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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Appearing in a book is strange – being an actual character must be stranger

Much as it jolts me to come across a reference to my music in something I'm reading, at least it's not me.

I was happily immersed in the world of a novel the other day, Rachel Elliott’s Whispers Through a Megaphone, when suddenly I was jolted back into reality by my own appearance in the book. One of the characters hears someone singing and is told, “‘It’s Leonora. She sings with her window open.’ ‘She’s good – sounds like Tracey Thorn.’ ‘She does, doesn’t she.’”

It was as if I’d walked on stage while still being in the audience. It’s happened to me before, and is always startling, a kind of breaking of the fourth wall. From being the reader, addressed equally and anonymously, you become, even momentarily, a minor character or a representative of something. In this instance it was flattering, but the thing is, you have no control over what the writer uses you to mean.

In David Nicholls’s Starter for Ten, set in the mid-Eighties, the lead character, Brian – a hapless student, failing in both love and University Challenge – hopes that he is about to have sex with a girl. “We stay up for an hour or so, drinking whisky, sitting on the bed next to each other and talking and listening to Tapestry and the new Everything But the Girl album.” Ah, I realised, here I represent the kind of singer people listen to when they’re trying, though possibly failing, to get laid.

Fast-forward a few years, to the mid-Nineties of Bret Easton Ellis’s Glamorama, a book constructed from lists of people and things, clothes and music, which apparently indicate the vacuousness of modern life. “I dash into the Paul Smith store on Bond Street, where I purchase a smart-looking navy-gray raincoat. Everything But the Girl’s ‘Missing’ plays over everything” and later, “In the limo heading toward Charing Cross Road Everything But the Girl’s ‘Wrong’ plays while I’m studying the small white envelope . . .” Here I’m being used to represent the way bands become briefly ubiquitous: our songs are a soundtrack to the sleazy glamour of the novel.

These mentions are all fine; it’s only the music that features, not me. Spotting yourself as an actual character in someone’s novel must be more shocking: one of the perils of, for instance, being married to a novelist. I think of Claire Bloom and Philip Roth. First she wrote a memoir about how ghastly it was being married to him, then he wrote a novel about how ghastly it was to be married to someone very like her. Books as revenge: that’s very different indeed.

Few people who had ever met Morrissey emerged from his memoir unscathed (me included), but particularly Geoff Travis of Rough Trade. He was hung, drawn and quartered in the book, yet seems to have maintained a dignified silence. But it’s hard knowing how to deal with real people in memoirs. In mine, I chose not to name one character, a boy who broke my 18-year-old heart. Feverish speculation among old friends, all of whom guessed wrong, proved how much attention they’d been paying to me at the time. I also wrote about my teenage band, the Marine Girls, and then sent the chapter to the other members for approval. Which led to a fresh outbreak of hostilities and not-speaking, 25 years after we’d broken up. Don’t you just love bands?

Worrying about any of this would stop anyone ever writing anything. Luckily it didn’t deter John Niven, whose scabrous music-biz novel, Kill Your Friends, mixes larger-than-life monsters such as the fictional A&R man Steven Stelfox with real people: and not just celebs (Goldie, the Spice Girls), but record company executives (Ferdy Unger-Hamilton, Rob Stringer) known best to those of us in the biz, and presumably thrilled to have made it into a book. John confirmed to me recently: “In the end I got more grief from people I left out of the book than those I put in. Such is the ego of the music industry. I heard of one executive who bought about 30 copies and would sign them for bands, saying, ‘This was based on me.’ You create the Devil and people are lining up to say, ‘Yep. I’m that guy.’”

In other words, as I suspected, there’s only one thing worse than being written about. 

Tracey Thorn is a musician and writer, best known as one half of Everything but the Girl. She writes the fortnightly “Off the Record” column for the New Statesman. Her latest book is Naked at the Albert Hall.

This article first appeared in the 06 April 2016 issue of the New Statesman, The longest hatred