Fisting on trial

The obscenity case continues against Michael Peacock.

The trial continues today of Michael Peacock, who has been charged under the Obscene Publications Act 1959 for distributing DVDs featuring various sex acts including fisting, so-called "water sports", and BDSM.

Peacock's defence is being conducted by law firm Hodge Jones & Allen whose lawyer Myles Jackman has blogged about the case here.

In essence, the prosecution have to prove beyond reasonable doubt that the DVDs distributed by Peacock are such that their effect would be "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 the DVDs. Whether the DVDs would tend to deprave and corrupt any such person is a question of fact for the jury, who presumably have had to watch the DVDs as part of their compulsory jury service and not be depraved or corrupted in the process.

Obscenity is a curious criminal offence, and many would say that it now has no place in a modern liberal society, especially when all that is being portrayed in any "obscene material" are the consensual (if unusual) sexual acts between adults. That said, the Crown Prosecution Service has decided it is in the public interest to prosecute Peacock over these products, and the judge and jury are (rightly) obliged to apply the law to the facts which are determined by trial. Accordingly Peacock may well be convicted and, if so, faces up to five years imprisonment.

Whatever the outcome, R v Peacock may well turn out to be an important test case on the boundaries of obscenity law. As Jackman says:

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.

It is expected today will be the last day of the trial, with expert defence evidence being provided by academics researching into sex and the media. Tweets from the trial can be followed at #ObscenityTrial.

The trial continues.

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The economics of outrage: Why you haven't seen the end of Katie Hopkins

Her distasteful tweet may have cost her a job at LBC, but this isn't the last we've seen of Britain's biggest troll. 

Another atrocity, other surge of grief and fear, and there like clockwork was the UK’s biggest troll. Hours after the explosion at the Manchester Arena that killed 22 mostly young and female concert goers, Katie Hopkins weighed in with a very on-brand tweet calling for a “final solution” to the complex issue of terrorism.

She quickly deleted it, replacing the offending phrase with the words “true solution”, but did not tone down the essentially fascist message. Few thought it had been an innocent mistake on the part of someone unaware of the historical connotations of those two words.  And no matter how many urged their fellow web users not to give Hopkins the attention she craved, it still sparked angry tweets, condemnatory news articles and even reports to the police.

Hopkins has lost her presenting job at LBC radio, but she is yet to lose her column at Mail Online, and it’s quite likely she won’t.

Mail Online and its print counterpart The Daily Mail have regularly shown they are prepared to go down the deliberately divisive path Hopkins was signposting. But even if the site's managing editor Martin Clarke was secretly a liberal sandal-wearer, there are also very good economic reasons for Mail Online to stick with her. The extreme and outrageous is great at gaining attention, and attention is what makes money for Mail Online.

It is ironic that Hopkins’s career was initially helped by TV’s attempts to provide balance. Producers could rely on her to provide a counterweight to even the most committed and rational bleeding-heart liberal.

As Patrick Smith, a former media specialist who is currently a senior reporter at BuzzFeed News points out: “It’s very difficult for producers who are legally bound to be balanced, they will sometimes literally have lawyers in the room.”

“That in a way is why some people who are skirting very close or beyond the bounds of taste and decency get on air.”

But while TV may have made Hopkins, it is online where her extreme views perform best.  As digital publishers have learned, the best way to get the shares, clicks and page views that make them money is to provoke an emotional response. And there are few things as good at provoking an emotional response as extreme and outrageous political views.

And in many ways it doesn’t matter whether that response is negative or positive. Those who complain about what Hopkins says are also the ones who draw attention to it – many will read what she writes in order to know exactly why they should hate her.

Of course using outrageous views as a sales tactic is not confined to the web – The Daily Mail prints columns by Sarah Vine for a reason - but the risks of pushing the boundaries of taste and decency are greater in a linear, analogue world. Cancelling a newspaper subscription or changing radio station is a simpler and often longer-lasting act than pledging to never click on a tempting link on Twitter or Facebook. LBC may have had far more to lose from sticking with Hopkins than Mail Online does, and much less to gain. Someone prepared to say what Hopkins says will not be out of work for long. 

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