Gary McLachlan LLB, LLM
Ph.D Student, Exeter University
Abstract
In this paper I use the political theories of Hannah Arendt,
as well as critical legal theory which argues against assumptions based in
liberal theory[1] to
re-evaluate sexual offences (BDSM)[2] and
touch on the principles which regulate speech, outside of the dialogue on
'freedom of expression' as a human right.
Firstly I set out a series of legal tests which arise from
consideration of the cases and theories, and test them against fact, theory and
case law to determine the concepts of ethics, motive, consent and capacity
within the criminal justice system, as well as examining the existence of
consequences. Consequences are included since that allows the determination of
answers that would fit within the framework of restorative justice.[3]
The argument is driven from an Arendtian perspective, but with the inclusion of elements of dignity discourse in equality law so that the focus of the law includes values of self-worth and self-respect both for the victim and the perpetrator. Since the offences are constructed from the actions of those taking part in BDSM sexual encounters, the victim here is normally also taken as a perpetrator. Since it is an Arendtian perspective I have assumed that no legal solution is possible until a political solution is created; that law and politics exist to serve different ends.
I would like to thank Chris Ashford[4] and Matthew Burton[5] for their thoughts and comments on an earlier draft of this work; any errors that remain are entirely my own responsibility.
Theoretical Introduction
The political theory of Hannah Arendt[6] is not easily analysed in the setting of a single paper, but what it does give is a basis for concepts of individuality, plurality[7] and common understandings involving belief and responsibility,[8] based in the concept of persons as beings who form social and political structures that exist because we live in a world of appearances.[9]
To Arendt, no particular theorist was wrong in everything they said; but the important factor to consider is what assumptions they have made that lead to either the questions they asked being the wrong questions; or the answer given as being the wrong answer. This dealing with assumptions frames the theoretical evaluations given below, and should answer the question of ‘why’ these theories are examined here, rather than any other.
I also considered the reasoning of harm as excluding consent to harm; this comes from Janice Richardson’s appraisal of Jean Hampton’s feminist contractarianism[10] that would allow us to prevent harm to persons who have a poor opinion of their own self-worth. This gives us a more nuanced picture of the individual victim, rather than accepting the idea of ‘greater harm’ as the only perspective by which law can operate; while being aware that this feminist perspective does also contain critical flaws for our purposes since we are examining same-sex relationships where the social norms assumed by certain feminist positions might not apply.
Since the debate in these areas of law could also be framed within concepts of equality, some consideration has been given to the thoughts of Lucy Vickers[11] on ‘formal or symmetrical’[12] equality and how the expression of that; through the rule of law, can be distortive or lead to bad decisions being equally applied to all; or find it difficult to determine the similarity in cases to apply the rule of law. Vickers strongly sets out the ‘dignity’ concept of equality[13] which leads to deliberative levelling up[14], rather than levelling down, and which includes concepts of self-worth and self-respect.[15]
Aggregating this theory allows us to articulate the legal tests based on self-worth and self-respect, which are more subtle than the tests which have been determined in common law over the course of several centuries.
Five Tests for Law
There are five elements to test against the outcomes of existing law under consideration. While these tests might not be expandable across the entirety of criminal law (in particular homicide), they act here to guide the formation of legal norms in the areas of sexual behaviour and public statements about it:
- Morality and Ethics can be held irrelevant to the content of a law, except where;
- consent can be held as invalid due to the age or mental incapacity of one party,
- there is an abuse of trust, or
- witnesses are actually present who do not consent to, or are offended by, the act taking place,
- Motivation by itself is not a true measure of harm,
- Consequences by themselves are not a true measure of harm,
- We must measure any consent given both objectively and subjectively to determine an outcome which upholds the rule of law without setting bad precedent,
- That an absurdity in law based on a flawed assumption must be removed.
- Morality and Ethics
Joseph Fletcher[16]
stated 50 years ago, that there were two reasons why older sexual offences
remain in statute law and are resistant to change. The first is that
legislators will not remove or even advocate the removal of these laws for
‘fear of appearing indifferent to morality’[17]
if they act and that the nature of these offences is clandestine and therefore
not controllable except where violations of the law come to light in some way.[18] The
core of the arguments on morality here accept that judges will use their own
moral reasoning in any case which might be seen to have a moral nature, but
that the law should be consistent in the way it incorporates morality or else
lose authority to speak on these matters.
The ethical analysis[19] reaches the conclusion that enforced morality is no kind of morality at all; an external obligation does not act in the same way as the voluntary inclusion of a code of ethics by an individual; that any element in a law which is assessed for blameworthiness cannot ascribe the same level of blame to a person who merely fails to behave as the law demands, as opposed to the person who matches the moral code given with their own private morals and yet still goes on to commit exactly the same offence.
When giving conclusions on what offences might be possible
in law, Fletcher proposes those which involve sex with persons under the age of
consent;[20]
acts which are a public nuisance; and those where assault, violence, duress or
fraud are involved.
Given that Fletcher was writing at a time when the outlawing of homosexual sex was still considered permissible to both common law and human rights, I intend to qualify his final reason with a more modern stance; assault, violence, duress and fraud here are all familiar categories of the common law, but they appear to be largely an adaptation of the concept of consent, so we could usefully reframe those three categories given into a new statement: the first test as given above.
In terms of witnessing and the nature of appearance, it is to be emphasised that sexual acts in public places where the nature of the witness cannot be controlled (where their consent cannot be pre-determined) may be of a different class of appearance than a private appearance. Certainly where the is a real possibility that a child who cannot consent might witness an act then the regulation of appearance could be necessary.
- Motives and capacity
to act
The problem for the law in interpretation is that the
construction of the individual varies as much between individual theorists as
it does across time; while for certainty law must keep a relatively static view
of what individuality means in terms of the subject of the law, as well as
allowing subjectivity to be tested against objectivity in being able to
question the concept of a ‘reasonable person.’ There are arguments both for and
against the reasonable person test as applied in law; but they will not be
argued here.
In order to add to the concept of the rule of law by the inclusion of dignity in equality, I shall turn to the concepts of self-worth and self-respect as they appear in the theories outlined above and two studies of BDSM[21] to support the contention that consent has been described by law in a way that is too limited.
What it reveals is that self-worth cannot be an entirely internal concept; that the worth of one’s self to any individual must be measured against someone else. That this someone else is usually a plurality of persons known to the subject to form a subjective view[24] of common understanding.
Taking this concept to the matter of behaviour we can see that the more rarefied a certain element of behaviour is, the less likely we as subjects can draw a common understanding on it to judge our self-worth by. To put that another way, the more our behaviour steps outside that which is normal, the less common understanding exists to give us a view of ourselves from a common position. Where our behaviour deviates sharply from the normal or is disapproved of the more likely we are to attempt to hide disclosure, which would also affect our judgment of our own self-worth.
Returning to Fletcher, we can see that the decriminalisation of BSDM would fall under the category of legislators fearing to appear indifferent to morality if they act. This kind of fear appears where all minority or gendered choices are made; for example decriminalisation of drugs, homosexual behaviours and the allowance of abortion.
Regarding certain aspects of BDSM in the light of morality and motive, and comparing them with other criminal acts or human rights abuses, we can break down the elements and set a level for appearances of BDSM that should not be criminal.
The giving of consent in a BDSM relationship invalidates a charge of false imprisonment, since any restraint in appearance is voluntary; this can be distinguished from any invalid form of consent such as duress, which might be present in any kind of trafficking offence.
The sale of persons (chattel slavery) is both a criminal offence and a human rights violation and this is distinguishable from events such as charitable ‘auctions’ of persons designed to set up contractual obligations to discharge the ‘sale’ (as being based in valid consent) from those transactions which are forcible. There are some additional categories of appearance within the identities examined by Weiss where the appearance of chattel slavery is present, but genuine consent is given by participants.
The gift of a person intended to avoid trafficking laws, as opposed to polyamorous arrangements in certain BDSM situations is without genuine consent; where the polyamorous situation again has a valid consent attached to a situation that otherwise might appear to be identical.
The difference lies entirely in the intent of the victim by appearance. The situation is that the victim could say “I intended [a consequence], this consequence has occurred and thus my intention has been actualised through appearance.” Where this condition can be met then no crime can have occurred beyond a moral disapproval of the consent itself; and this is insufficient for law under our tests. This statement also clarifies the earlier exclusion of homicide from these tests, since there could be no ‘I’ that could speak after dying.
Turning to what we might describe in law as a ‘normal’
conscience (one whose intent/action can be described as reasonable) leads us to
examine a facet of the Eichmann case as described by Arendt.[25]
Arendt describes that on the moral question of ‘blameworthiness’ Eichmann’s judges missed the ‘greatest moral and even legal challenge of the whole case.’[26] Eichmann was not morally or legally insane and indeed was normal within the ‘conditions of the Third Reich.’[27] Without drawing out any comparison between the actions involved in Eichmann’s case and the acts involved in BDSM or ‘hate’ expression, it is clear that what a court of law is prepared to accept as normal and how an otherwise rational person sees normal as it compares to themself may be so different that intent alone cannot be recognised as the basis of criminal proceedings.
If I do not share the judgment of another where it relates to my own beliefs or behaviour then no reason will prevail. My own subjective view is the only point which can be judged, and no ‘reasonable person’ test when applied by another would reveal more than the act itself has already revealed by disclosure. There is emerging evidence for this in political matters, where when confronted with material that contradicts belief, someone expressing a particular political opinion will not change their mind, but can in fact become entrenched in their opposition.[28] Undoing this entrenchment is a political (discursive) task, not a legal (prohibitive) one.
In Silencing Accounts, Barker and Langdridge[29] set out the difficulties of including new narrative accounts where a common perception has branded a sexual practice as pathological,[30] or dangerous in some other way.[31] These representations arguably place those engaged in ‘real’[32] BDSM into the realm of criminal and pathological.[33]
The conversational passages,[34] beyond the warning of assuming a common position from subjective accounts, tell of individual experiences of BDSM described by participants as ‘therapeutic and healing.’[35] This is an obvious contradiction of the outside view of those participants as being pathological individuals.
Weiss’s article,[36] which is also cited by Barker and Langdridge, chronicles the sheer variety of identities (the ‘what’ of singular description) now displayed within BDSM.[37] These challenge any singular description, even of heterosexual or homosexual, as being inadequate to fully describe individuals in the same way as they describe themselves. She expands on Judith Butler’s distinction[38] between being and doing to describe BDSM not as an identity but as a series of acts; an appearance, which ties this argument back into Arendt’s world of appearances. In this respect, the disclosure of one’s self through BDSM, while a more private act than a political one is nonetheless a disclosure which reveals the truth of one’s self. I submit on this point that engaging in BDSM sexual activity is an honest disclosure of one’s self.
When examining the Socratic statement of harmony with one’s self,[39] Arendt states that ‘I am identical with myself only for others to whom I appear as one and the same.’[40] She draws out the concept of an internal dialogue between one’s self as being the conscience; given a presence in the world by judgment.[41] Following on from the previous discussion of disclosure by action when taking part in BDSM sex we can see that the concept of self as a participant, given expression through actual participation is not at being at odds with one’s self, where the subject chooses to take part.
The problem with making participants in BDSM pathological is
striking the same kind of externalised view of them as we have for others who
we label as mentally deficient and incapable of making a rational choice about
sexual activity. Here I refer to the work of Lucy Series[42]
and her examination of D Borough Council
v AB[43]
in which she recognises that to properly consent, one must understand the nature of consent. Series recognises
that the liberal option in the 1913 Mental Deficiency Bill was taken; but that
the consequences where that the same Liberal (moral) mistake was made with
regards to mental capacity as was later made with regard to physical injury – a
broader view of harm to Society was taken, rather than a narrow view of harm to
the individual. Education about the mechanics of sex is not required; that is a
biological function and not one that can be rationally regulated by law. What
is required is an individual understanding of what we are consenting to take
part in, and to consider the consequences of that act to ourselves.
It is proper, therefore, to determine that consent is
genuine, but to assume that it cannot be genuine from the act rather than the
actor is the wrong test.
- Consequences
Dan Kahan[44] asks of us that we step out ‘from behind the shadow of John Stuart Mill’[45] by changing the way we frame debate on speech as a criminal act. Mentioning the level of intention in homicide[46] and the doctrine of duress allows Kahan to put forward the argument that the offender’s reasons for carrying out an act are judged when settling a sentence and can mitigate or increase the punishment accordingly. At this point of sentencing the feelings of the victim or the harm done are not measured; the law is using motivation (or intent) to ‘individuate harms and to measure their extent.’[47]
There is an ‘expressive parallel’[48] between intention in hate crime legislation and the rest of criminal law recognised by Kahan, but the main question is whether the moral values expressed are correct when present in this form of law.
When examining the concept of ‘greater harm’[49] Kahan states that the larger part of the problem lies not in empirical evidence but in the concept itself. The deterrence of hate crimes is based in an aversion on the part of legislators for the values expressed by persons engaging in the acts covered by those laws. This comes down to third parties to any act judging the act on their own subjective reaction[50] to it. Unfortunately for this line of reasoning, that was the same argument that Lord Devlin used to argue against the decriminalisation of homosexuality,[51] an argument which is still used to argue in favour of criminalisation of anything with which the individual speaker disagrees. This leaves the law in the position of having to explain why it ‘is right to credit aversions to hate criminals’ values and wrong to credit aversions to same-sex desire.’[52]
Kahan states that while it is possible to ‘dispel the doctrinal obscurity’[53] of the law’s moral core it is a work of some philosophical labour to do so, the point being that obscuring a moral point in law using liberal discourse is wrong because the consequences are that ‘traditionally hierarchical social norms’[54] are entrenched against progressive change. As one example; it is possible to both decriminalise same-sex relationships and still allow a plea of ‘diminished responsibility’ to a murder charge on the grounds of the ‘gay panic’ defence. The law has adapted somewhat to social change but still enforces the older traditional values when judging intent.
The real question for Kahan is whether law should be used to condemn values held by offenders; whether it is more worthy to condemn them[55] for what they think than what they achieved.
Consequences in criminal acts are often phrased in terms of the Millsian position on greater good or greater harm; that society is at danger, rather than specific individuals.
To qualify a consequence however requires some analysis of them; that consequences should be real and not false or interpreted possibilities can be drawn from cases like R v O’Dwyer,[56] where the consequences for any individual victim of the defendants actions would have been immeasurably harmful to any selected victim; and the evidence was that O’Dwyer was a repeat offender.
The issue of consequences was raised in a different way in RAV v City of St Paul,[57]where
it was ruled that an ordinance restricting what was described by Scalia, J as
viewpoint discrimination was not compatible with the First Amendment. This is
described as the Court requiring the State to be neutral[58]
where the actual effect is the same as that given directly above; that the
answer to participatory ‘hate crimes’ lies not within law, but within politics.
Effectively the court is demanding from the State the right to remain neutral
on value judgments about opinion, as opposed to fact displayed through a
genuine appearance in the world in a single act. The recognition that the law itself should remain neutral in
these matters is required in explicit terms; in other words that legislators
should recognise matters which are for political discussion only, and not
legislate them to remove their own discomfort in having to take part in that
discourse.
Especially in regards to freedom of expression, that the problem is political rather than a legal issue is demonstrated by Peter Tatchell[59] in his offer to speak in defence of a person charged with ‘insulting words.’[60] Tatchell’s position is that there were no consequences to speak of beyond the moral supposition that indirect harm is caused to persons belonging to the ‘category’ of those offended by insulting words. Offence alone is not sufficient for criminal charges to be brought; especially where the offending position comes not from an intent to cause harm, but from a genuine belief in the words spoken.
- Consent
Attempting to measure consent can be difficult, so this section assumes that we are dealing with an ordinary person in the sense that has been described above. Namely, a person who chooses to take part in an act.
There is some measure here of common understanding; in that
for consent to have been honestly and validly given, then that which was
described by words and then enacted, has to have been one and the same thing.
All participants have respected their own beliefs and choices and any observer
could agree that what was revealed was essentially the same as that which was
planned.
It was the case of R v
Coney[61]
(1882) which set the long-standing common law position that the ‘consent of the
persons actually engaged [...] does not afford any answer to the criminal
charge of assault.’[62]
This precedent entered the criminal law and was expanded; and eventually held
in R v Brown[63] to also cover offences under ss.20 and
47 of the Offences Against the Person Act 1861 (OAPA), despite the fact that in
R v Wollaston[64] it had been decided that consent was a defence under s.62 of the same
Act, which related to charges brought against a man caught engaging in acts of
oral sex with teenage boys.
In lead judgment in R
v Brown, Lord Templeman cited from R
v Coney, and finished his judgment with ‘[s]ociety is entitled and bound to
protect itself against a cult of violence. Pleasure derived from the infliction
of pain is an evil thing. Cruelty is uncivilised.’ This is clearly a moral
judgment, not a legal one.
When one considers the dissenting opinion of Lord Mustill,
and his use of R v Clarence (1888)
22 QBD 2; a case like Wollaston in
that it dealt with sexual matters, but which (like Brown) did so through the sections on violent conduct, rather than the sexual
offences[65] it
becomes apparent that Lord Mustill could not find an ordinary set of
circumstances under which consent would be a defence.
Returning to Coney, in Brown Lord Lowry admitted that ‘The case contains a number of inconclusive and sometimes conflicting statements’, which is true; what he doesn’t analyse is the language used to describe both the prize fighters and the crowd. Nor does the older case face any questions over the principles espoused by the judges who concurred that all witnesses present at the fight were equally guilty of aiding and abetting the assault, since ‘the injuries given [...] are injurious to the public, both because it is against the public interest [...] and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds.’[66]
What is interesting is that Hawkins, J, does mention the older case law on sexual assaults and contrasts them by stating those cases had no element within them of breaches of the peace.[67] Lord Jauncey in Brown actually cited Hawkins, J from 553 and 554 but ignored this obiter passage at 555, which clarifies the reasoning and the difference in law at that time.
It is clear then, that in Brown, several errors were made in judgment; the inclusion of
subjective morality, which we follow Fletcher to disagree with, and also the
exclusion of the single clearest obiter
statement in a lead case (Coney)
which, if followed, would have possibly resulted in the majority being
overturned in the House of Lords and the decision being reversed.
For these two reasons, the decision given in Brown was the wrong decision; and in
private consensual assaults involving a sexual element consent should in fact
be a full defence to the charge that any element of assault is unlawful.[68]
Analysing the minority comments in Coney to their full extent on the presence of witnesses; those who
are accomplices unless they proffer disagreement on the intention and acts of
those taking place we reach a position where we have to examine collective
responsibility.
The court of first instance and the minority at the Queen’s Bench proposed that witnesses; unless they refute participation in the appearance, become more than observers. This is an uncomfortable position keeping in mind the greater acts of collaboration or collective guilt reflected through history in large-scale events. Indeed, Eichmann’s ‘cog in the wheel’ argument reflects an element of attempting to avoid personal complicity by denying that any other person would have acted in a different way. While the scale of these crimes or events is incomparable; the question of the burden of individual responsibility has moved on from Coney, in that we no longer blame mere observers for staying at the scene of a criminal act.
When looking at moral philosophy, Arendt emphasises that Kant[69] would not have ‘taken for granted’ that people act according to rational judgment, but that people might fall into self-contempt[70] if a choice is made to take part in the appearance without objection.
The main problem that Arendt saw with any position of collective responsibility is that it absolves the truly guilty of any responsibility; ‘where all are guilty, nobody is.’[71] That collective responsibility has arisen as a category is a mistake; law deals with the individual and politics with the concerns of the collective; if there is a situation where a great number of persons could be held by law to be collectively guilty then the answer to the problem lies in politics (discourse) and not in law (regulation).
Witnessing as a category of consent, to have any relevance to a crime in terms of giving a burden of responsibility to the witness should blame only where direct action in the appearance has taken place. This must be more than accidental or peripheral and should be limited only to those participating directly. This stands even where a moral burden should have been accepted by the witness in ordinary terms; a moral burden is not a legal one and should never be treated as such.
- Assumptions
Pierre Schlag[72] reaches the conclusion that the assumptions built in to liberal justification mask the nature of liberal thought. Those involved in the use of liberal justifications cannot see that they are arguing in circles having already assumed too much as the basis for their argument.[73] This conclusion is informed by the position that a myth[74] is set up not to deny certain things, but to purify those elements with a basis in nature.
The most important part of the analysis for our purposes is not his conclusion, but the idea that liberal reason can be used to respect individual freedom and autonomy but nonetheless come to a critical conclusion that is apparently authoritative[75] based on a given concept of ratification.[76] It is this concept of ratification in terms of a social contract which eliminated Jean Hampton or a Rawlsian analysis of the issues in this article. Arendt addresses the ‘social contract’ point and emphasises that Locke’s model of contractarianism;[77] a community of agreements which cover consent and intent as well as dissent, is closest to the actual truth of ratification. Arendt however, also emphasises[78] that to her tacit consent assumed by nationality or other ‘group [...] by birth’[79] is entirely fictitious.
Final thought
Where ‘intent’ is an excuse for the action of others; for example in the appearance in the world of a belief or shared words that fall into the category of ‘insulting words’ then there should be no intent to law; or intent alone is insufficient unless we are falling into the trap of collective responsibility when assigning (as the law does) individual responsibility for a serious harm. This is why motivation by itself cannot be the basis of a law.
The line to draw in terms of genuine consent has been miscast by the ‘greater harm’ argument, the shadow of John Stuart Mill that has obstructed thought in terms of legal development. To emerge in part from this shadow the line cannot be drawn in such a way that it excludes voluntary actions that are not outside the way that someone views themself.
It is proposed also that only where an intent to act and a consequential harm to which the victim did not consent are present all together in an act should it in fact be a criminal act. There may be lower categories of blame which would be actionable as Torts in civil law in their own right in cases of less severity, but the criminal law should exist only to examine individual legal harms and not to attempt answers to moral questions. When ‘blaming’ the law should not attempt to assign automatic blame, but should individuate harms and measure intent against consequences to eliminate the dignified participant so that the true victim also has self-worth and self-respect.
[1] D
M Kahan ‘Two Liberal Fallacies in the
Hate Crimes Debate’ Law and Philosophy, Vol. 20, No. 2, Hate Crime
Legislation (Mar., 2001) pp. 175-193, citations given under footnote 1, at p.
175
[2]
Bondage, Domination and Sadomasochism
[3]
The Barrister Magazine online (2011) <http://www.barristermagazine.com/article-listing/current-issue/criminal-justice:-areas-for-action.html>
accessed on 20 February 2011
[4]
Reader in Law, University of Sunderland
[5]
PhD Candidate, University of Birmingham
[6] H
Arendt ‘The Human Condition’ second edition (University of Chicago Press, 1998)
ISBN 978-0-226-02598-8
[7] H
Arendt ‘The Promise of Politics’ (Schocken Books, Ed. J Kohn, 2005) ISBN
978-0-8052-1213-6, at p. 96; on the ‘absolute difference of all men from one
another’ as individuals who only ever live in common with each other
[8] H
Arendt ‘Responsibility and Judgment’ (Schocken Books, Ed. J Kohn, 2003) ISBN
0-8052-1162-4, at p. 59; on the judgment of collective responsibility in
particular cases of guilt arising from crimes during WWII
[9] Op Cit. fn. 6, in particular the space
of appearance, pp. 207-212
[10] J
Richardson ‘On Not Making Ourselves the
Prey of Others: Jean Hampton’s Feminist Contractarianism’ Feminist Legal
Studies, Issue 15 (2007), pp. 33-55
[11] L
Vickers ‘Promoting Equality or fostering
resentment? The public sector equality duty and religion and belief’ Legal
Studies, Vol. 31, No. 1, March 2001, pp. 135-158
[12] Ibid, at p. 147
[13] Ibid, at p. 148
[14] Ibid, at p. 149
[15] Ibid, at p. 149
[16] J
Fletcher ‘Sex Offences: An Ethical View’
Law and Contemporary Problems, Vol. 25, No. 2, Sex Offenses (Spring, 1960) pp.
244-257
[17] Ibid, at p. 244
[18] Ibid, at p. 245
[19] Ibid, at pp. 251-253
[20] Ibid, at p. 257
[21] M
D Weiss ‘Working at Play: BDSM Sexuality
in the San Francisco Bay Area’ Anthropologica, Vol. 48, No. 2 (2006), pp.
229-245; M Barker and D Langdridge ‘Silencing
Accounts of Silenced Sexualities’ (2009), in: R Ryan-Flood and R Gill
(eds.) ‘Secrecy and Silence in the Research Process: Feminist Reflections’
(Routledge)
[22] Op Cit fn. 6, at pp. 178-180
[23] Ibid, at p. 179
[24] Ibid, at p. 183 on the intangible
subjective in-between
[25] H
Arendt ‘Eichmann in Jerusalem: A Report on the Banality of Evil’ (Penguin
Books, 1994 paperback, 1964 text)
[26] Ibid, at p. 26
[27] Ibid, at p. 26
[28] E
Kaplan and S Mukand ‘The Persistence of
Political Partisanship: Evidence from 9/11’ January 26, 2011 <http://www.econ.umd.edu/~davis/eventpapers/KaplanPersistence.pdf>
accessed on 25 February 2011; and V Swami, T
Chamorro-Premuzic and A Furnham ‘Unanswered
questions: A preliminary investigation of personality and individual difference
predictors of 9/11 conspiracist beliefs’ Applied Cognitive Psychology, 24
(2010) 749–761. Both articles show patterns of entrenched belief emerging
which can be explained by cognitive bias (a pre-existing belief that cannot be
changed).
[29] M
Barker and D Langdridge ‘Silencing
Accounts of Silenced Sexualities’ (2009), in: R Ryan-Flood and R Gill
(eds.) ‘Secrecy and Silence in the Research Process: Feminist Reflections’
(Routledge) <http://oro.open.ac.uk/17270/2/626A29DE.pdf> accessed on 22
February 2011. Page references to the online version.
[30] Ibid, at p. 2
[31] Ibid, at p. 5
[32] Ibid, at p. 6; the use of inverted
commas around ‘real’ to denote those instances of BDSM which are ‘playful’
(i.e. furry handcuffs that do not actually restrain)
[33] Ibid, at p. 6
[34] Ibid, at pp. 7-8; 10-12
[35] Ibid, at p. 7
[36] M
D Weiss ‘Working at Play: BDSM Sexuality
in the San Francisco Bay Area’ Anthropologica, Vol. 48, No. 2 (2006), pp.
229-245
[37] Ibid, at p. 232
[38] Ibid, at p. 233, cited as (1990:25); J
Butler ‘Gender Trouble’ (Routledge, 1990). The concept is ‘that “being” a sex
or gender is fundamentally impossible.’ (Second edition, 2008 reprint), at p.
26
[39] Op Cit, fn. 8, quoted in full at p. 181
[40] Ibid, at p. 184
[41] Ibid, at p. 189, using the aesthetic
judgment of Kant.
[42]
Hessian Pepper Law Blog <http://thesmallplaces.blogspot.com/2011/02/incapacity-sexuality-law.html>
accessed 25 February 2011
[43] D Borough Council v AB [2011] EWHC 101
(COP)
[44] Op Cit. fn. 1
[45] Ibid, at p. 193
[46] Ibid, at p. 177
[47] Ibid, at p.
179. There is an assumption here; by evaluating the side issue of environmental
harm and attitudes towards it Kahan leaves out the idea of sharing damage (i.e.
carbon trading) where an intent to damage is explicit in the person producing
an excess of harmful substances, but can be offset with someone who is not
creating as much harmful substance as the law would allow them. In this
analysis he has assumed that rational beings cannot hold two opposing beliefs
or ideals at one and the same time, and remain rational.
[48] Ibid, at p. 183
[49] Ibid, at p. 184
[50] Ibid, at p. 185
[51] Ibid, at p. 186
[52] Ibid, at p. 186
[53] Ibid, at p. 189
[54] Ibid, at p. 190
[55] Ibid, at p. 193
[56] R v O'Dwyer (1988) 86 Cr. App. R. 313
[57] RAV v City of St Paul, Minnesota 505 US
377 (1992); examined in I Cram ‘Contested Words: Legal Restrictions on Freedom
of Speech in Liberal Democracies’ (Applied Legal Philosophy, Ashgate, 2006)
ISBN 0 7546 2365 3, p. 130 fn. 162
[58] I
Cram ‘Contested Words: Legal Restrictions on Freedom of Speech in Liberal
Democracies’, at p. 131
[59]
Peter Tatchell online <http://www.petertatchell.net/free_speech/cps-drop-case-against-street-preacher.htm>
accessed on 23 February 2011
[60]
Public Order Act 1986, c. 64, s. 5(1)(a)
[61] R
v Coney (1882) 8 QBD 534
[62] Ibid, at p. 534, summary of rulings
[63] R v Brown [1993] 2 All ER 75
[64] R v
Wollaston (1872) 12 Cox C.C. 180
[65]
that were later moved from the OAPA and into the Sexual Offences Act 1956
[66] R
v Coney (1882) 8 QBD 534. Stephen, J, at p. 549
[67] R
v Coney (1882) 8 QBD 534. Hawkins, J, at p. 555
[68]
This assertion is made on absolute grounds while ignoring the possibilities of
charging assaults on the grounds of infection with sexually transmitted
diseases
[69] Op Cit fn. 8, at p. 62
[70] Ibid, at p. 63
[71] Ibid, at p. 147
[72] P
Schlag ‘The Empty Circles of Liberal
Justification’ 96 Michigan Law Review (1997-1998) pp. 1-46
[73] Ibid, at p. 46
[74]
See figures at Ibid, at pp. 18, 35,
43 for examples of constructed myths
[75] Ibid, at p. 7
[76] Ibid, table at p. 18
[77] H
Arendt ‘Crises of the Republic’ (Harvest Books, 1972) ISBN 0-15-623200-6, at p.
87
[78] Ibid, at p. 89
[79] Ibid, at p. 88
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