An image is pornographic if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Whether an image is pornographic or not is an issue for a Judge or jury to determine simply by looking at the image. It is not a question of the intentions of those who produced the image. Nor is it a question of the sexual arousal of the defendant.
For an image to be considered ‘extreme’ it must be explicit and realistic; both those terms take their ordinary dictionary definition. Taking an example which was raised during parliamentary debates on the Criminal Justice and Immigration Bill, the anal sex scene in the movie “Last Tango in Paris”, even if it were to be considered pornographic and of an obscene nature, would not be caught by the new offence, because it is not explicit and does not portray an act resulting or likely to result in serious injury to a person’s anus. The painting “Leda and the Swan”, another example raised during debates in Parliament, would also not be caught by the new offence, because it would not meet the “explicit and realistic” test.
Helpful definitions of acts include:
a) An act which threatens a person’s life;
b) An act which results in or is likely to result in serious injury to a person’s anus, breast or genitals; this could include the insertion of sharp objects (although in some circumstances this can be done in a way that is not likely to result in serious injury) or the mutilation of breasts or genitals. It is likely to be difficult to prove that cases of ‘fisting’ involve images that show activity that is likely to result in serious injury so these cases need to be handled with particular care.
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