Sado-Masochism and the Law

Matthew Weait, Keele University

Footnotes

1 For other contexts in which the law has been deployed against those involved in S/M see, for example, Wright (2006) (on discrimination against S/M identified women) and

2 It was formerly the case in English law that a criminal offence was committed where more than two men engaged in homosexual activity (though no such prohibition existed with respect to women). The European Court of Human Rights held, in Adt v UK (2001) 31 E.H.R.R. 33, that criminalizing gay group sex per se (on a charge of the then offence of gross indecency) was a violation of Article 8 of the European Convention on Human Rights (the right to respect for private life).

3 “A house does not acquire the legal character of disorderliness because disorder occurs on one occasion. The essence of the mischief is the continuity which exists where the use of premises for a given unlawful purpose becomes notorious.” (Moores v D.P.P. Times, April 25, 1991 (QBD); see further Comment (1992).

4 Indecency is a notoriously elusive term in English law, and where a case turns on its meaning in a particular context it is treated as a question of fact for the jury to determine applying their common sense and understanding of the term.

5 The Obscene Publications Act 1959 (see below, note 5) applies only to the publication of obscene material (which may be visual, written, or audio in nature). In contrast, the Protection of Children Act 1978 applies to the taking, making, possession and distribution of indecent photographs and pseudo-photographs of children. Proving obscenity is far harder than merely having to establish indecency.

6 An article is obscene for the purposes of the Obscene Publications Act 1959 “if its effect … is … such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”, and a person publishes an obscene article who “distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or … in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data” (as amended by the Criminal Justice and Public Order Act 1994, Sch. 9, para. 3). See, further, Edwards (1998).

7 Section 85 of the Postal Services Act 2000 provides, inter alia: “(3) A person commits an offence if he sends by post a postal packet which encloses - (a) any indecent or obscene print, painting, photograph, lithograph, engraving, cinematograph film or other record of a picture or pictures, book, card or written communication, or (b) any other indecent or obscene article (whether or not of a similar kind to those mentioned in paragraph (a)). (4) A person commits an offence if he sends by post a postal packet which has on the packet, or on the cover of the packet, any words, marks or designs which are of an indecent or obscene character”. The maximum penalty on indictment for these offences is a fine and 12 months imprisonment. The meaning of indecency under the Postal Services Act is wider than that under the Obscene Publications Act 1959 (where there is a requirement that the material have a tendency to “deprave and corrupt”) and is a matter solely for the jury to determine. See further, Parpworth (2006).

8 R v Brown [1994] 1 AC 212.

9 People v Samuels 58 Cal. Rptr. 439 (1967) (California Court of Appeal). For comment see Harvard Law Review (1968).

10 http://webarchive.nationalarchives.gov.uk/+/http:/www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/Gvt-response-extreme-porn2.pdf?view=Binary

11 The proposed definition of “pornographic” is material produced solely or primarily for the purpose of sexual arousal.

12 There

13 DPP v Smith [1961] AC 290.

14 JJC (A Minor) v Eisenhower [1983] 3 All ER 230.

15 R v Mowatt [1968] 1 QB 421.

16 I say “or would be” because there are numerous contexts in which the judicial acceptance of the legitimacy of consent to significant injury means that is unikely, if not inconceivable, that the point would fall to be tested in court (e.g. consent to necessary surgery by a qualified doctor).

17 [1994] 1 AC 212 (HL).

18 R v Brown (1992) 94 Cr App R 302, at 305 to 307 (CA).

19 R v Brown [1994] 1 AC 212 at 235.

20 Ibid at 236.

21 Ibid at 237.

22 In rape, for example, the absence of consent is definitional (i.e. contained in the very definition of the offence itself – s 1, Sexual Offences Act 2003). This means that although questions might arise as to what counts as consent, there could be no conviction where a jury determined that there was in fact consent. The same principle applies in the context of indecent assault, where the presence of consent to a touching that would otherwise be considered indecent negates any liability. The central issue in R v Brown, in contrast, was the availability of the defence of consent in the context of offences such as those in the Offences Against the Person Act 1861 (a matter for the appellate courts), where the absence of consent is not definitional and falls to be decided on the basis of public policy.

23 See, for example, R v Welch (1995) 101 CCC (3d) 216, 43 CR (4th) 22g (OCA) (Canada); People v Jovanovic 263 AD 2d 182, 700 NYS 2d 156

24 It is potentially oppressive because to deny the defence of consent on the basis that S/M constitutes nothing other than violence would make it possible for “bottoms” who had in fact consented to injury to seek prosecutions if the relationship were to end, or for other reasons.

25 See, for a more comprehensive discussion of this position, see Hanna (2001).

26 East, Pleas of the Crown (1803) vol. 1, Chap. v, paragraphs 41 and 42, pages 268-270.

27 The position adopted by the courts is somewhat different where there is a significant risk of serious or life-threatening injury, even where this takes place within a heterosexual relationship (see R v Emmett (unreported, 18th June 1999). See also, in the context of indecent assault, R v Boyea (1992) 156 JP 505).

28 It is also worth noting that for a social institution which is grounded in the importance of clear verbal communication, the existence of safe words (where “no” means “yes”, but “blue” may mean “stop”), establishes S/M as a direct assault on the logic upon which the law relies.

29 I explore these ideas more fully elsewhere (Weait (1996)).

30 See also Weait (2005).

31 O’Donovan’s analysis is hugely influential, but has been criticized by those who argue that it is inconsistent with the fact that law sustains the private domain via its indirect regulation (see, e.g., Graycar (1987-88); Olsen (1985)). See also Boyd (1997).

32 UK (1997) 24 EHRR 39.

33 This is most graphically apparent in R. v. Brentwood Borough Council, ex. p. Peck [1997] The Times 18 December, where it was held that there was no right to privacy where a local authority released video footage of the applicant’s suicide attempt. The law does recognise privacy in some contexts (e.g. the conditions for applying for search warrants under s. 15 of the Police and Criminal Evidence Act 1984, and the right to access personal information held by public bodies under the Freedom of Information Act 2000).

34 On this point see the Opinion provided by counsel for the Spanner Trust: http://www.spannertrust.org/documents/opinion.pdf

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