The idea that there is a special case for consensual bdsm
clare, 15 Oct 2005 23:28:12
The bdsm community is (rightly) so steeped in its observance of "consent" that while it knows on one side of its brain that consent not a defence, it's as if it can't quite believe anyone could really mean that. That seems to allow the other side of its brain to argue that images of consensual harm ought to be given a different status.
But unfortunately they do really mean it. While the judiciary may have shown some restraint by refusing to interfere in the consensual affairs of a married couple, the government has no such qualms. It devotes itself to drawing up long lists of new sexual offences. So far as consent is concerned, the definition under the Sexual Offences Act 2003 is now objective not subjective. If there was any fear of violence, it is no longer enough that you believed she was consenting. The accused must prove that a theoretical objective bystander would have believed it too. She was shouting No No No! but didn't safe-call?
Why would a government that wants to criminalize pseudo images of violent sex, in which it is self evident that no actual harm is suffered, permit images of activity where real injury was caused and the law doesn't recognize consent as a defence to the injury caused.
But of course this legislation is about images, what things look like. It’s not about what really happened. This means that whether the parties consented to the activity is as irrelevant as whether the activity even took place.
Once one focuses on the fact that it is the "image" that is criminalised, rather than the activity shown, it becomes easy to see that any attempt to distinguish between pictures on the basis of whether the depicted conduct was consensual, is doomed and misses the point. This is about images not actions.
A campaign to exempt images of consensual bdsm from the ban cannot succeed. The difference between the really sick extreme images that the government claims are its target and consensual bdsm is unlikely to be obvious to anyone is not intimately involved in the bdsm world. How is the CPS or the jury supposed to perceive the difference between an image of consensual genital torture and "really sick" sexual torture?
This means even if the Government had the desire (which they don't) to exclude "consensual bdsm", any attempt to draw the legislation in a way that distinguished between "really sick stuff" and "consensual bdsm" would make the government look ludicrous. It's fantasy to imagine they would put themselves in that position.
And as Manniq and Lothario have pointed out, the IWF's remit is in relation to "potentially illegal images". The IWF is not going to draw breath to distinguish between images of consensual bdsm and other violent images.
These people think that the image itself "is abuse". There is no chance in hell that they are going to wake up smell the coffee and say that images of consensual bdsm are cute and fluffy.
*** This message has been edited by clare on 16 Oct 2005 00:17:30 ***
AV8R, 16 Oct 2005 01:20:34
Thank you Clare for writing the most coherent and logical argument for not pursuing the BDSM case that I have seen so far.
I do feel you have some very valid points, however I also feel you have missed some equally valid counterpoints.
I will start with the title of the post.
[The idea that there is a special case for BDSM]
No. The idea is that this legislation WAS NOT originally designed to target BDSM at all. The objectionable sites in the Longhurst case were not mainstream BDSM sites, but rather specific Necrophilia oriented sites. The fact that the poorly worded consultation document appears to also include some (though importantly not all) BDSM subject matter is more than likely a result of the ignorance of the civil servants who drafted it. An ignorance that we may well be able to overcome through education.
However by alligning ourselves with the areas such as Necrophilia and Bestiality that the law does specifically target, we risk losing the important legal and moral gains that the community has won over the years.
[While the judiciary may have shown some restraint in refusing to interfere in the consensual affairs of a married couple, the government has no such qualms.]
This may be true, however I feel you greatly underestimate both the importance and scope of these legal precedents.
Though the Govt won the Spanner case in 1992, there have been several key rulings since, that have not exactly overturned Spanner, but certainly have established key legal rights and precedent for the BDSM community.
An official Law Commission appointed by the UK Home Office, in 1995, came to the conclusion that sadomasochism, short of causing serious or permanently disabling injury, should be no crime between consenting adults. This was a very significant marked departure from the Spanner ruling of 1992, where the judge ruled the line was set at injuries that were more than "trifling and transitory".
In 1996, after the 1995 law commision findings, in the case of Regina V Wilson, Three Appeal Court judges said: "Sexual activity between husband and wife in the privacy of their own home is not a matter for criminal investigation, let alone criminal prosecution." The judges criticised the CPS for bringing the case to court and said it served 'no useful purpose'.
Also in Regina V Martin Church [the Club Whiplash case] at Southwark Crown Court on March 29, 1996, which established that BDSM clubs WHERE SEXUAL ACTIVITIES ACTUALLY TAKE PLACE are not illegal. The 1751 Disorderly Houses Act was ruled not to apply and the jury threw the case out. It cost the prosecution over £285,000 in costs and they got nothing. No further raids on active BDSM clubs have taken place since.
To insinuate that there are no legal protections for BDSM, or that consent is irrelevant, is therefore entirely incorrect.
And perhaps most importantly, a key part of the govts case in the proposed legislation is based on the fact that the images to be banned would only be of acts which would already be illegal.
The majority of BDSM clearly DOES NOT fall within this "illegal" category.
There have also recently been several European Human rights rulings supporting the concept of consensual BDSM, and at least one upholding the use of safe words as being a valid procedure to ensure continued consent.
All in all, I feel our legal position is MUCH stronger than you make it out to be.
[Why would a government that wants to criminalize pseudo images of violent sex, in which it is self evident that no actual harm is suffered, permit images of activity where real injury was caused and the law doesn't recognize consent as a defence to the injury caused.]
I think we have just addressed the fact that both the courts and the Home Offices own Law Commision now recognise and accept that "sadomasochism, short of causing serious or permanently disabling injury, should be no crime between consenting adults."
Therefore I fail to see the relevance of your point.
[But of course this legislation is about images, what things look like. It’s not about what really happened. This means that whether the parties consented to the activity is as irrelevant as whether the activity even took place.
Once one focuses on the fact that it is the "image" that is criminalised, rather than the activity shown, it becomes easy to see that any attempt to distinguish between pictures on the basis of whether the depicted conduct was consensual, is doomed and misses the point. This is about images not actions.]
No, absolutely not.
One of the key points of the Govts case is that this proposed legislation would ONLY cover images of ACTS that were already illegal in the UK. They are trying to portray this whole thing as being nothing more than closing a loophole in the law.
This is one of our strongest arguments, and it is ridiculous that we should not challenge such a blatant misrepresentation.
By their own tacit admission, images of acts that are legal should also be legal.
[A campaign to exempt images of consensual bdsm from the ban cannot succeed. The difference between the really sick extreme images that the government claims are its target and consensual bdsm is unlikely to be obvious to anyone is not intimately involved in the bdsm world. How is the CPS or the jury supposed to perceive the difference between an image of consensual genital torture and "really sick" sexual torture? ]
To some extent this is true, and makes the best case I have heard for an educational campaign to inform civil servants, CPS, social services, police, etc on the difference between consensual SM and Abuse.
However, putting that aside, 99%+ of material on the web comes from commercial (and thus thoroughly regulated)websites, mostly hosted in the USA. As someone who has worked in the US adult industry, I can assure you that the record keeping requirements, model release requirements, informed consent requirements, health and safety requirements, etc, are RIDICULOUSLY stringent and overzealous.
Therefore any material sourced from one of these sites (and lets not forget this covers the vast majority of material out there), would automatically be covered under the "consent" argument.
And would also completely ridicule the govts assertion that there can be such a thing as "notional" consent.
[> These people think that the image itself "is abuse". There is no chance in hell that they are going to wake up smell the coffee and say that images of consensual bdsm are cute and fluffy.]
They dont have to. We already have the law, and public opinion (for consensual SM, but NOT for bestiality, necro, etc), on our side.
Furthermore the current edition of the House of Parliaments own magazine has a full article from SM pride in it.
http://uksmpride.org/files/HouseArticle.pdf
There has never been a better time to push this agenda.
And whilst I do agree with pursuing the Backlash 'free speech' platform that is capable of bringing in a wider coalition of groups, I really feel we would be very remiss, almost negligent in fact, in not simultaneously pursuing the BDSM case.
Amelie, 16 Oct 2005 10:59:52
since SM Pride seem to have the BDSM educational machine well in hand, why
not work with them on that, leaving Backlash free to concentrate on the
wider issues of the coalition with other organisations united against
creeping control and the restriction of freedom.
----- Original Message -----
"graham" , 16 Oct 2005 10:59:52
To:
Sent: Sunday, October 16, 2005 2:54 AM
Paul Tavener, 16 Oct 2005 16:31:55
Author wrote:
> The bdsm community is (rightly) so steeped in its observance of "consent" that while it knows on one side of its brain that consent not a defence, it's as if it can't quite believe anyone could really mean that. That seems to allow the other side of its brain to argue that images of consensual harm ought to be given a different status.
> But unfortunately they do really mean it. While the judiciary may have shown some restraint in refusing to interfere in the consensual affairs of a married couple, the government has no such qualms. It devotes itself to drawing up long lists of new sexual offences. So far as consent is concerned, the definition under the Sexual Offences Act 2003 is now objective not subjective. If there was any fear of violence, it is no longer enough that you believed she was consenting. The accused must prove that a theoretical objective bystander would have believed it too. She didn't safe-call?
> Why would a government that wants to criminalize pseudo images of violent sex, in which it is self evident that no actual harm is suffered, permit images of activity where real injury was caused and the law doesn't recognize consent as a defence to the injury caused.
> But of course this legislation is about images, what things look like. It’s not about what really happened. This means that whether the parties consented to the activity is as irrelevant as whether the activity even took place.
> Once one focuses on the fact that it is the "image" that is criminalised, rather than the activity shown, it becomes easy to see that any attempt to distinguish between pictures on the basis of whether the depicted conduct was consensual, is doomed and misses the point. This is about images not actions.
> A campaign to exempt images of consensual bdsm from the ban cannot succeed. The difference between the really sick extreme images that the government claims are its target and consensual bdsm is unlikely to be obvious to anyone is not intimately involved in the bdsm world. How is the CPS or the jury supposed to perceive the difference between an image of consensual genital torture and "really sick" sexual torture?
> This means even if the Government had the desire (which they don't) to exclude "consensual bdsm", any attempt to draw the legislation in a way that distinguished between "really sick stuff" and "consensual bdsm" would make the government look ludicrous. It's fantasy to imagine they would put themselves in that position.
> And as Manniq and Lothario have pointed out, the IWF's remit is in relation to "potentially illegal images". The IWF is not going to draw breath to distinguish between images of consensual bdsm and other violent images.
> These people think that the image itself "is abuse". There is no chance in hell that they are going to wake up smell the coffee and say that images of consensual bdsm are cute and fluffy.
>
>
Unfortunately all too true.
However the waekness in this argument is that they want to allow non sexual harm - which is ridiculous.