Defending Obscenity

The venerable Obscene Publications Act 1959, a legislative dinosaur that is now almost of pensionable age, is now on its last legs. That, at least, was the immediate consensus following the acquittal last Friday of Michael Peacock, a gay escort known professionally as "sleazy Michael", on charges of supplying obscene DVDs.

The material in question depicted acts that are legal to perform, which did not fall within the definition of "extreme pornography" contained in the more recent Criminal Justice and Immigration Act 2009 (as not involving the threat of serious injury), but which nevertheless came within the CPS prosecuting guidelines for obscene publication - namely, "fisting" and urination. (Peacock mentioned in evidence that the two tastes are curiously linked, with a predilection for one usually indicating an enthusiasm for the other, too. Quite why this should be so is unclear, but it would make a fascinating research topic for a broad-minded psychologist, would it not?)

Live-tweeted by journalist Nichi Hodgson and Backlash's Alex Dymock, the case made for compulsive online reading all last week. Blow-by-blow accounts of the allegedly obscene videos (which were shown, not just to the jury, but to anyone in the public gallery at Southwark Crown Court, making the courtroom briefly into the country's only free, non-membership sex cinema) alternated with sometimes hilarious exchanges between witnesses, lawyers and the judge. If you missed, it, there has been much coverage elsewhere, which I won't repeat here - not least because I'm very late to this particular party. The must reads are from Chris Ashford (perhaps the fullest account of the case itself and the issues), Myles Jackman (who advised the defence) and Nichi Hodgson herself.

It's not clear why the police and CPS decided to target Michael Peacock or, having done so, why he was charged under the Obscene Publications Act. He might have been charged under the Video Recordings Act 1984 with supplying unclassified material, which would have been an easy prosecution win. Peacock himself is no porn-baron. In his fifties, he's a previous winner of a coveted "Flying Golden Penis" as the Erotic Awards' male sex-worker of the year, 2007. He supplied the DVDs as a sideline, advertising them in Craigslist as well as selling them to his regular clients. And as the case unfolded it became clear that Peacock wasn't exactly handing out the porn on street corners.

To gather their evidence, the police had resorted to an elaborate piece of subterfuge. An undercover officer, calling himself Dave, responded to the Craigslist ad via email, asking for details of his DVD stock. He was sent a list. He then (as Peacock's requested) telephoned, saying he was interested in buying the "five most popular fisting DVDs" and was invited to call personally at the defendant's flat. He went round wearing a wire. The defendant made himself coffee and asked what "Dave" wanted. Dave replied: "fisting". The undercover policeman also asked for "extreme" bdsm and fisting material. The requested DVDs, which form the basis of the prosecution case, were then handed over for cash.

It would seem, then, that police mounted a major sting operation to trap a male prostitute into selling hardcore DVDs to someone who had expressed a serious and persistent desire to obtain them. Bizarre.

By far the majority of the coverage so far has welcomed the verdict, seeing it as another nail in the coffin of a paternalistic, judgemental and outdated piece of legislation, as a victory for free sexual expression, as a sign that the law may be at last coming to grips with a more liberal society. It was described, before and after the verdict, as a "landmark" case that would either reaffirm or re-write the law on obscene publications. Legally, the case doesn''t create precedent - jury verdicts are findings of fact, not law. But the guidelines used by the police, the CPS and the British Board of Film Classification are based on the current "best guess" of what would be judged obscene by a British jury. At the very least, it would seem likely that fisting and urination will now be removed from the list of no-nos, bringing the material criminalised by the OPA into closer approximation with the list of activities prohibited under s.63 of the CJIA.

Indeed, it might well happen that prosecution under the OPA will in future be limited to material that would be illegal under the newer law. The OPA is increasingly unimportant as a criminal charge in any event. The number of prosecutions has dwindled in recent years, and the number of contested prosecutions is very small indeed. A couple of years ago an attempt was made to use the OPA against a civil servant from Tyneside who had written a story in members of Girls Aloud were raped and tortured. It collapsed.

At one time, the OPA was used to ban even straightforwardly explicit depictions of normal sex, but the police gave up that particular fight more than a decade ago. Indeed as Chief Supt Martin Jauch of the Met's Clubs and Vice Unit (now trading as SCD9 - Human Exploitation and Organised Crime) told Panorama in 1998, even then juries could be frustratingly reluctant to convict:

At the end of last year we had one particular tape which involved the insertion of a fire extinguisher into a body orifice. It was quite outrageous, it was degrading, it was really beyond anybody’s experience and that was found to be not obscene, it makes you wonder if they’ll find some of this material to be not obscene, then what will they find to be obscene.

All of which makes you wonder why the police and the CPS bothered in this latest case.

The OPA's true significance doesn't lie in the small number of prosecutions that are brought under it, but rather in that it sets the standard by which the police and the BBFC judge the shifting boundary of what is or is not to be considered "obscene". It is unusual - and increasingly anomalous - legislation in that it bans nothing outright but instead employs a notoriously subjective test, that of "tending to deprave and corrupt" anyone likely to see the material in question. Therein lies the law's uncertainty - and, for many, its inappropriate moralism. On the other hand, the very subjectivity of the test does make allowances for changes in society. It gives it flexibility.

It was possible for prosecutors to argue in 1960 that the book Lady Chatterley's Lover was depraving and corrupting - at least, that it might deprave and corrupt the wives and servants of members of the jury, if not the upright male jury-members themselves. It would not be possible so to argue today - and that is surely not just a consequence of the Chatterley verdict going the way that it did. That case was more a symptom than a cause of shifting public standards. On the other hand, one might argue that a consensual, staged act which appears to "threaten serious injury to anus, breast or genitals" - the test set out in the CJIA - does not "deprave or corrupt" someone whose personal kink it reflects any more than would fisting or urination. But to no avail, legally, because that law makes no allowances for taste (nor does it insist on actual harm). And unlike the OPA it targets the possessor - even an inadvertent downloader - rather than the producer or the distributor. Though apparently narrower in remit, in respect of those activities it proscribes (which may now go beyond what a jury would consider obscene) it is harsher and more regressive.

What of the concept of "obscenity" itself? Many would consider it outdated and illiberal by definition - as well as questioning the law's near-exclusive concentration on sex as the vehicle of the obscene. But now that the OPA has had the life almost squeezed out of it - between more liberal social attitudes on the one hand and the new extreme porn laws on the other - it's worth asking, I think, whether something of value is being lost.

The crux of obscenity law is that it bans the depiction of acts which, in themselves, are not illegal; it declares to be depraved and corrupting activities which it nevertheless acknowledges that consulting adults might indulge in, and still remain decent members of society. Something not quite logical there, perhaps. Yet is this not also a way of saying that the needs of society and the needs of individuals might not always coincide, and that there might be a space between what must be privately allowed and what may be publicly depicted? Not everything that is socially unacceptable ought to be illegal, after all: that way lies totalitarianism. But by the same token, the fact that something is legal does not - ought not, in a truly liberal society - render it socially acceptable.

For all its many faults, the Obscene Publications Act sought to strike a balance between private and public rights. It recognised that citizens might lawfully get up to things that the majority of their fellows might consider depraved and corrupted while asserting that the majority also had the right to have their sensibilities protected. Most importantly, by leaving the final decision to a randomly-selected jury of ordinary citizens, it granted custodianship of the standards of decency to the people as a whole rather than their being decided unilaterally by politicians and police. These are principles worth clinging on to even if, by the beginning of 2012, the Act itself had ceased to serve a useful function.