Obsceneperformative Pornography: a Critical Reflection on R V Peacock 2012 and the Legal

ObscenePerformative Pornography: A Critical Reflection on R v Peacock[2012] and the Legal Construction of Gendered Identities’

Dr Sarah Beresford*

Key words: Pornography; Law; Discourse; Gender; Obscenity, Butler; Foucault.

Abstract:

How are the concepts of obscenity and (extreme) pornography‘produced’ and who is the ‘producer’? The failed prosecution in R v Peacock2012, (unreported), again exposesthe law as being based upon (subjectively defined attempts) to protect both public and individual morality; ensuring that people do not become ‘depraved and corrupted’ by the pornography they see and hear. The Obscene Publications Acts of 1959 and 1964, and the Criminal Justice and Immigration Act 2008, base the idea of criminality upon normalised notions of ‘appropriate’ pornography and ‘appropriate’ sexual expression that continue to underpin current law.

A Foucaultian analysis would suggest that continuing to regulate pornography and obscenity through the lens of morality;it is the lawitself which is the producer and creator of these concepts. If this is so, then law is exposed as continuing to perpetuateideas of ‘acceptable’ identity expression. Using Michael Foucault’s ideas on ‘truth’ and ‘knowledge’ and Judith Butler’s theories of perfomativity, this article suggests that the decision to prosecute Peacock was in and of itself, an act of production, creation and ‘performativity’ (Butler) which contributes to the ‘regime of truth’ (Foucault) about pornography and obscenity.[1]

*Lecturer in law at Lancaster University

Introduction

This article engages with the notion of the power of legal discourse in shaping our understandings of acceptable sex and sexuality; ideas which are particularly current given the recent cases such asR v Peacock (Crown), unreported (2012)[2]; Part 5 of the Criminal Justice and Immigration Act 2008 (CJIA 2008) and the recent statements made by the current Government of the ‘dangers’ of pornography.[3] This article therefore questionsthe extent to which legal discourse constructs pornography and explores how this construction is influenced and supported by perceptions of appropriate expressions of gendered and sexual identities. It will make use of some of the work of Michael Foucault to explore the extent to which law operates upon what Foucault terms a repressive model of power[4], resorting to ‘yet more law’ in order to ‘solve’ the problem of pornography. I conclude by suggesting that quite the reverse happens – the ‘problem’ of pornography is not solved and that in seeking to solve a problem, law actually creates more of that which it seeks to repress and control. I will explore whether the decision to investigate and subsequently bring a prosecution in the Peacock case, constitutes what Foucault would terms a ‘regime of truth’ and by so doing, thereby sustains and perpetuates these social constructions of gendered and sexual identities.[5] The idea that legal discourse creates pornography as a regime of truth will be further explored using Judith Butler’s formulation of the idea of ‘perfomativity’[6] and ‘speech acts’[7].

Thus, this article will question how concepts such as obscenity and (extreme) pornographyare produced. It will explore the notion that the censorship and/or regulation of these concepts generate speech that matters and creates a regime of truth about the portrayal of which particular sexual acts are acceptable or not. In the context of extreme pornography, I will suggest that as the legal concept of ‘extreme’ pornography did not exist until introduced by The CJIA 2008; the law itself is the creator and producer of extreme pornography. A concept closely linked to pornography, is of course that of obscenity, andThe Obscene Publications Acts of 1959 and 1964 (OPA) are similarly responsible for the creation and production of obscenity and the accompanying ‘truth(s)’ surrounding it. Although differing in focus, all three statutes interlink with one another and they continue to base the idea of criminality upon normalised notions of ‘appropriate’ sexual expression. The main differences between ‘pornography’ and ‘extreme pornography’, lie in the fact that the CJIA 2008 specifically targets those who possess or own extreme pornography[8], whilst the Obscene Publications Act 1959 targets the publication of material regarded as obscene.[9]

To what extent therefore do the laws relating to pornography (whether extreme or not), and the attendant notions of obscenity, continue to underpin and reinforce the socio-legal constructed concepts of gendered identities? Could it be that thefailed prosecution in R v Peacockrevealslaw as a ‘producer’ of obscenity and/or (extreme) pornography?

The Role of Discourse

I start with the idea that in a Foucaultian sense, both law and pornography represent discourses that continually attempt to produce both ‘truth’ and ‘meaning’. These discourses, in turn, normaliseand privilege particular constructions of gendered and sexual identities.[10] Generally speaking, ‘law’ is about controlling behaviour(s); law seeks to promote; condemn; privilege; prohibit (and so forth), certain types of behaviours. Specifically, criminal law also seeks to control certain behaviours; it is a social normative system which operates by setting down ‘standards of conduct and by enforcing in distinctive ways, those substantive standards or norms.’[11]Criminal law makes a ‘number of normative claims’,[12] leading to a ‘troubling set of assumptions about male and female sexuality’.[13] One implication of a morality based approach is that far from being a politically neutral framework, the criminal law and its processes ‘consolidate and reproduce aspects of social relations at a formal institutional level’ and that the criminal law and its related processes ‘need to be understood in the context of a network of actions, structures and ideologies which reinforce and reveal the nature of patriarchal relations’.[14] Not only does law continue to consolidate and reproduce social relations generally, it does so with specific reference to material regarded as either ‘obscene’, ‘pornographic’, or both. Therefore law represents discourse which is more than ‘just’ language. As Foucault suggests, discourse can be viewed asa system of practices and institutions which define and shape both the physical world and the physical body.[15]Any subsequent ‘meaning’ attributed to a physical body is therefore discursively and perhaps more importantly ever changing.

For Foucault, discourse ‘is a group of statements which provide a language for talking about a particular topic at a particular historical moment.’[16] In other words, it is the discourse, which constructs the topic; the discourse defines and produces the objects of knowledge. Therefore subjects like ‘pornography’, or ‘obscenity’ only exist meaningfully within the discourses constructed about them. Thus pornography does not exist outside the ways in which it is already represented within socio-legal discourse – the ‘knowledge’ of it is produced and regulated by the discursive practices of socio-legal discourse. Simply talking ‘about’ pornography or obscenity brings these concepts into existence. In other words, as Weedon suggests, discourse is the myriad ways;

[Of] constituting knowledge, together with the social practices, forms of subjectivity and power relations which inhere in such knowledges and relations between them. Discourses are more than ways of thinking and producing meaning. They constitute the 'nature' of the body, unconscious and conscious mind and emotional life of the subjects they seek to govern.[17]

Therefore pornography and obscenity be considered as discourse which constitutes the nature of the body. In addition, the legal regulation, laws and policies surrounding pornography and obscenity can also constitute discourse. Part of the discourse that creates a legally ‘acceptable’ body is arguably the existence of, and the discourse surrounding the notorious ‘Page 3’; sexist imagery in ‘ladsmags’; music videos and other areas of popular culture, which have the potential to impact on the way gender identities and acceptable sex are constructed. Yet the legal focus is on the ‘extreme’ end of the discourse, not the so-called ‘everyday’ mainstream discourse. The dangers of an exclusionary focus upon ‘extreme’ pornography indicate a failure to consider the potential wider impact of materials other than that which is considered to be pornographic. For example, in 2006, Tesco and WH Smith were forced to remove pole dancing kits[18], from their web site. However, although Tesco stated that it would be removed from the Toys and Games section of their web site, it would remain on sale as a Fitness Accessory.[19] There is still a consistent, systemic bias against women in the British press. Research conducted by several organisations (Object, Equality Now, Eaves and End Violence Against Women) found that this systematic bias against women and girls in the national press portrayed women and girls as one-dimensional sex objects. Their research monitored 11 national newspapers over two weeks in September 2012 and found that there was a persistent scrutiny of women's bodies and an increasing sexualisation of young girls.[20] In highlighting these negative portrayals, I am not seeking to establish a ‘truth’ of whether ‘page 3’ etc. does or does not cause harm, rather I am seeking to establish that it forms part of the discourse of what is, and what is not, acceptable identity.

These discourses legitimise and authorise a mode of sexuality and sexual expression which is presented as discourse which is ‘just sex’, but can also be viewed as, amongst other things, rape, sexual harassment, and hate speech.[21] It is clear then that pornography can constitute discourse in its own right, but pornography is also constituted by a myriad of discourses relating to social class, ethnicity, cultural social and political discourses and so forth. In other words, that which is depicted in pornographic films, books etc., not only constitutes discourse per se, but constitutes predictable stereotypical discourse. Much material that is either pornographic or obscene tends to typically depict women in ‘sexually submissive positions, in degrading circumstances,or as promiscuously wanton; it is produced primarily by men for men, constructing women’s bodies as objects for male use’.[22]

These repeated depictions constitute a Foucaultian discourse of truth and knowledge, not only in terms of how bodies are supposed to sexually interact with each other, but also in terms of how the repeated portrayals constitute a discourse of the body itself. Thus the repeated portrayals of sexual acts and sexualised bodies ‘borders on an obsession with authenticity and the reality ofthe depiction.Care is taken to assure the consumer that ... everything [the viewer] might expect to be true of the womenwho appear in pornography is very true’.[23] I am not of course suggesting that pornography ‘speaks the truth’, but if pornography can be thought of as presenting a Foucualtian regime of ‘truth’ about the nature of the body, it follows that the body in question is a body which is also constituted in very particular ways, most notably; it is constituted as a heterosexual body. That which is constituted as ‘acceptable’ pornography is pornography which is presented as heterosexual; pornography which is unacceptable pornography is presented as homosexual. Thus as Jackson rightly points out ‘ “realsex” is defined as a quintessentially heterosexual act, vaginal intercourse,and in which sexual activity is thought of in terms of an active subject and passive object’.[24]

The rationale in using Foucault to analyse the legal regulation of pornography is not to seek to uncover any ‘truths’ about pornography, (I doubt there are any), but rather as Foucault puts it, 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.’[25] In this sense, we as a society, continue to talk volumes about ‘it’, the pornography. However, the ‘it’ is a field of knowledge whose parameters have already been determined along fairly predictable lines, i.e. that of a heterosexual imperative. Further, the aim of the heterosexual imperative talking about pornography is neither to liberate the boundaries of the subject of pornography nor to question the subject of law. Rather, it is to control it, regulate it and to legislate (against) it. This is precisely what Foucault said of the discourse on sexuality in the 19th century, ‘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.’ (Original emphasis).[26] In this Foucaultian sense, the 21st century is arguably no too dissimilar from the 19th century. In many respects, pornography is ‘always’ being talked about – it is rarely out of the newspapers, portrayed or discussed on television and radio, and the internet.[27] This ‘presence’ is itself a discourse which produces an accepted ‘truth’ about the subject. Thus, although we as society are ‘always’ talking about pornography, the discourse is highly regulated along pretty familiar lines as mentioned above. Therefore Foucault’s methodological analysis of modern society as one of increasing surveillance,discipline, and control through the operation of bio-power, is a convincing methodological tool for analysing how ‘meanings’ and fields of knowledge such as ‘deviant’ pornography and obscenity come to be legally constructed and regulated. A Foucaultian analysis suggests therefore that it is the ever present discourse surrounding the ‘pornography problem’, which brings the problem into existence. The question of whether pornography is a harm or is harmful is not under direct consideration in a Foucaultian analysis. However, for some authors[28], not only does pornography does represent a harm, it perpetuates a ‘harm’ due tomasculine dominance and feminine subordination.[29] Under this reasoning, pornography is ‘about’ eroticising inequality of power. Consequently, pornography is the sexual exploitation of power relationships of dominance and subordination; its purpose is to pleasure the powerful and therefore, pornography in and of itself is powerful. Butler rejects this view of pornography as inherently powerful. Whilst acknowledging that there are some forms of hate speech that should be prevented, Butler argues that the legal regulation of pornography is a misdirected action as the ‘ritual chain of hate speech cannot be effectively countered by means of censorship’.[30] Therefore although pornography can be thought of as hate speech, it’s ‘power’ stems from the repetition of established norms. Butler is not therefore, in absolute terms, against any and all forms of censorship so much as she is concerned about highlighting some of the dangers of State regulation and control of sexualised imagery.For Butler, pornography is ‘phantasmic’,[31] and the ‘speech’ of pornography results in that which is ultimately unrealizable.[32] This means that any legal limitation of pornography acts to propagate the very ‘problem’ it seeks to outlaw and is doomed to failure because;

[T]he very rhetoric by whichcertain erotic acts or relations are prohibited invariably eroticises that prohibitionin the service of a fantasy.[33]

Instead of seeking to impose yet more legal limits, Butler suggests that we should instead seek less legal regulation of pornography arguing that avoiding legal regulation and limits on pornography would be subversive because it would result in less repetition of accepted norms of sexual expression and representation and consequently, of gendered identities. To constantly ‘reiterate’ is to impliedly accept pre-conceived notions of feminine and masculine identity. With regard to pornography and obscenity, a Butlerian analysis would suggest therefore that the nature of performativity brings into being that which it names. Repeated attempts to control or legislate for extreme pornography bring extreme pornography into existence. At this point in the discussion, the question might be raised to the effect that if there is a repetition, was there an original iteration? I suggest that this question is a distraction. It does not further our understanding of the legal regulation of pornography to ask about the ‘first’ law on pornography. Whilst we might be able to point to the first statue which dealt with pornography or obscenity, that statute was still based upon notions of what the law considers as constitutive of ‘normalcy’ and ‘appropriateness’, and such a statute can be argued to be a repetition of existing constructions of appropriate sexual expression. Rather, it is the continuing iterations, recitation and performativity that constitute the production of identity. Butler’s conception of ‘performativity’ is the idea that the ‘it’ is created when the idea of it is repeatedly performed. In the context of this article, the ‘it’ is pornography and obscenity. If something is repeated and performed enough times, it acquires the status of ‘truth’. 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’[34] The speech of law acts as a form of censorship, simultaneously constituting and constructing the subject, ‘producing subjects according to explicit and implicit norms’.[35] 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’.[36] If discourse can bring the problem of pornography into existence (Foucault), and a repetition of speech acts can result in repetition of accepted norms of feminine and masculine identity (Butler), what then, are some of the implications for the sexual expression of same-sex sexualities?

Implications for same-sex pornography?

As with the creation of the categories ‘pornography’ and ‘obscenity’, the categories of identities of ‘homosexual’ and ‘heterosexual’ are created by the very discourses that seek to regulate them. The idea of the ‘homosexual’ ‘as a specific kind of social subject was produced, and could only make its appearance, within the moral, legal, medical and psychiatric discourses, practices and institutional apparatuses of the late nineteenth century, with their particular theories of sexual perversity.’[37]

Pornography which doesn’t represent heteropatriarchal hegemony has long been made the subject of legal regulation and control. For example, TheWell of Loneliness (1928), by Radclyffe Hallwas 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 ‘Hicklin test’ stated that an object would be judged obscene if it had the tendency to;

[D]eprave and corrupt those whose minds areopen to such immoral influences, and into whose hands a publication of this sort might fall.’[38]

The (then) Attorney General,Sir Thomas Inskip, described the book as ‘propaganda for the practice which has long been known as Lesbianism… it is corrupting and obscene and its publication is a misdemeanour.’[39] The resultant publicity which surrounded the publication of the book, led to the subject of lesbianism being talked about in a way which would most probably never have happened if there had been no publication. This was born out by a Home Office memo which 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.’ [40] As pointed out by Robertson, 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’.[41]