Shaping Law Reform and NGO Campaigns on Extreme Pornography and Pornographic Images of Rape
Submitting InstitutionUniversity of Durham
Unit of AssessmentLaw
Summary Impact TypeLegal
Research Subject Area(s)
Law and Legal Studies: Law
Summary of the impact
Research conducted by the research group `Gender and Law at Durham'
(GLAD) has had a significant effect on the enactment and reform of the
criminal law relating to the possession of extreme pornography, and on the
activities of NGOs lobbying for change in this area. In particular, the
research has generated the following impacts:
(1) In Scotland, it has shaped the campaigns of NGOs,
recommendations of the Parliamentary Justice Committee, and new
legislation by the Scottish Parliament to criminalise the possession of
pornographic images of rape.
(2) In England, it was used by Rape Crisis (South London) and the
End Violence Against Women Coalition for their campaign to `close the rape
porn "loophole"'. This led to a change in Government policy in England and
Wales, and a public commitment by the Prime Minister to amend existing
English legislation criminalising the possession of extreme pornography to
include rape pornography.
In 2005-06, the UK Government and Scottish Executive undertook a joint
public consultation exercise on a proposed new law for England and Wales
to criminalise the possession of `extreme pornography'. Though initially
the definition of `extreme pornography' was sufficiently broad to
encompass pornographic images of rape, in response to criticisms during
the consultation process, the UK government subsequently narrowed the
definition of extreme pornography to exclude the majority of such images.
This narrow definition was enacted in the Criminal Justice and Immigration
Act 2008 (CJIA) for England and Wales accompanied by a further
specification that material must be `obscene' in order to constitute
`extreme pornography'. The Scottish Executive did not publish its response
to the consultation until 2008, after the enactment of the CJIA.
An analysis of the initial proposals by McGlynn and Rackley in 2007 (output
1) criticised the UK government's decision to narrow the definition
of `extreme pornography' on the basis that it would not cover pornographic
images of rape unless they were accompanied by serious or life-
threatening violence. Following the introduction of the CJIA McGlynn and
Rackley published a detailed criticism of the legislation (output 2),
which included recommendations that the law be reformed to (1) remove the
criterion of `obscenity', as this focuses on moral harm and offence, and
(2) extend the definition of extreme pornography to encompass images of
rape. They proposed a justification for the criminalisation of
pornographic images of rape on the basis of the `cultural harm' of forms
of extreme pornography which sexualise violence against women.
Justifications for criminal law have tended to focus on a requirement for
evidence of direct, physical harm to specific individuals before
legislation is adopted. In contrast, McGlynn and Rackley's research argued
that the prevalence and easy availability of rape pornography generates a
form of `cultural harm' against many women, sufficient to justify
criminalisation. It is a paradigmatic example of sexualised violence
against women, which contributes to the normalisation and prevalence of
such violence and its marginalisation in the criminal justice system. In
an article co-authored with Ward, McGlynn developed the argument that the
law should not be based on obscenity standards, but instead justified on
the basis of `cultural harm' (output 3).
The value of the `cultural harm' argument is that it provides an
additional justification for criminal regulation in the absence of direct
evidence of a causal link between extreme pornography and sexual violence.
This is a particularly useful argument in policy debates that are
generally polarised between conservative morality-based justifications
(which do not focus on violence against women but the immorality of
pornography) and liberal free speech concerns (about the absence of a
direct causal link between pornography and physical harm). In addition,
the focus on rape pornography directs debate towards the potential adverse
impacts of pornography on women, rather than on the traditional focus on
morality and freedom of expression.
The research was carried out from 2007 to 2009 when McGlynn was a
Professor in Durham and Rackley a lecturer, then senior lecturer. Ian Ward
is Professor of Law at Newcastle University, and was responsible for one
half of output 3. He did not contribute to the dissemination activities.
References to the research
1. Clare McGlynn and Erika Rackley, `Striking a balance: arguments for
the criminal regulation of extreme pornography' (2007) Criminal Law
Review 677-690 [Can be supplied on request]. The Criminal Law
Review is the leading criminal law journal in the UK and is
internationally recognised as being among the best criminal law
2. Clare McGlynn and Erika Rackley, `Criminalising extreme pornography: a
lost opportunity' (2009) Criminal Law Review 245-260 [Listed in
REF2]. A peer reviewer commented that this "is one of the best articles I
have read for some time. ... The legal analysis is crisp and intelligent.
The critique is thoughtful and sharp. ... I wish more authors could write
with this degree of clarity and insight. So, to state the obvious: we must
publish it.' This article is widely cited in the legal literature on
extreme pornography, and extracted and cited in leading textbooks (eg:
Ormerod, Smith and Hogan's Criminal Law, 13th ed, p 1075).
3. Clare McGlynn and Ian Ward, `Pornography, pragmatism and proscription'
(2009) 36 Journal of Law and Society 327-351 [DOI:
10.1111/j.1467-6478.2009.00470.x]. The Journal of Law and
Society is a world-leading journal, rated A* by the Australian
Details of the impact
1. Directly Influencing Scots law on Extreme Pornography to Include
Durham University's research has influenced NGO activities, public and
policy discussions, the recommendations of the Scottish Justice Committee
and Ministry of Justice, and has consequently shaped Scots law on extreme
pornography. The effect is that, in contrast to the law in England and
Wales, Scottish legislation specifically includes rape within its
definition of what constitutes `extreme pornography' (Scottish Criminal
Justice and Licensing (Scotland) Act 2010 s42).
Shaping NGO activities and policy debate in Scotland
McGlynn and Rackley's research was a large influence on the arguments used
by women's organisations in Scotland to campaign for measures against
extreme pornography, and specifically on (a) arguments used to justify
criminal sanctions and (b) the need to include rape pornography within the
remit of the proposed legislation.
Rape Crisis Scotland state that McGlynn and Rackley's research was
`particularly useful' in directing their campaign away from `the
cul-de-sac of causal harm' and was `really, really helpful in terms of how
we ... approach[ed] it [the campaign]'. As a result, `we framed it [our
campaigning] very much in terms of the cultural harm'. This `had a big
impact': ` we got the legislation we wanted in Scotland' because `we
managed to avoid what you have in England which is a distinction in terms
of forcible rape [with violence] and I think that is quite an
achievement'. The effect has been that the new law, `gives us a really
important tool to try to address what we think is a major area of concern,
but also because the law has an educative function as well' (source 1).
The `cultural harm' argument, and examples from a Factsheet on Rape
Pornography, produced by McGlynn and Rackley which gave contextual
information about the existence and nature of `rape pornography' (see https://www.dur.ac.uk/resources/glad/GLADFactsheet.pdf)
were also widely cited in the Scottish media (sources 1-2). The
Scotsman invited McGlynn to submit an opinion piece, arguing for
inclusion of pornographic images of rape in legislation on the basis of
`cultural harm' (`Is this Big Brother in the Bedroom: No', 18 January
and the newspaper gave support and emphasis with a front-page article.
This discussion of `cultural harm', and the omission of rape from the new
English law ensured that, in contrast to debates in England and Wales
prior to the enactment of the CJIA, public debate focused on violence
against women. This created the policy context in which the Scottish law
on extreme pornography was more likely to include pornographic rape
Shaping the Recommendations of Scottish Parliament Justice Committee
and Ministry of Justice
In December 2008, in order to influence the Scottish consultation and
legislative processes, McGlynn and Rackley disseminated the research
findings of outputs 1-3 through letters to a large number of
Scottish MSPs, government ministers and departments (see, eg, https://www.dur.ac.uk/resources/glad/GLADLetter.pdf).
These letters presented the key lessons from analysis of the English
legislation (drawing on outputs 1-3), emphasising the failure of
the English legislation to criminalise the possession of all rape
pornography, as well as outlining the `cultural harm' justification for
the introduction of a law criminalising the possession of extreme
pornography. In January 2009, McGlynn drew on outputs 1-3 to
deliver a plenary lecture at a conference organised by Rape Crisis
Scotland, and attended by the Scottish press, the Scottish Justice
Minister, members of the Scottish Procurator Fiscal's Office and women's
rights campaigners and activists.
McGlynn and Rackley also submitted written evidence (with copies of outputs
1-2) to the Scottish Parliament's Justice Committee during its
consultation on the proposed legislation. In addition, eight women's
organisations, comprising one third of respondents and including Rape
Crisis Scotland and the Women's Support Project (a Glasgow-based women's
organisation funded by local and national government), deployed the
`cultural harm' argument in their submissions to the Justice Committee
and/or quoted directly from the Factsheet on Rape Pornography, produced by
McGlynn and Rackley (source 3). During their deliberations, after
the initial consultation process, the Committee received supplementary
evidence from a third party which highlighted and responded to McGlynn and
Rackley's submission (source 4, p. 13). McGlynn and Rackley's
submission had a direct influence on the Committee's recommendations. In
its Report, the Committee endorsed their argument that the use of the term
`obscenity' should be reviewed, and that greater consideration should be
given to the 'cultural harm' of extreme pornography (source 5,
In 2010, the Scottish Parliament adopted a new criminal law on extreme
pornography which was broader than the English legislation and which
specifically covered rape pornography. In 2011, the Scottish Justice
Directorate responded to a Freedom of Information request from the
organisation `Consenting Adult Action Network' which had objected to the
legislation, and which sought information on how the decision had been
made to include rape. In response, the Justice Directorate referred
directly to the letter received by the Minister of Justice from McGlynn
and Rackley as advocating for this and attached a copy of the letter to
its response (source 6).
2. Changing Government Policy in England & Wales and
Influencing NGO Campaigns
In May 2013, the Ministry of Justice stated that it did not `feel it
appropriate or necessary' to extend the law to cover pornographic images
of rape (source 7). Following this announcement, Rape Crisis
(South London) and the End Violence Against Women Coalition (EVAW)
launched their successful `Stop Rape Porn' campaign (source 1).
McGlynn and Rackley advised this campaign, and shaped the arguments it
presented. EVAW state that Durham University's research is `incredibly
powerful and is really important ... [it] helps us to make the case to
government, and it improves the way that we influence and the work that we
do as it brings something very solid to our campaigns' (source 1).
McGlynn's and Rackley's work included: attending meetings at the Ministry
of Justice and with Government and Opposition MPs; producing briefing
documents, drawing on outputs 1 and 2, making comparisons between
English and Scottish law, and making recommendations for reform https://www.dur.ac.uk/resourcesglad/McGlynnRackleyRapeP_rnBriefingJuly2013.pdf).
They also assisted EVAW in drafting an open letter to the Prime Minister,
which was signed by over 100 women's groups, campaigners and academics,
including Sue Berelowitz, Deputy Children's Commissioner and Mumsnet (source
7). The campaign attracted considerable public support. A Change.org
petition, which referred to the Durham University research, secured over
72,000 signatories in a month, and the issue was raised by three MPs
during an Opposition Day debate in Parliament. During the debate, Diana
Johnson MP quoted McGlynn's statement, drawing on the arguments of output
2, stating that "It is undeniable that the proliferation and
tolerance of such images and the messages they convey contributes to a
cultural climate where sexual violence is condoned" (source 8).
The campaign also shaped wider public debate. During June and July 2013,
McGlynn and Rackley were quoted or referred to over 45 times in
international media (France, New Zealand, India) and in national media
(including Guardian, Daily Mail, Independent, Times, Observer,
BBC news and Sky News). There were over 210 further media discussions of
the campaign, including the front page of the Daily Telegraph
(`Porn loophole "gives animals more rights than women"', 18.6.13) (source
9). McGlynn was also interviewed on BBC Radio 4's Woman's Hour and
`Law in Action' about rape pornography and the key findings of the
The effect of the campaigns influenced by McGlynn and Rackley is that in
July 2013, the Prime Minister announced that the Government would `clos[e]
the loophole' in the legislation, `making it a criminal offence to possess
internet pornography that depicts rape' (source 10). In announcing
this change of policy, the Prime Minister recognised that possession of
such material was already a criminal offence in Scotland, and that such
`images normalise sexual violence against women' repeating the arguments
made during the campaign and in Durham University's research. EVAW state
that Durham's `research on extreme pornography was absolutely fundamental
to securing the high profile commitment by the Prime Minister' and that
`without the research and the expertise of the legal academics ...there is
no clear way that that would have been such a success, and it was a
success in a very very short period of time because it was so evidenced
and so strong' (source 10).
Sources to corroborate the impact
- Rape Crisis (South London), Rape Crisis Scotland & End Violence
Against Women Coalition, testimony transcript evidence, 8 May 2013 and 9
- Annie Brown, `Shock of the sick websites which seek to glorify rape',
Daily Record, 19 January 2009 (http://www.dailyrecord.co.uk/news/uk-world-news/shock-of-the-sick-websites-which-seek-to-glorify-1005931).
McQuillan, `Do extreme images put women's lives at risk?' The Herald,
20 January 2009 (http://www.heraldscotland.com/do-extreme-images-put-women-s-safety-at-risk-1.900262);
Thompson, `Pornography is just another form of violence', The
Scotsman, 21 January 2009 (http://www.scotsman.com/news/linda-thompson-pornography-is-just-another-form-of-violence-1-1189668)
- Scottish Parliament Justice Committee, Criminal Justice and Licensing
(Scotland) Bill, collated written submissions: CJL13; CJL 17; CJL 22;
CJL 29; CJL 46; CJL54; CJL 75; CJL79: http://archive.scottish.parliament.uk/s3/committees/justice/inquiries/CriminalJusticeandLicensing/ju-criminaljustice-evid.htm.
- Scottish Parliament Justice Committee, 19th meeting, (9
June 2009), papers 19: http://archive.scottish.parliament.uk/s3/committees/justice/papers-09/jup09-19.pdf.
- Scottish Parliament Justice Committee Report, SP334, 18th
Report (2009) [292-294] and : http://archive.scottish.parliament.uk/s3/committees/justice/reports-09/jur09-18-02.htm#16.
- Scottish Justice Directorate, Freedom of Information Response, 17
October 2011: http://caan.org.uk/wp-content/uploads/2012/05/FOI-Reply-17-October.pdf.
- End Violence Against Women, Campaign to ban 'rape porn', including
copies of: Ministry of Justice letter of May 2013 stating policy of no
change to the law; text of open letter to the Prime Minister; legal
briefing by McGlynn and Rackley; and link to change.org `close rape
pornography loophole' petition: http://www.endviolenceagainstwomen.org.uk/media-sexism
- Protecting Children Online: Opposition Day Debate, HC Deb 12 June
2013, Cols 366; 401 (Geraint Davies), Col 366 (Stella Creasy), Col 396
(Susan Elan Jones) Col 405 (Diana Johnson): http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm130618/debindx/130618-x.htm
- See, eg, "Call to close 'rape pornography website loophole'", BBC
"Criminalise possession of 'rape porn', campaigners urge David Cameron",
"Extreme Porn Loophole Must Be Closed, PM Told", Sky News, http://news.sky.com/story/1100493/extreme-porn-loophole-must-be-closed-pm-told
and table of other citations.
- Speech: The internet and pornography: Prime Minister calls for action,
22 July 2013: https://www.gov.uk/government/speeches/the-internet-and-pornography-prime-minister-calls-for-action