Too obscene to be seen?

The BBFC's ban on The Human Centipede 2 raises moral and legal questions.

by Jane Fae

Human Centipede provoked controversy

Human Centipede provoked controversy

Whilst the BBFC may have justified last week's refusal to issue a rating to The Human Centipede 2 on the grounds that it is only following orders - sorry, just obeying the law - it is hard to escape the suspicion that, yet again, it is applying legal standards in a way that is partial, selective and designed to play to a certain sort of nannying liberal intellectual consensus. We'll defend to the death your right to free speech but, ugh! Do you really have to say icky things like that? There is, too, an element of snobbishness involved.

Let's start with the basics. I didn't watch the first Human Centipede: the proposition (mad scientist decides to staple three human beings together, mouth to anus, followed by much gloating at the result) struck me as something I didn't even want to think about, let alone waste two hours of my life watching. It appeals to a certain sort of film-watcher, who enjoys blood and guts and gore and is possibly sufficiently versed in the workings of this genre to spot when a director is, er, pulling your leg(s).

Still, I don't watch. Any more than I would watch vast swathes of bloody 18 output. Or A Serbian Film. Or The Human Centipede 2. Does that, thereby, disqualify me for commenting on such films? Yes. And no.

Yes: it would be ridiculous to ask my opinion of the finer points of narrative and tone in respect of these works. But no: it seems perfectly reasonable to take a view that, on the basis of available evidence, there is no direct causative link - the "monkey see, monkey do" argument advanced by would-be censors - between what is shown on screen and what individuals do.

That there is probably a complex link, engaging social standards, personal upbringing and a host of other factors besides seems quite possible. But we allow for complex links all over the place - between zealous religiosity and rape, for instance - without thereby banning or condemning.

Besides, this whole business of reaching a view without ever actually applying an objective test is precisely what the BBFC do all the time when it comes to the law. First off, and their fall-back in days gone by, is the possibility that a film might be sufficiently shocking to fall foul of the law on Obscenity.

This comes into play where a jury takes the view that a work "tends to deprave and corrupt". That's a difficult one to call, and the history of obscenity is littered with cases where the Crown Prosecution Service spent hundreds of thousands of pounds from the public purse pursuing individuals for publishing obscene material, only to withdraw at the door of the court or to go down to ignominious defeat when the matter was placed before a jury.

Police activity in this area is also not exactly the best guide to what is obscene. A common police practice over the years has been to impede the flow of what they regard as obscene material by seizing the stock of adult stores, holding on to it "pending investigation" and then releasing it back to the store owner without charge once its commercial value had seriously diminished. If you are opposed to porn and "that sort of thing" you may consider such action justified. But as far as due process of law goes, it sucks.

So how do the BBFC know what is "obscene" - and therefore ought not to be released into the public domain: they ask the experts (aka police and CPS lawyers) what sort of material juries are likely to consider obscene. So, according to these experts, juries in many parts of the country would find the practice of "urolagnia" (aka "golden showers") obscene.

We asked the CPS if they had any stats as to when the last prosecution in respect of this practice happened. They don't. What we do know, however, is that prosecutions for obscenity are a dying breed. A report from the CPS themselves has just 82 charges under the Obscene Publications Act reaching the magistrates' courts in 2009-10. It is likely that not all of these succeeded or were continued.

Yet the BBFC steadfastly refuse to rate films containing this practice - even extending the ban out to anything that features what they consider to be "female ejaculation" which, again, with very little evidence, they maintain is no more than pee - and therefore quite unshowable.

If the BBFC's use of the OPA as figleaf for various decisions more to do with taste than genuine obscenity is questionable, there is also the way in which they, together with the courts, have extended the scope of the Video Recordings Act 1984 (re-released in 2010 after the original was discovered to have been passed "improperly"). This Act requires the BBFC to have regard for any harm that might befall a "potential viewer".

However, sitting in judgment on adult-content game Manhunt 2, Mr Justice Mitting in 2008 decided that the BBFC had misinterpreted the term as referring to actual harm when it should be considered in a wider sense of potential harm. Since when (and previously, in respect of bdsm content) the BBFC has been assiduous in its determination to clamp down on material that might cause "potential harm" - which, if one takes a literalist view of the world, could mean almost anything.

Their excuse, post Mitting, is that they are only following the law. But that is possibly, again, just figleaf obscuring the personal preferences of the censors. Little stops them from appealing this decision. So one conclusion, again given the way in which the VRA is quoted in respect of the Human Centipede, is that it provides them with a useful backstop when faced with material they really, really don't want to pass.

In this instance, one argument is that the Human Centipede includes narrative that includes an individual committing a rape after wrapping barbed wire around his penis. Sure: if someone actually copied this, it would be potentially harmful - in all sorts of ways. But so, too, if they copied any one of a dozen feats from the latest James Bond movie.

"Potential" harm is infinitely flexible - and also overlooks a specific provision that applies in the case of obscenity: that the tendency to "deprave and corrupt" must be judged relative to the likely audience. In essence: you can't deprave an audience that is already depraved. Which therefore brings into question the BBFC's long held opposition to bdsm material on the grounds that it looks a lot like abuse.

Except that, as most within the bdsm community are well aware, practices that are outwardly non-consensual are in most cases fully consensual. The BBFC is judging a particular genre, a particular lifestyle, by standards that are wholly outside that lifestyle - whilst not applying the same standards to middle of the road, equally dangerous practices.

However, those planning to download the Human Centipede 2 from the web should beware. The irony of the refusal to rate this film is that it remains the same film it was a week ago - including some quite realistic violence of a sexual nature. With the BBFC certificate it would be lawful to watch. Without it, it would quite possibly be a criminal offence, according to legislation regarding "extreme porn" passed in 2008.

Watching it may indeed be potentially as well as actually harmful - to your liberty.

Jane Fae blogs on public affairs at Sexuality Matters

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