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Let joy be unconfined. Let there be dancing in the streets. Ding! Dong! The Obscene Publications Act is dead (or at least exceedingly poorly). But just as the death of one evil and malignant creature in the Wizard of Oz heralded an even nastier arrival, in the form of the Wicked Witch of the West, so some more perceptive commentators are already moving on to the next challenge: what will come after?
The glad news, for those who believe that grown-ups should be allowed the freedom to gain their erotic pleasures how they will, so long as no-one else is abused in the process, emerged from Southwark Crown Court at around 1pm this afternoon.
Police and Crown Prosecution believed that DVDs featuring activities such as fisting, sado-masochism and urination for sexual purposes were obscene.
Their distributor, Michael Peacock disagreed and, unusually, was prepared to resist their assertions in court. The jury agreed with Mr Peacock.
So it’s a victory for free expression? Perhaps. Although, giving the OPA a good kicking is a little like playground bullying: its not nice; and after a while, one does start to feel sorry for the poor put-upon law.
In purely legal terms, this verdict makes little difference. The result is not binding on other courts. It does not, as the CPS were already spinning in advance, set any sort of precedent. However, to view the effect of a law purely — or even mostly — in terms of how many successful prosecutions it brings in is to miss the point.
The OPA was launched in 1959 amid claims that it was a stake in the ground: a sticking up for standards. The failed prosecution of Lady Chatterley’s Lover just four years later, demonstrated just how misplaced that theory was.
In the years since, its direct use has been slowly but surely whittled away: first by the Protection of Children Act 1978, which introduced the idea that possessing indecent images of children was a crime in its own right. The Video Recordings Act whittled some more, as did laws on incitement to race hatred. “Extreme porn” laws, introduced in 2008, were probably the final straw, as it became clear that prosecution for possession of things like bestial material were a “slam dunk” under this later legislation —while remaining quite difficult under the OPA.
Thus, the number of successful prosecutions under the OPA has dwindled and dwindled, until last year, the CPS owned up to being aware of just 71 prosecutions nationwide under this law.
So it has next to no impact on the life of the nation? Not at all. For over the years, the police have made extensive use of powers of seizure under the OPA to pick up material that they deemed to be obscene: to hold it for months, years even; and then, after giving serious consideration to the matter in hand, releasing it back to its owner. This was a tactic, possibly a slightly underhand tactic, designed to disrupt the trade in pornographic material and while police activity may have been legally questionable, most porn merchants did not have the inclination — or budget — to challenge the police.
Too, the OPA is entwined with a whole raft of semi-official bodies — such as the British Board of Film Classification — who have argued in the past that they will ban films if they cross the line into territory that the Police and CPS advise “would be likely to be found obscene” in front of a jury. Film-makers are well aware of this approach, and so many films that might fall foul of the BBFC in this way just don’t get made. Again, because the film producers haven’t the budget to take on the authorities.
No: this case sets no precedent. But with approximately half of the CPS’ “likely to be found guilty” checklist just booted out of court — literally — it will be hard, now, for the BBFC (and other bodies, such as the Internet Watch Foundation) to hold the line.
Expect loads of fisting and urination in porn films in 2012: and expect the Daily Mail to get very hot under the collar about the moral degeneration that this represents.
So its back to the beginning, with joy ful dancing in the streets? Not necessarily. As one highly cynical observer suggested, just minutes after the verdict was in: “I wouldn’t be surprised if this is exactly what the authorities wanted.”
Because although the OPA did exert a major influence on what got made, film-wise, it was also hard to prosecute under. And that, for many of its more reactionary critics, was the main problem. They much prefer the newer-fangled laws which are strict liability and don’t mess about with all that namby-pamby subjective stuff about whether something could be considered to “deprave and corrupt”. They like their law hard and thrusting. Like the “extreme porn” one.
And if the OPA fails, then, they argue, the case for replacing it with something much stricter, much more draconian becomes inevitable.
Apres lui, le deluge: and it won’t be a golden shower!
Jane Fae is a writer and campaigner on issues of the law and sexuality. She is one of the UK’s leading experts on the recent workings of the Obscene Publications Act, having been an expert witness in the Girls Scream Aloud case – and will be presenting a paper on the evolution of the OPA at the Obscenity Research Conference, taking place in April of this year