[Written for Outright, November 1996.]

"Spanner" begins in Europe

On October 21, "R v Brown" began its hearing in the European Court of Human Rights.

In 1990, 15 gay men were convicted of assault charges, and imprisoned, as a result of injuries consensually given or received in the course of sado-masochistic sex. None of them had complained to the police, all the activities had been in private, and none of the injuries was permanent or needed medical attention.

Both the appeal court and the House of Lords upheld the convictions, so three of the original "Spanner men" are now taking the British Government to court in Europe. (Spanner was the codename of the original police operation.) The case will probably take till next year.

So what has this to do with us as lesbian, gay and bisexual people*, some of whom have no interest in SM?

For one thing, the people arrested were gay men. But another connection is the question of what it is to give informed consent.

The moral argument for the Spanner prosecution rests on the idea that these activities are so harmful, to the person and hence to society, that consent to them can't be legally valid. As Lord Lowry put it, "Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society". Meanwhile, Lord Templeman asserted rather bizarrely that "Sado-masochistic participants have no way of foretelling the degree of bodily harm which will result from their encounters."

There isn't space here to debate the alleged harmfulness of SM activities and principles, relevant though that would be. However, the issue of consent is central to other laws. For instance, the ages of consent for sexual intercourse are based on the idea that young people aren't capable of giving valid consent to sex - especially to male/male sex.

Surgery (including for cosmetic reasons), boxing, tattooing and sports like rugby or football are specific situations where something that would otherwise count as assault is made legal by consent.

Interestingly, there was recently a case where a woman had convinced her husband that she wanted branding marks, done with a hot knife. As with Spanner, there was no complaint from the participants. On appeal, the case was dismissed, with the branding characterised as "the acquisition of a desirable piece of personal adornment", like "the piercing of nostrils" for "decorative jewellery". Any pain or pleasure from it was thus incidental. The court also held that "Consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution" - apparently as opposed to consensual activity between other people in the privacy of their homes.

Both that allusion to marriage and Lord Lowry's inclusion (quoted above) of the word "homosexual" look to me like prejudices clouding the main issue. The basic question is to what degree people have the right to decide what happens to their own bodies. When is consent valid? If no means no, does yes mean yes?

Copyright Jennifer Moore 1996
jennifer@uncharted-worlds.org


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