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01.08.2009 | Halya Coynash

Go whither I know not – and ban it all

   

You’d have thought there was nothing easier. The crime was known, together with the age of its victims. Crimes against child must be prevented. Perhaps not everyone would have coped with the task of determining the level of criminal liability, but then not everybody would have managed to so catastrophically muddle it all. They’re penalizing the wrong people, goodness knows for what, and children remain unprotected.

At the end of June the President brushed aside such trivial considerations as the calls of the public, the requirements of international agreements and commonsense and signed a law passed – with no less blithe indifference to these considerations – by the Verkhovna Rada. Through its law “On amendments to Article 301 of the Criminal Code (on liability for possession of works, images or other items of a pornographic nature), the valiant legislators came up with a total ban on possession of pornography (for the purpose of sale or circulation). We will consider what exactly they banned, and what the consequences are likely to be a little later, however first it is worth thinking about those whom the law betrays since fine words will not help them..

We are talking about real children, often small, whom adults rape or in other ways sexually abuse. This abuse is filmed and photographed so that in virtual regime they can get aroused by the photographs of children abused in real time and scarred for their entire life. Or so that others, often although not always for money, get the same very specific “kicks”. The Minister of Justice in vain tried to allay concern by assuring people that “possession of pornography for private use is not a crime”. Conscious possession of child pornography most certainly is a criminal offence. It is this that is stressed in the international documents which the legislators refer to when they claim that their law is required to “bring domestic legislation into line with Ukraine’s international legal obligations”. Given all other explanations I would even like to believe that they simply did not read these documents. Yet civic organizations did, and their objections were met with references to the documents on the rights of the child and to some “International Convention on preventing circulation and trade in pornographic publications, the existence of which not only I heard about for the first time. And the President signed a law which finds much more a crime than is warranted, while not that which was required.

After almost a year of extraordinary activity from the National Expert Commission for the Protection of Public Morality [the Commission] it is difficult to believe that all this is accidental. We have been hearing for a long time now how the Commission wants to fight child pornography, xenophobia and propaganda of hatred. In fact it interests itself almost exclusively in what it deems “pornography”.

What is most galling is not even the cynicism of referring to obligations that you are not fulfilling, but a kind of moral nihilism. Through this confusion of different issues, people totally forget about a crime which any normal human being would be prepared to fight. This in fact could and should be achieved through the joint efforts of the government, Internet providers, the media and society in general. Instead of that we have a situation where something is banned because that’s what was decided. There are a lot of people who consider a total ban on pornography to be an unwarranted restriction of people’s rights in a democratic society. I am for the most draconian measures to combat child pornography, and support a ban on pornography with violence, however in the absence of such criminal elements find it quite unfathomable why the State should dictate what people can and can’t watch. There simply need to be reasonable restrictions so that this does not disturb other people.

But we got what we got - only what that is remains less than clear. It became apparent this year how specific an understanding of pornography is held by the morality officials in the Commission. The most extraordinary event was the conclusion issued regarding the “pornographic nature” of the novel by renowned Ukrainian writer Oles Ulyanenko “The Woman of his dreams”. Even using their criteria for classifying material as “products of a pornographic nature”, it would be difficult to predict such a decision. The law must be comprehensible and foreseeable, not some kind of array of not overly clear and extremely subjective concepts. Especially when some persistently repeated terms are not defined at all. If one of the criteria for judging material pornographic is “propaganda of sexual deviations”, then excuse me, explain to us mere mortals what is meant. So that, God forbid, you don’t find some homophobic police officer concluding that any material about homosexual relations can be banned.

All of this has been said many times by human rights organizations and members of the media. It would seem that for politicians and officials our well-founded criticism is also viewed as trivia since there are no signs of any efforts to make the law clearer and more foreseeable. In fact the Commission is more and more actively pushing its understanding of how to protect public morality and it is quite possible that in the near future it will receive the right to provide official assessments for the court.

It is not necessarily clear what precisely will be changed by the law. Criminal liability is imposed for possession of all “works, images or other items of a pornographic nature”, whatever exactly these may be. As already mentioned, all attempts to justify the new restricts through reference to international obligations are cynical hypocrisy since they were supposed to impose an unconditional ban on the creation, possession and circulation of child pornography which they did not do. Why there should be liability for the possession of other forms of pornography is quite simply incomprehensible, and they can stop citing non-existent international agreements.

In theory one can argue that at least possession of child pornography for the purpose of sale or circulation is criminalized, and that for other “products of a pornographic nature”, the situation has not changed so radically since previously possession for the purpose of circulation was viewed as preparation for committing a crime.

Why confuse the issue, if their aim really is to combat child pornography? It is difficult not to conclude that that the lack of clarity in legislation suits those in power. As if it weren’t enough that nobody knows what will be judged “works, images or other items of a pornographic nature”, it is also not clear how they will ascertain the purpose. The Minister of Justice considered it necessary to explain that this “can be the possession of a large number of copies of one and the same work, or if there are the relevant civil law agreements regarding the sale or transfer of these works, etc”. Fine, but why is this not clearly stipulated in the law and, excuse me, how many is a “large number”? How anyway are we to understand the undefined term “circulation”? Who is to define it – the police officers who turn up in a flat or at the editorial office of a media outlet? The scope for abuse seems vast. Specifically for abuse since by a court hearing you’ll be able to engage specialists and the prosecution will have to prove that it’s pornography, and that it was in the person’s possession for the purpose of sale or circulation.

However it’s a long way to the court, and who, I’m sorry, will wish to explain to their employers or relatives why they couldn’t come to work or where the unanticipated expenses came from? As a result of this innovation it is much easier to blackmail people and demand bribes. I fear it could also be used against gay rights organizations or at the end of the day any annoying media outlets, organizations or individuals. They’ll organize a search and with such vague legislation you don’t even need to plant anything “naughty”. They can call whatever they like, even a novel, “pornography”. Or they’ll begin rummaging in your computer – amazing what they can “find”. You can and must argue, however arguing is difficult and costly, as they all know very well. In a word, as an additional means of pressure on people it’s a real gift.

While for freedom of speech, the rule of law and fighting arbitrary rule it is the latest blow.

 

(Ukrainian original: Телекритика № 7-8 (2009)

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