the logic that allowed public porn

Judge Nicola Mathers had this to say in regards to the ‘Boobs on Bikes’ parade in Auckland.

It is ‘not offensive per se for women to be topless’; her court was not one ‘of morals and it was her job to stick to the law’; and that “It may well be that the parade is tasteless but equally it may be that in a more mature society the vast majority might consider it harmless.”

My comments on each:

‘Topless women not offensive per se’…

This may be true, in the most general sense – i.e. not every single person is offended by every single case of female breast exposure (breast feeding, for example); but the ‘Boobs on Bikes’ parade is a specific case – and one that many, many people have consistently expressed their offense at. To say that topless women isn’t offensive ‘per se’ is not only helplessly vague, but also refuses to acknowledge the high degree of offense that obviously exists!

Her court a law-court, not a court of morals…

What definition of ‘law’ and/or ‘morals’ are being assumed here? All laws are based on a version (or understanding/appreciation) of a moral framework. The domain of ‘law’ is the formalisation of the domain of ‘morals’. This may not make judgments about porn parades popular or easy to make, but to make a complete distinction between ‘law’ and ‘morals’ is infinitely problematic.

“…might be tasteless, but in a more mature society might be seen as harmless”

This – no offense intended – appears to be a case of a judge not wanting to offer a judgment. Might be this… Might be that… Her job as a judge is not to speculate on how this ‘might’ be seen; her job is to interpret and enforce the law, and to deal with the case that the Council was bringing to her – namely the case that the porn parade was declined the needed council-permit but was going ahead anyway.

22 thoughts on “the logic that allowed public porn”

  1. I think that most of the offense was at what the parade was celebrating. I believe that the judge made the right decision under the law as it is currently written. It’s not her place to legislate from the bench.

    In other words it couldn’t be proved that bare breasts constituted public indecency, gross obscenity, or lewd and lascivious behavior. That being the case, there was no legal basis to prevent the parade.

  2. Thanks for stopping by and commenting jonolan,
    Whilst I do take your point that the judge is not to ‘legislate from the bench’, I’m not sure that has anything to do with her simple responsibility to interpret and inforce existing law.

    The parade was denied the permit by the council, and was essentially saying ‘we don’t care about permits and legality, we’re going to do it anyway’. She could have easily stopped it, no?

    And while those terms, ‘(public) indecency’, ‘obscenity’ and ‘lewd and lascivious’ only demonstrate the inseperable link between ‘law’ and ‘morals’. Her job is to discern – among other things (like when a council’s by-laws are being blatantly ignored!) – what they mean in various contexts. In this context, you have heaps and heaps of people expressing offense.

    It’s not rocket science. The bullies just were allowed to ignore both the council by-laws and the huge number of offended people.

  3. What the judge was saying was that the city’s refusal to grant the permit was in itself illegal. Sadly, judges are required to render judgments based on the statutes as they are written.

    Law and Morality are separated by the wording of those statutes. A judge can’t – if they follow the tenets of their profession – make moral judgments. They must made judgments in such cases based solely on the letter of the current law.

    It’s not something we should be happy about, but something we should accept because the alternative is far worse.

  4. I take your point, I really do. But could you explain how her a) judgment that the city’s permit refusal was illegal, was not at the same time b) a moral judgment?

    And (I’m honestly enjoying the challenge to my view, by the way!) if you don’t mind, could you explain why she thought the permit refusal was illegal?

  5. Aren’t you making the classical mistake (when dealing with young women) of looking at the wrong part of the anatomy here? Shouldn’t you raise your eyes?

    I don’t think many people (relatively) are offended by naked breasts. However, I am offended by the minds of these women (and many other people, dressed or not) as demonstrated in the few that were interviewed. Participation in the porn industry and other shallow activities is a sign of stupidity. And that stupidity is demonstrated continually on our TV (advertising, reality programmes and the like). The continual promulgation of stupidity (especially in younger people) is making it acceptable.

    However, we can’t legislate to prohibit stupidity.

  6. Cheers Ken,
    When you said ‘raise your eyes’ were you just pre-empting your point about the minds?

    And apart from that, surely it’s both the offense of nudity (and in a context which is blatantly related to pornography) AND the stupidity? We need not choose between these…

    Add to that the disrespect of the parade for ignoring the council by-laws and the opinion/feelings/concerns of many, the fact that the police-force in auckland essentially became their tour-guides down queen street, and the (overlooked) simple fact that the city was grid-locked all so people could look at topless girls… Way to send a nice picture of NZ culture to the world…

  7. Dale,

    If the laws as written do not specify that such gatherings can be forbidden then a judge has to rule in favor of those gatherings. Judges aren’t supposed to render judgments that contravene the written law. That’s why it’s not a moral judgment, but a purely legal one.

    Actually, the Auckland City mayor admitted that the group didn’t even need a permit to hold the parade and that there was no legal grounds to prevent them from having it. He’s promised to try to change the city bylaws to address this in the future.

    Judges are kind stuck in a bad place when it comes to such things. In order to do their job, they have to follow the existing laws even when and if they violate their own ethics.

    Think about it. What if a bunch of people decided that a Māori parade that included something close to native dress was offensive? Or a parade of Muslim in hijab? Or…

  8. Thanks jonolan,
    I’ve been meaning to ask if you or anyone knows the actual wording of the council by-law?
    Also, I’d still want to push back that moral judgments are common and/or unavoidable when it comes to interpreting and enforcing law.

  9. I’ll try to find the wording of the bylaw in question.

    I completely agree that judgments are common and/or unavoidable when it comes to interpreting and enforcing law, but when performed by a judge they must NOT contravene the written law. Contravening or changing written law is the purview and responsibility of the legislature not the judiciary.

  10. Thanks jonolan,

    (still enjoying the dialogue!)

    I’m finding it hard to imagine how the judge could have changed the existing/written law, but (and this has been my point) the difference between contravening (‘going against’) and ‘going with’ the law is determined by way of (and not without!) an interpretation of the law.

    And when the law is about what is ‘offensive’, then that is the nature of the interpretive judgment to be made.

    Cheers for hunting down the wording – I’ll be very curious as to what it is…

    -d-

  11. Dale, my mate fixes computers, right. Well I got to ask him one day “how many guys look at porn on the internet?” His answer was an unequivocal 100%. He then reeled-off some names of his more righteous clientele, who had caught some internet nasties, whilst downloading the very same material Crow promotes, and moralists describe as perverted. Any male who does not profess to be aroused by the porn is a liar, or in urgent need of hormonal treatment. We males are mere slaves to our genetics and this ‘demand’ is meet by entrepreneurs like Steve Crow, who in this instance, has the law on their side. At least Crow is pulling his weight by paying tax on his legitimate business activities, which is more than can be said for N.Z’s multi-national churches sitting on billions of dollars of property/investments. Saying that, you wouldn’t get me to go down Queen Street. Too much silicon in those titties for my liking, I prefer them more perky. What do you prefer Dale?

  12. Thanks Paul,
    Your comment underscores one of the complexities of human morality. We are (as has been said) ‘rational animals’ (or you might say ‘moral animals’). Now, no need for us to debate evolutionary (or not) ‘reasons’ for our moral ‘feelings’ (or whatever) in this thread – but we both can agree that humans do exert self-control over their desires; even the most basic – like food/sex.
    The attention you draw to the all-too-realistic struggle that some (all?) of us have with controlling ourselves ( …not to mention your implicit assertion that the spreading of both Christian teaching and porn are equally taxable activities?… ) doesn’t actually interact with the topic of this post – which is about the logic (or lack of it) used by Judge Mathers in her (non)judgment concerning the parade’s ‘non’-offensiveness… But thanks for the rant.

  13. Hey, I can’t see why anyone would bother fighting their genetic programme – rather just go with the flow and accept that men are stimulated by watching pornography and ‘Boobs on Bikes’ fit’s this category rather nicely . There’s nothing to be ashamed or embarrassed about there Dale, this is not an issue of morals or the lack of them. Just because a minority of the public have an issue with say alcohol, we don’t close down every pub or bottle-store. But this ridiculous ‘porn = rape’ is essentially the argument that was used to shut-down the ‘Boobs on Bikes’ or even ‘my 10 year old could view mammary glands’ (the same one suckled-on). I did my best to draw to your attention that Steve Crow run’s a legitimate business – which pays tax. Churches pay nothing in tax yet can campaign for government, and sit-on literally billions of $ in property investments used to propagate their own agenda – tax free!. To me Crow should be applauded by attracting 100,000 to down-town Auckland. I repeat my own preference for perky breasts, say athletic ‘b cups’. Given an option – what’s your call on women’s breasts there Dale?? Come on mate – every male on this planet has ‘a call’ on titties. Even you, dare you admit it in such mixed company. Not me. It’s ‘B’ cups on an athletic chick who looks as though she can do a triathlon without sweating, that spins my wheels, everytime. I’m looking forward to what ‘spins yours’ (in a biblical sense naturally) Cheers. Paul

  14. Paul – I see you are doing the blog rounds, – in response to a few of your points
    1. That it is genetics / that we are animals (think that was on Humanitarian Chronicle) – dare I ask how you view rape then? Tough luck for the woman, a bloke’s gotta have sex?
    2. The alcohol analogy is a bit weak – we don’t allow people to wander through the city drinking booze. It is a choice so folk can choose to go into a pub. People are quite free to go along to Steve Crow’s expo or to buy a porno mag but the city streets are a public place.
    3. The bit about tax – seems to be pretty irrelevant to this argument but is obviously something that annoys you a lot? I too reckon churches should go by the same rules as anyone else, however I don’t sweat it too much as I’m aware the churches fund a lot of community work that surely makes up for the tax.
    4. No-one cares what kind of tits you like Paul.

  15. Thanks Jack, I’m on the back-end of a fairly full weekend, and had seen Paul’s ‘thoughts’ but hadn’t had time to respond. I’ve nothing more to add to your responses. Well said. Paul, I hope you speak for yourself, and not for other atheists, because I’d suspect some would be quite embarrassed by your ‘thoughts’ here (which I’m tempted to delete, but will leave for posterity)…

  16. Hi there Jack, who ever you are. Since you asked buddy, here’s my thoughts…..
    1.)Rape; I totally abhor the primitive laws of the Scriptures regarding rape. (Deuteronomy 22:28-29 NLT)where God tells us If a man is caught in the act of raping a young woman who is not engaged, he must pay fifty pieces of silver to her father. Then he must marry the young woman because he violated her, and he will never be allowed to divorce her. My own point of view is chemical castration for all serial sexual offenders. Say that lot from St John of God down here in Christchurch for starters. And that geezer from The Christian Heritage Party.
    2.)Exposure in Public: If women are comfortable enough to get their titties out in public, guys will want to look. The law of the land says it’s not in fact illegal to do so. So who am I too complain? You can divert your own stare if you so wish, but I bet even you have a peak now and again. Go on admit it Jack, there’s nothing to be embarrassed about mate.
    3.)Tax; Steve Crow runs a legitimate business selling porn. He pays tax. Churches sell salvation and pay nothing. Pleased you agree it’s about time Churches started paying their way on their business interests. Emphasis on the legitimate bit. Porn is a legal industry.
    4.)Booze: This IS a great analogy especially since alcohol causes so many social ills and yet we don’t have calls to close pubs do we?

    This all boils down to sex and a minority of wowsers( 90 versus 100,000 in the case of Boobs on Bikes) wanting to tell us what we can and can’t do. The next thing you’ll be telling me you’ve personally never looked at porn. I’m not so hypocritical,more honest than you (even down to the boobs I prefer)

  17. Hey Paul

    Cheers for the reply.
    1. I’m not a church goer and fairly agnostic in my beliefs so please don’t direct all your anti-Christianity stuff at me. I can’t explain the bible story – much of the OT irks me. Your bible example however suggests you are totally against the idea of a guy being able to pay for sex that a woman didnt want. And yet Crow’s business is all about just that. I know, I know, the women participate ‘willingly’ but is it really what they want or the money they need? If it wasnt about the money, I suspect you’d see more qualified women choosing it as a career option.
    2. Exposure. Just because lots of people look at something – doesn’t make what they are looking at good by default. Lots of people gork out their car windows to get a look at bodies if they pass a crime scene. In saying that, I don’t see a problem with guys enjoying looking at boobs – its not about that, for me personally its about making sure there is respect for the person whose boobs they are, and thats not something I’m convinced of.

    3. Tax – you really don’t like churches eh? I don’t like a lot of them either. Did you give some a go? Yes porn is a legal industry but with restrictions. Its ridiculous to have age limits on porn when you’ve got boobs on bikes in public. If a movie opened with a scene like that in boobs on bikes it would get an age rating slapped on it right away. Why should I have to explain boobs on bikes to my six year old son? Is it Ok if he heads off to school and tells his female classmates to get their tops off for his viewing pleasure?

    4. Booze has age restrictions. Did you see the news tonight, Police riot squad out in force in Dunedin cos we cant have boozed people wandering the public streets.

    90 vs 100 000 is a pointless comparison when the vast majority of those against the event voted with their feet by not going.

  18. Hmmm…
    1. I’ll not claim to know everything about every bible passage, but the one Paul chose seems to clearly – among other things – name rape for what it is: a violation of a woman; and it places responsibility (financial and relational) squarely on the man’s shoulders. Andy by the way, Paul, what is a ‘serial sex offender’? Oh yes, I almost forgot – you’re not actually interested in reasonable dialogue; you only quoted that Bible passage to dodge Jack’s question about your own views about rape… What do you say Paul? How ’bout an answer? What do YOU think about rape? We’ve got these sexual urges, we’d better just follow ’em, right? No self-respecting atheist I know actually believes – let alone practices – such rubbish (I suspect you don’t either). Where do you draw the line? Child molestation? Beastiality? You’re quick to condemn Graeme Capol, but then again, he’s just following your theory that we’re just animals with urges… why cut his bits off?
    2. Indeed, it’s about people, not ‘boobs’… that’s part of the point, mate.
    3. Excellent point, Jack.
    4. 90 v. 100,000 – yeah, that’s accurate…

  19. What you are both trying to attempt, ever so crudely, is to some how ‘connect the dot’s’ between Boobs on Bikes and rape etc. Tell me, did the sex-crime rate in Auckland sky-rocket after this event? I mean there was the equivalent of Hamilton City? There-in lie’s your answer to that presumption. You are also trying you dandiest to paint pornography as a major social ill, when frankly it isn’t. Then as if to show your true colours, you trot-out that old chest-nut ‘Atheists are all Evil’ by again ‘connecting the dots’ between my non-belief in the supernatural (gods, ghosts, aliens, pixies at the bottom of the garden etc) and bestiality, child molestation?? Talk about playing the player and not the ball. Anyway, perplexing logic at best, more so when I’d already plainly spelt-out my own brand of justice towards these deviants would include a liberal dose of chemicals (the examples of some of the likely recipients I supplied was done so as I thought for sure you’d know them, cripes may be even given one of them your vote?) I’m terrible sorry for quoting that passage from The Bible, it just came to mind. Sometimes I forget – non-believers aren’t allowed to familiarise themselves with The Bible. Humble apologies, for that over-sight and I hope that Jack’s son enjoyed his day off school up Queen Street. Gotta shoot, keep your powder dry.

  20. Paul, you should be glad we’re even interacting with you. First, nobody is saying that it’s a simple 1 + 1 scenario, i.e. porn = rape (simplistically, as if the crime rate has to ‘immediately’ spike because of a porn parade – as if the porn parade is the only porn influence on potential rapists minds…). You still haven’t stated what you think about rape? And when did anyone say ‘atheists are evil’? My comment actually indicates otherwise – if you’d bother reading it.
    And sure, we might be trying (unashamedly) to paint porn as a major social ill, but you apparently don’t even think it is ‘ill’ at all! You say rapists are ‘deviants’??? Deviant from what???
    And I could care less if you want to quote the Bible – just don’t use it (or anything, for that matter) to dodge questions (which you’ve still not answered) – and you also might want to make sure the passage actually supports your point.

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