Kwaku Azar writes: The obscenity law does not impose strict liability

There is a fundamental misunderstanding of section 280 of the criminal code which provides that “Whoever publishes or offers for sale any obscene book, writing, or representation, shall be guilty of a misdemeanor.”

Some people have simply replaced obscene with “nude or semi-nude” and have also made section 280 a strict liability offense. Strict liability means the law punishes the publication (act) without any regard for the intent (mens rea) of the publication.

Therefore, since Akuapim Poloo published a semi-nude picture with her son, she has violated section 280 and should be punished, in the words of Judge Christian Cann, to protect the “moral image” of the country and to curb the “moral corruption” of the public.

The interpretation put on the act and the men’s rea are both palpably wrong. Indeed, never has an offense been so misunderstood and a law so poorly applied.

First, semi-nude or nude publication per se is not obscene. Otherwise, Professor Yanney Ewusi’s tropical biology book will be banned from the classrooms.

Rather, nudity as a form of art or expression is as ancient as man himself and can be found in Genesis, for those who are inclined to read the story of Adam and Eve.

Put simply, there is nothing inherently wrong with a nude or semi-nude picture. Such pictures often communicate important social values.

In the instant case, the artist claimed she wanted to communicate the fleeting nature of worldly possessions to her son.

The scriptures remind us that “Naked came I out of my mother’s womb, and naked shall I return thither.”

The artist was, in this regard, doing no more than highlighting a scripture that has been taught to most of us over the years.

Furthermore, society’s view of obscenity is always evolving. What our parents considered obscene is par for course for us these days. There were times when it was obscene for females to wear anklets. It is fashionable these days. Couples could not kiss in public. It is unromantic not to do that these days, etc.

Obscenity then must be judged from the point of view of a reasonable person (not a reasonable puritan), taking into consideration the contemporary community standards.

My view, as a reasonable person is that a semi-nude picture is not per se obscene and I frankly did not find the said picture obscene. This is not to say I found it to be in good taste. But differences in taste should not be and has never been at the heart of section 280.

Second, let us simplify the conversation and assume that semi-nude is per se obscene.

Under that assumption, is the publication of a semi-nude picture automatically in violation of section 280?

NO!

Section 280, like most crimes, has a mens rea element. That means it requires the prosecutor to show that the publisher had a certain state of mind when publishing the semi-nude picture.

This is why Professor Ewusi commits no crime with his biology book, although admittedly the pictures in the book were more exciting than those in the mathematics book. His intent was to educate future nurses, doctors, surgeons, etc.

What then is the state of mind for section 280?

It is that the publication is calculated unnecessarily and improperly to excite passion, or to corrupt morals.

The relevant question then is at the time of the publication, did Madam Poloo had such a state of mind? Was she on a mission to unnecessarily and improperly excite passion or to corrupt anyone’s morals?

I submit not! She insists, in an accompanying note, that she was conveying the irrelevance of worldly possessions in a picture that conceals her private parts from both the public and her child.

That contemporaneous writing states clearly the reason for the picture and it is the best proof of her state of mind.

On that evidence, she should have put the prosecution to proof and she was ill-advised to plead guilty.

Even if the prosecution overcomes this insurmountable hurdle, there is lurking in the shadows the question of whether an expression can be punished as a constitutional matter. But that is a long story and the story has already gotten longer than it needs to be.

To summarize,

The prosecution was needless!
The plea was senseless! and
The Judgment was heartless!

But this is Ghana.

#SALL is the cardinal sin of the 8th Parliament.

Da Yie!

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