Berl Kutchinsky
Professor of Criminology
Institute of Criminology and Criminal Science
University of Copenhagen, Denmark

Before the mid-1960s, there was nothing particular about Denmark in relation to pornography. Denmark had absolutely no history as a pornography producing or consuming nation. Danish laws against pornography were very similar to those of other European countries. Both in the late nineteenth and early twentieth centuries books and pieces of art were prosecuted and convicted in Denmark as in other countries, which by later standards would seem perfectly innocent. In as late as 1959 an imported English version of the famous pornographic classic, Cleland's Memoirs of a Woman of Pleasure, was convicted.

During the 1960s, however, public attitudes began to change, and in 1964 an unexpurgated Danish translation of the Memoirs, under the title of Fanny Hill, was published for the first time, prosecuted and acquitted first by the High Court and, in 1965, by the Supreme Court.

Since Fanny Hill is, if anything, pornographic in the true sense of this word, that is, extremely explicit and graphic in its erotic descriptions, this meant that the penal law banning pornographic literature had become obsolete. The Minister of Justice asked the Permanent Criminal Law Committee to investigate the issue, and this Committee, after consulting criminologists, psychologists, educators and psychiatrists presented a report in 1966 which recommended decriminalisation of pornographic writings.
The point made by the Criminal Law Committee was that public attitudes towards moral legislation had changed so that it was no longer reasonable for the state to interfere with what people should be allowed to publish or read, as long as no clear harm was done.

As far as harm is concerned, it was generally agreed by the experts that all available evidence pointed in the direction of pornography not being directly harmful to individuals. Particularly influential was the statement of the Medico-Legal Council, a distinguished body of leading physicians, which concluded

On the basis of general psychiatric and child psychiatric experience it cannot be assumed that the sexual orientation, the psychological development or attitudes toward sexual life and sexual-ethical norms in adults or in children can be influenced in a harmful direction through . . . pornographic literature, pictures or films. Whether these media may have a beneficial influence on a group of inhibited and sexually shy neurotic personalities is doubtful, but can hardly be totally excluded. What has been said here, holds true no matter whether the pornographic publications, pictures, etc. describe normal or perverse sexual relations (Penal Law Committee 1966, p. 80).

The Penal Law Committee's proposal was adopted by the Danish Parliament in 1967 by 159 votes to thirteen. During the debate in Parliament on this amendment, there was a widespread inclination to extend the repeal to also include obscene pictures, objects, and performances, 'if experiences with the present amendment turned out to be as favourable as expected'. The expected result was mainly a waning of interest in such material when such an interest was no longer spurred by the illegality. By 1969, politicians had become convinced that a favourable effect had in fact occurred, and without once again asking the Penal Law Committee's advice, the decriminalisation of pictorial pornography was adopted in Parliament by 125 votes to twenty-five.

Section 234 of the Danish Criminal Code (1969), reads whoever 'sells indecent pictures or objects to a person under 16 years of age' is to be punished by a fine. Section 235 (1980) has a special provision concerning the reproduction and sale of child pornography, that is, sexually explicit photographs of persons who appear to be under 15 years (the taking of such pictures was always a criminal offence).

This means that, in Denmark, any kind of pornography, except child pornography, can be produced and sold, or shown in cinemas, to persons who are 16 years or older. It does not mean that there can be pornography everywhere; thus, police regulations forbid the public display of pornography, for instance in porn shop windows, or to send or hand out pornography to someone who has not asked for it.

As to legalisation of pornography, Sweden followed suit in 1970, and the Federal Republic of Germany (West Germany) in 1973. West Germany, however, kept certain provisions regarding violent pornography and recently Sweden also introduced such restrictions. Today, Denmark seems to be the only country which does not have any legal restraints on sadomasochistic pornography. This does not mean that it is not available elsewhere. The situation today seems to be that wherever hard-core pornography is easily available, sadomasochistic material is available also.