The Act New section 66H of the 1998 Act: Interpretation Part 5: Criminal Law Section 66: Defence: participation in consensual acts
471.An additional defence for those who participate in the creation of extreme pornographic images is provided for in this section. Subsection (1)(b) limits this defence, however, by excluding the images listed in section 63(7)(d) - those showing images of bestiality. Also excluded are necrophilia images which depict a real corpse.
472.Subsection (2) sets out the matters that a defendant must prove, on the balance of probabilities, in order to benefit from the defence. He must prove that he directly participated in the act or acts portrayed in the image and that the act(s) did not involve the infliction of non-consensual harm on any person. Where the image depicts necrophilia the defendant must also prove that the human corpse portrayed was not in fact a corpse.
473.Subsection (3) defines non-consensual harm as harm which is of such a nature that, in law, a person cannot consent to it being inflicted on him or herself, or harm to which a person can consent but did not in fact consent.