In his opinion piece ‘Civil right to objectify women’ (July 27) on the proposed reform to obscenity laws, Kevin Aquilina seems to erroneously imply that the primary purpose of the legislation is to lay the foundations for an international porn film industry in Malta for commercial reasons and at the expense of women’s dignity.
Let me start by clearly declaring that the intention behind Bill 113 was not the legalisation of pornography for economical gain or the debasement of the female sex. Rather, it is to do away with an archaic and vague obscenity law regime, which can, and indeed already has, threatened to put artists behind bars or subject them to other forms of criminal punishment.
Bold steps were already taken in 2012, when the government liberated theatre and film from the censor’s grasp in favour of classification, but those reforms did not take into account other artistic mediums and the fact that censorship could still be applied by subjecting theatre and film to criminal law post-publication.
Admittedly, legislation on sexuality and religion was bound to be controversial. Regretfully, however, sensationalist and alarmist tendencies have unjustifiably tried to shift the focus of this reform on to sex shops and porn TV. Of course, these tendencies are baseless. The article titled ‘Sex shops unlikely to proliferate’ (the Times of Malta, July 13) already discredited the notion of any such sex shops flourishing in the digital age and another article published elsewhere quoted the Broadcasting Authority saying that absolutely nothing will change from the present regulatory scenario insofar as TV is concerned once Bill 113 is approved by Parliament.
Why shouldn’t art explore the darker sides of humanity, warts and all?
Indeed, it does not make sense and it is unfair to try and drag Bill 113 into a debate on the merits or demerits of pornography.
Instead, I would like to explain why we proposed this reform, its importance and why it has been received so favourably by the artistic community and other sectors of the population.
Firstly, the recognition that moral principles are not static but change with time. If this were not so, then surely women should still be told how they should dress and what their societal role(s) should be. Surely, men exploited women more when they were less free. The law, as a living instrument, must reflect such changes.
Secondly, the basic principle that no person should face criminal punishment over subjective evaluations on what may be deemed “obscene” or what may have a “tendency to corrupt”. Rather, the purpose of criminal law should be, wherever possible, to impose punishment after forensic and objective proof of harm that is beyond all reasonable doubt.
Perhaps not many might know this but the law (the one Bill 113 seeks to change) defines obscenity and pornography as any material, the dominant characteristic of which is an undue emphasis on sex, violence, cruelty and horror. Under this definition, 80 per cent of films and literature such as Playboy or Fifty Shades of Grey should be banned outright and its distributors fined or put behind bars.
Thirdly, the idea that it should no longer be the function of the State to act as the moral custodian of a consenting adult population. Rather, the State should ensure that the public is given prior information or knowledge as to the content of certain material – the choice is then up to the viewer, reader or listener.
Yes, it is about time that we treat adults as adults.
Finally, and perhaps most importantly, the fundamental notion that freedom of expression, despite its limitations, is ultimately the rule and “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population” (Handyside v United Kingdom, European Court of Human Rights, 1976).
All of this seems to have been missed by some conservative quarters in their critique of Bill 113. So, too, has it been conveniently left out that the draft law proposes to specifically criminalise “revenge porn” (a true degradation of a person’s dignity and sexual propriety) which, to date, no European State has done, bar France and the United Kingdom.
Rather than instilling needless fear in this manner, I would have expected a more reasoned debate, such as how we can truly strengthen legislation on sex trafficking, prosecution on all forms of domestic violence (which is not taken seriously enough), non-consensual sexual activity between couples, sexual harassment and abuse, and so on.
Quite frankly, I cannot fathom how we aspire to become a European cultural centre when we still punish art and artists in this manner or by forcing art to be simply dull and aesthetically pleasing. For why shouldn’t art explore the darker sides of humanity, warts and all?
By all means, use this Bill as a platform for discussing all of these important issues but do not rush to such irrational conclusions. Perhaps the 19th century British Cardinal John Henry Newman said it best when he claimed that “it is a contradiction in terms to attempt a sinless literature of a sinful man”.
Andrew Sciberras is a practising lawyer and was involved in the drafting of Bill 113.