Refused Classification: An Introduction to Australian Obscenity Laws

 

Hugh Hefner, the iconic but morally questionable pioneer of the Playboy empire, has died.

Hef’s aesthetic was limited and the ‘bunny lifestyle’ he propagated probably played a not insignificant role in the growth of Trump-esque, mediocre men since at least the 1980s.

Nevertheless, his death provides a good opportunity to talk about the porn businesses. In particular, why isn’t there an Australian Hugh Hefner?

The answer: because Australia has some of the strictest censorship laws regarding sex in the Western world.

What!? I hear you yell. The laid-back nation of the fair go, cold beer and coward punches is also run by censorious prudes?!

Yep, and the current legal landscape doesn’t just impact the masturbatory aid business:* it also has major consequences for artistic expression in Australia.

*Full disclosure: I work for the masturbatory aid business.

Aussie Censorship 101

Cast your mind back before you torrented movies over the internet, and you will remember the classification system.

Films in Australia are classified as either G, PG, M, MA15+, R18+ or X18+.  ‘Publications’ are also either classified as unrestricted, Category 1 (restricted) and Category 2 (restricted) (side note: labia are now allowed in nudie pics hoorah!).

Who does this classification?

The Australian Classification Board.

Who are they?

These people.

Why is this censorship?

Anything Refused Classification cannot be sold or publicly exhibited in Australia.

Most films depicting real sex (with some exceptions) will either be classified X18+ or Refused Classification entirely.

Sexy films will be granted X18+ status as long as things are kept relatively vanilla and there are no “depictions which purposefully demean anyone”  whatever that means.

Kink is out, with the Classification guidelines on X18+ explicitly saying:

Fetishes such as body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting are not permitted.

No fun.

Well films can still get classified as X18+ you porn obsessed weirdo! 

Here is where things get complicated.

Even if a film is classified as X18+ the laws in every state in Australia bar you from producing, selling or publicly showing X18+ material or risk hefty fines.

But wait, I’ve seen X18+ material sold at [name redacted] store? 

Luckily, censors have better things to do than raid adult stores (although raids do indeed happen).

Wait, you just said ‘States’ does that mean it is legal to produce, sell or publicly show in the Northern Territory and the Australian Capital Territory? 

It is complicated, but kinda.

In the ACT you need to obtain a (bloody expensive) X-rated license to produce, sell or publicly exhibit. In the Northern Territory, things are very heavily regulated (for example, you can only sell X-rated material ‘upon request’) and heavy fines are attached to non-compliance.

Who buys DVDs anymore? Why not just upload things to the internet?

That’s what most porn producers do! But the Australian censor extends online as well.

The Australian Broadcasting Authority (ABA) is the central agency for regulating internet content in Australia. It works under a complaints based system.

In response to a complaint, the ABA will ask an Australian based internet service provider to take down any content that could be classified as X18+ or Refused Classification. In-fact, content that may be classifiable as R18+ can also be taken down.

Wait a minute I was casually researching this topic on PornHub and there is totally Australian based pornography out there!

Yep. Adult media producers in Australia either have to fly performers overseas for a shoot, pay an expensive licensing fee in the ACT or operate illegally.

Websites are hosted on US-based servers and everything from here on out gets real complicated (Join Eros for more info).

So there you have it, Australia’s weirdly censorious classification laws.

But Why Should I Care?

I’m sure many of you find the above laws very silly, but can’t get too riled up about the refused sale of ‘Big Titties 9: Now with Extra Boobage’. 

Firstly, you are likely coming from a very narrow perspective of what pornography is, or could be.

Censorship laws in many countries have severely limited the kind of pornography that can be produced. The result: the market has been dominated by a cliché, Californian oeuvre that tends to reflect childish American perspectives on human sexuality.

Australian pornographers are kind of artsy, with interesting takes on erotica. Problem is: this fresh take on porn isn’t given an opportunity to flourish.

Secondly, limitations on depictions of real sex severely limit the sale and public exhibition of bona fide pieces of art in Australia.

Our classification regime has barred works by queer pioneers like Bruce LaBruce and Greg Araki. It has also made Australia an international joke by banning or censoring award winning films like Ken ParkPink Flamingos and Baise-moi.

Finally, you should be pissed that a group of random people is telling you what you can and cannot watch.

Our country has national debates defending that right to racially vilify people, but nobody seems to care that grown adults cannot buy a film showing other consenting grown adults going at it.

Censoring sexuality hits on some pretty fundamental rights and liberties that are worth defending.

If there is ever a cause worth flying the free speech flag over: this is it.

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When Should Incitement to Suicide Be a Crime?

A Massachusetts US juvenile court has found Michelle Carter, 20, guilty of involuntary manslaughter for inciting her boyfriend, Conrad Roy III, to suicide.

This is a landmark decision in the case law surrounding manslaughter in the United States and raises intriguing legal and ethical questions for Australia. In particular, when should you be held criminally responsible for the death of another?

The details of the case are nicely summed up in the Sydney Morning Herald:

The novel case rested on more than 1000 Facebook and text messages exchanged between two troubled teenagers over two years.

Conrad Roy was found dead in the cab of his pickup truck in the parking lot of a Kmart on July 13, 2014, with a tube from a generator pumping in carbon monoxide.

Up to the moment he passed out from the toxic fumes, Carter was on the telephone with him; when he had doubts and got out of the truck, she ordered him back in.

There is no defending Carter’s actions on an ethical level, they are morally repugnant and appear to constitute callous treatment of a vulnerable young man. However, moral reprehensibility does not equal criminality.

In Australia, Carter would likely have been charged and convicted for an offence other than manslaughter. For example, Brodie’s Law in Victoria which seeks to criminalise ‘serious bullying‘ or the ‘aiding and abetting suicide’ offence in NSW. Both of these offences are more minor than manslaughter and indicate a lesser degree of culpability.

In an old blog of mine, I looked at the complexity of charging internet trolls for their harassment of Charlotte Dawson, who tragically committed suicide within a year of that post. The reality is that the internet has facilitated (but not caused) some of the worst aspects of human nature to come out: the pleasure in punishing “others” (in the exclusionary sense). I argued then, and I stand by it now, that the intent behind online harassment is more apathetic than vindictive, which should mitigate that sentence attached to new laws implemented to criminalise the behaviour.

Can such mitigation also apply to Carter? Even though she knew the victim in person? I’m not sure.

Another issue raised by the case, and noted in this post by David French, is the degree that we are to give the victim, Conrad Roy III, agency. We have a long, terrible history of treating those with a mental illness as being incapable of making decisions for themselves. Recent trends to present mental illness as directly analogous to physical illness avoid awkward questions of selfhood, choice and responsibility.

Roy was suffering from anxiety and depression. He had attempted suicide in the past. He did not appear confused or unsure about the nature of what he was doing. The long series of texts exchanged between Carter and Roy present a complicated picture of their relationship.

Initially, Carter tried to convince Roy to seek help:

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This exchange then slowly, over a few days, turns into Carter assisting in the suicide:

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Finally, Carter becomes more aggressive and insistent that Roy commit to his plans:

Screen Shot 2017-06-17 at 10.59.40 AM This raises complex questions about who is ultimately responsible for Roy’s death. After all, Roy appeared determined to commit suicide and refused to seek help. Carter initially attempts to help Roy, but is then co-opted into his plan for suicide and takes on the role of instigator.

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Again, none of the discussion above is trying to morally defend Carter’s actions but it does raise intriguing questions of whether she should wear the full brunt of criminal responsibility.

Ultimately, this is a question for the community: how do we juggle these various issues of agency, callousness and causation when assigning blame?

Disrespecting the Judiciary is Nothing New for the Populist Right

There’s nothing all that surprising about the comments of three Liberal MPs undermining judicial integrity this week. The real shock is that the Victorian Supreme Court judiciary appears to have had enough.

Claims that judges are ‘too political’, ‘soft on crime’ or ‘out of touch’ has been a staple of Liberal party rhetoric for decades now.  The traditionalist conservative tendency to respect the integrity of our legal institutions has always been overshadowed by a populist right wing  keen to undermine ‘elites’.

Following the Mabo decision, West Australian Liberal Party President Bill Hassell argued that:

Being generous, one must respectfully assume that the High Court was simply misguided that the majority of judges confused their responsibilities as judicial officers with their personal ideologies, that they were not part of the wider long-term agenda which will inevitably lead, if followed, to a divided and damaged, and some would say destroyed, Australian society.

Following Wik Peoples v The State of Queensland, which confirmed that statutory pastoral leases did not extinguish native title, tirades against ‘judicial activism’ became a staple of Liberal Party discourse.

Whether we are talking anti-terrorism laws, asylum seeker rejections or ‘tough on crime’ measures, the Liberal Party has a tendency to view judicial oversight and ‘checks and balances’ as a hindrance to its legislative agenda. Recent policy trends to implement mandatory sentences as well as to hamstrung bail and parole decisions reflect this deep distrust in judicial decision-makers.

The ugliest example of disrespect for the bench is Liberal MP Bill Heffernan’s use of parliamentary privilege to slander openly gay, High Court Justice Michael Kirby with allegations of soliciting underage male sex workers. The allegations were completely fabricated but served the political purpose to present an image of a deviant, out of touch judiciary.

Whether or not the comments of Liberal Ministers constitute contempt of court, the blatant disrespect for an independence judiciary is at the heart of what’s wrong with contemporary right wing politics.

Banning Sin and Managing Risk: Why Are Vice Laws Back In Vogue?

Like something out of a 1930s film noir, the old fashioned vice squad is making a comeback across the globe. Spurred on by perceptions of cultural excess and corporate corruption the new prosecutors of sin come from across the political spectrum.

Earlier this year, Ireland joined a number of Nordic countries in criminalising the purchase of sex – to the criticism of sex workers, human rights organisations and health workers alike. The so-called ‘Nordic Model’ had the usual supporters of religious moralists but also gained momentum through sex worker exclusionary feminists and a middle-class susceptible to moral panic.

Now it appears pornography is the next target. Strange alliances are being formed between feminist critics, religious puritans and self-appointed ‘sexual wellbeing’ experts to ensure erotic material is framed as a brain-destroying spectacle. Theresa May, in her Conservative manifesto, has noted plans to regulate the internet to protect Brits from unsavoury and offensive X-rated material. This plan echoes the failed ALP proposal to wholesale filter the internet so that it meets ‘community standards’.

Whilst we are punishing sex, why not drugs as well?

Our most popular intoxicant – alcohol – has had a good run since failed attempts at prohibition, but this is starting to change. Influential public health bodies are pushing for higher ‘sin’ taxes on alcohol, applying curfews and regulating nightlife. Such technocrats are also keen to come after nicotine alternatives such as e-cigarettes due to a deep-seated fear of the unknown.

Then there are the more stigmatised – and criminalised – psychoactives. The appointment of Jeff Sessions as the 84th US Attorney General has guaranteed that the failed War On Drugs is back in full swing. Reaffirming prohibition goes against a mountain of evidence in favour of decriminalisation and legalisation of ‘soft’ drugs such as cannabis. It also ignores the very real harms caused to users, addicts and society as a whole.

Fatty foods, pub lotteries, violent video games, sexting, rude tweets… there seems to be no end to recent calls for the law to regulate, and in many cases criminalise, objectionable lifestyle choices. Recent trends have multiple causes, but appear at least partially provoked by our uncertain social and economic conditions.

Ulrich Beck coined the term ‘risk society’ to describe a culture’s response to risk. Our modern culture is heavily invested against mitigating against future risks and applying strict precautionary measures to mitigate such risk.

The decline of stable ‘New Deal’ state institutions since the 1960s has led modern citizens to become obsessed with lowering future risk. We live in an anxious, pessimistic culture  where individuals are overly concerned with potential hazards. In an obsessively risk averse society, every mundane pleasure or new technology has the potential for social disaster. Harms are no longer seen as the ‘exception’ to the norm but are the natural consequence of self-indulgence. Too much of a good thing is always bad.

Looked at this way, efforts to regulate ‘vice’ provide a sense of security for political actors given the very real and unpredictable nature of modern threats such as financial crises, terrorism and climate change. Vice squads – much like the security theatre of scanners at airports – make us feel safer, even if there was very little to fear in the first place.

However, in our obsession with risk we have forgotten what makes vices so damn appealing in the first place, pleasure. Missing from time-series graphs and population surveys of regulators are the incalculable joys of life: the sweet relief of a cigarette after a fat-laden meal, the foolish banter of two sloshed friends at a 3am gig or the warmth of a lover in times of loneliness.

Nothing in life is without hazards, with the pursuit of pleasure being no different. But let’s not allow our cultural obsession with risk regulate away what makes life worth living.

Existential Choice and Queer Resentment

In his On the Geneology of Morals, Frederich Nietzsche describes the origin of moral norms of the dispossessed in revolt – the infamous slave morality. On this topic he writes:

It is not surprising that the lambs should bear a grudge against the great birds of prey, but that is no reason for blaming the great birds of prey for taking the little lambs. And when the lambs say among themselves, “These birds of prey are evil, and he who least resembles a bird of prey, who is rather its opposite, a lamb,—should he not be good?” then there is nothing to carp with in this ideal’s establishment, though the birds of prey may regard it a little mockingly, and maybe say to themselves, “We bear no grudge against them, these good lambs, we even love them: nothing is tastier than a tender lamb.”

The essence of Nietzsche’s vision of resentiment is that the socially inferior develop their sense of moral norms and identity in opposition to the ‘master morality’. In this sense, the master defines the slave.

Could there be a more apt description of queer politics in the 21st century?

Despite tremendous successes against the policing of our sexuality, many gay men and women still define themselves in opposition to heterosexual norms in society. So many gay identities are defined by their outrage, their victimhood and their sense of marginalisation.

Whether it is faux surprise about religious beliefs, silly internet tirades against toleration or anger about representation in genre flicks. What’s missing from this outrage is any creative vision about how the world should be. What culture best serves ‘us’? What virtues should ‘we’ aspire to?

I’m reluctant to use plural pronouns because the very notion of a “queer community” was a strategic myth designed to fuel shared political norms. Yet if I could play to the myth a little bit, I think there is something to be learned from gay figures from the past, in particular there is what one call a certain queer sensibility that’s a worthy answer to the question: ‘how should one live?’

In Arthur Rimbaud’s A Season in Hell, we get a good glimpse of this sensibility – one that asserts uncomfortable truths and learns to flourish despite harsh realities:

One must be absolutely modern.

Never mind hymns of thanksgiving: hold on to a step once taken. A hard night! Dried blood smokes on my face, and nothing lies behind me but that repulsive little tree!… The battle for the soul is as brutal as the battles of men; but the sight of justice is the pleasure of God alone.

Yet this is the watch by night. Let us all accept new strength, and real tenderness. And at dawn, armed with glowing patience, we will enter the cities of glory.

Why did I talk about a friendly hand! My great advantage is that I can laugh at old love affairs full of falsehood, and stamp with shame such deceitful couples, – I went through women’s Hell over there; – and I will be able now to possess the truth within one body and one soul.

This spirit of revolt in the face of a cold, cruel world is also famously captured in Allen Ginsberg’s Howl:

I saw the best minds of my generation destroyed by madness, starving hysterical naked, dragging themselves through the negro streets at dawn looking for an angry fix, angelheaded hipsters burning for the ancient heavenly connection to the starry dynamo in the machinery of night, who poverty and tatters and hollow-eyed and high sat up smoking in the supernatural darkness of cold-water flats floating across the tops of cities contemplating jazz,

Continuing with the Beats, we also see this in William Burrough’s Queer:

A curse. Been in our family for generations. The Lees have always been perverts. I shall never forget the unspeakable horror that froze the lymph in my glands–the lymph glands that is, of course–when the baneful word seared my reeling brain: I was a homosexual. I thought of the painted, simpering female impersonators I’d seen in a Baltimore nightclub. Could it be possible I was one of those subhuman things? I walked the streets in a daze like a man with a light concussion–just a minute, Doctor Kildare, this isn’t your script. I might well destroyed myself, ending an existence which seemed to offer nothing but grotesque misery and humiliation. Nobler, I thought, to die a man than live on, a sex monster. It was a wise old queen–Bobo, we called her–who taught me that I had a duty to live and bear my burden proudly for all to see, to conquer prejudice and ignorance and hate with knowledge and sincerity and love.

Now I’m not trying to romanticise misery here. There should be a continued push for full sexual and gender liberation. However, what queer writers of the past managed to do – and what my generation fails to do– is avoid falling into what Jean-Paul Sartre would call ‘acting in bad faith’. That is, many gay people fail to assert themselves into the world, choosing instead to stand in solidarity with an identity defined in opposition to others.

This is a very diminished way of existing. Indeed, the proliferation of think-pieces worrying about why gay men are so unhappy, would be better off avoiding the musings about drugs and Grindr, and instead ask more existential questions about how do gay men see themselves?

There is always a choice in how to live, even in a society that is revolted by your very existence. One can either live as defined by the people you despise, or think creatively and individually about how best to survive an imperfect world.

Nietzsche put it simply: one repays a teacher badly if one always remains nothing but a pupil.

Tolerance Isn’t a Dirty Word

There was a fair bit of controversy yesterday over an open letter, signed by a number of celebrities, arguing in favour of an anti-bullying program for LGBT youths based around tolerance of diversity. In particular the letter requested/noted the following:

The introduction of a nationally rolled out, federal government-funded anti-bullying, anti-violence program in public and private schools by the start of 2018 that includes tolerance and mutual respect of LGBTI people at its core. It should also teach students to not bully classmates based on their religion, race, gender, sexuality, faith, disability, skin conditions, social standing or political persuasions. The program’s curriculum should consult education experts, paediatricians, psychologists and criminologists before its rollout. An advisory board of experts should be appointed by the Education Minister that consults on the program and any teachers’ feedback on a biannual basis. The board should independently be able to alter the program if they choose fit with no interference from government. The board should be required to consult with community groups, including those from the LGBTI community, before making decisions that alter the program’s teachings. Such a program should aim to prevent all forms of bullying, including that which is based on religion, race, gender, faith, sexuality, disability, skin conditions, social standing or political persuasions. $6m was allocated by Labor at the last election for a similar program. We would expect to see a similar commitment from the federal government for the program outlined above.

The controversy centers around the choice of the word ‘tolerance’ in the letter. Reacting  for Junkee, Patrick Lenton wrote the following:

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On Twitter, writer/comedian Bec Shaw tweeted “Two words for this: fuck tolerance“. Moreover, musician Brendan McClean tweeted “I was “tolerated” in high school. I was so scared, my attendance was 52% in my final year. A few teacher fudged the dates to get me through.

Although these commentators mean well, their absolutism appears ignorant of the power of reframing the political message to achieve social justice goals, as well as the long tested justification for ‘tolerance’ as a political principle.

It’s important to keep in mind here that the role of government in teaching values within a schooling environment has always been a controversial one. Parents tend to have a strong vested interest in moulding their child’s values to reflect their own.

The silly ‘culture wars’ regarding curriculum issues, largely pushed by News Ltd publications, exploits the anxiety of parents worried that public servants are indoctrinating their kids.

The resulting “debate” not only hinders progress on LGBT issues, but has an impact of reaffirming world-views – creating a false divide between Left and Right concepts of civil society.

Although I agree that acceptance of LGBT people should form the ultimate foundation of anti-bullying efforts in schools, the following makes the case for why a call for ‘moral tolerance’ is a good – albeit compromised – first step.

The most vocal advocate for moral toleration was 19th century philosopher John Stuart Mill, who saw it as a necessary step to ensuring political tolerance and basic civil rights for unpopular and marginalised groups.

Mill’s vision of moral toleration was justified on the basis that every individual has a right to shape their own sense of morality on the condition that they allow others to do the same. One of the key utilities of Mill’s vision of moral tolerance was that it allowed for ‘experiments in living’  – allowing society to test the suitability of old values within new social environments.

Now, let’s not be naïve here, the question of Safe Schools is a question of values. One of the silly consequences of the move from the discourse of 60s/70s queer liberation movements toward 90s/2000s ‘politics of recognition is a lack of insight into the socio-historical values underpinning queer identity.

The LGBT movement has inherent within it particular values regarding sexual freedom, pleasure seeking and an affirmation of diverse gender expressions – most of which came to prominence in the mid 20th century. This is not simply a case of opponents ‘not recognising LGBT people exist’. Indeed, much of what we refer to as ‘queer identity’ didn’t exist until the 19th century.

Contrasting the values of queer liberation, we have the Christian Right, whose sexual and gender mores centre around Platonic ideals of gender difference, preferential treatment of reproductive sex and the aesthetics of ‘complementarity’. Don’t get me wrong, these are shitty values, but they are values.

To place the political dispute regarding Safe Schools as a dispute over different concepts of ‘the good’ isn’t to dismiss the very real personal suffering experienced by LGBT people (particularly, young people). But it is to recognise that, whether we like it or not, Safe Schools is an issue that requires us to win the values debate over the reactionary Right.

Mill’s vision of a tolerant society was necessarily imperfect. In contemporary Western countries we view religion as being akin to personal spirituality. But in the 1800s, and in many other parts of the modern world, religion is/was a comprehensive guide to life. Such comprehensive value systems cannot exist alongside each other easily – Isaiah Berlin’s view of a ‘plurality of values’ within society is very much undermined by a long history of religious and cultural warfare. Nevertheless, we can tolerate our differences and view each other as humans of equal value.

One of the key advantages of an appeal to toleration is that it strips the heat out of the ‘culture wars’ and acknowledges at a base level that we are all human beings, trying to figure out our own way in life. Toleration, by its very nature, pacifies debate and makes it easier to understand the other side. Because of this, tolerance more often than not leads to acceptance.

Within the Safe Schools program, an appeal to tolerance would allow teachers to teach basic respect toward LGBT students. This is in keeping with other tolerance education programs instituted overseas. Clearly, ‘LGBT inclusion’ should be the ultimate goal to these programs but with all the silly moral posturing and parental concern around ‘gender theory’ – this moves the debate forward.

On a final note: toleration does not mean a particular value system cannot win prominence. There are still winners and losers in a tolerant society and pushing for a comprehensive Safe Schools program is something that can (and should) still be campaigned for.

Through clever, strategic, campaigning LGBT activists are well and truly winning the values debate around the world. Temporary compromise and appeals to tolerance are likely to be a good first step in this direction.

Foucault and Identity Politics: Strange Bedfellows

You don’t have to look far to find critiques regarding recent trends in ‘identity politics’. Whether it is resisting calls to sanitise curriculums, questioning de-platforming tactics or blaming identity tensions for the rise of Donald Trump there are a deep concerns amongst commentators  regarding  identity activism. In analysing ‘what went wrong?’ in the development of a new wave of young identity activists, the finger is often pointed at everyone’s favourite fisting Frenchmen and philosopher Michel Foucault (for a taste of this blame game, see: here, here and here).  This is not without evidence as many identity activists directly cite Foucault as an influence.

I’m a huge Foucault fan , but I’m also incredibly conflicted about identity activism. On the one hand, advocating for sexual and gender liberation as well as criminal justice reform is at the heart of my personal and professional activism. On the other hand, identity activism appears gripped by moral rigidity, myths regarding moral progress and an antipathy toward free expression. This difference in political outlook may seem slight but it has a tremendous impact on politics praxis.

As for whether Foucault is an influence on identity politics: I think his influence is slight and his ideas likely provided to activists by academics in a narrow way. The growth of ‘subspecialities’ in Humanities education probably hasn’t helped much, with disciplines like Queer Theory and Post-Feminism utilising Foucault for their own purposes rather looking at his broader work in context. I highly recommend reading Foucault’s works as they were originally intended rather than when utilised to push a particular normative agenda.

Below are three key differences that I can see between the key themes arising out of Foucault’s work, and the ideology of modern identity activists:

  1. Moral progress and the ‘arc of history’: 

    Identity activists see their work as ensuring the ‘civil rights’ and ‘recognition’ of previously marginalised identities such as POC, LGBT people and women. They view themselves as part of a larger civil rights struggle for human dignity. Although Foucault applied his genealogy to marginalised identities (i.e the mentally ill, criminals, gays etc), he followed the ideas of Frederich Nietzsche in that he viewed values as a consequence of historical circumstance rather than as a rational consequence of an improved moral consciousness. As a result, Foucault would be very skeptical of narratives depicting a particular political goals as morally ‘progressive’. This certainly doesn’t bar political activism by Foucault fans, but it does temper emotions somewhat given a unique understanding of the successes and failings of political history.

  2. Identity: 

    Depending on their ideological tilt, identity activists will either tell you identity categories are fixed and essential (gays are ‘born this way’) or identity arises from lived experience and carries political utility (“we don’t know what identities will exist once we win”). Although Foucault is often depicted as the prototype anti-essentialist, it would probably be more accurate to say that he didn’t care all that much about questions of identity. For Foucault, lived experience and questions of “who am I?” were regressive in that, rather than liberating the individual from social constraints, it simply led to new forms of subjugation. The key for Foucault was to dissolve identity away and focus on action. This is why sometimes Foucault is misread as focusing too heavily on gay behaviour in The History of Sexuality rather than gay desire. For Foucault, to categorise desire would be to limit its possibilities, see this interview he did shortly before his death.

  3. Therapy Talk and Mental Health: 

    The most stark contrast between the ideology of identity activists and Foucault is the unquestioned embrace by activist groups of therapy language, mental health concepts and a politics of care. The relationship between social work, psychology and civil rights in America has always been a close one and has shaped the tools and ideology of activism in the country. Psychoanalysis has always dominated left wing activism in America, and placed a heavy influence of ‘self work’ and discipline to cultivate an authentically liberated sense of self. As much as modern identity activists deride ‘liberal feminism’ they have also wholesale adopted most of liberal psychoanalytic tactics from the 1960s such as consciousness raisingsafe spaces and role modelling. Moreover, the repackaging of post-structuralist theory by American academics such as Judith Butler and bell hooks have twisted insights into language, knowledge and marginalisation into practices of self-discipline and a much weaker politics of recognition. This is why there is often a stark contrast between the gay and feminist movements in America and those (more successful) movements occurring in Europe. Foucault would have found the American trend particularly bizarre as to the extent that his work was normative it was decidedly individualist, anti-conformist and skeptical toward therapeutic discourse.

Hopefully, that clarifies some of the aspects in which the work of Foucault differs from modern identity politics. His work is incredibly useful for both academics and activists concerned about sex and gender politics as well as criminal justice reform. In particular, Foucault finds in his genealogical method a means to dethrone authoritarian discourses in order to bring about a new way of living in the world.

For me, one of the biggest take aways from Foucault’s work is an appreciation that kindness can be harmful. Whether it is the birth of the prison, the clinic or sexual identity – Foucault’s work shows us how a social and political  focus on saving, protecting and categorising a group of people can lead to further subjugation. To me, this should be the biggest concern for those who wish to focus a politics on identity.

“Cleaning Up the Place”: Sex Workers and Serial Killers

It was 2:30am and Mary Ann Nichols was working late on a narrow road in London’s East End. An hour later her body was found. The road was White Chapel Road. Mary’s job? Selling sex. She is the first documented victim of Jack the Ripper.

It is unknown why the Ripper chose sex workers as his victims. However, he joins a long list of serial killers who target ‘ladies of the night’ to satisfy their sadistic desires.

A hundred years later, Peter Sutcliffe – the Yorkshire Ripper – would kill thirteen women in what he saw as a mission from God to cleanse the world from damned whores. “The women I killed were filth” Sutcliffe said, “I was just cleaning up the place a bit.”

At present, the Long Island serial killer remains at large after killing over a dozen sex workers in the Gilgo Beach area. The killer is believed to have met many of his young female victims via advertisements for escort services on Craigslist. The age of serial killers targeting prostitutes is far from over.

Easy Targets

It is well documented that sex workers have a much higher risk of homicide than the general population. Street based workers are twelve times more likely to get murdered than other women.

Why serial killers target sex workers is likely to have a myriad of answers, both individual and cultural.

For Gary Ridgeway, The Green River killer, the motivation was at least partly opportunistic. “[I] picked prostitutes as victims because they were easy to pick up, without being noticed” he said. “I knew they would not be reported missing right away, and might never be reported missing”.

In contrast, Steven Write – the Ipswitch murderer – appeared largely motivated by his sexual fetish for strangulation. Sex workers were his victim of choice largely due to the intimate nature of their work and the level of trust they placed in their clientele.

Forensic psychologist Anthony Beech has noted that sexually motivated killers tend to view male sexual desire as uncontrollable and to project sexual anxieties around women onto their victims. Sex workers, who are culturally stereotyped as sexually assertive, are likely to be seen as particularly threatening to this worldview.

Predatory killers also view sex workers as easy targets separated from the herd. Social stigma leaves some workers isolated from family and friends, meaning that investigators are slow to identify victims and killers can add several notches to their belt before arrest.

Occupational Hazard

Poor relationships between workers and the criminal justice system also severely hinder investigations.

A West Midlands Magistrate once infamously summed up the life of victim Gail Henderson, who was murdered by a client, by stating “And then the silly girl went and got herself murdered”. Quotes like these hardly build trust in the system.

Distrust in authorities mean those in the sex industry – particularly street based sex workers – are reluctant to share information with police. This is made even worse when sex work is criminalised and divulging information leaves workers at risk of prosecution. Many sex workers and pimps suspected Ridgeway as being the Green River Killer, but were too scared to report this information to police. As a result, Ridgeway took at least forty-nine lives.

A perception that murder is an unfortunate ‘occupational hazard’ of street-based sex work also does little to bridge barriers. In 2011, St. Francis County sheriff Bobby May reportedly said in relation to the murder of 25-year-old sex worker Marcal Camero Tye that “[y]ou know, prostitutes, these types of folks—it’s a risk. Whenever you’re soliciting, things of this nature happen sometimes.”

Time for Change

Although fault for the crimes of Ridgeway, Sutcliffe and Writer clearly lie with the perpetrators, the vulnerability of sex workers to violence has a more social origin –and therefore is a shared responsibility.

“There really are people who don’t care when prostitutes are victims of hate crimes, beaten, raped, and murdered” notes sex worker and activist Annie Sprinkle. “[But] no matter what you think about sex workers and the politics surrounding them, sex workers are a part of our neighbourhoods, communities and families.”

One hope’s the lessons of the past can be learned. Only through cooperation and shared understanding will potential victims be protected. With the Long Island serial killer still on the loose it is time for law enforcement and society to rally behind sex workers. It is time for no more ‘easy targets’.

On Bail and Risk of Violence

Following the Bourke Street rampage it is understandable to be angry and worried about the state of our criminal justice system. But calling for tougher conditions for bail is not the answer.

Yesterday, James Gargasoulas mowed down twenty five people with his car in Melbourne’s CBD  killing at least four, including a child. I was on Swanston Street, scrolling through initial (and inaccurate) Twitter reports about a possible active shooter or terrorist event. It was scary.

I understand the anger. I don’t have a nationalistic bone in my body, but I am incredibly territorial about my city. This should not happen here.

However, a narrative is being painted about yesterday’s events that are likely to have  implications to the detriment of our criminal justice system and our values. We are Melbournians: we pride ourselves by our considered response to complex social issues, let’s not stop now.

It is now well documented that  Gargasoulas had a long history of poor mental health and violence. At the time he committed his acts, he was on bail after being charged last week with a (currently undisclosed) offence.

This has lead John Silvester, a writer I otherwise respect, to say this in The Age:

The attack on pedestrians by an allegedly known violent, charged offender with a history of drugs abuse and mental health problems will lead to calls for the bail structure to be scrutinised in the same way.

There will be outrage and calls for major reforms. And this time the law makers will be forced to listen.

A call to make bail “tougher” is the inevitable consequence of media framing this issue as the fault of renegade Magistrates and Bail Justices with too much compassion for criminals.  The same thing happened with Parole conditions following the tragic death of Jill Meagher.

However, our bail laws do not need reforming. Indeed, they are exceptionally good as they are. This issue, like so many political issues, is far more complex.

Let’s look at Victoria’s bail laws.

As we live in a liberal democracy, there is a prima facie entitlement for bail for all charges except for those charged with “exceptional circumstance” or “show cause” offences.

Exceptional Circumstance Offences

Exceptional circumstance offences are the typical charges you wouldn’t expect someone to get bail for: murder, treason, terrorism etc. But they also include charges of large scale drug importation or trafficking.

You will almost never get bail if charged with these offences.

Show Cause Offences

Show cause offences include charges that indicate a person may pose a risk to the public. These include: breaches of family violence orders, stalking, aggravated burglary and many drug offences.

For these offences, the default assumption is that bail will not be granted unless the person charged can prove they don’t pose any risk to the public. If an offender doesn’t have the resources to adequately fund a lawyer to gather material, odds are you will not get bail for  a show cause offence.

Entitled to Bail Unless Proven to be Unacceptable Risk

For all other offences, entitlement to bail is presumed except when a Court believes a person poses an “unacceptable risk”. A person will be an “unacceptable risk” if there is a risk they will:

  • Fail to surrender themselves into custody to answer bail;
  • Commit an offence whilst on bail;
  • Endanger the safety or welfare of members of the public whilst on bail; or
  • Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

If any of above applies, then bail will be refused.

Conditions Placed on Bail

Even if bail is granted, this does not mean that someone is completely left up to their own devices. Often a surety is required and certain conditions can be placed on bail to ensure compliance, including:

  • Reporting to a police station;
  • Residing at a particular address;
  • A curfew of no more than 12hours in a 24 hour period;
  • To not contact specified persons;
  • To surrender of passport;
  • To not attend certain geographical zones at certain times;
  • To attend and participate in a bail support service;
  • To not drive a motor vehicle or not carry passengers when driving;
  • To not consume alcohol or use a drug of dependence;
  • To comply with existing intervention orders;
  • Anything else a Court views as appropriate.

Breaching any condition on bail will  lead a person to be taken into custody and charged with a separate offence of breaching bail conditions. It is a strong and clear deterrent against breaching bail.

As I hope is clear, the law in regard to bail is incredibly robust and meets the expectations of the community in terms of assessing risk, classifying offences and ensuring basic freedoms. To repeat: there is no need to reform bail laws.

So why do people like Gargasoulas fall through the cracks? Because nobody has the time or resources to adequately assess risk. Prosecutors, defence lawyers, bail justices, law enforcement and Magistrates are constantly under the pump in the current system.

Often all a Court will have to assess risk and grant bail is a summary of charges: no independent psych evaluations, no understanding of context, no objective measure of “risk”. Prosecutors have to pick their battles. Legal aid lawyers don’t have any incentives (or time, or resources) to think ‘therapeutically’ about the needs of their client long term.

It appears clear now that Gargasoulas had a serious mental health problem that had manifested in violent ways. Why wasn’t this picked up? Where were integrated mental health services? Probably buried under a mountain of case work.  Did the Police provide any information to prosecutors about risk? Do they have time to perform their own risk assessments? Probably not.

This is an issue of resources, lack of sophistication and funding – not laws which preference the rights of criminals over the public. My fellow Melbournians, let’s not fall for  reactionary commentary about this issue and let’s encourage our lawmakers to have a considered response to these tragic events.

10 Unusual Facts About Corpses

Face it. At some point all of us are going to shuffle off this mortal coil and enter the abyss. But what happens with what is left behind? The process of decomposition is undignified and a little horrifying, but understanding death helps us face our fate head on.

To assist, below are ten unusual facts about corpses.

(1) Some Cadavers Become Wax Statues

Under certain circumstances, corpses can become covered in a thick wax-like substance called ‘adipocere’ – also known as ‘mortuary wax’. This substance is produced when bacteria metabolise body fat causing a waxy cast over fatty tissues, internal organs and facial tissue. The result? Corpses appear like patchy mannequins covered in a rubbery white substance. The 19th century physician Augustus Granville famously made candles out of the substance, confusing it for a preservative applied to mummies.

(2) ‘Death’ Keeps Changing

The medical definition of ‘death’ keeps changing with advances in technology. In the 18th and 19th century, death occurred when the heart and lungs ceased to function. But starting in the 20th century, our old definitions of death became more and more problematic. Brain scans revealed the possibility that cardiopulmonary function could be preserved even with little brain activity to speak of. Moreover, technology allowed us to keep hearts beating and lungs filling without the need for a functional brain stem. The need for viable organs has led to ‘beating heart cadavers’ – technically dead bodies where blood flow is kept pumping to ensure viability for donation. The current medical definition of death requires either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem. However, who knows how new technologies will reshape how we view death in the future.

(3) Sometimes Corpses Appear Drunk

Measuring the blood alcohol content of bodies can be very difficult, as bacterial fermentation in the gut during the purification process produces ethanol as a by-product. Because of this, forensic toxicologists analysing bodily fluids have to be very careful about inferring state of inebriation before death. They get around this limitation by taking fluid samples from tissue far away from gut bacteria such as the virtreuos humour: the gelatinous material filling the eyeball. At least we get to die as we lived – with a stomach full of booze!

(4) Dead Bodies Are Very Impolite

 Corpses in the process of decomposition fart, burp and groan due to the build up of bacteria generated gasses. The escape of gases through the mouth is thought to be one of the explanations for the moaning trope in zombie fiction. The build up of gas can also bursts internal organs and can even perforate the skin in certain circumstances, making the job of forensic pathologists difficult. Gassy corpses is also an issue for funeral directors – if a casket is not well ventilated on a hot day, corpses have even been known to explode during funeral processions due to the build up in pressure.

(5) Gravity Marks Your Body With Forensic Clues

When your heart stops beating, gravity slowly pulls your blood towards the ground. After around two hours, a clear pinkish mark can be observed on the skin. This process, known as livor mortis, is very helpful for forensic investigators who can tell if a body has been moved a few hours after death by reading the pink clues left on the body. Livor mortis also acts as a rough time of death for investigators.

(6) Nobody Dies of ‘Old Age’

Despite common usage, age is not a ‘cause of death’. Instead, the most common causes of death amongst the elderly are heart disease, cancer and stroke. Whilst this may seem like a trivial distinction, it is an important one medically. So why are older people more likely to die? One of the key players are ‘telomeres’: small caps of nucleotides which protect chromosomes (the bundled bits of DNA inside our cells) from harmful chemical reactions. As we get older, telomeres get shorter and chromosomes are more likely to get damaged. As a result, we are more susceptible to certain pathologies such as cancer. Reversing this shortening processing is a key aim of anti-ageing and longevity research.

(7) Why Bodies Smell ‘Off’

Any process which results in a lot of bacterial activity is going to smell bad – think rotting meat out in the sun. But what is it about decaying corpses that make them smell terrible? Although many chemicals make up death’s aroma, the key culprits are Cadaverine (which comes from the bacterial breakdown of the amino acid Lysine) and Putrescine (which comes from the bacterial breakdown of the amino acid Arginine). So, what does this wonderful cocktail of death smell like? At early stages of decomposition the smell has been noted as ‘sickly sweet’ with a hint of coconut oil and wax candles. However, once the tiny microbes really start going at it the smell as been described as more akin to off meat with elements of boiled cabbage, vomit and rotten eggs.

(8) Some Bodies Have a Grasp Reflex

Although most people are aware of rigor mortis – the stiffening of the body’s muscles about four to six hours after death – a process known as ‘cadaveric spasm’ is much more immediate. Occurring soon after death, this poorly understood process can cause bodies to grasp at objects on the ground such as grass or weeds. Although rare, it more commonly occurs during violent or frightening deaths. Most famously, Kurt Cobain suffered cadaveric spasm and was found tightly clutching the shotgun he used to take his own life.

(9) Death Boners Are Not Common

Although a common motif in dark comedies, erections following death actually aren’t that common. Rigor mortis largely stiffens the skeletal muscles of the jaw, arms and legs. In contrast, the process of getting an erection is largely the result of the relaxation of smooth muscle and the engorgement of the penis with blood. The lack of blood pumping through one’s veins after death makes a death erection unlikely – although not impossible. Death erections have been observed in deaths by hanging, largely as a result of strong pressure to the cerebellum before death.

(10) Not Always So Cold

Although a lack of metabolic activity will eventually cool corpses to room temperature, in some circumstances a process known as ‘postmortem caloricity’ can cause body temperature to stay the same, and even rise soon after death. Thought to be the result of chemical reactions in the liver, post-mortem caloricity can raise a body’s temperature by as much as 20C after death. This can sometimes pose issues for forensic investigators, as body temperature is sometimes used as a measure for time of death.

Drunk, gassy and impotent may not be the noblest end for our dignified lives but it certainly should fill us with a sense of humility. Hopefully, these corpse facts have made you feel a bit better about entering the great beyond and have sparked your morbid interest to learn more about the intriguing world of death.