08 January 2012

Hicklin and Peacock

I'm looking forward to reading the judgment in R v Peacock, the UK case in which a vendor of erotica has been found not guilty of an offence under the Obscene Publications Act 1959 [PDF]. Mr Peacock had been charged under that Act with distributing DVDs featuring scenes of "extreme gay sex acts". His acquittal after a jury trial involved the legal test of whether those images would “tend to deprave and corrupt” the viewers, a test dating from R v Hicklin (1868) LR 3 QB 360 at 371.

Cockburn CJ in that case stated that
I think the test of obscenity is this, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.
As I've written elsewhere, that test was used in the UK and elsewhere for a century as the basis of restrictions on comics, film, poetry, paintings and novels (including what we might now regard as some of the leading - or merely more famous - works of modernist literature). The Australian Customs (Prohibited Imports) Regulation prior to 1984 for example prohibited importation of material that was "indecent or obscene or was likely to encourage depravity".

In discussing Peacock obscenity law specialist Myles Jackson, an obscenity law specialist, commented that
Perhaps illogically, of these sexual acts, fisting and urination are completely legal to perform in real life; and thus it is only the representation of these acts on film which may be considered obscene and therefore attract criminal liability.
The UK Crown Prosecution Service relied on guidelines that identify images of consensual “sadomasochistic material which goes beyond trifling and transient infliction of injury”, “torture with instruments”, “activities involving perversion or degradation” and “fisting” as potentially being suitable for prosecution. Non-consensual activity also - and more reasonably - attracts prosecution.

In R v Penguin Books Ltd [1961] Crim. L.R. 176, the 'Lady Chatterley Case', Byrne J glossed 'deprave and corrupt' as
to render morally unsound or rotten, to destroy the moral purity or chastity; to pervert or ruin a good quality.
In Peacock the jury determined that the acts in question did not “tend to corrupt or deprave those who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”. In essence, although some acts are not what everyone might choose to watch - or engage in - after a long day at work they were probably not going to deprave adults who were aware of the content of the videos, chose the videos on that basis and quite possibly had engaged in such acts themselves. The consumers for Mr Peacock's products were thus not 'innocents' who would be led astray when encountering particular graphics and language that relate to what many UK adults actually do.

The decision coincides with the ALRC's inquiry into content classification and a Senate inquiry.

Australia moved away from Hicklin - see for example the acerbic comments by South Australian CJ Bray quoted in 'Depravity, Corruption and Community Standards' by Richard Fox in 7(1) Adelaide Law Review (1980-1981) 66 [PDF] - from 1948 onwards, with Fullagar J in R v Close [1948] VLR 445 [PDF] commenting that 'obscene' had nothing to do with corrupting or depraving susceptible people: it described what is offensive to current standards of decency and not that which may induce sinful thoughts.

In Crowe v Graham (1968) 121 CLR 375 Barwick CJ indicated that material was indecent if "having regard to the manner and circumstances in which it was presented, it would offend the modesty of the average man or women in sexual matters". Windeyer J indicated that the question was whether contentious material transgresses the contemporary standards of decency of the Australian community.. A shift to a 'reasonable adult' test reflected a notion of 'community standards' ("the standards of morality, decency and propriety generally accepted by reasonable adults") and a recognition by a contemporary liberal democratic state that consenting adults have divergent tastes.

Fox for example notes that -
His Honour maintained a biting criticism of the deficiencies of the law which, if it did not directly shape, at least gave rational direction to the revamping which took place. His theme was twofold: first, in an age of moral pluralism diversity had to be tolerated. The law was not designed to make nor was it capable of making men virtuous. Its proper concern was not private morality but public propriety and decorum. Its aim was to define the minimum standards of citizenship and no more. Secondly, insofar as prohibitions had to be predicated on such shifting standards as the current level of public tolerance of sexual expression, the courts had to be open and receptive to the enlightenment of research and should not excessively rely for knowledge on intuition and introspection.
In Popow v. Samuels (1973) 4 SASR 594 Bray commented on the 'obscenity' of films sold to male adults -
I think it was only intended to arouse and only likely to arouse erotic impulses in men. I do not think any of the material has a tendency to induce the commission of sexual crime. It does not incite to sadism or violence. I do not think that the arousal of erotic feelings in an adult male is itself an offence. Advertisements, films, literature at the present time notoriously, continuously, clamourously and blatantly appeal to the erotic instincts of men. I cannot think that that offends contemporary standards of morality. There would surely be louder and more effective protests if it did. I think that the tendency of this material is to induce erotic thoughts and impulses in adult males, these being the relevant audience. I think it would succeed with some, perhaps, if that is the test, with a significant proportion, of such males. It would undoubtedly fail to do so in many cases, either for reasons of good taste or because of the inadequacy of the material. The mere arousal of erotic impulses does not, in my view, in any relevant manner tend in itself to deprave or corrupt. There is, to my mind, something ludicrous about the application of such portentous words as "deprave" and "corrupt" to these trivial and insipid productions. ...

No doubt ... there was a time when anything tending to induce people to behave in a manner contrary to the Christian code of sexual ethics, and I mean by that absolute chastity outside monogamous marriage, or even to question the validity of that code, could be held liable to deprave or corrupt. That cannot, in my view, be said today. Not all sexual immorality within the meaning of that code can be said to deprave or corrupt ... and I would add that "deprave" and "corrupt" are strong words, not apt to include what society would regard as indulgence in a reprehensible but excusable peccadillo.
Peacock is concerned with commercial dissemination of the videos. The decision does not mean that it is legal to create, distribute or possess criminalised content (notably child pornography).

It should be read in the context of UK law such as R v Brown [1993] 2 All ER 75, aka the Spanner Case, in which the UK court took a different stance to same sex versus straight sex consensual S&M on the basis of a Hicklin-era offences against the person statute. It should also be read in conjunction was past policing action, for example the abandonment in 1998 of action by the West Midlands police against the University of Central England and publisher Random House over a book of photographs by Robert Mapplethorpe. The Crown Prosecution Service eventually decided that there was no realistic prospect of a successful conviction. The police had expressed concern regarding photos with similar themes to those in the Peacock case, offering to take no further action if the publishers, and the University (which held a copy of the book in its library) agreed to destroy all the copies of the book and the photos. The potential defendants refused. The CPS announced that there was "insufficient evidence to provide a realistic prospect of conviction against any person or company", noting that a book must tend to deprave or corrupt a significant number of the people who see it. That was considered by the CPS to be "highly unlikely", as the two offending pictures were published along with 380 others and most of the people who would be interested were art students or artists.