What place does the law have in what happens privately between consenting adults? Photo: Getty
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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The Ministry of Justice has begun a review process into a law that is widely recognised as outdated, archaic in language, and Victorian in its approach.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In the spotlight is the Offences Against the Person Act 1861 (OAPA), which they admit is widely recognised as outdated, archaic in language, and Victorian in its approach of listing separate offences for unique scenarios.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.

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Calum Kerr on Governing the Digital Economy

With the publication of the UK Digital Strategy we’ve seen another instalment in the UK Government’s ongoing effort to emphasise its digital credentials.

As the SNP’s Digital Spokesperson, there are moves here that are clearly welcome, especially in the area of skills and a recognition of the need for large scale investment in fibre infrastructure.

But for a government that wants Britain to become the “leading country for people to use digital” it should be doing far more to lead on the field that underpins so much of a prosperous digital economy: personal data.

If you want a picture of how government should not approach personal data, just look at the Concentrix scandal.

Last year my constituency office, like countless others across the country, was inundated by cases from distressed Tax Credit claimants, who found their payments had been stopped for spurious reasons.

This scandal had its roots in the UK’s current patchwork approach to personal data. As a private contractor, Concentrix had bought data on a commercial basis and then used it to try and find undeclared partners living with claimants.

In one particularly absurd case, a woman who lived in housing provided by the Joseph Rowntree Foundation had to resort to using a foodbank during the appeals process in order to prove that she did not live with Joseph Rowntree: the Quaker philanthropist who died in 1925.

In total some 45,000 claimants were affected and 86 per cent of the resulting appeals saw the initial decision overturned.

This shows just how badly things can go wrong if the right regulatory regimes are not in place.

In part this problem is a structural one. Just as the corporate world has elevated IT to board level and is beginning to re-configure the interface between digital skills and the wider workforce, government needs to emulate practices that put technology and innovation right at the heart of the operation.

To fully leverage the benefits of tech in government and to get a world-class data regime in place, we need to establish a set of foundational values about data rights and citizenship.

Sitting on the committee of the Digital Economy Bill, I couldn’t help but notice how the elements relating to data sharing, including with private companies, were rushed through.

The lack of informed consent within the Bill will almost certainly have to be looked at again as the Government moves towards implementing the EU’s General Data Protection Regulation.

This is an example of why we need democratic oversight and an open conversation, starting from first principles, about how a citizen’s data can be accessed.

Personally, I’d like Scotland and the UK to follow the example of the Republic of Estonia, by placing transparency and the rights of the citizen at the heart of the matter, so that anyone can access the data the government holds on them with ease.

This contrasts with the mentality exposed by the Concentrix scandal: all too often people who come into contact with the state are treated as service users or customers, rather than as citizens.

This paternalistic approach needs to change.  As we begin to move towards the transformative implementation of the internet of things and 5G, trust will be paramount.

Once we have that foundation, we can start to grapple with some of the most pressing and fascinating questions that the information age presents.

We’ll need that trust if we want smart cities that make urban living sustainable using big data, if the potential of AI is to be truly tapped into and if the benefits of digital healthcare are really going to be maximised.

Clearly getting accepted ethical codes of practice in place is of immense significance, but there’s a whole lot more that government could be doing to be proactive in this space.

Last month Denmark appointed the world’s first Digital Ambassador and I think there is a compelling case for an independent Department of Technology working across all government departments.

This kind of levelling-up really needs to be seen as a necessity, because one thing that we can all agree on is that that we’ve only just scratched the surface when it comes to developing the link between government and the data driven digital economy. 

In January, Hewlett Packard Enterprise and the New Statesman convened a discussion on this topic with parliamentarians from each of the three main political parties and other experts.  This article is one of a series from three of the MPs who took part, with an  introduction from James Johns of HPE, Labour MP, Angela Eagle’s view and Conservative MP, Matt Warman’s view

Calum Kerr is SNP Westminster Spokesperson for Digital