Censorship is no substitute for enforcement

A recent legislative reform to abolish censorship through the removal of criminal sanctions for ‘obscenity’ seems to have attracted attention for all the wrong reasons.

Earlier this month, Justice Minister Owen Bonnici announced that his government would be amending archaic obscenity laws to (among others) remove the threat of imprisonment for ‘vilification of religion’, while regularising pornography within certain limitations.

The reform was intended as the next logical step following the abolition of the theatre censorship board in 2011 – in response to an outright ban on a controversial play called ‘Stitching’– and the recent court judgements in the case against author Alex Vella Gera, over an ‘obscene’ short story published in a University campus newspaper.

But there is more than just censorship at stake in this reform. Even if unchallenged, Malta’s old obscenity laws were notoriously difficult to enforce as they lacked any clear definition of what was deemed ‘obscene’. Under the 1975 legislation, anything that ‘unduly emphasised sex, crime, horror, cruelty and violence’ could theoretically be banned.

So apart from decriminalising obscenity in public expression – including, but not limited to, artistic expression – the amendments also sought to supply workable definitions of ‘obscenity’ and ‘pornography’. The new law establishes that only ‘extreme pornography’ will remain illegal. This is defined as “an act which threatens a person’s life, an act which results in a person’s severe injury, rape or a non-consensual sexual activity, sexual activity involving a human corpse, and any act involving a person and animal.”

By establishing clear legal parameters, the amended legislation also effectively ‘legalised’ pornography that falls outside this ‘extreme’ definition. And it was this aspect– almost a by-product of the reform – that attracted most criticism.

The latest reaction came from the Malta Confederation of Women’s Associations, which deplored the reform as  ‘a huge step backwards’ for women’s rights.

“Pornography, like prostitution, is yet another form of violence against women and in the majority of cases feeds into the system of exploitation of vulnerable women and young girls,” it said in a statement. “The porn industry seeks to make profit from material that is targeted mainly for male consumers with lack of mutual pleasure and a void of crucial concepts of mutual consent and respect between women and men.” 

Naturally, the MCWO is well within its rights to raise the alarm over the objectification of women, and many of its causes for concern are justified. Nonetheless, it would be a mistake to lose sight of the primary objective of the reform, especially when arguing in favour of a culture of censorship which simply didn’t (and couldn’t) work in practice.

For one thing, the accessibility of online pornography in today’s world had effectively rendered the old law – which for obvious reasons placed emphasis only on print and film – entirely toothless. This renders the MCWO’s concern with ‘licensing TV channels that transmit pornographic content’ somewhat anachronistic. One does not need to subscribe to TV channels, when online porn sites are only a mouse-click away.

Besides, it is debatable whether the aim to ban pornography of all kinds can be described as legitimate. Applied to the Internet, this can only be achieved by levels of State control that we associate with totalitarian or fundamentalist regimes. Surely, this would also be a ‘huge step backwards’ for the country.

When balanced against the adult’s right to choose for himself (or herself, for that matter: the recent success of ‘Fifty Shades of Grey’ among women has also dented the perception of pornography being an all-male affair) the argument for a blanket ban on pornography starts to appear weak.

The MCWO’s main contention is that the pornography industry is by definition exploitative, and that women are sometimes ‘coerced’ to participate in sexual acts. Both these statements may well be true; but are they enough to justify state censorship on moral grounds?

Regarding the issue of exploitation, this is by no means limited to pornogarghy. The MCWO itself adds ‘music videos’ to the list of agencies contributing to today’s culture of female objectification. Does this imply that the proposed ban could be extended to music videos… many of which undeniably contain explicit visual references to sex?

Moreover, the MCWO’s other (legitimate) concerns are already envisaged in the legal amendments, which explicitly ban pornography involving the coercion of women – or any other category – against their will.

The emphasis of the new legal definition is on the word ‘consent’. And while this is admittedly difficult to prove in some cases, one cannot dismiss all pornography as non-consensual. There is such a thing as a regulated porn industry (in other countries) involving professional porn actors and actresses. 

The MCWO’s concern is therefore related to pornography that falls outside the ‘mainstream’ variety found on sale in sex shops all over Europe. To address this concern one does not need to ban pornography outright, but to improve enforcement of existing laws.

Ultimately, one cannot allow personal distaste with such things as pornography to interfere with the right of consenting adults to choose for themselves what they can or cannot consume in a free society. 

In this regard, censorship is no substitute for proper enforcement of the law.