The prohibition of private

Discuss the suitability of the law to deal with the issues surrounding the prohibition of 'private' "The present state of the law on sexual offenses reveals anomalies which demonstrate that the policy factors have not been fully thought through and rationally applied. " (Hughes, 1962: p. 685). 1 Three decades later, little has changed. We are still questioning the ability of the law to deal with offenses and practices of a sexual nature.

In order to answer the above question, I will firstly leave aside the question of how privacy should be defined, and for the sake of simplicity, take it to define what goes on in the context of one's own home. Included under the heading of sexual practices prohibited by law are a wide variety of offenses, including incest, sexual practices involving minors, acts of anal intercourse between heterosexual partners, and sadomasochism (hereafter SM).

I will be attempting, in the following few pages, to explore the reactions of the law to SM, and in particular to the Operation Spanner proceedings, where the law failed to understand the essence of SM, and in doing so, proved itself wholly incapable of maintaining a face of justice. After outlining the events of Operation Spanner, I will examine the major points thrown up during the trials and appeals, and then follow by examining the strengths and weaknesses of these arguments against the acceptability of SM.

I will be arguing that the Spanner prosecutions show the laws inadequacy to deal with these issues. OPERATION SPANNER "The Spanner judgement may not be the most absurd in the annals of British law, but it will take a lot to beat it… " (Thompson, 1994: p. 234)2. Operation Spanner began when police in Bolton 'stumbled upon' video tapes of a number of men involved in SM activities. Believing at first that these were 'snuff movies' the police mounted a i?? 500,000 operation based on the digging up of various gardens in the area to search for the bodies of those that they believed had been killed.

Upon realising that they had made a mistake, and merely discovered a SM ring, the police felt that they had placed themselves in a position where they had to press some sort of charges to make themselves look slightly less ridiculous. The result of this, then was that twenty six people were "cautioned for the offence of aiding and abetting assaults upon themselves" (Stanley, 1993: p. 214)3; 15 were tried under Sections 20 and 47 of the Offenses Against the Person Act 1961 – "the infliction of actual bodily harm and wounds".

Judge Rant ruled that consent was no defence to the charge of assault, and as a result the men were formally convicted on 19th December 19904. This decision was upheld at a Court of Appeal5, and in March 1993 this was confirmed by a 3:2 vote by the Law Lords6. The considerations that convicted these men were, in the main, based on a totally distorted view of SM. Consent was disregarded as SM was declared to be outside of the public interest, unregulated, and a matter of violence, rather than sexual desire. R. V. BROWN "It was SM sex which was on trial, rather than the defendants, and nothing but a guilty verdict would do.

" (Thompson: p. 4). The starting point for discussion of the court's decision in R. v. Brown is the question of consent. The defendants had no choice but to plead guilty to the charges of assault levelled against them, after the trial judge ruled that there was no place for the defence of consent in cases of SM such as this. This decision has some roots in R. v. Donovan7, a case regarding the caning in a garage of a teenage girl who had consented to this being carried out by the defendant, to which the judge directed the jury to reject the concept of consent as defence as being unacceptable.

Judge Rant's decision to reject consent as a reasonable concept was upheld by Lord Lane in the Court of Appeal, who stated that in, "… certain circumstances… the law does not permit a defendant to rely, so to speak, on the victim's consent. " (CAR: 498 E) There are several reasons given during this case that attempt to justify why it is that the defence of individual consent is not enough, in the eyes of the law, to allow involvement in SM relationships.

The first of these reasons came from The Attorney-General's Reference (N0. 6 of 1980), when Lord Lane stated that it was,"… not in the public interest that people should try to cause, or should cause, each other bodily harm for no good reason… " (719). However, Lord Lane, nor anyone else during R. v. Brown ever went as far as to adequately justify why "the satisfying of sado-masochistic libido does not come within the category of good reason", while boxing and other contact sports "are granted automatic immunity form prosecution" (Thompson: p. 185). This I will discuss in more detail later in the essay.

The idea of public interest can, although this was not explicitly stated in R.v. Brown, be traced back to older ideas of the body being the property of the King, and being needed in good health in case necessary for fighting in wars to protect the King. These ideas are obviously archaic now, and could not (or should not) be taken seriously, but nevertheless, there is some sense in saying, as L. H. Leigh does, "… that a person should not be allowed to put himself in a situation where he becomes a burden to the state, or to endure harm such that he becomes a burden to others such as his family. " (Leigh, 1976: p. 138)8.

Although this point raises important questions as to the regulation of SM violence which need to be considered later, I will first explain how the court during R. v. Brown misunderstood (although some commentators, in fact, would say deliberately misrepresented), the sexual, as opposed to the violent, nature of SM. "Lord Templeman was typical of the majority in categorising sadomasochism as essentially violent rather than sexual, and Lord Lowry was keen to stress that any sexual desire involved was merely 'perverted and depraved' – in effect, could be discounted. " (Bamforth, 1994: p. 662)9.

By misinterpreting the nature of SM practices in this way, the courts found it easier to place SM in a category of 'violence' which they saw it as their duty to protect the public from. It is worrying to find that Lord Templeman's views on SM in the 1990s seem to be closely linked in prejudice and ignorance to ideas from last century, by writer such as Richard von Krafft-Ebing, who saw sadism simply as a wish to use violence against others in order to gain sexual pleasure, and masochism merely as a desire to be treated violently for the same reasons, and dismissed both as sexual psychopathy10.

Lord Templeton portrayed SM in his statement during the final Appeal in the House of Lords, as an uncivilised 'cult of violence' that ought to be stamped out. Only by never actually acknowledging the sexual context of the alleged 'offenses', did it become almost logical for the Law Lords to uphold the ridiculous decisions that had been previously made during R. v. Brown.

Another important feature of the reasoning used to justify the decisions taken during R. v. Brown, is that throughout the proceedings, SM was depicted as a practice in which the violence is likely to escalate, and where,"… participants have no way of foretelling the degree of bodily harm which will result from their encounters. " (Edwards, 1993: p. 407)11. Although the courts' attempts to show SM as "unruly contagious violence" (Moran, 1995; p. 19)12 are portraying a side of SM rings that, if it does exist at all, is very rarely seen, this is a common fallacy of belief within law and by commentators on the law.

For example, Leigh asked in 1976, when attempting to define a framework of rules to place around the practice of SM, "…how is one to deal with the case where there is consent to the inception of sadomasochistic activities, but not necessarily to the type or degree of harm which may actually be inflicted? " (Leigh: p. 141). As we can see then, the proceedings during R. v. Brown, seem to have been based wholly around a group of assumptions as to the nature of SM, which was thought to rule out the defence of consent. However, I will now attempt to show how quickly the above arguments become meaningless in the light of rational discussion of each point.