10/07/2012 06:50 BST | Updated 08/09/2012 06:12 BST

Time to Scrap Obscenity Laws?

'All men watch porn, scientists find', was the headline of an article late in 2009. It caught my eye because at the time I was finishing a novel, The Redeemed, which delved into the tricky area of sexual hypocrisy.

'All men watch porn, scientists find', was the headline of an article late in 2009. It caught my eye because at the time I was finishing a novel, The Redeemed, which delved into the tricky area of sexual hypocrisy. Scientists at the University of Montreal had wanted to conduct research into men who had never 'used' pornography, and, lo and behold, failed to find a single one. Not even in the deepest recesses of the local seminary, it seems. Their research then morphed into an examination of the harm done by their subjects' pornography habit. They concluded that it wasn't particularly harmful, that men quickly discarded material they found offensive or distasteful, and that their perceptions of women were not adversely affected. In other words, in the minds of most consumers, there was a definite line between the worlds of fantasy and reality. Professor Lajeunesse confidently concluded that, 'Pornography hasn't changed their perception of women or their relationships, which they all want to be as harmonious and fulfilling as possible.'

I am (unusually for me), a bit of a fence-sitter on the pornography debate. The business of manufacturing it is exploitative and sad (including all those Channel 4 shock docs that show rude bits in the name of medicine or 'taboo-breaking'), but at the same time its products clearly fulfil a universal male and more limited female want. I don't think it should come over the internet without an opt-in, though, and I do think the ISPs should be obliged to keep a watching brief on what they're allowing over their wires. What does interest me is how much swiftly public attitudes have changed.

Back in the early 90s I was a young barrister and part of my practice comprised a steady flow of cases fed into our chambers by a well known businessman who made his initial fortune in sex shops. The Metropolitan Police's Vice Squad would routinely raid the premises around Soho, stuff plastic bin bags with mucky magazines and video tapes, then repair to Scotland Yard for a long, hard afternoon studying their haul. At the end of their labours they would produce a bunch of forms resembling a spread sheet listing each film and magazine, alongside which would be ticks in various columns headed with abbreviations for sex acts they deemed obscene. One famous title, the classically themed, 'Maximum Perversum', earned a clean sweep of ticks - poor old plod had to sit through an orgy of 'DP, A-MF, A-MM and the infamous (and oft explained to red-faced magistrates A-S (anal sandwich).

More often than not the matter was dealt with by a quick guilty plea to obscenity in front of the Bow Street beak who'd hand out a fine and confiscation order (confiscated by whom and to where, we never found out). Occasionally a brave purveyor of smut would go to trial, either in front of magistrates (walking naked down Oxford Street would be less embarrassing than watching a scene or two from Maximum with Lady Faeatherstone-Haugh and chums ), or before a jury of twelve good men and women and true.

Whether magistrates or juries decided the issue, the legal test applied was the same and comes from the Obscene Publications Act of 1959, a piece of legislation which still stands. Section 1 of the Act states: an article shall be deemed to be obscene if its effect ... is... taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. This is the law under which Lady Chatterley was tried, and later in the same decade, Oz magazine. Because it asks juries or magistrates to be the judges of whether material tends to 'deprave and corrupt', its meaning and application has shifted with the times. Whereas in the early 1960s it was still being applied to books that would nowadays scarcely cause a nun to blush, by the 1990s its use was limited to a few categories of porn, namely those depicting violence, animals, minors and scatological scenes, (though occasionally the presence of more than one male tumescence would be considered cause for prosecution). The public conception of what tends to deprave and corrupt, in other words, has shifted radically.

Now of course there's a strange circularity to applying this law (oft invoked in a defence speech to the jury), namely that having been exposed to the offending material, even for the purposes of judging its obscenity, you are, if it is obscene, more than likely to have become depraved and corrupted by it. To then declare it corrupting makes you something of a hypocrite if you continue to assert your moral integrity. And of course, if you haven't been corrupted, then you are, de facto, bound to declare what you have just observed not to be obscene. To declare material obscene therefore, you had to have absorbed its wickedness and become a slavering pervert.

Even if juries didn't follow the clever arguments, they got the point that the law was asking them to make hypocrites of themselves which they were increasingly less inclined to do. Lay magistrates though, continued to do their duty and carried on convicting the sellers of Spanking Academy et al well after ordinary Joes decided that sort of stuff was tame enough for public sale (perhaps they just wanted a peek?).

By the end of the 1990s the internet had swept a tsunami of pornography into every home with an internet connection and the poor old Vice Squad were overwhelmed. They quickly declared defeat and instead police efforts were concentrated on the far more worthwhile task of tackling child pornography and depictions of violence - material which involves criminal exploitation and severe harm to those depicted.

We now have laws specifically designed to tackle extreme pornography, and they have their root not in notions of obscenity or corrupting the consumer, but in the desire to protect the helpless victims of those whose images are portrayed. We are all universally agreed that this is a good thing. But we do still have a law of obscenity. I wonder if it's now time to say goodbye the 'deprave and corrupt' test and simply say that anything goes unless we have specifically banned it. If Professor Lajeunesse is right, there is, it turns out, nothing that consenting adults can do to each other in front of a camera not involving violence that is even capable of depraving or corrupting us. That being the case, I think on balance a 'banned list' approach would be far more sensible. All we would have to lose by adopting it would the potential for courtroom comedy. Many a barrister has had to endure the exquisite agony of keeping a straight face while responding to a mischievous judicial inquiry e.g. 'Perhaps, for the benefit of the jury, counsel would kindly explain what is meant by the initials A-MFF-ATM'. (If you got it, you've been depraved and corrupted, so be warned).