The following blog on consent to sexual acts and representations was written a week after Michael Peacock's acquittal and addresses the CPS' guidelines on the OPA six-months prior to Simon Walsh's Trial.
There is an update at the end of the blog, written today, on the current state of the guidelines and the role of the CPS, BBFC and Met in reviewing them...
“Would you welcome an Anal Prolapse?”
This question was put in open Court in the obscenity trial of the decade, R v Peacock, by prosecution counsel Mr TimothyForster, in cross-examining the defence expert witness in pornography, Dr ClarissaSmith.
The case of Michael Peacock may obtain infamy as an emblem of changing societal values towards sexual representations; the twenty-first century equivalent to the prosecutor’s question in the 1961 Lady Chatterley’s Lover trial, as to whether: “you would wish your wife and servants to read… [this book]?”
Fifty years ago Penguin Books were prosecuted under the then new Obscene Publications Act 1959 (OPA) on the basis that Lady Chatterley’s Lover contained obscenity like the word “fuck” which could ‘deprave and corrupt’ the reader. The jury acquitted the publisher. Last week, defendant Michael Peacock was unanimously acquitted by a jury at the Southwark Crown Court of six counts of “publishing” supposedly obscene DVDs, featuring acts of male fisting, urination and BDSM.
According to a Home Office consultation paper published in August 2005, the strengths of the OPA’s ‘deprave and corrupt’ test “are said to be that it is flexible and capable of interpretation by juries in line with changing moral standards.” As I argued in a 2008 OPA case where the defendant faced six months in custody; moral standards have changed towards pornography and representations of consensual adult BDSM in the thirty years since R v Holloway, the guideline case “for those who commercially exploit pornography” from 1982.
I argued that BDSM imagery had entered mainstream culture in the previous fifteen years, from mainstream certified films such as: “Quills,” “Secretary,” “The Piano Teacher” and “The Notorious Betty Page”; to popular musicians such as Britney Spears and Madonna adopting the iconography of BDSM; along with fashion designers such as Vivienne Westwood, Alexander McQueen and Mulberry designing fetishistic items such as corsetry and stiletto heels; which are in turn worn by highly visible public figures like Elizabeth Hurley and Angelina Jolie.
Over the same period there had been a rise in the popularity of “fetish” clubs open to members of the general public, such as “Torture Garden” which has held events at the Barbican and Hayward Gallery and is described as a “legendary fetish club - the Torture Garden is a capital institution” by Time Out; as well as licensed high-street sex shops such as Ann Summers and Harmony selling sex toys and implements like canes.
Perhaps the most significant change was the proliferation of pornography available for purchase or free on the internet, which increases the ease by which such material can be accessed. Furthermore, The Times described the stated aim of the Criminal Justice and Immigration Act 2008 to “regulate” such access in the following terms: “Censor the internet? Try catching the wind… [since] Violent pornography may be repellent to most adults but banning it from British computers will be impossible”.
Sympathy had also been expressed in the media for those who engaged in consensual BDSM practices, such as the then current Max Mosely “expose”. Matthew Syed commented in The Times that: “disgust carries not a shred of moral or legal force when it is directed at those engaged in mutually consenting behaviour, whether it involves sex, spanking or leopardskin handcuffs”.
Taken together, these phenomena could be argued as being emblematic of the “changing moral standards” of society towards those who engage in BDSM activities. However, it could be suggested that the reliance on juries to interpret “changing moral standards” simply shifts the responsibility to define what sexual representations are considered “obscene” from our legislators, the police, the prosecution and our official censors the BBFC, onto the regular individuals who sit on a jury.
Whilst it could be argued that it is desirable for individuals on a jury to arbitrate over the sexual representations that other individuals may publish; the reticence by these authorities to engage with constantly changing moral standards means that the burden also shifts to individuals. Defendants such as Michael Peacock (who is to be commended for his courage in contesting the charges against him), face the unenviable prospect of an immediate custodial sentence should their legal challenges on obscenity law fail.
However, in last week’s Peacock verdict, I would suggest that the jury identified that moral standards have changed even more significantly. Consensual adult fisting and urination are sexual acts that are perfectly legal to perform in real life; but the representation of these acts was previously considered to be obscene under the Crown Prosecution Services (CPS) guidelines and therefore attracted criminal liability. What has attracted less attention so far is that the jury’s decision in Peacock seems to have inverted the distinction between the actual sexual act and the representation of that act, with regard to consensual adult BDSM activities.
The definition of consent in Section 74 of the Sexual Offences Act 2003 (SOA) is that: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”. However, the issue of consent to “violent” adult BDSM is regulated by the former House of Lords’ three to two majority decision in the 1994 case of R v Brown (colloquially referred to as the "Spanner" case). The participants in Brown had engaged in consensual male on male BDSM that “inflicted” injuries which were more than merely “transient and trifling,” by breaking the skin and causing bleeding. In delivering his Judgment in Brown, Lord Templeman stated that:
"I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty[...] Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized."
Hence it would seem that an individual cannot consent to an Assault Occasioning Actual Bodily Harm (ABH) as defined by the Offences against the Person Act 1861.
The current CPS Guidelines on ABH state that injuries normally prosecuted under section 47 include: “temporary loss of sensory functions, which may include loss of consciousness; extensive or multiple bruising; [and] minor, but not merely superficial, cuts of a sort probably requiring medical treatment (e.g. stitches)”.
However there is a dissonance between their Lordships’ decision in the “homosexual” case of Brown and the Court of Appeal Judgment in the 1996 "hetrosexual" case of R v Wilson wherein the appellant admitted using a hot knife to brand his initials onto his wife's buttocks, by mutual consent. Lord Justice Russell stated that "consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution".
Irrespective of this disjuncture, the Peacock case focuses exclusively on the relative obscenity of the representation of such acts, not the actual act itself. Excerpts from the DVD entitled “HM:T2” were exhibited to the jury in Peacock. According to the description of HM:T2 on the “hard-master” website, the DVD featured the recipient being:
“Bound, chained, suspended, caged, racked, whipped, impaled and subjected to heavy electro and cbt and piercing… And he takes the lot. This dvd does not hold back, welts bruises and blood are to be accepted when a slave is used this hard”.
Thus it could be argued that in holding the representation of such acts not to be obscene, almost twenty years after Brown, that the jury of regular citizens in Peacock were effectively rejecting Lord Templeman’s dicta that “[consensual sexual] cruelty is uncivilized." In light of the Peacock verdict, officers from the Metropolitan Police SCD9 Abusive and Extreme Images Unit openly stated that they would have to sit down with the CPS and the British Board of Film Classification to “rethink” the charging standard guidelines for sexual obscenity.
This could mean we are effectively in a position where prosecuting the representation of consensual BDSM acts such as the drawing of blood is not considered in the public interest; yet those performing those acts (to a level beyond merely transient and trifling) could still be prosecuted? This contradiction seems to make little sense.
Like Dr Clarissa Smith, who was asked the question, I might not welcome an anal prolapse, but I support the right of those who wish to enact or represent this activity.
Consequently I question whether those engaged in consensual adult sexual acts or representations should be prosecuted. It is my suggestion that a wholesale rethink of the law on sexual consent is necessary.
The above sentiments were expressed over six months ago, before Simon Walsh's acquittal at the Kingston Crown Court for allegedly being in possession of “extreme pornography” under section 63 of the Criminal Justice and Immigration Act. The five images in question depicted anal fisting and urethral sounding, both activities featured in the Peacock Trial. At the time I expressed the view that the CPS, along with the Metropolitan Police and the BBFC needed to review the guidelines.
I can report that, post Michael Peacock's #ObscenityTrial and pre Simon Walsh's #PornTrial the CPS did indeed meet with representatives from the Met and BBFC. However, I am told that the Peacock Trial was considered to be a singular prosecution and therefore the result of the review process was not to amend the guidelines in any way, shape or form. Therefore more defendants may have to put their lives on hold like Michael and Simon did whilst challenging such intrusive prosecutions.
It is my contention that the matter is now beyond the remit of the CPS, Met and BBFC and that the subject requires the scrutiny of the Home Secretary, Ministry of Justice and the Law Commission and that questions should be asked in the House.