abhishreshthaa
Abhijeet S
What is Obscenity?
The concept of obscenity differs from country to country depending on the moral
standards of contemporary society.
The Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd".
In the United States, Pennsylvania Consolidated statutes in s. 5903. defines "Obscene." as
Any material or performance, if:
1. the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
2. the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
3. the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
5. What do laws in other countries say?
United States
In 1973, the U.S Supreme Court in Miller v. California3, set down what it deemed to be appropriate standard in relation to obscenity:
The basic guidelines for the tier of fact must be: (a) whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest….;(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and(c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.
Canada
One of the most progressive and liberal judgments on obscenity was Regina v. Butler4 by the Supreme Court of Canada. Some relevant issues discussed are noted below:
The Canadian Criminal Code defines obscene material as;
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. 5
The Supreme Court of Canada extensively interpreted the meaning of "undue exploitation, holding that the dominant test is a community standard one. However, it is the standard of tolerance, not taste that is relevant. What matters is not what Canadians think is right for themselves to see(but) what the community would (not) tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure".6
The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex, which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. 7
In order for the work or material to qualify as 'obscene' the exploitation of sex must only be its dominant characteristic, but such exploitation must be 'undue'. In determining when exploitation of sex will be 'undue', the courts formulated a workable test. The test being the 'community standard of tolerance' test.
In R v. Dominion News & Gifts, the court stated that the community standard test must necessarily respond to changing mores.
In R v. Butler, The Canadian Supreme Court held that the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate.
South Africa In South Africa, legislators have opted for a detailed list of prohibited material. Schedule 1 of the 1996 Films and Publications Act, as amended, defines the XX Classification of prohibited publications as material, which contains a real or simulated visual presentation of:
a. child pornography;
b. explicit violent sexual conduct;
c. bestiality;
d. explicit sexual activity which degrades a person and which constituted incitement to cause harm; or
e. the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm.
Japan
In Koyama v.Japan, the Japanese Supreme Court ruled that a work could be judged "obscene" under Article 175 of the Constitution if "it aroused and stimulated sexual desire, offended a common sense of modesty or shame, and violated "proper concepts of sexual morality."
" . . . [obscene matter] is that which wantonly stimulates or arouses sexual desire or offends the normal sense of sexual modesty of ordinary persons, and is contrary to proper ideas of sexual morality."
Britain
In Britain the law governing obscene publications is found principally in the Obscene Publication Act 1959. It states that an article is obscene if its effect or (where the articles comprises two or more distinct items) the effect of any one of its' item is, if taken as a whole, is 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 statute was objected by Lord Wilberforce of House of the Lords in 1972 stating that the statute offers no definition of 'deprave and corrupt' and does not even identify whether the concern is that the impugned material may cause people to commit wicked acts, or whether the mischief is simply that erotic desires may be aroused.
Namibia In 1998, The Namibia High Court in a land mark judgment held that sec.2(1) of the Indecent and Obscene Photographic matter Act, 1967 was unconstitutional as it was formulated in an overly-broad manner which was not intended or carefully designed to prohibit possession only of such sexually explicit material as may be proscribed under the Namibian Constitution. The court held that 'although expression may be under certain circumstances be restricted under the Namibian Constitution, the "claw-back" provisions should be interpreted restrictively to ensure that the exceptions are not unnecessarily used to suppress the right to the freedom of expression guaranteed in Article 21'.
The concept of obscenity differs from country to country depending on the moral
standards of contemporary society.
The Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd".
In the United States, Pennsylvania Consolidated statutes in s. 5903. defines "Obscene." as
Any material or performance, if:
1. the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
2. the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
3. the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
5. What do laws in other countries say?
United States
In 1973, the U.S Supreme Court in Miller v. California3, set down what it deemed to be appropriate standard in relation to obscenity:
The basic guidelines for the tier of fact must be: (a) whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest….;(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and(c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.
Canada
One of the most progressive and liberal judgments on obscenity was Regina v. Butler4 by the Supreme Court of Canada. Some relevant issues discussed are noted below:
The Canadian Criminal Code defines obscene material as;
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. 5
The Supreme Court of Canada extensively interpreted the meaning of "undue exploitation, holding that the dominant test is a community standard one. However, it is the standard of tolerance, not taste that is relevant. What matters is not what Canadians think is right for themselves to see(but) what the community would (not) tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure".6
The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex, which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. 7
In order for the work or material to qualify as 'obscene' the exploitation of sex must only be its dominant characteristic, but such exploitation must be 'undue'. In determining when exploitation of sex will be 'undue', the courts formulated a workable test. The test being the 'community standard of tolerance' test.
In R v. Dominion News & Gifts, the court stated that the community standard test must necessarily respond to changing mores.
In R v. Butler, The Canadian Supreme Court held that the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate.
South Africa In South Africa, legislators have opted for a detailed list of prohibited material. Schedule 1 of the 1996 Films and Publications Act, as amended, defines the XX Classification of prohibited publications as material, which contains a real or simulated visual presentation of:
a. child pornography;
b. explicit violent sexual conduct;
c. bestiality;
d. explicit sexual activity which degrades a person and which constituted incitement to cause harm; or
e. the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm.
Japan
In Koyama v.Japan, the Japanese Supreme Court ruled that a work could be judged "obscene" under Article 175 of the Constitution if "it aroused and stimulated sexual desire, offended a common sense of modesty or shame, and violated "proper concepts of sexual morality."
" . . . [obscene matter] is that which wantonly stimulates or arouses sexual desire or offends the normal sense of sexual modesty of ordinary persons, and is contrary to proper ideas of sexual morality."
Britain
In Britain the law governing obscene publications is found principally in the Obscene Publication Act 1959. It states that an article is obscene if its effect or (where the articles comprises two or more distinct items) the effect of any one of its' item is, if taken as a whole, is 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 statute was objected by Lord Wilberforce of House of the Lords in 1972 stating that the statute offers no definition of 'deprave and corrupt' and does not even identify whether the concern is that the impugned material may cause people to commit wicked acts, or whether the mischief is simply that erotic desires may be aroused.
Namibia In 1998, The Namibia High Court in a land mark judgment held that sec.2(1) of the Indecent and Obscene Photographic matter Act, 1967 was unconstitutional as it was formulated in an overly-broad manner which was not intended or carefully designed to prohibit possession only of such sexually explicit material as may be proscribed under the Namibian Constitution. The court held that 'although expression may be under certain circumstances be restricted under the Namibian Constitution, the "claw-back" provisions should be interpreted restrictively to ensure that the exceptions are not unnecessarily used to suppress the right to the freedom of expression guaranteed in Article 21'.