Obscenity Trial of the Decade

Today, the 3^rd 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.