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Great Britain: Court of Appeal upholds illegality of certain sexual practices between consenting adults

JON FAINE: But first to Britain, for the sadomasochists where lawyers are still considering one of the final rulings of the retired Lord Chief Justice, Lord Lane. In a decision which may have some very tricky legal implications, Lord Lane upheld convictions of five men who'd been ordered gaoled for unusual sexual activities between them - all consenting, all thinking that what they were doing to each other was therefore legal. Jane Basden reports.

JANE BASDEN: Looking from the outside, you'd think the right to enjoy pain and injury would be indelibly written in the British constitution, if they had one. Look no further than the bruised and battered bodies on the playing fields of Eton, or the working-class lads who pound their way to the chance of fame and glory over ten rounds with the world's best. Take a walk down the look-alike high streets of all the look-alike towns in the country, and wonder at the multitudes of the tattooed and the love bitten. Surely, the British covet their right to be hurt. But now, that right is standing on ever more shaky ground. The days of the love biters and the boxers could well be numbered, and all thanks to the conviction of a group of sadomasochistic men in one of the more bizarre trials of recent times.

DANNY SIMPSON: They were charged and convicted of offences under the Offences Against the Person Act, 1861, of assault, and the same ordinary charges of assault that people are charged with when they beat one another up in pubs, and that sort of thing.

JANE BASDEN: Danny Simpson from the firm, John Howle and Co.

DANNY SIMPSON: The client was charged with assaulting people, where the particular allegation was that he had done what's referred to euphemistically as 'body piercings', but were mainly penis piercings to enable earrings to be put in the penis and clitoral piercings. The judge in the old Bailey actually ruled, after a lot of argument, that it was lawful for people to have penis piercings and to have clitoral piercings, but that it was only lawful provided they obtained no pleasure from the actual act of piercing. He said that it was lawful if it was for decorative purposes, but that if either the person carrying out the piercing or the person who was being pierced was sexually aroused as a result of the piercing, that it became unlawful.

JANE BASDEN: The men were rounded up after a three million pound police inquiry called 'Operation Spanner'. The S and M sex ring had been stumbled upon quite by accident after a police raid uncovered a private video portraying many of the sadomasochistic acts. Danny Simpson acted for one of the defendants in the original Old Bailey trial. The nub of the defence case rested on consent. All 26 of the so-called 'victims' in the case had freely given their consent to be hurt. It was an argument that Judge James Rant, at the Old Bailey, dismissed out of hand. He ruled that the freedom of the individual does not extend to acts of cruelty and perverted gratification, and he topped this ruling off by taking the unprecedented step of formally cautioning the 26 men for aiding and abetting assaults upon themselves.

Danny Simpson argues that by criminalising these acts, Judge Rant and the appeal court judges, who subsequently upheld the verdict, have had to draw some extremely creative legal distinctions.

DANNY SIMPSON: What the Court of Appeal ruled was that consent was not a defence where actual bodily harm had been inflicted and where the reason for the consent was sexual gratification; in other words, they were saying it's not a defence to consent to this sort of harm if the reason you are consenting to it is for sexual gratification. So they were trying to draw it a tortuous distinction between where people consented to actual bodily harm being done to them for sexual gratification, as in this case, and where people consented to the actual bodily harm for money. The exceptions, in other words, those cases where they've said it is lawful to consent to bodily harm and, therefore, the person who inflicts it doesn't commit an offence, are what judges have referred to as the 'manly diversions', and the manly diversions are such things as boxing and fencing.

EXTRACT: Dear Sir, the Court of Appeal decision in the sadomasochist case shows a level of intolerance which is unacceptable in a democratic society. I find sadomasochistic practices deeply offensive but believe that these sad proceedings will increase homophobia in Britain. Middle-aged men, one a former parishioner, have been criminalised for consenting in private to such activities. Tony Crowe, The Rectory, London.

EXTRACT: Dear Sir, I am neither male, gay, nor am I a sadomasochistic, but I still find myself outraged by the appeal court ruling. If consenting males are committing a criminal offence by inflicting pain on one another in private and for no money, then what makes boxing legal? - the publicity or the money? If consent is irrelevant, then what is the difference between sex and rape? Is the law an ass or does it simply want spanking? Yours sincerely, Sarah Thursdon, London, SE8.

EXTRACT: Like Sarah Thursdon, I am not male or gay, but unlike her, I've been involved in a happy and fulfilling sadomasochistic partnership for the last eight years. Thanks to Ms Thursdon's excellent suggestion, it appears that we can avoid society's disapproval expressed in the form of a prison sentence, by simply putting on boxing gloves and charging the public to watch us having fun. We will thereby have generated an additional source of income for ourselves and added exhibitionism to our list of perverted pleasures. Yours sincerely, Ms J. Child, Warder Street, London W1.

JANE BASDEN: But on the more serious side, the issue of consent is a real one. Whilst the verdict was condemned by liberal and radical groups around the country, some people argued that the question of consent hadn't been looked at closely enough. Mike McColgin(?) is a criminal lawyer and member of Liberty, the British civil liberties organisation. He agrees with Liberty's criticism of judicial interference in this case, but says he's uneasy about such a liberal view of consent.

MIKE McCOLGIN: Let's assume, for instance, that there'd been a ring, a heterosexual ring of people involved in sadomasochistic practices. Evidence was found of practices being done where, say, women were injured. The women then afterwards told investigating police officers that the injuries inflicted on them had not any long-lasting effects, had not left any permanent scars, and were done with their consent. I think it's highly unlikely that people in the progressive movement in Britain would have been taken too kindly to the notion that those were acts done with the full consent of the women. I think the assumption would have been, and I think it would have been correct to assume, that those acts were done as a result of some kind of unequal power relationship between the men and the women involved. Now simply because the practices go on between members of the same sex, I don't think we can quite ignore the question of whether unequal relations exist, where there's a power imbalance, and that applies both to men and women, and it's that element of consent which worries me. To what extent can we be sure in these things that consent is full and properly given?

JANE BASDEN: Is it really up to the State or the judiciary to distinguish between power relationships which are often as much academic as actual?

MIKE McCOLGIN: Well, I'm not sure that power .. if there is an imbalance of power, then it's hardly academics; it's a real difference between the people; it's a real .. one's got the other person under their thumb, and in this case, possibly, even literally, and it seems to me that's very disturbing. One has to ask a serious question of the person who actually inflicts the damage, and I'm not sure that the consent of one person entitles another a person to inflict injuries on them.

JANE BASDEN: Perhaps in a society where consent is an adult prerogative, it's the level of harm being inflicted and not the consent that's the problem, but in making their judgment, the appeal court judges seem to be saying you can give your consent to be hurt, but only in certain circumstances. Danny Simpson again.

DANNY SIMPSON: Society already tolerates a large measure of actual bodily harm being inflicted on people in consensual situations. There is a limit to what people should be allowed to do to one another, but that that should depend simply on the degree of harm which is being inflicted and not the purpose.

JANE BASDEN: Summing up the appeal court judgment, the Lord Chief Justice, Lord Lane, told the court that it wasn't in the public interest for people to assault each other without a good reason. Declining to say what constitutes a good reason, he stated that satisfying a sadomasochistic libido was not one of them. It remains to be seen if the law lords agree.

JON FAINE: Jane Basden reporting.