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Reputations tumble; men once popular and famous but too powerful are condemned and imprisoned. Others fear their reputations will not long survive their deaths. Others will ‘get away with it’ as presumably they always have. How will all this be viewed in decades to come? Witch-hunt or confirmation that Mary Whitehouse was right all the time and the sexual revolution is to blame? If so, what should society have done that it didn’t? What should it do now apart from lock up aged offenders? And what about juries? Will they, not judges, ultimately determine how law can be fair on sexual behaviour – assuming juries can ever discuss these things candidly.

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02 March 2016

Sex and the Law

Professor Geoffrey Nice QC


Reputations tumble; men once popular and famous but too powerful are condemned and imprisoned. Others fear their reputations will not long survive their deaths. Others will 'get away with it' as presumably they always have. How will all this be viewed in decades to come? Witch-hunt or confirmation that Mary Whitehouse was right all the time and the sexual revolution is to blame? If so, what should society have done that it didn't? What should it do now apart from lock up aged offenders? And what about juries? Will they, not judges, ultimately determine how law can be fair on sexual behaviour – assuming juries can ever discuss these things candidly.

Introduction

1.This lecture is rooted in questions I found interesting at various stages of my professional practice where I dealt with several different kinds of sex- related crimes. Developments over recent years – in particular the investigation, prosecution and public condemnation of historic sex offenders - have possibly made the questions more likely to generate interest even if some of the questions that now arise – for me – may cause hostility in some quarters. 2.Indeed some of the things I may ask could easily lead to attacks as sustained and unfunny as the attacks that followed my Israel-Gaza lecture where I dared to identify views found intolerable by some. We have to recognise how it is not just in the USA - which may be thought presently to 'Trump' us on the closing of minds to freedom of thought - that there is intolerance of selected ideas. And intolerance of ideas can lead to intolerance of permissible action, of what people should otherwise be free to do. So we must be bold – as Kenneth Williams used to say of Kenneth Horne in 'Round the Horn'. 3.This is to be – as you would expect of a lecture about sex – an interactive event. And I must turn first from unfunny to funny.

Sex is funny because we can't speak about it seriously

4.Please attend to what follows (the 'Johners' 'legover' broadcast) but without smiling or laughing and say at the end why it was funny. 5.In truth there is nothing really funny in the broadcast as consideration of any similar word slip that has no sexual allusion can show. In its own way our reaction to the broadcast shows that we cannot talk about the mechanics of sex seriously and we have to laugh about them, however dull they may be. Go to any theatre and hear the audience laugh at any sexual term especially if also effectively used as a swear word. It can wreck many performances and all because the audience knows no other way to react. Of course - and hard to know why so different – when depiction is on a film people will generally sit in silence, not giggling at detailed scenes of sex or at sex words or at bad language. Is that because the live theatre - unlike in the cinema - has about it the touch of being a conversation (even though it isn't) where the audience might have to react and needs to be defended from speaking at all by laughter? 6.Since I mentioned the radio programme 'Round the Horn' we should also remember that that programme, and many other shows of different types, used humour in a positive way to break down taboos and to move society and its moral standards.

Fantasies

7.Sex has much to do with fantasy. Let me try to make the same point about our inability to stalk seriously about sex by a fantasy I have had, one where a parliamentarian acknowledges his own indulgence in violent sexual fantasy as part of a parliamentary debate about an imagined drug to be introduced into the drinking water that could restrict us from crossing from the line of permitted and enjoyable fantasy to impermissible realisation of fantasy. After all, research shows that fantasy by both men and women includes imagined violent or forceful sex.[1] 8.Contrast another fantasy on a non-sexual topic. Note – ask – why only the one fantasy would ever be remotely possible. Talking about the realities of sex involves recognition of the risk, at a minimum, that fantasies will have strayed beyond the boundaries of the legally or culturally permissible and also that in the pasts of many men, in particular, that line that ebbs and flows may have been crossed. 9.People cannot speak about sex because they may well harbour suspicions about their own pasts, about whether they have crossed lines that they have publicly to condemn in the strongest terms in others who do. They my also be inhibited because of what they know or strongly believe about the real behaviour of friends or of work colleagues. And memory itself is degraded by the passage of time and the change in public mores. I well recall a friend of ours who worked on Jim'l Fix it for a time observing how Jimmy Saville would look at under age girls and refer to 'Mr Policeman', thus revealing his interest and his interest was or would be against the law. The memory is no more for our friend, I am sure genuinely. At its time it was probably irrelevant although by today's standard's it might be a most powerful piece of evidence in bringing a sex offender to justice.. 10.I was surprised last year to turn up a letter written in 1965 to me by the schoolteacher who ran a music /drama group for school leavers and people just in or out of university. He was, I guess, about 40. He wrote of returning to school to work observing that although the teaching was 'driving him mad he was 'cultivating two gorgeous third formers – usual trick – let them do the seducing, then wham'.

This letter reveals several surprising things. First that a grammar school teacher had clearly been able – if his bragging was accurate – to seduce young girls and get away with it. Second that he felt no fear in writing about his intentions that would be the end of career and possibly the route to the slamming of a prison door in today's climate, but third and fourth that I was not apparently shocked at receiving such a letter and was able to forget it completely, although I don't believe I saw the writer again. When I had calculated who it was from I checked his name in case – 90 years old though he would be at least – he featured anywhere; he didn't. Time changes morality, public and private, and with it our sensitivity and even our memory.

11.Another fantasy I have occasionally considered is where a headmaster explains to pupils and their parents at an induction meeting that what was termed as self abuse was entirely natural but better done at home, as the staff did, than behind the bike shed where it was likely to interrupt work.[2] 12.You may think these observations are simply designed to amuse you – not at all. In different ways they press home the same point; that however liberal as a society we think we have become, sex and the detail of sex is largely beyond public and even private discussion.

Abuse of children

13.My school, I have to say, seemed remarkably untroubled by the problems of some schools – masters suspected of being what is now called gay were not known to have acted improperly and were respected for their devotion to teaching. 14.But once I had got to university and to know boys from boarding public schools I heard one or two accounts of what teachers assumed to be their rights that were beyond my understanding – that it should happen and that the boys did not object or tell their parents so that they could object because they probably wouldn't. Parents even thinking regular thrashing of their sons to be no bad thing. 15.And the sexual abuse at some of those schools was, I imagine, part of an arc of abuse that had regular physical abuse at one end, linked or not to the violent teacher's sexual fantasies. Only recently a thoroughly nice chap I know gave an account of the clear sadistic relish of his headmaster at a famous boarding school, whose beatings were apparently to be endured without any hint that his parents would be interested or that the long term health or mental health of the boy concerned would be affected. I sat wide eyed as I listened wondering whether I would have had anything like the sang froid he had in dealing with what was taken for granted.

Living memory

16.Our discussion might benefit from consideration of sexual behaviour in Greek, roman, Elizabethan and Victorian times. But overall it may be sufficient to note that, in the last 6 decades since the start of the 60's, because people simply cannot and will not say publicly much or anything about what happens in private then morality itself changes to a degree unobserved – and this can be risky for the unwary - the doers - or to those to whom bad things are done – and we have seen much of this in the last few years. As we will consider shortly. 17.My professional career happened periodically to have me in cases that gave me a view of how things were changing, as I can now understand. 18.First, in the 1970s I prosecuted a few prostitute cases. I learnt about the warrens of rooms in Soho where prostitutes – with the security of a maid, would receive clients and periodically a scurrying figure of the rent collector who handed the excessive rents the prostitutes paid on to the true property owner, who would remain as distant from the property as he could (except when he was in the cupboard peeping onto the room through a hole in the cupboard door or, possibly, dispensing fatal injuries to a non-payer). The determination of the police to prosecute these men made some sense as they profited so excessively from the risky and (to me) unappealing activities of the women but I could see more to prostitution than vice. Much later a relation left me some very honest and revealing tapes about the approach of respectable but not privileged men, such as my relation was, in the inter war years and who, coming from the blue collar band of society, treated romantic liaisons with respect until marriage and saw in prostitutes women who should not in any way be under-regarded. But by the 1970's the revolution of standards was well under way – I recall how the ex-Russian princess teaching her language to South London boys at my school a decade earlier was happy to misquote MacMillan's 'you've never had it so good' as 'You've never had it so often' to make us laugh – the advance of liberty was well under way by the 70's. This meant that if you wanted to have sex you were expected to have it without pay; did this change the attitude to and downgrade prostitutes in the eyes of men and women? Was that, in part, what I was dealing with in the enthusiasm of the police to deal with prostitution 19.I next found myself prosecuting dirty books. And how dirty they were. Unreadable. Often violent and by way of one example, they frequently narrated so called stories of the clenched fist going into places where it was never intended to go. I could barely understand how what I was reading could be of any appeal let how any such act could be of any pleasure to anyone. 20.Before I turn to the trials of these cases the internet has enabled me to ask and answer a question that occurred to me back then in the 1980's. Was this 'fisting' a traditional practice of long standing? Not at all, says the internet (now riddled with suspicious inquiries made by me for the purpose of this lecture that I will for years be visited by horrid websites seeking to offer me all sorts of nasty things and services). This was entirely a 20thc practice rooted in San Francisco. If so – and assuming it would have been as alien to the caveman as would have been some of the other practices set out in these books, was writing about a physically damaging, non-productive, act of such excess corrupting? Did it show something about the vulnerability of humans to persuasion to enter the dark world of progressive degraded imaginations? Or do I sound like Mary Whitehouse? Much more recently – rarely really believing these stories – a reconstruction surgeon confirmed that books like these did reflect some reality when he let out, as an aside, how he and his team had to extract from unexpected places Coca Cola bottles and the like on which an unfortunate 'host' had sat in haste and error. Well really 21.I found it almost impossible to read these hideous books but on one weekend I took them home to find passages to convince a jury of the case I was to present. I was asked by very respectable lady visitor what case I was doing and I weakened to allow her to scan one or two of the books. And despite everything there seemed a fascination; she did not throw up. She read on a bit. How could that be? 22.Trials of these books – for being likely to deprave and corrupt – gave the opportunity to be against the late John Mortimer, creator of the very human and humane Rumpole of the Bailey. Sometimes when he was prepared to have his clients plead guilty he would approach a judge who would be intimidated by this great advocate and agree in advance to a suspended sentence or less – 'of course Mr Mortimer, yes Mr Mortimer, only just corrupting Mr Mortimer'. When he chose, or had, to fight cases he would never read the books as he made clear by holding them upside down while giving the jury his freedom-of-speech address that would always knock for six my careful identification of pages here and there that must surely have demonstrated that they would deprave and corrupt. I always lost. Perhaps the jury were quite unable to discuss the realities of the terrible activities portrayed and accepted from Mr Mortimer that freedom of speech meant freedom to write almost anything. Perhaps they thought Mary Whitehouse a busy body and by voting for an acquittal were in some way rejecting the limited forces of conservatism battling sexual liberalisation of all kinds. 23.On one trial that very nice chap who told me about the violence he suffered at school was defending and suggested to the jury that the books on trial was no different from' what one would expect to see in your son's 'tuck box 'at school'. His client was convicted. Perhaps this was class prejudice trumping freedom of speech or jury anxiety about what might deprave their future leaders if tuck boxes really did contain such material. 24.Dirty books that could be prosecuted were part of the much broader range of material known as pornography. Pornography – soft or hard – has it attackers and defenders. It cannot be said that it is necessarily and overall likely to increase cases of sexual violence; some argue on the basis of statistics that it can have the opposite effect. Its burgeoning since WWII seemed unstoppable having effects one way and another, with a very substantial majority of men and women viewing it sometimes or often since the arrival of the internet, all reflective of that changing morality that surfaces in spikes and at different places. Available statistics about the viewing of pornography and of its availability to children are – to those who fear it is capable of harming us – truly alarming. But it is now effectively a majority interest. However, to lodge in our minds, Playboy gave up Centre Fold recently. So what comes next? 25.I got out of dirty books as soon as I could but was drawn to prosecute and occasionally to defend cases of sexual abuse of children. 26.Dame Janet Smith's Report into Jimmy Saville and the BBC contains an excellent Chapter 3 on general background. Paragraph 3.70 of that report allows me to introduce a limited amount of history where she sets out how: 'since Victorian times, British society has recognised the need to protect children from sexual abuse, although it is only fairly recently that it has appreciated how much protection is needed. According to the text Child Abuse: Law and Policy Across Boundaries:

"The single unifying term 'child abuse' encompassing all child maltreatment emerged in the late 1960s and early 1970s. In the 19th century no single term was used to designate adult-child sexual contact. 'It could be called unlawful carnal knowledge, incest, criminal assault, an outrage, an unnatural act, a slip.' Similarly the child protectors of the 1880s and onwards used several terms, predominantly 'child cruelty' and 'child neglect', to define the types of evil which they were intent on preventing and punishing. Even when the term 'child abuse' began commonly to be used in the 1970s, it was used primarily to refer to the physical assault of children. The term became all-encompassing in the late 1980s when the problem of child sexual abuse became more widely recognised. The, now common, use of the term 'child abuse' gives the impression of a universal consensus about what acts and omissions are abusive; however this is far from true." [3]

27.In paragraph 3.71 Dame Janet sets out some of the relevant statutory provisions:

3.71
From the 19th Century, the criminal law sought to protect children from sexual abuse. The Criminal Law Amendment Act 1885 provided for offences of carnal knowledge of a girl under 13, and from 13 to 16. Later, a range of offences from rape to unlawful sexual intercourse, gross indecency and indecent assault, to name but a few, covered sexual acts against children. The Sexual Offences Act 1956, a consolidating statute, provided for offences in relation to children (girls) under 13 and children (girls) under 16, with heavier penalties for the former. There were separate offences of buggery and what was then termed "gross indecency" between men. Further offences of indecent conduct were provided for in the Indecency with Children Act 1960, which used an age limit of 14 years. There was (and still is), however, no legal definition of "paedophile" in English law, although there were various offences (some of which I have mentioned above) under which those who sexually abused children could be prosecuted.

28. I prosecuted a couple of large child sex abuse cases in 1990 and 1991 and they included what had already become standard suggestions of 'paedophile rings'. Many technicalities still affected proof of crimes but what was most obvious to me was that these crimes were committed by people of very limited chances in life, limited education (possibly actually limited intelligence) who lived in pretty unsatisfactory accommodation and were unlikely to have a great deal to do with their lives outside work, if they had any. In most or all cases there was indication - or even hard evidence - that the abusers had themselves been abused. How should we deal with that? At what stage does a person of limited ability have to be punished for things done that maybe he can't resist. And what a terrible waste of life – any life, the life of the abuser and more important of the abused.

Historic sex crimes

29.All of which in time brings us to Jimmy Saville. With some celebrities it is possible – we understand – to feel respect and for some to feel envy. Even those Hollywood stars famously addicted to sex probably have some men say: 'If only it could have been me ho ho ho….' as they see the happy smiling face of an idol whose only personal idolatry was the genre of beautiful women available to him. But Saville also smiled and looked content. Was he? Was his exercise of power like that of the Hollywood star? Was he internally excited by what he achieved (given he famously disliked children, so it is said) or was his a horrible body to inhabit and was it one that may itself have been constructed by abuse perpetrated on him? One thing is now clear – he had or developed an appetite that society's structures did little or nothing to restrain. 30.Dame Janet in her Opening Statement said this: Most important of all, in the 1970s, 80s and 90s, child protection was very low on the BBC's radar. In this, the BBC was far from alone. At that time, our society did not recognise the prevalence of sexual abuse of children; complaints were disbelieved and therefore rarely made. We were not sufficiently shocked by the signs of older men being sexually involved with teenage girls and we were unaware of the damage which such unequal relations could cause. Sexual harassment was not taken seriously. 31.And these things were all happening, it now seems to me, just when the strongest undercurrent in society was working against any control in an environment where even to criticise relaxation of sexual controls might attract aq reputation for being old fashioned, repressive or worse. And there was, of course, good reason for much liberation: the long process of an individual's sexuality being publicly acceptable and something that would no longer prejudice her or was in train and clearly – at least according to nearly all European standards – needed encouraging. It was likely to be difficult to be permissive and encouraging of acts recently regarded as criminal by the law and by many in society on the one hand and yet to be trying to tie down permissive acts on the other. 32.And so things were done in lax environments where there was probably misplaced admiration for the liberties some men took by other, more timid friends and colleagues. The doers thought they would 'get away' with what they did. They probably often thought it was not even something that needed getting away with. They thought they could be as immune as Rock Stars (for the most part) appear still to be but they overlooked that the liberal public morality they thought would protect them was never publicly stated (It could not be) and could be denied when the reality of harm done by them to the objects of their interest became known. And once that started to happen the line dividing fantasy from acceptable reality was ebbing or flowing against them. They should have left as fantasy what they put into effect. 33.Dame Janet's report provides snapshots by particular witness of reality:

Paragraph 3.32: A journalist told me that, while working at the BBC in the 1980s, he had seen a crowd of young girls standing in the corridor waiting to get into the Top of the Pops studio. He said that it was hard to tell their ages as they were "made up to the nines" but from the conversations he overheard, he had the impression they were there in the hope of "bedding the presenter".

Paragraph 3.65-6: Tina Ritchie, who, in the early 1990s, worked as a newsreader on BBC Radio 1, described hearing of "a lot of sort of bottom slapping of women in the office" at Egton House, which contrasted with her experience in current affairs at Broadcasting House. She attributed the contrast to:

"these incredibly famous men surrounded by people who did exactly what they wanted because they were incredibly famous. It is sort of one feeding the other, and everybody surviving slightly on a culture of fear, because one word from a presenter and you would be in trouble, which is why I didn't say anything".

3.66 One witness, who worked in BBC Radio 1, said there were lots of "wandering hands, comments about your body chaps just felt it was perfectly fine to put their hand on your bum and other places." Another who also worked in BBC Radio 1 described how a colleague would put his hands up the front of her jumper while she was working. When she complained to her manager, the reaction was to ask her if she was a lesbian. In the witness's view, "if it didn't come from the top, [this culture] was supported and endorsed and allowed to continue from the top".

34.These very general considerations may set the scene sufficiently for me to ask the questions that arise from the title of this lecture. But there is something else we might want to have in mind. The culture – and the legal cases that have bring the culture into consideration – is largely one of and for part only of our present society. It is a part that the minister relating his fantasy could readily understand, not least because of common education and youthful experience. But in our multi-ethnic multi-national society there are many other groupings some of which have cultures that seem to treat women with much greater distance and possibly much greater respect. But do they? Do we actually know anything about the reality of their private lives? Perhaps not. In this country this sort of Gresham audience will be getting better by the day at dealing with covered women or those who decline any physical contact with men except their husbands – not even a handshake; we may even get to know and not be disturbed by extreme sects where men avoid all contact with women - to the extent, as a recent NY Times article revealed, of having women moved on planes when seated beside men of the sect. We can certainly read of men in societies abroad deprived of the company of women altogether, until a dowry is raised and paid, and of the effect that that will have on the sexual lives of men with men – and we can know that these sects may soon be parts of our society. But we may know nothing of what happens in private – locked away from us by double doors of privacy and secrecy. It is hard enough for us to deal with our present problems derived from private and public morality and immorality where crimes against children have been only recently properly understood and where in the 19th century Oscar Wilde could be pilloried in public for what was – apparently – largely acceptable in private among the ruling class. Other society – other sections of society – will have as many conundrums to unravel if universal standards are to be applied, as all our present public thinking would appear to demand.

Criminality – Wickedness – Suffering

35.I have no difficulty in thinking the men (occasionally women) who do these things to be wicked, even if they are only repeating in adult life what they had experienced as children – but as one of a number of really unappealing questions to be asked in this modern age. Is it possible that in particular environments victims – like my friend from a famous public school – are NOT affected in the way he claims by physical violent abuse? Is it possible that another friend sexually assaulted by the headmaster of the famous public school he attended on the very last day at school is not affected – in fact I was never sure he maintained that he was not but his family made no complaint? 36.Should we hope both were unaffected (because it means they will not have suffered or be changed) or should we today seek articulation of suffering so that we can be more condemning and seek more punishment for the people who abused such children however long ago? 37.This brings me to the almost unaskable question that arises from many exchanges with mature women friends as they hear or read about the abuse of young women by famous, usually much older, men. Often I hear exasperation by my friends at the fact that such a 'to do' is made of what they would have dealt with by a slap round the face or similar and that they would not conceivably have been as changed as the girl victims say they have been. Are these women actually suppressing the reality of what happened to them in slap-face incidents? Were they in fact damaged but unable to acknowledge as much?

Can we progress?

38.Throughout the time I have had occasionally to think about these things I have been quite unaware of active steps by government to change our private or public morality save to the extent the law and criminal cases may deter – all too late, for so many victims, it must be thought. 39.Access to pornography barely regulated, limitations on what can be shown on TV and the screen all abandoned – and with the enthusiastic support of all liberally minded people like me. Scornful contempt of people like the wretched Mart Whitehouse, for those who remember her. Or was she so wretched after all? 40.Her nemesis at the Bar was Jeremy Hutchinson, QC, 100 years old last year. He Defended Christine Keeler; the pro-Soviet spy George Blake; and Charlie Wilson, one of the Great Train Robbers. His professional life covered the very period of our present concern – and he was always on the liberal wing of society into which he had been born personally privileged. 41.He successfully defended Penguin Books on charges of obscenity when they published Lady Chatterley's Lover in 1960, and did similar work for the film Last Tango in Paris and the play The Romans in Britain. 42.Charles Moore of the Daily Telegraph, an unlikely choice of commentator for me, wrote a congratulatory piece about Lord Hutchison that showed how sometimes great age can take someone into a world they might never have expected to come – and in this case into a world where Mary Whitehouse might be better regarded than she was after she lost many trials against liberals represented by Hutchinson. Moore's survey – differ in viewpoint foprm Dame Janet Smith's or mine, is worth reading in full. He explained[4]: 'People like Hutchinson stand for liberty rather than state power, and for the jury system and the rule of "live and let live". There has always been an unpleasant streak in the British character which likes punishing people, and until the Sixties this was dominant in the judiciary. The Hutchinsons of the legal world fought for the quality of mercy, and mostly prevailed. It is also shocking to think how readily books and films could be banned. Partly because of technological change, partly because of greater tolerance, it is now unlikely that a free country would try to suppress a book by law. Even if it did try, it would not succeed for long. But it does not follow that the post-Sixties society created by all this change is liberal in the good sense of that word – open-minded, generous, freedom-loving. There is a real cultural and social ugliness.

Take the cultural aspect first. Mervyn Griffith-Jones, the QC who prosecuted Lady Chatterley's Lover, has forever been mocked – and is mocked again in the Hutchinson story – for counting the number of times "four-letter" words are used in the book (the most famous one appears on 30 occasions, he reported to the court). Yet I doubt whether art has been improved by feeling free to swear its head off. The fact that certain words were taboo gave them potency, and added to humour as people circled round them.

The idea that everything has to be full-frontal is an anti-artistic one.

The same applies to the depiction of sex. No one could say that Shakespeare was shy of the subject, but he managed pretty well without showing the act itself on stage. Both Last Tango in Paris and The Romans in Britain were prosecuted because they included explicit scenes of anal sex – rape in the latter case. I do not think it was a good idea to try to ban them, but nor was it a good idea, artistically, to put them on. It is a stupidly literal-minded attitude to art which says that such things must be shown, as if nothing else is "honest".

Today, no avant-garde production is complete without a scene of sexual violence or (to use a word that is not treated with enlightened tolerance) perversion. Indeed "avant-garde" is an absurd term for what has become a rigid convention. The brave, innovative play today would be one about a vicarage tea-party in which everyone said "please" and "thank you" throughout.

In the mainstream, there is a similar effect. Woe betide the soap opera or television drama in which the cast keep their clothes on throughout. The concepts of restraint, suggestion, ambiguity, which are central to art in all its forms, have been lost. Even comedy benefits from such rules, and suffers from their lack. It was a nadir in our cultural life when, in 2008, Jonathan Ross and Russell Brand left an obscene telephone message taunting the elderly actor Andrew Sachs and played it on Radio 2. Ross was the highest paid entertainer in the history of the BBC (£6 million a year at the time). Somehow the freedom won in the Sixties had curdled into crudity and cruelty.

Campaigners like Mary Whitehouse were laughed at for complaining about a "tide of filth", but it does not seem an inaccurate description of what resulted. They were also considered ludicrous for asking: "Is nothing sacred?" Yet it is a good question for society to ask itself. If the answer is "No", you can be certain that life will become more barbaric.

Which brings me to the social effects. How did the new freedoms work? It is clearly a good thing that fewer women today have backstreet abortions, but is it a good thing that hundreds of thousands have permitted ones on the NHS? It is welcome that children nowadays have sex education, but is it welcome that they learn about sex roles from pornography on the internet? The amount of material pushing very young girls to make their bodies more sexually attractive is not a symptom of liberation, but of imprisonment.

The tale of Jimmy Savile is the classic example of how the Sixties concept of "fun" acted as a cover for something much darker. Mrs Whitehouse's warnings about the exploitation of women in the brave new liberated world were seen as fuddy-duddy at the time. They now seem almost fashionably feminist as we learn more about how powerful men were able to exploit the breaking down of boundaries.

With any social change, you have to ask "Who benefits?" It is obvious that the liberalisation of the Sixties benefited the educated classes. They could collect high levels of public subsidy for plays that savagely assaulted the people whose money they were taking. They could be "brave" (how that word is abused), literally without having to pay the price. Freed from control by stuffy figures like the Lord Chamberlain (who was in charge of censoring plays), they could establish cultural hegemony

It may not have been so good for those in weaker positions – the girl told she mustn't say "No"; the groupie in the disc jockey's studio; the young woman wanting children in a secure marriage. Read what happened to some of those caught up in the liberation – Maria Schneider after Last Tango in Paris, Linda Lovelace after Deep Throat – and you get a sense of the cost.

The Mary Whitehouses lost the argument. Perhaps they deserved to do so, because their only solution to the problems they identified was to try to ban whatever they did not like. But they did have a sense that civilisation is fragile, and that things which are low and disgusting make it more so. They were right about that. The more extreme reformers had no such sense, and thought that individual choice trumped the good of society every time. They were wrong.

So a happy century to Jeremy Hutchinson, who represented decency even when he defended indecency. But a happy century too, to the Women's Institute, which has contributed a lot more to human happiness than the Royal Court Theatre. We have hardly begun to work out how to create an order in which the law is liberal but the social restraints are strong. I suppose I am talking about the Big Society, but it might be better to find another phrase.

Conclusions

43. I am not sure that even now if Mary Whitehouse were around I would support her. But I can be sure that those caught up and punished heavily for what they did decades ago might wish she had had more sway and been of more effect. The Stuart Halls and Rolph Harris's of this world are unlikely to think the short term pleasure all those years ago was worth the long term suffering and disgrace by which their lives will end. They would probably say – even Saville might have said – it would have been better for there to be a moral compass set that encouraged what should be at best - or worst - fantasy should stay as fantasy, that they could have succeeded in public life with all its trappings without abusing their positions but that there was no restraints effective on them. 44.But there is nothing we can put in the drinking water to control us. Ultimately it is our society that must do what it can to bring under control behaviour derived from the animal need to reproduce and not to allow that impulse to be extended for commercial reasons - or by reason of fashion - incrementally to behaviour that has no place on the streets, in the studios and the work places of powerful men, in the unhappy homes of people subject to limitations or even in the bedrooms of the otherwise fortunate and well educated. Expressed at its simplest – and perhaps most unrealistic – we should find better things to do.


© Professor Geoffrey Nice, 2016


[1] Knafo and Jaffe (1984) found that university males were more likely to endorse the fantasy "I imagine that I rape or humiliate a woman or women," for example, whereas women more frequently reported the fantasy "I imagine that I am being overpowered or forced to surrender." Interestingly, Kanin's (1983) study of women's "rape fantasies" suggests that, in many cases, these fantasies were "something quite different from rape. . . they appeared to be reporting erotic fantasies about being aggressively approached and sexually engaged, but in situations where they offer only token verbal resistance, if any, to a highly desired encounter".

[2]Percentages of Males and Females Reporting Masturbation in the Past Month and Past Year, Ages 14 - 70+.

PAST MONTH PAST YEAR

AGE MALE FEMALE MALE FEMALE

14-15 42.9 24.1 62.1 40.4

16-17 58.0 25.5 74.8 44.8

18-19 61.6 26.0 80.6 60.0

20-24 62.8 43.7 82.7 64.3

25-29 68.6 51.7 83.6 71.5

30-39 66.4 38.6 80.1 62.9

40-49 60.1 38.5 76.0 64.9

50-59 55.7 28.3 72.1 54.1

60-69 42.3 21.5 61.2 46.5

70+ 27.9 11.5 46.4 32.8

Source: Herbenick, D et al. (2010). Sexual behavior in the United States: Results from a national probability sample of men aged 14-94. Journal of Sexual Medicine, 7, (suppl 5), 255-265).

[3] C. Hoyano & C. Keenan, Child Abuse: Law and Policy Across Boundaries, Oxford University Press, 2007, p. 7

[4] http://www.telegraph.co.uk/comment/columnists/char...

This event was on Wed, 02 Mar 2016

Geoffrey Nice

Professor Sir Geoffrey Nice QC

Professor of Law

Sir Geoffrey Nice QC has practised as a barrister since 1971. He worked at the International Criminal Tribunal for the Former Yugoslavia – the ICTY – between 1998 and 2006 and led the prosecution of Slobodan Milošević, former President of Serbia.

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