UNLOCKING OUR BODIES FROM LEGAL CONSTRAINTS LAW COMMISSION - SPECIAL EDITION
In February this year the Law Commission published its long awaited consultation paper on consent and offences against the person. This is a response to the legal chaos caused by the Spanner judgement, the powers that be apparently not so blind that they cannot see the stupidity of the law as it now stands.
No-one knew if the Commission would turn out to be as barmy as the Law Lords, so it was with relief and some surprise that the document was received by campaigners. Although the Commission clings to the idea that the state has the right to dictate what we can do with our own bodies, they do recognise problems caused by the Spanner judgement and propose positive changes in the law.
The most important of these proposed changes is the suggestion of moving the line above which injury cannot be consented to. After Spanner you can only consent to an injury that is "transient and trifling" (which means that the effects of a spanking might be above the line). The Commission proposes changing this to allow consent as a defence to anything except "serious injury". This would probably legalise most SM acts.
In response to the Commission's document, Countdown on Spanner organised a seminar at the ICA on March 10. Although the event was organised at very short notice, attendance was good. Lawyers, academics in the legal and social fields, and a good selection of concerned pervs turned up. The Fetish and Gay press were also well represented.
Eleanor Sharpstone, Barrister & Fellow At Law at Kings College, Cambridge started proceedings by summarising the consultation paper, explaining the thought processes of the Commission to normal mortals like us and pointing out that although "this report/recommendation does not do anything like what some groups would like it to do... it is a recognition that consent to a greater level of injury than the very minimal, common assault level, ought to be available as a defence."
Next, Dr Bill Thompson put the Spanner case into a social context with a blistering attack on the homophobia of the authorities. He pointed out the way that homosexuality and other sorts of sexual difference like SM were linked with sex crimes and moral panics about "satanic abuse."
In the afternoon, Feminists Against Censorship's Avedon Carol talked about issues of domestic and sexual violence, and the way the assault laws worked. She made it clear that prosecuting consenting SMers was not going to help the victims of real violence and contrasted the resources spent on prosecuting the Spannermen with the lack of police interest in charging women-batterers.
Legal director of Liberty, John Wadham, then outlined the process of the Spannermen's appeal to the European Court Of Human Rights and the conference concluded with a panel discussion of pervy people. Tuppy Owen of Planet Sex, Avedon Carol, Skin Two's Tim Woodward, photographer Della Grace and SM Gay's only certified saint Derek Cohen chewed over tricky issues including where we would draw the line?
All in all, a fascinating and valuable day's discussion led to one conclusion: that it is vital for every progressive organisation and individual to make a submission to the Law Commission! Transcripts of the conference proceedings are available now from Countdown on Spanner, priced £20 only.
The Law Commission has made it clear that they want to hear from all interested parties, not just lawyers and academics. Lord Justice Brooke, chairman of the Commission said, "We are anxious to hear from people and organisations for whom the present law is creating difficulties." Usually, the Law Commission doesn't get much response to their papers. If they receive a flood of submissions from sadomasochists, civil libertarians and all of the rest of our supporters, it will help to firm up their tentative proposals for reform. They seem to be teetering in the right direction, making them aware of the anger the Spanner case has generated could provide just the push they need.
The commission identifies three possible approaches to the new law:
I. That a person's body is their own, and that the law has no place in dictating what can be done with it.
This approach is acknowledged but rejected by the Commission, as shown by Lord Lane's statement that "it can be taken as a starting point that it is an essential element of an assault that the act is done... without the consent of the victim... if the victim consents, the assailant is not guilty. But the cases show that the courts will make an exception to this principle where the public interest requires... It is not in the public interest that people should cause each other harm for no good reason." The Commission cites the law on dangerous drugs as an example of another area where society frames laws which limit the freedom of persons to do as they wish with their bodies.
II. That the law should set a limit to the injury to which a person may consent at "transient and trifling" (i.e. where it is after the Spanner judgement), but that certain Special Categories should be exempt from the law.
The Special Categories proposed by the Commission are: ritual circumcision, ear-piercing, tattooing and (perhaps) religious flagellation/mortification and dangerous exhibitions. The Commission invites comment as to whether other Special Cases should be added. Regarding the possibility of SM being a Special Category it comments, "It is difficult to see why the presence of a sexual motive should alter the law."
We leave you to argue your case, but note that in respect of the Special Category of dangerous (i.e. knife throwing acts, stunt-people etc.) the Commission has said that "the law should simply not enter this area; otherwise the courts would be faced with the invidious task of deciding between the risks that people may or may not legitimately run in respect of their own bodies... risks are taken every day in these performances and sometimes accidents happen, but the police rightly take no notice."
III. That the law should set a limit to the injury, to which a person may consent to, at up to (but not including) "serious injury", and that there should then be no Special Categories except sports and games which are recognised and organised.
This law would be the same whether the acts concerned took place in private or in public. "Serious injury" would be a level determined by jury, and the first case tried on it would then set a precedent.
Finally, the Commission invites comment on its proposals for the definition of "consent". Broadly speaking, the Commission proposes that consent should not be a defence if it was gained by threat or coercion, or if "given by a person under the age of sixteen who does not have sufficient understanding and intelligence to be capable of giving consent." Comment is invited on whether other such groups should be identified.
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Spanner's Submission to the Law Commission
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