How huge gamble by Lady Chatterley lawyers changed obscenity law forever

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In this guest blog, originally published in The Conversation, Sue Rabbitt Roff of University of Dundee, explains how “a watershed in British obscenity law had been achieved without any discussion about the illegal sex acts central to the novel”. Skip to page 258 of Lady Chatterley’s Lover to see if you would have made the same gamble as barrister Jeremy Hutchinson…

Jeremy Hutchinson, who has died at 102, was one of England’s finest criminal barristers. He was counsel of choice for some of the most high-profile cases of his era. He defended the likes of Christine Keeler and Great Train robber Charles Wilson and also obscenity cases against novels like Fanny Hill and Lady Chatterley’s Lover.

Later known as Lord Hutchinson of Lullington, his role defending Penguin Books after it published the unexpurgated version of the DH Lawrence classic is particularly memorable. It remains the landmark case in British obscenity law.

But look at the details and something extraordinary emerges: Penguin’s decision to publish 200,000 copies on the advice of Hutchinson and joint lead counsel Gerald Gardiner was a massive gamble. It set up a case that were it not for the incompetence of the prosecution could easily have gone the other way.

Obscenity and England

Lady Chatterley’s Lover had only ever been legally published in abridged versions in the UK, starting in 1932. Though by 1960 the unexpurgated edition was sold in Europe and America and could be obtained under the counter in London if you knew where to go, Penguin co-founder Allen Lane wanted to publish a cheap paperback of the full thing.

The idea was to put it out at 3s 6d, the same price as ten cigarettes, to make it affordable for the “young and the hoi-polloi”. The excuse was the 30th anniversary of Lawrence’s death from tuberculosis at the age of 45.

When Penguin consulted Hutchinson and Gardiner, the lawyers retreated to reflect. A trial under the new Obscene Publications Act seemed inevitable. The act’s first paragraph stated that material will be deemed obscene if it contains elements that tend as a whole “to deprave and corrupt persons who are likely … to read, see or hear” it.

Jeremy Hutchinson. PA/PA Archive

The act included a new defence in cases where the offending segments were “for the public good on the ground that [they are] in the interests of science, literature, art or learning”. In consultation with several literary experts, Hutchinson and Gardiner felt most of the racy scenes and bad language – including (30) “fucks” and (14) “cunts” – could fall under this defence. Lawrence, after all, was one of the most highly regarded writers of his era.

Hutchinson was concerned about page 258, however, where anal sex crops up – albeit obliquely. It has Oliver Mellors, the lover in the book’s title, trying to divorce his wife Bertha Coutts and being accused by her “of all unspeakable things”. Clifford Chatterley writes a letter to his own wife saying that Coutts has aired details about her marriage to Mellors which are “usually buried down in the deepest grave of matrimonial silence”.

But, he comments:

Humanity has always had a strange avidity for unusual sexual postures, and if a man likes to use his wife, as Benvenuto Cellini says, ‘in the Italian way’, well that is a matter of taste.

Lady Chatterley has pause for thought:

Connie remembered the last night she had spent with [Mellors], and shivered. He had known all that sensuality, even with a Bertha Coutts! It was really rather disgusting. It would be well to be rid of him, clear of him altogether.

Her friend Duncan Forbes then makes light of it:

If he’s made love to his wife all ends on, hasn’t he a right to? She ought to be proud of it.

While homosexual anal sex between consenting men was legalised 50 years ago in the UK, the heterosexual equivalent became legal only at the millennium in England and Wales and was highly illegal in 1960. (The 2001 film Bridget Jones’ Diary celebrated legalisation with a pretty explicit scene between Renée Zellweger and Hugh Grant.)

Illegal acts could still potentially use the public good defence, but Hutchinson feared it made the case much harder to win. Gardiner and the experts at the meeting dismissed his fears. In these more innocent times, they were betting that the prosecution wouldn’t grasp the point and omit it from their case. Hutchinson agreed to go ahead and advised Penguin accordingly.

Allen Lane and the edition. PA/PA Archive

Your witness

The defence called 35 professors of literature, authors, journalists, editors, critics, publishers and child education experts, and four Anglican churchmen. Each declared the book had sufficient literary merit to deserve publication for the public good. (Those less convinced of Lawrence’s genius begged off – Enid Blyton declared she had never read the book and “my husband said no at once”.)

Lead prosecutor Mervyn Griffith-Jones cross-examined only 14 of the 35. He lost most of those rounds, and sometimes his temper in the process. It was only in his closing speech he said to the jury:

Would you look at page 258. It is a passage which I have not – and I do not think anybody has – referred to during the course of cross-examination, or indeed at any time during this trial. It … describes what is called the ‘night of sensual passion’.

He read out the whole passage remarking: “Not very easy, sometimes, not very easy, you know, to know what in fact he is driving at in that passage.”

It’s not clear how many jurors understood the passage; some were said to be visibly shocked. Certainly Griffith-Jones had missed the significance entirely, having referenced it only to underline the book’s general depravity. Mr Justice Byrne summed up with no reference to anal sex either. The issues were, he said, promiscuity and adultery described in words that were “normally obscene”.

The jury returned in three hours and found Penguin not guilty. Neither the clergy nor any of the other experts had been examined on anal sex and it is not clear whether they realised they were implicitly defending it or not. A watershed in British obscenity law had been achieved without any discussion about the illegal sex acts central to the novel.

In the wake of this case, publishing in Britain became considerably more liberal. Had Hutchinson not agreed to advise Penguin to take that extraordinary gamble, things could have panned out very differently.

Sue Rabbitt Roff, Part time tutor in Medical Education, University of Dundee.This article is republished from The Conversation under a Creative Commons license. Read the original article.

 

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Writing obscenity: from Lady Chatterley to the Earl of Rochester

Jacob Huysmans
 

In this blog, originally published in The Conversation, Claudine van Hensbergen, of Northumbria University, Newcastle argues that “the purpose of literature is to make us feel, and to give us new ways of experiencing and thinking about the world around us.” When D.H. Lawrence spoke openly about sexual relations he was labelled obscene. Similarly, argues van Hensbergen, the Earl of Rochester has been unfairly perceived as pornographic due to his use of language…

The judge’s copy of Lady Chatterley’s Lover used in the landmark 1960 obscenity trial of DH Lawrence’s famous novel is to be sold at auction in October. The paperback copy will be sold with a fabric bag, hand-stitched by the judge’s wife Lady Dorothy Byrne so that her husband could carry the book into court each day while keeping it hidden from reporters. The lot includes the notes on significant passages that Lady Byrne had helpfully marked up on the book for her husband, and a four-page list of references she had compiled on the headed stationery of the Central Criminal Court.

After six days of evidence and only three hours of deliberations, the jury found in the favour of Penguin Books, its verdict allowing the publisher to print copies of the novel for the first time. The trial was seen as a victory for liberal ideas over the old establishment. In literary terms, it signalled the opportunity for authors to write with a new type of language and freedom.

First edition of D.H. Lawrence’s Lady Chatterley’s Lover, 1060.
Twospoonfuls via Wikimedia Commons, CC BY-NC

But was Lawrence really the first writer to use obscenity in literature? And were liberal readers of the 1960s the first to appreciate the literary potential of obscene words and sex scenes? In short, the answer is no. The literary world which Lawrence and his fellow modernist writers inherited was that of the Victorian establishment. An establishment that had silenced earlier writers who, like Lawrence, used obscenity for literary ends.

One of the most important writers to be wiped from the publishing record during the 19th century was the poet John Wilmot, Earl of Rochester. Even today, we continue to find the obscene language and images found in Rochester’s poetry shocking. Take, for example, his A Satyr on Charles II a critique of the monarch as a man governed by his penis:

 

 

‘Tis sure the sauciest prick that e’er did swive,

The proudest, peremptoriest prick alive.

Though safety, law, religion, life lay on ’t,

‘Twould break through all to make its way to cunt.

Restless he rolls about from whore to whore,

A merry monarch, scandalous and poor.

Following his death in 1680 publishers scrambled to produce editions of Rochester’s poems – correctly perceiving the public appetite for his verse. An initial run of pirate editions of Rochester’s poetry was quickly supplanted with an authoritative collection, produced in 1691 by the leading literary publisher of the day, Jacob Tonson. Tonson is credited with popularising John Milton’s (up to that point, fairly unsuccessful) poem Paradise Lost and also producing the first footnoted editions of William Shakespeare’s collected plays.

So why did a respectable publisher such as Tonson take the gamble of printing Rochester’s verse? The answer lies in the recognition of Rochester’s poetry as literature rather than obscenity. Just as with Lady Chatterley’s Lover, we need to read past the obscene language and images of the work to understand what Rochester is really saying.

The animal in human skin

Rochester is a poet of the human condition. He strips man down to his barest drives and desires to see the animal lurking underneath. In this way, he was much like the contemporary philosopher Thomas Hobbes, who famously pronounced that life was “nasty, brutish and short” and that underneath it all man was a beast like any other.

For Rochester, the sexual realm is just another place where we see (and feel) this stark reality. Rochester strips away all sense of love and romance from his depicted sexual encounters. And there are many of them. His images are those of the mechanics of sex, its failures, disappointments and disease. Take his notorious poem, The Imperfect Enjoyment, a work that opens with a scene indicating the sexual promise to come:

Naked she lay, clasped in my longing arms,

I filled with love, and she all over charms …

Quickly, this promise is destroyed. The poem’s speaker prematurely ejaculates:

But whilst her busy hand would guide that part

Which should convey my soul up to her heart,

In liquid raptures I dissolve all o’er,

Melt into sperm, and spend at every pore.
A touch from any part of her had done ’t:
Her hand, her foot, her very look’s a cunt.

The speaker’s lover encourages him to try again, but to no success:

Trembling, confused, despairing, limber, dry,

A wishing, weak, unmoving lump I lie.

The obscene language Rochester employs in The Imperfect Enjoyment – and the sexual act on which it focuses – led generations of readers to view the work as pornographic. But this is to misread the poem. The clue is in the title: the poem portrays the ultimate failure of desire. The emptiness of human experience. And its cold, clinical and obscene language (sperm, spend, pore, cunt) is contrasted throughout the poem with phrases that point to the scene’s absent romance (the sexual act “should convey my soul up to her heart”, but it doesn’t).

The beast within

Rochester is often seen as a dangerous or obscene writer in the way he glamorised the licentious world of the Restoration court. But when we read his poetry more closely, we find little glamour in the language expressed. His verse exposes human feeling and behaviour, showing the superficiality of our social world with all its polite manners and codes of behaviour. And the use of obscene language is key to that project. As Rochester succinctly phrased it in his correspondence, “Expressions must descend to the Nature of Things express’d”.

The Victorians couldn’t cope with Rochester’s poetry, and there were no editions of his work published in the 19th century. It wasn’t until 1963, in the wake of the Chatterley trial, that American scholar David M. Vieth began work on a modern uncensored edition. Vieth gave us back the real Rochester and made it possible for readers to access his poems once again.

Obscenity might not make for comfortable reading, but that’s often its point. The purpose of literature is to make us feel, and to give us new ways of experiencing and thinking about the world around us. For Lawrence this involved using a new language that cut across class and gender in celebrating the sexual act – for Rochester it involved looking into the mirror and confronting the beast within.The Conversation

Claudine van Hensbergen, Senior Lecturer in 18th Century English Literature, Northumbria University, Newcastle.  This article is republished from The Conversation under a Creative Commons license. Read the original article.

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In the DH Lawrence Memory Theatre we want to address various aspects of Lawrence’s life through artefacts to try to understand this complex writer. How do we represent his struggles against obscenity laws and censorship and the right to freely express ideas? In 2019 we begin building our Memory Theatre and retracing Lawrence’s savage pilgrimage both physically and digitally. If you have an idea for an artefact, get involved and submit ideas here