“To focus attention on the harmful nature and consequences of … obscenity, pornography and violence” is quoted from the third object for which the Society (“SPCS”) was established in 1975 (see s. 2[d] of SPCS Constitution). Something is “OBSCENE” if it is “abhorrent to morality or virtue; specifically: designed to incite to lust or depravity“. At the same time it can also be, and often is both “repulsive by reason of crass disregard of moral or ethical principles” and “so excessive as to be offensive“. (http://www.merriam-webster.com/dictionary/obscene).

New Zealand censorship law does not include the use of any of these terms “abhorrent”, “morality”, “virtue”, “lust”, “depravity”. “repulsive”, “ethical principles”, “excessive”, or “offensive”, “obscene” or “obscenity“.

But this does not mean that our censorship laws do not address the issue of “obscenity” as defined above. Instead of this term “obscenity“, the somewhat euphemistic term “objectionable” has found its way into section 3 of the Films, Videos and Publications Classification Act 1993 (“FVPCA). When s. 3 is carefully studied, one finds that the term “objectionable” actually embodies the same core concepts underlying the term “obscene” (content) but without any mention of or reference to “morality” or “ethical principles”: e.g. activities set out in sections 2 & 3 of FVPCA – such as certain depictions of “sexual or physical conduct of a degrading or dehumanising or demeaning nature” and “sexual violence or sexual coercion, or violence or coercion in association with sexual conduct” etc.

Section 3(1) states:

“For the purposes of this Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.” [Emphasis added]

Obscene publications by definition corrupt or have potential to corrupt good morals and violate acceptable community standards. As former New Zealand Chief Censor Bill Hastings stated publicly: repeated exposure to hard core pornography and explicit obscene content depicting acts of paedophilia, etc. has a “toxic” and “corrosive” impact on the mind of the viewer and in the wider sense, on the “public good”.

Some liberals have advanced the facile argument that the term “obscenity” is “too broad” a term to ever be applied in any meaningful sense to the depiction of, or public performance of certain human activities, such  “sexual or physical content of a degrading nature.” However, the term does retain this very real concept of causing offence against prevailing community standards,  such offence being generally sexual in content, designed to incite to lust or depravity, and possessing the very real potential to corrupt and do injury to the “public good”.

The word obscenity, while no longer in use in our current NZ censorship law, is used widely in administrative policy guidelines by various enforcement agencies, Crown Entities and government service departments. For example, the Companies Office and the Charities Commission employ the term “obscene” as a “criteria” to apply in determining appropriate company or charity names.

These agencies possibly rely on a definition of “obscene” such as:

“An obscenity is any statement or act which strongly offends the prevalent morality of the time. The word can be used to indicate a strong moral repugnance, in expressions.”

Persons found in possession of and/or having imported and/or distributed obscene (as defined above) publications are regularly prosecuted and convicted under New Zealand law – such as FVPCA.

Part 7 of The Crimes Act 1961 is subtitled “Crimes against religion, morality, and public welfare”. It covers “Blasphemous Libel” (s. 123), Distribution or exhibition of indecent material” (s. 124), Indecent Act in public place (s. 125), and “Indecent act with intent to insult or offend” (s. 126).

However, the terms “indecent“, and “morality” are not defined anywhere in the Crimes Act and yet clearly the terms possess sufficient legal meaning (based in historic case law) to form the basis of current statutes under which certain persons have been charged and convicted in New Zealand courts for committing gross indecencies. The latter are almost always acts of a sexually degraded/excessive nature. Indecencies committed by individuals are generally “designed to incite [themselves and/or others] to lust or depravity” and because they contravene acceptable community standards they are often referred to as “obscene” acts (e.g. bestiality, necrophilia, and paedophilia).

In New Zealand censorship law the term “indecency” is strongly connected with all matters that now fall under section 3 (2) of the Films, Videos and Publications Classification Act 1993 [“FVPA”], such as:

“the use of violence or coercion to compel any person to participate in, or submit to, sexual content”,

“sexual conduct with or upon the body of a dead person,

“the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct”,

“bestiality”.

If such (obscene) activities are presented in a publication in a manner that “promotes or supports, or tends to promote or support” them, then the publication is “deemed to be objectionable for the purposes of this Act.” The publication must be banned by the Office of Film and Literature Classification (“OFLC”).

The Indecent Publications Act 1954 extended the definition of indecency to include undue [excessive] emphasis on matters of sex, horror, crime, cruelty or violence (all five “gateways” are retained in section 3(1) of FVPCA.

A new system for censoring publications came into being with the passing of the Indecent Publications Act 1963. This Act established the Indecent Publications Tribunal (IPT) a single arbiter of indecency in books, magazines and sound recordings.

While it is true that the definition of what constitutes obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities; our concern is with the appropriate use of this word within New Zealand’s legal context.

Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions. There are generally very good reasons for governments seeking to suppress the dissemination of obscene publications due to the corrupting effect of such content on the “public good”. “Objectionable” publications are deemed to be “injurious to the public good” and it is for this reason they are banned or restricted in terms of age.

In a legal context, the term obscenity is most often used to describe expressions (words, images, actions) of an explicitly sexual nature. As such censorship restricts freedom of expression, crafting a legal definition of obscenity presents a civil liberties issue.

In New Zealand the Bill of Rights Act 1990 (BORA) must be taken into account in every decision made by the Classification Office to restrict any publication. However, BORA does not negate the authority of the Chief Censor’s Office to ban or severely restrict certain obscene publications by applying FVPCA.

A growing pandemic of sex crimes and obscene behaviour have generated particular concern in New Zealand and in jurisdictions sharing similar legal traditions and censorship laws.

In 1976 the British Board for Film Classification (BBFC) claimed that, in that year, it had viewed 58 films depicting “explicit rape”, declaring scenes that glorified it as “obscene“. As opposed to questions of “indecency”, which have been applied to sexual explicitness, films charged with being obscene have been viewed as having “a tendency to deprave and corrupt” and been liable to prosecution.

(see: http://www.filmreference.com/encyclopedia/Academy-Awards-Crime-Films/Censorship-SEX-AND-VIOLENCE.html).

Canadian Law and “obscenity”

Section 163 of the Canadian Criminal Code provides the country’s legal definition of “obscenity“. Officially termed as “Offences Tending to Corrupt Morals“ [Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)].

In February 2009, citing its Policy On The Classification Of Obscene Material, the Canadian Border Services Agency (CBSDA) banned two Lucas Entertainment “gay adult films” – “Farts!” and “Piss!” because they show the “ingestion of someone else’s urine… with a sexual purpose”. Such depictions, ofter referred to euphemistically as “golden showers” or “water sports” among the “sex fetish” gay community, are “listed as an indicator of obscenity”. CBSA considers the act of urinating into someone’s face or mouth as “degrading and dehumanizing, with a risk of substantial harm.” (Section 3(2)(d) of New Zealand’s FVPA defines publications that promote such obscene content as “objectionable”).

Canadian Border Services Agency’s had previously refused to allow shipments containing DVDs of Lucas Entertainment’s Farts! and Piss! to cross the border from the US, citing Canadian “obscenity laws” as the basis of their actions.

In his well-publicised letter of protest to US President Barak Obama, Michael Lucas, a former male prostitute and founder in 1948 of Lucas Entertainment, New York’s largest producer of gay adult films, suggested disallowing gay porn shipments into Canada could harm both countries’ economies. (Few would have heard such a puerile and self-serving case to put before the President!).

Lucas publicly lambasted the CBSA officials as “homophobic”, a standard tactic used by such hardcore pornographers when facing the application of censorship laws and possible prosecution.

Canadian courts require porn to meet a “community standard of tolerance test.” If a video “predisposes persons to act in an anti-social manner; in other words, in a manner which society recognizes as incompatible with its proper functioning,” then the video will likely be deemed “obscene.”

Lucas called the obscenity rules “old-fashioned” and weeks later announced his planned to visit the Toronto bathhouse for a performance of “Piss!” which has just been nominated for 2009 GayVN award for Best Fetish Film.

Lucas wrote in his protest letter to Obama.

Farts! and Piss!, just two of the productions that were denied importation into Canada, are highly successful titles from my Lucas Raunch line. Both have gone on to be among my best sellers in 2008, including here in the United States, several European countries including Germany, France, and Austria, and South Africa. Piss! is also nominated for a GAYVN award for Best Fetish Video and its cover model, Ryan Raz, is up for Best Fetish Performer. As our economy teeters on the brink of total collapse, it would be foolish to deny access of such a high quality, proven moneymaker onto shelves of the Great White North’s porn stores.

… we are now helpless to deal with this tragedy of economic and social injustice.

Those who object to the use of the term “obscenity” in public discourse because it is “too broad”, need to explain why the Bush administration created an Obscenity Prosecution Task Force in 2005, which proved quite effective. Clearly lawmakers in the US recognise it as a meaningful term.

The Case Of Hardcore Porn Director Paul Little, aka Max Hardcore and Obscenity

On June 5, 2008, Hardcore porn producer Mr Paul Little (aka Max Hardcore) was found guilty of 10 federal counts of distributing “obscene materials” over the Internet and through the mail. His company Max World Entertainment was also found guilty on 10 related charges.

Max faced up to five years in prison and a $250,000 fine for each count of conviction, as well as forfeiture of his Internet domain names. Max World Entertainment faced a separate $250,000 fine. The government had separately sought the forfeiture of Hardcore’s home in Altadena, Calif., but the jury ruled against that penalty.

On October 3, Max Hardcore, was sentenced to 46 months in a minimum security prison on federal charges of distributing “obscene videos” through the mail and the Internet.

He was fined $7,500 and his company Max World Entertainment was fined $75,000. The director was charged with 10 counts in all, plus another 10 counts for his company.

U.S. District Judge Susan G. Bucklew gave Max Little the minimum fines allowable by law. The recommended range for the fines was between $1.2 and $2.4 million.

Concluding Comments

In their book entitled “On Pornography: Literature, Sexuality and Obscenity Law (Language, Discourse, Society)” authors Ian Hunter, David Saunders & Dugald Williamson investigate and document the history of pornography. This history, they argue, indicates that obscenity law is not, as liberals claim, a mistaken attempt to police moral ideas, but rather forms part of the legitimate governmental regulation of a problematic social conduct.

To focus attention on the harmful nature and consequences of … obscenity, pornography and violence, does serve the public good

References

Michael Lucas Implores Obama, Harper to Talk About Porn, AVN News, February 20, 2009.

Lucas Porn Films Detained At Border, DNA magazine, February 13, 2009

Porn star Michael Lucas: Canadian border agents are “homophobic”

http://www.xtra.ca/public/Toronto/Porn_star_Michael_Lucas_Canadian_border_agents_are_homophobic-6609.aspx

http://www.xtra.ca/public/National/Canadian_border_officials_ban_Lucas_fetish_flicks-6304.aspx

Mr Hardcore Sentenced to 46 Months in Federal Prison

http://business.avn.com/articles/Max-Hardcore-Sentenced-to-46-Months-in-Federal-Prison-55112.html

Max Hardcore Found Guilty in Obscenity Trial

Jurors find Max and his company guilty on all counts

http://business.avn.com/articles/Max-Hardcore-Found-Guilty-in-Obscenity-Trial-53128.html

On Pornography: Literature, Sexuality and Obscenity Law (Language, Discourse, Society) by Ian Hunter, David Saunders & Dugald Williamson (Palgrave Macmillan: New edition edition: November 1992)