Obscenity trial: R v Peacock and the false dawn of the pornographers

Featured, Politics of porn — By Adele on 10 January, 2012 11:56 pm

Things the #ObscenityTrial have taught me: assume
a higher level of general ignorance & prejudice about BDSM
than I had previously thought. (@electronic_doll)

Browsing spanking forums, you sometimes come across the sentiment that these days the world at large is quite tolerant and accepting of alternative sexualities. While this statement is impossible to prove either right or wrong – have you ever tried asking “the world at large” its opinion? – From time to time we can’t fail but be reminded that we are not yet living in the fluffy sex-positive paradise of our Twitter and Fetlife feeds.

FACT: Some types of spanking and BDSM are still illegal in the UK, according to precedent set by R v Brown (“the Spanner case”). While it’s unlikely that the police will raid your David Copperfield-themed house party, they can, because in a sexual context consent is not a defence against a charge of assault causing actual bodily harm.

FACT: An escort and porn-maker Michael Peacock (known charmingly as Sleazy Michael) last week stood trial for producing DVDs that featured certain sex scenes between consenting adults. None of the acts were illegal to perform in private, but, according to the prosecution, they fell under the legal definition of obscene materials, so into the dock Mr Peacock went.

If you live in the UK and spend any time on Twitter, you already know what happened next: the jury of Mr Peacock’s peers spent several days watching footage of whipping, fisting, watersports and CBT, and then, after a deliberation lasting less time than a leisurely BDSM scene, returned the verdict of “not guilty”. But I’m also guessing that quite a few of you haven’t heard of this case, because it’s had quite modest coverage by mainstream news outlets – a footnote rather than any kind of core issue.

Most of the mainstream media commentary has come after the trial’s end. From my left-wing Twitter bubble, the pieces that have been the most visible are the ones that approve of the acquittal and question whether the Obscene Publications Act, 1959 – the law according to which the prosecution had been brought – is fit for purpose in this day and age, in New Statesman, the Guardian and Yahoo News.

It’s the last link that I’d like to bring to your attention, because of the comments you find under the article. After the lovely time the whole of Twitter had had bashing the prosecutors on the #obscenitytrial hashtag, you get quite a shock to the system learning that -

“When we make obscenity the norm we have hit rock bottom and there is only one way to go, do we realy want filth as an every day occurence, do we want our children to think it’s ok to swear fornicate and generaly live a degrading existance, soddam and gomoragh spring to mind” (Anonymous commenter, 32 likes and 8 dislikes at the time of writing);

and that -

“We are existing in a depraved and corrupted society. That said, it is of no surprise that levels of acceptability are in line with low-life corruption, depravity and pornography.” (Stewart, 8 likes, 1 dislike).

Now, reading comments on Yahoo is a special kind of self-torture, and a film of the process could stand a good chance to be prosecuted under the extreme porn legislation, but it doesn’t do anyone any good to try and think them out of existence. Your Twitter feed is not yet an indication of any sort of general consensus.

That said, there’s been some amusing things scrolling past me in the feeds:

Farcical #ObscenityTrial seeking to ban supposedly “depraving” videos involves, err, showing the videos to the jury. Will it deprave them? – @wallaceme

An excellent question, also frequently raised in relation to the UK censoring body BBFC: if certain material has the potential to “deprave and corrupt” the viewer, as per the obscenity legislation, do censors and juries become corrupt after watching a certain volume of obscene material, and do they therefore need regularly swapping out, like equipment damaged by wear and tear?

If it’s illegal to distribute DVDs of gay fisting #obscenitytrial I spy a gap in the market for live theatre shows. – @Andrew_Taylor

Pause as your narrator stops to fantasise about the possibilities.

Reading up on #ObscenityTrial and wishing I was a criminal law academic. Lack of BDSM cases in corporate finance law. – @lawvaughan

This made me smile with sympathy. Imagine my frustration, as a law post-grad, at needing to concentrate on the fair trial cases when in the very next chapter, in the privacy chapter, there was an amazing wealth of things I could read about the Spanner case.

And speaking of the Spanner case:

With the good result in #ObscenityTrial, is our culture now ready to reverse R v Brown? – @rebellionkid

A pertinent question, and one very much of interest to us in the spanking scene. It is, I think, telling that nobody was prosecuted for the acts in Peacock’s DVDs, even though to an uninformed observer they look comparable to the acts in Spanner. (Here, pumping the testicles with saline. There, nailing testicles to a board. From my non-testicle-wearing point of view, these are beasts from the same species, if not necessarily the same genus.) Don’t get too excited, though, because according to Myles Jackman aka @obscenitylawyer, quoted in “Solicitors Journal”, the Law Commission “wasn’t able to say whether it would undertake a review of sexual consent to assault laws”. And why would it, when it doesn’t have to? Imagine trying to sell that change in the law to the Daily Fail readers, without the iron-clad excuse of “the jury made us do it”.

While the Peacock case isn’t precedent-setting, in the world of laws regulating porn a change now seems inevitable. Without wishing to create a hierarchy of fetishes wherein one thing is pervier than the next, fisting, ball-busting and watersports are pretty niche. If they can’t bring a guilty verdict, it doesn’t leave much for the vice officers to rely on for their bread-and-butter obscenity convictions. The Guardian believes The Obscene Publications Act “to be on its last legs”, and the Solicitors Journal piece mentioned above promises a review of enforcement guidance.

Now, is this all cause for celebration?

For Michael Peacock, undoubtedly. For porn producers, quite possibly, because, in the words of Jane Fae, “it is fear of prosecution that keeps many film-makers in check and, with the OPA now looking very much “busted flush” – the end, and possibly a new beginning, are very much on the cards.” We in the BDSM scene bubble may well celebrate with them – for a while. Don’t forget, though, the new “extreme porn” law, which is alive, well, and according to the same article by Jane Fae, is responsible for around 1000 prosecutions a year: “this represents a big shift in legal thinking, away from the idea that the publisher, as part of a business enterprise, is likely to be better advised legally and so more responsible for what he or she produces, and toward the consumer, for whom no excuse (including accidental downloading of material) will now suffice.” The consumer: this would be any of you, I’m afraid. I know you wouldn’t knowingly download any extreme porn, but the warm and righteous feeling of being innocent is not much consolation when your boss rings you up because she saw your name in the newspaper, but she can’t get through because you’re on the phone to BastardLoanSharks.com trying to find the cash to cover solicitors’ fees.

You may have noticed that up until now I haven’t mentioned that Peacock’s DVDs featured, only and specifically, acts between gay men. Regardless of the equality laws – and without wanting to make assumptions about the personal prejudices of the jury – one could be excused for thinking that this could have turned out badly for Peacock, just like it had for Brown et al in Spanner. But you know what, I think in this specific instance the all-male cast has probably saved the defence’s case.

Take this précis of the summing up:

Prosecution: “This man is in a great deal of pain. Look at his gaping anus. The scene depicts rape. This is obscene.” Defence: “This man is an actor performing in a fantasy.” Jury: “Not guilty.” (Based on live tweets from the courtroom by @lexingtondymock and @NichiHodgson).

I would argue that if the questioned acts had been visited upon women, this defence wouldn’t have necessarily flown: from my observations, men are seen as more capable of consenting to violent acts, inflicted by either men or women. Far from being hobbled by homophobia, Peacock has inadvertently and unconsciously benefited from the absence of the patronising overprotective attitude towards female actors.

But that’s just guesswork and grumbling. What we do have is a non-guilty verdict for an innocent man, and a hint of positive legal change in the air. A great day for lawyers and pornographers alike. Do let’s enjoy it in our scene bubble.

And yet: remember Spanner. Remember the standard of proof required in “extreme porn” cases. Don’t grow complacent, because they fucking won’t.

Tags: gender, kink & law