Pornography & The Law Namita Malhotra Contents Introduction ......................................................................................................................... 3 The Knowing yet Blindfolded ‘Gaze’ of Law upon the Profane ........................................ 6 Pornography the Trials and Tribulations of the Indian Courts ......................................... 19 Family Jewels and Public Secrets ..................................................................................... 33 Film, Video and Body ....................................................................................................... 47 Amateur Video Pornography ............................................................................................ 60 Downloading the State —Porn, Tech, Law ...................................................................... 76 The Technology Beast ...................................................................................................... 88 Vignettes for the ‘Next’ .................................................................................................. 102 Page | 2 Introduction “If you really want to be amazed at the total sightlessness of your blind spot, do a test outside at night when there is a full moon. Cover your left eye, looking at the full moon with your right eye. Gradually move your right eye to the left (and maybe slightly up or down). Before long, all you will be able to see is the large halo around the full moon; the entire moon itself will seem to have disappeared.” 1 This monograph is an attempt to unravel the relations between pornography, technology and the law in the shifting context of the contemporary. It is these shifts that push the arguments here to be relevant beyond specific occurrences or phenomenon in the digital world (the moment of video pornography, interactive cyber sex, webcam sex, camfrog, social networking and sexual behaviour, chatroulette, facebook, confessional and sexualized blogging, sexting and mobile phones, etc.) to attempt to understand the nature of affects that surround pornography, especially as reflected in the law and its desire to contain it, and how law’s desire to contain is also about subjectivities and practices around technology. The structure of the monograph is somewhere between a willful literature review and a dressing room, where various concepts, ideas, images or visions around law, film/video, technology and new media are tried on for size to explain or unravel parts or whole of the picture around pornography in the Indian context. Of specific interest is how law in the Indian context looks (or doesn’t) at pornography. Here the use of the phrase ‘looks at’ is deliberate because the law is not merely examined in terms of how it governs and policies images, but also as a cultural document of how society relates to images, and what tropes, symbols and metaphors does the law employ or deploy in its examination of the pornographic. The affective life of law and its confusing account and relationship to the explicit image is explored in the monograph. However rather than centering this enquiry solely around the law, the interest here is to break away from legal research even in critical legal studies to a methodology that looks more clearly at the object itself, or to answer questions while keeping the object in view. This necessarily leads to a focus on pornography itself and from there to proceed to questions around law, history, film, video, new media and technology (which necessitates an exploration of film and video studies, new media, culture studies and technology/science studies in relation to pornography). 1 Similar and more fascinating games or tests can be found online to find the limits of vision because of the retinal blind spot, especially at Neuroscience for Kids – The Blind Spot. Available online at http://faculty.washington.edu/chudler/chvision.html . In these games, an object simply disappears for a brief bit or at a specific distance, because of the retinal blind spot. A scientific and understandable explanation for the blind spot can be found at http://en.wikipedia.org/wiki/Retina , but basically the blind spot is the where the optic nerve touches the retina and this is point at which we don’t see anything at all – a spot of no-vision in a field of vision . Page | 3 It is simplest perhaps to begin with the mechanics of the construction of pornography in the legal discourse, because the prohibitive law is expected to have a clear definition for pornography. Justice Potter’s statement for hard core pornography – I know it, when I see it – is overcast over legal discourse around objects whose pornographic qualities have to be ascertained by courts. But it is overcast, rather than grounding the legal discourse, precisely because of an inability or unwillingness to pin down the category in spite of its alleged obviousness 2. The law has a peculiar blind spot when it comes to the recognition and prosecution in relation to pornography and it falls somewhere between the law for obscenity (of which pornography is an aggravated form in legal terms) and the certification guidelines 3 for cinematograph films. This blind spot is where my curiosities and investigations about pornography come from, as opposed to any other category of material which could be obscene material, or the category of video and new media forms. But instead it is about pornography because of a resoluteness with which it is not seen even when it is in our field of vision. The etymology of pornography can be traced to graphos (writing or description) and porneia (prostitutes) and hence it means the description of the life, manners, etc. of prostitutes and their patrons. The first known use of the word to describe something similar to pornography as understood today was in eighteenth century, when the city of Pompeii was discovered. The entire city was full of erotic art and frescoes, symbols, inscriptions and artefacts that were regarded by its excavators as ‘pornographic’. All these finds were kept at the Secret Museum and only men of a certain upper class were allowed and ‘trusted’ to have access to these objects, and not the ‘easily corruptible rabble or women’ 4. Such distinctions would often arise in the case of pornography and be the reasoning behind censorship and regulation of many media in the next few centuries, whether the birth of photography, cinema, video, and in recent times the Internet and new media (CD, VCD and DVD) The first two chapters trace the history of obscenity jurisprudence and the fear of the image in law; the ways in which the law itself banished images from its own kingdom and was rendered largely textual. Indian law is borrowed or handed down from colonial legislation whose histories are intertwined with religious power and attempts of secularization in England. In the second chapter we look at how pornography is dealt with in Indian law and the ways in which visuality has dominated, as opposed to the other senses of touch and smell. The co-relation of obscenity with dirt and filth is explored here and how that relates to other aspects of the functioning of Indian law. In chapter three, this exploration of Indian law in relation to legal and illegal pleasures and gender is taken further. Here the schism in the nation and the house is introduced, of incest pornography and its proliferation. In this chapter we also explore some ideas of radical feminist 2 Jacobellis v. Ohio, 378 U.S. 184 (1964) 3 Films are either certified for universal exhibition (U), restricted to adults (A), universal exhibition with parental guidance for children less than 12 years old (UA), films for specialised audiences e.g. doctors (S) 4 Walter M. Kendrick, The Secret Museum: Pornography in modern culture, University of California Press, 1996. He also said that Pornography is a “thought structure” and “a melodrama” with new players in every age. Page | 4 perspective on pornography and how it views pornography more as an act, rather than speech as how it is perceived in law. Chapter four is the beginning of a new section that is no longer obsessed only with the law but is an attempt to look at the actual object of pornography, specifically video and amateur material in the contemporary. Here ideas of film as being beyond speech or act are explored, where film can be understood as a body that responds and relates to the viewer. What can this affective relation to film as theorized in film studies say about our relation to pornography is the question that is posed. Chapter five looks at a field of pornography studies that is interdisciplinary and also relates to new media studies and film studies. Though largely located or about phenomena in the global North (or West), porn studies offers some interesting ideas and concepts around the making of the genre of pornography, amateur video and its pleasures, what falls outside the frame of scopophilic pleasure of pornography that is explored especially through art and digital projects. The slowing down of a pornographic film reveals as much as photographic motion studies of pre-cinema revealed about the human body, and our fascination with capturing its movements. Chapter six is an attempt to bring together various domains explored so far – affective life of law, how we relate in embodied ways to film and video and the new aspect of technology (the embodiment and simulation that it introduces). In this chapter we examine a few judgments in further detail and especially in terms of