Submission to Law Commission

Consent and Assault

Can there be a level of injury beyond which it is assault even where there is full consent? Though you dismiss the point that what someone wishes to do with their body is their own concern it has a clarity absent from other positions. To step back from it needs good reason if we are to step back from this principle of personal freedom.

You suggest one reason why consensual injury should be illegal. You say that one should not permit injury of another person who desires it because having broken the taboo against assault that person may assault a victim who is less willing. Yet if the same logic was applied to rape then all vanilla sex, heterosexual or otherwise, would be illegal.

I find myself arguing a bit in the vacuum. It seems that the evil of SM sex are so obvious that it hardly needs be stated. For that reason it is very difficult to defend SM against what seems very like prejudice. Often it seems cold legal arguments seem to be a cover for the feeling that SM sex is abhorrent and so the law must be stretched to ensure that it is illegal. It is obvious to everyone that the law on assault should not apply to ear piercings why is it not obvious just when the pain is pleasurable? Even those who argued against the spanner ruling (Brown et al) start off by saying 'Of course we regard such acts as disgusting but...'.

Though such sentiments are absent from your report you clearly regard the Euro appeal as without validity. The idea that SM acts are not violence but "an essentially private manifestation of the human personality" seems alien to you.

SM experiences can, like vanilla* sex mean a lot of things. It can be light hearted but exhilarating fun between two people who barely know each other. Anything that gives people pleasure is in my opinion good but even if you regard as immoral I see no reason for the law to intervene just because pain is part of the fun.

But SM sex can be far more than that. The giving an sharing of pain between two who know the pleasure it can bring is as deeply moving as is any act between those bound by love. Those like Judge Rant who regard love and SM as incompatible do not know what they are talking about.

On the basis of your report it is difficult to know by what criteria one should draw the line. What are the merits between drawing the line at serious injury rather than transient and trifling? The only reason seems a pragmatic one. Serious injury will only affect a smaller group and therefore seem less absurd then the current excessively restrictive law.

Two criteria are possible. First if injury requires medical treatment then society is involved. The problem with this is by making this the criteria of illegality those who have taking things too far may be discouraged from seeking medical treatment. The second is that where there is permanent impairment (the spanner people suggestion) then the person concerned may, even where consenting at the time, may latter regret the consequences.

In real SM scenes it is rare that anyone intentionally breaks either of these two criteria. If occasionally this occurs it is almost always the result of ignorance. If the line is drawn at permanent impairment then society has the obligation to provide information so people are fully aware of what practices are dangerous. The handbooks produced by SM gays are excellent but they are the sort of thing that the Health Education Council should be producing as they can reach a far wider number of people. Having said that it is unusual for SM sex to carry the risks that vanilla sex carries in the age of AIDS - indeed as a safer alternative there grounds that SM sex should be promoted as a public good.

The advantages of the permanent impairment formulation over serious injury is that it is a clear boundary. You seem to see advantages in the vagueness of the serious injury criteria as tops will err on the side of caution. All I see is a legal minefield that many will disregard on the grounds that it is impossible to know if they are breaking the law so they will do as they wish and hope for the best.

If the line must be drawn then permanent impairment has clear advantages both in clarity and in that it is based on rational criteria.

Consent

Consent is a far more explicit part of SM than vanilla sex. Because there are fewer assumptions about the other enjoys, a SM scene is normally preceded by a period of negotiation. Part of the excitement of SM is not being fully in control and being taken further than one is comfortable with but that uncertainty is agreed in advance and has known limits.

Such an explicit level of consent is not common in vanilla sex. Because it is assumed everyone knows what is expected sometimes assumed where it does not exist. There have been several recent controversial cases recently where the man believed (or claimed to believe) that consent was given. In several cases the basis for this belief amounted to little more than coming back to his room and kissing. Perhaps in the past this might well have been a reasonable assumption -it is not today.

The level of consent that the law currently accepts seems to me totally inadequate. It should never be a defence in cases of rape that the man sincerly (but wrongly) believed that consent was given for there should be an obligation for him to be sure.

Consent has to be explicit in SM sex because there are no fixed conventions. But ultiately that is true of us all. We live in a multi-value world where conventions change rapidly. The more liberal concept of consent is not suited to today's more fluid society.

From the above you would rightly conclude that I fully agree with your proposal to remove "horseplay" from the exception from the law of assault. I would add that consent can be the only exception and hence I think it is a pity you do not question the legality of lawful chastisement. From an SM perspective the canning of children can only be regarded as rape.

David Barnsdale

* Vanilla in the sense of non-SM. I use it because I know of now other term equivalent to heterosexual to describe the majority.

Back to Spanner Home Page