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Embracing evolving sexual habits vs. guarding traditional virtues

06 Sep 2021

  • The legal and social implications of the Pahanthudawa incident
By Sumudu Chamara A considerable portion of the issues the world is facing at present is mainly due to differences in opinions and people’s inherent tendency to construe what they believe as right and more appropriate than what is believed by another. This has caused much larger issues than mere disputes. However, it is this difference that can lead a nation and community to initiate an open discourse on protecting everyone’s right to have an opinion while ensuring that one’s own opinion does not violate another’s rights, and not fight over it. After a man and a woman were arrested for allegedly shooting and releasing a video on the internet of the duo engaging in sexual intercourse near the Pahanthudawa waterfall, Sri Lankans too expressed opinions in favour of or against their act. While some were concerned about the fact that the venue was a public one, some claimed that the alleged obscene nature of the video set a bad precedent to the country’s cultural and religious values.  There now exists a massive conflict of opinions that concern not only the said incident, but also the country’s values and people’s mindsets. Obscenity, sexuality, and society Something obscene is defined by the Cambridge Dictionary as “offensive, rude, or shocking, usually because of being too obviously related to sex or showing sex”. The issue that arises when addressing the above-mentioned incident, according to those who spoke with The Morning, is that although the said video displayed sexual intercourse, could it be called obscene? This is because sexual intercourse or nudity alone does not constitute obscenity. Writer, critic, and filmmaker Chinthana Dharmadasa said that Sri Lanka has not identified the distinctive difference between obscene publications and adult publications, and that therefore, the Sri Lankan society tends to consider all adult publications as publications of an obscene nature.   He told The Morning that for a certain publication to be considered obscene, it should have affected the people in general or there should be a victim. “For example, if a child has been used for the production of such publications or if a woman has been sexually abused, or an animal has been used for the same, we can call such publications obscene,” he added. He noted that in a context where there is no such element to the above-mentioned incident, the Sri Lankan society’s tendency to call it obscene is based purely on cultural factors, and that social discourse is necessary to address such incidents, where opinions of all parties could be taken into account. “If the said video was produced in the presence of other people, we could have called it an obscene incident, because other people may not like to see the duo having sex and such a sight may be psychologically disturbing. However, the said sexual act was videoed when there was no one around, and calling it obscene after watching it on a website meant exclusively for adult publications shows that it is the people’s minds that have become obscene. Also, in the case of an incident we call obscene, we should consider whether there is any artistic expression in the said publication, and if there is such expression in it, we cannot consider it to be obscene, which leads us to consider whether there is any public interest to it, which then calls for a public discourse.” Expressing a similar sentiment, Attorney-at-Law (AAL) Thishya Weragoda, another individual who has openly discussed the aforementioned incident, told The Morning that if there were other people with the couple when they engaged in sexual intercourse, such an instance would have made it a public incident and could have been considered obscene. He said: “Just because it happened in a public place, does not make it obscene. Had that happened in some other crowded and special place, such as a religious place, we could call it obscene, because that offends their modesty. First of all, we must look at how we define what pornography is and whether all pornographic publications can be considered obscene. If we are talking about nudity, it is not obscene.” Criticising the manner in which the media gave the above-mentioned incident undue public attention due to the people’s tendency to view such matters as a taboo, Dharmadasa opined: “In Sri Lanka, the emergence of topics related to sexuality is quite common nowadays, and sometimes, they attract more public attention than bigger and real issues, or the serious elements of the topic related to sexuality. These topics receiving more attention is a sign of a decadent society. This is the mistake the mainstream media and those using social media platforms made, and it encouraged the people to find and watch the video, which was originally published on an adult website meant only for adults.” He noted that even though Sri Lankan media, which both children and adults have access to, takes a step back in showing acts of romance, it has no hesitation with regard to showing violence and other similar detrimental behaviours.  Dharmadasa added that censoring publications meant for adults from a society due to the belief that such publications can adversely affect children, is unacceptable, and that there is a notion that only what children can watch should be accepted by society. He opined that by doing so, Sri Lankan society makes adults children, instead of giving children the opportunity to grow up with proper knowledge of the good and bad things that exist in society. Speaking of the liberal manner in which Sri Lankan society discussed matters related to sexuality, he added that until around 2005, Sri Lanka was a liberal nation and that a video of this kind would not have caused a public furore of this nature. Sri Lankan law  Speaking on the legal situation, Weragoda opined that he sees no reason to identify the incident that took place in Pahanthudawa as an obscene act, and that he does not believe any judge would hold it as such. “This duo involved in the incident are consenting adults, and they did not commit any form of violence upon a person. Also, the video the couple is said to have produced was published on an adult website, not on websites such as YouTube which are open to any person including children,” he added. Further, he noted that in Sri Lanka, matters pertaining to obscenity are usually addressed by the Obscene Publications Ordinance as amended. According to Section 2 (2) of the Ordinance, a person can be found guilty for several offences – for purposes of or by way of trade or for distribution or public exhibition, to make or produce or have in possession for purposes stated or otherwise, obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films, video cassettes or any other obscene objects; for the purposes above mentioned, to import, convey, or export or cause to be imported, conveyed, or exported, any of the said obscene matters or things, or in any manner whatsoever to put them into circulation; to carry on or take part in a business, whether public or private, concerned with any of the said obscene matters or things, or to deal in the said matters or things in any manner whatsoever, or to distribute them or to exhibit them publicly or to make a business of lending them; to advertise or make known by any means whatsoever, in view of assisting in the said punishable circulation or traffic, that a person is engaged in any of the above punishable acts, or to advertise or to make known how or from whom the said obscene mailers or things can be procured either directly or indirectly. Speaking further, Weragoda said that in every liberal, democratic country, there are certain things identified as obscene, and that they are usually acts pertaining to the exploitation of children, the trafficking of women, and rape or similar acts that are not consensual. He also spoke of how British colonialism affected Sri Lanka’s law, which, in turn, directly impacted the liberal culture Sri Lanka once had. “We had a very open and liberal culture. However, the British introduced new laws curtailing such cultural freedom. One of the best examples is the laws introduced by the British in 1859 to implement a one man-one woman marriage registration concept.” The legal provision Weragoda mentioned is in the 1859 Kandyan Marriage Ordinance, which was introduced by the British to abolish polygamy and polyandry, among other reasons. In this context, Weragoda added, the culture relating to sexuality and sexual intercourse that we are trying to protect and promote is not in fact Sri Lankan culture, but a culture which was introduced by the British, who later changed those legal restrictions in their country. Moreover, speaking on the importance of a proper legal system to address incidents considered obscene, Dharmadasa noted that one of the most prevalent issues regarding Sri Lanka’s law is that it is rarely challenged. He opined that since too few people come forward to discuss and challenge the law, necessary legal reforms are taking place at a snail’s pace.  He added: “Due to this situation, the question as to what is obscene and what is not has not been discussed or questioned before the legal system, and we continue to use archaic laws such as the Vagrants Ordinance that was promulgated as far back as in the 1800s. A law changes when it is challenged, and the law has to be re-discussed and questioned with new social trends which are inevitable in any society. Essentially, laws should change according to the society’s needs. However, in order for that to happen, such incidents should be discussed before a court, and that is why I believe that the incident that took place in Pahanthudawa should also be discussed in a court. That will allow us to see how the court addresses this incident, and since this is the first of such incidents in Sri Lanka, it will set a precedent for similar incidents in the future.” He further noted that certain other countries have laws regarding obscenity, and that some of those laws take into account three factors when hearing cases pertaining to obscenity; whether a child has been abused, whether the act in question was non-consensual, and whether animals, who naturally cannot give consent, have been used. Law and obscenity  The incident that took place in Pahanthudawa is considered by some as the first such incident reported in Sri Lanka, due to the lack of reports of such incidents in Sri Lanka’s legal system. However, the topic of obscenity has been discussed on many occasions within the legal systems of other countries. In the case of Roth vs. United States (US) (1957), the US Supreme Court (SC) created a new test for courts to determine whether something is unlawfully obscene, i.e. whether it is obscene or constitutionally protected. The case was based on the federal indictment of book publisher Samuel Roth, who had been charged with sending materials considered to be obscene via mail.  Before that, the US SC used a precedent from a British case, i.e. Regina vs. Hicklin (1868). The “Hicklin test”, which is the legal test for obscenity established in the case, states that if any part of the material was considered obscene, the publication as a whole can be considered obscene. It is noteworthy that there was no provision that pays attention to the social or artistic value of such material.   However, in Memoirs vs. Massachusetts (1966), the US SC held that John Cleland’s book Memoirs of a Woman of Pleasure, also known as Fanny Hill, was not obscene. Prior to reaching this decision, the court revisited the requirements it had established in Roth vs. US, that an obscene work must be “utterly without redeeming social value”.  However, in the underlying litigation, the Supreme Judicial Court of Massachusetts had held that the novel was obscene as it had only “minimal literary value” and as Roth did not specify that “a book... must be unqualifiedly worthless before it can be deemed obscene”. In the 1966 ruling, Justice William J. Brennan Junior had explained that this reversal was appropriate on the grounds that “a book cannot be proscribed unless it is utterly without redeeming social value”. He stated that social value must be “evaluated independently” of the other criteria, claiming that therefore, “can neither be weighed against nor cancelled by the book’s prurient appeal or patent offensiveness”. However, this view of social value was later rejected in the famous Miller vs. California (1973), which established what has come to be known as the “Miller test”. In this case, the US SC established new standards for determining what could be considered obscene materials and be subjected to restrictions. The three parts of the Miller test are: an average person would find it appealing to “prurient” or perverted interests; it offensively portrays an “actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post pubescent female breast”; and taken as a whole it lacked “serious literary, artistic, political, or scientific value for minors”. Miller vs. California was based on charges against book publisher Marvin Miller who was prosecuted in 1968 for mailing advertisements for four books, namely Intercourse, Man–Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography and a film titled Marital Intercourse. After being convicted by a jury under a Californian law prohibiting the distribution of obscenity, his conviction was affirmed by a California Appeals Court as well. However, he appealed to the US SC, claiming that the advertisements were not obscene. Nevertheless, the court affirmed his conviction. Later, lawmakers used the Miller test in the Child Online Protection Act (COPA) of 1998, to classify materials as obscene. The US Congress passed the Act with the intention of preventing minors from accessing obscene material on commercial websites. A coalition of civil liberty activists, however, challenged the constitutionality of COPA, claiming that the Act violated the First Amendment rights of adults by limiting their ability to receive and send information via the internet. Later, upholding an injunction issued by a Philadelphia Federal District Court, the Third Circuit Court of Appeals stated that the COPA was too broad for the intended task, and that “community standards” could not be applied to websites, which had no geographical boundaries. With regard to cases relating to obscenity, it is also important to look at the decision arrived at in Redrup vs. New York (1967) – a landmark decision in the censorship of written fiction. In this case, the US SC ruled that written materials that were not sold to minors, or foisted on unwilling audiences, were constitutionally protected, and it ended American censorship of written material. The case has two companion cases – Gent vs. Arkansas and Austin vs. Kentucky, which are collectively known as the “Redrup group”. The cases marked a turning point in the US SC’s efforts to establish a doctrine to deal with cases relating to obscenity, and were an important part in the US SC’s attempts to determine when sexual publications become unprotected obscenity from protection expression. The First Amendment – i.e. the First Amendment to US Constitution, which guarantees freedoms concerning religion, expression, assembly, and the right to petition – has been discussed on many occasions during several cases pertaining to obscenity. In Jacobellis vs. Ohio (1964), the US SC overturned the conviction of a movie theatre manager who had been prosecuted for showing a film considered obscene on the grounds of the First Amendment. The famous phrase “I know it when I see it” came into existence after this case. US SC Associate Justice Potter Stewart, during the case, stated: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”  In Paris Adult Theatre I vs. Slaton (1973) the US SC ruled that there is no First Amendment right to show obscene films. The case started after a District Attorney named Lewis Slaton sought a court order to prevent the proprietors of two adult theatres from showing Magic Mirror and It All Comes Out in the End, which allegedly violated state obscenity laws. In this case, the defendants claimed that the First Amendment protected showing such films to consenting adults. In Ginzburg vs. US (1966), which involved the application of the First Amendment to federal obscenity laws, the US SC ruled that evidence such as advertisements that publications were deliberately presented, and commercially exploited as erotic, is allowable in consideration of whether that material is obscene. It is considered as part of the US SC’s attempts to refine the definitions of obscenity after Roth vs. US. Even though court proceedings regarding the Pahanthudawa incident are yet to commence, it will be forgotten in some time. However, in a context where this is the first of such incidents that attracted public attention of this magnitude, it leaves society with many questions about what we think are the defining factors of Sri Lankan culture, sexuality, social values, the people’s right to engage in acts that do not violate anyone else’s rights, and the country’s law. Above all, it begs the question as to how prepared we are as a society to change with the evolving world and to respect different opinions.  


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