Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 9 January 2012

On obscenity

Michael Peacock,
presumably after acquittal
The acquittal at the end of last week of Michael Peacock on charges of obscenity for the distribution of gay pornography is to be welcomed. Peacock ran a gay escort website which also distributed DVDs containing images of various acts between men, including urination, fisting and BDSM. He was targeted by an undercover police operation and requested to supply varous DVDs - and then prosecuted for the supply. The most notable feature of the case was that there was a trial in the first place. Prosecutions under the Obscene Publications Act 1959 are routinely uncontested. As a consequence, however, the jury were invited to consider whether the acts depicted met the famous s.1 test of obscenity: whether the articles in question was such as to tend to "deprave and corrupt" those viewing it. To their very great credit, they decided that this was not the case, and that acts which were legal between consenting adults should not be treated as illegal if photographed and distributed.

The decision has been recognised as a potentially important recognition of sexual freedom, and it has also been pointed out that this might undermine the whole basis of the regulation under the Obscene Publications Act. Those who have been pleading guilty up until now might now decide that it is worth contesting the charge if it is believed that, as in this case, juries are likely to acquit. However the problem in this area is not just that the law might be in disarray or out of date, but that there are (at least) three separate legal regimes for the regulation of pornographic material, each of which is aimed at the regulation of completely different things.

The oldest regime is that of indecency, which can be traced back to the Vagrancy Act 1824. Indecency uses a test of the subjective reaction of the viewerdid the ordinary man or woman find the material to be shocking, disgusting and revoltingand is focused on capacity of this reaction to disrupt public order. Thus from the Vagrancy Act 1824 onwards, through a range of statutes concerned with police and civic government, the public display of indecent images was linked to their potential to disturb the peace. The concern was less with the conduct as such, but with the place of display and the understanding of appropriate public behaviour. Thus the law was not aimed at the enforcement of general moral standards of conduct, but the regulation of public order.

Would you let your servants
 read this book?
The second is the more overtly moral test of obscenity, which dates from the Obscene Publications Act 1857, concerned the impact that obscene material might have on the character of those consuming it.  It was thus concerned with imagination and interpretation, and its focus was social welfare rather than public order. It sought to regulate what individuals might do in private and was specifically directed at protecting those who might be vulnerable to corrupt influenceswhether women, children, or (in the notorious formulation from the Lady Chatterly's Lover trial) domestic servants. The Act and its successors gave police power to seize obscene materials and it was specificaly aimed at those who produced, distributed and sold such materials.

Third, there is the more recently introduced regulation of extreme pornography introduced in England and Wales by the Criminal Justice and Immigration Act 2008 and (slightly differently) in Scotland by the Criminal Justice and Licensing (S.) Act 2010. The regime here is more muddled. In a recognition that such images are distributed digitally and that it is accordingly difficult to trace the producer or criminalise the distributor of such images, it criminalises possession of the images. However, the test of an extreme image is a combination of the (reasonably precise) listing of specific forms of extreme practice in the legislation, and the older common law test of obscenity (i.e. an image must be both extreme and obscene). The Act thus collapses any distinction between private and public spaces to criminalise according to the moral judgment of the obscene character of the images.

Aside from the fact that, as this brief discussion shows, the law is complex and hard to articulate clearly, what is obviously missing is any clearly articulated rational basis for the law in this area. the Obscene Publications Act might well be undermined by the Peacock case, but there may be no advance at all if prosecution are then taken for extreme pornography, since this just reproduces the test for obscenity - and the criminalisation of possession is potentially even more illiberal. More importantly, this requires us to reflect more systematically on what we want to regulate in this area and why. There are surely good grounds for preventing the display of obscene images in public places, just as there are for protecting individuals involved in the production of pornography against exploitation and violence, just as there may no longer be grounds for criminalising something just because it is disgusting to particular individuals or groups - but these are completely different objects and the law should be revised so as to articulate its aims more clearly.

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