Graduate Journal of Social GJSS Science R v Peacock: Landmark Trial Redefines Obscenity Law
Alex Antoniou
The acquittal of Michael Peacock, who was charged with distributing DVDs featuring male fisting, urination and sado-masochism, has cast doubt on the English obscenity law. The ‘deprave and corrupt’ test under the Obscene Publications Act 1959 has been controversial since its inception in England and Wales. One of the strengths of the 1959 Act is its ability for juries to rec- ognise changing moral standards in accordance with modern social values. While such content has been found in the past to be capable of debasing and destroying the moral purity of its likely audience, the question put before the jury in R v Peacock was if this is the case nowadays. For some, the not guilty verdict represents a victory for freedom of expression and the end of an era; for others, moral degeneration. This article provides a more perceptive view of the implications of the Peacock outcome. It argues that we have not seen the demise of obscenity yet. On the contrary, more insidious obscenity provi- sions have replaced the ‘archaic’ 1959 Act and more censorship laws with real teeth are likely to be just over the horizon.
Keywords: Obscenity, pornography, fisting, urination, sado-masochism
Introduction cated on 6 January 2012, when a The Obscene Publications Act unanimous jury in a landmark ob- 1959 (OPA or the 1959 Act hereaf- scenity trial returned a not guilty ver- ter1) passed over half a century ago, dict. was quite recently wielded against This paper builds on an interpre- Michael Peacock, a male escort tative and qualitative analysis of the professionally known as ‘sleazy principal legislation for the regula- Michael,’ who had been accused tion of sexually explicit content of of distributing obscene DVDs for any kind in England and Wales with gain. However, his determination to reference to primary and secondary challenge this ‘arcane and archaic sources. In light of notable cases in legislation’ (Richardson, cited in the past and the defendant’s acquit- Solicitors Journal 2012) was vindi- tal in the recent obscenity case of
Graduate Journal of Social Science February 2013, Vol. 10, Issue 1 © 2013 by Graduate Journal of Social Science. All Rights Reserved. ISSN: 1572-3763 86 GJSS Vol 10, Issue 1
R v Peacock (unreported, 6 January The Content of the Publications 2011, Southwark Crown Court, The recordings at issue featured London, UK), the paper explores hardcore gay sexual activities: First, how the obscenity test has been fisting, namely the practice of in- applied and developed since its in- serting the hand and arm into the ception with respect to both written vagina or anus. In Peacock, fisting and visual material. Furthermore, involved the insertion of five fingers the examination of the outcome of the fist into the rectum of another in Peacock and its implications is male. Many people have difficulty in complemented by a non-doctrinal understanding fisting as a specific approach, which relies on the in- form of sexual intercourse. It is ar- terpretation of up-to-date quantita- gued that, far from being perverse, tive data concerning the number of this practice is from a psychoanalyt- prosecutions in England and Wales ic perspective ‘erotically exciting in under the Obscene Publications Act just the same way as other sexual 1959 and its prospective successor practices are’ (Denman 2003, 194). (section 63 of the Criminal Justice Second, urolagnia [also called and Immigration Act 2008), with a ‘urophilia,’ ‘urophagia,’ ‘ondinism’ view to providing a more compre- and ‘undinism’ after Undine, a wa- hensive and well-balanced insight ter nymph, from the Latin, unda, into the true meaning of the verdict ‘wave’ (Money 1986)], namely the in Peacock. sexual arousal and interest in urine and the act of urination itself. The The Facts terms have been used to describe The defendant in Peacock was any erotic use of the urinary stream, charged on indictment with six which may or may not involve a counts under the 1959 Act for distrib- partner (Milner et al. 2008, 395). uting allegedly obscene DVDs. The Interest in urolagnia may take vari- recordings at issue had been ad- ous forms, including watching others vertised for sale on the Internet and urinate, urinating on others, being Craigslist. Mr. Peacock had been urinated on (aka ‘golden showers’ selling them from his flat in Brixton. or ‘water sports’) or even drinking Officers from SCD9, the Metropolitan urine (Greenberg et al. 2011, 506). Police unit investigating human ex- This sexual variation is often asso- ploitation and organised crime (the ciated with sadomasochistic activity former Obscene Publications Squad and represents a form of domina- of the Metropolitan Police), came tion (Steen and Price 1988, viii). In across Mr. Peacock’s services and Peacock, the DVDs involved men made an undercover test purchase urinating in their clothes, onto each in January 2009. Six DVDs were others’ bodies and drinking urine. deemed obscene and Mr Peacock Third, the recordings also fea- was prosecuted. tured BDSM, the acronym for bond- Antoniou: R v Peacock 87 age, domination, submission and close up of the chest followed; the masochism, but can also mean the recipient says ‘thank you Sir.’ In the combination of two related pairs of third scene, a man was hung upside the terms: ‘bondage and discipline’ down suspended from his feet and and ‘sadism and masochism.’ In was whipped on the chest; then, he Peacock, BDSM practices involved was tied upside down from a tree and hard whipping, the insertion of nee- his chest was hit with a riding crop. dles and urethral sounds, electri- Furthermore, in the fourth scene, a cal ‘torture,’ staged kidnapping and man was flogged on a rack; his tes- rape, whipping, as well as smacking ticles were hoisted in a chain with of saline-injected scrotums. his legs in a spreader bar. He was More specifically, the first clip, flogged on his chest and legs. The approximately 25 minutes long, fifth scene moved outside again de- consisted of a fisting scene, culmi- picting a man who was bullwhipped nating with a foot being inserted into on his back; some bleeding ensued. an anus and double fisting. The sec- Finally, the sixth scene returned in- ond one depicted a man in boxing side showing caning to the buttocks, gloves engaging in a threesome to needles and electrodes to nipples, the accompaniment of country mu- as well as urethral sounds to the pe- sic, some ballbusting (punching to nis. The final shot showed clothes the testicles and stomach), as well pegs attached in a row to the chest as simulated kidnapping. The third and nipples. clip involved multiple participants On the second day of the trial, engaging in fisting and anal play two additional clips were shown in with the penetrator masturbating the courtroom: they included a man whilst spitting into one recipient’s being tattooed in a chair, whilst be- anus. The fourth commenced with ing fisted and then penetrated with a warning specifying that the video a dildo. Following scenes showed should not be viewed, unless the a fully clothed man in a chair re- viewer is specifically interested in ceiving oral sex, whilst an unseen hardcore BDSM. The message of man behind them urinated into the the clip also specified that mutual mouth of the clothed man and over consent had been given and all par- his body. His face was pushed into ticipants were aged over 18. the urine, his penis gripped and his In the first scene of the fourth anus fingered. In the final scene, set clip, a man was being flogged on in woodland, a skinhead was rolling his back outdoors in the country- a cigarette and urinated into another side. His hands and feet were re- man’s mouth.2 strained, while red welts rose. The This is exactly the kind of ma- second scene, set in a dungeon, terial that the Crown Prosecution showed a man being flogged on the Service (CPS) and the police have chest and pinned against a wall. A long claimed was still considered 88 GJSS Vol 10, Issue 1 obscene by the jury. More precisely, ily non-consensual, but also to a fair the CPS has devised a list of ‘ma- number of sexual activities that may terial most commonly prosecuted’ be entirely consensual. Consent is (CPS 2012) within the context of the a defence against criminal liability to English obscenity law. This is not an a charge of assault. In the absence exhaustive list though. As the CPS of some ‘good reason’ (Attorney- states, ‘it is impossible to define all General’s Reference (No. 6 of 1980) types of activity which may be suit- [1981] QB 715), for instance properly able for prosecution’ (CPS 2012). conducted games and sports, lawful The categories of material deemed chastisement or correction, reason- obscene consist of: able surgical interference etc, an 1. Sexual acts with an animal. assault cannot be rendered lawful 2. Realistic portrayals of rape. by virtue of consent, if it caused, or 3. Sadomasochistic material which was intended to cause, actual bod- goes beyond trifling and transient ily harm. Consent to the intentional infliction of injury. infliction of actual or grievous bodily 4. Torture with instruments. harm for satisfying sado-masochis- 5. Bondage (especially where gags tic sexual desires does not consti- are used with no apparent means tute a ‘good reason’ and therefore, of withdrawing consent). it will not be a valid defence for rea- 6. Dismemberment or graphic muti- sons of public policy: The House of lation. Lords judgment in R v Brown [1994] 7. Activities involving perversion or 1 AC 212 established that a defend- degradation (such as drinking ant may be convicted of unlawful urine, urination or vomiting on to wounding and assault occasioning the body, or excretion or use of actual bodily harm in the context of excreta). sado-masochistic activities that in- 8. Fisting. volve injuries which are greater than The CPS will not normally initiate transient or trifling (essentially the proceedings with respect to material drawing of blood), despite the fact portraying actual consensual sexual that the acts were committed in pri- intercourse (vaginal or anal), oral vate, that the participant on whom sex, masturbation, mild bondage, the injuries were inflicted consented simulated intercourse or buggery, to the acts in question and did not fetishes which do not encourage sustain any permanent injury. physical abuse, unless any of the In Peacock, no one contested the aforementioned factors are present legitimacy of consenting to being in the case concerned. fisted or punched in the testicles. It is noteworthy that the official More to the point was the ques- CPS guidance refers not only to the tion of who might see it happening, depiction of acts that are necessar- which in essence exposes the dis- Antoniou: R v Peacock 89 parity between what the law permits sexual desire and sexual behaviour. consenting adults to do and what it The British courts have interpreted permits them to see, hear or read of the statutory notion of obscenity so others doing. In other words, what as to encompass the encourage- was on trial in R v Peacock was not ment to take prohibited drugs or sex, but rather the depiction of sex. engage in brutal violence. In Calder Many pornography producers Ltd v Powell [1965] 1 QB 509, Alex have been reluctant thus far to chal- Trocchi’s novel, Cain’s Book, which lenge the presumption that practic- described the life of a heroin ad- es involving fisting and urination are dict in New York, was found to be obscene. Arguably, this supposition obscene on the grounds that po- has endured because the existing tential readers of the book might be obscenity test, discussed below, is tempted by the attractive descrip- notoriously obscure, inviting a great tions of drug consumption to experi- degree of subjectivity. Retailers, ment with heroin. Thus, the width publishers or pornographers are not of the definition could theoretically in the position to know in advance embrace the fostering of attitudes with certainty whether an article is which the court or the jury might find obscene or not, while most peo- morally objectionable. ple charged under the OPA plead Section 1 features the conten- guilty, since a not guilty plea and a tious ‘deprave and corrupt’ test, ac- court case resulting in a guilty ver- cording to which: dict could lead to a more severe sentence. Nevertheless, Michael […] an article shall be deemed to Peacock’s decision to pursue this be obscene if its effect or (where case constituted the first test of the the article comprises two or more 1959 Act before a jury for many distinct items) the effect of any years, thereby challenging the so one of its items is, if taken as a far uncontested views of the police whole, such as to tend to deprave and the CPS on what is obscene. and corrupt persons who are like- ly, having regard to all relevant The Obscenity Test circumstances, to read, see or The long title of the OPA provides hear the matter contained or em- that the purpose of the Act is ‘to bodied in it. amend the law relating to the publi- cation of obscene matter; to provide The statutory test is derived from for the protection of literature; and to Chief Justice Cockburn’s judgment strengthen the law concerning por- in the Hicklin case of 1868, which nography.’ Despite the reference to ‘hung [...] like a London fog above pornography, depravity and corrup- every case of obscenity which has tion are not confined to matters of come before the courts ever since’ 90 GJSS Vol 10, Issue 1
(Hansard, HC Deb 29 March 1957 larly impressionable people, unless vol 567 c 1492, Viscount Lambton). they are part of the likely readers, Until 1959, the publisher of a book viewers or listeners. It is incorrect containing any ‘purple passage’ that to invoke the standards of the aver- might have a tendency ‘to deprave age man or woman. In other words, and corrupt those whose minds are whether an article is obscene de- open to such immoral influences pends on what is being or is going to and into whose hands a publica- be done with it. Therefore, where a tion of this sort may fall’ (R v Hicklin case is tried on indictment, the jury (1867–8) LR 3 QB 360, 452) was li- must put themselves in the shoes of able to imprisonment. Put in a word, the likely audience. the Hicklin test required a publisher The CPS stated that it was in to prove that his publication was an the public interest to prosecute Mr appropriate reading matter for an in- Peacock: ‘The prosecution was not nocent schoolgirl. only about the content of the materi- To deprave means ‘to make al, but the way in which it was being morally bad, to debase or to cor- distributed to others, without checks rupt morally.’3 To corrupt means ‘to being made as to the age or identity render morally unsound or rotten, of recipients’ (Green 2012b). They to destroy the moral purity or chas- maintained that customers were not tity, to pervert or ruin a good qual- aware of the explicit content and the ity; to debase; to defile.’4 Whether defendant paid no attention to the the material under consideration identity of his buyers. would deprave and corrupt those The jury was not convinced who are likely to read, see or hear though. People likely to see the it is a question of fact for the jury to DVDs at issue were gay men spe- consider. The strength of the current cifically looking for this type of ma- obscenity test lies in the fact that it is terial. The defendant stated that, in flexible, allowing the jury to interpret fact, customers asked him for spe- it in line with shifting moral stand- cific titles and knew exactly what ards. Its weakness is the reverse they were buying (Beaumont and of its strength. Its flexibility and the Hodgson 2012). In essence, the jury subjectivity inherent in jury verdicts had to decide whether knowledge- constitute its major drawbacks. able customers with certain sexual It is the potential effect of the ar- proclivities, who had actually sought ticle on its likely audience that mat- out and paid for DVDs featuring a ters. An article cannot be inherently specific niche of porn, would be de- obscene in isolation from it. The praved and corrupted by it. publication in question does not It could be argued that the prose- have to be judged against the so- cution had been initiated by a desire ciety as a whole or against particu- to discipline (hetero)sexuality. The Antoniou: R v Peacock 91 structural heteronormativity embod- faced up to five years imprisonment. ied in the history of the enforcement The jury’s verdict in the case at of obscenity laws is manifest; from issue has a dual meaning. Readers, the 1928 orders for destruction of viewers or listeners who are already The Well of Loneliness because it depraved and corrupted may be- ‘would glorify the horrible tendency come more so, according to case of lesbianism’ (Brittain 1968, 91–2) law. The defendant’s bookshop in to the prosecution of the publish- DPP v Whyte [1972] AC 849 sold ers of Hubert Selby Jr’s Last Exit to pornographic books. The court Brooklyn for its descriptions promot- found that the majority of the cus- ing ‘homosexuality or other sexual tomers were middle-aged men and perversions’ (R v Calder and Boyars upwards. Having identified the likely Ltd [1969] 1 QB 151, 172) and con- audience, the court took the view victions relating to businesses con- that the pornographic material at is- centrating on homosexual pornog- sue was not capable of depraving raphy (R v Phillip James McGuigan and corrupting that readership, a [1996] 2 Cr App R (S) 253) or ob- significant proportion of which was scene video tapes depicting homo- ‘inadequate, pathetic, dirty-minded sexual activity (R v Land [1999] QB men, seeking cheap thrills – addicts 65). However, after having watched to this type of material, whose morals large parts of the ‘hard core’ male- were already in a state of depravity on-male DVDs over several hours and corruption’ (DPP v Whyte [1972] during the trial and after having been AC 849, 862). However, the House carefully warned against sentencing of Lords rejected this approach. The out of any impulse of homophobic 1959 Act does not necessarily cen- antipathy, the jury, who presumably tre only upon the corruption of the had not been depraved and cor- wholly innocent. According to Lord rupted in the process, decided – in Wilberforce’s opinion, less than two hours – that the mate- rial at issue is unlikely to ‘deprave The Act’s purpose is to prevent and corrupt’ the viewer. Interestingly the depraving and corrupting of enough, Nigel Richardson, the de- men’s minds by certain types of fendant’s lawyer, commented that writing: it could never have been although the jurors were initially intended to except from the leg- shocked, they looked quite bored islative protection a large body of very quickly (BBC 2012). They final- citizens merely because, in differ- ly found Michael Peacock not guilty ent degrees, they had previously on all counts. Had the jury found the been exposed, or exposed them- defendant guilty of distributing ma- selves, to the ‘obscene’ material. terial capable of ‘depraving and cor- The Act is not merely concerned rupting’ its viewers, he could have with the once for all corruption 92 GJSS Vol 10, Issue 1
of the wholly innocent; it equally The Significance of the protects the less innocent from Outcome: The Bright Side further corruption, the addict from The outcome in R v Peacock has feeding or increasing his addic- been warmly welcomed. The case tion (DPP v Whyte [1972] AC 849, hit the headlines and the media pro- 863). nounced 6 January 2012 ‘a great day for English sexual liberties. […] Granted that section 8 of the For gay rights campaigners and Contempt of Court Act 1981 makes for every one of us that believes in it a contempt to ‘obtain, disclose social and sexual liberty, it’s a day or solicit any particulars of state- to make a five-digit victory sign’ ments made, opinions expressed, (Hodgson 2012). The defendant’s arguments advanced or votes cast solicitor, Myles Jackman, who pro- by members of a jury in the course vided support for the defence case, of their deliberations in any legal commented that: ‘The jury’s verdict proceedings,’ for all we know, the – in the first contested obscenity tri- jury found that pretty severe sado- al in the digital age – seems to sug- masochistic practices, fisting and gest “normal” members of the public urination for sexual purposes would accept that consensual adult por- deprave and corrupt members of nography is an unremarkable facet the public who have not viewed this of daily life’ (Jackman 2012). kind of material before. However, Moreover, Feona Attwood, those who have already been ex- Professor of Sex, Communication posed or those likely to be exposed and Culture at Sheffield Hallam to it again, are already depraved University, who attended the trial, and such content would not take asserted that the law has been them any further; hence, the jurors overtaken by new understandings found it is not obscene. If they did of how people think about sexual- consider this, then Peacock can be ity and the portrayal of sex. She re- contrasted with DPP v Whyte. marked: What is bizarre and perhaps par- adoxical about Peacock is that giv- I think the law does not make en how cautious the defendant was sense. All the evidence that was about distributing the DVDs at issue heard was about whether the (his customers had to indicate some material had the ability to harm kind of interest, contact him and go and corrupt. The question now to this home), the only people in is, what does that actually mean? the UK who saw the DVDs without What is significant is that the jury being willing to, was the jury in the understood [the issues at stake] public gallery as a result of the po- (quoted in Beaumont and Hodg- lice and CPS action. son 2012). Antoniou: R v Peacock 93
David Allen Green, solicitor and decided it is no longer appropri- New Statesman legal blogger also ate to prosecute people based on welcomed the verdict and com- consensual adult sexual activity. mented that: We support the rights of adults to participate in all consensual sex- […] obscenity is a curious criminal ual activities and to watch, read offence, and many would say that and create any fictional interpre- it now has no place in a modern tation of such in any media (In- liberal society, especially when ternational Union of Sex Workers all that is being portrayed in any 2012). ‘obscene material’ are the con- sensual (if unusual) sexual acts The majority of previous pros- between adults (Green 2012a). ecutions under the OPA in relation to written material ended in failure. Describing the idea that depic- Penguin Books were unsuccess- tions of consenting adult sexual fully prosecuted in 1960 under the activity can be deemed obscene same statute for publishing DH as ‘a throwback to an earlier age,’ Lawrence’s Lady Chatterley’s Lover Jerry Barnett, Chairman of the Adult after its acquittal on an obscenity Industry Trade Association (AITA), charge in the USA. The parade of observed: distinguished figures of English in- tellectual life to provide expert evi- The adult industry continues to dence rendered the case a cause develop and adopt technologies célèbre in England. The obscenity that prevent children from ac- law has been marked by seminal cessing sexual content. We see cases since: Hubert Selby Jr’s pros- no need for adults to be protected ecution in 1968 for his frank portray- from it – a free society should pro- als of drug use, street violence, gang tect the rights of adults to partici- rape and homosexuality in his 1964 pate in any consenting sexual act novel Last Exit to Brooklyn, the Oz they choose (International Union magazine trials in 1971, the Inside of Sex Workers 2012). Linda Lovelace trial in 1977 and the trial of D. Britton’s novel Lord Horror In addition, Hazel Eracleous, in 1989. Chair of Backlash, the umbrella or- What do these cases have in ganisation that provides academic, common? They were all subject to legal and campaigning resources failed prosecutions (the convictions in defence of freedom of sexual ex- in Lovelace, Oz and Lord Horror pression, also remarked: were overturned on appeal). After the Court of Appeal overturned the Backlash is delighted that a jury conviction in Inside Linda Lovelace, 94 GJSS Vol 10, Issue 1 the Metropolitan police were re- ing around who can be corrupted ported as saying that if that work and who cannot. The outcome in was not obscene, then nothing was. Peacock rearranged the boundaries Therefore, there had grown an as- of the English obscenity law and sumption that the written word fell could be ‘the final nail in the coffin outside the scope of the 1959 Act. for the Obscene Publications Act in the digital age’ (Jackman quoted in There are two exceptions to this BBC 2012). rule: the Little Red Schoolbook in Furthermore, it may be argued the early seventies, which contained that the unanimous ‘not guilty’ ver- chapters on sexual intercourse, dict in R v Peacock indicates that masturbation and abortion and was society has become more com- found to be obscene, as well as the fortable with the idea of consent in more recent Girls (Scream) Aloud sexual activities and less condem- case, which in the summer of 2009 natory as far as unusual sexual pre- provoked much comment about the dilections are concerned. Peacock CPS abandonment shortly before shows that the general public, along trial of the prosecution of Darryn with appropriate guidance, is able to Walker, who had been charged with distinguish between real corruption publishing a ‘popslash’ fantasy on a or actual harm and what consent- blog involving the mutilation, rape ing adults opt for. Note for example and murder of each member of the ‘thank you Sir’ offered by one the girl band by their coach driver. punishment-recipient in the second In both cases, the key factor that scene of the fourth clip mentioned prompted the prosecution was that above. Failure to differentiate be- the likely audience was likely to be tween consensual and nonconsen- people of impressionable age and sual sexual activities is something thus more vulnerable to being de- that must be addressed, so as to praved and corrupted. shape the debate about sex issues Peacock clearly demonstrates in a way that is more reasonable that the public opinion in 2012 has and less antiquated. moved on considerably with respect The obscenity test in England to supposedly obscene visual mate- and Wales, as presently construct- rial as well. The case under consid- ed, has attracted much censure for eration clarified the law in respect being out-of-date, ‘puritanical’ and of fisting and urination pornography ‘unworkable’ (Edwards 2002, 125). and the CPS abovementioned list It was effective at the time when needs to be reviewed in light of this there was a consensus on sexual latest judgment. Overall, the his- values enforced by religious teach- tory of the 1959 Act appears to be ing (Orr 1989) but, nowadays, sex- littered with cases like this, revolv- ual attitudes are so diverse that the Antoniou: R v Peacock 95 concept of a common set of values fect on 26 January 2009. It has been is not viable. Moreover, the current more than three years in the making test is not based on the offensive- and involved a considerable degree ness of the material in question, but of Parliamentary scrutiny, as well as on the effect it has on its potential thorough media analysis and public audience. The most offensive mate- debate. rial may not be considered as ob- Prior to the CJIA 2008, it was scene, because it might repulse its not an offence merely to pos- audience, rather than ‘deprave and sess obscene material, but under corrupt’ it (the ‘aversion’ defence, R the OPA it is a criminal offence in v Calder and Boyars Ltd [1968] 3 All England and Wales to possess an ER 644, 647, Salmon LJ). Hence, it obscene article for publication for is argued that the test is ‘paternal- gain. During the sixties, it was pos- istic – it robs the viewer of their ra- sible to control the circulation of tional status. […] [it is] one from a prohibited material in the form of different era that offends our most photographs, books, videos or films basic personal autonomy’ (Glenister and DVDs by taking action against 2012). The definition of obscenity publishers within the UK. In addi- depends on the inescapable sub- tion, the Customs Consolidation Act jectivity and cultural relativity of 1876 and the Customs and Excise vague terms. How many of us would Management Act 1979 tackled the consider Lady Chatterley’s Lover a problem of physical importation of threat to public morals now? Its con- obscene material from abroad by sequence is that sexual subcultures empowering Customs’ officers to are criticised for the employment of seize it. However, the global nature practices which are essentially out- of the Internet makes it very diffi- side the average person’s experi- cult to prosecute those operating ence and that individuals’ private from abroad. Thus, the new legal choices are regulated by what the provisions were put forward as a police, the CPS and ‘twelve shop- response to the ineffectiveness of keepers’5 (Dicey 1959, 246) consid- the existing regulation in controlling er as tolerable. a certain category of pornographic Last but not least, certain ‘torture’ images, which is produced outside scenes included in the clips de- of, but procured by Internet users scribed above are practically what within England and Wales. the ‘extreme porn’ law seeks to An image must come within the outlaw. The new offence of posses- terms of all three elements of the of- sion of extreme pornographic im- fence before it can fall foul of it: (i) ages (sections 63–7 of the Criminal Pornographic: An image is deemed Justice and Immigration Act 2008, pornographic, if it is of such a nature CJIA 2008 hereafter) came into ef- that it must reasonably be assumed 96 GJSS Vol 10, Issue 1 to have been produced solely or 2008, under section 63(7)(b) of principally for the purpose of sexual which fisting may be considered ‘an arousal. This is a question for the act which results, or is likely to re- magistrate or jury to consider by sult, in serious injury to a person’s personally examining the material anus, breasts or genitals.’ at issue. (ii) The image is grossly of- fensive, disgusting or otherwise of Not Much Scope for Celebration: an obscene character. (iii) The im- The Dark Side age must portray in an explicit and The Metropolitan Police has realistic way one of the following: pledged to meet with the CPS 1. An act which threatens a person’s and the British Board of Film life. Classification (BBFC) to review the 2. An act which results, or is likely to current guidelines on obscenity. result, in serious injury to a per- There is also potentially scope for a son’s anus, breasts or genitals. Law Commission review of the law 3. An act which involves sexual in- on assault regarding sexual con- terference with a human corpse. sent. The BBFC, the statutory au- 4. A person performing an act of thority for age rating videos under intercourse or oral sex with an the Video Recordings Act 1984, has animal (whether dead or alive), been rejecting works citing the cur- and a reasonable person look- rent interpretation of the OPA and ing at the image would think that has repeatedly considered whether the animals and people portrayed cutting a work might address ob- were real. scenity issues. On which basis do It should be noted that ‘explicit they order the editing of a certain and realistic’ means that graphic and work? They simply take into consid- convincing scenes will be caught. eration the police and CPS above- Thus, the offence is not limited to mentioned guidance on what they photographs or films of real criminal believe members of a jury would find offences; even staged sexual activi- obscene. This prevents the publica- ties may be covered by the law. tion of certain kinds of images by Given that the new criminal of- filmmakers, since the Board gives fence is intended to catch ‘only ma- high priority to the CPS interpreta- terial that would be caught by the tion of what would be covered by OPA were it to be published in this the 1959 Act. country’ (Hansard HL vol 699 col Peacock questions the entire edi- 895, 3 March 2008, Lord Hunt), it fice of film classification, since the may be argued that Peacock clari- BBFC position thus far has been fies what types of material it - isle that the CPS has a good idea of gal to possess under the extreme what would be considered as ob- pornography provisions in the CJIA scene by a jury. Certain prohibitions Antoniou: R v Peacock 97 can now be dropped, but it remains obscene, the Board published its to be seen how the BBFC will take decision to make compulsory cuts Peacock on board, since it is still to the R18 adult DVD entitled The entitled to order re-editing of a film Best of Lucy Law in order to re- based on its own guidelines. move the depiction of a woman lick- Currently, fisting is restricted to ing urine from another. ‘Cuts were the ‘four finger’ rule, which irration- made in line with current interpreta- ally means that depictions of fisting tion of the Obscene Publications Act are legitimate as long as the thumb 1959, BBFC Guidelines and policy is not inserted into a participant’s and the Video Recording Act 1984,’ anus. Following Peacock, some al- the Board explains (BBFC 2012). lowances may be made for fisting Likewise, a cut of 20 seconds was under the proviso that it does not required to remove from Slam It! In cause any discomfort to participants A Slut 2 sight of a female performer and forms part of a ‘moderate, non- expelling urine directly onto a man abusive, consensual activity’ (BBFC underneath her in order to obtain 2009, 31). However, ‘strong physi- the R18 category (BBFC 2012). cal […] abuse, even if consensual, Therefore, it appears that the OPA is unlikely to be acceptable’ (BBFC still exerts a fair influence over the 2009, 31), while the infliction of pain policy of organizations such as the or acts in a sexual context which BBFC and it is unlikely that the UK may cause lasting physical harm, film industry will see the implemen- whether real or simulated, won’t be tation of more liberal classification tolerated. As far as BDSM scenes standards: are concerned, it may be argued that Peacock will not significantly The role of the BBFC is not to de- impact on the BBFC policy, since R cide the law but to enforce it and v Brown [1994] 1 AC 212 (aka the in this we will be guided by the law ‘Spanner’ case, discussed above) enforcement agencies. In relation remains effective law. to this [Peacock], the CPS have Moreover, although consumers stated that the fact that a jury would expect that urolagnia may has acquitted someone does not now be generally allowed, the BBFC mean that the guidance is incor- still believes that licking urine could rect. There are no current plans to ‘deprave and corrupt’ R18 viewers; revise our Guidelines.6 hence, changes may be required as a condition of classification, if a sub- In addition, section 3 of the OPA mitted work raises concerns over is still active: this allows the CPS its degrading content. Following the and the police to seize and bring resounding Peacock case, in which supposedly obscene material be- the jury found urolagnia not to be fore a magistrate, who can in turn 98 GJSS Vol 10, Issue 1 issue an order for its destruction. sion to prosecute. Mediawatch-UK, This is usually the preferred option the organisation which campaigns for the majority of defendants, since against violent, sexually explicit charges under section 3 are brought and obscene material in the media, against the material in question rath- maintained that Peacock calls for er than its publisher or distributor. the strengthening of obscenity law Furthermore, Customs and Excise rather than its abolition. For them, take into account a long and com- the not guilty verdict is actually a prehensive list of prohibited images, red flag of the malfunction of the which proscribes the importation of current law. Commenting on the trial images depicting: ‘anal fisting, ana- outcome, the director of the organi- lingus, bestiality, bondage, buggery, sation, Vivienne Pattinson, pointed coprophilia, cunnilingus, defaeca- to the lack of concrete guidance as tion [sic], domination, ejaculation, to what constitutes obscene and the enemas, fellatio, insertion of an difficulties in obtaining a conviction. object, intercourse, masturbation, ‘As a society we are moving to a place necrophilia, paedophilia, sado-mas- where porn is considered as kind of ochism, scatophagy, troilism, urina- fun between consenting adults, but tion (urolagnia) and vaginal fisting.’7 porn is damaging,’ Pattinson as- Officers are empowered to seize serted (BBC 2012). The Recorder this kind of material, place it before in Peacock, James Dingemans QC, local magistrates and request that it also remarked in his summing up be destroyed. that ‘in a civilised society, lines must Does Peacock really usher in be drawn’ (Jackman 2012). a new epoch of sexual liberation? Additionally, latest figures indi- Although the verdict in Peacock her- cate a substantial fall in the num- alded the end of an era for propo- ber of prosecutions under the OPA nents of greater freedom of expres- 1959: the volume of offences in sion in the erotic arena, the political which a prosecution commenced in prognosis for the current obscenity magistrates’ courts in 2008–9 was law is rather pessimistic in the long 152, compared to 82 in 2009–10 run, ‘just as the death of one evil and and 71 in 2010–11 nationwide (CPS malignant creature in the Wizard of 2011, 50). Ironically, it is just after Oz heralded an even nastier arrival, this that prosecutions under the new in the form of the Wicked Witch of sections introduced in January 2009 the West’ (Fae 2012b). (sections 63–7 of the CJIA 2008) re- lated to extreme pornographic im- Not everyone is delighted with ages have dramatically increased the not guilty verdict. The CPS in the last two years: according to stated that it respected the jury’s the Crown Prosecution Service, verdict, yet they stood by their deci- in 2009–10 prosecutions were Antoniou: R v Peacock 99 brought in respect of 213 offences, by criminalising mere possession, whereas in 2010–11 the number of the fundamentally intrusive offence offences reached 995 (CPA 2011, has shifted criminal responsibility 50). It is noteworthy that these lat- from the producer (who is in princi- est figures relate only to posses- ple more likely to access appropri- sion of images portraying bestiality. ate legal advice) to the consumer. In fact, between 2009 and 2010, a The ‘grossly offensive, disgusting or total number of 1,977 offences un- otherwise of an obscene character’ der sections 63–7 of the CJIA 2008 threshold also renders the new law reached a first hearing in the mag- unworkable and extends govern- istrates’ court.8 Thus, it may be ar- ment powers to censor consensual gued that the CJIA 2008 seems to adult conduct simply on the grounds be substantively replacing the 1959 that some people find it unpleas- Act sub silentio. ant or repugnant. In light of this, it The truth is in numbers. Anti- is submitted that the OPA has func- censorship advocates need to stay tioned or could function as a bul- alert: a meticulous review of obscen- wark against more draconian and ity law might ensue after Peacock, repressive regulation. but in the current climate of sexuali- sation anxiety (Papadopoulos 2010) Concluding Remarks: Obscenity it is likely that we will see not the Law is Not Dead; At Least, Not end of obscenity, but the widening Yet. and strengthening of existing laws, The result in Peacock does not set such as the provisions criminalis- any precedent. It is not binding upon ing the mere possession of extreme other courts and may be overturned pornographic images. by a higher court. Theoretically, it is The UK Parliament legislated possible for the police to arrest and in the CJIA 2008 despite the ab- charge someone under exactly the sence of conclusive evidence as same circumstances, over exactly to whether objectionable material the same recordings now. online normalises distorted views On the one hand, notwithstand- of sexuality and sexual pleasure. ing the lack of judicial determina- Simultaneously, the experimental tion of precedential force, it may and criminological evidence base be argued that the obscenity law in as regards the relationship between England and Wales is at a turning the consumption of pornography and point. Peacock has the potential to sexual offending is ‘patchy and in- whittle the CPS list down to half of consistent’ (Millwood Hargrave and the ‘likely to be found guilty’ repre- Livingstone 2009, 245) and a con- sentations of adult consensual be- sensus on this empirical question haviour and thus, the verdict might has not yet emerged. Additionally, discourage the CPS from future 100 GJSS Vol 10, Issue 1 prosecutions. To put it bluntly, we ity law, pointed out in an interview should expect more fisting and uri- on the BBC Radio 4 PM programme nation in porn films hereafter. regarding the implications of the On the other hand, with a dedi- verdict in R v Peacock: cated ‘extreme pornography’ squad (the London Metropolitan Police’s […] the MoJ, along with the BBFC, Abusive and Extreme Images Unit) the police and the CPS are per- and many previous defendants fectly happy to shift the burden on pleading guilty rather than hav- to juries, instead of actually say- ing their fetishes publicized during ing we need to re-evaluate what court proceedings, it appears that is obscene and what is not. They Peacock was merely another epi- are saying, no, defendants, like sode in the ongoing saga of unnec- Michael Peacock, they must go essary, expensive and unsuccessful to court, they must go through the obscenity prosecutions. Because of trauma of the process of thinking the absence of determination and they may go to prison as a conse- budget to challenge the authorities, quence of that and that is clearly the fear of prosecution hangs over not a desirable state. filmmakers’ heads like the prover- bial sword of Damocles. In practice, The stressful, excruciating and there would be no difference, if the expensive vagaries of the process OPA is sidelined, but the BBFC does should not be neglected: the police not liberalise its approach. raids on homes and offices; the un- Obscenity is a focal point where comfortable moment of arrest; the constructive political and moral de- never-ending meetings with lawyers; bates intersect. It is important to il- revelations about an individual’s pri- luminate the issues at stake, since vacy and names publicly dragged otherwise misconceptions flourish, through the mire. The disappointing on which knee-jerk legislation is then conclusion must be that one of the built. The obscenity law, more than areas of law in urgent need of re- ever, calls for radical amendments, form is less likely to receive it. not for simplistic legislative chang- Finally, the verdict in Peacock es by adding more unworkable and probably suggests that ‘the British fundamentally intrusive offences, stereotype of being prudish and such as the newly introduced ex- conservative may not be com- treme porn provisions. However, pletely true’ (Glenister 2012). While the Ministry of Justice (MoJ) has no many commentators rushed to plans to amend the legislation and hang the flags of sexual freedom the law on assault regarding sexual out and rejoice over the fact that consent. As Myles Jackman, a solic- the Obscene Publications Act 1959 itor with a special interest in obscen- is ‘on its last legs’ (Beaumont and Antoniou: R v Peacock 101
Hodgson 2012), the case heard be- Books Ltd [1961] Crim LR 176 (aka the fore Southwark Crown Court has Lady Chatterley’s Lover case). 4 Ibid. implications far beyond Michael 5 ‘Freedom of discussion is, then, in Peacock’s acquittal. Its true signifi- England, little else than the right to write cance will emerge in the long run. It or say anything which a jury, consisting of has re-ignited the debate concern- twelve shopkeepers, thinks it expedient ing the abolition of obscenity laws should be said or written’ (Dicey 1959, 246). just like blasphemy law in 2008, 6 Email communication with the BBFC which was treated as a similar le- Chief Assistant (Policy), JL Green, gal anachronism, and has initiated published on the Melonfarmers.co.uk a major discussion with two poten- anti-censorship campaigning website. tial consequences. Peacock might Available at
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