Background: A guy from North London was charged with distributing ‘obscene’ DVDs after a police officer bought some from him. They included lots of lovely (or not-so-lovely, depending on your preferences) gay sex acts, including fisting, BDSM and piss-play.
The acts themselves were legal, what the law frowned upon was distributing DVDs of said acts to people who wanted to crack one off over them. The ‘Obscene Publications Act (OPA)‘ makes it illegal to publish material that is likely to ‘deprave and corrupt.’
Two excellent ladies livetweeted during the trial (see end of this for links to people who know more about it than I do), including not just details of the material but the arguments from the prosecution and defence. It was utterly fascinating: we weren’t just watching people discussing what counts as obscene, we were watching an unfolding debate about whether it’s even acceptable to legislate against the very subjective notion of ‘obscenity’.
Society has always been keen on making moral judgements – it’s what society does. X is good, Y is bad. This is fun and kinky, but that’s just plain wrong. We can’t stop society from having opinions on things, but we probably should take those opinions with a pinch of salt, especially given that in the past they’ve been pretty wrong. Society used to think it was totally unacceptable to have sex outside marriage or (shock horror) be gay.
The defendant was victorious in this case, and was found not guilty on all counts: the jury saw no problem with the material as far as this law was concerned and agreed that it probably wasn’t going to deprave anyone.
This is great news for fisters, watersports fanatics, and gay guys who like to inject saline into the scrotum of a loved one, slap that scrotum around a bit, then sell DVDs of the event to people they met on the internet.
The problem’s still there
But it doesn’t really solve the ultimate problem. The law is still there, which means that we’re still reliant on society to decide what counts as ‘obscene material’. CPS guidance suggests it could include any of these things:
- sexual act with an animal
- realistic portrayals of rape
- sadomasochistic material which goes beyond trifling and transient infliction of injury
- torture with instruments
- bondage (especially where gags are used with no apparent means of withdrawing consent)
- dismemberment or graphic mutilationactivities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
- fisting
Some of these are clearly extremely niche activities, which are illegal in and of themselves (dismemberment, sex with animals, etc). But some are acts which many normal, healthy people perform, film and watch on a regular basis: piss-play, coprophilia, fisting, bondage, etc.
The DVDs in this week’s obscenity trial featured acts from this list. The fact that the jury found ‘not guilty’ on all counts is a huge step forward for sexual liberties, and indicates that this list of ‘obscene’ things may well be trimmed in the future.
But we still live under a legal system that says society can judge whether sex videos made by consenting adults and sold to consenting adults are ‘obscene’ enough to warrant punishment.
So although having more liberal attitudes helps us trim the list of acts that are considered ‘obscene’, encouraging society to become more liberal isn’t the ideal solution. The solution lies in getting rid of this law.
We need to persuade society that we don’t need a law to criminalise publication of consensual sex acts. We need to tell society that lots of people watch porn and don’t turn into mad perverts desperate for their next fisting fix. We need to tell society to fuck off out of the bedroom and let us shit on each other in peace.
Over to the Obscenity Trial experts:
This is just my opinion – other people have written about the obscenity trial far better than I ever could, and with more knowledge than I have. So for the full story see any or all of these links:
My new favourite lawyer, Myles Jackman, explains why the OPA is an anachronism.
Excellent journalist and swift-thumbed livetweeter Nichi Hodgson discusses why the outcome of the trial is a victory for sexual freedom, and explains why the OPA should be abolished.
For more info and ongoing awesome, check out Lexington Dymock, who was also livetweeting the trial and keeping us up-to-date on the exact nature of the filthy acts that were occurring.
7 Comments
I agree. Another worry is new laws like the “extreme porn” law which criminalises simple possession instead of publication, and doesn’t allow the jury to determine whether something would “deprave or corrupt”, but uses language like “disgusting”. It’s already used significantly more than the OPA. We may see a trend where OPA prosecutions become less viable, but the police can simply prosecute people for possessing illegal material with far greater ease.
Yep, that is also a very weird one, and one which I am (obviously) not a huge fan of.
Here’s a link, in case people don’t know what you’re referring to:
http://www.cps.gov.uk/legal/d_to_g/extreme_pornography/
I think the reason this one makes me cringe is slightly different. I’m not a lawyer, so don’t know exactly the ins and outs, but I read a lot about this at the time it came out and, from a generally philosophical sense, here are the things that I find dodgy about it:
Firstly, although it’s about images which cause ‘extreme’ harm, there’s also something in there about ‘appearing to cause’ extreme harm, which leads us into dangerously subjective territory.
On top of this it defines a pornographic image as one which can ‘reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.’ This seems to imply that you could have a scene such as this in an arty film, for instance (So it hasn’t been produced purely for sexual arousal) yet if you possessed *just that scene* on it’s own, you could be prosecuted. Which is bloody odd.
Finally it puts the onus on the person who owns the material rather than the person who makes and distributes the material. This, apart from anything else, meant that when the new law came in, anyone who possessed any of this imagery could potentially have been criminalised. Which is bloody odd too.
However, as I say, I’m not a lawyer – just an interested bystander – and if anyone wants to furnish me with more links or reading material, or explain this further, please do! If you’re a lawyer or someone who knows about this, I’d love you to do a guest post =)
If you want more info, Backlash have loads: http://www.backlash-uk.org.uk/
My two pence worth here:
http://graunwatch.wordpress.com/2012/01/07/obscenity-discourse/
Hmm, interesting, and I think I do agree on some of it. The Graun does often take a fairly anti-porn stance, but my issues with that are about a thousandfold, as I don’t think the issue of porn is as simple as I’d like it to be.
But I’d also question whether, in running Nichi Hodgson’s piece, the Guardian *has* radically changed its stance, or is being hypocritical as you claim it is. I think it’s covering an issue that is of interest to a lot of its readers (particularly as it was posted in the ‘liberty central’ section). I don’t think it’s necessarily becoming gleeful about porn per se, but I do think that the paper itself would be celebrating the rights issue rather than the distribution of fisting DVDs.
Also, as a general rule, the porn-based stuff I’ve read in the Guardian tends towards comment on the industry as a whole – i.e. the exploitation involved in large porn production companies. That’s not to say it’s all they talk about, but I think a significant portion of the general porn-rage is about the way women are portrayed/exploited within the mainstream industry, which isn’t completely at odds with being positive about the outcome of this particular case. There’s definitely an interesting debate to be had, though, about the potential for escalation in the mainstream porn industry if we were to get rid of the OPA, although I suspect that already happens a lot anyway, given that a lot of the porn available on the internet is what we’d have to currently class as ‘obscene.’
I’m not saying there aren’t any double-standards/contradictions going on, and I’m aware that the Graun has many faults, but I’m just not sure that in this situation it’s as full-on as your blog suggests. Just my 2pence worth though.
Yeah I’m not really saying they are hypocritical so much as not exactly shifting from their feminist, anti-porn, misandrist* general perspectives.
*against hetero men.
Like I said if the defendant and/or the porn had been hetero I think it’d have been a very different story in the Guardian.
“We need to tell society to fuck off out of the bedroom and let us shit on each other in peace”
Nail on the head.
The idea that a third party has the right to intrude on what two consenting adults do in private is madness.
Although I did catch two of my housemates watching Grey’s Anatomy recently, now that is seriously sick and needs to be banned. And this one time I caught a mate of mine putting mayonnaise on his pizza, surely this is the definition of obscene and requires some form of government intervention…
I’ll be honest, I’m not sure about this. I do agree that, when you’re consenting adults, you should be able to do mainly as you choose – provided you are not legitimately harming anyone, or involving animals or minors.
However, once you start filming those activities and either uploading them to the internet or selling copies, other issues come into play. There is the general idea amongst liberal people, of which I’m one, that porn is a harmless expression of sexuality and that niche porn is a positive thing for those with specific preferences.
However, I’ve now seen the other side of that coin – I’ve seen that niche porn involving degrading acts can actually be very harmful if it’s viewed at very important developmental stages and can lead to lifelong problems, guilt, shame and serious mental and sexual difficulties. Whether it’s a kid of 10 or 12 or 16, or even someone over 18, seeing specific imagery at a specific time in conjunction with other factors can make connections in one’s brain that are nigh-on impossible to sever.
I am deeply concerned by the extremity of the porn that’s routinely available on the internet – it’s not only found by those who know what they’re looking for, but also by those young boys who try to out-shock each other. I know multiple men whose sexual preferences have developed in line with the porn they have seen at critical developmental stages, and sometimes this has been massively at odds with their morals, causing them severe conflict, depression, even attempts at suicide.
So although I’m not sure that the OPA is fit for purpose, I do believe there should be regulation of what is filmed and released into the world, whether the participants are consenting or not – I worry deeply about where we are heading as porn becomes increasingly extreme and out to shock. If I had sons, I’d be very concerned about them seeing some of the stuff I’ve seen, and I haven’t seen anything that shocking. It’s all very well and good having freedom of expression but let’s face it, there’s no artistic merit in pornography and, frankly, the idea of even fewer restrictions in that industry fills me with dread. Free expression is great, but what is the cost? We have yet to see the effects of access to porn from a very young age on proper adults. When we are at the point where this has been studied, I think we will see that porn is not always the harmless thing that people like to make out that it is.