September 27, 2019
CAN'T KEEP YOUR MOUTH SHUT?
OBSCENITY FAQ WITH MYLES JACKMAN
What is obscenity?
At law, obscenity is an article which has a certain tendency to deprave and corrupt. Juries have to interpret that, along with current societal values, in order to establish what is or isn’t obscene.
What obscenities do the police look for nowadays?
Before the CPS’s Obscene Publications Act guidelines changed in January 2019, it had been things like fisting and “water sports,” simply for depicting them, even though those things were legal to do. So vaginal and anal fisting is legal, as is urinating on someone providing there is consent.
Is an image more likely to be obscene than text?
Yes. Although the written word had previously been considered not prosecutable after the case of Darryn Walker, a civil servant in Newcastle who published slash fiction about the girl band Girls Aloud, where he raped and murdered them, called Girls (Scream) Aloud. The prosecution eventually dropped the case on the basis that it was so hard to find the story that casual fans of the group would never find it. But the case of R vs. GS  says that private, consensual, adult chat can be obscene and can put you in prison. That means if you say something obscene by text message about something grotesque such as child rape, even though it was a private fantasy, you could theoretically go to prison.
I told you about an unwritten, hypothetical literary erotic fantasy of the drug-rape of Shami Chakrabarti of Liberty. It doesn’t exist, but even if it were to be written, nobody would have perpetrated those acts against Baroness Chakrabarti. Nonetheless, it might be considered so shockingly obscene, and therefore it would deprave and corrupt the reader, that somebody could go to prison for writing it. Likewise texting it, or publishing it in a blog or an art magazine, theoretically means that there’s no guarantee you won’t go to prison.
If I went onto Camden High Street and announced these fantasies through a megaphone, would I be more or less likely to get arrested for obscenity?
You’re committing a public order offense by doing that, which isn’t technically obscenity per se. But you would be done for “outraging public decency,” which is most often used to get people with learning difficulties who masturbate or perform sex acts in public.
If I mailed my Sex with Theresa May rape fantasy pamphlet to 10 Downing Street, would I be more likely to be convicted?
There are separate mail offences that involve sending obscene material in the post, so you could be committing an offence just by sending it. And arguably if you sent your rape fantasy to Number 10, you could be accused of some kind of harassment, trying to put Theresa May into a state of fear, alarm and distress. You could argue that you have a free speech artistic defence in writing such a story, and maybe even publishing it, but the moment you try and harass the person it’s about, you’re probably committing any number of crimes. There’s also an offence under the Communications Act, Section 127, and this is what the Twitter joke trial was about, and this is what the Nazi pug trial in Scotland was about. Often, if you say something outrageous and the police or CPS can’ fit it easily into a category like obscenity, then they will claim you have committed an offence by saying it on a communications network.
Am I less likely to be arrested for publishing a pamphlet than putting it on Twitter?
Yes. Your chances of being arrested go up exponentially depending on how many people see it or can access it.
Is having penetrative sex with your brother still illegal?
Yes, that would almost certainly be considered incest.
Would giving your brother a blowjob be considered incest?
Yes. In the Sexual Offences Act 2003, sex is defined as penetration of the vagina, anus or mouth.
A handjob from a family member wouldn’t be incest?
It appears not on a strict reading.
Is it illegal for me to publish a picture of incest?
No, it isn’t always illegal to photograph illegal acts.
If I orchestrated a photo shoot where I encouraged them to cornhole, would that be illegal?
Then you’re clearly committing an offence as a deliberate accessory who has taken more than preparatory measures. Criminal liability kicks in at that point.
Is sexual contact with a dog illegal?
Bestiality involves penetration by penis of vagina, anus or mouth, of any species. So committing analingus on a dog is not a criminal offence.
Is it illegal to publish images of somebody having sex with a dog?
That would be illegal under section 63 of the Criminal Justice and Immigration Act 2008, which expressly prohibits possession of bestial photography.
Would it be illegal to encourage a brother and sister dog to have sex and take a picture of the animals?
There is to my knowledge no specific offence committed there, although the RSPCA may say it’s animal cruelty. You are an interesting man.
Is having sex with a dead person illegal?
Bestiality and necrophilia are societal taboos enforced by law, because animals and cadavers are incapable of giving consent.
Does carrying a Necrocard, giving consent to necrophiles, make a corpse legal?
That would have no effect whatsoever.
Is taking a picture of necrophiliac sex illegal?
There is a defence for the photographer known as the Section 66 defence. But as Simon Walsh’s case shows, if you and I are involved in an orgy and we pass the camera around, the judge refused to accept the Section 66 defence, and said it didn’t matter that he was the photographer. So in reality, if you attract criminal liability for certain types of mischief, you will probably get prosecuted, even if a strict interpretation of the law would say you shouldn’t.
If I see somebody having sex with a corpse in a graveyard and I publish a picture, is that illegal?
You’ve now introduced the spectre of ecumenical law, because religion has particular criminal protections.
If they’re having sex with a corpse in the park?
If the image was so severe, then yes it probably is an obscene image.
Is publishing a fake or staged picture of necrophilia illegal?
In pornography laws, the image must be realistic. But artistic value alone is not sufficient at law.
Is there a defence for literary or fictional depictions?
No. I should make it clear to your readers you are not a client of mine yet – but as I say to all my clients, you have to assess your own risk model. Under the Obscene Publications Act, the maximum sentence is five years, which you would serve two and a half. For most people from an artistic background who may be travelling to show their work, even a caution is enough of an inhibitor because it significantly impedes their ability to travel, so the types of prohibition against artists in this area could be argued to be disproportionately dissuasive from doing it in the first place. So it has a censorious effect on the free-speech environment.
If there was no question of whether it was staged, but it was a very powerful fictional image, such as The Human Centipede, but it still looks shocking?
I know if I go to see The Human Centipede that it’s a work of fiction, so the question becomes context. In your publication, do you make it clear that it’s faked, or do you present it as though it was real? That will make a difference. But you can still do things that are so shocking, they are still obscene, and that’s where these areas get particularly grey.
Could I still be prosecuted for publishing written, fictional obscenity?
When Darryl Walker was acquitted in 2009, it was considered that the written word was finally sacrosanct, and you couldn’t go to prison for simply writing something fictional. But that position has clearly changed after the case of R vs. GS . Here the court ruled that private, consensual, adult chat can be obscene and can put you in prison. That means if you say something obscene by text message about something grotesque such as child rape, even though it was a private fantasy, you could theoretically go to prison.
Myles Jackman was the legal adviser for issue 3 of A Void magazine, the porn edition. To get a copy become a Patreon subscriber****
Issue 2 is available for free download: https://morbidbooks.b-cdn.net/a-void-issue-2.pdf
Issue 1 is available for free download: https://morbidbooks.b-cdn.net/a-void-issue-1.pdf
photo credit: Itziar Bilbao Urrutia