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23 Feb 2015

Consent and Consciousness: Policy Versus Practice in Sadomasochism


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.


              This paper will argue that notions of sexuality are determined through both policy and practice. Like sadomasochism itself, power is manifested in the demarcations of the public and private realms. In R v Brown, the ‘Spanner Case’, the juridical milieu applied public notions of sexuality to private acts. In R v Price, the ‘Sweet Productions’ case, the court accepted private practice in its assessment of sexuality’s impact on the public. This paper will present a brief overview of the political and philosophical ideology of sadomasochism. Then we will present condensed versions of the Spanner Case and Sweet Productions decisions with emphasis on portions particularly relevant to this paper. Finally, we will compare and contrast the policy and practice implications from these court decisions.

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.


PUBLISHED IN ACEDEMIA.EDU    AUTHOR INGRID OLSON 


WEB: www.sinfulandwicked.co.uk MOB: 07426 490 214 TWITTER: @sinfulandwicked

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