What place does the law have in what happens privately between consenting adults? Photo: Getty
Show Hide image

Is the government finally ready to legalise BDSM?

The Ministry of Justice has begun a review process into a law that is widely recognised as outdated, archaic in language, and Victorian in its approach. But do they really want to change anything?

The short answer seems to be: not if it can help it. Unfortunately, for those still handcuffed to the inconsistent muddle that passes for law in this area, the Ministry of Justice has just kicked off a process that could result in a spectacular own goal sometime in 2015.

They have officially asked the Law Commission, a “statutory independent body” of some influence when it comes to law-making, to review the law on offences against the person.

In the spotlight is the Offences Against the Person Act 1861 (OAPA), which they admit is widely recognised as outdated, archaic in language, and Victorian in its approach of listing separate offences for unique scenarios. Do we really, they ask, need a specific offence of “impeding a person endeavouring to save himself from a shipwreck”?

Of course, what they don’t mention is the central role this Act has played in shaping the legal landscape in respect of BDSM. For it was under the OAPA that the landmark Spanner case was prosecuted in the 1990s: and despite contrary rulings, it is this verdict that continues to dictate the limits to consensual sex.

Incredible as it may seem to those who have grown up post-Spanner, there was a once-upon-a-time golden age when the prevailing assumption was that pain, inflicted consensually and in pursuit of mutually satisfying erotic outcomes was permissible. That was not an unreasonable point of view. After all, you could – you may still – beat an opponent senseless in a boxing ring and, providing all is done in accordance with the rules, and consensually, there is no problem.

Why should a beating of a sexual nature be any different?

This changed when a police raid in 1987 found a videotape of a number of men involved in some fairly heavy sado-masochist activity, including beatings, genital abrasions and lacerations. The police were shocked: was this, perhaps, the smoking gun; the first definitive instance of a snuff movie (a film in which one or more of the participants are intentionally murdered on camera)? After much investigation, the truth turned out to be rather different.

The on-camera action was consensual. A form of erotic “play”! A more enlightened police force might have quietly tiptoed away. But this was Manchester, then the beat of committed and upright Christian Chief Constable James Anderton: a man who had already established a reputation for clamping down on gay clubs on his patch. The police had already spent a small fortune – estimated to be close to $4m – on their “Operation Spanner”. There was no way someone wasn’t going to pay.

And that is exactly what 16 gay men did when, in December 1990, the courts handed down sentences ranging from fines to up to four and a half years in prison apiece. Some later had their sentences reduced on appeal: but this was a one-off discount, based on the fact that for the most part, participants were genuinely unaware that their actions were illegal. We have been warned, and should expect little leniency in future.

Many of those convicted were sent down on the basis of their own words. So sure were they that they had committed no offence that they freely incriminated themselves, providing the police with the evidence that would later be used to convict them.

The case became something of a cause celebre in both BDSM and LGBT circles, with failed appeals before the House of Lords (1992), and the European Court of Human Rights (1997). In fact, the 1992 verdict was a “damn close-run thing”, with the views of police and authorities endorsed by just three of the five Lords sitting. One vote the other way, and the recent history of UK sexuality might have been a very different thing indeed.

There have, too, been apparently inconsistent rulings since. Most notable was the case of R v Wilson, in which it was ruled that consensual branding, between husband and wife, was not unlawful. The judge ruled that a husband who had branded his wife with a hot knife while the two were consensually re-enacting a scene from The Story of O was not guilty of an offence.

Overturning an original conviction, the Court of Appeal stated: “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution”.

These remarks, while outwardly positive for the BDSM community, have done little to dispel the view that the law is not even-handed between gay and straight in sexual matters.

Besides, the Spanner standard – that BDSM is lawful so long as any injury, pain or mark is no more than “trifling and transitory” – is what tends to be applied by police and courts. This echoes the view of Lord Templeman, one of the triumvirate of Lords who delivered the 3-2 thumbs up to the Spanner convictions in 1992, that “pleasure derived from the infliction of pain is an evil thing”.

Or as the Law Commission put it a consultation, Consent in the Criminal Law, in 1995: the law was now “unprincipled” and thoroughly inconsistent. Individuals might happily and lawfully consent to an assault for medical reasons (surgery) or on the sporting field. They could consent to piercing, tattooing and presumably, branding.

They might even, following 19th-century precedent which treated the practice of flagellation in the Christian church as a lawful activity, consent to the infliction of pain for religious reasons. All of the above, plus, more recently, television that makes a show of ritualised celebrity humiliation is lawful. But only so long as sex is not involved.

This approach, they argued, was not without its costs: whole communities were alienated from the police, with many perennially suspicious that the authorities made disproportionate use of the law on BDSM to crack down on gay clubs and events.

The outcome, though, as with so many other researched and evidence-based consultations, was less than zero.

An incoming Labour government was not interested in liberalising the law around sexual consent. The prevailing ethos may be gauged from the deliberations of the Sexual Offences Review Team (SORT), which was established by the Home Office to carry out a much-needed review of sexual offences shortly after. It was SORT that laid the groundwork for the Sexual Offences Act 2003, and which argued for important reforms of the law on rape: for instance, substituting “reasonable belief in consent” as the test for the previous troubling “honest belief”. 

Although the focus of the SORT was on consent, it was much more concerned with negotiating the individual’s right to withhold consent than endorsing the suspiciously liberal views of the Law Commission. Contemplating necrophilia, for instance, they conceded that there was no evidence it ever happened or was even a problem. But discovering there was not actually a law against it, and considering the very idea repugnant, they proposed one.

So the law on BDSM stuck: inconsistent, outdated, archaic. If government has its way, it seems likely that that inconsistency will stay too. The question is: will this consultation prove a somewhat larger can of worms than they expect?

The last consultation attracted more public interest than almost any other before or since. Campaigning organisation, Spanner, which mobilised much public support on this issue twenty years back is even now preparing to rumble. Again.

The issue is live once more. With political uncertainty on the cards for some while to come, it is possible that the legal establishment is about to receive a (non-consensual) caning.

Jane Fae is a feminist writer. She tweets as @JaneFae.

Show Hide image

The biggest divide in politics is not left against right, but liberals against authoritarians

My week, including a Lib Dem membership rise, The Avalanches, and why I'm putting pressure on Theresa May over child refugees.

It is a boost for us that Nick Clegg has agreed to return to the front line and be our Brexit spokesperson. I hadn’t even had a chance at our meeting to make him the offer when he said: “Before we start, I’ve been thinking about this and want to take on the fight over Europe.”

With Labour apparently willing to give the Tories a free pass to take us out of Europe, the Liberal Democrats are the only UK-wide party that will go into the next election campaigning to maintain our membership of the EU. The stage is remarkably clear for us to remind Theresa May precisely what she would be risking if we abandon free trade, free movement, environmental protection, workers’ rights and cross-border security co-operation. More than a month on from the referendum, all we have heard from the Tories is that “Brexit means Brexit” – but they have given us no clue that they understand what that means.

 

Premature obituaries

Not long ago, the received wisdom was that all political parties were dying – but lately the supposed corpses have twitched into life. True, many who have joined Labour’s ranks are so hard left that they don’t see winning elections as a primary (or even a desirable) purpose of a party, and opening up Labour to those with a very different agenda could ultimately destroy it.

Our experience has been happier: 20,000 people joined the Liberal Democrat fightback in the wake of the 2015 general election result, and 17,000 more have joined since the referendum. We now have more members than at any time this century.

 

Breaking up is hard to do

Journalists have been asking repeatedly if I want to see the break-up of the Labour Party, with moderates defecting to the Liberal Democrats. I have been clear that I am not a home-wrecker and it is for Labour to determine its own future, just as I focus on advancing the Liberal Democrat cause. Yet I have also been clear that I am happy for my party to be a home for liberals of whatever hue. I enjoyed campaigning in the referendum with a variety of progressive figures, just as moderates from different parties shared platforms in 1975. It struck me that far more unites us than divides us.

That said, not all “moderate” Labour figures could be described as “liberal”, as John Reid demonstrated as Labour home secretary. The modern political divide is less left v right than authoritarian v liberal. Both left and right are looking increasingly authoritarian and outright nasty, with fewer voices prepared to stand up for liberal values.

 

What I did on my holidays

Time off has been virtually non-existent, but I am reading A Wilderness of Mirrors by Mark Meynell (about loss of trust in politics, the media and just about everything). I’m also obsessively listening to Wildflower by the Avalanches, their second album, 16 years after their first. It’s outstanding – almost 60 minutes of intelligently crafted dialogue, samples and epic production.

During the political maelstrom, I have been thinking back to the idyllic few days I spent over half-term on the Scottish island of Colonsay: swimming in the sea with the kids (very cold but strangely exhilarating ­after a decent jog), running and walking. An added bonus is that Colonsay is the smallest island in the world to have its own brewery. I can now heartily recommend it.

 

Preparing for the next fight

The odds are weirdly long on an early general election, but I refuse to be complacent – and not merely because the bookies were so wrong about Brexit. If we have learned one truth about Theresa May as Prime Minister so far, it is that she is utterly ruthless. After her savage cabinet sackings, this is, in effect, a new government. She has refused to go to the country, even though she lectured Gordon Brown on the need to gain the endorsement of the electorate when he replaced Tony Blair. Perhaps she doesn’t care much about legitimacy, but she cares about power.

You can be sure that she will be keeping half an eye on Labour’s leadership election. With Jeremy Corbyn potentially reconfirmed as leader in September against the wishes of three-quarters of his MPs, Mrs May might conclude that she will never have a better chance to increase her narrow majority. Throw in the possibility that the economy worsens next year as Brexit starts to bite, and I rule nothing out.

So, we are already selecting candidates. It is vital that they dig in early. As we are the only party prepared to make the positive case for Europe, such an election would present us with an amazing opportunity.

 

Sitting Priti

David Cameron pledged to take an unspecified number of unaccompanied children from camps across the Continent. I am putting pressure on Theresa May to turn that vague commitment into a proper plan. Having visited such camps, I have been fighting for Britain to give sanctuary to a minimum of 3,000 unaccompanied children, who are currently open to the worst kinds of exploitation. We have heard nothing but silence from the government, with underfunded councils reporting that they are not receiving the help they need from Whitehall.

Meanwhile, it remains government policy to send refugees to Turkey – whose increasingly authoritarian government has just suspended human rights protection.

As if all of this were not grim enough, we have a new Secretary of State for International Development, Priti Patel, who has said that she thinks aid should be used largely to promote trade. As someone who wants our country to be respected around the world, I find this plain embarrassing. Actually, it’s worse. It’s shaming. As with Europe, so with the world: the ­Conservative government is hauling up the drawbridge just when we need more than ever to engage with people beyond our shores.

Tim Farron is the leader of the Liberal Democrats. To join the party, visit: libdems.org.uk/join

Tim Farron is leader of the Liberal Democrats.

This article first appeared in the 28 July 2016 issue of the New Statesman, Summer Double Issue