10.16 If the primary motivation for inflicting pain, by consent, is not religious but sexual, English law treats the person who inflicts that pain as a criminal if any resulting injury is more than "transient or trifling" . The majority of the House of Lords in Brown held that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason, that in the absence of such a reason, the victim's consent afforded no defence to a charge under sections 20 or 47 of the Offences Against the Person Act 1861, and that the satisfaction of sadomasochistic desires did not constitute such a good reason . Lord Templeman said in his speech in Brown that the question whether the defence of consent should be extended to the consequences of sadomasochistic encounters could only be decided by consideration of policy and public interest. He contrasted the position of Parliament, which could call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts, and also take into account public opinion, with the position of the House of Lords in its judicial capacity which was being called upon to decide a point of law without recourse to such materials."

10.17 We received a wealth of evidence on consultation from people of both sexes who indulged in sadomasochistic activities to enhance sexual pleasure. We were told that "consensual sadomasochistic sex is not a recent phenomenon: throughout history a percentage of the population has made love in this manner"; "it is not everywhere appreciated that sadomasochistic sexual acts are engaged in by large numbers of people, many of whom are utterly respectable"; "sadomasochistic acts are practised by not just the small minority of visible sado-masochists but by many people in the privacy of their bedrooms"; and "there are many more heterosexual people quietly having SM sex in the suburbs than there are gay leather men in London clubs". Some of the evidence of the activities of the defendants in the leading case of Brown clearly shocked some respondents, but they were equally shocked to learn that the sexual activities in which they had participated voluntarily for years without, as they thought, harming anybody, were regarded by the law as criminal.

10.18 We were told that sadomasochistic sex is practised by many people of all sexualities. The number of those who engage in varying forms of sadomasochism is unknown. One respondent suggested that the popularity of sadomasochistic pornography, both "soft" and "hard", in books and magazines read by men and women alike, the results of certain sex surveys, the popularity of the Skin 2 magazine and the various sado-masochist and fetish clubs throughout the country, and the extensive supplying of such services by prostitutes, would indicate that the number is very large. This respondent asserted that many celebrities, writers, film stars, artists, entrepreneurs - and even a considerable number of politicians, lawyers and judges were known to participate in sadomasochism. Another respondent said that more extreme practices are naturally rarer than milder games, but a look at the hundreds of businesses providing bondage and sadomasochistic equipment and the enormous number of professional dominatrices offering their services is sufficient to show that there are many thousands of practising sadomasochists in Britain, and that this is not a tiny minority interest.

10.19 We were told by one respondent that despite misperceptions and fears the sadomasochistic community, both in Britain and in the world generally, has grown very rapidly over the last 10-15 years, although this is not to say that the total incidence of sadomasochistic sex has grown. The way that those who are interested in sadomasochism now communicate with each other was reflected in the evidence given by three different representative groups.

10.20 The first of these groups9 represented the collective views and experience of a selection of predominantly heterosexual practising sado- masochists. They said that all sado-masochists would accept their contention that their sexual practices did not involve violence: the apparently contradictory nature of their activities can be resolved when it is recognised that it derives from the fact that they like certain forms of pain.

10.21 They said that the acts that make sexual behaviour specifically sadomasochistic may include beating the body, the use of constraints, endurance tests, role play, verbal abuse, micturition, the application of extreme heat or cold, scarification and piercing. They said that this list does not pretend to be exhaustive, and many of these activities are also engaged in by people who do not consider themselves to be sado- masochists. The parts of the body most involved in the physical aspects of sadomasochistic sex are the buttocks, breasts or nipples, thighs, back, feet and genitals. Many sado-masochists may swap the active or passive roles within a single encounter, and encounters may frequently be initiated by the passive partner. The group stressed that a person would consent only to the particular forms of touch which give rise to a pain which he or she enjoys. They felt that

their activity was no more intrinsically psychologically harmful to a participant than other forms of sexual behaviour: indeed, they considered that because they felt more sexually fulfilled this activity was beneficial to the people who wished to enjoy it.

10.22 The instruments used for beating might be various types of whip, crop, cane, tawse, belt or leather paddle, or even bare hands. Because participants are doing it for pleasure, a self-limiting factor is introduced, and this calls a halt to the activity long before serious injury is likely to arise.

10.23 The subjective effects of beating the body might differ greatly between different individuals, and the group felt that there was likely to be a considerable overlap with the subjective responses to religious mortification. For the passive party, beating on the buttocks is likely to be sexually stimulating and associated with heightened arousal and responsiveness. Beating on the back, on the other hand, perhaps involving a whip on the shoulders, has commonly been described as giving rise to feelings of exaltation, rapture, spiritual release or profound gratitude. After the body has been beaten, a state of emotional well-being and uplift may persist for several days. Very commonly the passive party will feel a strong bond with the person giving the beating, and also a great sense of having been given both care and attention. The physiological basis for such subjective responses has frequently been referred to as an "endorphin high": it has been suggested that it may have parallels with other physically stressful activities, such as long distance running and sky-diving, where similar elation is reportedly expressed.

10.24 The group also gave evidence about other forms of sadomasochistic activity which only become unlawful, as the law now stands, if they lead to bruises, welts or breaks in the skin. Older sado-masochists practise a long-established endurance test whereby the passive partner is required to kneel on dried peas, without movement, for half an hour or longer: the pain is described as excruciating after as little as 20 minutes. In other types of voluntary degradation the passive partners may be restrained, verbally abused, admonished or required to act out a humiliating fantasy (such as being petticoated, if male), lap up their own urine, or experience pain which may take them to the limit of their endurance.

10.25 The restraints most frequently used are ropes, hand-cuffs, leather or rubber cuffs, blindfolds, gags or suspension apparatus. Members of the group reported that the use of restraints enhanced their sexual experience because they found it aesthetically pleasing to see their bodies in bonds, and because being bound made them feel highly introspective and capable of concentrating on their own pleasure without the distraction of responding to their active partner. They pointed out that the practice of bondage does not offend against the criminal law if it does not lead to bruising etc. On the other hand, it is potentially more dangerous than any form of beating, particularly if it involves airway restriction, and there has been a steady number of deaths involving people practising auto-erotic asphyxiation on their own without any form of supervision." They said that it is essential that the use of restraints takes place safely and is carried out responsibly. There are considerable efforts made by the sadomasochistic community to provide education regarding safe sadomasochistic sex, but these efforts are hampered by criminalisation.

10.26 For those who enjoy extremes of heat and cold, the group said that the first choice of many of those who contributed to their evidence was ice, not candle-wax. The use of naked flame was very rarely reported. The effect of hot wax is intense, but short-lived, and nobody reported unwanted scarring, or any other significant injury, as a result.

10.27 They said that, paradoxically, sadomasochism has enjoyed something of a boom in interest precisely because it can offer an exciting expansion of sexual horizons that do not run the dangers associated with some forms of penetrative sex. They maintained that sadomasochism is not a significant factor in transmission of HIV, and they were aware of no medical literature which suggested that a single cause of death had been recorded as being a result of sadomasochistic sex.

10.28 Finally, they submitted that sadomasochism was part of the spectrum of human sexual response, and that it should not be treated as analogous to activities like killing or mutilation. Like many other respondents, they took strong issue with the views of Professor Fletcher which were quoted in the last Consultation Paper." The subjective experience of the active party who is engaged, for example, in flagellation, can, they said, combine pride in the exercise of skill, a sense of care and service towards the passive partner, and sexual excitement at the exercise of power over that person. Active and passive roles are commonly exchanged, and many contributors in their evidence made it clear that the power they enjoy exercising is the power to give the submissive what they want and so excite them that they achieve the maximum pleasure of which they are capable.

10.29 The evidence of this particular group has been quoted at some length because it gives a valuable factual explanation of many of the practices mentioned in other evidence and expresses views which were regularly repeated by others who participated in the consultation.

10.30 Of the two other groups who gave evidence to us, "Countdown on Spanner" is a mixed sexuality campaign group which was formed in September 1992 at a meeting in Conway Hall attended by about 200 people determined to support the defendants in the case of Brown in their appeal to the House of Lords They told us that their campaign had produced the following working definition of sado- masochistic sex:

10.31 These three points figured frequently in the evidence received from individual respondents. An academic respondent who has made a study of the subject" said that SM sex is essentially a theatrical activity in which the sadists and masochists act out roles of symbolic dominance and submission, of shaming and being shamed. Their aim is not pain per se, which they fear as much as anyone else, but pleasurable excitation which is linked, or becomes switched to, sexual pleasure. They may suffer some degree of injury, but they view this much as a sports player views the risk of injury which is inevitably found in most games. Another respondent said that SM sex is essentially a matter of role-playing. One person is the giver of "punishment", and the other is the receiver. They may frequently reverse roles. They may be both of the same sex or of different sexes. It greatly enhances the enjoyment for the receiver if he or she feels completely under the domination of the giver. Hence, temporarily, the giver is granted complete control. A third respondent said that SM games often involve fantasies of domination and submission,' 7 and that the different roles are freely entered into and do not necessarily reflect the participants' roles in real life.

10.32 These second and third factors, that SM sex is consensual and that roles may readily be reversed, were repeatedly stressed by respondents who had personal experience of the practice. There follows a number of typical extracts from the evidence we received:

In SM sex there is no such thing as a victim and consent is everything. just as in straight sex, the only difference between a loving act and a violent act is consent, and to ignore consent is completely ridiculous. All sexual acts of every sexuality are acts of violence if undertaken without consent, and not violent if consent is given. Consenting sexual acts have absolutely nothing to do with violence.

In my own experience as a gay man who prefers SM relationships (and in the experience of others to whom I have talked) SM encounters between consenting adults involve a process of negotiation within the context of sexual pleasure. These negotiations, which are expressed as a mixture of prior agreement and the more spontaneous/improvised situations that arise during a sexual encounter, are the means by which the participating individuals attempt to arrive at a correct "balance" in their relationships.

SM activity is typically an activity which requires extensive negotiation and planning. When negotiation and planning are absent, then the activity becomes rape or abuse and there are already laws against such acts. Sado-masochism is only violence by metaphor: a closer metaphor would be to view sadomasochism as theatre.

[We] use terms such as "top and bottom" or "D & S", not "victim and assailant", which emphasises the fact that both partners are active in the encounter, albeit in different roles. Indeed many people "switch", that is take different roles at different times. One of the most important rules ... is that the bottom sets the limits to the encounter.

In all the years I have been a modest SM practitioner, I have never seen unacceptable individual risk. The contrary is invariably the case. Sado-masochism is essentially a ritual, there are ritualised stop words, even the most tyro practitioner knows where not to hit hard and knows more about anatomy in general than the average Joe. The bottoms outnumber the tops at least 10 to 1, and the bottoms in reality dominate the ritual. It is in reality the top's duty to serve the bottom by giving just enough of what the bottom wants. An overly aggressive top does not get to top, because word gets around.

A strong relationship of trust and understanding develops and exists between sado-masochists. It was acknowledged in Spanner that the participants had known one another for years, and strong friendships had built up established by mutual trust and understanding. It is the victim who dictates what he wants and how much of it he is prepared to submit to. Rules definitely exist in SM activities.

A SM scene is normally preceded by a period of negotiation. Consent has to be explicit in SM sex because there are no fixed conventions.

SM sex is extremely varied. It should be fully consensual in much the same way as legal non-SM sex is, and for this consent to be present prior negotiation is essential to ensure that all the acts which a lover instigates are genuinely consented to.

I do not believe you can make any sense of SM sex unless you consider the sexual motives of the participants. In a typical SM encounter top = dominant and bottom = submissive. It will be agreed that Top is in charge. The feeling of power met with obedience adds to the sexual excitement of both partners. The common use of bondage often serves to amplify the sense of domination and subservience. In a physical sense it appears that the Top is in control. But in practice the Top has to stay within the limit set by the desires of the Bottom. It is a very common saying by those involved with SM sex that the Bottom is the one who is actually in charge.

10.33 Countdown on Spanner said that SM sex should be legally recognised as an expression of sexuality and not as an assault. They maintained that it is integral to many people's sexuality, being vital and fulfilling for them; that 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 of violence; and that practitioners of SM sex are as likely to be as responsible and careful as those in the other categories recognised by the law as exceptions to the general rule relating to offences in which injury is inflicted. "'

10.34 This contention, too, was supported by the evidence of many individual respondents. There follows a sample of this evidence:

The violence that is involved in SM activity, and specifically, in my case, in corporal punishment activity, is not violence as such, but essentially is sexual in nature, and sexuality of great subtlety and complexity in which the superficial bifurcation between the dominant and submissive partners is often much less easily disentangled than may appear to the lay person at first sight. It is most certainly not a case of the exploitation of one party by another.

It is probably impossible to describe the beauty of sadomasochism to those who do not share these desires. To me sadomasochism is about power far more than it is about pain. Pain is just one tool in the exercise of power. But power has to be freely given with informed consent or I could not enjoy exercising it. Real coercion would turn beauty to ugliness - not only morally wrong and illegal, but for me not erotic.

I am a very active and independent woman. But I have also enjoyed taking a very submissive role during sex. To me an essential part of taking a submissive role is that my partner punishes me. This punishment would typically involve him spanking me very hard or using a cane or a whip on my behind. It is often likely that this punishment would leave more than transient and trifling marks. This is an activity from which I derive immense sexual satisfaction. Not only that, I also find the effect of giving up control and taking a submissive role to be a very relaxing experience. It has always been very clear in my mind that I have willingly sought these punishments for my own sexual and emotional satisfaction.

Dominants do not necessarily hurt anyone. A sensation is caused which in another context could be classified as painful. It is not something I would consider violent, as it damages no one emotionally or physically. I can only describe the attraction of such sex play as constituting an aesthetic awareness and intensity as well as providing variety, intellectual stimulation and an element of humour. There is a spectrum in the SM world, and what many enjoy constitutes far more a philosophical and psychological activity. The more common, paradoxical truth is that it is frequently the submissive party who controls what is done to them, and -much of what appears to be pressure by the top is for the submissive's benefit.

Sado-masochism provides myself and my friends with an intense form of erotic gratification which by its very nature involves levels of trust and compassion rarely found in other walks of life. In addition, my personal experiences in coming to terms with my own sexuality have, I believe, led me to a deeper understanding of the complexities of human nature. We are not violent monsters.

SM sex should be legally recognised as an expression of sexuality and not as an assault. SM sex is integral to many people's sexuality. It is vital and fulfilling for many people. 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.

SM experiences can, like vanilla (non-SM) sex mean a lot of things. It can be light hearted but exhilarating fun between two people who barely know each other. But it can be far more than that. The giving and sharing of pain between two people who know the pleasure it can bring is as deeply moving as is any act between those bound by love.

10.35 The third group, SM Gays, was founded 13 years ago as a social and support group for gay men interested in consensual SM sex at a time when this was very much frowned upon, and when there was very little available in the way of positive images, safe places to meet, or education and advice on safe SM techniques. Between 150 and 200 gay men attend its monthly meetings in Central London," and the group has published a number of Resource Books, and literature on SM health and safety.

10.36 They told us that human sexuality does not fall easily into compartments. It is a spectrum along which people travel from day to day or from one relationship or sexual encounter to another. For some people, role playing games of domination and submission may be the key to the success of their relationships. For others, physical control by holding their partner down or mild spanking may be common elements of their sexual activities. Yet none of these people would consider themselves to be sado- masochists, and their activities may or may not cause injury.

10.37 The evidence of this group touched on the physical injuries that may be sustained during SM activities. They said that such injuries usually take the form of marks, bruises, weals and sometimes cuts. They are very rarely serious enough to need medical attention, and they nearly always disappear after a few hours, or at most a couple of days. These injuries are caused by the use of whips, canes and other instruments of corporal punishment, by sharp implements such as abrasive materials or steak needles, or by hands or teeth. They occasionally take the form of superficial bums from hot candle wax. Some SM activities cause a breaking of the skin. This can be accidental or incidental to the activity (since whipping or branding may break the skin) or it may be intentional (as in temporary piercing, scarification or branding). Another way an accident may happen is if in a suspension scene a rope breaks and the suspended person falls and breaks a leg. In such a case the police may prosecute if they can prove recklessness.

10.38 The importance of proper attention to safety and the need for dissemination of advice about safety measures was stressed not only by this group but by other respondents. The evidence we received was along these lines:

If the current law was enforced strictly, it would hamper educational and campaign work on SM issues. While I and my friends Jointly enjoy sadomasochism we are not blind to the need for skill and consideration. We run workshops in safer sex (avoiding HIV transmission), negotiation, CP techniques, physiology and safe bondage etc. Such workshops help to educate people to avoid accidents. Are we aiding and abetting assaults 'f we discuss safe methods of causing pain in consensual sex play?

The gay community has been at the forefront of the movement to build a responsible and safe SM culture since the founding of SM Gays over ten years ago. All the major SM organisations have a commitment to promoting "safe, sane and consensual" sadomasochism.

The vast majority of law abiding and conscientious sado- masochists keep their activities secret. Many sado-masochists were and are isolated and unhappy, fearing to admit the nature of their sexual desires lest they be branded as a dangerous pervert. Most SM sex undoubtedly takes place secretly between married couples who have complementary sexual fantasies, or between professional dominant women and their clients. This causes some very serious problems, since a climate of secrecy is not conducive to the dissemination of sound information regarding safety.

I am the co-author of a booklet which is designed to promote safe practice in SM sex. If we are forced to carry on our activities furtively, underground, illegally, we will be unable to keep people informed about "Tops" who are not safe. Sado-masochists who will be unable to meet openly and obtain recommendations about responsible partners will be at much greater risk from such atypical violence.

Many SM activities are quite safe if carried out properly but dangerous if practitioners do not know what they are doing ... Some activities are simply not safe to do alone. At least one person has died as a direct result of the Brown verdict. He was into breath restriction (cf Milligan). Following Brown he feared involving his partner in his activities and reverted to doing them alone. He was found dead. The current law endangers people rather than protects them. The best protection is sound safety information. We wish to have safe, sane and consensual sadomasochistic sex, and to be able to prevent accidents and minimise risks by disseminating accurate information regarding safe practices.

I am purely a masochist ... I have researched my psychological preference in many academic text books, and I keep on finding myself misrepresented. In effect one has to join a secret society to practise such activities and only the most adventurous researcher can obtain genuine information. Being an intellectual chap I can understand my own psychology. Other people are not so lucky. When such practices are illegal they get driven underground. Then everybody is deprived of information, including the practitioners themselves. Nobody knows what goes on and exploitative characters can get away with conduct which everybody regards as unacceptable.

To the extent that prosecution by the state forces sado- masochists underground it weakens the rules by which sado-masochists regulate their own activities and prevents the younger ones learning what is safe and appropriate from older sado-masochists.

For private sado-masochists, Spanner has had a very negative effect. There is a clamp-down on sadomasochism. Sado-masochists have no ready access to safe sex literature or safe practice literature. It has also discouraged people from coming to our clubs and social spaces - the network of safety advice.

I am involved in running two different support organisations for practitioners and supporters of SM sex. I would like to make three points about the effect of the new(ish) legal issues:

(1) It has made SM sex less safe - people are afraid to ask for information on safe SM sex (both in HIV transmission terms and safety of cuts/bruises). They are also too scared to visit a GP or hospital if they have had problems.

(2) People do not understand the law and are therefore very scared (an increasing problem!). I dare you to define "transient and trifling". A link between suppressing sexual desires and dysfunctional behaviour which is very much against the public interest is very well documented, so that scaring people away from safe, consensual activities towards this cannot be a good step.

(3) This case has caused prejudice and enforced existing prejudice. A law like this gives an open ticket for harassing our community. This includes cheap journalists and some members of the police.

10.39 Another point that was made by a number of respondents was that the effect of the publicity given to the Brown case was that people who practised SM sex were very frightened about giving evidence to the police when they were investigating serious crime. They were afraid that this might lead to their own prosecution for taking part in illegal activities. Formally the organisations representing the police opposed any alteration in the present state of the law:" they were particularly concerned about the risks to vulnerable people which would be posed by any liberalisation of the law on SM sex. We received evidence, however, that in practice prosecutions are very rare. A practising solicitor of 12 years standing who had considerable experience as a criminal advocate told us:

The tenor of Brown fits uneasily with contemporary opinion. Wolfenden adequately set out the arguments, but prosecution policy indicates that society has to a large degree come to accept that the law should stay out of the bedroom. It would be inconceivable to imagine Knuller" being decided in the same way today, let alone a prosecution being undertaken. An unofficial age of consent for gay men has operated for many years, and prosecutions have been rare where both parties are over 16. Similarly the laws prohibiting anal intercourse by heterosexuals and sex between men in private where a third party is present, are in practice dead letters.

Following Brown a number of police forces were canvassed, and in private indicated that enforcement of the decision was a "low priority". Sado-masochistic advertising, albeit coded, clubs and publications have continued to flourish. From discussion with SM groups, it appears that there has been no change in behaviour. The law in this area is akin to the prohibition on homosexual acts before 1967: widely disregarded and regarded as grossly unjust and intrusive.

10.40 However this may be, the fear of prosecution and harassment undoubtedly exists. This was reflected in evidence along the following lines:

Last year the gay community was very loath to give the police any advice at all in the serial murder case. It was only when information was given via the GALOP group that the heterosexual murderer was identified. The Head of Community Affairs made it very clear at New Scotland Yard that those with the responsibility to enforce the law were very unhappy at the position in which they had been placed.

Illegality drives a wedge between the minority community and the police making people less willing to give information regarding the genuinely dangerous in case they are prosecuted themselves.

Sado-masochists have become very distrustful of the police, laying themselves open to blackmail and worse. Consider the Colin Ireland case. The gay community and the sado-masochist community would not come forward to the police because of fear of incriminating themselves as sado-masochists. The lack of freely available safety advice has led to several deaths. It is the general public, not the sadomasochist community that is the target of current legislation.

Illegality could cause grudge informing to the police. This has already happened. A man who was not invited to a party told the police who raided a house in great numbers.

Police investigating the serial killer of gay men associated with the sado-masochist social scene found difficulties. Detective Inspector Finnigan led the inquiry into the murder of Peter Walker in 1993. He could give no undertaking that innocent gay men helping police in their inquiries would not be referred to the Obscene Publications Squad. He said (Pink Paper 4.4.93): "We are irritated by this; it is going to be an obstacle to our inquiries".

10.41 The final point made by SM Gays in their evidence was that the wide diversity of SM activities which might cause any degree of injury posed problems for those who might attempt a legal definition. No list of such activities would ever be complete, and no definition which concentrated on the physical activities separated from issues of consent and the personal power dynamics of domination and submission could be guaranteed to separate a sexual SM scene from a real assault.