Politics - British Law and BDSM

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