In the "Spanner" (Brown) case in December 1990, 16 men were convicted of assault occasioning actual bodily harm and wounding under the 1861 Offences Against the Person Act. This was the culmination of several years of investigation by the OPS, who had been investigating "snuff" movies and child porn (although they failed to find any evidence of either of these).
Since these convictions, a huge international campaign has been mounted by sadomasochists fighting to liberalise the laws on sadomasochism (S/M) and to support the Spanner appellants through their case all the way to the European Court of Human Rights.
Probably as a result of the appeal by Brown et. al., the Law Commission has been undertaking widespread research on consent and offences against the person, with a view to reforming the law on all aspects of this subject including body modification and fighting as well as S/M. The latest consultation paper has just been published (14 December 1995). In this paper, the Law Commission provisionally proposes that in general it should not be a criminal offence to injure a person who:
1. is a capable adult
2. has given full and informed consent
3. suffers no permanent injury
In summary, they say "adult people should generally be entitled to make choices for themselves".
The admissibility hearing on the 18th of January 1995 at the European Commission of Human Rights was successful. This means that the Commission believes that the UK Government has a case to answer in the European Court. The three men making the appeal had stated that the UK Government had violated their human rights under article 8 of the European Convention on Human Rights, the right to a private life. The written version of the judgment of the Commissioners on the merits of the case was issued on the 13th December 1995. In this they state that although they found that the UK Government had a case to answer, they voted by a majority of 11 to 7 that the Government had a right to intervene on moral and health grounds.
At the same time the European Commission rejected a case brought by Liberty (the National Council for Civil Liberties) alongside the "Spanner" case. The five Liberty appellants were sadomasochists who claimed that they were potential victims under the Brown precedent although they had not yet been prosecuted. The case of the "Liberty five" was ruled inadmissible on the grounds that, in the view of the Commission, none of the appellants was likely to be prosecuted for their sexual conduct.
One of the writers of this article was one of the "Liberty five"; the other is an activist in the S/M rights movement. Both of us are women. In this article we plan to answer some of the main allegations against sadomasochism from the point of view of two women involved in S/M sex.
As the law stands we could both be prosecuted for expressing our sexuality. We believe that it is not justifiable to criminalise S/M. We do not agree that moral judgments should be brought into the law on offences against the person. Rather, consent is the key issue. Consent distinguishes lawful sexual intercourse from rape. This same consent separates S/M from assault. We believe as feminists that we have the right to do what we want with our own bodies; just as women have the right to say "no" to unwanted sexual intercourse, we have the right to say "yes", when we want, to sadomasochism.
There are many unfavourable consequences of laws that try to control what people do with their own
bodies. These effects have been felt by many people, including gay men, especially before
decriminalisation in 1967; people having underage sex; prostitutes; and women needing access to
abortion. As sadomasochists the consequences we suffer are:
Since the Spanner case there have been many incidents of police harassment of S/M events. Eleven incidents are documented between October 1993 and November 1994. The police have not, however, used the Spanner precedent to effect these raids, but rather other laws such as the archaic Disorderly House statute. This makes unlawful a gathering at the same venue regularly (i.e. on two or more occasions) for purposes deemed immoral or indecent, although they might not by themselves be illegal. The law was written centuries ago to quell the upsurge in prostitution, but has now been used to target sadomasochists' clubs and even private parties, even where no offence has been caused to the general public. It is indeed a worrying state of affairs that such an archaic law can be used in the 1990s to attack people's civil liberties in the privacy of their own homes - indeed some of the defendants in Brown were convicted of this offence. In response to these raids, a campaign against the Disorderly House statute was launched in 1994. Needless to say police continue to waste public money on high profile operations against harmless get-togethers of sadomasochists, some of which are detailed here.
In April 1994 police entered the back room of the Mineshaft, a gay club in Manchester. A number of men, some in fetish wear and some in their underwear, were arrested, handcuffed and taken to the police station where they were held for many hours and eventually released still in the same attire. The raid was justified on suspicion of "running a disorderly house"; the men were arrested for allegedly having sex on the premises.
In October 1994, following two incidents the previous month in which police were inquiring about possible infringements of licensing regulations, 58 officers burst into Club Whiplash in Putney at 2:03 a.m. (presumably to check the 2:00 drinking up time). Club goers were held for over an hour as police photographers took pictures of restraining equipment and two plain clothes officers spoke into dictating machines reporting activities said to have been observed during a period of surveillance. Goods as dangerous as painted wooden spoons and hairbrushes were seized from stalls on the premises. No-one was arrested by any of the police, who had arrived in seven police vehicles and with two dogs. However, charges of "running a disorderly house" were brought against both the club promoter (charges subsequently dropped due to lack of evidence) and the owners of the premises.
In May 1993, police in Hoylandswaine, Yorkshire raided a private party on the grounds that they were looking for stolen goods. Upon entering the house and discovering that the men at the party were dressed in rubber and leather, they arrested a large number of men on "suspicion of conspiracy to commit acts of gross indecency". Leather shorts and clothes pegs found in a bedroom were confiscated as "incriminating evidence". Several of the men arrested sued the Chief Constable of South Yorkshire for wrongful arrest. The police settled out of court in March 1995. Payments to the men ranged from £2,500 to £5,000. The total pay-out was £40,000.
In the wake of Spanner, HM Customs has mounted a campaign against the importation of foreign S/M magazines including "Drummer", "Demonia" and "Secret"; an importer of the last has been prosecuted. In addition the OPS has targeted domestic S/M magazines, including Cul d'Or. Run by a woman, a hobbyist who made no significant profit, this was a mild spanking magazine. Brought to court in 1995 the case was thrown out by the judge leaving the defendant with legal costs which legal aid would no longer meet. It is cases like this which demonstrate who the victims are in the law on S/M.
Contrary to some stated opinion, we as women sadomasochists do not suffer from low self esteem or self loathing. On the contrary, S/M can be a liberating experience and an expression of our fantasies. In contrast with our experience of a sexist society, we find that in S/M "scenes" women are often the ones in control, and that men who wield great power in day to day life may be prepared to give it all up for a few hours as a willing submissive at the feet of their Mistress.
It is alleged that women who are submissive collude in and internalise their oppression in our sexist society. This same allegation was leveled against all heterosexual women by radical feminists in the 1970s who said that "men are the enemy". There is indeed no doubt that our society does oppress women and that power imbalances often exist in relationships. However when sadomasochists openly experiment with power differentials within agreed limits in S/M sex "scenes", we are not reproducing actual inequality but representing it in fantasy role play. Perversely, the process of negotiation indicates a greater mutuality than is explicit in "vanilla" (non-S/M) relationships. If real life inequality does exist between partners it surely has nothing to do with what kind of sex they have.
The Spanner case itself has been a catalyst to the strengthening of the S/M community, through the foundation of a British campaigning group, "Countdown on Spanner", with links in other European countries and North America. Clubs, groups, social events, shops and magazines now serve the international S/M community. At our annual S/M Pride event (attended by over 2000 people last year) and at other times we hold workshops on aspects of S/M including physical and emotional safety. We have produced books, leaflets and magazine articles detailing safe techniques for what might otherwise constitute risky practices.
It is clearly untrue that criminalising S/M helps in any way to protect women from domestic violence. In fact, under the new law, the only difference between consensual S/M and domestic violence is that where the activity is consensual both parties can be charged. Hence the new law disempowers us: instead of protecting victims of domestic violence by giving us the right to say "no", it takes away our right to say "yes" to consensual S/M.
It has been alleged that men are encouraged to believe that "no" does not mean "no" by seeing pornography where women appear in submissive poses. These same accusations have been levelled at "vanilla" porn. We would like to point out that these allegations are unfounded, in fact that the situation is the reverse. In countries where pornography is freely available women have more power and equality in society (e.g. Denmark has a greater proportion of women MPs than we do). By contrast, countries where pornography is censored are often the same ones where women's position in society is inferior and where rape levels are higher.
Men rape for a multitude of reasons. It is impossible to do justice to this subject in this short article on another topic. However, research does not support the argument that men rape as a consequence of seeing any type of pornography. In fact research shows that men who rape have often been brought up in sexually repressive environments, are likely to have had limited access to pornography and are more likely to have read the Bible! They are even less likely even to have seen S/M porn, which is not generally available in mainstream sex shops or corner newsagents. And even had they seen S/M porn, this usually depicts women in dominant poses, unlike the mainstream imagery found in advertising, films, television etc, where the portrayal of women as submissive simply echoes the sexism of our mainstream culture.
As previously stated, the line between S/M and assault is a clear one: that of mutuality and enjoyment.
For years feminists have fought to make society understand that our bodies belong to us. No-one has the right to rape because no-one has the right to take control of our bodies without our consent. "No" always means "no".
But now it seems we also have to deliver a new message: that "yes" means "yes". As we demand the right to say "yes" to abortion and "yes" to lesbian and gay sex, we demand the right to say "yes" to sadomasochism.