Making a Fist of It: The Law and Obscenity
9 January 2012
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 Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.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)
The CPS also states those activities which will ‘not normally’ result in proceedings:
- actual consensual sexual intercourse (vaginal or anal)
- oral sex
- 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/.