The Law Commission

 

10.35
The third group, SM Gays, was founded 13 years ago as a social and support group for gay men interested in consensual SM sex at a time when this was very much frowned upon, and when there was very little available in the way of positive images, safe places to meet, or education and advice on safe SM techniques. Between 150 and 200 gay men attend its monthly meetings in Central London,” and the group has published a number of Resource Books, and literature on SM health and safety.

10.36
They told us that human sexuality does not fall easily into compartments. It is a spectrum along which people travel from day to day or from one relationship or sexual encounter to another. For some people, role playing games of domination and submission may be the key to the success of their relationships. For others, physical control by holding their partner down or mild spanking may be common elements of their sexual activities. Yet none of these people would consider themselves to be sadomasochists, and their activities may or may not cause injury.

10.37
The evidence of this group touched on the physical injuries that may be sustained during SM activities. They said that such injuries usually take the form of marks, bruises, weals and sometimes cuts. They are very rarely serious enough to need medical attention, and they nearly always disappear after a few hours, or at most a couple of days. These injuries are caused by the use of whips, canes and other instruments of corporal punishment, by sharp implements such as abrasive materials or steak needles, or by hands or teeth. They occasionally take the form of superficial bums from hot candle wax. Some SM activities cause a breaking of the skin. This can be accidental or incidental to the activity (since whipping or branding may break the skin) or it may be intentional (as in temporary piercing, scarification or branding). Another way an accident may happen is if in a suspension scene a rope breaks and the suspended person falls and breaks a leg. In such a case the police may prosecute if they can prove recklessness.

10.38
The importance of proper attention to safety and the need for dissemination of advice about safety measures was stressed not only by this group but by other respondents. The evidence we received was along these lines:

If the current law was enforced strictly, it would hamper educational and campaign work on SM issues. While I and my friends Jointly enjoy sadomasochism we are not blind to the need for skill and consideration. We run workshops in safer sex (avoiding HIV transmission), negotiation, CP techniques, physiology and safe bondage etc. Such workshops help to educate people to avoid accidents. Are we aiding and abetting assaults if we discuss safe methods of causing pain in consensual sex play?

The gay community has been at the forefront of the movement to build a responsible and safe SM culture since the founding of SM Gays over ten years ago. All the major SM organisations have a commitment to promoting “safe, sane and consensual” sadomasochism.

The vast majority of law abiding and conscientious sadomasochists keep their activities secret. Many sadomasochists were and are isolated and unhappy, fearing to admit the nature of their sexual desires lest they be branded as a dangerous pervert. Most SM sex undoubtedly takes place secretly between married couples who have complementary sexual fantasies, or between professional dominant women and their clients. This causes some very serious problems, since a climate of secrecy is not conductive to the dissemination of sound information regarding safety.

I am the co-author of a booklet which is designed to promote safe practice in SM sex. If we are forced to carry on our activities furtively, underground, illegally, we will be unable to keep people informed about “Tops” who are not safe. Sadomasochists who will be unable to meet openly and obtain recommendations about responsible partners will be at much greater risk from such atypical violence.

Many SM activities are quite safe if carried out properly but dangerous if practitioners do not know what they are doing … Some activities are simply not safe to do alone. At least one person has died as a direct result of the “Brown” verdict. He was into breath restriction (cf Milligan). Following “Brown” he feared involving his partner in his activities and reverted to doing them alone. He was found dead. The current law endangers people rather than protects them. The best protection is sound safety information. We wish to have safe, sane and consensual sadomasochistic sex, and to be able to prevent accidents and minimise risks by disseminating accurate information regarding safe practices.

I am purely a masochist … I have researched my psychological preference in many academic text books, and I keep on finding myself misrepresented. In effect one has to join a secret society to practise such activities and only the most adventurous researcher can obtain genuine information. Being an intellectual chap I can understand my own psychology. Other people are not so lucky. When such practices are illegal they get driven underground. Then everybody is deprived of information, including the practitioners themselves. Nobody knows what goes on and exploitative characters can get away with conduct which everybody regards as unacceptable.

To the extent that prosecution by the state forces sadomasochists underground it weakens the rules by which sadomasochists regulate their own activities and prevents the younger ones learning what is safe and appropriate from older sadomasochists.

For private sadomasochists, Spanner has had a very negative effect. There is a clamp-down on sadomasochism. Sadomasochists have no ready access to safe sex literature or safe practice literature. It has also discouraged people from coming to our clubs and social spaces – the network of safety advice.

I am involved in running two different support organisations for practitioners and supporters of SM sex. I would like to make three points about the effect of the new(ish) legal issues:

(1) It has made SM sex less safe – people are afraid to ask for information on safe SM sex (both in HIV transmission terms and safety of cuts/bruises). They are also too scared to visit a GP or hospital if they have had problems.

(2) People do not understand the law and are therefore very scared (an increasing problem!). I dare you to define “transient and trifling”. A link between suppressing sexual desires and dysfunctional behaviour which is very much against the public interest is very well documented, so that scaring people away from safe, consensual activities towards this cannot be a good step.

(3) This case has caused prejudice and enforced existing prejudice. A law like this gives an open ticket for harassing our community. This includes cheap journalists and some members of the police.

10.39
Another point that was made by a number of respondents was that the effect of the publicity given to the “Brown” case was that people who practised SM sex were very frightened about giving evidence to the police when they were investigating serious crime.They were afraid that this might lead to their own prosecution for taking part in illegal activities. Formally the organisations representing the police opposed any alteration in the present state of the law: they were particularly concerned about the risks to vulnerable people which would be posed by any liberalisation of the law on SM sex. We received evidence, however, that in practice prosecutions are very rare. A practising solicitor of 12 years standing who had considerable experience as a criminal advocate told us:

The tenor of “Brown” fits uneasily with contemporary opinion. Wolfenden adequately set out the arguments, but prosecution policy indicates that society has to a large degree come to accept that the law should stay out of the bedroom. It would be inconceivable to imagine “Knuller” being decided in the same way today, let alone a prosecution being undertaken. An unofficial age of consent for gay men has operated for many years, and prosecutions have been rare where both parties are over 16. Similarly the laws prohibiting anal intercourse by heterosexuals and sex between men in private where a third party is present, are in practice dead letters.

Following “Brown” a number of police forces were canvassed, and in private indicated that enforcement of the decision was a “low priority”. Sadomasochistic advertising, albeit coded, clubs and publications have continued to flourish. From discussion with SM groups, it appears that there has been no change in behaviour. The law in this area is akin to the prohibition on homosexual acts before 1967: widely disregarded and regarded as grossly unjust and intrusive.

10.40
However this may be, the fear of prosecution and harassment undoubtedly exists. This was reflected in evidence along the following lines:

Last year the gay community was very loath to give the police any advice at all in the serial murder case. It was only when information was given via the GALOP group that the heterosexual murderer was identified. The Head of Community Affairs made it very clear at New Scotland Yard that those with the responsibility to enforce the law were very unhappy at the position in which they had been placed.

Illegality drives a wedge between the minority community and the police making people less willing to give information regarding the genuinely dangerous in case they are prosecuted themselves.

Sadomasochists have become very distrustful of the police, laying themselves open to blackmail and worse. Consider the Colin Ireland case. The gay community and the sadomasochist community would not come forward to the police because of fear of incriminating themselves as sadomasochists. The lack of freely available safety advice has led to several deaths. It is the general public, not the sadomasochist community that is the target of current legislation.

Illegality could cause grudge informing to the police. This has already happened. A man who was not invited to a party told the police who raided a house in great numbers.

Police investigating the serial killer of gay men associated with the sadomasochist social scene found difficulties. Detective Inspector Finnigan led the inquiry into the murder of Peter Walker in 1993. He could give no undertaking that innocent gay men helping police in their inquiries would not be referred to the Obscene Publications Squad. He said (Pink Paper 4.4.93): “We are irritated by this; it is going to be an obstacle to our inquiries”.

10.41

The final point made by SM Gays in their evidence was that the wide diversity of SM activities which might cause any degree of injury posed problems for those who might attempt a legal definition. No list of such activities would ever be complete, and no definition which concentrated on the physical activities separated from issues of consent and the personal power dynamics of domination and submission could be guaranteed to separate a sexual SM scene from a real assault.