It's time to abolish the obscenity law

Obscenity law robs us of agency. And it tells us that we are depraved.

"Do they even HAVE obscenity trials any more?!' my old editor at the Erotic Review exclaimed, when I told him I was live-tweeting from one this week (read David Allen Green on the not guilty verdict here).

Well, yes, they do, and it's a pretty surreal experience to think that statute from the burgeoning permissive society is still being used to make judgments about life in Britain 2012, a place where it's all too easy to have an expectation of sexual liberty and free speech, and a sense that the only person you need to gain permission from is the one you're doing something with.

That the precedent for obscenity trials quoted is still the Lady Chatterley trial of 1960 (R v Penguin Books) is even more bizarre, particularly if, like me, you studied the case at university. It's evidence of a time where artistic merit had barely evolved as a defence for literature with dirty bits.

Clearly, the artistic merit of pure pornography is even more contentious, where it's even appropriate, and while the evolution of English obscenity law has been marked by two seminal cases since - the Oz magazine trials of 1971, and the trial of Inside Linda Lovelace in 1977 - neither of these offer much in the way of obvious and direct relevance to prosecutors and jurors examining the kind of internet and DVD porn comprising obscenity trials today.

Take a look at the Crown Prosecution Service's directions on the OPA 1959 if you want to see what now constitutes 'obscene'. The list is 'not exhaustive' but includes sex with animals; sex with minors; fisting; torture, activities involving perversion and degradation (urination, vomiting and excretion). We've certainly moved on from being mortified by the egregious use of the word 'fuck', as those who brought the Lady Chatterley to trial were.

But the test of obscenity - whether something 'depraves and corrupts' - remains the same: 'to deprave means to make morally bad, to debase or to corrupt morally. To corrupt means to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin a good quality; to debase; to defile it.'

Obscenity law posits that boundaries of decency must be drawn somewhere. Obscenity is culturally relative. It is about moral judgment. It has to be in order to protect the moral fibre of the society it is serving. It just so happens that this frequently means castigating sexual subcultures by labelling their activities as debased, often with little attempt to understand practices which are outside the average person's experience.

Perhaps most curiously, the OPA 1959 makes a crime of publishing material featuring acts which are not illegal in themselves. Prosecuting those who distribute obscene material isn't about preventing physical or sexual harm, nor is it about avoiding provocation of crime, or illicit behaviour. It's about deciding whether the sanctity of a mind and character of the person exposed to the so-called obscene materials is at stake. Go back to the CPS definition of what constitutes obscene and you'll see we're not talking about mainstream porn, but the kind you only find when you know what you're looking for.

In its bid to establish moral standards, Obscenity law robs us of agency. And it tells us that we are depraved merely because we have thoughts about the acts designated as depraved; thoughts other than revulsion.

Does obscenity law even have any place in 21st century English law then? Should it perhaps not be abolished, as blasphemy law was in 2008, and treated as a similar cultural and legal anachronism? Surely yes, if the precedent for it is still a trial in which a conservative white male establishment failed to grasp the concept of artistic expression as a means of defence, and instead sought to impose standards on a society that was relaxing its morals faster than it raised its hem lines.

The outcome of R v Peacock -- a landmark because the defendant pleaded not guilty -- sets a contemporary precedent for discussing pornographic obscenity which should have little to do with its potentially degenerative effect on wives and servants as the Chatterley trial did - unless that's the point, of course.

Nichi Hodgson is a 28-year-old freelance journalist specialising in sexual politics, law and culture.

Nichi Hodgson is a writer and broadcaster specialising in sexual politics, censorship, and  human rights. Her first book, Bound To You, published by Hodder & Stoughton, is out now. She tweets @NichiHodgson.

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Leader: Trump's dangerous nation

From North Korea to Virginia, the US increasingly resembles a rogue state.

When Donald Trump was elected as US president, some optimistically suggested that the White House would have a civilising effect on the erratic tycoon. Under the influence of his more experienced colleagues, they argued, he would gradually absorb the norms of international diplomacy.

After seven months, these hopes have been exposed as delusional. On 8 August, he responded to North Korea’s increasing nuclear capabilities by threatening “fire and fury like the world has never seen”. Three days later, he casually floated possible military action against Venezuela. Finally, on 12 August, he responded to a white supremacist rally in Virginia by condemning violence on “many sides” (only criticising the far right specifically after two days of outrage).

Even by Mr Trump’s low standards, it was an embarrassing week. Rather than normalising the president, elected office has merely inflated his self-regard. The consequences for the US and the world could be momentous.

North Korea’s reported acquisition of a nuclear warhead small enough to fit on an intercontinental missile (and potentially reach the US) demanded a serious response. Mr Trump’s apocalyptic rhetoric was not it. His off-the-cuff remarks implied that the US could launch a pre-emptive strike against North Korea, leading various officials to “clarify” the US position. Kim Jong-un’s regime is rational enough to avoid a pre-emptive strike that would invite a devastating retaliation. However, there remains a risk that it misreads Mr Trump’s intentions and rushes to action.

Although the US should uphold the principle of nuclear deterrence, it must also, in good faith, pursue a diplomatic solution. The week before Mr Trump’s remarks, the US secretary of state, Rex Tillerson, rightly ruled out “regime change” and held out the possibility of “a dialogue”.

The North Korean regime is typically depicted as crazed, but its pursuit of nuclear weapons rests on rational foundations. The project is designed to guarantee its survival and to strengthen its bargaining hand. As such, it must be given incentives to pursue a different path.

Mr Trump’s bellicose language overshadowed the successful agreement of new UN sanctions against North Korea (targeting a third of its $3bn exports). Should these prove insufficient, the US should resume the six-party talks of the mid-2000s and even consider direct negotiations.

A failure of diplomacy could be fatal. In his recent book Destined for War, the Harvard historian Graham Allison warns that the US and China could fall prey to “Thucydides’s trap”. According to this rule, dating from the clash between Athens and Sparta, war typically results when a dominant power is challenged by an ascendent rival. North Korea, Mr Bew writes, could provide the spark for a new “great power conflict” between the US and China.

Nuclear standoffs require immense patience, resourcefulness and tact – all qualities in which Mr Trump is lacking. Though the thought likely never passed his mind, his threats to North Korea and Venezuela provide those countries with a new justification for internal repression.

Under Mr Trump’s leadership, the US is becoming an ever more fraught, polarised nation. It was no accident that the violent events in Charlottesville, Virginia, culminating in the death of the 32-year-old Heather Heyer, took place under his presidency. Mr Trump’s victory empowered every racist, misogynist and bigot in the land. It was doubtless this intimate connection that prevented him from immediately condemning the white supremacists. To denounce them is, in effect, to denounce himself.

The US hardly has an unblemished history. It has been guilty of reckless, immoral interventions in Vietnam, Latin America and Iraq. But never has it been led by a man so heedless of international and domestic norms. Those Republicans who enabled Mr Trump’s rise and preserve him in office must do so no longer. There is a heightened responsibility, too, on the US’s allies to challenge, rather than to indulge, the president. The Brexiteers have allowed dreams of a future US-UK trade deal to impair their morality.

Under Mr Trump, the US increasingly resembles a breed it once denounced: a rogue state. His former rival Hillary Clinton’s past warning that “a man you can bait with a tweet is not a man we can trust with nuclear weapons” now appears alarmingly prescient.

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear