In Halbury’s Laws of England, there is only one attempt to make a legal definition of a disgusting act:
a disgusting act is one which fills the onlooker with loathing or extreme distaste or causes annoyance
What is most striking about this definition is that it’s clear a disgusting act is defined by its ability to affects others, it is presumed, to negative effect. The idea that it ’causes annoyance’ implies that such a sight is disruptive and intrusive. There is something of the spectacle about it. I have often thought that clichéd statement of outrage I have occasionally heard my mother use to describe me, “She’s making a spectacle of herself!”, is oddly appropriate for what it describes. Usually it refers to someone outstepping the norms of what we expect to bear witness to and they become visually memorable; a spectacle*. A disgusting act is therefore only a disgusting act because it is a visual spectacle that is considered or made in some way public, and can be said to offend public decency. The eye of the law can see, but it cannot necessarily bear witness to or feel. It is not, unlike a defendant’s experience, epiphenomenal. That is, the eye of the law can see only one primary phenomenon where many secondary phenomena may be occurring simultaneously. Interpretation of visual evidence is dependent merely on what a jury can see and what values they apply to what they see.
In other words, there is a sort of hegemony of the senses in law, a privileging of sight over other ways of analysing evidence. In R v. Brown (which I will come back to plenty..), a home-made recording of sexual activities that were later used to convict those depicted in them of sexual assault, despite the consensual context of the acts, was crucial to reaching a guilty verdict. The judge quipped that the video footage of the men’s consensual sexual activities were sufficient evidence against them because ‘seeing is believing’. Interpretations of the activities that happened that night were therefore swayed by using the recording as visual evidence, which in the eye of the law becomes incontestable; but the video tape also acted as a kind of ‘objective’ alibi against the testimonies of the defendants. It is clear, however, that the verdict reached was ideological and value-laden, and the role of the eye of the law in matters of obscenity and disgust is to apply value to what it sees. Furthermore, when the case was appealed, in the House of Lords decision it was said that:
“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is ‘uncivilised’.”
It is clear that no matter how the visual evidence was interpreted, the general principle of pleasure derived through pain, even in private between consenting adults, is the problem rather than any physical harm caused. There are various ideological reasons as to why parliamentarians think these are practices society should be morally protected from that I will undoubtedly write about in far more detail later, but briefly, I think this statement in the HoL covers at least two. There is the ‘slippery slope’ argument (the idea that unconventional sexual practices lead to further and deeper depravity, violence and immorality), the ‘harm’ argument (in obscenity law — and it’s worth bearing in mind that the ‘extreme’ porn clause only partially depends on definitions of obscenity — it’s the idea that deviation from sexual norms is degenerative and potentially damaging to societal harmony and good). The video tape’s existence, however, meant that the judgement could be reached within the eye of the law and therefore fall within an objective judicial gaze.
More importantly, what differentiated R v. Brown from a case that followed, R v. Wilson, was the ability of the eye of the law to gaze via an ‘objective’ alibi. In R. v. Wilson, the couple’s testimony that the branding was done for art’s sake rather than for sexual pleasure (although they admitted sadomasochistic tendencies), along with its being carried out in the privacy of their home, was taken as read in their appeal, and the conviction overturned. Additionally, the wife was held to be a victim rather than, as in the case of the men taking a submissive role in R v. Brown, an accessory to assault. However, there is also the mitigating factor that they were husband and wife. In R v. Brown, the defendants were a group of homosexual men.
In R v. Wilson, the court ruled that:
Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution. Accordingly we take the view that the judge failed to have full regard to the facts of this case and misdirected himself in saying that Rex v. Donovan [1934] 2 K.B. 498 and Reg. v. Brown [1994] 1 A.C. 212 constrained him to rule that consent was no defence.
It is easy to see that the eye of the law is an unreliable witness and that the definition of a disgusting act is easily saturated in ideological interpretation. But I want to briefly revisit the idea of the hegemony of the senses in law. Is disgust really experienced merely through sight? Is this the definition of disgust that can be best relied upon for a jury in a contemporary society to interpret evidence? One problem with previous attempts by legal theorists to wrangle with the role of disgust in law is that they tend to really be critiques of the ways in which disgust has been intergrated into conservative value systems and lawmaking rather than grappling with what the emotion itself really is and how it’s experienced, and how that affects the law’s construction. Of course, disgust is hardly an emotion exclusive to moral conservatives. Most recently, I hear the word used by friends primarily in connection with the Liberal Democrat party.. Needless to say, I don’t think I have answers yet. However, I know it’s not enough for me to merely deconstruct. To say, well, this is the law and I’ll point out its flaws but it’s still the best that can be achieved, is just not good enough. The gift of writing within the framework of legal theory is the ability to make practical suggestions of ways in which lawmaking might change, but it is also a curse. It gives my friends, colleagues and the students I teach the ability to quite legitimately ask: “That’s all very well, Alex, but what would YOU do?”
* Why the phrase usually refers to women is a whole different ball park…