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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John McDonnell praises New Labour as he enters conciliatory mode

The shadow chancellor sought to build a bridge between the past and the present by crediting the 1997 government. 

Ever since Jeremy Corbyn became Labour leader, John McDonnell has been on a mission to reinvent himself as a kinder, gentler politician. He hasn’t always succeeded. In July, the shadow chancellor declared of rebel MPs: “As plotters they were fucking useless”.

But in his Labour conference speech, Corbyn’s closest ally was firmly in conciliatory mode. McDonnell thanked Owen Smith for his part in defeating the Personal Independence Payment cuts. He praised Caroline Flint, with whom he has clashed, for her amendment to the financial bill on corporate tax transparency. Jonathan Reynolds, who will soon return to the frontbench, was credited for the “patriots pay their taxes” campaign (the latter two not mentioned in the original text).

McDonnell’s ecunmenicism didn’t end here. The 1997 Labour government, against which he and Corbyn so often defined themselves, was praised for its introduction of the minimum wage (though McDonnell couldn’t quite bring himself to mention Tony Blair). Promising a “real Living Wage” of around £10 per hour, the shadow chancellor sought to build a bridge between the past and the present. Though he couldn’t resist adding some red water as he closed: “In this party you no longer have to whisper it, it's called socialism. Solidarity!”

As a rebuke to those who accuse him of seeking power in the party, not the country, McDonnell spoke relentlessly of what the next Labour “government” would do. He promised a £250bn National Investment Bank, a “Right to Own” for employees, the repeal of the Trade Union Act and declared himself “interested” in the potential of a Universal Basic Income. It was a decidedly wonkish speech, free of the attack lines and jokes that others serve up.

One of the more striking passages was on McDonnell’s personal story (a recurring feature of Labour speeches since Sadiq Khan’s mayoral victory). “I was born in the city [Liverpool], not far from here,” he recalled. “My dad was a Liverpool docker and my mum was a cleaner who then served behind the counter at British Homes Stores for 30 years. I was part of the 1960's generation.  We lived in what sociological studies have described as some of the worst housing conditions that exist within this country. We just called it home.”

In his peroration, he declared: “In the birthplace of John Lennon, it falls to us to inspire people to imagine.” Most Labour MPs believe that a government led by Corbyn and McDonnell will remain just that: imaginary. “You may say I'm a dreamer. But I'm not the only one,” the shadow chancellor could have countered. With his praise for New Labour, he began the work of forging his party’s own brotherhood of man.

George Eaton is political editor of the New Statesman.