These obscenity laws should be abolished

One suspects that 35-year-old Darryn Walker, a former civil servant from south Tyneside, England, probably regrets publishing his short story ‘Girls (Scream) Aloud’ on an adult sex stories website early last year.

Featuring one supernaturally tumescent male and the members of the all-girl British pop group Girls Aloud, Walker’s short story has a less than intriguing cast list. Unfortunately, his narrative, consisting of rape, torture and murder, is even more one-dimensional. Still, nothing, it seems, is too pornographically tedious for those hardened incorruptibles at the Internet Watch Foundation. Having duly spotted it, the IWF passed Walker’s story on to the Obscene Publications Unit, who then arrested Walker in February last year. In October, he was charged under the Obscene Publications Act.

As prosecutor David Perry QC argued in this week’s trial, Walker was being charged under the OPA because his rape-’em-and cut-off-their-legs fantasy was ‘accessible to people who were particularly vulnerable – young people who were interested in a particular pop music group’. And that was it. That was the prosecution’s case. The defence, calling an IT expert as a witness, pointed out that far from being accessible to young people, such material could only be found by those specifically looking for it. In other words, Girls Aloud fans, pre-pubescent or otherwise, could not just happen across it unless they specifically Googled something like ‘Cheryl, “legs cut off”’. Or ‘Nadine, “legs cut off”’. There’s five of them, so take your pick. On Monday, the charges against Darryn Walker were dropped.

That Walker was cleared is not surprising. It was a ridiculous charge to bring in the first place. But it also testifies to the obsolescence of the Obscene Publications Act itself, a piece of nineteenth-century legislation that rests upon a perception that some people are incapable of dealing with certain material without being adversely affected in some way.

Although the Obscene Publications Act was first formulated in 1857, it was the 1868 Regina v Hicklin trial that defined obscene material in terms of whether it ‘depraves and corrupts those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall’. That is, it is not so much the material itself that is obscene, but the way it might become obscene in relation to certain people. As writer Marjorie Heins notes, ‘the purpose of obscenity laws was… to prevent immoral literature from falling into the wrong hands, whether they be those of servants, the mentally deficient, women or minors’ (1). Such paternalistic, indeed patronising, attitudes towards vast swathes of the population – the basis for obscenity legislation – have long since lost their patina of legitimacy. At the 1960 trial of DH Lawrence’s Lady Chatterley’s Lover, prosecuting QC Mervyn Griffith-Jones famously asked the jury: ‘Is it a book you would have lying around in your own house? Is it a book that you would even wish your wife or servants to read?’ As it turns out, the jury did.

With open aristocratic disdain for the lower orders and denigration of women in general no longer deemed acceptable, that final category of ‘minors’ has moved centre stage. Now the central prop for obscenity legislation, as the Walker case shows, the category of the ‘child’ is, paradoxically, used to restrict and regulate intercourse between adults. And that’s the problem with current obscenity legislation. It effectively treats adults as if they were children.

The litany of failed prosecutions, from Lady Chatterley’s Lover to ‘Girls (Scream) Aloud’, led feminist campaigner Julie Bindel to call for the act’s abolition. This was not because it is an archaic hangover from days when the majority of the population was not allowed to vote; rather Bindel just wanted more effective legislation in its place. ‘We have laws against incitement to racial and religious hatred, but none for sexual hatred. And that’s exactly what pornography and these sorts of stories do – peddle an image of women as gagging for it, enjoying pain, and that encourages men to treat them that way. We need new legislation to protect women, then we could do away with these old-fashioned obscenity laws.’ (2)

The monkey-see, monkey-do argument that once sustained obscenity legislation in relation to women and the lower orders is here resurrected for a supposedly democratic age. Everyone, or at least every male, is made potentially corruptible, potentially degenerate. It is a nonsensical argument. Just as Lady Chatterley’s Lover did not turn people into lusty, rustic types with a predilection for ‘the wheelbarrow’, pornographic material, no matter how repugnant, does not turn its audience into rapists. Between thought and deed there lies a sentient individual, a moral being capable of making decisions and taking responsibility for them. It is precisely this substance, this thing between the ears, that obscenity legislation, and its updaters like Bindel, tries to efface.

These laws should be abolished – not to pave the way for more effective forms of censorship, but in the name of freedom of thought and freedom of speech, and because the state should have no role in the regulation of people’s fantasies.

Tim Black is senior writer at spiked.

(1) Cited in Not in front of the children?, by Sandy Starr, 9 August 2001

(2) Obscene stories or free speech?, BBC News, 29 June 2009