Making a Fist of It: The Law and Obscenity

9 January 2012 by

On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.

Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.

Peacock had advertised the DVDs through Craigslist, his own website (which also promoted his services as a male escort), and in a magazine. The Human Exploitation and Organised Crime Command (SCD9) or London’s Metropolitan Police — which encompasses the former Obscene Publications Squad — saw the advert and began an investigation.

They contacted Peacock, arranging to call around at his Brixton flat and purchase the five most popular fisting DVDs, which they did; then, after examining the DVDs, returned to the flat to arrest Peacock. Peacock also sold DVDs on his website, sleazymichael.com, and in the London-based gay magazine, Boyz. ‘Gay, straight, bi and trans’ DVDs were available (the word ‘porn’ was not used in the adverts) for prices starting at £8.50. No lesbian, underage, ‘K9’, bareback, brown or blood DVDs were available, but a total of 2,247 DVDs were catalogued and Peacock estimated he made a modest £70 a week from their sale.

During the case, the jury were directed to a sexual terms glossary provided to them in order to guide them through the various terms used within the DVDs and to describe the DVD themes. (It is probably a reflection of the case that the jury having bukkake described to them was one the less memorable moments of the trial.)

The Police had argued that the defendant had paid no attention to the identity of his buyers — an argument picked apart during the case — and the material could, in the words of the 1959 Act, ‘deprave and corrupt’ those who came into contact with it. In essence, the prosecution sought to argue that some hapless couple might accidentally purchase a DVD expecting something akin to Brokeback Mountain and might find themselves inadvertently inspired to engage in a bout of fisting instead.

A central question for the case would be where the boundaries of obscenity should be drawn today. Several decades of case law have helped to create a grey area in which juries must decide, at a given point in history, where the boundaries of obscenity lie. This is, after all, the same law that produced the infamous trial over Penguin’s publication of Lady Chatterley’s Lover in 1960, and, for those who enjoy trials that border on the absurd and evoke typical English tittering over sex, it is indeed the area of law that keeps giving.

The Crown Prosecution Service (CPS) has in recent years devised a set of guidelines on when a prosecution should be undertaken within the framework of England’s obscenity law. They state that, “It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list”, but they do provide a list of “categories of material most commonly prosecuted”, which consists of:

  • sexual act with an animal
  • realistic portrayals of rape
  • sadomasochistic material which goes beyond trifling and transient infliction of injury
  • torture with instruments
  • bondage (especially where gags are used with no apparent means of withdrawing consent)
  • dismemberment or graphic mutilation
  • activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
  • fisting

The CPS also states those activities which will ‘not normally’ result in proceedings:

  • actual consensual sexual intercourse (vaginal or anal)
  • oral sex
  • masturbation
  • mild bondage
  • simulated intercourse or buggery
  • fetishes which do not encourage physical abuse.

This is a curiously arbitrary list which now needs re-visiting in light of the judgment in R v Peacock. The CPS guidance — and this was to prove important for the rationale of bringing the case — sets out the factors to be taken account in determining if a prosecution is ‘required’. These are:

  • the degree and type of obscenity together with the form in which it is presented: for example the impact of the printed word will be less than the same activity shown in film or photograph;
  • the type and scale of any commercial venture should be taken into account;
  • whether publication was made to a child or vulnerable adult, or the possibility that such would be likely to take place;
  • where children are likely to access material of a degree of sexual explicitness equivalent to what is available to those aged 18 and above in a licensed sex shop, that material may be considered to be obscene and subject to prosecution. This applies to material which is not behind a suitable payment barrier or other accepted means of age verification, for example, material on the front page of pornography websites and non-commercial, user-generated material which is likely to be accessed by children and meets the threshold.
  • where publication took place, especially if material can be readily seen by the general public, for example in a newsagents or market, or websites easily accessible to children;
  • the defendant’s antecedents, especially where there has been a previous conviction, or caution, for a similar matter;
  • the degree of participation of the proposed defendant(s). This becomes relevant where the defendant can employ the statutory defence that he had no knowledge of the contents of the material under section 2(5) of the 1959 Act.

After some pre-trial deliberation, it had been agreed that the jury and members of the public in the gallery would be shown video footage from the DVDs. In an ironic quirk of the legal system, it seemed that neither the prosecution nor the court was too concerned about these individuals potentially being ‘depraved and corrupted’ by viewing the very material at the centre of the trial.

The first clip was approximately 25 minutes long and consisted of a fisting scene, culminating with a foot being inserted into an anus and double fisting, although an audio-visual equipment failure resulted in a pause in proceedings. Given some members of the jury were reported as looking uncomfortable at the opening scene, this was perhaps a welcome opportunity to recompose themselves and gird their loins for the afternoon of pornography that was to follow.

The second scene included country music as a man in boxing gloves engaged in a threesome, some ballbusting, a staged kidnapping and punching to the testicles and stomach. The third clip involved multiple parties engaging in fisting and anal play, with the penetrator masturbating whilst spitting into one recipient’s anus.

The fourth clip involved a number of scenes but commenced with a warning indicating that the video should not be watched unless the viewer is interested in hardcore BDSM. It also indicated that mutual consent had been given and that none of the participants were aged under 18. In the first scene, set in the countryside, a man is flogged on his back; his hands and feet restrained. The second scene, in a dungeon space, shows a man being flogged on the chest and pinned against a wall. In the third scene, a man hangs upside down outside and is whipped on the chest, then suspended upside down from a tree. In the fourth scene, a man is flogged on a rack, his testicles hoisted in a chain, his legs in a spreader bar. The fifth scene moves back outside, as a man is bullwhipped on his back, with some bleeding. The sixth and final scene returns inside, with caning to the buttocks, and needles and electrodes to nipples. Clothes pegs are attached in a row to the chest and nipples.

The following day, two additional clips were shown to the court. The first involves a man being tattooed in a chair whilst being fisted and then penetrated with a dildo. The recipient masturbates as he looks at the camera. We then move to a man, fully clothed in a chair, who receives oral sex whilst an unseen man behind them urinates, eventually urinating into the open mouth of the clothed man and over his body. On a table his face is pushed into the urine, his penis gripped and his face slapped and anus fingered. The final scene moves to woodland, in which we see a skinhead rolling a cigarette. He is dressed in boots, braces and a Fred Perry shirt — ‘typical’ skinhead fetish clothing. He urinates into another man’s mouth. We move inside and a man on all fours has his anus fingered.

Detailed cross examinations of the defendant took place, discussing the various acts depicted, including a detailed discussion of fisting and the significance of penetrating to the wrist bone. Although a penis would clearly not be obscene under the law, the wrist bone could curiously signify something that was; a legal absurdity that the defence eagerly pointed out.

Dr Clarissa Smith, Reader in Sexual Cultures at the University of Sunderland, was called by the defence to explain the practises depicted. In one memorable exchange, Smith was asked what a buttplug was. Her response prompted the defence lawyer to reply, “Oh, like an earplug but for your butt”. The lawyer was in fact referring to plugs that stretch ear piercings rather than those which block out sound, but the response had already been immortalised via Twitter — which did not capture the precise meaning of the defence lawyer. This exchange was only surpassed by the prosecution asking her whether she would “welcome an anal prolapse”; to which she replied — perhaps unsurprisingly — “Well, I wouldn’t no…”.

It’s important to remember that all of the acts depicted were legal. The question was whether the depiction itself was illegal and ‘obscene’, a point which the prosecution accepted, advocating that the jury use their “common sense and wisdom” to reach a decision. The implication here being that it was ‘common sense’ that such images were obscene — a point on which the jury was to ultimately disagree with the prosecution.

Whilst the prosecution had turned to a Woody Allen quote in their summing up, the defence referred to the book and film The Da Vinci Code. The Dan Brown story features scenes of flagellation, and the prosecutions rhetorically asked whether this suggested it was OK for religion, but not sex. Then — and to the delight of academics and theorists following the trial on Twitter — the defence quoted the French postmodern theorist, Foucault: “if you are not like everybody else, then you are abnormal, if you are abnormal, then you are sick”, but these terms are mistakenly conflated when they are in fact three different things – different, abnormal and sick. To be merely different does not denote ‘sickness’.

More generally, the defence were keen to distinguish between fantasy and torture, and questioned the absurd boundaries that can be drawn in this area of law; for example, ‘four fingers good, five fingers bad’.

It was down to the judge to remind the jury that they must decide where the line on obscenity should be drawn in a “civilised society”. They were to unanimously decide, ultimately, that it was not here.

The case of R v Peacock is significant for someone challenging — and succeeding in challenging — the law on obscenity under the 1959 Act. Although it was a terrible ordeal for the defendant, Michael Peacock, it has clarified the law — for now — relating to fisting and urination pornography.

Its true significance, however, will come in the weeks and months that follow. The Metropolitan Police is likely to sit down with the CPS and the British Board of Film Classification to review the current guidelines, although they seem initially reluctant to comment in public. Given a coach and horses has been driven through the current CPS document, the case can’t be ignored and some response will need to be formulated.

Longer term, questions will inevitably be asked about the continued appropriateness of this legislation. Long controversial and ambiguous, it appears increasingly unfit for purpose, creating costly, unnecessary and unsuccessful cases such as this. There is also potentially scope for a Law Commission review of the law in this area, but nothing has thus far been announced.

However, those hoping that this will simply mean the sweeping away of the existing law may need to be careful what they wish for. The censorious Mediawatch-UK has already indicated that they agree the current law does not function well and that it does not make it easy to secure a conviction, which is why they argue we now need a tightening of the law to ensure that porn is not effectively ‘normalised’. Porn remains — they advocate — damaging. Whatever the outcomes of this trial, one thing is certain; we have not heard the last of R v Peacock.

This post by Chris Ashford first appeared on the Freedom in a Puritan Age blog and is reproduced here with permission and thanks.

ABOUT THE AUTHOR

Chris Ashford is Reader in Law and Society at the University of Sunderland. He has published widely on the area of law and sexuality. A queer theorist; his research has focused upon the phenomena of public sex, male for male sex work, barebacking and more broadly, theorising law and sexuality from a queer perspective. He is currently working on his first monograph, ‘Public Sex and the Law: Silent Desire’ to be published by Routledge-Cavendish later this year. He blogs at: http://lawandsexuality.blogspot.com/.

6 comments


  1. Nice to read the Law and Obscenity,UK Human Right Blogs are always informative to read…Thanks

  2. Katie Gossage says:

    UKHuman Rights Blog…always informative and now educational….butt plugs, well who would have thought that?

  3. ObiterJ says:

    I am surprised that they opted to use the 1959 Act. Why not the Criminal Justice and Immigration Act 2008 s.63 ?

    The drafting of the 1959 Act was shown to be hopeless as far back as the Lady Chatterley case in 1961. Also, it is arguable that if the 1959 Act cannot catch the material amply described in this post then it is, in any event, an ineffective piece of legislation.

    1. Hi ObiterJ they tried to use section 63 in the trial but it was declared inadmissable. The ‘violence’ and ‘injury’ in the videos was not enough for that legislation to be used.

      1. ObiterJ says:

        Thank you – interesting.

  4. Hi here is the comment I left on Chris’s blog under this post:

    ‘I left a comment at FIPA but it’s not been published yet.

    I had a small criticism of your use of Foucault. a) in the court they only quoted the first part of his statement so it didn’t really make sense – about the three categories: different, abnormal, sick.

    His point that those three are ‘conflated’ though, I don’t think he says that is ‘wrong’, merely that it happens. Foucault emphasised how powerful ‘discourse’ is so even if a concept is undesirable it is still ‘real’. People who are different ARE treated as ‘sick’ in society whether we like it or not.

    also I wasn’t ‘delighted’ to hear Foucault (badly) referenced in court. I think he’d have been horrified that that case took place at all. And, he said that even the ‘positive’ discourses around sex contribute to its repression/oppression. Talking about it is part of the problem!’

    and here is a post I wrote on the trial:

    http://graunwatch.wordpress.com/2012/01/07/obscenity-discourse/

    UPDATE: Freedom in a puritan age blog did not publish my comment, very similar to the above, on their site. Or a comment I left under Brooke Magnanti’s post. This makes me think we don’t all agree on the meaning of the word ‘freedom’.

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Peter Gibson pet shops PF and EF v UK Philip Lawrence Phil Woolas phone hacking phone taps photos photovoltaics physical and mental disabilities physical restraint physician assisted death Pinnock Piracy PJS placement order planning planning human rights planning system planning time limits plantagenet plebgate pleural plaques POCA podcast points poison Poland Police police investigations police liability police misconduct police powers police surveillance policing Policy Exchange report political advertising political judges political persecution politicians for hire Politics Politics/Public Order pollution polonium poor reporting Pope Pope's visit Pope Benedict porsche 917 portal possession order possession proceedings post mortem Posts power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy preliminary reference prerogative powers press Press Association press briefing press freedom Priest priests primary legislation Prince Andrew Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers prison rules Prisons prison vote privacy privacy injunction privacy law through the front door private disputes Private life private nuisance private use procedural unfairness Procedure proceeds of crime Professional Discipline professional indemnity Professional life Property property rights proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill protective costs Protest protest camp protest rights Protocol 15 psychiatric hospitals psychology psychotherapy Public/Private public access publication public authorities public authority public bodies Public Bodies Bill public figure public funding public inquiries public inquiry public interest public interest environmental litigation public interest immunity public interest litigation publicity public law unfairness Public Order public powers public procurement Public Sector Equality Duty Public Services Ombudsman Putin putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 Race race relations Rachel Corrie racial discrimination Racial equality radio radiotherapy Radmacher Raed Salah Mahajna Raed Saleh Ramsgate randomised controlled trial rape rape case raptors Ratcliffe 6 Ratcliffe on Soar Ratcliffe power station rating rationality rcs RCW v A Local Authority reasonableness reasons reasons challenges recent case law and news Recent posts reception conditions recognition of judgments recreational rights Redfearn v UK referendum reform refugee applications refugee crisis refugee status refusal of treatment Registrar of Births Deaths and Marriages registration regulatory rehabilitation of offenders Reith Lectures Re J (A Child: Disclosure) [2012] EWCA Civ 1204 relgious freedom Religion religion in the courts religious beliefs religious discrimination religious freedom religious prosecution remedies renewables subsidies rent repeal reporting restrictions representation reproductive rights reproductive technologies reproductive wrongs rescue rescuer's claim resettlement of offenders resource allocation respect for family life responsibility in tort restrictions on exports restrictions on liberty results 2010 resuscitation retrospective application of the Human Rights Act retrospective legislation retrospective penalty retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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