The
information below is intended as guidance for those wanting to know
more about the UK law as it applies to SM activity.
There is no substitute
for professional legal advice and if
you are in doubt you should obtain this first, specially if you
find yourself in discussions with the police.
Is
SM Illegal?
SM activity is an illegal assault if it results in marks or injuries
which are more than transient and trifling. These words are highly
subjective and open to interpretation. The following are likely
to be considered by Judge Rant to be illegal: heavy beatings which
leave lasting marks; any activities which leave scars, bruises etc.
A heavy love bite could now be unlawful. There are some areas which
are well clear of the ruling. Fantasy sex, role playing and dressing
up are outside his judgement. So you can wear as much leather, rubber,
uniforms and fetish gear as you wish. Bondage falls outside his
judgement too, if there are no lasting marks. Shaving, mummification
and watersports are unlikely to be considered assaults. It is likely
that mild corporal punishment, where there is no injury, would be
considered trifling. However you should be aware that the judgement
does not define what is trifling and the ruling is open to many
interpretations. Any prosecutions which attempt to define these
need to be fought, supported by the best, well-informed legal advice.
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How
To Protect Yourself
This article cannot encourage you to break the law. However it can
offer you advice on what you should avoid. If you believe you may
have engaged in SM activity which could be classified as actual
bodily harm or grievous bodily harm, then you can only be prosecuted
it there is evidence against you. This evidence could be your own
statement, or that of another participant. The evidence could be
in the form of documentation such as letters, photographs cassette
recordings or videos. If you are questioned by the police, remember
that, whatever they say, you are under no obligation to say anything
to them, even if they arrest you. However it may in certain
circumstances be in your interests to answer police questions at
a Police Station . You should NEVER try and decide this on your
own. You should ALWAYS seek legal advice. If you are arrested you
must ask for a solicitor as soon as you arrive at the Police Station.
Solicitors are completely free whilst you are in police custody.
Don't let the police persuade you that waiting for a solicitor will
delay your detention. Don't be taken in by a friendly copper who
"just wants to help you through this difficulty". The police have
no right to search your home unless they have a Warrant or unless
you are arrested for certain types of offence. Don't be taken in
by statements by them to the effect that, it you admit the offence,
things will go easier for you in court. Or that, if you give them
details of other people's activities or identities, they will go
easy on you or 'let you off'. Without your statement, they may have
no evidence to convict you or your friends. Always insist on having
a solicitor present when you are questioned. These are your rights.
A videotape or photograph, cassette recording or letters which identify
individuals engaging in SM scenes which could now be unlawful will
provide the police with good evidence with which to bring a prosecution.
Be aware that identification of individuals can come from recognisable
surroundings or body markings such as tattoos or piercings. top
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Prosecutions
since the Spanner Case
Since the original case there have been a number of police raids,
arrests and prosecutions for both gay men and heterosexuals based
on the possibility that they had engaged in illegal SM activities.
In a raid on a house in Hoylandswaine in West Yorkshire 36 gay men
were arrested and their clothing and accessories were taken away.
Despite persistent questioning the men refused to divulge any information
to the police about their actual or intended activities and in the
end no charges were made. However it took the men some time and
legal assistance to recover all their property. Two further cases
concerned heterosexual married couples. In both cases the husband
had placed serious marks on his wife's body in the course of a consensual
SM scene. In each case when the case came to trial the Judge ruled
that what took place within the confines of a consensual private
relationship was of no concern to the court. These cases do not
invalidate the original Spanner judgement nor is it clear how they
affect SM activity outside heterosexual marriage. top
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Legal
Advice
Listed here are some people and organisations who are willing to
provide advice and legal representation to people involved in SM
activities.
- David Clark
020 7433 1562
- John Lovatt
020 7247 9336
- London
Lesbian & Gay Switchboard 020
7837 7324
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What
To Do If Police Raid Your Home
There's a slim
chance that the police might decide one day to visit your home searching
for SM pornography or illegal activities or substances.
The likeliest
scenarios are that they have been given a tip-off that you are involved
in illegal activities (even if this isn't so) or that they found
your name and address on letters or in an address book belonging
to someone else they are investigating.
Either way,
as the police search your home, they will be on the look out for
anything which might be evidence of a crime. The best way to deal
with this situation is to be prepared and to know what your rights
are beforehand so that you don't undermine your legal rights through
ignorance.
In almost all
cases the police must have a search warrant to enter your house
unless you have already been arrested for an alleged criminal offence
There is in practice nothing you can do to stop them coming in if
they have a warrant. Do check however that it is actually your address
on the warrant and of course ask the police to show you their official
identification.
Though the
police may have a warrant for, say, stolen goods, they can take
away anything they find which they believe is evidence of any offence
being committed, not just the one on the warrant. So a video camera
might be evidence that you were making and selling sexually explicit
videos, and leather jeans might be used in an SM scene where activities
which constituted an illegal assault had taken place. However the
police must at all times act reasonably and within the law and are
not entitled to go on speculative fishing expeditions - this is
particularly so in the case of computer equipment.
As always with
the police, you are best off not saying anything to them before
you have consulted a solicitor. If they ask you what certain items
are for (such as giant paper clips or leather thongs), or whether
you engage in SM activities, you should tell them that you are not
willing to answer questions of that nature without first taking
legal advice. If you give this response to all such questions you
avoid revealing things by the pattern of questions you are and are
not willing to answer. The police like to get people chatting in
the hope that information will be accidentally disclosed that they
would not reveal if questioned directly.
There is no
advantage in being hostile to the police, but there is no need to
be over-friendly either. Take a business-like approach and say as
little as possible. The police should allow you to use the phone
while they are in the house, for example to ask a solicitor or friend
or neighbour to come over. The only likely reason they might refuse
is if they believe that you were about to warn other people whom
they were also investigating. Ideally you should accompany the police
as they search your house. But if there are a number of them you
cannot be in all the rooms at once. So it's very worthwhile asking
a friend or neighbour to come over to help you watch them as the
various officers move from room to room.
The police
are not required to give you a detailed receipt for goods they take
away at the time though they must do so within a reasonable period
afterwards. So you and your friends should make a written list of
things as they are taken out of each room. Contemporary records
such as these can be very valuable if later on there is a dispute
with the police about whether a particular item was actually taken
from your house. In addition the fact that you are seen by the police
to be recording what they take will discourage them from changing
the facts later.
If the police
are looking for specific items which they know or believe you to
possess you are not obliged to tell them where it is if they can't
see it immediately. However if you think they will find it anyway
it may be better to tell them than for them to demolish half your
house searching. There is little chance of compensation for damage
caused if you are later successfully prosecuted.
The police
can take anything they reasonably believe might provide them with
evidence of a crime. So a computer might hold records of names and
addresses, or transactions for video sales, or magazine subscription
records or a club membership list, for example. Even if the police
take away equipment essential to your livelihood like computers
you may find it difficult to get it back quickly and you may have
to engage a solicitor to go to court to get them back. If the information
on your computer is password protected the police will send it off
to one of their computer experts to try to extract the information.
They can't force you to tell them the password. If you need to keep
confidential information in a computerised form get expert opinion
on how to protect it. If the police take essential items like address
books or business records you can ask to have access to them or
have copies of them. The police will only refuse if they think your
access will prejudice their investigation,
Whether the
police arrest you or not, you should get in touch with a solicitor
as soon as possible. There is a list of SM-friendly legal organisations
and people in this article. Don't wait until the police contact
you again or charge you. The earlier you get legal advice the more
chance you have of avoiding prosecution and getting your stuff back.
Anyone who
needs to see a solicitor at a police station can see one without
paying under what is left of the Legal Aid scheme. You can then
discuss with the solicitor whether you qualify for aid for further
legal representation. If your home is searched and property seized
without your being arrested you may still be able to get free legal
advice and assistance if you are financially eligible. A quick phone
call to a solicitor should clarify whether you are eligible.
THIS DOCUMENT
LAST REVISED APRIL 2000
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