Discuss the suitability of the law to deal with the issues surrounding the prohibition of 'private'
Discuss the suitability of the law to deal with the issues surrounding the prohibition of 'private'
"The present state of the law on sexual offenses reveals anomalies which demonstrate that the policy factors have not been fully thought through and rationally applied." (Hughes, 1962: p.685).1
Three decades later, little has changed. We are still questioning the ability of the law to deal with offenses and practices of a sexual nature. In order to answer the above question, I will firstly leave aside the question of how privacy should be defined, and for the sake of simplicity, take it to define what goes on in the context of one's own home. Included under the heading of sexual practices prohibited by law are a wide variety of offenses, including incest, sexual practices involving minors, acts of anal intercourse between heterosexual partners, and sadomasochism (hereafter SM). I will be attempting, in the following few pages, to explore the reactions of the law to SM, and in particular to the Operation Spanner proceedings, where the law failed to understand the essence of SM, and in doing so, proved itself wholly incapable of maintaining a face of justice. After outlining the events of Operation Spanner, I will examine the major points thrown up during the trials and appeals, and then follow by examining the strengths and weaknesses of these arguments against the acceptability of SM. I will be arguing that the Spanner prosecutions show the laws inadequacy to deal with these issues.
OPERATION SPANNER
"The Spanner judgement may not be the most absurd in the annals of British law, but it will take a lot to beat it..." (Thompson, 1994: p.234)2.
Operation Spanner began when police in Bolton 'stumbled upon' video tapes of a number of men involved in SM activities. Believing at first that these were 'snuff movies' the police mounted a £500,000 operation based on the digging up of various gardens in the area to search for the bodies of those that they believed had been killed. Upon realising that they had made a mistake, and merely discovered a SM ring, the police felt that they had placed themselves in a position where they had to press some sort of charges to make themselves look slightly less ridiculous. The result of this, then was that twenty six people were "cautioned for the offence of aiding and abetting assaults upon themselves" (Stanley, 1993: p.214)3; 15 were tried under Sections 20 and 47 of the Offenses Against the Person Act 1961 - "the infliction of actual bodily harm and wounds". Judge Rant ruled that consent was no defence to the charge of assault, and as a result the men were formally convicted on 19th December 19904. This decision was upheld at a Court of Appeal5, and in March 1993 this was confirmed by a 3:2 vote by the Law Lords6.
The considerations that convicted these men were, in the main, based on a totally distorted view of SM. Consent was disregarded as SM was declared to be outside of the public interest, unregulated, and a matter of violence, rather than sexual desire.
R. V. BROWN
"It was SM sex which was on trial, rather than the defendants, and nothing but a guilty verdict would do." (Thompson: p.4).
The starting point for discussion of the court's decision in R. v. Brown is the question of consent. The defendants had no choice but to plead guilty to the charges of assault levelled against them, after the trial judge ruled that there was no place for the defence of consent in cases of SM such as this. This decision has some roots in R. v. Donovan7, a case regarding the caning in a garage of a teenage girl who had consented to this being carried out by the defendant, to which the judge directed the jury to reject the concept of consent as defence as being unacceptable. Judge Rant's decision to reject consent as a reasonable concept was upheld by Lord Lane in the Court of Appeal, who stated that in,
"...certain circumstances...the law does not permit a defendant to rely, so to speak, on the victim's consent." (CAR: 498 E)
There are several reasons given during this case that attempt to justify why it is that the defence of individual consent is not enough, in the eyes of the law, to allow involvement in SM relationships. The first of these reasons came from The Attorney-General's Reference (N0.6 of 1980), when Lord Lane stated that it was,
"...not in the public interest that people should try to cause, or should cause, each other bodily harm for no ...
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"...certain circumstances...the law does not permit a defendant to rely, so to speak, on the victim's consent." (CAR: 498 E)
There are several reasons given during this case that attempt to justify why it is that the defence of individual consent is not enough, in the eyes of the law, to allow involvement in SM relationships. The first of these reasons came from The Attorney-General's Reference (N0.6 of 1980), when Lord Lane stated that it was,
"...not in the public interest that people should try to cause, or should cause, each other bodily harm for no good reason..." (719).
However, Lord Lane, nor anyone else during R. v. Brown ever went as far as to adequately justify why "the satisfying of sado-masochistic libido does not come within the category of good reason", while boxing and other contact sports "are granted automatic immunity form prosecution" (Thompson: p.185). This I will discuss in more detail later in the essay.
The idea of public interest can, although this was not explicitly stated in R. v. Brown, be traced back to older ideas of the body being the property of the King, and being needed in good health in case necessary for fighting in wars to protect the King. These ideas are obviously archaic now, and could not (or should not) be taken seriously, but nevertheless, there is some sense in saying, as L.H. Leigh does,
"...that a person should not be allowed to put himself in a situation where he becomes a burden to the state, or to endure harm such that he becomes a burden to others such as his family." (Leigh, 1976: p.138)8.
Although this point raises important questions as to the regulation of SM violence which need to be considered later, I will first explain how the court during R. v. Brown misunderstood (although some commentators, in fact, would say deliberately misrepresented), the sexual, as opposed to the violent, nature of SM.
"Lord Templeman was typical of the majority in categorising sadomasochism as essentially violent rather than sexual, and Lord Lowry was keen to stress that any sexual desire involved was merely 'perverted and depraved' - in effect, could be discounted." (Bamforth, 1994: p.662)9.
By misinterpreting the nature of SM practices in this way, the courts found it easier to place SM in a category of 'violence' which they saw it as their duty to protect the public from. It is worrying to find that Lord Templeman's views on SM in the 1990s seem to be closely linked in prejudice and ignorance to ideas from last century, by writer such as Richard von Krafft-Ebing, who saw sadism simply as a wish to use violence against others in order to gain sexual pleasure, and masochism merely as a desire to be treated violently for the same reasons, and dismissed both as sexual psychopathy10.
Lord Templeton portrayed SM in his statement during the final Appeal in the House of Lords, as an uncivilised 'cult of violence' that ought to be stamped out. Only by never actually acknowledging the sexual context of the alleged 'offenses', did it become almost logical for the Law Lords to uphold the ridiculous decisions that had been previously made during R. v. Brown.
Another important feature of the reasoning used to justify the decisions taken during R. v. Brown, is that throughout the proceedings, SM was depicted as a practice in which the violence is likely to escalate, and where,
"...participants have no way of foretelling the degree of bodily harm which will result from their encounters." (Edwards, 1993: p.407)11.
Although the courts' attempts to show SM as "unruly contagious violence" (Moran, 1995; p.19)12 are portraying a side of SM rings that, if it does exist at all, is very rarely seen, this is a common fallacy of belief within law and by commentators on the law. For example, Leigh asked in 1976, when attempting to define a framework of rules to place around the practice of SM,
"...how is one to deal with the case where there is consent to the inception of sadomasochistic activities, but not necessarily to the type or degree of harm which may actually be inflicted?" (Leigh: p.141).
As we can see then, the proceedings during R. v. Brown, seem to have been based wholly around a group of assumptions as to the nature of SM, which was thought to rule out the defence of consent. However, I will now attempt to show how quickly the above arguments become meaningless in the light of rational discussion of each point.
CONSENT AS A LEGITIMATE DEFENCE
When Judge Rant dismissed the concept of consent as a legitimate defence to assault in the case of SM, immediately he showed the disrespect of the law for the individual as an autonomous subject, which, according to Nicholas Bamforth, would require,
"...respect for their integrity as a sexual agent, able to decide for themselves who to take as sexual partners, an argument which should so long as all parties involved have consented, also protect their evaluation of what counts, for them, as meaningful sexual activity, whether sado-masochistic or otherwise." (p.663).
The main problem with the ruling of consent as no defence is that it shows up the prejudices of the judicial system in a most noticeable light. If, as has now happened, SM is pronounced outside of the realms of consensual defence, this same ruling would have to be applied across a wide range of other, related behaviours and practices, in order for the law to lose its label of bias in this area (if not its label of absurdity). Under laws effectively created during the proceedings of R. v. Brown, (although this in itself should not occur, it is not for judges to create new law), teenagers should be arrested and prosecuted for giving 'lovebites', while married couples would be officially convicted of assault if they were found to be involved in the spanking of each other in the 'privacy' of their own bedroom. More significantly, in the field of sporting activities, the famous boxers we see on our television screens could be sentenced to up to five years imprisonment for grievous bodily harm, and if, as has tragically happened in the past, boxer should be killed, this could amount to charges of manslaughter, or even murder being brought against the opponent. According to the laws created during R. v. Brown, boxers could be arrested and charged any day now, yet they are not - no charges are brought for these 'sporting' activities because boxing has escaped the implications of this ruling. It is described as 'good reason' for assault, as it is a 'manly sport'. Lord Mustill stated that boxing is excluded from these laws because "society chooses to tolerate it", yet it would seem nearer to the mark to say that the reason it is excluded from the laws is because those in high positions in the judicial system choose to tolerate it.
The judicial system, then is showing quite clearly that it is incapable of dealing with SM due to an in-built fear of anything which cannot be either accepted or rejected as a legitimate sexual practice under existing laws, and as such find that the only way they can deal with this is by introducing 'judge-made law'. In this case, although judge-made law should not be tolerated at all, the judicial system has even manipulated the law in order to cover the areas, such as SM, that it is inadequate to cope with, and to avoid the areas, such as boxing and contact sports in particular, which it feels comfortable in dealing with.
Perhaps one of the most significant points in the court's dealing with R. v. Brown, is that all of the defendants were homosexual. Throughout the proceedings, boxing and 'rough horseplay' were, if not explicitly, at least implied to be legitimated as manly sports, whereas the sexuality of the defendants, although it has been pointed out that although "the relevance of homosexual is formally denied in the judgements it is repeatedly referred to" (Moran: p.25). One cannot help but question, then, whether a case of heterosexual SM would have led to the same decisions from the system, or whether the rulings that consent was no defence were nothing more than knee-jerk homophobia. This is what happens when there are no guidelines showing those who are in high positions in the court system how to deal with these issues - the law rushes to protect the public interest from an imaginary evil, when the real evil to the public is the prejudice and bigotry of judges and Lords.
This problem shows, one could say, quite clearly how the law attempts to stick to its 'standards' by refusing to relinquish its favourite institutions, even when these institutions have been partially replaced within society.
"...the courts will be denying the plurality of sexual expression and attempting to limit the scope of individual sexual experience." (Bibbings & Alldridge: p.365)13
That is, the panic caused by a case of homosexual SM can be attributed to a reluctance on the part of the judicial system to accept any type of sexual practice other than "an ideal romantic standard" (Thompson: p.241).
As I have mentioned earlier, the rulings that we have seen in R. v. Brown, were legitimated by the misrepresentation of SM. Firstly, by portraying SM as violence, and denying its sexual aspect, SM was show as a totally different practice. SM is about sexuality, rather than violence, and as such should not be combatted by criminal law and charges of assault. The offence of assault and the practices of SM are not connected in any way; assault is violent, SM is sexual. The fact that the law refuses to recognise that SM can be,
"...a practice of equal players, where each respects the other, of willing participants, of negotiation, contract and mutual pleasure." (Moran: p.25)
shows very clearly that the judicial system, in misinterpreting (wilfully or otherwise) the nature of SM, has ignored an aspect central to the case, and as such has proved itself incompetent in this area of the law.
The other misrepresentation of the nature of SM is that it was portrayed as prone to escalation. Moran states that the "S/M bodies, desires and practices are produced in law according to a loss of control, loss or absence of the authority figure, the controller", in other words, while part of the justification for boxing and other contact sports is that there is some form of referee to ensure that the violence can be contained, SM is portrayed within the law as being unharnessable once begun. For example, during the final appeal it was suggested that,
"...an inflicter who is carried away by sexual excitement or by drink or drugs could easily inflict pain and injury beyond the level to which the receiver consented" (HL: 246B).
However, in reality, the only way that SM rings can continue to exist is by regulating the violence. The violence needs to be regulated, firstly, because many of the participants have professional, personal or social lives that they would not want to be disrupted due to hospital treatment, and most participants do not wish their private sexual behaviour to be publicly known. The violence of an SM ring then, is self-regulating in that "the reputations of people who hurt their play partners travel quickly on the greasy S/M grapevine". If somebody inflicts more pain or injury than was agreed to be acceptable by their partner, it will not be long before they find themselves excluded from the ring. Limits of SM are agreed on before any acts begin, verbal and non-verbal signals are established that will prevent the violence from escalating, and all is done to ensure that the SM games and fantasies can be enjoyed in as safe a manner as is possible. We have already discussed how the misinterpretation of SM as violent showed the law to be at fault, it was also at fault in not examining the practices of SM in terms of its self-regulating functions, or SM would have been seen in a wholly different light,
"Rather than a world of unruly violence it is a world of risk management and risk reduction" (HL: 238E)
that is, a safe enaction of sexual fantasies between partners who respect each other.
CONCLUSION
"The violence with which the English law has responded to S/M suggests that there is a recognition that S/M embodies a very distinctive challenge to the law." (Moran: p.27).
As we can easily see, then, in the case of R. v. Brown, the facts about the nature of SM were disregarded in order to set up SM as 'the enemy'. By manipulating the truth in this manner, it was possible to uphold a somewhat shaky decision to disregard the defence of consent, and therefore ensure a guilty pleas from the defendants involved. Although two of the Law Lords, Lords Mustill and Slynn, pointed out that criminal law was not appropriate to deal with these issues, for example Lord Mustill stated that,
"These are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law." (quoted in Edwards: p.407).
That is, although giving the impression by his mention of morality that he perhaps finds the idea of SM somewhat unpalatable, at least he has recognised that the criminal law of assault is not relevant to the issue. Similarly, Lord Slynn asserted that,
"It is not for the courts to protect people from themselves, to introduce into existing statutory crimes relating to offenses against the person, concepts which do not properly fit there." (quoted in Edwards: p.407).
It is sad, then, that Lords Slynn and Mustill were overruled in the House of Lords, as they were the first, during R. v. Brown to recognise that SM should not be a matter for the criminal court, whatever their personal feelings for SM happened to be.
Leslie Moran suggests that the ruling that consent was not available for use by the defendants in R. v. Brown was "nothing more than an arbitrary judicial assertion" (Moran: p.8). We have also seen, not only that the rulings on the defence of consent mere judge-made law, but that this rule is not even universally applied, but rather that it is applied only to area where the judges and Lords cannot cope. For these reasons, the rulings should not form the basis of future proceedings, however we cannot tell the extent to which this ruling on consent will be upheld in the years to come.
However, the future for a legality of SM practices continues to look bleak, as the government are unlikely to pass any new laws recommending the "application of sado-masochism to the classic libertarian doctrine" as it is, at the moment, "unlikely to prove a vote-winner" (Bibbings & Alldridge: p.365). In the meantime, those who practice SM are at risk of being sucked into a legal system that does not understand the nature of the sado-masochistic emotions and behaviours, and therefore seeks to make it a prohibited sexual practice. If "the dead eyes of the law cannot see S/M even though it is brought within its gaze" (Stanley: p.226), how can we hope that the judicial system can act competently when dealing with the issue of SM at all? The answer to the question of whether the law is suitable to deal with the issues surrounding the prohibition of private sexual practices, is, in the case of SM, a most emphatic No! The British judicial system, as it now stands, is not only unsuitable to deal with such issues, but wholly incapable of overcoming its prejudices long enough to comprehend them.
