A reply to Judge Pettiti concerning consensual SM

(Note: this is a response to the specific comments of Judge Pettiti - not to the ruling of the court as a whole)

M. Liddell,
The European Court of Human Rights,
67075 Strasbourg.
18th. February, 1997

Dear M. Liddell,

I was dismayed and deeply disturbed by the judgement of the Commissioners in the case of Brown, Laskey, et al that was released this morning. While the full text of the judgement has yet to reach me, I have seen comments made by Judge Pettiti.

He is reported as providing a summary of the judgement translating the meaning and intention of court as follows: "The dangers of unrestrained permissiveness, which can lead to debauchery, paedophilia, and torture of others, has been highlighted at the World Conference in Stockholm. The protection of private life means the protection of a person's intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism." The prosecutions and convictions "were necessary in a democratic society for the protection of health." Further, he went on to argue that this ruling should lead to an expansion of Paragraph 43 of the European Charter such that other [SM] sexual acts, not only those currently criminalised by the "Spanner" law (Judge Rant in Brown et al vs. Regina), could be considered criminally immoral, and therefore be justifiably regulated by national government. The paragraph, he argues, should be expanded to allow national governments, in the interests of public health, "to regulate and punish practices of sexual abuse that are demeaning, even if they do not involve the infliction of physical harm." (For the purposes of this letter, I take the foregoing to be an accurate reporting.)

One of the most disturbing aspects is the mingling of Church and State in this judgement and comment. Modern Western law (the State) is founded upon principles of proof of harm and culpability. Religion is founded upon assertions and beliefs, many of which are unprovable. The moral dictates of religions are often founded upon these unproven assertions and beliefs. Until this morning's judgement, I had understood that modern Western law rests upon the burden of proof. Bringing moralism into the law and making acts criminal based upon ultimately unprovable beliefs, is, at best, a shaky foundation for the law.

By using a framework of legal moralism with a dash of paternalism, the Court has taken Europe back to an age where if a ruling body has no more than a belief that something is wrong, it can impose this moral judgement upon all of its citizens. This could lead, for instance, to the criminalization of homosexuality, long ago accepted as biological fact by biologists and psychiatrists. All it would take is for a politician to convince others that, although homosexuality exists, it is morally wrong, and we'd then have a State purge of people who are homosexual by their very nature. This could also happen to Jews, blacks, Chinese or any other subcultures that form part of our modern society. The last time it happened in Europe was in World War II. In old England, it used to be called a witch hunt; in the United States, it is called McCarthyism. Until this morning, I had thought that Western law had evolved beyond this.

For over five years, I have taught safer sexual practices to thousands of people. Daily, I see the need that many people have for alternate forms of expression during erotic and other activities. Indeed, as a Canadian citizen, I have seen the native American peoples' history of body adornment. These rituals and traditions continue today without persecution, and are often tied to sexuality and fertility. There is plenty of evidence that man throughout the world has been engaged in alternate personal and sexual expression (for example, the recent BBC / Discovery Channel television documentary The Human Animal by Desmond Morris). By what ethical (as opposed to moral) right can we as a modern, western society impose a system of beliefs upon another society, whether that society be external to ours or form part of it? Daily, the television tells us of middle-eastern extreme legal moralism being imposed upon individuals locally and in the West, and we recoil at the injustice of that practice. If the SM practitioners in Europe declared their practices religious, would you persecute them in the same manner? We must allow, even encourage, diversity of expression within our community to keep it vital.

None of the above should be construed as my advocating unbounded liberty. Following the original Brown vs. Regina in England, the Law Commission there published a significant document called Consent In The Criminal Law, consultation paper 139. I am sure that the Commissioners were aware of this document before making this morning's judgement. It shows that a carefully considered approach to individual freedoms weighed against public order and health can produce a consistent framework that is workable for all interested parties. Its reasoning is based upon fact and subsequent logical argument, rather than assertion and belief.

Addressing the phrasing of Judge Pettiti's comments: To argue that SM activities lead to paedophilia is irrational and untenable; as is any argument that carefully controlled body modification in a religious (e.g. Jewish circumcision ceremonies) or sexual context (e.g. North American or Papua New Guinea ancient rituals) would compromise public health. These societies have survived well without our intervention. Physical abuse does not take place in consensual, adult erotic play where the actors are informed, so there should be no basis for prosecution. These are safe, private acts. Informed consensual adult play cannot under any circumstances be termed "unrestrained permissiveness," since restraint is present in the form of learning and experience. To quote former Prime Minister Pierre Trudeau in the 1967 debate on homosexuality: "The State has no place in the bedrooms of the nation." For one group of adults to legislate the informed personal intimacy of another is surely an affront to the dignity of the latter. It is also an affront and a non sequitur to suggest that the practice of informed personal intimacy is the promotion of criminal immoralism.

It is my fervent hope that, in subsequent cases that come before them, the commissioners in Strasbourg will, following the lead of the commissioners in the U.K., take a closer look at fact and harm, rather than at belief and hearsay.

Yours sincerely,

Trevor Jacques,
A.R.C.S., GradInstP., Editor, Alternate Sources