In the past 30 years, UK law has increasingly regulated consensual sexual expression, particularly BDSM (bondage and discipline, dominance and submission, sadism and masochism). Now, the government is amending section 63 of the Criminal Justice and Immigration Act 2008, proposing to expand the definition of ‘extreme pornography’ to include depictions of non-fatal strangulation. The amendment defines non-fatal strangulation as an act that ‘affects a person’s ability to breathe and constitutes battery’.
Cultural curiosity
BDSM existed for decades on the margins. Various types of ‘breath play’ have been practised since at least the 1700s – it even appears in Marquis de Sade’s 1791 novel Justine. BDSM featured in some of the most celebrated avant-garde art of the 20th century, such as songs by the Velvet Underground. But public indicators of its recent acceptance into the mainstream have been plain to see. The start of the Fifty Shades of Grey franchise in 2011, which celebrated BDSM, was welcomed into popular culture. Around that time Rihanna released S&M – an ode to sex and BDSM fetishes.
Although this newfound openness encouraged conversations about consent and alternative sexual practices, in recent years there has been a legal backlash in the form of restrictions on consensual sexual freedom. For example, section 70 of the Police, Crime, Sentencing and Courts Act 2022 introduced the offence of non-fatal strangulation, which overrides consent during sexual activity.
Consent in Brown
A turning point in legal history came with R v Brown (1993), where several adult men were prosecuted for engaging in consensual sadomasochistic acts. The Lords held that while clear and informed consent could be a defence to battery, it could not be a defence to inflicting any more serious harm (such as ABH), even in private. The ruling set a precedent that increasingly seems somewhat quaint – that adults will commit criminal offences because they cannot consent to certain types of harm in the pursuit of their own sexual pleasure.
Criminalising depiction of strangulation
But now parliament is going further, criminalising not just sexual acts between consenting adults, but also the depictions of those acts.
By the end of 2025, when the change is set to become law, anyone who possesses, makes, distributes, sells or hosts pornographic content depicting non-fatal strangulation may face criminal prosecution – and up to three years in prison in the most extreme cases.
The legal amendment stems from a valid concern. An Independent Pornography Review, conducted by Baroness Gabby Bertin and published in February, found that media sources have effectively established strangulation during sex as a ‘sexual norm’, and that strangling a partner during sex is ‘safe’ because it is believed to be non-fatal, despite overwhelming evidence that there is no safe way to strangle a person.
Problems with the amendment
However, while the amendment is well-intentioned, it is a step too far. Criminalising depictions of non-fatal strangulation fails to distinguish between abuse and consensual exploration. Rather, it flattens nuance in favour of blanket censorship, likely because it is easier to define and police.
Moreover, if passed into law, it faces several problems. The first is logistical. Most pornography consumed in the UK is neither made nor hosted here. Therefore, the UK police will require cooperation and voluntary compliance from their international partners in cracking down on the main source of the problem.
It will mainly affect UK-based porn producers, performers and independent filmmakers, such as Only Fans creators, legally, financially or artistically – the irony being that these are often the people producing pornography with the most consideration around consent.
The second problem is that the amendment is legally unnecessary. The UK already bans ‘extreme pornography’ under the Obscene Publications Act 1959 and the Criminal Justice and Immigration Act 2008, which includes the depiction of life-threatening acts within the definition of ‘extreme images’. Non-fatal strangulation will nearly always be life-threatening. Expanding the definition to explicitly include non-fatal strangulation carries symbolic weight but it does not open up an entirely new category of extreme images.
The third problem is that criminalising the depiction of non-fatal strangulation is unlikely to solve the social problem of its proliferation (and normalisation) in the media. Instead, it risks pushing this material further underground, making it more taboo, more secretive, and harder to regulate. Education and discourse, not repression, affect change.
Conclusion
Consent should be the line between criminality and lawful autonomy. However, increasingly, UK law ignores that line, in both real-life BDSM and now in pornographic depictions of it. The amendment marks a worrying extension of state authority over private fantasy. George Orwell cautioned us about a world where the state polices not just actions but imagination. This legislation edges into that territory.
If passed into law, the impact of the amendment in terms of the criminal law will be limited given that it adds little to the existing law. It will likely have a greater regulatory impact, since hosting platforms will face pressure under the Online Safety Act 2023 to proactively remove such content or risk substantial penalties. Regulators such as Ofcom will also face increased scrutiny and enforcement demands. It would not be the first time that a new criminal offence is rarely enforced in the criminal courts but provokes regulatory change.
Henrietta Ronson is a partner at Corker Binning, London
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