Commentary on Sections Offences involving sexual grooming or pornographic images Section 37: Possession of pornographic images of rape and assault by penetration
371.This section amends the extreme pornography offence at section 63 of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) to cover the possession of extreme pornographic images that depict non-consensual sexual penetration. These amendments will form part of the law of England and Wales and Northern Ireland (like section 63 of the 2008 Act) but change the law only for England and Wales.
372.The section inserts a new subsection (7A) into section 63 of the 2008 Act which contains two additional categories of prohibited material: an image which portrays, in an explicit and realistic way - a) an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis, and (b) an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else. The new category of prohibited material will include any image of that nature, irrespective of whether the act is real or simulated (or staged) or whether a person has come into possession of that image from an electronic source or otherwise.
373.Subsection (3) applies a defence to possession of an image that portrays an act within subsection (7A), alongside existing defences to the section 63 offence, to a person who is a participant in the image, as well as the possessor, where he or she can prove that, despite any appearance to the contrary, consent was given (freely and by someone who had capacity).
374.Subsection (4) provides that a person found guilty of an offence of possessing images coming within the ambit of new subsection (7A) will be liable to a maximum sentence of imprisonment of three years, or a fine, or both.
375.Subsection (5) amends Schedule 14 to the 2008 Act to incorporate the extended definition of an extreme pornographic image in England and Wales. Schedule 14’s purpose is to ensure compliance with the UK's obligations under the EU E-Commerce Directive.(23) Paragraph 1 of the Schedule extends liability for the section 63 offence to internet service providers established in England and Wales or Northern Ireland who possess an extreme pornographic image in an EEA state other than the UK. This is subject to the exemptions in paragraphs 3 to 5 of the Schedule for where they are acting as mere conduits for the material or are caching or hosting it. For internet service providers established in England and Wales who possess an image in an EEA state other than the UK the extended definition of an extreme pornographic image will apply in determining whether they have committed an offence.