Is using euphemism to render the simple obscure yet another sexual problem?

I was interviewed by Carolyn Quinn on the Radio 4 PM programme today about the implications of the verdict in the R v Peacock obscenity trial. The radio interview can be found here, 13 minutes and 24 seconds into the programme.

The background to the trial is that defendant Michael Peacock was unanimously acquitted of publishing obscene DVDs under the Obscene Publications Act 1959. These DVDs depicted male-on-male fisting, urination and consensual BDSM activities including sexual whipping, electrocution and saline injection into the scrotum.

As I identified in a comment piece for Guardian Law, urination and fisting (both anal and vaginal) are sexual acts that are legal to perform in real life. Yet when these acts were represented on film, the distribution or publication had been previously deemed to be obscene under the Crown Prosecution Service’s guidelines. Thus I was asked to appear on the PM programme to comment on this disjuncture.

However, before the pre-recorded interview was conducted, I was asked to discuss the language I was likely to deploy to describe these sexual acts. The producer explained that as the PM show is broadcast before the 9pm watershed it attracts a family audience of all ages and therefore it would be inappropriate to discuss fisting and urination without, you know, actually using the words fisting and urination. Whilst this led to a slightly uneasy and surreal conversation; we initially agreed that the blanket euphemism “extreme sexual acts” might be permissible.

It was only immediately before the recording commenced that I realised that the word “extreme” has a very specific legal context in relation to pornography; as section 63 of the Criminal Justice and Immigration Act 2008 creates a specific offence of possession of supposedly “extreme pornography”. Secondly, the notion that describing a sexual act as extreme would seem to render it potentially illicit or other; and therefore prohibit it from entering mainstream discourse.

After the pre-recorded segment had concluded a number of friends enquired as to what euphemisms I had utilized instead of urination and fisting. Whilst the paraphilia of sexual urination can be described variously as urolagnia, urophilia or simply, in the more vulgar phrase, watersports; I simply did not know of another word for fisting apart from, you know, fisting.

More significantly, another friend sagely suggested that using euphemism to make “the simple obscure is one more sexual problem”. That in anonymising the names of the actual activities that the jury in R v Peacock deemed not to be obscene, it may have had the unintended consequence of rendering the entire interview absolutely opaque to the casual listener.

This also raises the issue that by not discussing legitimate sexual acts frankly, within the appropriate context, we perpetuate a lack of understanding. It could also be argued that not providing simple and easily comprehensible information on such practices does nothing to reduce potential health risks.

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.

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.

Karma Police

Extreme Pornography: Law and Evidence

How do you know you haven’t got extreme pornography on your computer?

Does someone else have access to your system? Could they have downloaded pornography without your knowledge? Would you know if a friend sent you a “joke” email containing pornography; which you didn’t open, but your computer cached? Have you ever followed a link to a site that didn’t give you any warning that it contained pornography?

These are just a few of the possibilities that police investigating extreme pornography offences have either denied or ignored.

Section 63 CJIA 2008

Briefly, Section 63 of the Criminal Justice and Immigration Act 2008 created the new offence of possessing extreme pornographic images. It could be argued that this legislation was introduced to extend Obscene Publication Act offences (which require publication or distribution) to the simple possession of such images.

Thus the consumers rather than the producers of pornography are criminalised, facing up to three years in prison and registration on the sex offenders register. Certain types of consensual adult-on-adult pornography are caught under the Act, including images that portray acts that are legal to perform in real life.

Below is a case study of a prosecution under Section 63 the CJIA 2008. I represented the defendant after he was interviewed by the police. He has given his express consent for this blog: so that others might be aware of the dangers of s63 of the CJIA 2008.

It should clearly demonstrate that police do not necessarily understand this law, IT evidence or indeed pornography itself.

CASE STUDY

The defendant was originally arrested regarding an unrelated financial allegation, which was unfounded and eventually dropped. In investigating the original allegation, the police seized two laptops after searching the defendant’s home address. They performed a “speculative search” of the laptops and discovered a single thumbnail sized image which they classified as extreme pornography.

The defendant returned to the police station on bail. He was notified that the financial matter would be subject to no further action. He was then arrested and cautioned on suspicion of possessing an extreme pornographic image. He waived his right to legal advice, and was interviewed without the benefit of a solicitor advising and representing his interests.

He assumed that as the more serious sounding financial accusation had been dropped that surely a single pornographic image he didn’t remember downloading could easily be explained away.

Surely?

THE INTERVIEW

Whilst preparing the defendant’s case, I read the police ROTI (unabridged written transcript of interview); listened to the tape recording of the interview in full; transcribed it verbatim; then compared the tape recording against my transcript and the police’s transcript.

From this it was clear that the police had made three critical errors in interview.

They pertained to: law; computers (IT forensics); and evidence (pornography).

THE LAW – When interviewing the defendant, the officers summarised a small section of the extreme pornography offence s63 of the CJIA 2008. Incorrectly. Without explaining it. They then demonstrated that they did not understand the law at all, as they asserted that the image in question had been graded under the COPINE scale. This is a rating system used to categorise the severity of indecent images of children. It has nothing to do with extreme pornographic images.

Yet with two police officers asserting this was correct and no solicitor present to disagree or advise on the correct legal position, how was the defendant to know that?

COMPUTERS – IT FORENSICS – Material can be sent to a user’s computer via the internet without the owner’s knowledge, consent or request in a number of ways. These include pop-ups, the contents of an otherwise legitimate download from news-groups, spam emails, unopened messages, pictures posted in legitimate chatrooms or forums, avatars (users’ visual icons), corrupted files which cannot be opened by the user, web-crawlers and malicious software scripts, such as trojan horses, to name a just a few.

The defendant stated that he hadn’t specifically downloaded the image in question, that he had no memory of seeing it and that it might have appeared, unrequested, via pop-up or another way, without his knowledge. However the police interviewing the defendant denied these possibilities; and said that if an image was on his computer he must have downloaded it.

The defendant then argued that other people had access to his computers and he wouldn’t know everything they had looked at or downloaded. The interviewing officer accused him of fabricating friends who might have used his computer in order to blame someone else. Despite the fact that a properly conducted IT forensic examination might have established a provable evidence trail.

For example, if another user logs into their personal email account on a friend’s computer, then an image is downloaded, then they log into their personal Facebook page, all within a few minutes; a Magistrate or jury might be entitled to draw the inference that that user downloaded that image and not the owner.

The police also failed to exhibit the image in question in interview and described it instead, which deprived the defendant of his right to comment on it. What they failed to mention was that the image was thumbnail sized (very small). In certain computer operating systems and webpages, images can be created in a “cache” on the computer without the user necessarily knowing or realising.

The interview also avoided the possibility that the image in question could have been deleted in a timely fashion by the defendant upon realising what it was, which is a specified defence under s65 (2) (c) (ii); but instead remained stored on the computer (unknown to the user), waiting to be overwritten, only to be found upon later examination.

EVIDENCE – PORNOGRAPHY - The defendant had a significant amount of normal sized non-extreme pornographic images, of many different types, styles and genres, on his computer. Despite this, police examination only discovered a single small image which they classified as extreme pornography. Some defendants have thousands of supposedly extreme images on their computers. This defendant had a single thumbnail sized image

This could be seen as emblematic of police failure to understand pornography: which is after all their evidence against a defendant. Hence they failed to appreciate the reasonable inference that a single small extreme image amongst thousands of other legal pornographic images indicated that it was unlikely that the defendant had requested or downloaded it.

Ultimately, in interview, the police attempted to persuade an unrepresented defendant to admit that if he had an extreme pornographic on his computer he must have downloaded it of his own volition.

This is incorrect in law, fact and evidence

EPILOGUE

At the defendant’s Early First Hearing at the Magistrate’s Court I requested an IT expert’s report to establish whether it could be proved that the image had been transmitted to the defendant’s computer without his knowledge; or whether another user had accessed it without the defendant’s knowledge.

Upon receiving a request for the digital evidence from my IT expert, the Prosecution had to admit that the image in question had been lost. Given the absence of any evidence, they decided to drop the prosecution.

Karma?

CONCLUSION

Many police officers do not understand the law, evidence and IT issues regarding s63 of the CJIA 2008. Not only does this have serious implications for defendants who have already pleaded guilty to extreme pornography offences; but it also applies to other sexual and computer based offences.

So, do you really know what’s on your computer? Do you know how it got there?

Will the police if they arrest you?