Saturday, 7 January 2012

Obscenity Trial: the law is not suitable for a digital age

I welcome the news that a jury have returned not guilty verdicts in a landmark obscenity trial before Southwark crown court on Friday. However, despite the jury's unanimous decision, the legislation under which the trial was brought is still effective law.
The defendant, Michael Peacock, was charged with distributing DVDs featuring male fisting, urination (watersports) and BDSM. Peacock ran a gay escort site called "Sleazy Michael" and advertised pornographic DVDs for sale on the website Craigslist. He was charged under theObscene Publications Act 1959 (OPA) with six counts of publishing obscene articles likely to "deprave and corrupt".
While some of the sexual acts depicted in the DVDs are legal to perform, such as fisting and urination, the representation of them is potentially criminalised under the OPA. The Act 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.
As the recorder, James Dingemans QC, emphasised in his summing up, it was a matter for the jury to decide whether the acts depicted were obscene if they "deprave and corrupt" the viewer. He also emphasised that: "in a civilised society, lines must be drawn".
However, the OPA has become an anachronism in the internet age. While previous cases speaks in terms of pornography being covertly accessed by men in "rugby clubs" and at stag parties; now it is readily available to people of all genders, orientations and social classes. Hence this jury's verdict - in the first contested obscenity trial in the digital age - which seems to suggest "normal" members of the public accept that consensual adult pornography is an unremarkable facet of daily life.
The Criminal Justice and Immigration Act 2008 shifts the burden from the producers and distributors of "extreme pornography" to the viewers who merely have such images in their possession.
Furthermore, the House of Lords' judgment in R v Brown [1992] that individuals cannot consent to sexual assault which is greater than transient and trifling (essentially the drawing of blood) remains effective law.
In Brown, colloquially known as the "Spanner case", Lord Templeman stated:
"I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty[...] Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised."
However, sexual depictions, as with the arts and sport, allow consenting adults to explore such "uncivilised" pleasures within the context of a safe and recognised framework.
According to the Crown Prosecution Service (CPS) 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…) and fisting.
Irrespective of this, Peacock is to be commended for his courage and conviction in challenging these charges; as are colleagues Sandra Paul and Nigel Richardson for persuasive advocacy and diligent litigation.
While the OPA still stands as law, the state is still capable of acting as a voyeur in the bedroom by maintaining the notion that the depiction of consensual adult sexual acts can be criminalised. Following the verdict, the branch within the Met responsible for investigating obscene publications pledged to meet with the CPS and the British Board of Film Classification to review current guidelines on obscenity. I urge legislators and the Law Commission to reconsider the law surrounding consent to sexual assault.
As Marlon Brando's character in Apocalypse Now suggests:
"We train young men to drop fire on people. But their commanders won't allow them to write "fuck" on their airplanes because - it's obscene!"

The original version of this article appeared on the Guardian Law site yesterday, here.


  1. Will this effect the possession of extreme pornography or are we now in the weird place where it is a criminal offence to own such material but not to produce and distribute it?

  2. I was not able to follow the remainder of the trial last week, but I am overjoyed that the defendant was found not guilty.

    I would like to think that this ruling would make the CPS and the police think more carefully when deciding on proceeding with a prosecution in this area, but more importantly I would like to think that the Government will now re-evaluate it’s ‘compulsion’ to try to moderate and ratify (especially in relation to the Dangerous Pictures and Cartoons Acts that were brought out recently over the past few years) what sort of pornography adults choose to watch, buy, or share with other like minded adults.

    It will be interesting to see what happens next.