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Defending the Indefensible?

Phil Badger explores controversial issues at the heart of liberalism.

Last year Steven Freeman was sentenced to an ‘indeterminate’ time in prison for making and distributing indecent drawings of children. It was the first time in UK history that such a case has been prosecuted. What made it distinctive was that it involved drawings of imagined situations rather than photographs of actual ones. This case seems worthy of philosophical investigation.

Let me make it clear from the beginning that I have no agenda which gives any degree of support to people who abuse children. In fact, as we’ll see, I’m quite puritanical even about conventional pornography. However, what concerns me here are the grounds for prosecution and the philosophical implications of accepting them.

As far as media coverage of this case represented it, UK law seems to be that the making of indecent images of children, even with a pencil, constitutes an offence. Now, I’m sufficiently horrified by the whole subject to accept, more or less without evidence, that the creation and use of such images might be the beginning of a ‘slippery slope’ leading towards either the consumption of images of actual children (which would be their abuse by proxy) or to direct abusive behaviour. On either of these grounds, I’d be fairly happy for a person like Mr Freeman to be locked up and the key thrown away (which is what is implied by an ‘indeterminate’ sentence). Similarly, if it was determined that Freeman was inciting others to engage in abusive behaviour, I’d be more than happy to see him imprisoned indefinitely. Despite some of the charges against him being about him sharing his images with others, the odd thing is that other charges related specifically to his making and possessing the images. In other words, a person was found guilty of a criminal offence for externalising an imagined image. It is this idea I want to explore.

That Mr Freeman is a repellent individual is quite beyond question. But it is important that we think about when the vile nature of an individual’s ideas should become a sufficient ground for invoking the power of criminal law against them. This is where my feelings about conventional pornography become relevant. Allow me to illustrate my point with an anecdote.

Some years ago, my partner and I took our eleven-year-old niece on a trip to London. We travelled by train, and to make the journey pass more easily, purchased a selection of magazines from the station newsagent. My choice I think was a copy of New Scientist (although it may have even been a copy of Philosophy Now).

We settled ourselves into our seats, and quickly resorted to reading. My niece, who was at the time particularly attached to me, had chosen a seat next to me. You may be able to guess the next part of the story, but, suffice it to say, someone had secreted another magazine of a very different kind within the pages of mine, presumably to conceal their viewing of it in the shop. I caught a view of images of women in what I will call ‘gynaecological detail’, but I managed to close the magazine before my niece shared the sight.

You might view this story as comic, even quaint, and me as a terrible prude who is quite out of step with the modern world, but I think that it raises some important issues. First we should note that the magazine in question was perfectly legal and for sale in a branch of a major newsagent. Second, I acknowledge that men are in their sexual natures intrinsically visual beings: I fully accept that looking at naked woman can be quite gratifying. Third, it seemed to me that something else was going on in the images I saw in that magazine which went beyond such gratification. Specifically, I sensed a level of misogyny which did indeed reduce the women in the pictures to mere objects. If the charge that pornography degrades and undermines the status of women could ever be made to stick, such images would be a vital part of the case. Personally, I can’t imagine that the kinds of attitudes that would make it easier for women to make their way in the world would be best promoted by the kinds of material we are discussing. I realise that I’m open to a radical feminist critique here because I’ve admitted that I’m not averse to the visual pleasures of female nakedness, but that seems somewhat short of making me an apologist for even the softest forms of pornography.

The point of this is to say that I object pretty seriously to the kind of material that it is quite legal to purchase in UK shops. This raises the question of whether that objection could amount to anything like sufficient grounds to ban them. In support of such a ban, I might point out that pornography is not ‘speech’, and so I’d reject any claim that such a ban would constitute a curtailment of ‘free expression’. Furthermore, I have serious doubts about the consensual nature of much pornography: economic necessity might force many women into lives they might not otherwise choose.

Some readers might agree, and want to join a campaign advocating the banning of pornography, but I’d urge caution at this point. Tolerance is not usually about accepting things we don’t much dislike. On the contrary, real tolerance tends to involve an accepting attitude to things we find distasteful, and one of these things might be pornography. The question is, where do we draw the line of toleration? At issue here are the criteria we employ for prohibiting certain kinds of actions while allowing others.

Private Lives?

For many of us who call ourselves ‘liberals’, the criteria of toleration have to do with consent and respect for autonomy.

Imagine for a moment that we have a cast-iron guarantee that a particular kind of behaviour – let’s say the production of pornography, or even prostitution – is consensual in nature. This would have to involve much more than the people involved not simply being physically coerced. Let’s say, for example, that the state involves itself in the regulation of these ‘industries’ in order to ensure that such consent is prevalent, and that even the health and safety of those involved is attended to. Under these circumstances, as a liberal, I’d have little choice I think but to accept that, even though I didn’t like it, these were things that some people wanted to do with their bodies, and so I should tolerate them.

For some more conservative/communitarian-minded readers, this might be a step too far, and an indication of the limitations of liberalism. Liberalism enjoins us to define a space of privacy, where that space is one which does not legitimately concern others. The idea of a sphere of privacy implies that when consent is present, the state and the community have no business interfering in the lives of the consenting individuals. The problem from the point of view of liberalism’s critics, is that this is essentially an agnostic position towards what makes for a worthwhile or meaningful life, and it therefore gives no guidance to individuals about how to live and how to relate, ethically, to others. Liberalism is therefore a ‘thin’ political philosophy, and one that tends towards ‘atomism’ and social fragmentation. By contrast, from the conservative/communitarian point of view, society has every right – and even a duty – to tell people that certain kinds of life are bad for them and for the community. Prostitution and pornography might be examples of such kinds of life. In these neo-Aristotelian terms, the job of society is to guide the individual in the development of ‘virtue’, not just to stand back and watch while people get on with their lives. My values are your concern. From this perspective, liberals are the perennial adolescents of philosophy. Like teenagers, they demand justifications for each and every rule, and yet fail to understand that having rules, not the specific logic of their content, is what makes social life possible.

This criticism is important because of the scepticism it implies about the public/private distinction liberals assume to exist. Queen Elizabeth I was reported to have once said in respect of religious belief that we could have no ‘window into men’s souls’, thus presenting an argument for the toleration of private belief on the grounds that it’s impractical to take any other attitude. John Locke made essentially the same argument for the irrationality of intolerance. My question is about what can and should be regarded as ‘private’ in the requisite sense, and about whether our inability to delve into the minds of others should be considered a blessing rather than a curse.

Imagine for a moment a woman who is very unhappy in her marriage. Her husband George is not physically abusive, but is emotionally cold and distant. Furthermore, he undermines her confidence at every opportunity, and has taken to making disparaging remarks about her in public. This woman develops a profound and vivid hatred of her husband, but feels bound to him by financial ties and a fear of making her way alone in the world for the first time in many years. We can readily imagine that she might, on occasion, have little daydreams about George being hit by a bus one night, and that, in time, these might even develop into elaborate fantasies about running George down herself. In heated moments she might even create scribbled images of George flying through the air, or of him sprawled lifeless on the road. Of course, it is not difficult to see where my argument is going: if externalising a horrific fantasy about abusing children by making a pencil drawing of the act is to suffer the full force of law, why should not externalising a gruesome fantasy of murder be subject to the same penalty?

Both individuals have given us a window into their souls. My suspicion is that it is the relative horror we feel that inspires our instinctive response that the depraved pornographer should be put away while the desperate housewife should attract no legal attention.

In fact, the case of artist Kim Noble provides us with a real life example that trumps my fictional ‘murder case’. Noble suffers from ‘dissociative identity disorder’, (which was once called ‘multiple personality disorder’) as a result of childhood abuse (this disorder is overwhelmingly associated with such abuse). Partly as therapy, her art often deals with child abuse as part of its subject matter, and contains images that are horrifying to any decent person.

This latter case raises several issues. Presumably, we’d all want to distinguish between Noble and Freeman on the grounds that their creations have profoundly different motivations, but making this distinction is not as easy as it looks. Certainly we might distinguish between two physically similar acts of violence because one is deemed to be an act of aggression and the other of self-defence, but the law does not obviously seem to have the conceptual resources (beyond the exercise of common sense) to protect Noble from legal liability. Furthermore, what are we to say about a gallery owner who exhibits her work, or a collector who purchases one of her canvases? The difficulties of determining the motivations of any of these individuals beyond a reasonable doubt are too complex to contemplate, even given that in the case of Mr Freeman such difficulties do not arise, as he is open about the sexual motivation of his ‘art’. I reiterate that if any argument was made which suggested that a slippery slope exists from the creating of such images to the abuse of actual children, I’d be happy to see people like Mr Freeman locked up; but that is not the point that concerns us here. The point is whether there is a real private/public distinction, and where we should draw the line.

Probing Questions

Queen Elizabeth’s ‘window into our souls’ is something we can now see opening. Modern developments in brain-scanning and so on make the idea that we could gain access into peoples’ personalities and even their intentions fairly plausible. This is the stuff of science fiction, but only just. A quarter of a century from now the creators of the polygraph might have what they wanted, a fully-reliable lie detector.

This possibility poses important questions for us. In the case of someone who makes vile drawings of children, we can tell ourselves that the line has to be drawn somewhere, and that privacy stops at the point where pencil is put to paper. However, we have to ask ourselves if, had we the chance, we’d want to employ technology to explore the inner thoughts of anybody who comes into contact with children, for example. In other words, we have to consider whether it is only the impracticality of doing otherwise that makes us respect the privacy of thought.

Anyone who has read George Orwell’s 1984 could anticipate where I’m headed here: ‘mind-reading’ technology might actually make ‘thought crime’ a reality. The reader is now invited to fill in the gaps to imagine their own nightmare. If you are of a conservative disposition, you are no doubt conjuring up an image of communist totalitarianism – a Soviet Union with mind probes is not something that most of us would want to contemplate. For liberal lefties like me, the first image is likely to be the same technology in the hands of the Nazis, for example.

Here’s another possibility: mind probing as private enterprise. Imagine a company offering such services to all and sundry. If you want a job in a bank you ‘take the test’. If you want to work with children, old people, be a nurse etc, ‘take the test’. If you want to make sure that your partner isn’t cheating on you – get him tested. You can imagine the company slogan: ‘Trust: We test so you don’t have to.’

This imagined future forces us to re-examine how we feel about the role of privacy. For some, the idea of ‘the private’ is nonsense – an imagined border which serves to licence an amoral neglect of the lives of others, and threatens to cut us off from the possibility of life in a community of shared values. By contrast, I suggest that the idea of the private is essential to community, because it is essential to that without which there can be no collective social capital – trust. Trust is precisely what cannot persist if technology renders knowledge of peoples’ thoughts possible. The reason the social fabric is damaged when the guy we trusted from the accounts department turns out to have been embezzling company funds is that trust is, ultimately, all we’ve got to go on. We can do background checks on people to make sure they didn’t rip off their last employer, but such things are no guarantee. In the end, we build up relationships with people, we read them the way humans have done for millennia, and we come to a sense of whether we can trust them or not. Most of the time we get it right, and some of the time we get it wrong, but, for the moment at least, there is no reliable substitute for fallible human intuition.

What I’m suggesting here sounds like a paradox: that the liberal respect of the private is not a recipe for separateness, but rather a prerequisite for the generation of trusting, warm and rich community relationships. We might not live in a monoculture of shared values (I doubt we ever have done), but diversity is no threat to community unless the trust we have in each other breaks down. Such trust is dependent upon, not threatened by, the idea that there are aspects of ourselves that we might not choose to share with others. Indeed, we have special words, such as ‘friend’, that we use to denote those whom we allow most fully into our inner worlds. It is all of this – the texture, if you will, of what makes for a meaningful existence – that is undermined by the nightmare of the mind probe.

Even as you read this, however, you know which way things will go. The level of confidence we place in people who we hardly know – everyone from the primary school teacher to the builder contracted to build the extension on our house – will tempt us to resort to the seductive utility of that probe.

The probe is coming: but don’t blame the liberals when your privacy and your community are gone.

Phil Badger teaches philosophy and psychology in Sheffield.