Catherine Scott. To Deprave and Corrupt: Obscenity Battles in British Law and Culture. Jefferson: McFarland, 2019. 199 pp. $29.95 (paper), ISBN 978-1-4766-7283-0.
Reviewed by Michael Laminack (University of Denver)
Published on H-Socialisms (March, 2020)
Commissioned by Gary Roth (Rutgers University - Newark)
British Obscenity Laws
What are “obscenity laws,” what is “obscene,” and who gets to define “obscenity”? The late Catherine Scott, who sadly passed away in 2018, pursues these questions in To Deprave and Corrupt: Obscenity Battles in British Law and Culture. While the title and topic might suggest a dense discourse rife with legal jargon, Scott instead offers a consistently witty yet thoughtful analysis of law and culture. As Scott describes, To Deprave and Corrupt developed out of research for an article, but what she needed “was one up-to-date book explaining how Britain’s stance on obscenity had started with the original 1857 OPA [Obscene Publications Act] and ended with today’s lengthy list of banned acts, most of them sexual,” but she “could not find it” (p. 3). This book fills that gap in the literature, providing a history of British obscenity laws, along with Scott’s insightful analysis of how those laws impact individuals. Though Scott’s writing style remains open to non-academic audiences, her analyses offer significant insights into ethics, political theory, and cultural theory.
To Deprave and Corrupt provides simple and highly informative guides to the legal history of obscenity in the UK (and the United States, in chapter 7). These guides include diagrams (illustrated by Emily Brady and other artists) that track British obscenity laws from the 1857 OPA (or Campbell’s Act) to the present-day Digital Economy Bill (2017). Scott explains that “the 17th-century definition of ‘pervert’ was ‘an atheist,’” and “before the original OPA passed in 1857, ‘expression, however lascivious or pornographic, was still deemed outside the purview of the law, so long as it was not seditious, heretical, or blasphemous’” (p. 37). The definition of obscenity, or what makes one a “pervert,” underwent drastic changes between the seventeenth century and the codifying of obscenity laws in the nineteenth. Scott traces the history of pornography with respect to obscenity laws from the reign of Queen Victoria (which surprisingly enjoyed lax restrictions on pornographic material) through the conservative outcry against pornography that produced the 1857 Obscene Publications Act. In 1868, Regina v. Hicklin codified interpretation of the OPA with the “Hicklin Test,” which declared that “An Article shall be deemed obscene if it … tend[s] to deprave and corrupt persons who are likely … to read, see or hear the matter contained within it” (p. 20). Despite (or perhaps because of) its vagueness, “the Hicklin Act would remain unchanged through the 20th century. It would be reinforced in 1959 and slightly altered in 1964, but the crucial tenet—‘a tendency to deprave and corrupt’—would persist” (p. 90).
Scott interrogates the Hicklin Test, with particular focus on how the vagueness of its language allowed for unintended policing of erotic images, and, ultimately, discriminatory practices and laws targeting marginalized communities. The mere word “lesbian” was so obscene that British lawmakers avoided the word for fear of the effect it would have on listeners. As Scott suggests, “Look through British history and you could be forgiven for thinking that LGBT women never walked this green and pleasant land until the 21st century” (p. 80). While lesbian women were completely effaced in legal history, gay men received uneven treatment. While “the year 2017 marked the 50th anniversary of the Sexual Offences Act in Britain, a landmark ruling that legalized homosexual acts between men aged 21 and over” (p. 142), this ruling did not immediately have the intended results, as “the new law prompted a short-term backlash; during the early 1970s, prosecutions of gay men for indecency went up, not down” (p. 144). Decades later, “Margaret Thatcher’s Conservative government introduced the most nakedly homophobic piece of legislation of the 20th century” when “Section 28 passed with the UK government’s full support in May 1988” (p. 87). Scott explains, “This law prevented schools and local councils from ‘promoting homosexuality’ or portraying it as ‘acceptable … as a pretended family relationship’” (p. 87).
British obscenity also affected law in the United States, helping to develop uniquely American obscenity laws. Scott mocks “Alabama’s Anti-Obscenity Enforcement Act of 1998—born not of archaic Victorian standards, but rather the era of Sex and the City, Ally McBeal and watching porn via an agonizingly slow dial-up connection” (p. 124). The history of such laws, however, traces back to British obscenity laws. The United States followed the UK by adopting the 1857 OPA, and they likewise emulated British lawmakers in publicly banning works like Fanny Hill and Lady Chatterley’s Lover. British obscenity laws also encouraged the career of Anthony Comstock, a “frothing religious zealot” who, “using the Campbell Act, plus the Hicklin Test, as his justification … appointed himself a special agent for the US post office and wreaked havoc on American freedom of communication in the late 1800s” (p. 127). The US government fully supported Comstock’s mission against obscenity. Accordingly, “by 1873, the Comstock Act had banned anything ‘of an indecent character’ from being sent through U.S. mail, including not just erotica but information on contraception and contraceptive devices themselves” (p. 128). The Comstock Act severely limited the distribution of pornography, but it also impacted women through the denial of contraception in an age when women often died in childbirth. Beyond the Comstock Act, “Congress enacted 20 different obscenity laws between 1842 and 1956; by that point, all 48 states had some type of law regarding this shape-shifting concept” (p. 131).
Scott’s analysis brings attention to the people affected by the laws enacted by the UK and US governments. Every obscenity law impacts people’s lives, sometimes in unintended, but nonetheless destructive, ways. In a passage that demonstrates Scott’s incendiary wit, she explains that “not only did Comstock stop women from preventing the unwanted pregnancies that were killing and impoverishing them, he actively caused deaths. At least 15 of the women charged under Comstock’s law committed suicide rather than face the public shame of a trial. But hey, what’s a little collateral damage when you’re on a divinely sanctioned mission to prevent wanking?” (p. 129). The life-and-death consequences of sexual shame continue to the present day. Scott highlights these consequences by arguing against the Digital Economy Bill, which “demands that all UK websites showing adult content have age-verification software in place” (p. 19). This software is not only a significant financial burden (which pushes smaller companies out of business), but it also endangers users’ personal information. Scott argues, “We only need look at what happened when the ‘have an affair discreetly’ website Ashley Madison had its user base hacked in 2015,” which resulted in “several suicides” (p. 20). Later in the book, Scott references a number of similar instances throughout history, such as Mary Millington, “one of UK porn’s unsung early stars,” who committed suicide after harassment by the “obscenity police;” “Arnold Lewis, a Welsh preacher who killed himself in 1978 after the News of the World exposed him as a swinger;” and Ben Stronge, who committed suicide in 1992 when the same publication also outed him as a swinger (p. 104). Scott furthermore describes how the negative perception of gay men exacerbated the AIDS crisis in the 1980s, as lawmakers understood AIDS as “a disease spread (and deserved) by promiscuous gay men” (p. 146).
One of Scott’s objectives is to combat popular arguments against “obscenity.” Perhaps the most pervasive of such arguments is that children will be corrupted by pornography without extreme restrictions. Studies supposedly proving this argument have a questionable track record. For instance, “A 2015 National Society for the Prevention of Cruelty to Children (NSPCC) survey claimed that 10 percent of 12- and 13-year-olds were worried that they were addicted to pornography,” but the survey is “no longer available on the NSPCC’s website, and that’s because it’s findings were completely debunked” (p. 60). Another oft-repeated claim, that “the average age at which a boy first sees pornography is 11 years old,” was debunked by “American journalist Seth Lubove,” who “traced this claim back to its origins, [and] found it had none” (p. 60). Furthermore, OfCom (the UK regulatory body currently tasked with enforcing online censorship laws), in its “own statement on the issue admits they have found no evidence of a link between seeing porn and harm for children” (p. 62). Scott likewise contends with arguments against BDSM activities by emphasizing the norms and practices of the BDSM community. Scott explains, “Safety and first-aid training are regularly discussed and reinforced in the BDSM community. Players do not carry out any acts of violence without first being certain that they can do so without causing permanent injury” (p. 30). In another, more humorous instance, Scott describes how when she mentioned writing about UK obscenity laws, “a standard response from my peers was ‘Oh yeah, you can’t show a hard-on on telly, can you?’ Actually, you can, and what’s more, you always could. There is no record of any rule since the 1959 OPA that states it is obscene to show an erection on TV, in movies, in magazines or in books” (p. 113). With respect to obscenity laws, misconceptions and false information abound, despite the dire consequences they often entail.
At the outset, Scott articulates her positionality and the political aim of the book. She describes herself as “a feminist writer specializing in gender, sexuality, and how those two things translate into the granting or withholding of rights” (p. 4), and later specifies that she is a “white, straight, cis writer,” who seeks to share her “platform with those who aren’t afforded the same privileges” (p. 167). Scott asserts that “this book aims to walk the middle path between a discourse that mandates nothing less than absolute personal freedom and one that advocates censorship in the name of protecting women and children” (p. 8). Scott’s middle path draws from feminist principles as well as queer and postcolonial theory. In this vein, the book “explores who is most regularly afforded the right to speak publicly and why,” as well as “whose sexuality is approved and represented in the British legal system,” “whose bedroom preferences are most likely to be hushed up or denounced,” and “which bodies are regularly served up for consumption by the dominant media and which bodies are permitted a degree of privacy” (p. 10). Thus, while Scott presents the legal history surrounding obscenity laws, she constantly returns to the political and material implications of that history. Obscenity laws may appear like an arcane topic disconnected from real-world consequences, but they in fact offer a window into crucial areas of political and cultural theory.
An intriguing implication of Scott’s analysis is how the language she employs seems to mirror the language of Carl Schmitt’s decisionism. Scott concludes the book by stating, “I hope it has opened your eyes to the silent ways in which speech and sexuality can be restricted, and at times made you angry at how often governments, the media and even the medical establishment have illegitimately claimed the right to say who is a sick pervert and who is an upstanding citizen” (p. 176). The definition of obscenity, as codified by law and/or disseminated through media, determines the internal enemy who must be conquered, or at least policed. Such a determination of the dangerous pervert “reassure[s] the public that the enemy is identifiable and can easily be brought down, when even a passing acquaintance with how government, big business and the financial markets function demonstrates that this is not the case” (p. 172). Political theorists might consider the role obscenity laws play in the determination of the “other,” and how those laws express and reinforce power imbalances in society.
With respect to ethics, Scott’s feminist approach undergirds her consistent, if understated, ethical position throughout the book. She clarifies her ethical stance with the hyperbolic statement “I would happily set fire to anyone who ever violates another human’s bodily autonomy” (p. 63). Scott makes this statement to distance her defense of BDSM practices from any kind of sexual abuse, particularly of children. Again, the middle path Scott hopes to walk does not exclude an ethical limit, and that limit is the “violation of another human’s bodily autonomy.” Unfortunately, Scott does not emphasize this conviction throughout her analysis, though it remains subtly consistent throughout the discourse. As Scott argues, “disgust, discomfort and anger are all common responses to material that we find offensive or simply weird, but it is a massive leap from these emotions to claiming harm has taken place” (p. 12). Despite its relative understatement in this book, Scott’s ethical position and her brief references to consent provide pathways for further reflection and application to current cultural and legal debates.
Although Scott presents a convincing argument with fascinating implications, her argument nonetheless contains some weak points wherein she relies upon underinterrogated assumptions and axiomatic claims. For example, in her framing of BDSM and role-playing practices, Scott asserts that “the transgression is exactly where the thrill originates; human beings will always get a kick out of playing with the forbidden” (p. 24). Later, Scott describes “the eternal pull of the forbidden fruit, and every human being knows what it feels like” (p. 57), and again that “human beings are curious; they try new things” (p. 100). These are broad assertions about human psychology that do not necessarily square with empirical evidence. Of course, many people feel the pull to transgress and try new things, but certainly many other people feel a countervailing impulse to uphold traditional values and deny themselves transgressive experiences. The philosophies of Michel Foucault, Gilles Deleuze, and Félix Guattari convincingly argue that desire (and power) flows equally in repression as in transgression. The occasional unquestioned assertions do not detract from Scott’s thesis, but they are weak points that invite counterargument, and they could certainly benefit from further theoretical reflection (or perhaps a citation or two).
Despite its weaknesses, Catherine Scott’s To Deprave and Corrupt offers an extensive, yet approachable, analysis of British obscenity laws and how they impact society and culture. Scott’s research provides the data and resources for further reflection, and her witty commentary offers an enjoyable entrée into weighty philosophical themes.
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Michael Laminack. Review of Scott, Catherine, To Deprave and Corrupt: Obscenity Battles in British Law and Culture.
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