Warning: this column contains reference to sexual material which some people may find disgusting or distressing. Reader common sense is advised.
A couple of years back, I remember hearing a news story that the FBI had set up a special task-force charged with getting porn off the internet. I made a flip 'good luck with that' blog post and didn't think much more about it. I'm really hoping this doesn't come back to bite me on the arse, because writing about getting your arse bitten could now get you arrested.
In October 2003, Karen Fletcher, the operator of the Red Rose Stories website, was raided by the FBI and charged with obscenity. In May this year she announced that she would be pleading guilty to six counts of online distribution of obscenity. She will be sentenced next month. The charges related to material on the site which depicted the assault, rape and murder of children.
So far so 'happens all the time'. What makes this case different is that Fletcher was charged with obscenity - because the U.S.'s child pornography legislation covers images, not text. These were stories. At no point were any real children harmed in the writing of these stories, nor is there any indication that the authors do anything more than write. They are works of imaginative fiction.
Now, like me you might well be thinking, surely this would be covered by freedom of speech, right? Well, no. If speech can be labelled obscene, it's not protected by the First Amendment. The Miller Test determines whether or not a work is obscene:
• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
• Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value (the SLAPS test)
The thing about the Miller Test is that it shifts the burden of proof onto the defence. Rather than the prosecution having to prove that Fletcher's material was obscene, Fletcher would
have had to prove that it had SLAPS value.
It was a fight she might well have won, had she been prepared to fight it. Fletcher, however, suffers from acute agoraphobia, the result of sexual abuse she suffered as a child. According to Fletcher, she wrote the stories partially as therapy:
"The monsters in my life had always been real; for too long they were always there with unlimited access to me, and I was helpless to do anything about it," she wrote. "In my stories, I have created new monsters... Somehow, making these monsters so much worse makes me feel better, and makes my life seem more bearable."
Despite the dubiousness of its legal strength, the case has had a profound effect on the on-line erotica community. In September 2005, the Washington Post published a leaked internal FBI memo which stated: "based on a review of past successful cases in a variety of jurisdictions [the best odds of conviction come with pornography that] includes bestiality, urination, defecation, as well as sadistic and masochistic behavior." (These are the same areas of focus as the new British Extreme Pornography law.) From TrueTales.org (a leatherman site):
Beginning in late September 2005, a number of Websites containing SM material chose to delete that material or shut down, in response to the information in the Washington Post article. Among the Websites to censor themselves have been atruerose.com, kinkygurl.com, leatherquest.com, suicidegirls.com, UnderMySkirt.org, and three related Websites, houseofdesade.org, grandpadesade.com, and realbdsm.com.
The U.S. government didn't have to win the case to generate a wave of self-censorship. Sites did this out of fear of being prosecuted, successfully or not.
Personally, bestiality, urination, defecation and child porn all cross my squick thresh-hold. The inclusion of BDSM gob-smacks me, however. BDSM is the vanilla of kink. If kink were piercings, BDSM would be the earlobe. Despite appearing to depict torture, humiliation and non-consensual sex, BDSM has a codified consent process that would put the R.M.A. to shame.
One clause of the Miller Test interests me in particular: the one that relates to 'contemporary community standards'. When it comes to a website, what's the community? Websites don't have geographical location. Their community is their user base, that's why it's called the 'community'. Legally, however, the community is based on the physical location of the server. That's probably not the reason our own web-hosting service has just set up a new server in Nevada. Unless it is.
People who write kink erotica do it for all kinds of reasons. They don't want people who'll be offended to read it: that's why it's usually protected by a paywall or only available to site members. This was the case at RedRose, and it didn't help. Erotica often comes with little coded warnings for each story describing the content, so that people can choose what they want to read.
(Tip: you may be curious as to what 'crime scene' is. Don't be.)
Text has always been treated differently. You can walk into Borders and pick up Jacqueline Carey's latest Kushiel book no matter how old you are. There will be no warnings on the cover about the explicit BDSM content. Pictures can ambush you: they can be seared into your cerebrum before you have time to react. Text creeps up on you, and when it starts creeping you out, you can stop reading. At Bardic Web, our 'what do I do if I find some content disturbing' section contains detailed instructions on how to shut a browser tab. Or at least it did until last week, when we closed the Erotica section.
Livejournal has banned over 500 users for having squicky things listed as interests, even if they were rape or incest survivor support groups. I lost two interests myself to the subsequent 'strikethrough' bout: BDSM and Bisexuality. Livejournal and Facebook both decided breasts were obscene, even if there was a baby's head blocking your view. This new moralism has no hope of getting pron off the internet: I was right about that. What I hadn't realised was how much damage could be done trying.