English Sexual politics

The Law Commission

The British Law Commision says no to SM discrimination

An official appointed British Law Commission in 1995 came to the conclusion that SM or sadomasochism, short of causing serious or permanently disabling injury, should be no crime between consenting adults. After the 1993 Spanner verdict, Britain has been alone in Europe to criminalize safe, sane and consensual SM sex.

By Svein Skeid

The director of the civil rights group Liberty, John Wadham, welcomes the document, according to The Pink Paper 22. December 1995. – Under the Law Commission’s new proposals, he said, the Spanner men would never have been prosecuted.

The Commission’s document contains the most wideranging and detailed official survey ever conducted into SM activities. It includes evidence from a wide section of legal, medical and public opinion, and a number of women’s organizations stressing the importance of adult consent independant of religious, spiritual, athletic or sexual SM purpose.

Professor of Law, David Feldman, widely cited in academic literature and by international courts, say in the consultation paper paras 10.46, that:

“In his view the interest (whether public or private) in allowing people to express their sexuality, which forms a fundamental part of a person’s personality, is no less important than the interest in allowing people to pursue sports. Sport is fun, but sex for many people is more than fun: it is a form of selfexpression.”

Feminists Against Censorship’s Avedon Carol, (paras 10.51) commented on a Spanner seminar at the ICA on March 10 1994 that “prosecuting consenting SMers was not going to help the victims of real violence” and contrasted the resources spent on prosecuting the Spannermen with the lack of police interest in charging women-batterers.

Criminalisation and false reports on innocent people weakens the credibility of real victims of violence. This is not in the interest of women.

As with other assaults, women also seem to suffer the most violence because of their sexual SM orientation, love or selfexpression. More than one third of leather women have experienced harassment, persecution or physical assault – – much of this executed by other women. Within the women’s community, over half (56%) of the 539 lesbian and bisexual women surveyed experienced discrimination, harassment, or physical assault from other women because of their participation in consensual SM. (The “Jad Keres Report” 1994.). “The NCSF Violence & Discrimination Survey 1998 found that 1/3 of over 1000 leather/fetish/SM persons surveyed suffered violence, discrimination and persecution — losing their job or even their children because of their sexual lifestyle and identity.

Also the experiences of the norwegian SM support group Smia-Oslo show that several of ourfemale members haved tried to commit suicide because of bashing, harassment and discrimination from other lesbians and the society.

The 1995 Law Commission evaluated the infliction of consensual pain and roleplay in religion, sport and sado-masochism, and found no reason to legally discriminate people because of their sexual SM orientation. They will apply the same age limit to activities involving the infliction of pain-creating injury for the purposes of religious mortification or for spiritual motives as to similar activities for the purposes of sexual gratification.

According to the Times, the UK government is considering rewriting the 130-year-old “offences against the person” laws which were used to prosecute the Spanner SMers, based on The Law Commission’s recommendations.

SM Gays in Pink Paper welcomed the report, but said they would continue to press for the proposed age of consent to be lowered to 16.

The Law Commission report notes that SM sex acts are “engaged in by large numbers of people, many of whom are utterly respectable,” and that there are many more heterosexual people quietly having SM sex in the suburbs than there are gay leather men in London clubs.” They include a considerable number of politicians, lawyers and judges.

The Law Commission is an official Government body that produces among other things Consultation Papers about particularly difficult or unclear areas of the Law. The Law Commission reports are intended to clarify the situation and are used by Politicians to help them draw up future Parliamentary Bills in the particular area of concern. When the Law is clarified by a change of Law it is usually in line with the recommendations of The Law Commission Consultation Papers. It therefore follows that The Law Commission recommendations are most important in the formulation of English Criminal Law.