The naked and the damned

Legislation invoked in the tussles over the borderline between art and obscenity is a dinosaur and irrelevant today, argues Lynda Nead.

The Crown Prosecution Service last month decided to prosecute the University of Central England under the 1959 Obscene Publications Act. An art student took some photographs of images in a university library book on the work of Robert Mapplethorpe for a thesis on "Fine art versus pornography". The West Midlands police were alerted by someone in the photo-processing laboratory; the police seized the book and sent it to the CPS. After months of deliberation, CPS lawyers decided that two of the Mapplethorpe images were likely "to deprave and corrupt" and asked the university to destroy the book. The university refused and so the stage was set for the latest in a long history of tussles over the borderline between art and obscenity.

It is a depressingly familiar story. So familiar, in the case of Mapplethorpe, that the two images concerned have already been the subject of contest in previous public cases. Jim and Tom, Sausalito, 1977 was the focus of a notorious debate in the American Congress in 1990, and of a court case in Cincinnati, to establish whether Mapplethorpe's work was art or pornography. The second image, Helmut and Brooks, NYC, 1978, was withdrawn from the 1996 exhibition of Mapplethorpe's work at the Hayward Gallery, London. The student dissertation was thus rehearsing a familiar cultural debate. Art specialists have become expert in defending the aesthetic integrity of Mapplethorpe photographs against attacks by over-zealous politicians. In this context, the decision of the CPS lawyers appears ludicrously outdated and the case looks certain to prove nothing more than the inconsistent assumptions on which legislation is based.

One of the central functions of obscenity legislation is to draw the line between art and obscenity; to define what may count as art and for whom. Historically, obscenity legislation has controlled mass culture and insulated high art and private collections from legal intervention.

Modern regulation of obscenity emerges in the 19th century, with anxieties concerning the nature and influence of mass urban culture. Cheaper printing methods and rising literacy levels, along with the concentration of populations in urban centres, made it less and less certain into whose hands a picture or book might fall. The fear was that dangerous material would fall into the hands of vulnerable groups such as women, children and the poor, those with a predisposition to depravity or without the self-discipline to resist it.

The first dedicated obscenity legislation was passed in 1857, after a crusading campaign in the House of Lords by the Lord Chief Justice, Lord Campbell. Campbell feared the poisonous effects of cheap, mass culture, made possible by new printing technologies. The new publications were ubiquitous, promiscuous and dangerous and Campbell wanted them outlawed and destroyed. The Obscene Publications Act introduced new, harsher penalties for the dissemination of obscenity and, above all, the destruction of the obscene goods concerned. Campbell intended that the legislation should be directed to the public dissemination of mass-produced obscenity and should not apply to high culture or to the private consumption of art. Pictures in private collections, Campbell confirmed, were not for sale but for contemplation; the private enjoyment of explicit images of cultural value were a matter of "taste", not a subject for legal intervention.

It soon became apparent, however, that the distinctions between high and low, between legitimate and forbidden culture were not as clear-cut as Campbell imagined. Among the objects seized by the police in the first raids after the passing of Campbell's act were stereoscopic slides and photographic images of unclothed men and women. Were these obscene or were they, as the defence maintained, artists' materials, substitutes for living models for those wishing to study the nude?

The problem for the legal regulation of obscenity is the body - both the body in the image and the body of the viewer. Within the history of art, one ubiquitous manifestation of the unclothed body is found in the genre of the nude. The nude is an icon of western high culture, a symbol of civilisation and cultural accomplishment. The term describes the transformation of the human body into the ideal forms and expectations of high culture. The nude is, to paraphrase the words of art historian Kenneth Clark, the body deprived of clothes, reclothed in the forms and conventions of art. But the classification of art and obscenity rests on the states of two types of bodies: the body represented in the image and the state of the body of the viewer. If art is concerned with unity, harmony and stillness, then obscenity arouses and motivates; the obscene image is an incentive to action and this expels it from the sacred realm of art.

It should come as no surprise, then, that within the history of art, the nude has been the battleground for avant-garde identity and shock tactics. From Courbet, Manet and Picasso to Mapplethorpe, artists have reworked the conventions of the nude to shock. A shock is a violent physical or mental disturbance, a response of horror or disgust that shatters the integrity of the viewing subject. It is also a familiar avant-garde strategy, and it can take art to the borderline of legality. Images of disturbing bodies produce troubled viewing bodies and the law is on the look out for trouble.

The legal definition of obscenity in terms of the likelihood "to deprave and corrupt" confirms the association of the image with forms of behaviour. The definition was first given by Lord Chief Justice, Sir Alexander Cockburn, in an 1868 case R v. Hicklin. Since 1868, obscenity legislation has been chequered with extraordinary cases and outrageous judgements. The unsuccessful 1961 trial of Penguin, which was planning to issue Lady Chatterley's Lover in paperback, has become a key moment in the legal regulation of obscenity. During the trial, the prosecutor, Mr Mervyn Griffith-Jones, told the jury that the question they should ask themselves was: "Would you approve of your young sons, young daughters - because girls can read as well as boys - reading this book? Is it a book you would have lying around in your own house? Is it a book that you would even wish your wife or servants to read?" For all in the late 1990s, these words represent the fatal cracks in an outmoded piece of legislation.

The most that can be hoped for in any ensuing trial of the University of Central England is a moment of comparable entertainment and footnotes in legal histories. What is beyond doubt is that current legislation is a dinosaur. Photography is a particular form of visual imaging; it connotes the reproduction of something real and bears the traces of bodies and actions. The targeting of reproductions of Mapplethorpe's 1970s photographs signals the limit and inevitable end of obscenity legislation that originated in the context of the reprographic technologies of the mid-19th century. Electronically generated images belong to an entirely different cultural world. Within this context, the present obscenity legislation is patently irrelevant. Let us hope we can avoid hasty new legislation and consider more critically the function of obscenity law and whether it is appropriate to the cultural complexities of the 21st century.

Lynda Nead is reader in history of art, Birkbeck College, University of London.