On 24th October 1980, the Attorney-General sent a lawyer to the theatre to watch a performance of The Romans in Britain. The National Viewers’ and Listeners’ Association (NVALA) did the same, asking John Smyth QC to witness the activity on the stage and form his own conclusion. On his return, Mr Smyth said he had been shocked by the play and recommended that NVALA’s legal adviser, Graham Ross-Cornes, should ask the Attorney-General to take action against the play and insist on its withdrawal. A month later the Attorney-General’s reply was received, to the effect that he would neither prosecute the play nor permit NVALA to do so. When asked why, he simply replied that he did not believe that the case would be successful. This split the two sides in the argument even wider. NVALA became even more determined to prevent the play from continuing and the National Theatre regarded the decision as an official condonation of the production.

It is not difficult to see why the case might have failed. The prosecution would have been brought under the 1968 Theatres Act which states “a play shall be deemed to be obscene if, taken as a whole, its effect was such as to tend to deprave and corrupt persons who were likely, having regard to all relevant circumstances, to attend it.” It is very rarely that these woolly words are exposed as the meaningless drivel they are. The problem with any prosecution brought under this paragraph is one of proof and criterion. In these circumstances, what is depravity and corruption? In terms of morality, it’s hard to define what corruption really is. And, even if you can define these terms, how can they be proved to have happened?

There seems to be four or five possible reactions to the play and most particularly the rape scene. One can appreciate the symbolic meaning of the rape as signifying invasion by an alien culture and accept the scene as writer Howard Brenton intended it. This would not involve any depravity or corruption, as one would not view the incident in sexual terms, but purely symbolic. Those people who were shocked by it and found it offensive would voluntarily detach themselves from the play, stop watching it, and stop thinking about it. Perhaps they might walk out, in which case they would no longer be present to face depravity or corruption. Some people might feel that the whole scene was ludicrous and either out of embarrassment or simply because of the inept choice of metaphor, find it funny. This reaction would mean they wouldn’t take it seriously, and would mentally block any seriousness about it. Perhaps as a result they might be accused of condoning such sexual violence; but above all, laughter is a defence mechanism to protect oneself, and one would be most unlikely to be corrupted by laughter.

Even if the scene were to excite a member of the audience sexually or pornographically, one could claim – and this a matter of much debate – that that person was already depraved and corrupt anyway and that the play made no particular difference to their already established outlook. Only if a dangerously impressionable person with no criminal record were to go out and commit homosexual rape as a result of the performance could the play decisively be said to have been proved to have depraved and corrupted this person. In any case, this mythical miscreant would have to be so impressionable; reading an Agatha Christie murder mystery would be as likely a cause for them to commit murder. The legal viability of the Theatres Act obviously has its limits.

After the Attorney-General’s refusal to prosecute or grant permission for others to prosecute, NVALA was left with two options. Either they could drop the case and admit defeat, which is certainly what the Attorney-General would have preferred, or they could take out a private prosecution against director Michael Bogdanov under the Sexual Offences Act of 1956. Section Thirteen of this Act stated: “It is an offence for a man… to procure the commission by a man of an act of gross indecency with another man.” At the time, the charge of procuration carried a maximum penalty of three years’ imprisonment. This was the course of action that Mary Whitehouse took. It’s interesting to note that Section Thirteen of the 1956 Sexual Offences Act was repealed by the 2003 Sexual Offences Act, and the charge of procuration is no longer an offence.

Michael Bogdanov’s reaction was one of surprised annoyance. In the LBC Artsweek programme broadcast on 21st March 1982 he stated: “I felt that she was pursuing to an illogical end a case that she had got obsessed with, and therefore had not due regard to the circumstances and the occasion of the play.” This comment is at odds with Mary Whitehouse’s denial after the trial that she would prosecute “The Romans in Britain” again if it were to be presented at a different theatre. Her words were: “I’m not interested in chasing a particular play”.

There were two aspects of the case which captured the attention and imagination of the public. The first, which was frequently used against Mary Whitehouse, was the fact that she was going to all the trouble of privately prosecuting Michael Bogdanov, and running the risk of incurring very expensive legal costs if she failed, when she had never actually seen the play herself. This struck many as hypocritical and censorial, because she was attempting to influence what other people could see from a position of ignorance, depriving herself of first-hand knowledge of the matter in question. She defended her position by saying that she had been told in full by her representatives who had seen the play all about it, and that therefore she knew enough. She said that quite simply she had no wish to see it; and she considered that if she did go to see it that would benefit her opponents in the argument. They would say that she’s been to see it and she hasn’t been depraved and corrupted by it, so why should anyone else? I’m sure she was right on this particular point.

The second aspect which stirred public interest was to what extent was the homosexual rape on stage “real”. It had always been taken for granted by the public that the rape had been simulated, but accounts of the scene made it sound very real indeed. Bogdanov cavilled over the use of the term “simulation”. From the Artsweek programme: “I don’t believe you can simulate buggery… like you don’t believe the woman can really be sawn in half, you can’t simulate that, you can only create the illusion of it… a leading lady and a leading man are not necessarily in love; in fact they might hate each other, and one might have bad breath and the other a pimple on the upper lip and neither of them actually likes kissing each other but one says to the other “I swear I will love you for ever” and he kisses her, and that is the simulated kiss. But actually, you can create the illusion of a kiss; you can take somebody’s face in your hands and you can appear to kiss them but actually your thumbs have masked the fact that you’re kissing your thumbs, not their lips.” He preferred to use the term “illusion”, because “simulation” refers too closely to physical appearance instead of how the act appears to the mind. Bogdanov also insisted that the physical positions of the actors meant that “biologically it was impossible for it to have occurred”.

Six months after the decision had been taken by Mary Whitehouse to prosecute under the Sexual Offences Act, in June 1981, the charge was heard at Horseferry Road Magistrates Court in London. Bogdanov was represented by Lord Hutchinson who was the defence lawyer in the Lady Chatterley trial in 1961, which gave the whole affair an additional frisson for the general public. It also, subconsciously, emphasised the censorship nature of the case. Much to the surprise of theatrical and legal commentators, the magistrate decided that the theatre was not exempt from the Sexual Offences Act and that there was, indeed, a case to answer. Therefore, he committed Michael Bogdanov for trial at the Old Bailey. The legal commentators were especially baffled since the paragraph cited from the Sexual Offences Act, under which the charge was brought, was originally designed to prevent sexual acts taking place in public lavatories.

The theatre world generally regarded this decision as an insult, and it became a matter of pride for bodies such as the National Theatre Board, the newly-formed Theatre Defence Group and the Actors’ Union Equity to fight the charge tooth and nail. A fund was set up, called the Theatre Defence Fund, whose chief object was to raise money to fight the case and pay for Bogdanov’s trial costs if necessary. A most lucrative way of raising this money was the organisation of a chain of readings of “The Romans in Britain” at theatres up and down the country, at which audiences would donate however much they wished. Interestingly, NVALA made no comment about these readings, which showed that it wasn’t their intention to silence the play itself. It was also evidence of the fighting spirit of the theatre world who saw it as a legal way of showing defiance. This was especially true of the group of actors at the Oxford Playhouse who daily staged a reading of a transcript of that day’s proceedings in court, thereby creating theatre out of the theatre, so to speak. This continued despite a warning from the judge Mr Justice Staughton that they might be in contempt of court.

More about the trial in my next blog post.