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Obscene performative pornography:

R v Peacock (2012) and the legal
construction of same-sex and gendered
identities in the United Kingdom
Sarah Beresford

Law School, Lancaster University, Lancaster, UK

Published online: 03 Nov 2014.

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To cite this article: Sarah Beresford (2014) Obscene performative pornography: R v Peacock
(2012) and the legal construction of same-sex and gendered identities in the United Kingdom, Porn
Studies, 1:4, 378-390, DOI: 10.1080/23268743.2014.958384
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Porn Studies, 2014

Vol. 1, No. 4, 378390, http://dx.doi.org/10.1080/23268743.2014.958384

Obscene performative pornography: R v Peacock (2012) and the legal

construction of same-sex and gendered identities in the United Kingdom
Sarah Beresford*
Law School, Lancaster University, Lancaster, UK

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(Received 9 April 2013; accepted 21 August 2014)

How are the concepts of obscenity and extreme pornography produced and by
whom? The failed prosecution in R v Peacock (2012) revealed English law to be
based on attempts to protect public and individual morality ensuring that
people do not become depraved and corrupted by the pornography they see and
hear. The Obscene Publications Acts 1959 and 1964, and the Criminal Justice and
Immigration Act 2008, figure criminality upon normalized notions of appropriate pornography and appropriate sexual expression. A Foucaultian analysis
would suggest that in regulating pornography and obscenity through the lens of
morality, it is the law itself that produces and creates these concepts and hence the
perpetuation of ideas of acceptable identity expression. Using Michel Foucaults
ideas on truth and knowledge and Judith Butlers theories of performativity,
this article suggests that the decision to prosecute Peacock was, in and of itself, an
act of production, creation and performativity that contributes to the regime of
truth about pornography and obscenity.
Keywords: extreme pornography; law; discourse; obscenity; R v Peacock; Butler;
Foucault

Introduction
This article explores the power of legal discourse to shape our understandings of
acceptable sex and sexuality through recent British cases such as R v Peacock
(unreported, Southwark Crown Court, 6 January 2012), Part 5 of the Criminal Justice
and Immigration Act (CJIA) 2008, and recent British Government statements on the
dangers of pornography (see for example, BBC News 2013a; Ross 2013; Watt and
Arthur 2013). Questioning the extent to which legal discourse constructs pornography,
influenced and supported by perceptions of appropriate expressions of gendered and
sexual identities, the article explores the extent to which law operates upon what
Foucault terms a repressive model of power (Taylor 2009), resorting to yet more law
in order to solve the problem of pornography. I conclude by suggesting that the
problem of pornography is not solved by such means, and that law actually creates
more of that which it seeks to repress and control, producing what Foucault would
term a regime of truth, through performativity (Butler 1999) and speech acts
which sustain and perpetuate social constructions of gendered and sexual identities
(Butler 1997).

*Email: s.beresford@lancaster.ac.uk
2014 Taylor & Francis

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The article questions how concepts such as obscenity and extreme pornography
are produced. It explores the notion that censorship and/or regulation generate
speech and create a regime of truth about the portrayal of which particular sexual
acts are acceptable or not. I suggest that the law itself is the creator and producer of
extreme pornography. Section 63 of the CJIA 2008 targets those who possess or own
extreme pornography, whilst the Obscene Publications Act (OPA) 1959 targets the
publication of material regarded as obscene (McGlynn and Rackley 2013); the
statutes interlink with one another, founding their idea of criminality on normalized
notions of appropriate sexual expression.
Prosecuting same-sex pornography and Peacock
Michael Peacock, a gay male escort, had been selling pornographic DVDs through his
own website (which also promoted his escort services) and in the London-based gay
magazine Boyz. Members of the Human Exploitation and Organised Crime
Command (SCD9, a specialist branch of the London Metropolitan Police Service
that investigates, inter alia, human trafficking, obscene publications, nightclubs and
vice) saw the advert and arranged (undercover) to visit Peacocks London flat and buy
five of the most popular fisting DVDs. After watching the DVDs, they arrested
Peacock and in December 2009 he was charged under the OPA 1959 for distributing
obscene gay DVDs, which featured fisting, urolagnia and BDSM. In January 2012,
after a four-day trial at Southwark Crown Court, Peacock was unanimously acquitted
by the jury. The Police and the Crown Prosecution Service (CPS) believed the DVDs
portrayed activities that would deprave or corrupt those individuals who saw them.
For the prosecution, these representations of male bodies being penetrated did not
fit within [s]ocietys view of appropriate behaviour for men and for women
(ODonovan cited in Edwards 1996, 9), although most of the acts portrayed are legal
to engage in. As noted by Doherty and Anderson: [t]he idealised heterosexual male is
constructed as potent and non-permeable and normal sexual activity is strictly
defined as penetration of the female body by the phallus (2004, 15).
The question of what constitutes appropriate expressions of sexuality was
integral to the prosecutions case in R v Peacock and the discussions in Crown
Court. Cases in Crown Court do not set precedents because a jurys finding is a
matter of fact, not law. The case is nevertheless immensely significant as the most
recent testing of obscenity before a jury. Peacock pleaded not guilty to a charge
under the OPA 1959 and won;1 the case thus enables us to explore the development
of legal discourse relating to obscenity and pornography.
The role of discourse
I start with the idea that, in a Foucaultian sense, both law and pornography represent
discourses that produce truth and meaning, in turn, normalizing and privileging
particular constructions of gendered and sexual identities (Foucault 1977, 170). For
Foucault, discourse is a group of statements which provide a language for talking
about a particular topic at a particular historical moment (Hall 1992, 291): it is
discourse that defines and produces the objects of knowledge. Subjects like pornography or obscenity only exist meaningfully within the discourses constructed about
them. As Weedon suggests: Discourses are more than ways of thinking and producing

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S. Beresford

meaning. They constitute the nature of the body, unconscious and conscious mind
and emotional life of the subjects they seek to govern (1987, 108).
Generally speaking, law is concerned with controlling behaviour; criminal law
is a normative system that operates by setting down standards of conduct and by
enforcing in distinctive ways, those substantive standards or norms (Wells and
Quick 2010, 5). Criminal law makes a number of normative claims, leading to a
troubling set of assumptions about male and female sexuality (Lacey 2007, 33). Far
from being a politically neutral framework, criminal law and its processes
consolidate and reproduce aspects of social relations at a formal institutional level.
They need to be understood in the context of a network of actions, structures and
ideologies which reinforce and reveal the nature of patriarchal relations (Wells and
Quick 2010, 483). In relation to obscenity and pornography, the relevant legislation
similarly presents us with ideologies, patriarchal relations and normative claims
regarding sexuality.
Differentiating between obscenity and pornography
It is important to remember that the OPA 1959 and 1964 were intended to regulate
obscenity, not pornography. It was not until the passing of Section 63 of the CJIA
2008 that English and Welsh law defined a pornographic image. Section 62 of the
Coroners and Justice Act 2009 states that an image is pornographic if it is of such a
nature that it must reasonably be assumed to have been produced solely or
principally for the purpose of sexual arousal. Although the concepts of obscenity
and pornography have been substantially collapsed into one another, there is an
historical distinction between the two. Under the OPA, the focus of the law is upon
the effect(s) upon the viewer and the likelihood of whether the viewer would be
depraved and corrupted by the material (R v Hicklin [1868] LR 3 QB 360). The
current legal framework thus requires that acceptable sexual imagery should fit
into existing moral categories of harms or wrongs in order to protect that
particular individuals moral values.
The murder of Jane Longhurst by Graham Coutts in 2003 provided the initial
impetus for the passing of legislation that actively defines pornographic materials.
Coutts murder trial drew national interest, particularly in the prosecutions case that
Coutts possessed and watched internet violent pornography, especially materials
depicting necrophilia and asphyxiation (see for example, Sapsted 2004; Morris 2004).
The Governments first response, in 2005, was to propose that it should be a criminal
offence to possess extreme pornography: images of rape and serious sexual
violence and other obscene material, including images of bestiality and necrophilia
(Home Office 2005, paras 3739). Its justification was to send a message that those
materials have no place in society as they might exacerbate problems of sexual
violence (2005, para. 34). The Criminal Justice and Immigration Bill received Royal
Assent on 8 May 2008, although Section 63 did not come into force until 26
January 2009.
The CJIA 2008 defined an extreme pornographic image under Section 63(2) as
an image that is both (a) pornographic, and (b) an extreme image. The definition of
the term pornographic is set out in Section 63(3) of the 2008 Act as one which must
reasonably be assumed to have been produced solely or principally for the purpose
of sexual arousal. Section 63(1) states: It is an offence for a person to be in

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possession of an extreme pornographic image. An extreme image is defined in

Section 63(6)(b) as grossly offensive, disgusting or otherwise of an obscene
character. An image may additionally be considered extreme if it falls foul of
Section 63(6)(a), which states that an image is extreme if it falls within Section 63(7).2
Significantly, for the first time, the consumer as opposed to the producer is
criminalized (although not in the context of child pornography). Under the OPA,
it is irrelevant that the person into whose hands the publication may fall may already
be corrupted; rather, its aim is to protect the less innocent from further corruption,
the addict from feeding or increasing his addiction (see DPP v Whyte [1972] 3 All
ER 12).
The CJIA 2008 makes it clear that just because an image has a sexual dimension
does not mean that it could reasonably be assumed to have been produced solely or
principally for sexual purposes. Whether this particular threshold has been met will
be an issue for the magistrate or jury to determine simply by looking at the image. It
is not a question of the intentions of those who produced the image, nor is it a
question of the sexual arousal of the defendant. Where an individual image is held in
a persons possession as part of a larger series of images, the question of whether it is
pornographic will be determined by reference both to the image itself and also the
context in which it appears in the larger series of images.
The Section 63 CJIA 2008 assumes that viewing extreme pornography may
encourage or reinforce interest in violent and aberrant sexual activity to the
detriment of society as a whole (Home Office 2005, para. 9). This was despite the
fact that the governments own consultation document had stated that there was no
evidence of a link between violent pornography and sexual crime. Indeed, in the
original consultation, the question asked by the government acknowledged this by
asking: In the absence of conclusive research results as to its possible negative
effects, do you think that there is some pornographic material which is so degrading,
violent or aberrant that it should not be tolerated? (2005, para. 31), indicating that
in this instance, at least, policy is not made on the basis of evidence.
In so doing the government introduced a piece of legislation based upon the
assumption of a causal link, actively participating in the creation of a regime of
truth. Research commissioned by the Home Office (termed the Rapid Evidence
Assessment, Itzin et al. 2007) found only tenuous links between watching extreme
pornography and the commission of sexually violent acts. In the constant rehearsal
of arguments for the legislation that such materials were distasteful, horrific and
had no place in a decent society, it was clear that the desire to censor extreme
pornography was clearly premised on notions of taste (Carline 2011, 322). The
problem with notions of taste, of course, is that they are concerned with legislating
for appropriate expressions of sexuality (2011, 325).
Regardless of whether the publisher or the possessor is targeted by the legislation,
what is clear is that the CJIA 2008 and the OPA 1959 target the possession and/or
publication of certain kinds of unacceptable sexual imagery and activities.
Furthermore, in so doing not only are the legislators and the courts engaging in
the creation of a regime of truth, they do so because they see themselves as the
guardians of public morality, with courts having the power to enforce the supreme
and fundamental purpose of the law, to conserve not only the safety and order but
also the moral welfare of the State (Shaw v DPP [1961] AC 220). In addition, it is
not merely that the legislators and courts set themselves up as moral guardians, but

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that they do so with (often) unquestioned reference to subjective morality that then
subsequently justifies the criminalization of those individuals who possess and/or
publish the kinds of imagery portraying sexual activity falling outside the heterosexual paradigm. As Attwood and Smith point out:

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As some images and practices previously associated with porn and obscenity become
recategorized as chic, cool or unremarkable, others are relegated to the realm of the
taboo. And increasingly, obscenity is refigured. [I]t is now imagined in relation to
perversity. (2010, 186)

Arguably, therefore, legal provisions have a disproportionately negative impact on

those who engage with alternative forms of sexual expression. The CJIA 2008
attempted to re-focus the legal gaze upon those who access extreme materials. It
is, of course, impossible to know how many people actually access this material:
the government originally estimated that the legislation would impact on an
extremely small number of individuals, about 30 per year (Myles Jackman and
The Ministry of Justice quoted in Williams 2009). However, the actual number of
prosecutions has been significantly higher than this. Between July 2008 and
November 2011 there were 2236 cases of possession of extreme pornography that
reached a hearing. The majority of these charges related to possession of images of
bestiality, and in 2011 alone there were 1337 such prosecutions (CPS 2012a).
Representations of non-normative sexualities have long been the subject of
legal regulation and control. For example, the 1928 book The Well of Loneliness
by Radclyffe Hall was declared obscene under the (then) common law test for
obscenity set out in R v Hicklin ([1868] L.R. 3 Q.B. 360), and subsequently
banned. The (then) Attorney General, Sir Thomas Inskip, described the book as
obscene (cited in Brittain 1968, 123124). The resultant publicity surrounding
the publication and prosecution of the book brought the subject of lesbianism to
very public attention. A Home Office memo circulated at the time stated that It
is notorious that the prosecution of The Well of Loneliness resulted in infinitely
greater publicity about lesbianism than if there had been no prosecution (BBC
News, October 2, 2005). As Robertson observes, the banning and/or prosecution
of that which is deemed to be obscene provides a rich and comic tapestry about
the futility of legal attempts to control sexual imagination (1993, 213).
In utilizing Foucault to analyze the legal regulation of pornography, I am
seeking to:
account for the fact that it is spoken about, to discover who does the speaking, the
positions and viewpoints from which they speak, the institutions which prompt people
to speak about it and which store and distribute the things that are said. (Foucault
1978, 11)

As Foucault noted: what is peculiar to modern societies, in fact, is not that they
consigned sex to a shadow existence, but that they dedicated themselves to speaking
of it ad infinitum, while exploiting it as the secret (1978, 35; original emphasis). In
this sense, the twenty-first century is not dissimilar from the nineteenth century:
pornography is always being talked about it is rarely out of the newspapers, and
constantly portrayed or discussed on television and radio, and the internet (see, for
example, BBC News 2013b; Withnall 2013; The Telegraph 2013). A Foucaultian

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analysis therefore suggests that it is the ever-present discourse surrounding the

pornography problem which brings the problem into existence. As Butler notes, the
legal limitation of pornography acts to propagate the very problem it seeks to
outlaw, and is doomed to failure because:

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[T]he very rhetoric by which certain erotic acts or relations are prohibited invariably
eroticises that prohibition in the service of a fantasy. (1997, 96)

Butler suggests we should seek less legal regulation of pornography because this
would result in less repetition of accepted norms of sexual expression and
representation, and consequently of gendered identities. To constantly reiterate is
to accept pre-conceived notions of identity. Repeated attempts to control or legislate
for extreme pornography bring extreme pornography into existence. When the State
focuses its attention on the need to reform the law (yet again) relating to
pornography, that truth becomes a certain type of speech the speech of the
law (Butler 1997, 96). The speech of law acts as a form of censorship,
simultaneously constituting and constructing the subject, producing subjects
according to explicit and implicit norms (1997, 113). Thus, the State does not
simply censor or limit speech; rather, in the moment of censorship or limitation, it
generates the speech that matters legally (Lloyd 2007, 129). If discourse can bring
the problem of pornography into existence, and a repetition of speech acts can result
in the repetition of accepted norms, what might this imply for the sexual expression
of same-sex sexualities?

Implications for same-sex pornography?

One of the many questions that legal regulation poses for same-sex pornography is
whether such pornography can act as a site of resistance to dominant heterosexual
ideology or whether it merely repeats and imitates patriarchal heteronormativity. In
Excitable Speech, Butler argues that there is the possibility that the speech acts
concerned have the potential to perform alternative meanings (1997, 113). Others,
such as Weeks, suggest that pornography can be empowering; that lesbian and gay
pornography offers images of desire which a hostile society would deny, and
therefore it offers a real encouragement for a positive sense of self (1985, 325).
Henderson agrees, arguing that lesbian pornographies may in and of themselves
constitute acts of resistance against heteropatriarchal hegemony (cited in Munt
1992, 178). Stoltenberg, on the other hand, argues that pornography perpetuates
the very subordination and domination that stand in the way of sexual justice, and
that all pornography whether heterosexual or homosexual is homophobic,
imbued as it is by notions of patriarchal misogyny (1990, 113). Stychin takes a
slightly different approach, suggesting that some commentators seem unable to
engage in any kind of reading of gay male pornography, other than through the
lens of degradation: Gay male porn is condemned because it represents a
transgression to the laws of male power (1995, 90). Could it be that the
prosecution of Michael Peacock represents the heteropatriarchal desire to prosecute
alternative sexual orientations?

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Section 1 of the OPA 1959 states that:

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an article shall be deemed to be obscene if its effect is, if taken as a whole, such as to
tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.

According to R v Penguin Books ([1961] Criminal Law Review 176 and 177),
deprave means to make morally bad, to debase or to corrupt morally, and
corrupt means to render morally unsound or rotten, to destroy the moral purity or
chastity, to pervert or ruin a good quality; to debase; to defile. Importantly, what is
required is to examine the effect of obscene articles on the mind. The OPA 1959 does
not effectively define what constitutes obscene, relying instead on the common law
understanding as devised in R v Hicklin (1868).
The prosecutions case in R v Peacock (2012) was that the material could
deprave and corrupt those who came into contact with it; that Peacock had not
concerned himself with the identity of his buyers and that an innocent individual
might buy one of the DVDs expecting something akin to Brokeback Mountain and
find themselves inadvertently inspired to engage in a bout of fisting instead (Ashford
2012b). Although the CPS guidance states that it is impossible to define all types of
activity which may be suitable for prosecution they nevertheless produced, in 2012,
a curiously arbitrary list (Ashford 2012b) of material they most commonly
prosecute, including:
. sexual act with an animal;
. realistic portrayals of rape;
. sadomasochistic material that goes beyond trifling and transient infliction of
injury;
. torture with instruments;
. bondage (especially where gags are used with no apparent means of withdrawing consent);
. dismemberment or graphic mutilation;
. activities involving perversion or degradation (such as drinking urine,
urination or vomiting on to the body, or excretion or use of excreta); and
. fisting.
This list of material likely to be prosecuted under the OPA now more closely
resembles the list of activities prohibited under Section 63 of the CJIA (CPS 2012a).
The conduct of the trial itself is a further illustration of how discourse produces a
regime of truth. The trial consisted of many explicit explanations of various sexual
techniques and positions it had to, for the question of whether such acts were likely
to deprave and corrupt and were therefore obscene were questions of fact and could
only be answered by the jury. By bringing the prosecution, it was inevitable that such
explicit discussions would take place in court effectively engaging in a discussion of
whether the particular representation was normal or not, the State inadvertently
opened up a space where descriptions of these acts were to be discussed in public. At
some point during the preparation for the trial, the lawyers for the defence and

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prosecution made choices as to which expert witnesses would be called, what

material was to be brought in to court, and what would be shown to the judge and
jury. The prosecution had decided that limited scenes from the various DVDs on the
charge sheet would be shown to the jury; the defence made an application that the
full footage should be shown and that a glossary of sexual terms, including
experienced bottom (which had to be explained to the Recorder), should be
offered; as well as calling expert testimony to explain some of the sexual acts
portrayed on the DVDs. These included detailed discussion of fisting and the legal
significance of depictions of penetration of hands into the anus or vagina (four
fingers are permitted under British Board of Film Classification rules, while five are
not). The discussion in Court was not about sex, per se, but rather about the
portrayal of certain types of sex acts, and the acceptability or otherwise of those
depicted acts. Thus it would seem that the law cannot decide whether saying is
doing, or doing is saying (Salih 2002, 110). This is exemplified by the fact that,
notwithstanding the fact that all of the sexual acts portrayed in the DVDs were legal
(including some BDSM activities), the prosecution was brought because the CPS
considered the depiction of those sexual acts was obscene and therefore illegal.
A useful comparison to make here might be the prosecution in the case of R v
Brown ([1994] 1 AC 212). The facts of this case are well known. A group of gay men
engaging in consensual BDSM were charged and convicted under Sections 47 and 20
of the Offences Against the Person Act 1861 for engaging in sado-masochistic
practices. The House of Lords decided that, by a three-to-two majority, consent was
not a valid defence to actual bodily harm incurred during BDSM sex. The conviction
was upheld by the European Court of Human Rights (see Laskey v UK [1997] 24
E.H.R.R. 39). It remains the case that in England and Wales there is no defence of
consent to injuries in the course of BDSM activities. Indeed, the government cited
R v Brown (1994) as justification for criminalizing images of consensual acts in its
proposals for the CJIA (see McGlynn and Rackley 2007). The judgement in R v
Brown exemplifies what Rubin describes as the characterization of sex acts
according to a hierarchical system of sexual value in which BDSM practitioners
constitute a despised sexual caste (in Vance 1984, 279). Consequently, as she
argues, those sex acts revealed by the House of Lords in R v Brown are constructed
as utterly repulsive. Such an approach allows the House of Lords to dismiss the
idea of consent as irrelevant; it ceases to be of overriding or even of primary
importance because some sex acts are considered to be so intrinsically vile that no
one should be allowed under any circumstances to perform them (Rubin cited in
Vance 1984, 291).
In both R v Peacock (2012) and the similar case R v Walsh (unreported, Kingston
Crown Court, 8 August 2012), the Prosecution made similar arguments. In R v
Walsh the prosecution was made under Section 63 of the CJIA. The trial of Simon
Walsh, a successful barrister, City of London alderman, magistrate and Mayor of
London appointee to the London Fire Authority, is believed to be the first to address
in Court whether images of anal fisting, a sexual practice that is legal, and urethral
sounding are extreme pornography. Charged with five counts of possession, the jury
took 90 minutes to unanimously find Walsh not guilty. Had he been found guilty he
would have faced three years in custody and inclusion on the sex offenders register.
The CPS rationale for bringing the prosecution was not about the practice itself, but
was based on the evidence of medical experts who said the way the acts were

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performed was likely to cause serious injury or harm (CPS spokesperson quoted in
Allen Green 2012). It is easy to see in this context the overtly Foucaultian
medicalization of sexual practices. Medical discourses also construct regimes of
truth and are part of the regulation and surveillance of bodies that construct truths
about bodies which are perceived as normal and sick bodies which are deviant.
Once a body or a sexual practice has been placed under the clinical gaze, it becomes
legitimate to then diagnose and treat that deviant body (Foucault 1973, xix).

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Some conclusions
Both the OPA 1959/1964 and the CJIA 2008 make claims to truth regarding
acceptable sexual activity and the portrayal of sexual activity. The repeated
attempts by law to control or legislate that which is obscene or (extremely)
pornographic bring the notions of obscenity and extreme pornography into
existence. I suggest that both statutes were never fit for purpose, even when brand
new. The unsuccessful prosecution of Michael Peacock and Simon Walsh exposed
the legislation surrounding both obscenity and pornography as unnecessary, out of
date and completely ill-equipped to address the problem(s) it set out to address. With
regard to the OPA 1959/1964, I would suggest that this is largely because it makes a
crime of publishing material that features sexual acts which are not illegal in
themselves. This view was also taken by Myles Jackman, the solicitor who acted for
Peacock, who stated after the trial that:
This could be the final nail in the coffin for the Obscene Publications Act in the digital
age because the jurys verdict shows that normal people view consensual adult
pornography as a part of everyday life and are no longer shocked, depraved or
corrupted by it. (BBC News, January 6, 2012)

However, the problem goes further than just a question of whether the OPA
1959/1964 and the CJIA 2008 are fit for purpose. The norms contained within these
statutes as to what constitutes acceptable pornography (heterosexual) and unacceptable pornography (homosexual) can be seen in the decision to prosecute Peacock
and Walsh both gay men. The decision to prosecute was arguably not so much a
matter of overt homophobia on the part of the police and the CPS, but rather a
matter of heteronormative compliance. Thus the CPS and the police are not only
active participants in constituting the regime of truth of certain sexual acts by the
decisions they take, they also sustain and perpetuate these social constructions
(Walby and Smith 2012, 53). As Ashford notes, the decisions taken by the police
cannot simply be viewed as pro heterosexual or anti homosexual; rather, they
should be viewed as being made through the lens of heterosexual normality
(Ashford 2012a, 41). Whilst it might be a good thing that the OPA may be
reformed, the question of what might replace it should receive careful consideration.
One solution might be a harm-based test. Whilst it might be attractive to use a
harm-based test, this is not without its problems. The application of the harm test in
Canada has shown that this may very well be used to prosecute only alternative
sexual orientations. In R v Butler [1992] 1 S.C.R. 452 (Supreme Court of Canada)
the court applied Catharine MacKinnons theory that pornography is a form of hate
speech and therefore sex discrimination in agreeing that pornography is exploitation

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and that pornography inflicts harm on women (MacKinnon 1986, 85). However, as
the case of Little Sisters Bookshop and Art Emporium v Canada (Minister for
Justice) ([2000] 2 S.C.R 1120) suggested, the harm test was nevertheless used for the
targeting of lesbian and gay pornography; gay and lesbian materials were the first to
go (Green 2005, 476). It would therefore appear that gay and lesbian pornographies
have indeed been the focus of the laws attention. In the Little Sisters case, the
Supreme Court acknowledged that Canadian Customs officials had engaged in
unsubstantiated targeting on the basis of no substantial evidence and that the
activities of the customs official resulted in excessive and unnecessary prejudices
(Little Sisters v Canada (Minister of Justice) [2000], para. 154).
This is not to suggest, however, that reforming current law or introducing new
law would fix the problem. I would suggest that such an approach would be naive.
A Foucaultian approach suggests that as law operates upon a repressive model of
power (Taylor 2009, 19), resorting to more law in order to solve the problem of
pornography will quite possibly be counter-productive. If it is decided by the
government to reform the OPA 1959 and the CJIA 2008, what is likely to replace it?
Given what I have argued above, it is highly likely that any legislative reform will be
based upon morality, whether overtly or otherwise. The Criminal Courts and Justice
Bill 2014 provides just such an example. Clause 16 of The Bill proposes to extend the
current offence of possession of extreme pornography to include possession of
pornographic images depicting rape and other non-consensual sexual penetration.
Clause 16 is clearly aimed at realistic depiction of rape in pornography. Anyone
caught in possession of such images or video and convicted will face a prison
sentence of up to three years and/or a fine. There are many aspects of this proposed
legislation that should be subject to critical comment. For example, there is a lack of
clarity as to what is meant by realistic. What is thought to be realistic will be
covered in the explanatory notes (another minefield), but it would appear that if the
acting is terrible and the scene unrealistic or it is clear that the actors are following a
script, this will not constitute realistic and will thus not be criminal. A further
concern regards the recent approval by the Joint Committee on Human Rights,
which welcomed Clause 16 as human rights enhancing and who also considered it
to be a proportionate restriction on individual rights (14 May 2014, para. 3[1.50]).
The Joint Committees approval was justified on the basis that rape porn can
constitute cultural harm (McGlynn and Rackley 2013). The chair of the Joint
Committee on Human Rights, Hywel Francis MP, stated that such pornography
contributes to a culture in which violence against women is condoned. The Criminal
Courts and Justice Bill 2014 represents an example of more law that is likely to fail
to address the ongoing problem of heterosexual repressive regimes of truth about
sexual expression classified as either pornographic or obscene. It thus presents a
retrograde and repressive development in this area of law.
Notes
1. Other examples include R v Penguin Books Ltd (1961), where the defendants were charged
with publishing an obscene article (Lady Chatterleys Lover) - they pleaded not guilty and
were ultimately acquitted; R v Calder and Boyars ([1969] 1 QB 151), where the Court of
Appeal quashed the conviction against the publishers of the book Last Exit to Brooklyn due
to the absence of proper trial directions by the judge at first instance; and R v Anderson,
Neville, Dennis and Oz ([1972] 1 QB 304), the prosecution of the publishers of Oz magazine,

388

S. Beresford

where the convictions were overturned on appeal after the Court of Appeal found that the
trial judge had misdirected the jury.
2. Section 63(7) defines an image as falling within Section 63 if it portrays, in an explicit and
realistic way, any of the following:

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(a) an act which threatens a persons life,

(b) an act which results, or is likely to result, in serious injury to a persons anus, breasts
or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or
alive), and a reasonable person looking at the image would think that any such person
or animal was real.

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