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Anobscenity is anyutterance or act that strongly offends the prevalentmorality of the time.[1] It is derived from the Latinobscēnus,obscaenus, "boding ill; disgusting; indecent", of uncertain etymology.[2] Generally, the term can be used to indicate strong moral repugnance and outrage in expressions such as "obsceneprofits" and "the obscenity of war". As a legal term, it usually refers to descriptions and depictions of people engaged insexual andexcretory activity.
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In theUnited States, issues of obscenity raise issues of limitations on thefreedom of speech and ofthe press, which are otherwise protected by theFirst Amendment to theU.S. Constitution.
Federal obscenity law in the U.S. is unusual in that there is no uniform national standard. Former JusticePotter Stewart of theSupreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene", famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced ... [b]utI know it when I see it...."[3] In the U.S., the 1973 ruling of theU.S. Supreme Court inMiller v. California established a three-tieredtest to determine what was obscene—and thus not protected, versus what was merely erotic and thus protected by theFirst Amendment. Delivering the opinion of the court, Chief JusticeWarren Burger wrote:
The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[4]
While most recent (2016)[citation needed] obscenity cases in the U.S. have revolved around images and films, the first obscenity cases dealt with textual works.
The classification of "obscene" and thus illegal for production and distribution has been judged on printed text-only stories starting withDunlop v. U.S., 165 U.S. 486 (1897), which upheld a conviction for mailing and delivery of a newspaper called theChicago Dispatch, containing "obscene, lewd, lascivious, and indecent materials", which was later upheld in several cases. One of these was "A Book NamedJohn Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, "383 U.S. 413 (1966)" wherein the book "Fanny Hill", written by John Clelandc. 1760, was judged to be obscene in a proceeding that put the book itself on trial rather than its publisher. Another wasKaplan v. California, 413 U.S. 115 (1973) whereby the court most famously determined that "Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content."
In 2005, the U.S. Department of Justice formed theObscenity Prosecution Task Force in a push to prosecute obscenity cases.[5][6] Red Rose Stories, a site dedicated to text-only fantasy stories, became one of many sites targeted by the FBI for shutdown.[7] The government alleged that Red Rose Stories contained depictions of child rape. The publisher pleaded guilty.[8] Extreme pornographerMax Hardcore served 30 months of a 46-month prison sentence for obscenity.Many U.S. states have had bans on the sale ofsex toys, regulating them as obscene devices. Some states have seen their sex toy bans ruled unconstitutional in the courts.[9] That ruling leaves only Mississippi, Alabama, and Virginia with current bans on the sale of obscene devices.[10]
Literature (non-fiction) communicatingcontraceptive information was prohibited by several states. The last such prohibition, in Connecticut, was overturned judicially in 1965.[citation needed]
InCohen v. California, 403 U.S. 15 (1971), the U.S. Supreme Court ruled that the word "fuck", although almost universally considered obscene when used to describe sexual intercourse, is speech-protected by the First Amendment to the United States Constitution when used to express a political belief. On 26 April 1968, Paul Robert Cohen, then 19 years old, donned a jacket bearing the words "Fuck the Draft" while visiting the Los Angeles Courthouse to testify as a defense witness in a court hearing. Although Cohen removed the jacket before entering the courtroom, he had been observed wearing it in the courthouse corridor by a court officer. When Cohen left the courtroom, the officer arrested him for disturbing the peace. Cohen defended his attire as being an expression of disapproval of the war in Vietnam. Nonetheless, he was convicted of "maliciously and willfully disturbing the peace" and sentenced to 30 days in jail. The conviction was eventually upheld by the Supreme Court of California but reversed by the Supreme Court. In a 5–4 decision, Justice Harlan wrote for the Court that Cohen's conviction was based solely on speech and was protected by the First Amendment. In a dissenting opinion, Justice Blackmun countered that Cohen's wearing of the jacket in the courthouse was not speech but conduct amounting to an "absurd and immature antic".
Standards superseded by theMiller Test include:
FCC rules and federal law govern obscenity in broadcast media. Many historically important works have been described as obscene or prosecuted under obscenity laws, including the works ofCharles Baudelaire,Lenny Bruce,William S. Burroughs,Allen Ginsberg,James Joyce,D. H. Lawrence,Henry Miller,Samuel Beckett, and theMarquis de Sade.
Obscenity law has been criticized in the following areas:[12]
Obscenity laws remain enforceable under Miller despite these criticisms. Some states have passed laws mandating censorship in schools, universities, and libraries even if they are not receivinggovernment aid that would require censorship in these institutions. These include Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.[14]
Child pornography refers to images or films (also known aschild abuse images[15][16][17]); as such, visual child pornography is a record ofchild sexual abuse.[18][19][20][21][22][23] Abuse of the child occurs during the sexual acts that are recorded in the production of child pornography,[18][19][21][22][23][24][25] and several professors of psychology state that memories of the abuse are maintained as long as visual records exist, are accessed, and are "exploited perversely".[23][24] Some countries also bans writings[17][26][27]—that depict sexually explicit activities involving a child.
InNew York v. Ferber,458 U.S.747 (1982), the U.S. Supreme Court ruled that child pornography need not be legally obscene in order to be outlawed. The Court ruled that in contrast to the types of images considered inMiller, images that depicted underlying harm to children need not appeal to "the prurient interest of the average person", portray sexual conduct in "a patently offensive manner", nor be considered holistically, in order to be proscribed. Another difference between U.S. constitutional law concerning obscenity and that governing child pornography is that the Supreme Court ruled inStanley v. Georgia,394 U.S.557 (1969), that possession of obscene material could not be criminalized, while inOsborne v. Ohio,495 U.S.103 (1990), the high court ruled that possession of child pornography could be criminalized. The reason was that the motive for criminalizing child pornography possession was "to destroy a market for the exploitative use of children" rather than to prevent the material from poisoning the minds of its viewers. The three dissenting justices in that case argued, "While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it."
This is most notably shown with the "X" rating under which some films are categorized. The most notable films given an "X" rating wereDeep Throat (1972) andThe Devil in Miss Jones (1973). These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values. Some state authorities issued injunctions against such films to protect "local community standards"; in New York, the print ofDeep Throat was seized mid-run, and the film's exhibitors were found guilty of promoting obscenity.[28] According to the documentaryThis Film Is Not Yet Rated, films that include gay sex (even if implied) or female pleasure have been more harshly censored than their heterosexual, male counterparts.[29] TheMotion Picture Association of America (MPAA) issuesratings for motion pictures exhibited and distributed commercially to the public in the United States; the ratings are issued through the Classification and Rating Administration (CARA). The intent of the rating system is to provide information about the content of motion pictures so parents can determine whether an individual motion picture is suitable for viewing by their children.
Obscenity law inEngland and Wales is currently governed by theObscene Publications Act, but obscenity law dates back much further into Englishcommon law. The conviction in 1727 ofEdmund Curll for the publication ofVenus in the Cloister or the Nun in her Smock under the common-law offence ofdisturbing the peace appears to be the first conviction for obscenity in the United Kingdom, and set alegal precedent for other convictions. These common-law ideas of obscenity formed the original basis of obscenity law in other common law countries, such as the United States. The classic definition of criminal obscenity is if it "tends to deprave and corrupt", stated in 1868 byLord Justice Cockburn, inRegina v. Hicklin, now known as theHicklin test.
Stanley Kauffmann's novelThe Philanderer was published by Penguin Books in 1957 and was unsuccessfully prosecuted for obscenity.[30]
The Obscene Publications Act is famously vague, defining obscenity with reference to material that is likely to "deprave and corrupt". The 1959 act was passed at the point when mostWestern countries were about to enter a new phase ofsexual freedom. The trial ofPenguin Books over their publication ofLady Chatterley's Lover in 1960 failed to secure a conviction and the conviction in the 1971 trial ofOz magazine was overturned on appeal. An attempt to prosecute theUniversity of Central England in 1997 over a copy of a library book byRobert Mapplethorpe was abandoned amidst derision fromacademics andthe media.[31]
For visual works of art the main obscenity law in England and Wales was, until the 1960s, theVagrancy Act 1838 which was successfully used in prosecutions against D.H. Lawrence for an exhibition of his paintings at the Warren Gallery, London, in 1929,[32] and in 1966 against the British artistStass Paraskos for an exhibition of his paintings held that year in the northern English city ofLeeds.[33] Parts of the Act were repealed shortly after the Paraskos trial and it has rarely been used since in relation to visual art.
Sex crime has generated particular concern. In 1976 theBBFC said 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.[28] In 2008, the UK prosecuted a man for writing a fictional sex story (R v Walker).[34][35] In 2009, the crown prosecution service (CPS) dropped the case.[36]
During the 1960s and 1970s most Western countries legalisedhardcore pornography. By the 1980s the UK was almost the onlyliberal democracy where the sale of hardcore pornography was still completely illegal, although ownership was not a criminal offence (exceptchild pornography). Homevideotape was a booming market and it was relatively simple for individuals tosmuggle hardcore material in fromEurope or the United States, where it could be purchased legally, either for personal use or to copy it for distribution. This resulted in a considerableblack market of poor quality videotapes. Meanwhile, people attempting to buy pornography legally would often be sold heavily censoredR18 certificate material.
While the authorities tried to prevent the illegal sale of pornography they found thatjuries, while not particularly liking the material, were reluctant to convict defendants where the material was intended for private use among consenting adults. During the 1990s the advent of theinternet made it easier than ever before for British citizens to access hardcore material. Finally, in 2000, following the dismissal of a test case brought by theBBFC, hardcore pornography was effectively legalised, subject to certain conditions and licensing restrictions.[37] It is still an offence to sell obscene material bymail order.[38]
After 1984, videotape sellers were more likely to be prosecuted under theVideo Recordings Act rather than the OPA. The VRA requires that all videos must have a certificate from the BBFC. If the BBFC refuses a certificate, a video is effectively banned for home viewing, but not necessarily in thecinema. Four films that were originally refused a certificate—The Exorcist,Straw Dogs,The Evil Dead, andThe Texas Chainsaw Massacre—were granted a certificate in the late 1990s and have subsequently been screened on mainstreamtelevision.
According to the Films, Videos, and Publications Classification Act 1993, "publication may be age-restricted if it contains highly offensive language likely to cause serious harm".[39]
In New Zealand, screening ofDeep Throat (1972) was only cleared in 1986. However, the film has not been screened because the only cinema that has tried to organize a screening was thwarted by the city council that owned the building's lease.[28]
Section 9 of the Criminal Law providesprovisions against pornography, including creation, distribution and organizing public viewing.[40]
In 2016, the Ministry of Culture in China censored 23 companies for hosting obscene content online. The take-down included over 20,000 live feeds from 26 different websites that were hosting a variety of content involving pornography and violence.[41]
Section 163 of the CanadianCriminal Code provides the country's legal definition of "obscenity". Officially termed as "Offences Tending to Corrupt Morals",[42] the Canadian prohibited class of articles that are to be legally included as "obscene things" is very broad, including text-only written material, pictures, models (including statues) records or "any other obscene thing". According to Section 163(8), if "a dominant characteristic of the publication is the undue exploitation of sex, or the combination of sex and at least one of crime, horror, cruelty or violence", that publication is deemed to be "obscene" under the current law.[43]
The current law states:
163. (1) Every person commits an offence who makes, prints, publishes, distributes, circulates or has in their possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or any other obscene thing.
TheCanada Border Services Agency seizes items it labels obscene.
In 1993,Canadian police arrested the 19-year-old writer of a fictional sex story "The Forestwood Kids";[44] however, the case was dismissed in 1995.[45]
In February 2009, citing itsPolicy On The Classification Of Obscene Material, the CBSA banned twoLucas Entertainment films because they show the "ingestion of someone else's urine... with a sexual purpose".[46][47]
In 2016 Mark Marek, owner ofbestgore.com, pleaded guilty to breaching obscenity legislation for posting the video of themurder of Jun Lin. He received a six-month non-custodial sentence in a plea agreement, and left court after sentencing with his mouth covered in duct tape to protest his prosecution.[48]
Ever since 1940, in the Title VI of the Penal Code, naming crimes against sexual dignity (until 2009 crimes against social conventions), the fourth chapter is dedicated to a crime named "public outrage related to modesty" (Portuguese:ultraje público ao pudor).
It is composed of two articles, Art. 233 "Obscene Act", "to practice an obscene act in a public place, or open or exposed to the public", punished with arrest of 3 months to 1 year or a fine; and Art. 234 "Obscene Written Piece or Object", to do, import, export, purchase or have in one's property, to ends of trade, distribution or public display, any written, drew, painted, stamped or object piece of obscenity, punished with arrest of 6 months to 1 year or a fine.[49]
Criticism to the legislation have included:[50]
It is often used against people who expose their nude bodies in public environments that were not warranted a license to cater to the demographic interested in such practice (the first such place was the Praia do Abricó in Rio de Janeiro, in 1994), even if no sexual action took place, and it may include, for example, a double standard for the chest area of women and men in which only women are penalized. Such a thing took place in the 2012FEMEN protests in São Paulo.[51]
In India the Obscenity law is governed by several laws ranging fromBhartiya Nyaya Sanhita,IT Act 2000,POSCO,Indecent Representation of Women (Prohibition) Act, etc. These are discussed below-
This provision penalizes obscene acts performed in a public place if they cause annoyance to others. Additionally, it prohibits singing, reciting, or uttering obscene words, songs, or gestures in public spaces.
This section criminalizes the sale, distribution, or circulation of obscene objects to minors.
This section penalizes individuals who perform obscene acts in public or use obscene language that may annoy the public.
This section criminalizes the publication and transmission of lascivious or prurient content in electronic form.
This provision criminalizes the electronic publication, transmission, or distribution of content depicting children in sexually explicit acts.
This act prohibits the indecent representation of women in any form, whether through advertisements, publications, or online content. If the show's content objectified or misrepresented women in a harmful manner, it could face legal action under this law.[52][53]
The POCSO Act is a comprehensive law aimed at protecting minors from sexual exploitation and abuse. If minors were exposed to explicit content or involved in inappropriate material, the show’s creators could be subject to legal scrutiny under this act.[52][53]
These rules regulate digital platforms and require them to monitor and remove unlawful content. The Indian government and regulatory bodies have directed online platforms to remove controversial content that violates these guidelines.[52][53]
Various countries have different standings on the types of materials that they as legal bodies permit their citizens to have access to and disseminate among their local populations. The set of these countries' permissible content vary widely accordingly with some having extreme punishment up to and including execution for members who violate their restrictions, as in the case of Iran where the current laws against pornography now include death sentences for those convicted of producing pornography.[54]
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{{cite book}}: CS1 maint: location missing publisher (link)Child pornography is part of the violent continuum of child sexual abuse
'Child pornography is not pornography in any real sense; simply the evidence recorded on film or video tape - of serious sexual assaults on young children' (Tate, 1992, p. 203) ... 'Every piece of child pornography, therefore, is a record of the sexual use/abuse of the children involved.' Kelly and Scott (1993, p. 116) ... '...the record of the systematic rape, abuse, and torture of children on film and photograph, and other electronic means.' Edwards(2000, p.1)
Because the children depicted in child pornography are often shown while engaged in sexual activity with adults or other children, they are first and foremost victims of child sexual abuse.
The children portrayed in child pornography are first victimized when their abuse is perpetrated and recorded. They are further victimized each time that record is accessed.
...supplying the material to meet this demand results in the further abuse of children. Pictures, films and videos function as a permanent record of the original sexual abuse. Consequently, memories of the trauma and abuse are maintained as long as the record exists. Victims filmed and photographed many years ago will nevertheless be aware throughout their lifetimes that their childhood victimization continues to be exploited perversely.
When first published in 1954, this book was the subject of an unsuccessful prosecution for obscene libel. Mr. Justice Stable's historic summing-up on that occasion is included as an appendix.
| Nakedness and clothing | |
|---|---|
| Nudity and sexuality | |
| Issues in social nudity | |
| Naturism | |
| Nude recreation | |
| By location | |
| Social nudity advocates | |
| Depictions of nudity | |
| See also | |
| International | |
|---|---|
| National | |
| Other | |
