"If I wrote something on a piece of paper and passed it around the room to each of you, that would be considered a publication," explained lawyer and sexual freedom specialist Myles Jackman.
We were sitting in a small conference room in Camden Town, London. Jackman was listing what counts as a publication in the eyes of the law: a book (physical or electronic), a magazine, a website, even a private message. So in turn, any of these things – if they are obscene enough – can be considered criminal publications.
On the 4th and 5th of March, Eroticon – the sex writers conference – brought sex bloggers, erotica writers and journalists together to discuss the pleasure and perils of writing about sex for a living. Myles Jackman's session on Obscene Text and Free Speech was a particular highlight for me, a sex writer with an interest in pornography and the law. In fact, everyone there deals in obscene publication of some form or another, so Jackman's session left us with a lot of questions. Problem is, not many answers were available; there is little detail to go on in this area.
I love to write about sex – lots of different kinds of sex – but I also love not being prosecuted. I also love to send dirty messages, and I know I'm not alone – especially with the increase in dating apps and internet hook-ups. But if our private messages can be classed as publications and the conversations we use them to have start to get kinky, what does this mean for our criminal records? Are certain sexts illegal?
After the presentation, I took to the internet, devoured the Obscene Publications Act and looked over the transcripts of some cited cases to understand a little more about the circumstances which brought about legal proceedings.
As much as I enjoy trawling through legal websites to find out any scraps of information on this subject, I do not claim to be a legal expert. And as Jackman rightly pointed out, the law here is frustratingly vague – the Crown Prosecution Service's (CPS) website does not list every single relevant publication – but the following extracts are copied from their guidelines:
"Transmitting comments to another person in the context of an internet relay chat is publication and, if the publication is obscene, in the terms of [the Obscene Publications Act], a prosecution can be considered."
"It cannot be said that because there is only one recipient and only one likely reader of an article, the article is incapable of meeting the test of obscenity for the purposes of the Act. Note therefore that some indecent or obscene communications may more appropriately be prosecuted under the [Obscene Publications Act], rather than as a communications offence."
Now for the exciting bit: what is deemed obscene?
Once again, I refer you to the CPS guidelines:
"The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:
– Sexual act with an animal
– Realistic portrayals of rape
– Sadomasochistic material which goes beyond trifling and transient infliction of injury
– Torture with instruments
– Bondage (especially where gags are used with no apparent means of withdrawing consent)
– Dismemberment or graphic mutilation
– Activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
Obviously there are some acts listed here that I do not condone; I will not defend sex with an animal, or dismemberment. But consensual bondage, water sports and fisting? Hey, if that's your thing, you go ahead and enjoy yourselves.
If you want to text a consenting partner something suggestive, like how you might want to tie them to the bed frame or take them into the shower and let them urinate all over you, why is that something the law has a say in? And what happens if you do send filthy words over the internet – will your private messages become something more dangerous?
Sending sexts is a great way of exploring fantasies with a partner or keeping things connected when you're apart, but nobody expects these intimate messages to be classed as evidence. If they fall into the wrong hands, or remain in the hands of a disgruntled ex-lover, what happens then?
It is unclear whether the level of description is important, if the details matter or whether the act itself has occurred or is pure fantasy. There is no indication of how this sort of behaviour is prosecuted and what the consequences for a naughty text are.
I wanted to share this discovery with you not to dissuade you from your private sexy chat, but to express my utter confusion. Either way, I certainly won't stop writing – and enjoying – obscene texts. Sex is too important to stop writing about in any detail.
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