The Trials of Portnoy

by Patrick Mullins

  The defence had assembled ‘as distinguished a body of testimony as it would be possible to call’, a litany of witnesses of the ‘greatest possible standing’, said Brusey. Its case would be twofold: ‘We will call evidence to show you that this work is of recognised literary merit in Victoria. Second, we shall call evidence from experts in the field to show that this work, so far from being damaging to the morals of the reader, is in fact a work likely to do good.’

  ***

  The strategy for the literary merit defence was simple: weight of numbers. ‘We wanted to get as many good people as we could to give evidence of literary merit,’ Stephen Charles said later. ‘We wanted to have as many witnesses as possible so that no one could deny that the book had literary merit.’5

  They did not have trouble attracting witnesses. Graham C. Greene’s telegram to Michie on the first day of the trial — ‘ALL BEST WISHES FOR A RESOUNDING VICTORY FOR LITERATURE AND LIBERTY’ — had been echoed in the large number of people willing to put themselves forward to speak for that exact cause.6

  First to the stand was John McLaren, a critic and lecturer in English at the Secondary Teachers’ College in Carlton. McLaren had experience devising syllabi for junior school students, and told the court that he had made a special study of the impact of literature on young minds. In testimony that occupied six hours of the hearing, over two days, McLaren said Portnoy’s Complaint was ‘very real, very serious, and very sensitive’. He ridiculed Flanagan’s description of the novel as solely about sex: it was ‘certainly not’ the main topic. McLaren could be learned and witty: asked what Portnoy’s complaint actually was, he deadpanned: ‘A good subject for Empson’s Seven Types of Ambiguity.’7 At other times, his testimony was weighty, clear, and sharply put: ‘The main theme of the book is Portnoy’s inability to reconcile his sexuality with his idealism. It deals with his attempt to come to terms with his sexuality.’

  McLaren did not believe that the novel could incite adolescents to similar behaviour. The only way that it would lead someone to masturbate was if they had not done so before, he said. ‘However, amongst those who perhaps do masturbate and feel guilty about it — and they are by no means an insignificant group — the book could have a healthy consequence in making them realise that they are not alone.’

  Flanagan’s cross-examination was confrontational from the beginning. He wanted to tarnish McLaren’s testimony and cut him down to size. He read aloud a line from the blurb: ‘Portnoy’s Complaint must surely be the funniest book about sex ever written.’ How did that square with McLaren’s answer to Brusey that the novel was not just about sex? Flanagan asked about masturbation: ‘You do not think that these detailed passages of sexual aberration, if I might use that expression, would influence an adolescent at all?’ At another point, Flanagan thrust under McLaren’s nose a lukewarm review of Portnoy from Time magazine and asked if he had read it. To McLaren’s no, the prosecutor sneered: ‘I see — you regard that as a bit beneath your field, do you?’

  The disjuncture between Flanagan and McLaren was palpable. The prosecutor made no disguise of his view that Portnoy was a pervert who corrupted those around him; McLaren, however, insisted that Portnoy was much more than this, and that the depiction of his life created insight, understanding, and compassion. As all works of literary merit did, he said, the novel ‘enlarges the reader’s understanding of what human life is about’.

  This view underscored McLaren’s refusal to accept Flanagan’s condemnation. The book was about a man’s inability to reconcile his sexuality with his idealism, he said. ‘The literary merit of the book is to be found in the extremes to which he is driven in his inadequacy and his disgust with himself.’

  In turn, Flanagan was contemptuous of McLaren. To all the invocations of understanding and compassion, and the distinction between author and material, Flanagan saw only low standards. When McLaren said that he would regard Portnoy’s ‘perversions’ as ‘distasteful’ only, not ‘a form of depravation’, Flanagan affected shock: ‘That is all?’

  Theirs was a duel, conducted at speed and with skill. Flanagan told McLaren off — for making speeches, for going ‘a long way’ from answering his questions, for interrupting, for failing to listen. McLaren continued to insist that there was disgust and shame evoked in the work, as well as sordidness. Flanagan, in turn, began to simply read passages of such sordidness and ask what they added, whether they were of literary merit, and what the point of them was. He read the passage of Portnoy’s ménage à trois with the Monkey and an Italian prostitute and said, with considerable distaste, that it was descriptive, wasn’t it?

  ‘And so is the next sentence at the end of the paragraph,’ said McLaren.

  Flanagan paraphrased it: ‘“Then I got up and went into the bathroom and you will be happy to know regurgitated my dinner.” Well, he could hardly be blamed for that, could he?’

  ‘Exactly,’ said McLaren, with the tone of one whose point has just been proved.

  McLaren stood down so that Age editor Graham Perkin, the next witness, could be interposed. A solid, gruff, and brilliant newspaperman who had lately transformed the paper, Perkin had aimed at credibility and relevance by hiring young and ambitious journalists, overhauling the paper’s layout, and broadening the scope of its coverage. A believer in the public importance of journalism and the role it could play, Perkin had given priority to the public interest. And, if wary of moves to publish Portnoy in 1969, he had no hesitation about engaging now on its behalf.

  Perkin testified that Portnoy’s Complaint was a serious literary work with an appeal that stemmed from ‘its literary quality’. It did not outrage him in the slightest, he said, and although not all would find the book funny, a ‘sensitive reader’ would be highly amused by some of its passages.

  Flanagan found Perkin to be hard going. When he put to him that the book was all about sex — citing the blurb again — Perkin was noncommittal: ‘I am a compulsive non-reader of dust-jacket blurbs.’ Pressed on the question, though, Perkin was firm. There was more to it: ‘It is a quite rare combination of tragedy and high comedy. Roth uses illustrations of this man’s sex to illustrate his whole personality.’ Of the novel’s merit, Perkin said, ‘The book is well written, in a craftsman-like way, and the character of Portnoy is well sustained and treated with sympathy.’ Roth had written the book ‘with integrity’. Perkin’s responses seemed to irritate Flanagan. When Perkin, answering whether sexual matters were foremost in Portnoy’s mind, said that he would have thought they were ‘in everyone’s mind’, the prosecutor was heard to mutter: ‘Speak for yourself!’

  After Perkin came another newspaperman. Scots-born journalist and editor John Douglas Pringle had proved himself an astute analyst of Australian culture and values. Progressive and wry, Pringle had trained his eye on the long history of censorship and puritanism in his adopted country when reviewing Portnoy in August. Now, on the stand, questioned by Charles, Pringle elaborated on his positive review. He told the court that Portnoy was well written: ‘The writing is crisp and vigorous and fresh. The dialogue is vivid, the characters are real and alive, the picture of his family is extraordinarily human. You feel you live there.’ The repeated use of four-letter words was justified by the course of the book, as were the detailed sexual passages that populated its pages. The novel’s literary merit could not be denied. ‘Nearly everywhere,’ he declared, ‘its literary merit has been recognised at once.’

  Pringle, however, yielded considerable ground. When Flanagan put to him that passages in the book were ludicrous, Pringle agreed. When the prosecutor said that some were intended to startle and shock readers, Pringle agreed. He admitted that he did not think Portnoy was a great book, and then, during a discussion on whether Portnoy had fallen apart as an adult, Pringle himself seemed to fall apart under rapid-fire questioning. Was the book an uninhibited confession? Yes. Were Portnoy’s problems self-inflicted? Yes. Were Portnoy’s des
criptions of masturbation detailed? Yes. But these perverted practices preceded his ‘sexual repressions’, didn’t they? Yes. The book was not about repression, Flanagan said, rising to a peroration. It was about a man who had sunk as low as it was possible to sink, and it portrayed nothing of how to get out of that, didn’t it?

  There was sniping between Brusey and Flanagan throughout the hearing. Interrupted by objections, Flanagan would sigh: ‘Mr Brusey, I will conduct the case, please.’ Or: ‘Mr Brusey, you know, an objection is not the occasion for a speech.’ During a wrangle over whether the blurb should be in evidence, Flanagan laughed: ‘Well, I understand my friend’s submission at the moment, Your Worship, to be an admission to tender the book without the cover.’ Brusey had a ready reply: ‘My learned friend need not mutilate the book any more than he has done in his opening.’ When Brusey asked Graham Perkin what would be left if the sexual episodes were culled from Portnoy, Flanagan heckled him: ‘Ten pages!’

  There were jokes, too. When Pringle suggested that Portnoy had fallen apart because he had visited a psychiatrist, Brusey could be heard murmuring to the prosecutor, sotto voce, ‘You might be late for your own appointment tonight if you don’t hurry up.’8 When Pringle stepped down at four o’clock, having discussed Portnoy’s masturbation into the liver and its subsequent consumption at dinner, Brusey asked for an adjournment on grounds that he had ‘not, as it were, got any witnesses left on the menu for today …’

  The evidence presented by McLaren, Perkin, and Pringle notwithstanding, the most notable point of the trial came in the morning, before Pringle took the stand, when Brusey and Charles made their arguments for the strategy that Michie had mentioned to Greene — to call psychiatric evidence.

  ‘We could not call evidence of the tendency to deprave and corrupt at large — that is, to deprave and corrupt anyone and everyone,’ Charles recalled. ‘But once you narrowed it to a field such as the impact on children, and on boys, we believed we could justly argue that that was a narrow field on which there was recognised psychiatric knowledge.’ Flanagan, during his opening remarks, had made reference to seventeen-year-old children. ‘Because he had narrowed it in that way,’ said Charles, ‘we were entitled to say, “We can call evidence.”’ There was another element to this: the defence could argue that, far from corrupting or depraving young people, Portnoy would be a positive influence. ‘It would remove the feeling of guilt about masturbation,’ Charles recalled. ‘It would be positively beneficial for them.’

  They had prepared two witnesses for this point: La Trobe University professor Ronald Goldman, and Dr Allen Bartholemew, a psychiatrist with expertise in the relationship between psychiatry and the law. Bartholomew had extensive experience working in correctional institutions, and was the first psychiatrist superintendent at Coburg’s notorious Pentridge Prison. The prospect of their testimony presented a dire threat to Flanagan’s case.

  ‘Flanagan leapt in immediately to say that the evidence could not be admitted,’ Charles recalled. ‘He realised that it would be damaging to his case. To say that there was nothing damaging about Portnoy was obviously ruinous for him.’ In submissions that took up most of the morning, Flanagan argued that such evidence was inadmissible. The High Court, he argued, had made it clear that it was the content and the nature of the literature in question that required judgement. The scientific evidence that the defence hoped to present should be ruled inadmissible.

  Brusey responded that the act under which Penguin had been charged made it clear that it was contemplating people who might be depraved or corrupted by the work in question. He argued that psychiatrists could therefore inform the court of the likelihood that Portnoy would do this.

  After three hours of submissions, Ross ruled it out. No such evidence would be heard in his court. ‘I keep coming back to the general core of the matter, which is that this court has to decide whether the matter [Portnoy’s Complaint] is, or is not, obscene.’ In that light, he said, there was no place for the evidence of psychiatrists, psychologists, or experts in similar fields.

  Michie would call this ruling a ‘disaster’, but Brusey and Charles were far from devastated.9 Why? Because it opened the prospect of an appeal. ‘We felt, as soon as Ross ruled it out,’ Charles recalled, ‘that we had an appeal point. Right at that moment.’ The knowledge that Ross’s ruling had given Penguin an avenue to launch an appeal, in the event of a guilty verdict, made the defence increasingly confident — and willing to take further risks. ‘We did not mind whether it was or wasn’t [ruled out],’ Charles said, ‘so long as we got the opportunity to make the play; so long as we got to say that there was very considerable evidence, from an array of respected children’s psychiatrists, saying that this was a book that was positively good for you. We were going to keep repeating that whenever the question of pornography and obscenity came up.’

  Therefore, the next day, Friday 23 October, Brusey launched an attack on Ross himself. Noting that the magistrate had refused to hear scientific evidence, Brusey argued that the Crown had been allowed to put forward evidence that should have been inadmissible. Flanagan’s recitation, during McLaren’s testimony, of the negative views of Portnoy held by the National Literature Board of Review should not have been placed before the bench. That was ‘totally improper’, Brusey said. Flanagan’s use of newspaper and magazine reviews that had not been entered into evidence had not been appropriate: ‘There has been conveyed to you [Ross] a whole series of inadmissible evidence.’ On these grounds, Brusey told Ross, he should recuse himself. ‘If you feel that justice would be better done, I ask you to say that you think a fairer hearing of this case would be before another magistrate, [and therefore] you would discharge yourself as a judge would discharge a jury.’

  It was an audacious move. While there was some benefit in drawing Ross’s attention to the inadmissibility of what he had heard, and so pressuring him to bend the other way to maintain his impartiality, the request was also fraught with risks. It could offend Ross, personally and professionally, and endanger the rest of the defence case. ‘I am not saying you are prejudiced,’ Brusey said, to pre-empt any antipathy, ‘but some matters should not have been admitted.’

  Flanagan’s response was heated and irate. He was offended. ‘I feel that the submission he [Brusey] has made makes improper and outrageous remarks about my conduct of the case.’ He disagreed with any suggestion that Ross should step aside: ‘There is no legitimate reason that Your Worship should exclude yourself from hearing the rest of the case.’

  Ross ruled against it. Conceding that some of the evidence he had heard should not have been admitted, he shrugged it off: it was a problem for magistrates everywhere. Restricting evidence to ensure it was admissible was never easy. ‘I propose to continue this hearing,’ he said. ‘I would also like to say that I hope this will be the last of this matter and this sort of dissension which seems to have cropped up in this case.’

  It was — but Brusey’s challenge, and Ross’s defiance of that challenge, was the headline for that day’s press coverage. Within the court of public opinion, it was a win. For Penguin, this was almost worth whatever cost might eventuate. ‘We thought that, by that point in the trial,’ Charles explained, ‘as we had lost the psychiatric evidence, there was nothing to lose in pushing for Ross to recuse himself. We did not expect to win it.’ Was it a point for publicity, then? Said Charles: ‘Yes, certainly in part.’

  ***

  The case went on. The witnesses continued. Arthur Angell Phillips said that the book had a strong moral: ‘There is an essential wholesomeness in this book, particularly in its sexual values. There are treatments of perverse sex and this book is partly concerned with perverse sex … [yet] you are always aware of an element of absurdity in the perverse incidents.’

  Younger men followed: Brian Kiernan, of Swinburne Technical College; David Bradley, Noel McLachlan, and Dennis Douglas, all of Monash University. The treatment they
received from Flanagan and the arguments they made were largely the same. The book had literary merit, they said. Its language was alive. Its characterisation was compelling. The incidents of sex were necessary and not salacious. The coarse words were part-and-parcel of Portnoy himself. ‘The only question I was asked by the legal beagle on the other side was whether I cared about my children’s education,’ Douglas recalled. ‘I said something to the effect that it was a major concern of mine.’10 Kiernan, who had heard McLaren’s testimony, made sure to deliver his evidence in a way that was ‘low-key and respectable’.11

  The manner and substance of the hearing seemed to change with each witness. It was a morality hearing, then a squabble over smut, then an English literature tutorial, then a comedy of embarrassment and prudery. Bradley was asked about his knowledge of the sex acts contained in the book. ‘If I may make a confession to the court,’ he answered, a little sheepishly, ‘I must admit it educated me.’ When he later remarked that he had found the book to be revealing about his Jewish friends, Flanagan started: ‘And did you find it remarkably revealing in that sense …?’

  ‘About their sexual habits?’ Bradley said. ‘No. I don’t know what their sexual habits are.’

  At this, laughter broke out and Flanagan fumed. ‘I had not finished my question,’ he said. ‘I know the witness box is sometimes regarded as a stage, but at the moment I am putting serious questions on a serious topic.’ At other times, though, Flanagan could laugh. ‘We have a lot of fun in court,’ he said, during Kiernan’s testimony.

  Some witnesses were better than others. Stephen Charles thought Douglas was ‘a little too prepossessed by his own verbal skill’; during another witness’s testimony, he scrawled two blunt sentences, added a large exclamation mark, and slid the page over to Brusey: ‘An awful witness. As short as possible!’12

  Dinny O’Hearn’s evidence veered between a lecture, a performance, and a scolding. Barely allowing Charles room to ask his questions, the sub-dean of arts at the University of Melbourne spoke at length on the novel, reading passages to support his ideas, likening Portnoy’s cloying family drama to that in an Irish-Catholic family’s.