During a recent random discussion with
my wife, it was revealed that she didn't know any of the things I'm
going to explain in the following blog post. On reflection, that
wasn't as surprising as it appeared – I'd never got around to
specifically talking to her about them and general public awareness
is probably almost nil. So whilst those who have a personal interest
in the matter may or may not know all of this already, I decided I
might as well put it out here.
To be clear, none of this qualifies as
actual legal advice. I don't even have a good level of amateur
understanding. This simply reflects what I've absorbed over the years
about what most people think the law is. I believe it to be correct,
but that doesn't mean you should rely on it. I should also mention
that this article is naturally going to be a discussion of adult
themes.
For the truly uninitiated I should
begin by defining a couple of terms. BDSM is a compound acronym
referring to the practices of Bondage and Discipline, Domination and
Submission and Sadism and Masochism. Those interested in any one of
these three groups often have some interest in the other two. Most -
but not all - of those interested in these things regard them as
sexual. Whilst childhood play often reflects such an interest early
it is universally considered an adult matter.
Estimates on the proportion of the
population that are into BDSM vary from 2% to over 40%, but the most
reliable figures seem to place it at around 5% for major interest.
For my purposes the term 'BDSM community' simply refers to this
slice of the population, a fair amount of whom socialise or
communicate in some way based on mutual interest in the matter. It is
not a centrally organised group – nor is it one united by a
specific ideological position, although certain very basic standards
are required for any kind of social acceptance.
Whilst there should be plenty of people
out there old enough to remember, it is very hard to get any real
picture of the state of things prior to the so-called 'Spanner Case' (properly known as R v Brown).
This event began in the late 1980's and had a lasting affect on
the BDSM community that continues today.
The case began when a video tape of a
BDSM orgy between several homosexual men was obtained by the
Manchester police. Erroneously believing it to be a record of the
torture and murder of multiple individuals, a massive manhunt
(code-named Operation Spanner) was launched to find those depicted.
All of the participants were located – including those who were
supposed to be dead – and all testified that they had been engaging
in consensual sexual activity.
For reasons that are not clear – but
probably related to the massive financial outlay of the investigation
and the need to show results – the CPS pressed charges anyway.
During the trial it was pointed out that by default a person cannot
consent to be assaulted (pistols at dawn is still murder despite the
informed consent of the duelists). There are specific exceptions to
the law such as surgical procedures and contact sports, but sex play
is not one of them.
As a result the sadists were all
convicted of criminal assault. The masochists – who had enabled and
encouraged the acts – were likewise convicted of having aided and
abetted the assaults on themselves. An appeal to the House of Lords
failed, with one of the ruling judges saying that he was 'not
prepared to invent a defence of consent for sadomasochistic
encounters' because the behaviours they represented were 'evil' and
'uncivilised'. An appeal to the European Court of Human Rights was
rejected on the grounds that the question of when assault was
permissible fell within the sovereignty of individual nations.
This legal precedent is still valid
today (and was foreshadowed by the R v Donovan case of 1934, though the defendant there sucessfully overturned the prosecution). As a result, any BDSM act that could class as assault (and
certainly anything that causes injury equivalent to ABH) is
technically illegal and can result in conviction over the objections
of the 'injured' party.
To the best of my knowledge, no one has
ever been convicted on the basis of this since the Spanner Case
itself. I believe that very small number of cases have been brought
to trial, but all of the heterosexual couples so charged were
acquitted. This has led some to suspect that the Spanner Case
actually represents a case of homophobia more than anything else.
Some partners in BDSM couples have gone on to charge their partners
with assault, but generally these appear to have been cases of actual
domestic abuse that just happened to take place within a
sadomasochistic relationship.
What the Spanner Case has done is to
embolden the media in producing negative stories about kinky people.
There is a long history of newspapers publishing articles exposing
the BDSM activities even of private citizens, often without any
discernible reason beyond mockery. A particularly objectionable
example can be found here.
Whilst such articles would normally be regarded as a gross breach of
privacy, the papers will assert that they are running a 'crime' story
and dare their victims to bring the whole thing in front of the
courts.
It should be noted that the crime
defence did not prevent Max Mosley from successfully suing the News
Of The World – nor did it result in anyone facing assault charges.
Mosley has actually become a hero to some sections of the BDSM
community for pushing this victory through – a supremely unlikely
hero, given that he basically sued the paper for telling his wife
that he'd held an orgy with hookers. How much his win has actually
changed the reporting habits of newspapers is less clear.
Something that most people probably do
not realise is that BDSM practitioners are not legally protected from
discrimination on account of their activities. British law does not
simply forbid discrimination in any form – technically favouring
one candidate over another is always going to be a discriminatory
process. Instead, the law defines certain groups as 'protected
minorities' who cannot legally be discriminated against if the
discrimination is on account of their membership of this group.
Whilst members of a given sexual orientation are generally protected,
'kinky' is not normally considered to be a specific orientation. It
should also be noted that some employers (especially those in the
public sector) require their employees to behave in a 'becoming'
manner even outside the workplace to avoid negative associations upon
themselves.
What this means is that if the press do
decide to splash your sex life all over the newspaper (or a work
colleague decides to forward your online presence to your boss for
some personal reason) you can also get fired for attracting negative
publicity with your deviant ways. Unlike convictions based upon the
Spanner precedent, this does happen. BDSM practitioners regularly
lose jobs, suffer disciplinary proceedings or are denied advancement
in their careers because others have intruded upon their sex lives.
One thing that slightly complicates the
above picture is the existence of professional dominants and
submissives. Those who advertise themselves as such within the social
community do not engage in sex with their clients, thus their actions
do not constitute prostitution. Such services are as legal as any
other BDSM activity and may not even be considered specifically
erotic by their practitioners. BDSM-related campaign groups naturally
defend the causes of both professionals and non-professionals without
distinction. That said, there is a difference between a personal sex
life and a publicly advertised small business. The level of threat
posed to truly private individuals is accordingly hard to gauge, but
it is certainly more than none.
The most prevalent issue regarding
British law and BDSM at the moment however is the ban upon 'Extreme
Pornography'. The road to this legislation began with the murder by
strangulation of a woman named Jane Longhurst in 2003. When it was
revealed that killer Graham Coutts had been a user of pornography
featuring partial asphyxiation (an S&M practice known as
'breath-play') the bereaved mother and sister began a campaign to ban
such material.
The actual evidence that the
pornography was a motivating factor was shaky at best – Coutts had
been physically practising breath-play for five years before he had
looked at porn of it and had also complained to psychiatrists about
murderous thoughts long before he had viewed such material. In any
event, judging the large-scale impact of such material on the basis
of one case is wildly unrepresentative (one might as well judge The
Dark Knight by the recent 'Batman shootings'). Of course, the outcome
was inevitable and the result was section 63 of the Criminal Justice
and Immigration Act 2008.
The Act prohibits possession of images
featuring necrophilia or bestiality, but the more severe penalties
relate to possession of 'violent pornography'. In theory, the
definitions are quite dramatic -
illegal images are ones that depict “an
act threatening a person’s life” or “an act which results (or
is likely to result) in serious injury to a person’s anus, breasts
or genitals”. Examples given within the Act include “depictions
of hanging, suffocation, or sexual assault involving a threat with a
weapon; the insertion of sharp objects into (or the mutilation of)
breasts or genitals”.
In practice, this outlaws via the
examples all depictions of breath-play and possibly images of
practices like edge-play and needle-play. The question of what
constitutes 'sexual assault' or 'a weapon' is pretty open in the
context of the Spanner Case (which was cited as a precedent in the
new law).
It should also be noted that an officer
assessing whether an image contravenes the law will probably have
little actual knowledge of BDSM's practicalities and therefore his
'risk assessment' might be far beyond the realities of the scene.
Certainly, regular practitioners obviously avoid circumstances that
are 'likely to result in serious injury' or they'd all be seriously
injured.
Police do not normally obtain search
warrants for the purposes of searching for Extreme Pornography, but
the number of unrelated reasons that they might go through your
private files is high and rising. When such materials are turned up
in these searches prosecution often follows, as shown by over 1300
prosecutions in 2011 alone. Whilst some of those charged over
BDSM-related material are acquitted, standing accused of a sexual
offence for a lengthy period of time can still have a devastating
effect upon professional and family life.
If you are one of the (possible
outright minority of) adults who don't use pornography, you might
well not care if people are arrested for using something you find
offensive. If you have a moral problem with porn, you might regard
banning some of it as social progress compared to banning none. You
may even be of the view – common in the wider debate about violence
in entertainment media – that if censoring such material can
prevent even one death at the hands of a psycho, the benefits far
outweigh the loss to our leisure time.
Unfortunately, this isn't strictly a
leisure issue. The bare fact is that if someone has a sexual
preference for consensual adult breath-play, they can be imprisoned
for three years and placed upon the sex offenders register for
exploring their sexuality in a manner that is entirely legal for
everyone else. How graphic the porn is does not matter to the Act –
only which sex acts are depicted. If the government were to ban gay
porn whilst leaving heterosexual smut unregulated, there would be no
question that they were attempting to criminalise people for being
gay. This Act is exactly the same for a large number of
sadomasochists, except that the overt reasoning behind the law is
that these people are a danger to the public and must be hunted down
before they kill. This is not a reasonable position to take towards
hundreds of fetishists per year, it is not based upon any kind of
wide-scale research and it is not okay.
There have been organisations working
to change these legal disabilities since they became extent. Given
the size of the BDSM community and the large degree of unity it shows
in condemning these laws, it might be regarded as surprising that
protest has not been more high profile.
Unfortunately, many individuals simply
feel that they have too much to lose. When most of you are getting
away with something because it is within your private life, making a
public declaration on the matter becomes a daunting prospect. Many
fear that if they make to much noise the publicity they get will cost
them their jobs or potentially even their freedom and families.
Additionally, becoming aware of one's
BDSM sexuality is not always a painless process. Essentially similar
to the 'coming out' of a homosexual person, individuals can take
years to become comfortable talking about it or remain closeted for
decades. Not everyone who is affected by these laws is by any means
ready to march down the street protesting that they are being
affected – a situation that the current media and legal attitude
seldom aids.
When viewing Britain on a day to day
basis, it might be hard to reconcile the bleak picture I've just
painted with actual experience. We live in a nation where the fastest
selling novel of all time is a piece of BDSM erotica, sex shops cover
half a wall with devices intended for bondage and sadomasochism and a
fairly mainstream pop star can sing how 'chains and whips excite me'
without being slammed too badly by parents and press. Most members of
the BDSM community live their entire lives without ever being
personally harmed by the problems I have just described and most
police officers are entirely happy with this. Whilst most people
probably regard BDSM as 'not their cup of tea', laughter and
bemusement are a more common reaction than anger or hate.
However, we also live in a nation where
5% of the population are legally vilified by the state for their
consensual adult sexual preferences – a small but recurrent number
of whom see their entire lives torpedoed for no better reason. If a
lot of people are angry and upset about that, it's because they have
very good reason to be.
The group most directly dedicated to
altering and raising awareness of the issues I've described in called
The Spanner Trust. You can find them here
Unfortunately they aren't always the
most tech-savvy people. If you want answers to e-mails, you'll have
more luck with CAAN
or Backlash
For a blow-by-blow commentary on BDSM
rights and media coverage as it happens, the Activism Board on InformedConsent used to be the place to go. Unfortunately, it has largely shut down - although it still maintains some news feeds that you can find via the site. The major social network of the UK BDSM community now is probably the slightly different Facebook-like site Fetlife
