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'Fool the Axis, Use Prophylaxis' - my review of Ryan Mungia's fascinating collection of poster art, Protect Yourself, is up at the Kill Your Darlings site.  

Smut Detective: Pornography, the Historian and the Law*

As a PhD student at the University of Western Australia, I spent several years ferreting through the national archives to piece together the story of the regulation of pornography in Australia from 1945. Whilst leafing through some customs records I stumbled across a reference to a box of items confiscated by customs officials. [1] The box included a ‘boob bath mat’.

What, I wondered, did this boob bath mat look like and why was it so pernicious it had to be removed from its owner? I tried to picture the offending item. Was it a painting of breasts on cloth? A rubber contraption of upstanding boobs? A standard bath mat with the word ‘boobs’ dyed into the fabric? Intrigued, I approached the archive staff for permission to poke around in the box of contraband. The archive staff were friendly and helpful, as they always were, and we had a good laugh about what could possibly be so dangerous about mammary-inspired manchester.

In the end, I never did see that bath mat. There was some confusion as to whether it came under the jurisdiction of the Archives Act or the Customs Act. If the latter, it remained a declared item and therefore too dangerous for my delicate sensibilities.

The boob bath mat incident has stayed with me as emblematic of the story that I pieced together over the course of my research: fascinating in its interplay between the governed and the governing, illustrative of how what we consider ‘pornography’ changes over time, and often faintly absurd. Being a historian of pornography is like being a ghost hunter: you track something so nebulous it could be everywhere or nowhere but that, regardless of where it is, it scares the pants off people.

Take the very word ‘pornography’. You won’t find it in any Australian legislation. Nor is it listed in customs regulations as a prohibited import. The Minneapolis Ordinance pioneered by the American feminists Andrea Dworkin and Catharine MacKinnon is, to the best of my knowledge, the only instance where the word ‘pornography’ has been defined in law. Instead, the laws that govern the regulation of pornography in Australia, found in the Federal Customs Act, have typically proscribed what is ‘blasphemous, indecent or obscene’[2] or that ‘overemphasise[s] matters of sex and crime’[3]. Later, Australian law would require censors to consider ‘the standards of morality, decency and propriety generally accepted by reasonable adults’ when classifying material.[4]

So what, exactly, is ‘pornography’? And where does the regulatory historian even being looking for it? The answer lies in the pioneering Hicklin case, which set the precedent for obscenity cases in the English-speaking world. In 1868, a metal-broker from the English town of Wolverhampton published and sold copies of a pamphlet entitled The Confessional Unmasked. The pamphlet purported to be an accurate description of the debased sexual practices of Roman Catholicism. The presiding judge, Chief Justice Cockburn, ruled that:

 the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.[5]

 There are three things worth noting about this judgement. The first is that something that is obscene is known only by its effect (the tendency to deprave and corrupt) rather than by something self-evidently present in the representation such as, say, nudity or sexual intercourse. Secondly, not everyone is equally at risk of being depraved and corrupted, only those whose minds are ‘open’ to it. Thirdly, the effect doesn’t have to include a specific action as a result of the depravity. The very ‘libidinous thoughts’ themselves are an object of legal inquiry.

The Hicklin case and its influence ensured that pornography became inseparable from regulation. After all, if something has no objectively defining characteristic but is discernible only by its effect then someone or something has to be empowered to judge its presence. This fact was summed up brilliantly and without irony by Justice Potter Stewart of the United States Supreme Court when he declared, ‘I don’t know how to define pornography, but I know it when I see it’.[6]

The fact that the law declares pornography knowable only by an effect sets up a tricky regulatory problem. After all, if a publication’s tendency is to deprave and corrupt then judges, juries, censors and customs officials are in imminent danger, the more so since ‘familiarity with obscenity blunts the senses’.[7] If, on the other hand, judges and juries emerge morally unscathed from exposure to pornography then its tendency is manifestly not to deprave and corrupt. This insoluble tautology is perhaps the reason that the NSW government attempted to abolish trial by jury for obscenity matters in the early 1970s.[8] The attempt was unsuccessful and the Bill was defeated in the Upper House. The tautology has never really been solved, though censorship and classification boards have largely kept the predicament from public view by vetting material before it enters general circulation.

Parliament and its various functionary bodies have assumed a similar immunity to depravity and corruption. So in 1988, when the national parliament became so obsessed with X-rated videos that Gareth Evans said ‘it is getting to the stage where one almost has to be wearing a dirty mackintosh to feel comfortable coming into the Senate chamber’,[9] Senator Amanda Vanstone displayed a penchant for waving a porno video around to emphasise a point during her parliamentary speeches. (The video, apparently, was Bill’s Big Banana). At one point, Vanstone had the very pornographic images she objected to photocopied onto a press release and freely distributed. [10] (Not, however, before a commonwealth employee who staffed the Senate Print Unit refused to reproduce the sexually explicit scenes claiming they were ‘harassment’).

So if some people – judges, censors and parliamentarians – have minds ‘closed’ to the depraving influence of pornography, whose minds are ‘open’? Notwithstanding the Hicklin case’s determination that ‘the young of either sex’ were susceptible, it has typically been women and the poor that judges and censors have worried about. Pornography first became an object of the common law in the 1850s at the precise historical moment when the printing press made written material vastly more accessible and literacy exploded amongst women, servants and the middle class.[11] The result was the Obscene Publications Act of 1857. Prior to this obscene publications fell within the jurisdiction of the ecclesiastical courts and generally dealt with material that was both impious and obscene.

This concern about the effect pornography might have on women was perfectly articulated during the 1960 Lady Chatterley trial in London. The prosecutor asked the jury, ‘Is it a book that you would even wish your wife or your servants to read?’ This question certainly obsessed Australian censors in the 1940s and 1950s. The government, searching for a new test of indecency to justify the banning of James Joyce’s Ulysses in the 30s asked ‘whether the average householder would accept the book in question as reading matter for his family’.[12] In his review of My Sister, My Bride (1955/56), censor Kenneth Binns castigated the author for her lack of restraint, but bemoaned that ‘unfortunately this [restraint] is not usual with modern women writers when dealing with sex subjects’.[13] It’s a fascinating, not to say bizarre, statement given that 87% of the banned publications I located in this period were penned by men.[14]

It wasn’t until the late 1970s and early 1980s that the law, under pressure from anti-pornography feminism, was forced to investigate the place of men in the regulatory framework. It seemed that suddenly women, for so long passive objects of regulatory inquiry, started asking questions of their own. Questions like, ‘Does porn sexualise violence?’ and ‘Is male sexuality being perverted by unrealistic representations of female sexuality?’

The extent to which these questions came to the fore of public consciousness is illustrated by Janine Haines’ maiden speech to the Australian parliament in 1978. Haines was not only the first woman to represent the Australian Democrats in the Senate, but the first Democrat to be elected to the Chamber. In the course of her speech she claimed that:

 No amount of advisory counselling will improve the status of women if […] the Federal Government allows into the country, and state governments permit the sale of, the amount of degrading pornographic material which is at present available…How can women ever respect themselves if their bodies are photographed being subjected to treatments that are not legally permitted to be done to animals – simply for the perverted pleasure of some men? How can they walk with dignity if this sort of behaviour by some men has the tacit approval of others?’ (My emphasis)[15]

 There was nothing new about women objecting to pornographic material; the first postwar obscenity case (Lawson Glassop’s We Were the Rats in 1946) was brought before the courts by the Tasmanian Women’s Non-Party League. What was new was the demand that men account for themselves and the role they played in the production and consumption of porn. So long invisible, men suddenly became an object of regulatory inquiry. That experience was profoundly unnerving for some men.

Take, for example, what happened in the mid 1980s in the unlikely town of Dungarubba in New South Wales, not known for being a hot-bed of civil strife and political activism. Nine women descended on the local Apex club and began noting down the number plates of the cars parked outside. The two hundred owners of the vehicles were inside the club enjoying a ‘porn and prawn’ night. No women were invited. When the Apex revellers, many of them local businessmen, realised that their number plates were being listed, they spilled out of the hall and began urinating near the women. According to the Sydney Morning Herald, ‘the jeering turned to violence when two of the protesters started taking pictures. The women say one man twisted a camera strap around a photographer’s neck and broke her flash unit. Other men had to be physically restrained by their mates’.[16]

One man who lived in Minneapolis during the debating of the Dworkin/MacKinnon Ordinance summed up the shock and discomfort of having the regulatory gaze turned on him. ‘Often I felt as if I’d wandered into a city of women …My sense was heightened of living in a place where a culture that had little to do with my own attitudes was establishing itself’.[17] I remember encountering this discomfort myself during the course of my research. In 1997 I presented a seminar to a cultural studies class on the intersection of the personal and political in my research. What was striking about the seminar was the depth of sympathy and recognition it prompted from the female students. There was an overwhelming feeling of yes, yes and yes again. The male students listened in polite, slightly nervous silence. Not one asked a question or proffered an opinion. These were articulate, intelligent young scholars who were voluble enough on other subjects, but it was if they had abrogated the right to an opinion where pornography was concerned.

Perhaps responding to this feeling of abrogation, it is remarkable how fluent individuals with no sympathy for the feminist cause became in speaking the language of anti-pornography feminism in the 1980s and 1990s. So Senator Florence Bjelke-Petersen made use of a NSW Women’s Advisory Council Report that directly quoted radical feminist Andrea Dworkin.[18] NSW MLC and vocal Festival of Light leader Fred Nile was another to cherry-pick concepts from a philosophy to which he was otherwise hostile. Pornographic magazines, he claimed, were really ‘rape manuals’.[19]

These twists and turns, tautologies and absurdities characterised my four years of intensive detective work. Often I felt that I was following a fragile thread that might disintegrate under the lightest pressure.  No sooner did I feel I had a grasp on what porn ‘was’ than the dynamic between the governed and the governing changed and with it the legislatively constituted entity that is pornography. In recent years, porn has acquired a meaning that has nothing to do with sex and everything to do with gratuitous excess as in ‘food porn’ and ‘tragedy porn’. With the government’s proposals for an internet ‘clean feed’, the meaning of pornography is about to change again.

*This article was first published in volume 11 of Kill Your Darlings, 2012 and is republished here with relevant footnotes.

[1] Australian Archives (New South Wales) Series C3059, Series Title ‘Literature and miscellaneous records, classification’.

[2] Item 7 of the First Schedule of the Federal Customs Act.

[3] Item 22 of the Federal Customs Act

[4] Classification (Publications, Films and Computer Games) Act 1995, 11a

[5] R.v.Hicklin (1868) L.R. 3 Q.B. 360

[6] Jacobellis v. Ohio 378, US, 1984, 197 (1964)

[7] United States v. Harmon, 45 Fed, 414, 123 (D. Kan, 1981) in Abraham Kaplan, ‘Obscenity as an Aesthetic Category’, Law and Contemporary Problems, v.20, no. 4, 1955, p. 548

[8] Peter Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia, 1974, p. 47

[9] Senate, 14 June 1984, p. 3036

[10] See Senate Hansard 10 November 1988, pp. 2452-2464

[11] See Donald Thomas, ‘Hicklin: Deprave and Corrupt’, Censorship, no. 3, summer 1965, pp. 38-42; H. Montgomery Hyde, A History of Pornography, Heineman Press, Bristol, 1964, p. 12; Henry Whitmore, ‘Obscenity in Literature: crime or free speech?’, Sydney Law Review, v4, no. 2, 1963, p. 181

[12] Barbara Sullivan, The Politics of Sex: Prostitution and Pornography in Australia since 1945, Cambridge University Press, 1997, p. 34

[13] Australian Archives (Australian Capital Territory) Series A 3023 1955/56 Review of My Sister, My Bride

[14] Australian Archive Literature Censorship Board Reports for 1945-1963

[15] Australian Senate, 22 February 1978, pp. 50-51

[16] Tony Horwitz, ‘Apex Porn and Prawn Night Spoiled by a few women “stirrers”’, Sydney Morning Herald, 3 December 1985, p.3

[17] Philip Weiss, ‘Forbidden Pleasures’ in Michael Kimmel, Men Confront Pornography, Crown Publishers Inc, New York, 1990, p. 95

[18] Australian Senate, 4 April 1984, p. 1226

[19] Warren Clarnette, ‘The New Pornography: Summary of a Report from the Victorian Uniting Church Synod Board of Communication’, Church and Nation, 22 August 1984, p. 20



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