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Are British law officials biased against gay sex?

Simon Walsh and Michael Peacock were both cleared of gay porn charges in UK courts, but why did the police and prosecutors take it that far in the first place?

Is the English legal establishment institutionally homophobic? That may seem an odd question, given the wealth of LGBT-positive initiatives put in place by police forces in recent years. But two recent prosecutions around gay pornography – of Michael Peacock in January for distributing it and of Simon Walsh for possessing it – are leading many in the non-straight community to raise an eyebrow.

Is this just co-incidence? Is it just that police and Crown Prosecution Service are ever so slightly ‘squicked’ by what some gay guys get up to in the privacy of their bedrooms? Or is it evidence of something nastier: a residual tendency to gaybash, long after the law has told them they mustn't.

Let's start with the law and the cases. Peacock was charged with six counts of distributing DVDs featuring male fisting, urination (watersports) and BDSM (bondage, discipline, sadism and masochism). The case was brought under Britain’s Obscene Publications Act 1959, according to which the test of criminality is whether the acts depicted tend to ‘deprave and corrupt’.

In the end, the jury appeared to agreed with the defense, that it was absurd to criminalize an individual for possessing images of acts – including fisting and watersports – which are for the most part perfectly legal when performed by consenting adults in private. They were also unimpressed by the bizarre view that it is ok to depict four-finger ‘fisting’ but not the full-on five finger experience. No guidance is currently available as to how images of a four-fingered fister would be treated!

Roll forward six months and it is the turn of Simon Walsh, sometime aide to London Mayor Boris Johnson and self-confessed fan of erotic adventure, including ‘scat’, urethral sounds (which involves the insertion of surgical instruments inside the urethra), and fisting. This time, Britain’s state prosecutors decided to rely on the Criminal Justice and Immigration Act 2008, aka the ‘extreme porn’ law, in their attempt at gold.

According to this, the test of criminality is where an individual merely possesses images that are sexual, realistic and results or is likely to result in ‘serious injury to a person's anus, breasts or genitals’.

Dropped – but only after it had done its job of high-profiling the case nationally – was a charge relating to a picture of a man in a gas mask. Presumably even the prosecution could see that a jury that needed BDSM 101 explanations of urethral sounding would be puzzled by the idea that possessing pictures of a man in a mask could be a criminal offence.

There is a fundamental dishonesty to this case. Arguing for this law, the UK’s last Labour government took pains to explain how it would only be applied to the worst possible cases, of which there might be 30 a year, where real harm was involved. Roll on three years and last year’s prosecution count broke through the 1,300 mark (as opposed to fewer than 80 for the Obscene Publications Act) – with countless cautions issued against blokes whose only crime was to receive and not delete a joke video clip from their mates. Add in the UK legal tendency to qualify laws with ‘potential’ – as happened a couple of years back when a judge ruled against video games that were ‘potentially harmful’ – and the scope for abuse of this law is intense.

Still: is this prosecution really motivated by gay hate – or something else? The Crown Prosecution Service (CPS) claim not – but, then ‘they would say that, wouldn’t they?’

Asked if they can provide details of Obscene Publications Act or extreme porn prosecutions being taken out against images of straight fisting, they splutter. They don’t collect such statistics – and trying to recall any such prosecutions (out of over 1,400!), they draw a collective blank.

One commentator who has followed these cases closely provides unexpected support for the CPS. This, she suggests, is nothing to do with homophobia as such: more that the CPS and police keep a weather eye on their public profile and calculate, coldly, that these topics make good copy. And they will ‘squick’ the general public. So what better subject matter to spearhead the war on extreme porn than male fisting?

Is that homophobic? Or merely cynical? A more nuanced response comes from Chris Ashford. He was an expert witness in the case, is a reader in law and society at the University of Sunderland and contributor to Policing Sex (published by Routledge Criminology), an academic study of how operational policing intersects with consensual sexual activity. His conclusion, looking at the policing of public spaces, was that the police were not so much homophobic as heteronormative.

How else to explain their continued obsession with what gay men get up to in private? The bottom line, according to Chris is that the majority of police cannot help but view sexuality through the kaleidoscope of straight normality – and cannot help but view whatever lies outside that as corrupting and dangerous. It is a view, he emphasizes, that has its parallels in the gay community itself: the ‘good gay’ (monogamous, drug free) vs. the bad (bareback, scat, fisting, poppers, group sex and public).

So in the end it isn’t some awful anti-gay conspiracy? Chris concurs. While there may be the odd homophobe in the police or legal establishment, these organizations are not consciously anti-gay. Rather, they are so bought in to a particular straight normality, they cannot help but see variations from that as bad. A little more open-mindedness might help. So, too, might a preparedness by the authorities to collect statistics showing the impact of laws on minority groups, particularly as the police already tend to carry out such analyses for racial minorities.

After a week and a half in court – and after having put his life on hold for over a year, waiting for his case to get to court – Simon Walsh was found not guilty at around 2.30pm this afternoon.

It took the jury less than three hours to reach a conclusion that the police and CPS between them could not: what adults get up to in the privacy of their own bedrooms is no-one’s business but their own.

Jane Fae is a writer who has made her focus the intersection of the law, IT, policing – and sex and sexuality. She can be found regularly writing on issues of individual and sexual liberty, with a distinctly feminist tinge. She is also a national co-convenor for Consenting Adult Action Network. You can follow her on her blog - janefae.wordpress.com - or on Twitter @JaneFae.

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