place in a civilised society that believes in the rule of law rather than trial by reputation. The law has gone largely unchallenged for thirty-odd years because few people wanted to speak up for the right to a fair trial for those accused of our era's equivalent of witchcraft - the crime where accusation is deemed to imply guilt and acquittal is taken as a failure of the legal system. Well, not any more.


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