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the Spanner Trust
Norvin House
45-55 Commercial St
London E1 6BD
UK

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Spanner Trust submission to the Home Office Review Board on Sexual Offences

INTRODUCTION

  1. This submission is made by the Spanner Trust. The Trust was set up following a police operation known as “Operation Spanner” and the subsequent trials of a group of homosexual men who had willingly participated in consensual sadomasochism (‘SM’) [1] . The Trust’s primary aim is to de-criminalize the widespread practice of sadomasochism; it also attempts to educate those who participate in these activities, explaining both the legal limits and addressing the health and welfare issues to ensure that those who do participate do not suffer any serious or lasting injury.
  1. We would like to congratulate the Review Board on its comprehensive and thorough attention to all aspects of human sexuality. It is an area that raises strong emotions in many, especially when it comes to less conventional sexual activity.
  1. We were, therefore, very disappointed that the Review Board purposefully ignored SM. We submit that it is an integral part of sexuality for a significant part of the population and therefore should have been considered in the Review.
  1. Before proceeding further it is vital that we define SM. Sadism and Masochism are two terms that have generally accepted definitions within the English Language.
    1. The Marquis de Sade gave his name to sadism and it is defined basically as being the infliction by one person for his own pleasure of suffering, pain, injury, humiliation or other degradation upon another with or without that other’s consent. If a man beats his dog, that is an example of sadism.
    2. Count Leopold von Sacher-Masoch gave his name to masochism, which is generally defined as being the acceptance or willing receipt of pain, injury, humiliation or other form of degradation, sacrifice or suffering. For example, if a woman gives up her occupation and career to remain at home and care for ailing parents, that is an example of masochism.
    3. As far as sadism is concerned, we submit that no sadistic act can ever be morally justified and should not be tolerated in a civilised society. From that it follows that such an act, unless de minimis, should be subject to criminal sanctions.
    4. As far as masochism is concerned, if there is no good reason as to why a person should endure pain, injury etc., we can never see any moral justification for it.
    5. However, if two persons engage in activities with the full consent of both persons for the satisfaction of sexual libido, then the concepts come together and the usual outcome is that the sexual enjoyment of both parties is greatly enhanced. This is called sadomasochism or SM. To the uninitiated this may be impossible to understand. However, it is important that the reader should understand because, following the decision of the House of Lords in Brown and others (1994) [2] , certain consensual sadomasochistic sexual acts which involved the infliction of “injuries”, none of which required medical attention, and which acts had previously been believed to be legal, were confirmed to be illegal. It is this law which the Spanner Trust is seeking to change.
    6. We will therefore give the following simple illustration:-

      Consider A and B who are having sexual intercourse. If A sexually stimulates B then, after a given period of time and at a given level of sexual stimulation, B will orgasm. However, if during the initial period of arousal A inflicts upon B some form of pain, then B’s level of sexual arousal will be raised. This process can be repeated before B orgasms; if on each occasion A inflicts a slightly greater pain or “injury” upon B then B’s level of arousal will increase each time. As a result of this B is more than happy to give consent to the infliction of acts upon him/her which involve “injuries”.

    1. The vital ingredient, which must always be present in such activities, is the consent of both parties. As a result, it is NOT true to say that A is a sadist and B is a masochist. The accurate description of both participants is that A is a sadomasochist adopting the active role and B is a sadomasochist adopting the passive role.
    2. To take an analogy from Chemistry; regard Sodium as being the equivalent of Sadism, and Chlorine as being the equivalent of Masochism. Sodium is a soft metal that explodes upon contact with water; Chlorine is a green poisonous gas. They are both individually completely intolerable. However, if the two are combined in a chemical reaction, the product is Sodium Chloride, a white harmless crystalline compound, frequently sprinkled upon chips. Similarly, Sadism and Masochism are both individually completely intolerable. However, if the two are combined in a consensual sexual interaction, the product is sadomasochism or SM, which is a completely harmless activity both for the individuals concerned and for Society generally.

 “SETTING THE BOUNDARIES”

  1. The Review’s basic assumptions included [3] :
    1. any application of the criminal law must be fair, necessary and proportionate;
    2. the criminal law should not discriminate unnecessarily between men and women nor between those of different sexual orientation;
    3. the law should not intrude on consensual sexual behaviour between those over the age of consent without good cause.
  1. Further, we note Lord Mustill’s remarks on SM in Brown [4] :

this is a case about criminal violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all.

  1. We further note that you define ‘sexual activity’ as “activity that a reasonable bystander would consider to be sexual” [5]
  1. Considering the above, it is incongruous not to consider SM when reviewing the law surrounding sexual activity and sexual offences. SM is considered to be sexual activity by all who participate and probably by most ‘reasonable bystanders’; furthermore from his judgment it is apparent that Lord Mustill also considered the activity in Brown to be about sexual relations and not about violence.
  1. The only reference to SM by the Review Board was in a footnote to paragraph 6.5.1. This footnote reads:

    Some submissions to the review mentioned the issue of sado-masochistic sexual activity. This is outside our terms of reference as they relate to actual bodily harm which occurs in a sexual context. The law at present does not allow a person to consent to what would be actual bodily harm, and that issue is properly to be considered in the context of offences against the person and the law of consent”.

  2. This footnote concedes that the SM is in “a sexual context”. Consequently, suggesting that the issue is more appropriately dealt with as an offence against the person is at odds with the other areas that the Review Board considers within its terms of reference. For example, the suggestion of creating an offence of voyeurism, [6] where there is no physical or direct contact between the ‘victim’ and the ‘offender’, is more in keeping with the protection of privacy than sexual offences. Further, the Review Board recommends the creation of a new public order offence to deal with “sexual behaviour that a person knew or should have known was likely to cause distress, alarm or offence to others in a public place” [7] – a further example of the broad construction of its terms of reference.
  1. The exclusion of SM from the terms of reference has left an artificial construction of the definition of sexual offences. The Review Board proposes a new offence of sexual assault by penetration [8] . This is defined as non-consensual penetration by any object or any part of the body (other than the penis). Thus, if a person is caused injury [9] by the penetration of an object, without consent, it is a sexual offence. However, if the same act is committed with consent, the Review Board suggests that this is a matter that should be dealt with as a violent offence and falls outside its terms of reference [10] .
  1. To describe SM as actual bodily harm that occurs in a sexual context is at odds with both the experience of the SM practitioners involved and the likely description of the activities by a reasonable bystander. To them, SM is a sexual activity, which may involve a degree of injury. We believe that SM falls squarely within the Review Board’s terms of reference and we ask the Review Board to consider the submissions below.

THE CURRENT LAW

  1. The law in relation to SM was unclear until the majority decision of the House of Lords in Brown [11] . Indeed all the defendants in the original trial believed that their activities were perfectly lawful and were amazed to find themselves the subject of criminal proceedings. By a majority of 3-2 the Lords decided that a person could not consent to any injury, which was more than “transient and trifling” [12] , unless there was a good reason. SM was deemed not to be a good reason.
  1. The Court of Appeal in Wilson [13] , where a man used a heated butter knife to “brand” his initials on his wife’s buttocks, decided that the infliction of consensual actual bodily harm for this purpose was not unlawful. However, in Brown [14] the gay defendants were found to be criminally liable for branding, using a heated piece of metal in the shape of a letter “S”, on one of the participant’s thighs [15] . Indeed, the injury inflicted in Brown was less serious than that in Wilson.
  1. Further, in the case of Slingsby [16] where a woman had died (from septicaemia) after a man ‘fisted’ her both vaginally and anally whilst wearing a signet ring, the Court of Appeal decided that this was merely vigorous sexual activity, it was not considered to be SM, and so was acceptable.
  1. The law as it stands is uncertain and contradictory regarding the extent of injury permissible in an SM encounter, especially as the courts have decided criminal culpability differently even where the activities undertaken and injuries caused were very similar. This is undesirable for those who wish to participate in any sort of bondage or SM. The law also appears to discriminate unfairly against gay men, compare the decisions in Wilson and Brown [17] . In Brown the gay “passive” partners were prosecuted and convicted whereas in Wilson and Emmett [18] the heterosexual “passive” partners were not prosecuted.

PROBLEMS

  1. We recognise that there has been only one successful SM related prosecution under the Offences Against the Person Act 1861 since the original “Spanner” case of Brown, namely Emmett [19] . However the threat of prosecution is an effective censor on the individuals and organisations involved in SM, specifically:
    1. it hinders the activities of those engaged in the educating and spreading of safe practice information to those who wish to be involved in SM;
    2. individuals who engage in SM fear going to the police about non-consensual violent or sexual offences in case their SM activities are discovered;
    3. those who suffer injury during SM activities that might require medical attention may be discouraged from seeking such attention, thus potentially exacerbating a minor injury into a serious one. Such necessity, to seek medical attention, should of course only be necessary if there is an accident or if it arises from some unforeseen consequences

THE LAW COMMISSION PAPER 139 – PROPOSALS AND RESPONSES

  1. We are aware of both Law Commission consultation papers that considered SM [20] . We urge the Review Board to consider and implement their proposals [21].
  1. We particularly would like to highlight some statements from those who made submissions to the Law Commission [22] :

    “it is not everywhere appreciated that sado-masochistic sexual acts are engaged in by large numbers of people, many of whom are utterly respectable”; “sado-masochistic acts are practised by not just a small minority of visible sado-masochists but by many people in the privacy of their bedrooms”; and “there are many more heterosexual people quietly having SM sex in the suburbs than there are gay leather men in London clubs.

  2. We note the Law Commission said at par 10.46 that:

    Professor Feldman [23] expressed the opinion that to classify sado-masochism as being about violence, and therefore as having no redeeming social value, but to accept that boxing or rough and undisciplined play do have social value, is to turn reality on its head. In his view the interest (whether public or private) in allowing people to express their sexuality, which forms a fundamental part of a person’s personality, is no less important than the interest in allowing people to pursue sports. Sport is fun, but sex for many people is more than fun: it is a form of self-expression

  3. The Law Commission proposed that a person should be able to consent to any injury excluding a “seriously disabling injury” [24] . They defined a serious disabling injury as an injury that causes serious distress or involves the loss of a bodily member, permanent bodily injury, serious disfigurement, severe and prolonged pain or prolonged unconsciousness [25] .
  1. We accept that the definition of serious disabling injury is inconsistent with present or proposed legislation relating to offences against the person. Thus, we submit that it would be more appropriate to allow someone to consent to any physical injury save a “serious injury”. This classification is more compatible with the present legislation (as interpreted by DPP v Smith [26] ), thus someone cannot consent to grievous bodily harm (Offences Against the Person Act 1861 sections 18 & 20). Further, such a definition is compatible with the draft Offences Against the Person Bill 1998 [27] , where the new proposed offence of “serious injury” replaces grievous bodily harm.
  1. We propose that the draft clause below would be suitable for inclusion in any Sexual Offences Bill:

    a person who has full legal capacity in law to give a valid consent to sexual activity with another can consent to physical injury, not amounting to serious injury, caused either directly or indirectly during any consensual sexual activity

PRIVACY

  1. We concede that the European Court of Human Rights in Laskey, Jaggard & Brown v UK [28] ruled that on the particular facts there was no infringement of Article 8. The Court felt that the United Kingdom could infringe a citizen’s privacy if it was necessary for the protection of health. In the particular circumstances of that case, where some very serious bodily injury was inflicted, the court considered that the actual harm done and the potential for greater harm meant that the infringement of privacy fell within the states’ margin of appreciation.
  1. Notwithstanding, we submit that this ruling was not a blanket acceptance of the law as it stands. We contend that a prosecution for actual bodily harm caused by SM, may not be necessary for the protection of health within the meaning of Article 8(2) [29] .
  1. Further, as the European Convention is a ‘living instrument’ it is suggested that even over the last five years the public attitude towards unconventional sexual behaviour has changed. This is characterised by the reduction of the age of consent for anal intercourse between homosexual men being reduced to eighteen in 1996 and recently to sixteen.
  1. We also note the observation of the Court of Appeal in Wilson, with which we concur, where Russell L.J. stated:

    Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal prosecution

    He continued:

we conclude this judgment by commenting that we share the judge’s disquiet that the prosecuting authority thought fit to bring these proceedings. In our view they serve no useful purpose at considerable public expense [30]

CONCLUSION

  1. We believe that the current law regarding SM is a gross intrusion into a person’s sexual activity; there is no good reason to prohibit consenting adults from inflicting non-serious injuries for the purpose of sexual gratification. Indeed we concur with Professor Feldman and believe that sex is an essential form of self-expression, thus there is greater justification for permitting the infliction of injury for the purposes of SM than there is for sport or ‘rough horseplay’.
  1. In our view the restriction on SM, to stop the miniscule number of SM encounters that end in injuries requiring treatment, is a completely disproportionate response - especially when it prohibits a person from expressing their sexuality with likeminded people. It is unjustifiable.
  1. The law is applied differently to persons engaging in homosexual SM as opposed to heterosexual SM. This is unfair discrimination.
  1. There is no evidence that consensual SM causes public harm or damages public health or undermines public morals.
  1. The investigation of activities involving consensual SM is a drain on the public purse (the police’s Operation Spanner is estimated to have cost £4 million) which occupy the time of both the police and the Court to no useful purpose and are thus manifestly not in the public interest.
  1. Finally, we believe that those who wish to be involved in SM are being discriminated against solely on the basis of their method of sexual expression for no good reason.
  1.  The “basic assumptions”, which are the cornerstone of the Review, lead us to submit that sadomasochistic sexual activity cannot be ignored in any future Sexual Offences Bill, and further that the prohibition of SM which does not cause “serious injury” is unjustified and unnecessary. To this end the Spanner Trust proposes that:
    1. Sadomasochism be recognised as a sexual activity which may involve injury;
    2. The Law Commission’s proposals for the definitions of consent and capacity to consent as laid out in “Consent and Sex Offences” should be adopted;
    3. A clause be added to any future Sexual Offences Bill which de-criminalizes SM which does not cause serious injury, whilst continuing the prohibition of activities which cause serious injury.
  2. The Review Board has shown a commitment to ending inequality in the law and the removal from criminality of a wide range of consensual adult sexual activities. It has also shown itself capable of researching and deliberating in laudable depth areas of human sexual interest which many find hard to imagine, let alone discuss and make rational judgements on.
  1. We have faith that the Review Board will see the wisdom of completing its review by addressing the issue of consensual sexual sadomasochism and to correct the unjust principles and discrimination present in the law today.
FOOTNOTES

[1] Brown and others (1992) 94 Cr. App R 302 CA, [1994] 1 AC 212 HL

[2] Ibid

[3] Par. 1.3.2

[4] At page 256G

[5] Par. 4.8.15

[6] Par. 8.3

[7] Par. 8.4.11

[8] Par. 2.9.2

[9] Which is neither transient or trifling

[10] See par. 8 and footnote to par. 6.5.1

[11] Ibid.

[12] Following Donovan [1934] 2 KB 498 CCA.

[13] [1996] 2 Cr. App. R 241

[14] Ibid

[15] It was Count 8 against Laskey, Grindley and Wilkinson

[16] [1995] Crim LR 570

[17] See para. 14 above

[18] Stephen Emmett, a heterosexual, who was convicted on the 29th January 1999, the unsuccessful appeal was on the 18th June 1999 (unreported).

[19] Ibid  

[20] “Consent and Offences Against the Person” Consultation Paper No. 134 and “Consent in the Criminal Law” Consultation Paper No. 139

[21] Outlined in paper No. 139 from pages 197

[22] Paper No. 139 par 10.17

[23] Who undertook a study and analysis for the Law Commission.

[24] Paper 139 Par. 4.3-4.6 and 4.47

[25] Paper 139 Par. 4.29-4.40 & 4.51

[26] [1961] AC 290 repeatedly re-affirmed; most recently in Brown & Stratton [1998] Crim LR 485.

[27] “Violence: Reform of the Offences Against the Person Act 1861” Home Office (1997)

[28] 24 EHRR 39

[29] It is conceded that this view is contrary to Emmett (unreported) 18th June 1999 in the Court of Appeal, who followed Brown unquestioningly.

[30] Page 244

 

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The Spanner Trust always tries to ensure that all information provided is accurate and up-to-date. However, the law can change and is open to interpretation. Before relying upon any statement made by the Spanner Trust you should take your own independent legal advice and the Spanner Trust cannot accept any liability whatsoever.