In the recent case involving a Cincinnati art gallery, jury members deemed the late Robert Mapplethorpe’s photographs “lewd,” “grotesque,” and “disgusting” but still they didn’t find them obscene. The jurors had been convinced by a parade of “experts” that the pictures possessed artistic merit. Even though they thought the sexual practices depicted were patently offensive, the weight of the defense testimony made them concede that the pictures were “works of art” and therefore, could not be judged obscene.
In a similar case in Ottawa this November, a jury was asked to rule on obscenity charges made against two albums of songs by the Dayglo Abortions, a group of three performers who go by the names of Cretin, Couch Potato and Jesus Bonehead. The albums themselves are entitled Feed us a Fetus America and Here Today Guano Tomorrow.
Crown Attorney Celyenne Dorval thought that playing the albums for the jurors, pointing out the liberal use of four-letter words and the appearance of such themes as rape, bestiality, Satanism and murder, and asking the jurors to use their common sense, would be sufficient.
But defence lawyer Marlyss Edward maintained that the jurors had to consider all Canadian society. “Would we permit others to see and hear it?” she asked, even if we found it distasteful, even if we never wanted to see and hear it?
One of her witnesses, arts columnist Daniel Richler, said of one song’s lyrics to one song dealing with masturbation, murder and sex with animals, “There’s a lot of irony. I can’t take it literally.” Richler described the group as descendants of the punk rockers of the 1970s, whose vulgar language and “blustering, bone-crushing sound” were a protest against musical and political establishments.
Other witnesses held that undue exploitation of sex was not dominant in the records, but that they were expressions of rage, disaffection and alienation. One witness, a psychiatrist, contended that the songs would have a beneficial rather than a harmful effect on young people, enabling them to rid themselves of violent and anti-social feelings rather than increasing them. Ms. Edward finished by instructing the jury that, though they might find some of the songs unpleasant, community standards involved a question of tolerance.
Crown Attorney Dorval ridiculed the idea that the songs used sexual imagery as expressions of alienation: the imagery was there to sell records. The songs portrayed violence, sodomy and bestiality in such a way as to clearly violate community standards.
The jury deliberated for almost ten hours. At one point it asked whether every song had to be judged obscene, and Justice Louise Charron replied that if only one song was considered obscene beyond a reasonable doubt that would be sufficient. Still the jury finally brought a verdict of acquittal.
Record companies and civil rights groups called it a victory for tolerance. Rather more sensibly, Des Burge, spokesman for the Catholic Archdiocese of Toronto, expressed disappointment. “The law is meant to protect decency and public morals,” he said. “If it’s not doing that, then it should be tightened up and improved.”
Three observations are in order:
• The defence evidence psychiatrist’s evidence ran contrary to the findings of many other researchers, including experts Edward Donnerstein and Heil Malamuth in their clinical experiments, and William Marshall in his work with sex offenders. It is clear that exposure to violence and strong sexual imagery does not curb anti-social attitudes, but heightens them. This has been demonstrated again and again.
• Defence counsel Edward commented that the concept of community standards is “almost a mystical notion” and difficult to apply in practice. On the contrary, the good sense of most people can be trusted – as long as they are not swayed from good sense by so-called expert witnesses, as appears to have happened in both the Dayglo and Mapplethorpe trials.
Most people would say that an album with a title like Feed us a Fetus America ought not to be on sale in Canadian stores and that songs dealing with themes such as murder, suicide, Satanism, rape and bestiality are certain to violate community standards and should be banned.
• This case makes it abundantly clear that obscenity laws need strengthening; that the federal government should not have bowed to pressure from writers, publishers and intellectuals by withdrawing its anti-pornography legislation; and that it should introduce similar legislation again and make sure it passes.