INGRID OLSON:
The study of sexuality is the study of power, nowhere is
this truer than with sadomasochism (S/m), the negotiated, consensual exchange
of power. Sexuality is defined through policy and practice, the public and the
private, the permissible and the forbidden. The 1990 ‘Spanner Case’ in
Manchester, England, determined S/m is impermissible because judicial policy
states persons cannot consent to S/m activities as they have the potential to
cause bodily harm. The 2004 ‘Sweet Productions’ case in Vancouver, Canada,
determined that the practice of S/m is permissible because it is a normal form
of sexuality that some members of society enjoy. The adherence to policy in the
‘Spanner Case’ and the recognition of practice in the ‘Sweet Productions’
decision distinguish the power of policy and practice in defining
sadomasochism.
S/m is the negotiated, consensual exchange of power; this
definition is intentionally reiterated because it is fundamental in the legal
cases under scrutiny. S/m practices are often controversial because they are
regarded by normative standards of sexuality as violent, dangerous, or both.
Gayle Rubin (3) argues that in the contemporary era, “those who practice S/m or
cross-generational sex” have been particularly subjected to sexual oppression.
S/m practitioners struggle against social oppression for what they deem as
another form of sexuality and one that courageously expands the boundaries of
sexual practice. Michel Foucault sees S/m as “the eroticisation of power” (169)
and S/m practices as “the real creation of new possibilities of pleasure”
(Foucault 165). S/m negotiations involve willingly bartering sexual autonomy, a
practice that lends itself to an investigation into the notion of consent and
the role of the state. S/m practitioners see consensual S/m relationships as
exceeding any social power dynamics based on age, ability, gender, sexual
orientation, class, religion, and ethnicity. The exchange of power in S/m
practices is ethically significant because of the spatio-temporal potential to
eradicate pre-existing social inequities. Gilles Deleuze (126) argued that
Leopold von Sacher-Masoch’s “contract” with a dominant woman reversed the
situation of a “patriarchal society.” This paper is interested in how the
practices of S/m conflict and struggle against public policies and the social
power that influence those policies.
In 1987
in Manchester, England, a police investigation codenamed ‘Spanner’ culminated
in the arrest of a group of gay men involved in sadomasochism. The defendants
were tried on charges of assault causing actual bodily harm, contrary to
section 47 of the ‘Offences against the Person’ Act 1861, and unlawful
wounding, contrary to section 20 of that Act. The original conviction of the
Spanner Case was reached on November 7, 1990. The conviction was appealed to
the House of Lords and in a three-to-two decision was denied appeal in 1993.
The opening lines of the March 11, 1993, R v Brown decision states:
“The appellants belonged to a group of sado-masochistic
homosexuals who over a 10-year period from 1978 willingly participated in the
commission of acts of violence against each other, including genital torture,
for the sexual pleasure which it engendered in the giving and receiving of
pain. The passive partner or victim in each case consented to the acts being
committed and suffered no permanent injury. The activities took place in
private…”
This statement reveals numerous key points of contention in
the Spanner Case, and specific to this paper. First, the Crown distinguished
the appellants by their sexual orientation. Second, the Crown knew these
individuals had been participating in this activity over a 10-year period.
Third, the participants acted “willingly” and the submissive partners “suffered
no permanent injury.” Fourth, the majority expressed particular interest in
harm to male genitals, and finally, the activities occurred in the private
homes of the participants.
The
Spanner decision focussed much attention on distinguishing between lawful harm
versus unlawful activities causing harm. Lawful bodily harm includes
“circumcision, tattooing, ear-piercing, violent sports including boxing, and
parental chastisement.” The appellants responded that such distinctions are
arbitrary and Mr. Kershen, QC for the appellants urged “freedom of sexual
expression” and inclusion for S/m activities. The defence was also based on the
arguments that the activities took place in private homes with consent and had
no potential for injury to anyone beyond those involved. Further, the case does
not meet the criterion for the Offences against the Person Act 1861 because
there was an absence of hostility, no malice or aggressive intent, and none of
the participants had needed to seek medical attention. The Crown responded that
the fallacy of this argument is that actual bodily harm is a crime and
therefore cannot be consented to. The submissive partners were seen as aiding
and abetting in a crime by their consent.
Lords
Templeman, Jauncey, and Lowry held the majority decision, in that decision
Templeman cited the significance of the 1861 Act and the previously common
tradition of duelling that was banned because the bodily injury was capable of
maiming. Templeman stated “The act of maim was unlawful because the King was
deprived of the services of an able-bodied citizen for the defence of the
realm. Violence which maimed was unlawful despite consent to the activity which
produced the maiming.” Templeman also claimed that S/m participants could not
accurately gauge the level of harm of their activities, and that the practice
was “unpredictably dangerous and degrading.” Templeman went on to describe S/m
as not being only about sex but is about violence and “society must be
protected from a cult of violence.” Lord Jauncey points out that unlike
sporting events there is no “referee” present in the S/m activities and that
none of the participants are medically trained for their activities. On the
question of including S/m into the list of lawful activities for bodily harm, Lowry
claims it is a “wish to satisfy a perverted and depraved sexual desire.
Sado-masochistic homosexual activity cannot be regarded as conducive to the
enhancement or enjoyment of family life or conducive to the welfare of
society.”
The
minority supporting the appeal are Lords Mustill and Slynn who argued that the
notion of consent include S/m and the sexual privacy of individuals be
respected. Mustill argues that S/m be seen as a case of “private sexual
relations.” He also adds that in addition to surgery, parenting, and boxing,
the lawfully recognized activities of harm should be clarified to include
euthanasia and “religious mortification.” Lord Slynn states that the Spanner
Case is a matter of policy “in an area where social and moral factors are extremely
important and where attitudes can change” and Slynn suggests the government
legislature be involved in deciding the matter.
In late
2002, a Vancouver, B.C., adult video production company known as ‘Sweet
Productions’ was raided by police and
charged with twenty counts of obscenity based on eleven videos obtained in the
raid (para 1). All of Sweet Productions’ work involved bondage, discipline, and
sadomasochism (4). In his defence, Mr. Randy Price, owner of Sweet Productions
Inc. (SPI) called on expert testimony from two medical doctors and a retired
Vancouver police officer now working as a private detective (6). The Crown
argued against the supposed expert testimony but Judge Low permitted it and
stated he would determine how much weight to attribute to this testimony (9).
In addition to expert testimony SPI presented the prevalence of Internet access
and usage (11-18) and existing sexually violent mainstream movies (25-27).
Finally, SPI also entered the evidence that “most larger urban centres in Canada”
(28) have S/m and fetish clubs or organizations where adults interested in S/m
practices can easily gather in a regulated public venue.
Mr.
MacDonald, the retired Vancouver Police officer testified that local police are
very aware that S/m events take place on a regular basis and are routinely
visited by police (29). He stated that in his 30-year career he had seen S/m
activity move from being socially unacceptable to achieving what he regarded as
now being “socially acceptable (37).” MacDonald said the activities at these
events is the same or very similar to that on the eleven evidence videos from
SPI.
The medical testimony from Dr. Moser states that pleasure
and pain are closely related in human sexuality and that “pain giving rise to
sexual pleasure is a normal sexual experience and is the basis for practising
BDSM (32).” Dr. Moser described levels of S/m and said that many people who
might not consider themselves as partaking in S/m practices indulge in mild
bondage or biting (33). He testified that consensual S/m “is normal and
appropriate sexual behaviour” (34) and the acts in the eleven videos are
consistent with that definition. Dr. Fisher was accepted by the court as an
expert in sexuality and pornography, in this capacity he stated that the
proliferation of pornography, including S/m, has been proved statistically not
to increase sexual violence or rape (46-51).
In assessing the law, Judge Low considered the case of R v
Butler and its intention to prevent harm from obscene material. The judge
mentioned section 163 of Butler that “criminalizes the exploitation of sex and
sex and violence, when on the basis of the community test it is undue
(73)." Judge Low also gave weight to the Community Standard of Tolerance
test contained in the Butler decision. Judge Low accepted the expert testimony
of Mr. MacDonald and Dr. Moser in determining the acceptability of the eleven
videos by Canadian standards (91-92). The decision states that “Canadian
community standards change (89)” and we must consider Canadian standards
collectively. Mr. Price and SPI were acquitted of the charges based on
acceptance that Canadian standards have changed and S/m “is not an obscure
practice (36).” The acquittal was based on acceptability of S/m as a public
practice given Mr. MacDonald’s 30-year police career and Dr. Moser’s statement
that S/m is a normal form of sexuality.
The
Spanner Case convictions were granted appeal because of the notion of consent
in a sexual context and the question of whether sadomasochistic acts should not
be deemed lawful activities. In a three-to-two decision the House of Lords
denied the appeals on March 11, 1993. The majority adhered to a strict
interpretation of the law and state policy on permissible acts that cause
actual bodily harm. It is significant and astounding that the majority held
based on an 1861 Act developed to prevent, among other things, death and
maiming from duelling! The language used by the House of Lords in the 1993
appeal of the Spanner case is interesting in itself. Templeman and Lowry both
stated that they would refer to the submissive partner as the “victim” in their
decision. Templeman, Jauncey, and Lowry all referred to the activities in
question not only as sadomasochistic acts, but qualified them as “homosexual
sado-masochistic activities.” Jauncey went so far as to state his concern for
the potential danger of “corruption of young men.” Further, all three judges
denying the appeal specifically mentioned the infliction of pain on male
genitalia. Jauncey noted, “Fish-hooks were inserted through the penis” and “hot
wax (was) inserted into ‘C’s’ urethra.” Templeman detailed “genital torture and
violence to the buttocks, anus, penis, testicles and nipples.” Templeman also
felt it necessary to state that two of the participants had “died of AIDS”
since the original 1987 arrests and another had become HIV-positive though not necessarily
from the activities of this group. Admittedly these remarks do not satisfy
proof of a causal relationship to the decision or the interpretation of law,
however in the context of critically assessing policies on sexual diversity it
is significant and worthy of mention. I would argue that while the decision of
the majority against the appeals cite case law as the reason for denial the
language used and references to S/m practices of the Spanner Case portray the
true flavour of the judgment.
Mustill, in the minority, perhaps felt obligated to point
out that “not all grossly indecent acts between males are indictable under the
Sexual Offences Act 1956.” Mustill did not reference public practice but
suggested a ‘paradox of the heap’ argument, one intended to illustrate the
vague nature of where actual injury occurs in the “continuous spectrum of the
infliction of bodily harm.” Mustill stated, “It must be emphasised that the
issue before the House is not whether the appellants’ conduct is morally right,
but whether it is properly charged under the 1861 Act.” Mustill clarified that
his argument is not to suggest, “sadism is praiseworthy” but rather that the
Spanner Case is about “private morality.” Slynn went further stating that under
the Sexual Offences Act 1967 if these activities had occurred between a man and
a woman, or multiples of men and women, that there would be no offence given
consent in a heterosexual context which seems unsatisfactory. Like Mustill,
Slynn stressed the fact that the activities took place in a private home. As
with the language of the majority decision, I want to argue that the conditions
of the practice, homosexual versus heterosexual, private versus public,
affected the outcome of policy interpretation in the Spanner Case.
Contrary to the Spanner Case, the Sweet Productions decision
was blatantly attributable to practice. Judge Low’s decision was based on the
abundance of S/m information and pornography available on the Internet, the
prevalence of public S/m activity, and professional psychological testimony
that S/m is a normal form of sexuality. Judge Low is satisfied that S/m
practice meets an acceptable Canadian standard of sexuality. It is significant
to note that Judge Low’s decision was made in full recognition of case law and
the definition of obscenity existing under the R v Butler decision. Arguably,
Judge Low could have, as in the Spanner case, been dismissive re practices and
adhered strictly to policy, i.e. the law.
This
paper has examined legal issues of consent, the autonomy of our physical self,
and ethical practice as they relate to sexuality. S/m practitioners transgress
social norms to freely negotiate the exchange of sexual power, control of their
person, and expected outcomes. The S/m community’s practices reveal their
ability to expand sexual autonomy and create Foucault’s notion of ‘new
possibilities of pleasure’, and to reframe the way the law theorizes consent,
autonomy, and notions of the self. The role of law is to impose axiomatic
parameters upon the sexuality of its citizens; this is a puny objective. Public
practice traverses a precarious and often hazy boundary between the permissible
and the forbidden, the public and the private. The expectations of legal
interpretation by the state and judiciary are not predictable and it is
ambitious to think traditional ideals of sexual practice will not affect court
rulings. In the Spanner Case the courts had an opportunity to create new law as
the appellants hoped, potentially recognizing the obsolescence of a legal Act
from 1861. The Sweet Productions case recognized the obscenity laws flowing
form the Butler decision and while not creating new law per se, the court
accepted testimony in an expanded notion of normal sexual practice. Sexuality
is defined through both policy and practice, in comparing Spanner and Sweet
Productions we realize how malleable these powers can be.
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