legal sex is a sexcrime

A couple of years ago I interviewed Tom Robinson about his 1976 song Glad To Be Gay. He told me of the police repression being meted out to gay men in London at the time he composed it.

Outrageous shit was going on. There were Surrey bankers dressed up in leather getting handcuffed and kicked in the backs of Black Marias, who’d then plead guilty to causing an affray so as not to cause a fuss and get their face in their local paper back home. Running in a gay man on trumped-up charges was apparently known as a ‘soft’ arrest – they could be pretty sure of a conviction and no trouble afterwards.

Fast forward a generation and, whilst being gay drew less state opprobrium, it was only if you kept it to yourself, were in private and not kinky. In the early 1990s £3m was spent on Operation Spanner, investigating and prosecuting a group of sixteen gay men for having pretty extreme BDSM sex. It had all happened in private, it was all consensual, nobody had complained of any injuries, or of anything else for that matter.

The judge ruled that consent was not a defence, therefore the men had assaulted one another and they were found guilty. He handed down sentences of up to four and a half years. Lives were ruined.

We can now jump the same timespan again and, with all the legal and social changes in the status of non-heterosexuals, you might have thought pointless persecution was over. But last year Michael Peacock was prosecuted under the Obscene Publications Act for making DVDs of extreme gay sex.

None of the acts were illegal but like a fussy old aunt from the 1950s the Obscene Publications Act says, 'I don't mind them doing it but I don't want them to talk about it in front of me'. It is making material likely to 'corrupt and deprave' that is illegal, even if what it shows is not illegal in itself.

As Johnnie Marbles said at the time

the men were shoving their hands up each others arses, pissing in each others mouths and using each others inflated balls as punching bags, and having a brilliant time doing it.

I’ll happily admit that the detailed descriptions of these acts, tweeted from the courtroom, made me feel squeamish on several occasions. But so what? Each time I so much as hear about X Factor I’m overcome with a deep, nauseous sense of despair, but for some reason I can’t fathom, nobody ever suggests banning it. Which is odd as, if you live in Britain with functioning eyes, you’re pretty much forced to know about X Factor, but anal fisting mostly keeps itself to itself.

If men were having their urethras dilated on the cover of More magazine, or the screams of men having their bollocks electrocuted was Christmas number one, I might understand the prosecution. Instead, Simon Cowell’s abomination (the show’s pre-production title) assaults me at every turn, while my first knowledge of Michael Peacock’s sex life came from his trial.

These kinds of prosecutions have been going on all the time as a modern equivalent of the 70s soft arrests Robinson talked about, the charges themselves serve the required purpose irrespective of the verdict, as Marbles astutely pointed out.

Michael Peacock has been severely punished for not committing a crime. The vagaries of the process itself – the soul-churning moment of arrest, the months of worry that followed, the endless meetings with lawyers... These are standard ways the process punishes people, but in Peacock’s case they were coupled with revelations about his private life which must have been excruciating. Even the most vanilla of you probably wouldn’t want your mum hearing every detail of what you do in bed, particularly not if you were telling her from the dock. 

They know you're likely to plead guilty and keep your head down. But Michael Peacock was the first person to plead not guilty for this kind of stuff and go for trial by jury and win.

His acquittal should have been a death sentence for such intrusive prosecutions that are nothing more than prudishness with a nasty seam of homophobia.

But there are people in the police and CPS who specialise in this stuff. They'd be out of a job if we let consenting adults do what they want with their own bodies in private. Having had Michael Peacock's smackdown for the Obscene Publications Act, the state has rummaged through the statutes laws and hit back with the Criminal Justice and Immigration Act 2008.

It's a law from the last Labour government. Section 63 outlaws the possession of images depicting sexual violence, carrying a sentence of up to three years imprisonment. The definition is a sexual image that shows – or realistically appears to show – something that threatens a person’s life, or is likely to result in serious injury to a person’s anus, breasts or genitals. As the whole point of much BDSM is to play out extreme roles, photos of it could certainly appear to show such violence.

Home Office minister Vernon Coaker explained at the time

the vast majority of people find these forms of violent and extreme pornography deeply abhorrent

In other words, if most people don’t like doing it then we should jail those that do it. The Act inconsistently failed to recriminalise homosexual acts or ban the eating of brussel sprouts, even though most people don’t like doing these things.

As it makes crimes out of things that aren't a crime, it was only a matter of time before the law was used against consenting adults for filming acts that are not in themselves illegal. That time has come.

Simon Walsh must have seemed like a soft target. Just as 1950s blackmailers would approach prominent men with secret gay lives, just as 1970s police would arrest those Surrey bankers in gay bars, so a contemporary gay barrister with what he himself calls 'a strange sex life' is ripe for the nicking.

If you're wondering why he was targeted by police, consider the fact that he was a barrister who prosecuted police officers accused of disciplinary offences. Let that be a warning to anyone who wants to challenge police corruption.

Walsh's lawyer Myles Jackman has blogged a clear rundown of the charges and legal aspects of the case. No pornography was found on any of Walsh's work computers. No pornography was found on his home computers either. Police had to go into a Hotmail account that Walsh used for his sexual activities, looking for anything to charge him for. Initially this included a picture of a man in a gas mask, supossedly illegal on the grounds that such a breathing aid might actually might cause death by asphyxiation.

As Heresiarch's Dungeon describes, Walsh did not make DVDs or websites. There is one picture sent to him of a young man who, the prosecution allege, may be under 18. It is not clear if Walsh even saw that picture.

Apart from that solitary contested image, we're talking about consenting adults photographing themselves committing legal acts, then sharing the pictures amongst themselves them and keeping them in a way that nobody else has access to. What proportion of the adult population do you think that could apply to?

For this, Walsh has had his career demolished and is currently on trial. He is being splashed across the press including allegations of paedophilia in - of course - the Daily Mail. As with Michael Peacock, even if he is acquitted he has been almost as severely punished as if he were found guilty.

Rather like Robert Stewart, convicted for masturbating alone in his locked bedroom with a bicycle, the law is used to punish people whose sexual tastes don't conform to what we are told is normal.

But, as the internet era has proven, exclusively normal sexual tastes are actually so rare that they constitute a kind of deviant fetish in themselves. If this kind of attack and social dismemberment can happen to Robert Stewart or Simon Walsh, it can happen to most people you know.