Violent pornography
Violent pornography is pornography that deals with violence . Depending on the country, it may be subject to special restrictions and prohibitions.
German legal situation
In Germany , violent pornography is considered "hard pornography". According to Section 184a of the Criminal Code (StGB) ( dissemination of violent or animal pornographic writings ), its dissemination is an offense that is punishable by imprisonment of up to three years or a fine .
The production of violent pornography is not a criminal offense, but the production with the intention of dissemination or making available. The mere possession of such media without the intention to distribute it is not punishable. See also the article Ban on distribution .
Legal interpretation
The term violence is defined very differently depending on the context. "Violence" is usually understood to be an illegal, non-consensual act directed against the physical or mental integrity of another. See also the article Violence . In 2000, one of the few remaining areas in which such violence was still permitted in Germany, parental punishment , was abolished. In Germany, however, violence that is exercised with mutual consent is not generally illegal, e.g. B. in sports , in medicine or in the field of BDSM .
The following interpretations come from Tröndle / Fischer:
- For a pornographic work to fall under Section 184a of the Criminal Code, the pornographic character of the work must come about precisely with regard to the representation of violence. A simple pornographic work that also contains acts of violence is not subject to § 184a StGB, but only § 184 StGB, possibly also § 131 StGB ( depiction of violence ). For example, a film that contains violence and pornographically portrayed sexuality separately from one another in terms of time, space or content does not fall under the term violent pornography.
- For Section 184a of the Criminal Code it does not depend on whether an actual or a fictitious event is depicted.
- The term “violence” used in Section 184a of the Criminal Code basically corresponds to that used in Section 125 of the Criminal Code ( breach of the peace ). According to general opinion, the following are covered:
- pornographic depictions of sexually motivated cruelty and violent crimes
- pornographic depictions of bodily harm
- pornographic depictions of rape
- pornographic depictions of sexual assault with the use of considerable violence
- pornographic depictions of violations of physical integrity,
- According to the prevailing opinion , it is irrelevant whether it is a matter of depicting an amicable event or not. According to Tröndle / Fischer, this interpretation is doubtful: "The legislator has assumed that pornographic depictions of sexually motivated violence - regardless of whether it is presented as consensual or necessary - has a dangerous potential for imitation (...) It remains unclear what justification for criminal prosecution is Should have danger , the realization of which is unpunished. (…) It must be taken into account that since the 27th StÄG came into force (September 1, 1993), open or hidden representations of sadomasochistic acts have also found their way into everyday culture to a large extent. "
The following interpretations come from Schönke / Schröder:
- Violent activities within the meaning of § 184a StGB are only those "against people for whom the development of physical strength directly against the person in aggressive action is necessary. (…) Violence against human-like beings is not sufficient, unlike in Section 131 (1), since the legislature with the SexualdelÄndG has not introduced a corresponding feature in Section 184a (…); the inclusion of dolls is not enough either. "
- The violence “can have a sexual character as such, in which case a consensual act is sufficient (eg representation of sadistic or sadomasochistic acts); (…) Cases of a so-called vis haud ingrata can also be sufficient (…). But it can also - even if only fictitious (...) - be a means of coercion to achieve sexual goals (e.g. portrayal of a rape). (...) Coercion through the threat of only future violence is not enough. "
- Whether the writing, etc. is about violence, “depends on the overall impression that an objective observer has to gain (...). This is certainly not the case when an act that is inherently violent is relativized or alienated through the type of presentation, additions, etc., so that it loses the character of violence overall (...). It is not necessary, however, that the impression of authenticity is also conveyed; It is therefore also a representation of acts of violence if the scenes of a film are clearly placed and, moreover, poorly played. "
It is unclear whether the term violent pornography in Germany includes the following things or not:
- pornographic images with shackles (see bondage ) or gags
- pornographic depictions of psychological violence, such as humiliation
Austrian legal situation
In Austria the Pornography Act (PornG) of 1950 still applies , according to which the production and distribution of any “lewd writings and objects”, as well as their import and export with profit-seeking intent, is generally prohibited and punishable by imprisonment for up to one year. This law does not affect the private, non-commercial production, distribution, import, export, or possession of pornography.
Because of this law in Austria since 1950, based on commercial products such as B. books, magazines or video films, the question is not whether a pornographic work depicts violent pornography, but whether a work depicts pornography at all or not.
Whether and under what circumstances the presentation of practices from the field of BDSM in Austria counts as criminal "pornography" can only be answered from the case law of the courts. This has gradually become more liberal, but at the same time very sparse, so that there is a lack of clear, current case law.
The last relevant decision of the Supreme Court (OGH) dates from 1989, as far as can be seen. In this decision, the Supreme Court confirmed a conviction under the PornG for the sale or rental of video cassettes that contained “sexual depictions of violence” . He also upheld the assessment of these portrayals as "absolutely indecent" and stressed that the consent of the "victim" was irrelevant for the classification.
Since no recent judgment is known, it is assumed that there is still a risk for BDSM publications to fall under the criminal offense of the PornG in Austria. This presumably applies in particular to the connection with the representation of sexual activities and (fictional) non-consensuality.
Swiss legal situation
Anyone in Switzerland who manufactures, imports, stores, markets, advertises, displays, offers, shows, surrenders or makes accessible pornographic objects or demonstrations that contain acts of violence is punished with imprisonment up to three years or a fine. According to Art. 197 Para. 3bis StGB, anyone who acquires such objects or demonstrations, procures or possesses them electronically or in some other way is punished with imprisonment for up to one year or with a fine.
In Switzerland, violent pornography is not only prohibited from manufacturing and distribution, as is the case in Germany, but also a ban on possession .
In the opinion of the Federal Council , representations of consensual sado-masochistic practices are in any case not recorded if they do not simultaneously fulfill other criminal offenses (e.g. bodily harm ).
BDSM pornography
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A common feature of BDSM pornography - be it literature , drawings , comics , photos or videos - is the depiction of physical and / or psychological violence. BDSM pornography can therefore fall under the term violent pornography in Germany and Switzerland, making its production, distribution or possession (Switzerland) punishable.
It should be noted that even a blow or the infliction of pain in any other way constitutes bodily harm and its depiction in a pornographic context can therefore fall under the term violent pornography. Authors, artists, photographers and video producers as well as the distributors of their works must therefore pay particular attention to two limits:
- When does a pornographic work cross the line to (in this case forbidden) depictions of violence?
- When does a violent work cross the line to (in this case prohibited) pornography?
The problem with the aspect of consensuality, which could exclude the fact of violent pornography in a pornographic work from the field of BDSM, is that in practice it is hardly possible to achieve consensual consent between the persons involved - be they real or fictitious - in the case of writings and images. to judge at all. At most it can be "accepted".
Based on the above considerations, a large part of BDSM pornography in Germany and Switzerland would fall under criminal liability. In contrast, the actual legal practice seems to be possibly more liberal, as there are no known extensive bans on the distribution of BDSM pornography. In the 1980s, numerous issues of the flagellant magazine “Free Forum for Educational Issues” were confiscated, but not under Section 184a of the Criminal Code, but under Section 184 (3) of the Criminal Code ( distribution of pornographic writings ).
The share of sadomasochistic pornography in total pornography is estimated to be below 10% for most countries (e.g. below 2% for 1983 in Denmark). However, this share has increased sharply in the last few decades.
In the judgment of the District Court of Meiningen it was decided that a certain series of comics did not meet the criteria of § 184a StGB.
Colloquial use
In particular in film magazines, the word “violent porn” is also used to characterize splatter films . They don't have to be movies that contain sex. Rather, it is intended to express that the story is an end in itself and that there is only a series of scenes of violence.
criticism
Criticism from proponents of violent pornography
The current legal prohibition of violent pornography in Germany and Switzerland is based on the assumption that violent pornography carries a high risk of triggering sexually motivated violent crimes in consumers ( stimulation theory ) or reducing internal inhibitions and playing down sexually motivated acts of violence. Proponents, however, question this assumption.
Various international studies of the last decades have been interpreted in this way that there is apparently no positive correlation between pornography and real violence, rather a negative correlation is assumed. Japan , a country that is known for its extensive rape, BDSM and bondage pornography (see Japanese pornography ), had the lowest rate of sexual violence offenses of all industrialized nations at the end of the 20th century. The proponents refer to the scientifically obsolete, since falsified, catharsis theory as an antipole to the stimulation theory. According to this line of argument, the prohibition of violent pornography not only restricts essential civil rights such as self-determination , freedom of expression and artistic freedom , but also harbors the social risk of not reducing real violent crimes as the legislature hopes, but possibly even increasing them.
Playing down or glorifying violence is already prohibited in Germany under § 131 StGB and pornography is already subject to the restrictions of § 184 StGB. The additional prohibition of violent pornography in § 184a StGB, especially in its current scope, which criminalizes a large part of BDSM pornography, is, in the opinion of its critics, unnecessary and harmful.
Criticism from opponents of violent pornography
On the other hand, there is a position that the current ban on violent pornography should not only be maintained, but should be expanded.
The PorNO campaign launched by Alice Schwarzer is an initiative that seeks a general ban on pornography in Germany. According to the campaign proponents, pornographic representations (including those that do not contain any BDSM elements) are generally a form of media violence that can violate the dignity of women and lower the inhibition threshold for real violence against women. The PorNO campaign aims to expand the current definition of pornography and the ban on violent pornography in Germany.
Individual evidence
- ^ Tröndle / Fischer, Criminal Code and Ancillary Laws, 52nd edition, Munich 2004; § 184a Rn. 4 ff.
- ↑ Schönke / Schröder, Criminal Code - Commentary, 27th edition, Munich 2006; § 184a Rn. 3, arr .: Lenckner / Perron.
- ↑ Not unwelcome violence
- ↑ PornoG ( Memento of April 8, 2010 in the Internet Archive )
- ↑ 11Os169 / 88, April 18, 1989
- ↑ BBl 2000, p. 2981 (PDF; 230 kB).
- ↑ Datenschlag-Chronik des Sadomasochismus .
- ↑ Datasound - Lexicon .
- ↑ BGH, judgment of December 15, 1999 , Az. 2 StR 365/99, full text.
- ↑ Marcia Pally, Sex and Sensibility: Reflections in Forbidden Mirrors and the Will to Censor (1994), quoted in Pamphlet on the Rescue of Violent Porn
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↑ Cf. Milton Diamond and Ayako Uchiyama in "Pornography, Rape and Sex Crimes in Japan" (International Journal of Law and Psychiatry 22 (1): 1–22. 1999) online under "Pornography, Rape and Sex Crimes in Japan" ( Memento from June 2, 2009 in the Internet Archive ):
Our findings regarding sex crimes, murder and assault are in keeping with what is also known about general crime rates in Japan regarding burglary, theft and such. Japan has the lowest number of reported rape cases and the highest percentage of arrests and convictions in reported cases of any developed nation. Indeed, Japan is known as one of the safest developed countries for women in the world (Clifford, 1980). (...) ...: Despite the absence of evidence, the myth persists that an abundance of sexually explicit material invariably leads to an abundance of sexual activity and eventually rape (eg, Liebert, Neale, & Davison, 1973). Indeed, the data we report and review suggest the opposite. Christensen (1990) argues that to prove that available pornography leads to sex crimes one must at least find a positive temporal correlation between the two. The absence of any positive correlation in our findings, and from results elsewhere, between an increase in available pornography and the incidence of rape or other sex crime, is prima facie evidence that no link exists. But objectivity requires that an additional question be asked: "Does pornography use and availability prevent or reduce sex crime?" Both questions lead to hypotheses that have, over prolonged periods, been tested in Denmark, Sweden, West Germany and now in Japan. Indeed, it appears from our data from Japan, as it was evident to Kutchinsky (1994), from research in Europe, that a large increase in available sexually explicit materials, over many years, has not been correlated with an increase in rape or other sexual crimes. Instead, in Japan a marked decrease in sexual crimes has occurred.
