NEWCASTLE, ENGLAND — The Newcastle Crown Court is poised to take up a case that evokes shadows of an American legal morass settled earlier this year.The British case against 35-year-old civil servant Darryn Walker is eerily similar to the American prosecution of 56-year-old Karen Fletcher, the erstwhile webmistress of Red Rose Stories. Fletcher, a woman so thoroughly disabled by agoraphobia that she could not leave her home and partially supported herself with 29 $10 monthly subscriptions to her website, posted fictional accounts of child rape and murder to Red Rose Stories in what she described as a therapeutic attempt to deal with her own sexual abuse as a child. Rather than face the ordeal of a public trial, Fletcher pleaded guilty to six counts of obscenity and accepted a sentence of six months’ house arrest and five years of probation. The case raised alarm among creative writers, free-speech supporters and advocates for the disabled worldwide.
Now Walker’s obscenity prosecution, due to begin October 22nd, is raising the same sorts of questions: Can fiction be a crime? Should so-called “thought crimes” even be considered by the courts, since no real persons are harmed? Where, exactly, should the line be drawn between fantasy and reality?
Walker was arrested during summer 2007 for the online publication of a fictional account of the kidnap, rape, mutilation and murder of members of the British girl band Girls Aloud. The case — brought to the attention of authorities by obscenity watchdog Internet Watch Foundation — represents the first Crown prosecution of written material in nearly two decades.
Part of the problem from the Crown’s perspective, according to published reports, is that “Girls (Scream) Aloud” blurs the lines between fiction and blog. It was published to an alt.sex newsgroup, and some observers have suggested it indicates stalking intent.
Of more concern to most observers, however, is that the Walker case represents the first modern test of the Obscene Publications Act, which has been in effect since 1959 but has seen no serious court action since 1991, well before the internet’s rise to prominence. A guilty verdict or a plea in the case could determine the amount of control the Crown has over content on the World Wide Web.
Like American laws, British laws can be vague and abstruse, failing to define terms in any concise way and leaving large swaths of verbiage open to serial interpretation. Under the Obscene Publications Act, material that tends to “deprave or corrupt” its audience is outlawed. In its first major outing during 1960 in a prosecution of Lady Chatterley’s Lover, the act was given a resounding rebuff where it appeared to intersect with fictional accounts of promiscuity.
The act hasn’t fared well since with respect to the written word. In 1971, a conviction of the publishers of Oz Schoolkids was reversed on appeal, and an acquittal in 1976 of the publishers of Inside Linda Lovelace caused the police effectively to abandon arrests under the law as pointless.
The most recent decision under the act, in a 1991 case that would have allowed David Britton’s Lord Horror to be destroyed without a jury trial, also was reversed on appeal.
All of the prosecutions have led legal scholars and free-speech advocates to assume the Obscene Publications Act held no sway over fiction.
The Crown appears determined to prove that notion incorrect, especially with regard to the Web. As one barrister put it, “There have been rumblings within the legal profession for some time over difficulties policing the internet,” Kirsty Brimelow, a barrister with Doughty Street Chambers, told The Register. “There is so much disgusting material that is easily accessible to the general public and can hardly be described as being in the public good. The legal system needs to tackle the internet and draw the line between unsavoury material and that which should be classified as criminal.”
But the Crown is engaged in a risky gambit. According to The Register writer John Ozimek, “The implication for UK surfers is immense. If another not-guilty verdict is returned, then written material on the internet — as written material elsewhere — will return to its present near-privileged status. On the other hand, a guilty verdict could change much. This is not just because certain categories of writing could in future be deemed obscene but, as the U.S. Supreme Court is usually keen to point out, the fear of prosecution itself is likely to cause a major chilling effect. Individuals will not write in case they overstep the law.”
