Keir Starmer's Obscene Solution

Today the Director of Public Prosecutions issued “Guidelines on prosecuting cases involving communications sent via social media” here.

They arrived after a consultation period, including round-table discussions with the DPP. I attended the discussion for legal professionals.

I asked two questions:

How would “indecent” and “obscene” be defined, interpreted and therefore applied?

The first question has been answered by the today’s guidelines. I’ll be brief. They haven’t been defined at all. Simples.

In avoiding defining “indecent” the guidelines refer to a case that states that: ‘indecent or grossly offensive’ - “were said to be ordinary English words”.

This is factually accurate. The words ‘Indecent or grossly offensive’ are indeed words. As are the words “deeply unhelpful”.

The Google definition of “indecent” is: “not conforming with generally accepted standards of behaviour or propriety; obscene”. We’re not getting much further.

Could “indecent” be interpreted as akin to the offences of possessing (abusive) “indecent images of children” or “outraging the public decency”?

Infuriatingly, the guidelines give no indication whatsoever.

This is a serious problem as, without such clarity, citizens are unable to moderate behaviour in order to abide by law.

Perhaps we need further guidelines to clarify this?

The second question was:

Would the Obscene Publications Act case of R v GS be applied as an alterative?

The guidelines do not address this issue at all. They do not have to.

This omission concerns me very deeply.

I have blogged about the implications of R v GS before (as well as publishing the full judgment) here.

To explain: the Court of Appeal decided that private fantasy one-to-one text chat (on the internet) counts as “publication” under the OPA.

So what does that mean for me?

Sending a private message (for example a DM on twitter, email or MSN chat message); intended solely for a single recipient (sent in good faith with the expectation that no-one else will see the contents); about an “obscene” sexual act (for example fisting, an act which is legal to perform); which is purely a fantasy (in the sense that it is an expression of a desire); rather than a statement of an intention to perform that act - means you could be sent to prison.

Sound like thought crime to you, too?

Okay, so tell me what I can’t talk about.

The OPA guidelines state that the categories of material most commonly prosecuted include: 

1) Sexual act with an animal.

Nice starter.

However, as animals cannot consent at law I would have have no issue with this, if we were talking about images.

2) Realistic portrayals of rape.

Problematic.

If it said images of “rape” I’d be in absolute agreement.

However “realistic portrayals of rape” suggests simulation, role-play and acting.

This raises the question of evidence of harm to both performers and viewers.

However, as I discussed those issues in detail in yesterday’s blog, here, I won’t repeat myself. Please draw your own conclusions. 

Yet, if we're talking about text, then I'd disagree, especially since there are no performers.

3) Sadomasochistic material which goes beyond trifling and transient infliction of injury.

Ah, R v Brown my old nemesis, we meet again.

Brown states that individuals cannot consent to injuries “beyond trifling and transient” in a sexual context.

The CPS now defines this level of injury as: “significant medical intervention and/or permanent effects”.

Whilst I fundamentally disagree with Brown on the basis that I find it a paternalistic, homophobic and arcane decision from another age by the Lords; I acknowledge, with extreme regret, that it is still currently binding law.

However, when it comes to text, again I cannot see any evidence to suggest anyone is harmed by the words (no performers) and therefore see no criminal mischief.

4) Torture with instruments.

If this means images of torture in the Guantanamo Bay or Al Quaeda beheading sense of the word, then I fully support this.

However, given that obscenity is constructed in the context of this list, to be exclusively sexual, somehow I doubt it.

Therefore my questions are: what amounts to “torture” in a sexual context and what is meant by “instruments”?

5) Bondage (especially where gags are used with no apparent means of withdrawing consent).

Bondage is obscene?

Like, seriously?

6) Dismemberment or graphic mutilation;

I have no issue with the inclusion of “dismemberment” images. Fantasy text is a different matter.

I want to know what the hell constitutes “graphic mutilation”?

How about images of female genital mutilation? If so, then I’m down with prohibiting that. That’s clearly abusive and non-consensual.

However, I suspect that the emphasis is on consensual sexual activities like “needle-play” (temporary piercing, by the insertion of sterile surgical needles into the skin) and “blood play” (similarly, cutting the top layer of skin), irrespective of whether they are performed with safety and risk awareness.

If I’m correct, this seems like an unnecessary repetition of sadomasochistic material and torture with instruments provisions above.

Nonetheless, it also calls into question the legal status of permanent piercings and body modification like nipple rings or tattoos.

7) Activities involving perversion or degradation

(such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta). 

All these activities are legal to perform in real-life. With consent.

Yet they are classified as “perversion” and “degradation”. Sigh.

8) Fisting.

Likewise, humble fisting (both vaginal and anal) is legal to perform in real-life.

Yet the representation thereof is illegal. So why is it compared to bestiality?

Yes, despite the jury finding Micheal Peacock not guilty in his #ObscenityTrial, the guidelines haven’t been updated since.

Oh well, whatever, nevermind.

What if I make it clear that I’m writing a fantasy?

Sorry. No. That’s the whole point of R v GS.

It criminalises not only the written word, but fantasy.

I’m concerned, what can I do to avoid prosecution?

You’re fine having a private one-to-one conversation in person.

The moment you transmit that conversation as data by, for example: text message; email; DM on twitter; private message on facebook; MSN, Yahoo or Skype text messenger, IRC, Chatroom you’re in trouble.

How can I do something to clarify this situation?

Please feel free to write a (non-obscene) suggestion on the back of a postcard, addressed to:

The Director of Public Prosecutions,

The Crown Prosecution Service, 

Rose Court, 2 Southwark Bridge, 

London, SE1 9HS.