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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What Jeremy Corbyn gets right about the single market

Technically, you can be outside the EU but inside the single market. Philosophically, you're still in the EU. 

I’ve been trying to work out what bothers me about the response to Jeremy Corbyn’s interview on the Andrew Marr programme.

What bothers me about Corbyn’s interview is obvious: the use of the phrase “wholesale importation” to describe people coming from Eastern Europe to the United Kingdom makes them sound like boxes of sugar rather than people. Adding to that, by suggesting that this “importation” had “destroy[ed] conditions”, rather than laying the blame on Britain’s under-enforced and under-regulated labour market, his words were more appropriate to a politician who believes that immigrants are objects to be scapegoated, not people to be served. (Though perhaps that is appropriate for the leader of the Labour Party if recent history is any guide.)

But I’m bothered, too, by the reaction to another part of his interview, in which the Labour leader said that Britain must leave the single market as it leaves the European Union. The response to this, which is technically correct, has been to attack Corbyn as Liechtenstein, Switzerland, Norway and Iceland are members of the single market but not the European Union.

In my view, leaving the single market will make Britain poorer in the short and long term, will immediately render much of Labour’s 2017 manifesto moot and will, in the long run, be a far bigger victory for right-wing politics than any mere election. Corbyn’s view, that the benefits of freeing a British government from the rules of the single market will outweigh the costs, doesn’t seem very likely to me. So why do I feel so uneasy about the claim that you can be a member of the single market and not the European Union?

I think it’s because the difficult truth is that these countries are, de facto, in the European Union in any meaningful sense. By any estimation, the three pillars of Britain’s “Out” vote were, firstly, control over Britain’s borders, aka the end of the free movement of people, secondly, more money for the public realm aka £350m a week for the NHS, and thirdly control over Britain’s own laws. It’s hard to see how, if the United Kingdom continues to be subject to the free movement of people, continues to pay large sums towards the European Union, and continues to have its laws set elsewhere, we have “honoured the referendum result”.

None of which changes my view that leaving the single market would be a catastrophe for the United Kingdom. But retaining Britain’s single market membership starts with making the argument for single market membership, not hiding behind rhetorical tricks about whether or not single market membership was on the ballot last June, when it quite clearly was. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.