COUNTDOWN ON SPANNER

JUNE 1994

SUBMISSION TO THE LAW COMMISSION

Countdown on Spanner is a campaign group which came together in September 1992. A meeting was called at Conway Hall which was attended by some 200 people determined to support the appeal of the Spanner defendants to the House of Lords. In a few short months the group collected a 1,000 signature petition, organised a demonstration of over 700 men, women and children, and gained support from civil liberties groups, gay, lesbian and heterosexual clubs, trade unions, many parts of the press and many individuals.

The campaign's three main aims are:

- To fight the cases of those men convicted of consenting SM acts as a result of the arrests following Operation Spanner by the police.

- To re-legalise our SM sexuality and gain full human rights for SMers.

- To establish SM within society as a valid and acceptable sexuality.

The Spanner campaign was bitterly disappointed at the House of Lords judgement. There was some comfort that two of the Law Lords thought the Spanner prosecution was wrong but the prejudice of the other three Law Lords was depressing. They refused to recognise that those who received the beatings could consent/desire the "assaults" on them. The whole case was suffused with a barely disguised repugnance of homosexuality and SM sexuality and this drove them to absurd statements about HIV transmission and other issues. These comments are not irrelevant to your consultation. We live in the real world where Judges have shown themselves only too willing to wreck the lives of people with a different lifestyle. We welcome your consultation as an opportunity for a reconsideration of the balance between public interest and private licence. We are sure you are already familiar with the comment in the Times Editorial that criticised the judgements as "illiberal nonsense", and the Independent article which argued that where there was room for discretion by a Judge "there should be a preference for interfering as little as possible".

Countwown on Spanner is one of several groups of people who know that SM sex is not about violence nor is it about sexual abuse or exploitation. The campaign has produced the following working definition:

SM sex is obtaining pleasure from an exchange of power and/or pain in consensual sex play or sexual fantasy.

SM sex is, by definition, consensual. Non-consensual sex is an abuse of power and is therefore sexual violence, not SM sex.

There are no predetermined roles in SM sex. Power relations are determined by choice.

Consensual SM sex is not a recent phenomenon; thoughout history a percentage of the population has made love in this manner. However, since the Brown judgement, the present law does violence to these people by denying their sexuality. It is not in society's interest that the law should repress the natural fulfilment of a significant percentage of the population.

Our submission should therefore be read as a contribution from a group speaking on behalf of those who defend others' rights to enjoy their sexuality and those who find SM sex a personal pleasure, joy and julfilment.

We recognise that an SM sexual episode can consist of a range of activities. Sometimes there is activity that, under present law, constitutes an assualt. Such "assualts" may cause injury that is more than "transient or trifling". In this context we would like to make the following points on the three choices you suggest. We have re-phrased the three options to make it easier for people to understand and comment on them.

A. That a person's body is their own, and that the law has no place in dictating what can be done with it.

1. We assert that a person's body is always their own and should never be controlled by the State.

2. A significant proportion of the SM community supports this view. The majority of ordinary people take it for granted that they do at least control their own bodies, and what others can do to them. This is an ideal which Countdown on Spanner supports and which was set out as one of our initial aims when our organisation was formed. Surely the position of the law in a civilised society should be that there will be no greater interference with individuals' freedom of action than is absolutely necessary.

3. It is not in the public interest to deny a group of people their human right to make love to one another according to their own truth where consent is given and both/all are adults.

4. Countdown on Spanner believes that it is immoral and violent to try to deny consenting adults their sexuality, leaving those people with no chance at all of living peacably and happily within society. The Consultation Paper's argument creates violence and extreme suffering amongst those it persecutes. It does not reduce violence.

B. That the law should set a limit to the injury that a person may consent to at "transient and trifling" but that certain Special Categories should be exempt from the law. SM sex could be one of the Special Categories.

1. Consultation Paper 134 argues that there should be exceptions to the principle of control over one's own body where the public interest requires.

2. Countdown on Spanner believes that SM sex should be legally recognised as an expression of sexuality and not as an assault. It should thus be made exempt from the law by being classified as a Special Category.

3. SM sex is integral to many people's sexuality. Countdown on Spanner argues that consensual SM sex is valid and fulfilling for many people, most of whom regard themselves as law-abiding citizens.

4. Countdown on Spanner believes that SM sex is not a form of assualt, but a valid, important and beautiful sexuality. There are no victims in SM sex because, just as in all sexualities, when consent is given, a sexual act is a thing of love and not violence. (Just as in all sexualities, when consent is not given, a sexual act becomes a thing of violence and not love.) Because SM sex is not a form of assualt, but a beautiful sexuality, Countdown on Spanner believes that it should not be governed at all by those laws dealing with assault, but with sexual acts like all other sexualities.

5. If it were realistic to propose exempting consensual SM from the legal process regarding assault, this would be a very satisfactory option. However if SM sex was not added to the list of recognised exemptions then the current limit would impose absurd restrictions on what was legal.

6. The current exemptions are based on recognising the responsibility and/or professional judgement of parents, medical staff or sports organisers who can commit "assaults" with the others' actual or implied consent. Countdown on Spanner believes that practitioners of SM sex are as responsible and careful as those taking responsibility in the above categories.

C. That the law should set a limit to the injury which a person may consent to, up to (but not including) "serious injury", and that there should be no Special Categories except sports and games which are recognised and organised.

1. We welcome the Commission's recognition that the current position of the law after the Spanner case is not sensible and that even this, the weakest of the three choices, represents a liberalisation of the law.

2. We also welcome the Commission's recognition that the present formulation of personal injury offences is antique and confusing (Paragraph 1.7).

3. However, Countdown on Spanner finds this third option totally unacceptable. It completely fails to recognise SM as the valid, important and beautiful sexuality that it is and continues to deny SMers their fundamental human rights. Leaving SM sex under this ruling is in itself an act of extreme violence against all SM people and will be fought against by all those concerned with creating a society founded on love, truth and freedom.

4. Dealing with the proposal itself, "serious injury" is also a totally unacceptable level, which still infringes on the basic human rights and freedoms of SMers. Countdown on Spanner cannot truly set a limit to our own sexuality, as that would be a terrible crime against our own truth. But we shall not accept anything that denies us our right to love one another according to our own truth where consent is freely given.

5. We are very concerned that the option proposed is only to recognise consent to "injury" not to "serious injury". Given the previous view of the Commission that "injury" is equivalent to Actual Bodily Harm and "serious injury" to Grievous Bodily Harm, this position would criminalise a great many actions that from a common-sense point of view are not serious, such as piercings other than to the ear (ref). As noted above, even the establishment press regarded the Spanner rulings as absurd. This option as it stands would mean that defendants in any future case like Spanner would still be liable to imprisonment. The activities in the Spanner case did not lead anyone to require medical treatment, not did they cause any long-term injury or cause anyone to be unable to work.

6. As a campaign group, we believe that any limit should be where it will cause the least damage to the large numbers of ordinary poeple who enjoy SM sex.

7. One approach would be to set the limit at Permanent Physical Impairment. This would recognise that individual should not consent to harm that would cause long-term disability that may lead to reliance on benefits, or that may be regretted at a later date and that may lead to extensive medical treatment.

8. If this is not acceptable to the Commission, then an alternative position is the definition of major injury as used in the Health and Safety at Work Act, ie three days' incapacity for work. This would not criminalise minor accidents nor completely discourage people from getting medical advice when necessary.

9. We would be concerned at any general rule that suggested that getting medical advice was a measure of the illegality of an SM activity. No one should be discouraged from getting medical advice for fear of prosecution.

General Notes on Consent

1. As you so rightly imply in the Consultation Paper, the most fundamental issue is that consent has to be re-established as crucial.

2. Countdown on Spanner believes that "consent" should be defined by the following: "That freely given, without threat or coercion, by anyone of the age of sixteen years or older."

3. Lord Lane's sleight of hand in the Attorney's reference in 1980, establishing a new principle that consent was only valid if it was in the public interest, is by its nature extremely authoritarian and restrictive. Many activities are not in the public interest but are also not against it. A diverse, multicultural, liberal society cannot interfere in its citizens' lives more than is necessary or it will lose all claims to its place in the modern world.

4. We accept the view that consent given under duress is invalid.

5. It is hard to see the relevance of "consent gained by fraud" but it may well be a valuable safeguard, for instance where someone gave their consent to an activity having been led to believe that their partner was experienced and expert when this was not the case.

6. With reference to your Paragraph 19.6, we strongly reject the notion that consent given to extreme injury is entirely invalid, even when only minor injury is performed. A person in an SM scene, particularly an inexperienced participant, will often say they have "no limits". While it is to be hoped that the partners agree a "stop word" that can interrupt the actions, it will normally be the case that the more experienced partner will limit the action to what they think is reasonable. Thus Paragraph 19.6 would criminalise many responsible players. Surely this is not your intention.

7. For either of the first two positions suggested to be tenable, the consent would need to be in a form commensurate with the seriousnesss of the injury (eg in writing and with a witness).

8. Perhaps the public interest should be recognised in that consensual SM sex should be a defense only if the activity was, in the ordinary sense, "in private".

9. Some SM activists have expressed the concern that exempting SM from assault law would mean there were no limits on the degree of injury that could be consented to. For instance they worry that someone committing a serious assault could pretend that the assault was part of an SM scene. This defence could succeed only if the victim agreed in court that they consented to the assault.

10. A participant in SM sex, by accident or by misjudging the degree of consent given, could cause major injury that their partner would subsequently regret.

Conclusion

Thank you for organising this consultation exercise. We look forward to your deliberations. For us in Countdown on Spanner, the current law affecting SM sex is not merely illogical, it has been used to destroy the lives of a blameless group of men and will be repeatedly used to control sexual nonconmformists by reactionary individuals in the police, the CPS and the judiciary. We hope your proposals will improve the legal position of SMers in this country. As you may know we are also supporting the Spanner defendants' appeal to the European Court of Human Rights. It would be wonderful if we did not have to pursue this expensive and time-consuming method to establish the right to privacy and respect for our sexuality

This contribution to the consultation is not "in confidence".

COUNDOWN ON SPANNER

CAMPAIGNING FOR THE HUMAN RIGHTS OF SADOMASOCHISTS.

SM SEX

LEGALITY. VALIDITY. EQUALITY.

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