A useful precedent?

Graham Marsden, 29 May 2006 22:26:16

Whilst checking around through some old files I found the following that
I'd saved from uk.people.bdsm back at the end of 2002.

Anthony Hilbert had been arrested for "incitement to rape" in 2000 on
the grounds that his website made reference to the possibility of a male
slave being able to "rape his slave girl".

This is what was posted [emphasis is mine]:

* * * * *

This morning the Appeal Court cleared me on all counts (five, count
them) of "publishing an obscene article". Quite apart from being good
news for me, this is a real gain on priciple for anyone in England
with BDSM material on the Web.

The judge was sufficiently impressed to stop the trial before my
defence summing up to give his verdict in my favour. (My barrister
said afterwards that he felt a bit let down! - he was psyched up to
give an impassioned appeal for free speech and the recognition that
society had changed and Mary Whitehouse was no longer writing the
laws, and the judge had spoilt his big moment by conceding it all.)

The judge said that, in the first place, he found that the stories -
although he and his colleagues found them personally most
unpleasant! - were not obscene within the meaning of UK law (defined
as "tending to deprave and corrupt") because *they were clearly
recognisable as fantasy by any reasonable person, even the stories
that were not explicitly flagged as such*. To the best of my
non-professional knowledge, this is the first time a court has ruled
that recognisable fantasy is legally accepted as harmless, which will
be a useful precedent for a great many writers.

He continued to say that, while this in itself was enough to clear me,
even if he had found the stories obscene he would still have found me
not guilty: on the grounds that, *by registering the site with content
control agencies and setting several clear warnings that persons going
further would encounter material that might be offensive and
unsuitable for children, I had taken sufficient reasonable steps to
protect vulnerable users from coming upon the material.* This is good
news for anyone in the UK with adult material on the Web, the more so
since it implicitly covers any adult content, not just the written
fiction which was the subject of this case.

So I am not guilty twice over. My barrister said I did
very well as a witness, so I think I can take a good slice of the
credit for this. My heartfelt thanks go to the many friends who have
lent me their prayers, support and energy in the course of this very
tense two days. Part of this victory is yours.

The stories in question will re-appear on my site, with a note
recording that they have permission from the English Crown Court to be
there, as soon as I can get them uploaded. Enjoy!

* * * * *

Now even though, as he mentions, it was in respect of written fiction,
the fact that any "reasonable person" should be able to tell it's
fantasy is, I think, an argument we can use.

Cheers,
Graham.


Teddy, 30 May 2006 11:49:05

In the same way a reasonable person would know that fictional acts they see on the TV and in film isn't real. There is a selective and irrational targeting of porn going on in these proposals...

T.

> Now even though, as he mentions, it was in respect of written fiction,
> the fact that any "reasonable person" should be able to tell it's
> fantasy is, I think, an argument we can use.
> Cheers,
> Graham.


snowflake, 03 Jun 2006 11:51:33

On 29/05/06, graham wrote:

> Now even though, as he mentions, it was in respect of written fiction,
> the fact that any "reasonable person" should be able to tell it's
> fantasy is, I think, an argument we can use.

Given that it requires a tremendous amount of expertise to create an
image that can't, upon a reasonable amount of investigation at most,
be seen as being staged in some way, the idea of a "reasonable person"
being able to tell any depiction in an image is fiction should stand
just as well as it would for the written word.

I think this judgement is a very good one for this cause, can you tell
us what the case was called so it can be cited, if it hasn't been
already?

Zoë


Paul Tavener, 03 Jun 2006 22:58:56

I agree, but would go further It should be a defence if the image can be shown to be a fake by what ever lay or expert means.

Author wrote:
> On 29/05/06, graham wrote:
>
> > Now even though, as he mentions, it was in respect of written fiction,
> > the fact that any "reasonable person" should be able to tell it's
> > fantasy is, I think, an argument we can use.
> Given that it requires a tremendous amount of expertise to create an
> image that can't, upon a reasonable amount of investigation at most,
> be seen as being staged in some way, the idea of a "reasonable person"
> being able to tell any depiction in an image is fiction should stand
> just as well as it would for the written word.
> I think this judgement is a very good one for this cause, can you tell
> us what the case was called so it can be cited, if it hasn't been
> already?
> Zoë


Graham Marsden, 04 Jun 2006 00:17:51

Hi there,

Teddysmith2@hotmail.co.uk wrote:

>>Now even though, as he mentions, it was in respect of written fiction,
>>the fact that any "reasonable person" should be able to tell it's
>>fantasy is, I think, an argument we can use.
>
> In the same way a reasonable person would know that fictional acts
> they see on the TV and in film isn't real. There is a selective and
> irrational targeting of porn going on in these proposals...

I agree, but the point was that this isn't just any old opinion, it's
one from an Appeal Court Judge :-)

Cheers,
Graham.


snowflake, 04 Jun 2006 02:06:40

On 29/05/06, Teddysmith2@hotmail.co.uk wrote:
> In the same way a reasonable person would know that fictional acts they see on the TV and in film isn't real.

I take it you've not heard about how many people send letters to
Coronation Street thinking the people on the show are real, then?

Oh, hang on, you said "reasonable people". Never mind, then.

Zoë


zak, 04 Jun 2006 22:40:30

Original Message:
-----------------
Teddysmith2@hotmail.co.uk, 04 Jun 2006 22:40:30


In the same way a reasonable person would know that fictional acts they see
on the TV and in film isn't real. There is a selective and irrational
targeting of porn going on in these proposals...

T.


It's down to an irrational hatred and fear of sex and sexual expression.
People think it's OK to .. for instance... make films about insane
superstition-driven mass murderers and dwell in lingering loving detail on
the mindset and behaviour( OK, not *real* but represented) of people who
know they are going to die and are phoning their families to say goodbye -
and indeed it's ok to dwell on the mindset and behaviour of peo-le who are
going to kill a lot o other people. It's perfectly possible that someone,
somewhere, might wank themselves sily over such a film: so what? It's still
regarded as more OK to make such a film than to film consenting actors
fucking or play-hanging each other. A lot of the opponents of 'pornography'
are squealilng because they don't like to do certain sexual things and
therefore *nobody* would do such thngs consensually... ie they are
prjecting their own fuckups onto the rest of the world. One of the most
important things for Backlash groups to do is to keep on emphasising that a
depiction is not the same as tye real thing: actors being 'murdered' wash
of the fake blood and go home for their tea.

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