Two high-profile British trials in 2012 attempted to draw a line in the sand over what was acceptable sexual behaviour between consensual adults.
2012 saw two trials in London that were widely seen as test cases about where definitions of obscenity were in the 21st Century and what the limits of the recently-passed laws against ‘extreme pornography’ were. Both cases felt as though they were attempts by the authorities to draw a line in the sand over what was acceptable sexual behaviour between consenting adults, focusing as they did on non-vanilla kink. When the BBFC and – by default – the authorities in general had finally accepted that hardcore porn was no longer considered obscene by anyone in the UK beyond a few cranks, a new set of rules were put in place that declared certain sexual activities beyond the pale – essentially anything involving bodily functions, ‘violence’ (no matter how consensual) or supposedly dangerous acts remained illegal despite no evidence of either harm or obscenity convictions involving such content. The extreme porn laws, pushed through as a knee-jerk reaction to a murder case that had very flimsy connections to violent porn, made several types of ‘harmful’ porn illegal even to privately own. And by 2012, the censorial were agitating against the unfettered world of the internet, where BBFC rules didn’t apply. ATVOD, set up as the regulator of TV On Demand, took it upon itself to wage war on British porn sites by setting up a licensing system that would make it illegal for payment providers to supply services to any unlicensed site – and only sites that both abided by BBFC rules (regardless of how legal their content actually was) and imposed severe and unworkable age verification systems would be licensed (and then, of course, at considerable cost). The ATVOD ruling would lead to the notorious ‘facesitting protests’ of 2014 and perhaps saw something of a cultural shift in how kinky sex was perceived more widely. But before those protests, the cases of Sleazy Michael and Simon Walsh saw non-mainstream sexual fetishism battled over in court and discussed in the press.
Despite the legalisation of porn in 2000, obscenity cases never quite went away. people selling porn outside unlicensed premises and without BBFC approval still faced arrest. There were still 71 prosecutions in 2012 and as most – if not all – saw the defendant pleading guilty, the police and the Crown Prosecution Service (CPS) can still point to convictions. Obscenity trials rarely make` the headlines because most people plead guilty, allowing them to reduce the severity of the sentence. The case of Michael Peacock was therefore unusual in that he offered a Not Guilty plea. Peacock– aka Sleazy Michael – was arrested after selling six DVDs featuring extreme BDSM, piss play, fisting and other hardcore gay activities to undercover police officers – something he readily admitted too. However, it was claimed by Peacock and his lawyers that the material was not obscene. And they turned out to be right – it took a jury less than two hours to find him not guilty on all counts.
It was, by any standards, a remarkable verdict – porn doesn’t get much more hardcore than the material included in these films, and the ‘torture’ scenes were pretty much what the ‘extreme porn’ laws were designed to make illegal. The fact that all participants in films like Impressive Impacts were consenting adults is apparently neither here nor there. As the Operation Spanner case in the 1990s showed, there is no legal right to consent to assault. It’s the impact (impressive or otherwise) that this material will have on otherwise wholesome viewers – the sort who we are supposed to think might buy porn movies from a man called Sleazy Michael without having a clue as to their contents and then rapidly develop an otherwise non-existent interest in deviant and dangerous sexual activity – that we have to worry about. The corrupting effect on those other people. The feeble-minded. The less sophisticated. Or, as BBFC head James Ferman so tellingly said when justifying the ban on The Texas Chain Saw Massacre, “the car worker in Birmingham”.
Just as significantly, this is exactly the sort of material that the Crown Prosecution Service and the police have long claimed was still considered obscene by juries – urination, torture, degradation, etc. That’s how the BBFC could justify cutting such material from R18 movies because unlike plain old vanilla fucking, it remained legally obscene. There was always a question mark over these claims – when asked to show evidence jury convictions of such material in the last twenty years, the CPS and the BBFC would brush the question aside as if it was beneath them. The reason for this was that there were no jury convictions because no cases were going before juries. The claims of obscenity could, therefore, never be countered with acquittals. It was a perfect system for the powers that be to maintain the status quo, and the legal system was carefully set up to actively discourage people from challenging the charges against them and so going to a full Crown Court trial.
That was why the Sleazy Michael case was so important. A lot was hanging on this because it was literally the first time that current interpretations of obscenity law and the extreme porn laws had been put to the test. For the police, the CPS, the government and the censors, this was the chance to confirm that this sort of material was still beyond anything that decent people would accept. But the jury in this case clearly felt otherwise. And why wouldn’t they? Apart from being shocked by the material – and despite efforts by the prosecution to confuse them by implying that ‘disgust’ was a valid reason for conviction – it’s very likely that most sensible people would find legal terms like ‘deprave’ (“to make morally bad, to debase or corrupt morally”) and ‘corrupt’ (“to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin a good quality”) to be as dated and ridiculous as the 1959 Obscene Publications Act itself. And those definitions are not some ancient hangover from the past – that’s how the law was defined to the jury in this case, alongside an impassioned claim that a line had to be drawn over what is morally acceptable.
Of course, the authorities have long shown a willingness to disregard such acquittals. Back in 1974, John Lindsay was acquitted of selling hardcore porn in a much higher profile case, yet the police, customs and the BBFC were still claiming vanilla hardcore was illegal as late as 1999. And in 1997, I wrote of a London magistrate dismissing a case against an unlicensed sex shop selling pissing and flagellation videos because “no jury is going to convict them” (not that this stopped the police in Manchester from arresting me a year later on entirely trumped-up and unsubstantiated obscenity charges…). It would be nice to think that the Obscene Publications Act would’ve been made irrelevant by this verdict, but that was not to be. While cases remain relatively rare (in 2014, the most recent figures I could find, there were just ten successful prosecutions), they still happen and people still plead guilty to what they have been is an open-and-shut case against them. Few local solicitors even understand obscenity law. But if it can’t be abolished, the ideal thing for everyone would be to simply allow the law to fade into obscurity, another disused anachronism – the alternative, after all, could be worse. The BBC, reporting on the case, felt the need to speak to the 21st Century successor to Mary Whitehouse, Mediawatch’s Vivienne Patterson, who claimed the case showed that the OPA needed ‘tightening up’, commenting “There is not a list which says what is obscene and what is not. It makes it incredibly difficult to get a conviction on that. As a society we are moving to a place where porn is considered as kind of fun between consenting adults, but porn is damaging.”
In other words, because a jury didn’t agree with my backward sense of morality, it’s the law and not me that’s wrong. It’s a laughable approach, especially as juries have in the past had no problem convicting people for much less under exactly the same law, but in a country where recent legal changes have been enacted with just such a hard and fast list of forbidden images being used, we should remain vigilant. Politicians are all too happy to listen to the bleatings of the tabloids and the fanatics under the misguided impression that they represent the majority rather than a small but very vocal minority.
Those of us with long memories knew that things wouldn’t change based on one case. There has been a long-standing tradition with British obscenity law that while a single conviction somehow sets a precedent, a thousand acquittals make no difference.
And as suspected, the BBFC rules and the CPS advice that they conveniently hid behind didn’t change. But perhaps realising that getting a jury to convict on obscenity charges for such material was proving impossible, the CPS changed direction. A few months after the Sleazy Michael case, Simon Walsh went on trial for much the same ‘offences’, but this time he was charged under the notorious s63 of the 2008 Criminal Justice and Immigration Act, which makes it illegal to merely possess pornographic material showing “an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals.” According to the judge in this case, ‘serious injury’ could include ‘physical, mental or moral harm’. Talk about covering all bases. Under the terms of this outrageous law – one of New Labour’s more disgraceful pieces of knee-jerk populist legislation – the images don’t even need to be real, just ‘realistic’, and there is no awkwardly vague suggestion that the material has to ‘deprave or corrupt’ – it just needs to tick a few boxes in terms of content. When the law was going through Parliament, critics were assured that it would only be used in the most ‘extreme’ (no pun intended) of cases, with an estimate of around 30 cases a year. In fact, in the first few years that the law was in force, there were thousands of prosecutions. No one should be surprised about this – give the police a new law, especially one that removes the pesky subjective defences available under older laws, and they will use it enthusiastically. And in this case, it gave the CPS a second bite at the cherry. We have to assume that if they thought fisting (and the BDSM material) on trial in the Peacock case fell under this law, then they might have prosecuted him under it, rather than the less cut and dried OPA. But after his acquittal, it would seem a rethink was in order, and rather than accept that such material is not considered particularly outré by most people, they instead tried to rebrand it as a dangerous act, liable to result in serious injury – or even death.
And so it was with the Walsh trial, where the prosecution shamelessly trotted out a series of half-truths, outright lies and outrageous slanders. In a country where Fifty Shades of Grey is now the best selling novel of all time, the prosecution was desperately trying to shock a jury with stories of BDSM extremity. It was almost as if the Lady Chatterley’s Lover trial of 1960, with its earnest questioning of whether the jury members would like their “wives or servants” to read the book, had never happened.
Walsh faced several charges of possessing extreme pornography. One involved photographs of a urethral sound – which, for those of you unfamiliar with such things, is not some new industrial music off-shoot but a medical object that is inserted into the tip of the penis to expand the urethra – here being used for sexual purposes. Another count was for a cock ring around the testicles (seriously). Other photos showed a man’s hand inserted into another man’s anus. There was also the highly dubious charge of possessing an ‘indecent image’ because the police couldn’t confirm the age of the participant and so decided – literally by guessing – that he was 14. A further charge, relating to a photo of someone wearing a gas mask, was dropped as the trial began – presumably, even the CPS realised how utterly ludicrous that was.
Perhaps knowing how weak their case was, the prosecution continually muddied the waters with legally irrelevant information. As well as suggesting that the material was ‘dehumanising’ and ‘degrading’ (which it may or may not be – there are, however, currently no laws against either), they also revealed that the defendant was a member of ‘Nasty Kinky Pigs’, a social network for gay men into BDSM – and again, that was not illegal. A fantasy story found on the defendant’s computer, discussing the ‘hanging’ of a twenty-something male, was also read to the jury. Again, the story is not illegal and was clearly a work of fiction, but all this accumulated ‘evidence’ was cynically designed to convince the jury, who should only be concerned with the content of the images and their background, that Walsh was a bad egg. What the defendant is or isn’t into should hardly be relevant, especially as he had conceded to being a gay man with an interest in BDSM, who had experienced fisting in his private life and who took the photos of the sounds. In case anyone is in any doubt – none of the acts depicted in the images were illegal to perform. Even more outrageous was the prosecution’s suggestion that sexual health clinics are only visited by people who engage in ‘risky’ sex, an outrageous insult to the clinics, their customers and everyone trying to encourage the public to take sexual health seriously.
In fact, as the evidence was revealed, the case became even more surreal. It turned out that none of this material was found on Walsh’s computer. Rather, the sounding and fisting images were in a ‘sent’ folder on an online email account, and the ‘indecent’ image was an attachment on an email sent to Walsh’s Hotmail account. Thanks to police fumbling in the investigation, it was unclear if Walsh had even opened the attachment. Even if he had, it was possible – in fact probable – that these were unsolicited images that he had simply not bothered to delete from his Hotmail account. Do you delete all your email messages from your hard drive? One would imagine that if Walsh had been interested in the photos, he would’ve downloaded them, rather than leave them buried away and forgotten (the email was sent three years prior to his arrest). And let’s not forget that there was no evidence that the person in the photograph was 14 or underage at all – that was simply a police guess.
Why the police were investigating Walsh in the first place is unclear, beyond a suspicion that he had viewed indecent images of children – for which no evidence was found and no charges brought. It certainly couldn’t have had anything to do with the fact that he was a barrister and alderman of the City of London who had investigated police corruption – after all, we know that the British police are happy to see corruption in their force exposed and that they never, ever engage in malicious harassment of those investigating it.
However, no matter what the motivation for the investigation and the subsequent prosecution, it ultimately failed. Simon Walsh was acquitted of all six charges, the jury unanimous after deliberating for a couple of hours.
The result was not a huge surprise, though it was still a welcome relief. Apart from the fact that this brazen attempt to expand the boundaries of the notorious extreme porn law was ridiculous and transparent, it’s notable that when charges under that law have been defended, juries have proved as reluctant to convict as they have been with the OPA. Unfortunately, as with obscenity cases, most people have tended to plead guilty (often having had inexpert legal advice) and so the powers that be can claim it is working, rather than admit that it is an affront to free expression.
These prosecutions – and the law that allows them to happen – were a disgrace. In both these cases, the prosecution tried to blur the distinction between legality and morality – the idea that these very acts, while legal to perform, were somehow still morally bad and that issues like consent were hardly a decent defence. In many ways, it was the BDSM lifestyle that was as much on trial as the films (notably, Peacock was also an escort who was well known on the gay BDSM scene). That the jury acquitted is not only a tribute to their common sense and the case argued by the defendants’ legal teams but also perhaps a sign that sexual minorities are no longer to be treated as convenient political scapegoats by politicians who you suspect would still be publicly making virulently homophobic comments if they thought they could. Let’s be honest – the misinformation, the moral outrage, the hysteria, the claims to be protecting people from their own deviant urges, the claims of sexual perversion that is a threat to decent society… these are exactly the same slanders that used to be spread about the LGBT community. Now, while authorities fall over each other to prove their gay-friendliness, it seems that other sexual minorities – minorities that only involve consenting adults – are still fair game for persecution. Add this to the ongoing British obsession with holding back the barrage of filth that makes continental Europe such a deeply uncivilised and violent place (unlike our green, pleasant, tolerant and crime-free land) and you end up with a situation where lives are ruined, careers destroyed, relationships wrecked – all over images of adults enjoying themselves while performing perfectly legal activities.
However, these two cases seemed to finally motivate the BDSM community and pro-sexual freedom campaigners to fight back. The restrictions over legal and consensual sexual imagery and activity were finally challenged in a series of protests. For the first time, it became clear that the current restrictions did not reflect public opinion and that the demonisation of kinksters was no longer going to be acceptable.
Things did finally start to change. The CPS and the BBFC finally accepted that consensual kinky sex acts are not obscene and in 2019, the rules were finally changed to allow fisting, pissing and non-violent kinky acts. This was less to do with liberalisation and more a pragmatic move – as the government moved to push through age verification rules for adult sites (which of course had to then be abandoned) it was understood that the assorted tube sites were not going to purge their content just for the UK and so definitions of what was obscene needed to be relaxed to make the system work. The CPS stated: “It is not for the CPS to decide what is considered good taste or objectionable. We do not propose to bring charges based on material that depicts consensual and legal activity between adults, where no serious harm is caused and the likely audience is over the age of 18.”
The extreme porn laws remain in force and in use, and have been strengthened since these cases took place – originally, staged fictional rape imagery was not covered by the law, but under pressure from radical feminist lobby groups, this ‘loophole’ was closed.
Mediawatch, the re-badged version of Whitehouse’s National Viewers and Listeners Association, seems to have finally given up the ghost though – their website hasn’t been updated since 2016 and when did you last hear anything of them?
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It baffles me that people don’t object to laws that intrude heavily into people’s private lives far more.
RIPA and it’s successor (which conveniently allowed them to ignore the EJC ruling on the former’s illegality) was just met with a shrug and ‘if you haven’t done anything illegal why worry’ attitude from many people. Never mind the fact it’s fundamentally opposite to the idea of innocent unless proven guilty.
But of course it’s alright, because as you mentioned, there’s never been a case of somebody in authority abusing the systems they have access to. Oh wait.
Curse the lack of an edit, should’ve been ECHR not ECJ
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