The news about proposals to make it more difficult for the police to prosecute artistic works on obscenity grounds in The Times last Wednesday coincided with a number of interviews asking young foreign tourists of what they thought about the police prosecution of skinny dippers in Malta.
The prosecuting powers in all criminal cases should be removed from the responsibilities of the police and moved to a Prosecution Services Office, as in the UK- Michael Falzon
Swimming in the nude is not allowed anywhere except except for specific beaches in some countries. Yet the attitude of the police when faced with a few young people out on some such silly frolicking changes according to the different norms and culture of the place where it happens. Most of the interviewed foreigners, while accepting that such activity is illegal even in their country, expected that a telling off by a police officer should be enough: arresting people for skinny dipping was considered an exaggerated reaction.
While we do not have thought or morality policing in Malta, there have been a number of instances when many sensed this thinking is not beyond some of our overzealous police officials. All this is a matter of subjectivity: what could be seen as obscene by one could be quite acceptable to another.
In the 1960s – when I was a budding teenager – the yardstick on this issue emanated from the 1960 decision in the famous obscenity trial of Penguin Books that had dared publish a full unexpurgated edition of D. H. Lawrence’s Lady Chatterley’s Lover. The trial of Penguin under the UK’s Obscene Publications Act of 1959 was a major public event in the UK and a test of that law that had made it possible for publishers to escape conviction if they could show that a work was of literary merit.
One of the objections was the frequent use of two particular four-letter words in Lawrence’s novel. Interestingly, on that occasion the prosecution was ridiculed for being out of touch with changing social norms especially after the chief prosecutor asked if it were the kind of book “you would wish your wife or servants to read”.
That decision had no direct impact on Britain’s colony in the middle of the Mediterranean where different laws and a different culture prevailed. It was at about the same time that Dom Mintoff was insisting that Malta’s new Independence Constitution should reflect his (in)famous six points, one of which stated that public morality should be interpreted according to principles accepted in Western Europe. The Church, which – with the connivance of Britain – kept Maltese society tightly under its control, obviously viewed such ideas as an attempt to undermine its privileged status quo.
It was the time when Archbishop Michael Gonzi used to insist that visiting foreign female circus performers, such as trapeze artistes, should not be allowed to wear two-piece suits… and the state respected his edicts to the letter.
A lot of water has passed under the bridge since then, of course. Viewed from a historical aspect, the proposals made by the working group set up by Culture Minister Mario de Marco to ensure artistic freedom are another stage of development towards the shaking off of the remnants of the shackles that once inexorably bound Maltese society to the myopic dictates of the local Catholic Curia.
I fully agree with de Marco who was reported to have said that “sometimes the problem is not the law itself but the way the law is interpreted or applied”. In any discussion on public morality and order, it is impossible to establish objective criteria. The idea that the police should not be free to decide whom and when to prosecute is very positive. I believe the prosecuting powers in all criminal cases should be removed from the responsibilities of the police and moved to a Prosecution Services Office, as in the UK. This should apply across the board and not just for cases of alleged obscenity.
Yet subjectivity remains a sine qua non. Reference was made to the ‘Miller test’ – deriving from a 1973 US court case that established the US Supreme Court’s test for determining whether speech or expression can be labelled obscene, in which case it is not protected and can be prohibited.
According to this test, a work is considered obscene only if all of three conditions are satisfied i.e. when “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest; when the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and when the work, taken as a whole, lacks serious literary, artistic, political or scientific value”.
Adapting this test for Malta would still leave the application of the law as a subjective matter. Changing the law on censorship in line with current norms is a constant exercise because morality is not static and the interpretation remains subjective. At the end of the day, however, changing attitudes precede all changes in legal stances.
micfal@maltanet.net