Thought Crime Thoughts: Are Sadomasochist Fantasies Illegal in Norway?

by Reidar Visser

To argue my case against the Norwegian police and their attempted criminalisation of my street photography, I have collated some thoughts on how my actions relate to Norwegian law, as well as the legality of the police’s actions. In what follows, I maintain that the only crime in this case relates to the police’s attempt to construe my street photography as a thought crime related to my sadomasochist sexual orientation.

Photography and Crime

I have emphasised in my past writings that in no modern, Western liberal jurisdiction is the act of taking a photograph of random people in a publicly accessible area an actus reus or a “guilty act” in judicial terminology. For photography to be criminal, there has to be specific additional, objective conditions. These include unwanted photography of the same individual on more than one occasion (stalking); attempts to photograph the private parts of an individual or someone inside their home (privacy violation); a violation of a specific injunction that photos not be taken in a particular, explicitly restricted area or event (designated military areas, border zones, some border crossings, courtroom in certain countries); subsequently publishing images in ways that may impact copyright restrictions or pornography laws (for example by explicitly sexualising images); photography that can be linked to a terrorism plot or other serious schemes to subvert the sovereignty of the state (conspiracy against the public safety).

This is how it works  in most Western countries. For example, in London, the Metropolitan Police guidelines specifically say police officers must never intervene to stop photographers, including people using mobile devices, unless there is real terrorism suspicion. And this is how it works in Norway, too. An historical example: During the executions of war criminals after the Second World War, special instructions specifically prohibited photography during the executions, making it an exceptional actus reus and a specific example where photography is indeed legally “indecent”. (Of course, had photography been illegal more broadly, as it is in some Islamic countries, no such specific injunction had been needed.) Even privacy protections are interpreted liberally in Norway, since published paparazzi shots of the royal family on their private property have not been pursued legally by the police, even if a case could be made for it. Punishment for extremely invasive photography is also limited: A doctor who surreptitiously photographed the genitals of a large number of female patients during examinations was fined 25.000 kroner (USD 5,000) a few years ago.

Even the judiciary in New Zealand, probably the only non-Muslim, democratic country in the world that has ever tried to prosecute someone for casual photography has changed its mind towards a more liberal approach. A person who took numerous images of photographs of teenage schoolgirls from inside his mobile home without proffering “a legitimate purpose” on questioning was prosecuted once, but when the same individual was later prosecuted for a second time  in The Queen vs Rowe in 2005, a high court ruling then concluded that the man’s photography of female students in a library had been “unusual” but not punishable. And thus ended New Zealand’s attempts to prosecute casual photography, with a subsequent law on voyeurism photography instead specifically criminalizing non-consensual nude photography only, as per the normal pattern in Western democracies.

In sum, across Western liberal nations there seems to be legal consensus that the single photography of a fully-clad person in a public area is never harassment, stalking, intimidation, indecency, threat, predatory behaviour, public order disturbance, privacy transgression or some other actus reus – and that several photographs, as long as they are of different persons, do not combine to form an actus reus. There has to be a sense of objective guilt related to other external aspects of the photographic activity for it to be criminal. Put differently, if something can be legally photographed by a Japanese tourist, it can be legally photographed by anyone. Photography as a method of documentation has been available to mankind since 1826, and during these 187 years democratically elected assemblies across the globe have had ample opportunity to restrict or regulate photographic activity if they felt the need to do so. They have gone into considerable detail to outlaw and ban other things they are unhappy with – in Norway, many cities now prohibit singing in public areas without the express permission of the police, whereas other countries have elected to outlaw drinking “or travelling with opened alcohol containers” just to make sure every conceivable eventuality is taken into account.

Only in those situations where there the necessary objective and external criteria  are in place (stalking, privacy violation, prohibited area, terrorism etc.) can photography be designated as a possible crime. Accordingly, only when such external criteria are present is it legally interesting to know exactly what goes through the mind of photographers in the second when they capture a photograph. Only in such cases should the police even begin the search for possible intentions behind photography. Absent such additional criteria, it is simply none of the business of the police to enquire or even second-guess the motives people may have for taking a photograph. Indeed, if the police think they know what photographers think without there being an actual, objectively identifiable actus reus transgression, the question of whether the police is acting illegally immediately arises.

Legal Aspects Specific to My Case

In my case, since Norwegian police has publicly and illegally constructed slurs about my sexual orientation and tried to connect those slurs to my photography in order to present them to the general public as a crime, I have elected to inform about my motives for engaging in street photography, even though the police had no right to even ask about them.  I have explained that the photos were part of a historical-sociological project on street fashion, documenting micro-trends with a remarkable staying power in limited geographical regions for several years. Whereas my own photographs no longer exist (I deleted large amounts of personal material once I realised the police were illegally invading my privacy), those I made were comparable to some of the ones shown below:

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The methodological problems I experienced in reconstructing just a few samples to illustrate my now destroyed portfolio vindicates my point about the usefulness of street photography for the purposes of documenting street fashion changes over time. Fashion bloggers aren’t really a good source since they represent people who are particularly interested in fashion, which is irrelevant if the goal is to document the mainstream. Fashion magazines are a normative rather than a descriptive source, and as such of limited to value of documenting what is actually worn by normal people. In this case, among other sources, I had to resort to another street photographer in a nearby country which exhibits at least some parallels to Oslo street fashion – Copenhagen. Given the Oslo police’s apparent ambition of hunting down photographers globally I have withheld his name here, though I would be happy to give due credit for these photographs if desired.

Let’s however, just for the sake of the discussion, assume that the Norwegian police’s assumption that the photographs could somehow be linked to my sadomasochist sexual orientation was in fact correct.  As I have explained, to the extent that I care about such things, I am sexually attracted to marginality in fashion, like trends associated with goth and punk subcultures. If I had wanted to photograph people of those groups, I could have gone to rock festivals and places where punks congregate. The result might have looked something like this:

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I didn’t take those photos or anything like them, and the police knows this perfectly well. More importantly, though, I could have taken them without doing anything illegal even if this could be seen as potentially dovetailing with my own sexual preferences. Once a photo has been taken in a legal fashion –  i.e. without being stalking, privacy violation or terrorism etc – the police have no right to even ask questions about what photographers do with their pictures (unless issues concerning publication such as copyright violatons, another objectively identifiable actus reus, come up).

But consider this scenario. Upon studying my photographs, I find out that one the women is in fact an extremely attractive young lady with an apparent predilection for goth-style clothes. I check the time and place of the photograph and show up the next week. She is there again. I follow after her home so I can establish her address and name. I do Facebook searches: It emerges she is a keen kickboxer too. I promptly fall in love with  her and begin following her to boxing competitions. It emerges she is a lesbian, so there is no point in trying to establish a relationship. But I decide to ask her whether she might be interested in doing some SM modelling. Surprisingly, she agrees, because she is still a student and the money can come in handy. We agree to stage assault on teenagers of her own age, boys and girls, in quiet parts of Oslo where we are likely not to be detected by the cops. She will do the fighting and subdue her opponents; I will record everything on camera. I pay her 1,000 Norwegian kroner per victim. Maybe it looked something like this?

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Now it is criminal. It violates specific Norwegian laws. It violates article 200 about forced participation in a sexual act. It violates article 228 about bodily harm.  If minors were involved, there would be specific articles related to the sexual abuse of children applying as well.

But it didn’t happen. It was just a dream. Or a thought. The pictures are taken from a high quality indie SM porn source and feature consensual actors; they belong to the “evidence” that the Oslo police has shared worldwide as indication of my supposed “criminal” intentions – because I simply looked at them on the internet!

Thought Criminality

Criminal intentions – or thought crimes, a term coined by George Orwell in 1984  – aren’t normally punished in modern liberal democracies. In the absence of a criminal act (actus reus), it is simply not the business of the police to search for criminal minds (mens rea). It flows from this that the axiom that photographers want to have sex with their motives until proven otherwise is judicially uninteresting since photography as such is not more of a crime than eating a banana. And that’s also why it does not matter one iota what photographers think of when they do their work – be that geometric formulas, Hegelian philosophy or anal sex with a member of the royal family.

Beyond the philosophical and judicial imperative that there be both a criminal act and a criminal mind, practical considerations also militate against letting police investigate thought crime. The universe of prosecutable actions would simply become too big for practical enforcement. Imagine if the police saw it as their task to find out the reasons why each and every photograph around the globe was really, really taken. The principle of equality for the law would dictate that they performed constant inquisitions of photographers, with little time to do anything else.

Quite in line with this logic, most penal codes in Western liberal democracies do not define thought crimes as punishable offenses – Orwell, after all, was discussing a hypothetical scenario and tendencies found in some countries rather than a fullblown, existing reality. Accordingly, in Western countries, attempts to penalise thought crimes would be an infraction of the legality principle and its variants – no punishment without law (nulle poena sine lege), no punishment without a written law (nulle poena sine lege scripta), and no punishment without a certain law (nulle poena sine lege certa). The most notable exception to the tendency of not punishing thought crime may be  Singapore, where it is specifically illegal to contemplate the death of the president. This seems to be a rare case of a thought in itself – for example in the shape of a dream – being punishable. Seriously punishable at that: You can in fact get the death penalty.  Unlike the Norwegian police, though, the Singaporeans at least had the whereabouts to formally codify their brazen attack on freedom of thought. In other words, a warning is in place: Dream carefully, lest you end up dreaming something criminal. Citizens can make precautions; even in its most illiberal incarnation, Singapore still has the predictability associated with a rational modern state.

From Thought Crimes to Real Crimes: How the Police Criminalize Themselves

Back to the Norwegian situation, where there are no legal injunctions against dreaming or contemplating exactly what you want. Look again at the series of pictures. The first are comparable to the ones taken by me. The second set are photos I might have taken if I wanted, but didn’t.  Finally, there is something completely different: Explicit sadomasochist pictures from a  femdom internet site made by consenting adults. Does looking at the third group of pictures forbid or disqualify me from me taking pictures like those in the first or even second group? Of course not. There is no crime here according to Norwegian law.

With one exception, of course:  The crime of the Norwegian police. Norwegian police had, at most, a right to invite me to offer an explanation for my photography. Even that could have been rejected by me on a sound legal basis.  If they had asked, I would probably have explained the background, and never shot a single street photograph anymore in my life. My thinking would have been that I don’t want to pick a quarrel with them; I would keep focusing my work on Iraq instead of picking a fight over photographic jurisprudence.

But they gave me no choice, since they began punishing me extra-judicially. Norwegian police first thought my photography was criminal – this they can do as much as they want, as long  as they just think. However, they went on to pursue that thought in the real world, and that is a crime. A very serious crime. Attempts to extra-judicially punish someone through the abuse of state power are reckoned among the most serious offenses under most Western legal systems. In Norway, extra-judicial punishment is specifically punishable with 15 years under article 117 of the Norwegian penal code, and with 30 years as crimes against humanity under chapter 16 of the new penal code of 2005 (the sole chapter of the new penal code which has come into effect as of today).

Here we can talk about actus reus: According to article 117a of the Norwegian code, “A public servant who commits torture is punished with maximum 15 years in jail… Torture means to inflict serious physical or psychological pain on someone else”. When the police uses force to wake up an individual repeatedly in the middle of the night for a continuous period of 1 month on Norwegian territory and subsequently every day for more than 2 years abroad, this surely satisfies the criteria for “serious psychological pain”. When that same individual is stalked by plainclothes police officers and subjected to continuous noise harassment and staged social-isolation manoeuvres, the same legal article applies. And when the physical impact of the mistreatment leads to the aggravation of existing chronic diseases (ulcerative colitis, asthma) and the creation of new conditions (chronic fissure resulting from dehydration and digestive problems),  the requirement for physical torture is satisfied as well.

Moreover, for this criminal act, the mindset or mens rea of the criminal is also of  interest, since the penal code goes on to specify criminal motives as “a motive to… punish, threaten or force someone”. Accordingly, it is critically important that officials of the organised crime unit in the Oslo police who targeted me have publicly admitted they systematically use these disruption methods to “put pressure” on people they don’t like. In other contexts, the have spoken about the desire to “stigmatise” their opponents. These repeated public admissions alone seem sufficient to satisfy the combination of psychological pain with the intent to threaten of article 117a. Even if it may prove difficult to document many such cases of police criminality, the police’s sheer bragging about these methods to the Norwegian media can in itself also be prosecuted under article 140 of the penal code for glorifying criminal actions.

This analysis explains why taking photos on the order of the police for the purpose of intimidating someone (mimicking, a mainstay of police stalking) can be added to the few types of photography that are indeed a serious crime. In fact, where there is a wider pattern of persecution, mens rea becomes so important that any every day act can be criminal as long as it is done on the instructions of the police with the intention to harass (and, importantly, only when it is done on the order of the police).

Thought Crime Persecution as a Crime against Humanity

But is the actus reus of the Norwegian police in this case perhaps something more serious than torture? Consider the way whole local communities – including state schools – have been used to persecute me in a number of urban areas worldwide for my sadomasochist sexual orientation, with the children often ordered to take part in street theatre scenes intended as strictures on my supposed sexual preferences. The behaviour of the police is no longer affecting me only. What if a little kid in one of the state schools that  participated in harassment of me because of my sexual orientation should happen to share similar sexual fantasies? What kind of terror will not s/he have gone through thanks to the thought police of the state? How about the feelings of handicapped people, who have been systematically recruited in disproportionate numbers to take part in the harassment operations in order to communicate social stigma?

Now we are closer to an even more serious actus reus described in article 102 in chapter 16 of the new Norwegian penal code of 2005, which is the only chapter that has come into force. The article says, “Whoever, as part of a systematic attack on a civilian population… singles out a group for persecution by depriving one member (or more) of that group of basic human rights… is penalised for a crime against humanity… with a maximum of 30 years in jail.”

Several characteristics of the crime of the Oslo police seem to fit this description, making it far more than the “isolated act of wickedness” that is normally used to differentiate torture prosecutions from crimes against humanity.  The criteria of systemicness is satisfied by the transnational (13 countries), consistent (24/7) and persistent (2 years) character of the operation. The fact that the operation has been reproduced in a variety of countries ranging from democracies to absolutist Gulf states means it can be said to be an articulation of Norwegian state policy, another key threshold regarding crimes against humanity. Of course, the notion of “systematic attack on the civilian population” can be debated in my individual case, and is perhaps something that is mostly associated with traditional warfare.  However, beyond the fact that the category of warfare is sufficiently elastic that there is place for paramilitary groups and renegade police units alike, there are two specific arguments that justify this description. Firstly, the way whole local communities have been targeted for extended periods of time – Noordwjk and Maasdam in the Netherlands stand out – the police’s persecution can certainly be construed as an attack on those whole civil populations, where entire sexual minorities must have felt threatened by seeing what was taking place. Second, when the illegalities of the organised crime section of the Oslo police is studied as a whole – some of its officials violate article 117a of the Norwegian penal code for a living – it makes perfect sense to conceptualise their activities more generally as a “systematic attack” on the Norwegian civilian population, thus fulfilling the framework criteria for a crime against humanity.

Said differently, what we have here is a gang of guys who roam the streets of Oslo in search of people they can terrorise and target through their preferred method of torture, which involves placing unmarked police cars outside their homes at night, keeping them awake with running motors and regular honks. If this went on in Oslo only, it could perhaps be described as a limited group of rogue officials. But then these same officials are allowed to repeat the mistreatment internationally, in towns like Montreal and Doha. Now it is no longer an isolated act of rogueness. It is part of a systematic, government-sponsored project to disturb and punish extra-judicially people who are designated as enemies of the Norwegian state without any judicial process.

This is, in other words, precisely the sort of totalitarian hate crimes on the part of modern state bureaucracies that chapter 16 of the new Norwegian penal code was designed to deal with. A plausible and prudent judicial approach to the police’s transgressions would probably be to  prosecute the foot soldiers of the organised crime section of the Oslo police for torture under 117a with a maximum of 15 years in jail, and the decision makers, police lawyers and other responsible officials  in the Oslo police, Kripos, the directorate of police and the ministry of justice for crimes against humanity under 102 of the 2005 penal code with 30 years maximum jail sentences.

Internationally, of course many of the partners of the Oslo police also satisfy the criteria for prosecution for crimes of torture and/or crimes against humanity according to national legislation in force. In most jurisdictions, acts of torture are recognised as one of the most monstrous crimes in the law of the land. Where I currently am, for example, any police officer or citizen who takes part in the operation against me in any shape or form is in violation of a crimes of torture act that carries a 14 years maximum jail penalty, or life in jail if the International Criminal Court gets involved. Given the number of countries involved and the fact that most them are full International Criminal Court members, it would probably make good sense to have an ICC prosecution for crimes against humanity in this case.

SM fantasies are not punishable in Norway. Conversely, attempts to punish such fantasies are among the most serious crimes defined under the Norwegian penal code. Put differently, “perversion” –  as defined by popular conceptions of anything that deviates from heterosexual orthodoxy – is in itself of zero legal interest. On the other hand, perversion of government office – as when a priest molests a parishioner, a prosecutor makes up the law, or a police officer tries to punish someone – is among the most serious crimes that exist in the laws of Norway and most other Western countries.

In my case, the organised crime section of the Oslo police is trying to play the role of Orwell’s Ministry of Love. But 1984 was supposed to be only a dream. When a state uses it as an instruction manual in the real world, thoughts become actions, actions become crimes, and in the cases of crimes against humanity, the thoughts of the perpetrators are more important than in most other criminal cases. Let’s hope the members of the Oslo police involved in this case will one day have to explain their criminal acts and minds before an independent court.

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