Spanner In Perspective

The main issue of the original case was whether or not consent should be a defence to an assault charge. Normally, if you use even minor force on someone else against their will you are committing the crime of assault. Until Spanner, SMers had assumed, if they thought about it at all, that what they did couldn't possibly be assault because everyone consented. But the Spanner judge decided that the consent was irrelevant, and treated the defendant's activities as if they were assaults on unwilling victims. The tops were committing assault, and the bottoms were aiding and abetting assaults on themselves. The judge did accept that there were certain circumstances, such as contact sports or tattooing for decorative purposes, where consent would be a defence, but that SM sex was not such a circumstance unless the pain inflicted was transient and trifling. And his decision was upheld through two appeals up to the highest court in the land, The House of Lords.

The judge's decision was particularly important because, unlike many other countries, England and Wales have a system of case law, where an interpretation of the law in one case sets a precedent that must be applied in subsequent similar cases. Not surprisingly, English law has nothing specific to say about SM sex, so the judge was able to make his own decision about how to apply existing laws. English precedents may also be taken into account in Scotland and in some other commonwealth countries like Australia, Canada and New Zealand. Precedents can only be superseded by new legislation, which the government is highly unlikely to introduce. So the Spanner judge was effectively making a new law without any recourse to parliament.

The horrendous prison sentences were significantly reduced at the appeal, but the appeal judge made clear he was only doing this because the defendants did not know what they were doing was criminal. He indicated such considerations would not be made in future cases.

Having exhausted the domestic appeals system, three of the defendants took the case to the European Court of Human Rights in Strasbourg. This court is not, as some people mistakenly believe, a European Union institution, but comes under the Council of Europe, which has a much wider membership including many former Warsaw Pact countries. The court enforces only one piece of legislation, The European Convention on Human Rights. This sets out basic human rights and also defines reasons why in some circumstances states can interfere with them. The court does not retry the case or consider new evidence: its only function is to decide whether or not a state acted within its margin of appreciation to interfere with a certain right.

In this case, the Spanner men complained their right to a private life had been violated, and the government contended it had acted within the powers granted it by the Convention to interfere with this right on grounds of the protection of health of morals. The court accepted unanimously that the government could intervene on health grounds, and said that was good enough reason. It did not decide on the moral issue, but reasserted that states have the right to intervene on these grounds too. So according to the court there had been no breach of the convention.

The judgement has no direct consequence for any other Council of Europe state — SM hasn't just become illegal in Europe! What it might mean, though, is that any state thinking of bringing in a law restricting SM activity may now feel more encouraged to do so. And outside Europe, the judgement may have some knock-on effect on establishment thinking. We do live in rather paranoid and increasingly authoritarian times, and the protection of morality and health is very much on the agenda everywhere. This judgement is only going to add to the repressive intellectual climate.

Meanwhile in Britain the original Spanner ruling still stands, and SMers who are involved in scenes where there is anything more than transient and trifling pain must suppose that what they do would be regarded legally as an assault. However, some developments since the case make the likelihood of mass arrests fairly slim.

• The Crown Prosecution Service (the English state prosecutor) have implemented a new set of guidelines on assault. These define Actual Bodily Harm, the category of assault the Spanner men were charged with, as injury requiring at least stitching. So what the Spanner men did would no longer be ABH but the much less serious category of common assault. Note that these are only guidelines for the police on what the CPS will and will not prosecute under various categories; they are not laws, and could be changed at any time, especially under political pressure.

• A government-sponsored research body, The Law Commission, has produced a report that argues for legislation to make consent to SM sex a defence against assault charges for all but serious or disabling injuries. Many such reports are never implemented and this one stands less of a chance than most, but it does have a bearing on establishment thinking.

• The conviction of a Doncaster man for consensually branding his wife was quashed on appeal last year. The judge at the original trial had been reluctant to convict the man but said he felt obliged to do so because of the Spanner precedent. The Appeal Court went out of their way to overturn the verdict because the couple were in a loving marriage and, in the words of one of the judges,  there was no real torture involved. This is nonetheless the sort of confused and conflicting verdict that defence lawyers could play with at any future SM sex trial.

• The Spanner campaign has created a stronger SM community, better wised up to the ways of the state. The Spanner men confessed to their alleged crimes because they assumed that consent rendered their activities legal. Nowadays people are going to be more careful about what they say -- and without a confession it would be very difficult to make a case stick.

Nonetheless we should stay on guard. If you are playing in Britain, discretion is well-advised. Don't take recognisable photos or videos. Don't keep written records of your activities using real names. Be careful who you discuss your activities with.

And even if there are no more trials, the police can claim the judgement vindicated their belief that anything but the lightest SM sex is illegal, which gives them more muscle in intimidating venues, events and sources of contact. Britain has the strictest censorship in the Western world, and a whole swathe of laws restricting sexual behaviour, as the Sexual Freedom Coalition will make clear this summer when they present their Sexual Freedom Bill demanding the repeal of all of them. We can expect to see Britain's battery of repressive legislation and practises used to up the pressure on the SM community.

In a couple of months, Britain goes to the polls and in all likelihood a new government will be returned. My personal advice is not to think for a moment that things will get better. No matter who gets elected, moral crusades will be the order of the day and now that homosexuals are no longer the acceptable target they used to be, inhabitants of the further sexual fringes may well be in the firing line.