Fifty Shades and the law: Regulating sex and sex media in the UK

By August 2012 Fifty Shades of Grey, the first book from a previously unknown British author EL James, became the fastest selling book in UK history, and with over 5 million copies sold, more popular than Harry Potter and the Deathly Hallows and The Highway Code (Singh, 2012). One symbol of its success, a Channel 4 documentary entitled Sex Story: Selling Fifty Shades of Grey, was broadcast on 29 July 2012. The documentary focused on reactions to the novel’s depiction of BDSM, ¹ including the excitement of adult retailer Ann Summers in response to the book’s impact on their sales of bondage goods (see also Urquhart, 2012), and the view of some ‘experts’ that it provoked unrealistic sexual expectations. It suggested that the book had ‘crossed continents, class barriers and the context in which porn is read – on the train, in book groups and even at the hairdresser’. ² While the documentary itself is interesting as an example of the way BDSM is represented in the media, it is its timing that we are concerned with here. The day after its broadcast, the trial R v Walsh began, focusing amongst other things on images of anal fisting, a practice that was mentioned in both Fifty Shades (James, 2012: 174) and in the documentary. In this short article, we will outline the two main legal provisions used to regulate sex media in English criminal law, which are the Obscene Publications Act (1857/1959, abbreviated to OPA hereafter) and section 63 of the Criminal Justice and Immigration Act (2008, abbreviated to CJIA hereafter), and situate Fifty Shades in relation to these, and to four key cases in which ‘obscene’ and ‘extreme’ materials came under scrutiny. What do these, taken together, suggest about the way that sex and sex media are regulated in the UK, and what are the key issues that emerge in public discussions about them?

In English criminal law, the notion of ‘obscenity’ has played a central role in deciding what can and cannot be represented, and the ‘obscenity test’, where the jury is asked to decide whether a specific image or text may be likely ‘to deprave and corrupt’ the viewer (OPA, 1959), ³ has been used to determine standards of sexual decency, morality, and taste. The purpose and aim of the OPA has been repeatedly debated in relation to shifting sexual norms and following the outcomes of two recent court cases prosecuted under the Act (R v Walker, 2009 and R v Peacock, 2012) and discussed here, there have been claims that it is out of date, irrelevant and possibly ‘on its last legs’ (Jones, 2012). In R v Walker (2009), Darryn Walker, a civil servant, was prosecuted for his story, ‘Girls (Scream) Aloud’, about the rape, mutilation and murder of Girls Aloud band members, which he posted online at a sex stories repository. The case was abandoned after an expert witness ‘cast doubt over the accessibility of the article to people searching the internet’ and argued that ‘it could only be found by those determined to find it’ (CPS, 2009). In R v Peacock (2012) Michael Peacock, an escort, was put on trial for distributing gay porn DVDs featuring male fisting and urination from well-established studios, along with an amateur video posted online and featuring BDSM scenarios carried out between men. Peacock was acquitted through a trial by jury.

While the OPA sets out to test whether distributed material is ‘obscene’, newer legislation – section 63 of the Criminal Justice and Immigration Act (2008) – focuses on ‘extreme’ material that ‘appears to have been produced solely or principally for the purpose of sexual arousal’ (CJIA, 2008: S63.3). This legal provision identifies material as ‘extreme’ if it is ‘grossly offensive, disgusting or otherwise of an obscene character’ (S63.6b) and subject to prosecution if it represents in ‘an explicit and realistic way’ an activity that could threaten the person’s life, or be ‘likely to result in serious injury to a person’s anus, breasts or genitals’ (S63.7).

One attempted prosecution (R v Holland) which was brought under this Act in June 2010 concerned the possession of what became known as the ‘Spankwire’ video, a short montage of scenes depicting various kinds of genital modification, mainly focused on ‘cutting, binding, squashing or inserting objects into the penis’ (Kennedy and Smith, 2012: 242). The video had been widely circulated since 2007 and at the time of the attempted prosecution had logged almost 2 million hits on spankwire.com alone (Kennedy and Smith, 2012: 241). Another, R v Walsh (2012), also focused on ‘extreme’ images under the provisions of the CJIA. Simon Walsh, a barrister, magistrate and former aide to London Mayor, Boris Johnson, lost his professional and political positions as a result of the trial, which focused on an investigation of Walsh’s email account (no pornography was found on his computer). The images in question included those of anal fisting and urethral sounding. Three of the photographs were of Walsh and his friends engaging in consensual and legal sex. Whereas the fisting images in the Peacock trial were considered in terms of their likelihood to ‘deprave and corrupt’, Walsh was accused on the basis that fisting is ‘likely to result in serious injury to a person’s anus’. However, like Peacock, Walsh was acquitted through trial by jury.

The Fifty Shades trilogy has become a focus for debating the changing significance of sexual representation in 21st-century Britain, as have the various changes in the regulation of sex and sex media described here. While some have asked whether the success of Fifty Shades suggests that the British are ‘ready to embrace sexual experimentation’ (Channel 4, 2013), others have argued that the trilogy safeguards mainstream values around sex and sexuality (Downing, 2013). BDSM practices have been treated differently under the law depending on who engages with them and the extent to which they can be contained within a heterosexual coupled relationship. In the landmark 1994 case R v Brown 16 gay men received fines or prison sentences following a police investigation that uncovered a video that showed them engaging in consensual sadomasochistic activity. Two years later, on appeal in the case of R v Wilson a judge ruled that ‘Consensual activity between husband and wife, in the privacy of the matrimonial home is not … a proper matter for criminal investigation’. In January 2013 a man was found not guilty after a woman complained about the sadomasochistic sex they engaged in, inspired by Fifty Shades (Kendall, 2013). Particular types of practice also continue to be judged as more or less acceptable. While Fifty Shades flirts with BDSM it is relatively tame in the range of practices its protagonists embrace; while fisting is mentioned in the trilogy, it is one of many practices Ana and Christian reject in pursuit of ‘kinky fuckery’.

There are many more inconsistencies in the ways that sex and sexually explicit media are currently understood and regulated and these have also been the focus of interest in public discussions of the book and of recent legal cases. As Myles Jackman noted, for example, the images under scrutiny in the cases of Peacock and Walsh were of ‘a type … which is commonly viewed, of an activity which is itself legal to perform and is even discussed in the book Fifty Shades of Grey’ (2012a). The attempted prosecution for possession of the Spankwire video as a form of extreme porn occurred at a time when thousands of young people were recording their reactions to the video on YouTube. Thus, although much debate about Fifty Shades has focused on what it might reveal about changes in the way female sexuality is now expressed and represented, or on how accurately or helpfully the trilogy presents BDSM practices, it is perhaps the contradictions and disconnections that characterize sexual practices and their representation that is most striking about the current situation in the UK.

There is a dramatic lack of social consensus about the acceptability of some sexual practices, and the swiftly changing mediascape within which sexual representations are consumed is raising new questions about the way we understand sex media and its relation to sexual practice. That a work such as Fifty Shades, emerging online as fan fiction, can become the fastest selling book of all time and yet individuals are prosecuted for engaging with media texts that are already widely available, throws into question the way we understand media production, what we count as publicly available or accessible, and what counts as mainstream. That regulation increasingly appears to focus on the ‘possession’ rather than the production, distribution or consumption of texts has also raised the possibility that people may be prosecuted for material that they have neither created nor seen; it was unclear, for example, in the case of Simon Walsh whether he had even looked at some of the images under discussion in his case. Other recent changes in legislation have further muddled the relation of the real and the representational. Explicit images of drawn or computer-generated ‘fictional’ children may now be classed as child pornography (Gillespie, 2011; Stapleton, 2012). Not only are more forms of visual representation coming under scrutiny, but, as the Walker case demonstrates, so are written texts. Following the overturning of guilty verdicts on Last Exit to Brooklyn (1966) and Inside Linda Lovelace (1977) it has been widely assumed for some time that the written word no longer fell within the scope of the OPA. As Julian Petley and John Ozimek argued, ‘If Girls (Scream) Aloud were to be judged obscene, then so could works by JG Ballard, Georges Bataille, William Burroughs and the Marquis de Sade’. At the same time, the success of Fifty Shades appears to demonstrate Jane Juffer’s point that erotic fiction aimed at women has consolidated the public acceptability of certain kinds of ‘domesticated’ porn (1998).

However, it is publications that appear online which seem to be most likely to come under scrutiny. There has also been an attempt to bring online chat within the remit of the Obscene Publications Act (Jackman, 2012b); a development that appears to be linked to a move to regulate mediated conversation more generally, as in the Twitter joke trial (Bowcott, 2012) and jailing of a teenage boy for posting ‘abhorrent’ jokes about a missing girl, April Jones, on Facebook (Morris and Sabbagh, 2012). In this sense, while Fifty Shades appears to represent a broader mainstreaming of the sexually explicit, it is also situated in a context of proliferating attempts to regulate both sexual and mediated forms of communication. The variety of shifts we have outlined in the way sexual representations are regulated in the UK, and the apparent drive to increasing regulation, alongside a striking failure to achieve successful prosecutions suggests an extremely complicated picture of sexual representation and its regulation, and one which will require much further analysis.