Monday, 2 January 2012

Obscenity Trial of the Decade


Today, the 3rd January 2012 marks the first day of the most significant obscenity trial of the decade; which will ultimately clarify the law on the representation of gay fisting, urolagnia as well as BDSM.

The defendant in the case, Michael Peacock, is charged on indictment with numerous offences under the Obscene Publications Act for distributing supposedly obscene DVDs.

The Obscene Publications Act 1959 features the contentious and ambiguous “deprave and corrupt” test, whereby an article (for example a DVD) is obscene if it tends to deprave and corrupt the reader, viewer or listener.

The Test is defined in Section1 of the Act as:

"An article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".

In this trial, which will be heard before the Southwark Crown Court, the films in question feature: gay fisting (the insertion of five fingers of the fist into the rectum of another male); urolagnia (in this case men urinating in their clothes, onto each others’ bodies and drinking it); and BDSM (in this case hard whipping, the insertion of needles, urethral sounds and electrical “torture”).

According to the Crown Prosecution Service (CPS’s) guidelines: “It is impossible to define all types of activity which may be suitable for prosecution”. The types of material most commonly considered to be obscene and therefore prosecuted include:

·“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)”

·“activities involving perversion or degradation (such as drinking urine, urination[…] on to the body…)”

·“fisting”

However, this is merely a list of what the CPS currently consider to be obscene.

Ultimately, it is a matter for a jury to decide whether these acts are obscene by virtue of whether they deprave and corrupt the viewer.

Perhaps illogically, of these sexual acts, fisting and urination are completely legal to perform in real life; and thus it is only the representation of these acts on film which may be considered obscene and therefore attract criminal liability.

Consequently many pornographic film producers operate a “four finger rule” to avoid the risk of criminal prosecution. This means that in such films only four fingers are inserted into the performers’ vagina or anus, rather than the entire fist.

It could be argued that this is an entirely arbitrary distinction as the act of fisting itself is not illegal.

However, many pornographic film producers remain risk-averse and therefore the presumption that urination and fisting are obscene has endured as it seems that no previous defendant has been prepared to test the law in this area by electing jury trial.

Interestingly this case seems to have found unofficial tacit support from the British Board of Film Classification (the BBFC rate and classify both mainstream films and “adult” productions in the “R18” category); and the Metropolitan Police’s Abusive and Extreme Images Unit (the Met’s old obscene publications squad is now part of SCD9): on the basis that this case will establish whether fisting and urination pornography is legal or not.

Hence, if the jury decides that such pornography is not obscene, on the basis that it does not deprave and corrupt the viewer; then it is entirely likely that both the producers and distributors of pornography will make such material available for sale, for example via licensed sex shops.

It may also clarify what types of material it is legal to possess under the “extreme pornography” clauses in the Criminal Justice and Immigration Act 2008; as under Section 63 (7) (b) fisting may be: “an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals”.

The extreme pornography legislation shifts the legal burden from the producers of pornography to the possessor (viewer). Thus, merely being in possession of, rather than actively distributing, fisting pornography could be illegal.

Consequently, this significant obscenity prosecution will either reaffirm or rearrange the boundaries of obscenity law.

As Mr Peacock is represented by my firm, Hodge Jones and Allen LLP, I will post an update once the outcome becomes apparent.


17 comments:

  1. Obscenity laws in this country are a joke.... as is the whole classification system,really.

    Germany,the US and other countries operate an 'Unrated' scheme,where pornography isn't classified at all,but instead automatically given an '18' rating.This 'Unrated' certificate means no advertising and sales in the 'adults-only' sections of videostores,or sex-shops.

    This is a system that Britain should adopt,not least to support our adult-film Industry and to stop the government from telling us what to see.

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  2. Hi
    I understand the four finger rule, but I have seen plenty of sites advertising fisting porn I'd be surprised if none of them included full fisting. Also urination sites.

    I also don't understand - if the jury watch clips of the films will they be instantly 'depraved' and 'corrupted' too?

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  3. Which is more obscene? Michael Peacock's videos (none of the sexual practices in the videos carry ANY serious risk of HIV infection) or the over 50 "bareback" high HIV risk videos the BBFC certificated last year? Sending a terrible message about safer sex to younger gay men using porn for sexual knowledge and normalising bareback sex for older gay men.

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  4. Urination onto someone is illegal on film? People making films of babies had better be careful! This is a joke.

    But the legality of the act itself can't be a guide - whole genres of film are based on portraying illegal activities (robbing banks etc.)

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  5. I struggle to see how this could ‘deprave and corrupt’ the intended audience as they would obviously know what to expect when purchasing the material.

    Also, if full fisting and urination as sexual activities are not illegal in real life (i.e. unrecorded) how does the addition of a camera and distribution make it so?

    What solid evidence shows that sort of material has become a problem in society to the point of it being criminalised?

    Depending on which way the trial goes, I think that this could some dark implications for the people in the UK who record their own fisting and urination activities and share with others free of charge or post on various sexual dating websites. They could be potentially charged with the same offence- as well as (I imagine) the possession of ‘Extreme Pornography’ (with regards to their own and others), which I find to be quite frightening.

    During the Extreme Pornography consultation, the Government received a large majority of respondents stating that they were against the idea of this sort of legislation. Despite that, they forced it through to become law anyway. Concerns were raised with the Dangerous Cartoons consultation though these were also ignored the new law was passed.

    I think that the country seems possessed on the puritan moralisation of sexuality through criminalising any sexual activity that is deemed ‘deviant’ to whoever is investigating at the time.

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  6. I'm really interested in how this case compares to the issue around Robert Mapplethorpe's book in 1998, where exception was taken to photographs of fisting and urolagnia.

    I remember there was talk of prosecuting the publishers (Random House) and West Midlands police seized some photos from an exhibition, but not sure if anything else came from it.

    Also not sure about how the 2008 law would change the view of the Mapplethorpe book.

    Or does Mapplethorpe count as 'art' in the same way that Athena posters used to?

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  7. @Rachel I love the comment about film portraying illegal acts. Robbing banks, but also murder!
    Surely murder is worse than pissing on someone for fun.

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  8. People buying this kind of material, know fully what to expect. This prosecution is a joke designed by people with closed minds trying to outlaw something they would never have watched in the first place

    www.geordiebore.org.uk

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  9. I'm assuming this just applies to a DVD or any physical media that can be seized?

    The law has a bit of catching up to do has it not with the little matter of the internet?

    They'd have kittens if they catch sight of StraightHell or Boynapped, both UK firms to my knowledge.

    PS I agree with David Bridle in that if they are to restrict anything, then they might do it to something that's more actually corrupting like bareback.

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  10. It really is time the Obscene Publications Act was either (ideally) repealed, or at least rewritten to be even slightly relevant to today's world.

    Sadly were it to be rewritten I fear that the result would be even worse, given recent examples such as the Extreme Porn Law. It would probably try to list everything that was obscene and run to about 300 pages...

    Certain police forces (Kent and possibly others) would like it extended to the mere possession of written texts they don't like as well.

    Hopefully the jury will see sense in this case, but if they do it will not of course become case law. I know the defendant won't want it to happen, but perhaps a case needs to get to the Appeal Court and the CPS given a sound thrashing (pun intended) before certain people back off from enforcing the law in stupid cases like this.

    If such DVDs were being openly and deliberately sold/given to children I might *just* have considered an investigation justified.

    That doesn't seem to be the case here but as I am not in Court I will withhold specific comment.

    Of course the CPS will quote the case law that says that 'the corrupted can still be further corrupted' and that corruption is an ongoing process, but that is simply not a good enough excuse for the waste of public expense these sorts of cases must cause.

    If exposure to such material can be so damaging, why are the jury not now corrupted by it and therefore unable to pass judgement? I'm guessing that they did not test the jury beforehand for their vulnerability?

    (maybe that could even be an appeal point?)

    In the absence of queues of people at their local hospital for emergency treatment having experienced Goatse, I'm guessing that most people either see this stuff and think 'not for me', or they seek it out because they happen to enjoy watching it. In neither case do I think they are likely to be 'depraved or corrupted' by it.

    Perhaps the CPS plan to suggest that such material is likely to lead to an outbreak of people wandering the streets randomly fisting strangers? I think we might have heard if that was the case...

    I'd hoped we might have progressed as a society since the Spanner Case, but it seems that at least in positions of power we are the same repressed moralistic judgemental idiots when it comes to "things we don't like"

    I know Myles will have prepared diligently for this case, so I can only wish the defence luck and an open minded jury!

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  11. I think Elly's comment is something that should be raised with the jury. (if they have to watch the clips) - They need to be asked if they feel like they have been turned gay or corrupted just by watching the film.. or if they go out and kill people when they watch a horror film.

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  12. ‎"An article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it". - Deprave and corrupt persons? I would say it would entirely depend on who the persons were. So a case like this would entirely depend on the jury selected. Good luck with the case, and I wish Michael all the best. This certainly is one example of where 'the law is an arse my friend'. Maybe when you have finished this case you could prosecute publishers of the Bible, if any publication were specifically designed to corrupt and deprave its readers... It is full of sex, torture, murder, under aged marriage - you only have to look to the Catholic Church to see its effectiveness!

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  13. Also surprised by the similarities between this and the images picked out of Mapplethorpe's book.

    This is a good summary of what happened in the end with Mapplethorpe in 1998 with a quote from the CPS, who said the images were unlikely to deprave or corrupt 'a significant number' due to the nature of the book and the audience: http://www.independent.co.uk/news/mapplethorpe-images-cleared-1175348.html

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  14. Going keep a close eye on this as well.
    No one buys fisting and watersport videos by accident then cries to the police they were expecting gardeners world.

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  15. I don't agree with A Nonny Mouse's suggestion that the law of obscenity needs to be modernised. This is the sort of law where the state has no business interfering in peoples private lives and which should be left to decay into dead letter law and eventually repealed - like laws on church attendance. "Modernising" means substituting one set of absurd rules for another as happended when Sunday Trading law was "modernised"

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  16. The sort of acts being described by the prosecution are tick box options for likes and dislikes on most gay dating sites. The CPS has lost its mind in pursuing this and other cases under the dangerous pictures act. It's like they miss being able to prosecute gays for "crimes" related to the age of consent so much they'll find any pretext. I encourage everyone to invite the CPS, the Home Office, the Justice Department and Attorney General's office to their bedrooms to test whether the government approves of their love life.

    I don't suppose it will help, but I've complained to the CPS and said that, the crown do not meet my requirements to pursue these cases in my name. It's meant to be a democracy after all: decisions on what sex is acceptable should not be made by anonymous civil servants hiding in meeting rooms for half their careers. I have also asked stonewall to consider campaigning on this issue as this is a huge issue for gay men. Not that straight people and lesbians don't have interesting love lives of course!

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