When the “Spanner” case was dismissed at the European Court of Human Rights this February a great blow was dealt to freedom of expression. It was hoped that the judgement against the Spanner defendants for consensual sado-masochistic activities made here by the repressive courts in the U.K. would be overturned in the more liberal Europe. Instead, alternative sexualities suffered an even greater setback through the European Court’s rejection of sado-masochistic sexuality and the individual’s right to do whatever she or he wants with their body. This ruling highlights what is becoming increasingly true, that the “private” in your “private life” is now just a figure of speech which can be interpreted to suit the acts that are performed within it, even if they are completely consensual and harm no one outside.
For those who are unaware of the Spanner case, it all started in 1987 when the Manchester police, through their large scale “Operation Spanner”, seized a number of videos of sado-masochistic activities involving a large group of gay men. As a consequence of this in 1989, 16 men were charge with (among others things) ‘assault’ and ‘aiding and abetting assault’ for their part in activities spanning ten years. When the Spanner case was heard at the Old Bailey in 1990, the men pleaded that all the acts had been consensual and conducted in private,, with code words used by, who the court termed the ‘victims’ to stop proceedings at any time. Their activities did not result in any infections, permanent injury or the need for medical attention, and was filmed purely for members of the group. The judge ruled that consent of the ‘victims’ was ineligible and sentenced the defendants to varying lengths of imprisonment.
The Operation Spanner defendants appealed to the House of Lords. Unsurprisingly, this bastion of British conservatism, dismissed it – though two of the Law Lords dissented considering the case to be about sexuality and not violence. The comments of the lords who voted against the case exposed their complete lack of understanding of sado-masochistic sexuality. Lord Templeman considered SM to be a dangerous practice which must be restrained by criminal law. For his SM was synonymous with ‘the indulgence of cruelty’ and the ‘degradation of the victims rather than a potentially positive transcendence through social and corporeal barriers to sexual pleasure. Instead he could only see ‘Pleasure derived from the infliction of pain’ as ‘an evil thing’. Regarding it as ‘harmful to society generally’, his “moral” and paternalistic assertion was that society must be protected from it. Lord Jauncy of Tullichettle also feared contamination of straight society form these ‘rather curious activities’. He appeared to feel particularly threatened by the practices being so well organised by the members of the group and yet made the point that others high on drink or drugs might not be so careful! He claimed that ‘potential harm is just as relevant as actual harm’. It could be argued that everything can be potentially harmful, from kidney beans and stairs to being in police custody! If one were to follow this argument through to its logical conclusion most items and practices would have to be banned for the good of a risk free society. It seems that when “morality” enters the equation as it so often does when matters of personal behaviour are discussed, logical reasoning disintegrates… but this was the House of Lords after all!
After this defeat, three of the defendants, Laskey, Jaggard and Brown decided to appeal to the European Court of Human Rights, claiming that the U.K. criminal proceedings had violated Article 8 of the Convention as it “constituted ‘interference by a public authority’ with right to respect for private life”. What the court had to decide was whether this interference was ‘necessary in a democratic society’.
Things looked quite hopeful for the hearing in the light of some recent rulings in the U.K.. In June 1994 the CPS had defined actual bodily harm as ‘minor but not merely superficial cuts that require stitches’. The injuries in the Spanner case were far less serious and yet they had been charged with Actual Bodily Harm. In December 1995 the Law Commission recommended that SM, short of causing serious or permanently disabling injury, should be legal. Also in February 1996 The Court of Appeal overturned the conviction of a husband who branded ‘his initials with a hot knife on his wife’s buttocks with her consent’, concluding that ‘Consensual activity in the privacy of the matrimonial home was not a matter for criminal prosecution’.
Therefore it was a great shock when the court decided that there had been no violation as ‘not every sexual activity carried out behind closed doors necessarily falls within the scope of Article 8’. The fact that there were quite a few people involved, combined with the videoing of proceedings made the court regard their actions as falling outside the notion of ‘private life’. One can deduce that in certain contexts unconventional sexualities existing outside the cosy confines of the ‘matrimonial home’ pose too much of a threat to social order to be tolerated. Yet instead of clarifying their position which seemed to consist of a handful of jumbled judgements, the court opted out be decreeing that it was primarily a matter for the State concerned to determine the ‘tolerable level of harm where the victim consents’. Thus they washed their hands of the whole messy business that it appeared that they could not even begin to comprehend.
They went on to uphold some of the outrageous positions taken in the House of Lords (an unelected body whose opinions should arguably have little power in deciding what is best for a ‘democratic society’) to grant that the ‘National authorities [were] entitled to consider interference “necessary in a democratic society” for the protection of health’ and was ‘entitled to prohibit activities because of their potential danger’. Following the line taken by the Lords, the court then moved from the issue of health to personal morality which one feels has no place in a court of law – law , which as Trevor Jaques stressed in his reply to Judge Pettiti on the case, ‘rests upon the burden of proof’ and not upon ‘ultimately unprovable beliefs’. The court ruled that activities like those of the Spanner case ‘may be banned also on the grounds that they undermine the respect which human beings should confer upon one another’, thus clearly illustrating their ignorance of the core of sado-masochistic relationships where respect is essential. They went on to recommend that governments should seek to ‘regulate, through the operation of the criminal law, activities which involve the infliction of physical harm… whether the activities in question occur in the course of sexual conduct or otherwise’.
I would argue that it is more harmful to prohibit individuals’ expression of sexuality when it is consensual. In doing this, the driving force that is sexuality is channelled into other areas, where it can manifest itself in far more negative ways in human relationships – in depression and frustration which can lead to aggression and unconsensual violence which seems only too evident in society at present. Sexuality has always been persecuted from outside in the West – by the Church and now by the State. However the reassuring thing about all this is that sexuality has always triumphed. Sexuality is too strong a compulsion to be controlled by institutions and legislated into oblivion. Measures like these will only force it further underground where there is even less chance of it being controlled by the State. Throughout the ages people have always done what their sexuality has impelled them to do, and thank fuck, always will.