How BDSM law impacts the fight
AV8R, 18 Oct 2005 19:29:25
Author wrote:
> I don't think anyone is assuming all of the material is consensual and I think we're all aware of the law after the Spanner case. However, a lot of the images that are likely to be affected are consensual and I think it's something that needs to be stressed, regardless of the law as it currently stands.
> Ginny
Author wrote:
> To a lawyer consent is irrelevant in UK law; they will cite the judgement by
> Judge Rant in the Spanner case that 'nobody can consent to an assault and
> thereby exonerate the assailant. All they do if they consent is to become an
> accessory to the crime, and thereby also a criminal.'
> He did go on to say that if the resulting injuries are 'trivial and transient',
> then the law has no business getting involved, but the material under
> consideration is likely to be way beyond the trivial and transient.
> I would suggest too, that presuming all material is consensual is making an
> unwarranted presumption; it may be so, in UK-generated material, indeed it is
> in my experience, but I cannot say the same for material I have seen from the
> USA and Eastern Europe.
Enough comments are popping up about this that it deserves it's own thread. So to respond:
I wouldnt know about eastern europe but I am 100% sure that ALL material from the Western world and particularly the USA in the last 25 years is not only consensual, but subject to rigorous model releases, consent forms, legal disclaimers, etc etc etc.
Porn, particularly BDSM porn, is the most incredibly over regulated business you can imagine.
I think there is a lot of erroneous assumption being made about the law, and the myth that most BDSM is illegal, or that consent plays no part in the law.
If you were to take a snapshot of the UK legal situation in 1992 immediately after the Spanner case, that may be the case.
But the law evolves, thankfully, and the standard is now completely different, as follows;
Those who maintain that BDSM is illegal greatly underestimate both the importance and scope of some important legal precedents. Though the Govt won the Spanner case in 1992, there have been several 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 (where a man was accused of assault after branding his initials onto his wifes bum in a consensual ceremony), 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, even where sex occurs, 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.
Consent is not the only determining factor, but it does play a major role.
And as a key part of the governments case is that this legislation would only ban images of ACTS which are illegal, this is a very strong argument.
It would be an untenable position for the government to try to ban images of legal acts, and most BDSM acts are legal.
Av8r
*** This message has been edited by AV8R on 18 Oct 2005 19:31:38 ***
clare, 18 Oct 2005 20:09:43
Av8r wrote: “It would be an untenable position for the government to try to ban images of legal acts, and most BDSM acts are legal”.
But they are not trying to ban images of “most bdsm acts”. Only the extreme stuff. They know they would look ridiculous if they try to ban mild stuff. How the IWF or the police subsequently interprets it may be a different matter.
The legal position on the extreme stuff is clearly set out in the case you rely upon.
Lord Justice Russell said in R v Wilson “In Brown, the appellants engaged in sadomasochism of the grossest kind, involving, inter alia, physical torture, and as Lord Templeman pointed out: "obvious dangers of serious physical injury and blood infection." The facts of the case were truly extreme. We are abundantly satisfied that there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown”
R v Brown will apply to the images, not R v Wilson. The proposal is NOT about images of minor bdsm in stable relationships.
I do however agree with Ginny that there are good points to make about consensuality, but you cannot make the point that the consent means that the image is of a legal act.
We have been around this again and again. There is not a lot of erroneous assumption being made about the law. You need to read the cases more carefully and pay some attention to the way that legal precedent works. It works on a case by case basis, depending on the facts. The facts of R v Wilson are miles away from the kinds of pictures in issue.
Clare
zak, 18 Oct 2005 21:13:19
Original Message:
-----------------
pearl_maude1@hotmail.com, 18 Oct 2005 21:13:19
Av8r wrote: “It would be an untenable position for the government to try to
ban images of
legal acts, and most BDSM acts are legal”.
But they are not trying to ban images of “most bdsm acts”. Only the
extreme stuff. They
know they would look ridiculous if they try to ban mild stuff. How the IWF
or the police
subsequently interprets it may be a different matter.
The legal position on the extreme stuff is clearly set out in the case you
rely upon.
Lord Justice Russell said in R v Wilson “In Brown, the appellants engaged
in sadomasochism
of the grossest kind, involving, inter alia, physical torture, and as Lord
Templeman
pointed out: "obvious dangers of serious physical injury and blood
infection." The facts
of the case were truly extreme. We are abundantly satisfied that there is
no factual
comparison to be made between the instant case and the facts of either
Donovan or Brown”
THe Government may have been wrong here, but there is no need for anyone
else to retain
erroneous beliefs. Alarming as images/concepts of what the Spanner
defendants got up to,
no one needed anything more than a dab of TCP and maybe a plaster
afterwards. Also, what
have 'stable relationships' got to do with whether or not an activity - or
a picture of it
- is acceptable? The Spanner judgement was about homophobia as much as
anything and the
WIslon case might have had a different verdict had the defendant not been
a) heterosexual
and b) ma
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«No Name Set», 19 Oct 2005 03:19:09
Apologies in advance for typing - my synth battery has run down
and my eyes are red and streaming and seeing less than ever.
Av8r was talking about later legal precedents more recent than
Spanner.
There are legal changes in other directions too.
The Spanner folks may jump in = or jump on me - here.
SOmething imprtant to remember about the Spanner case - the
defendents were *gay*.
Operation Spannerwas not *just* - or even primarily - an attack
on BDSMers, it was an attack on gays.
Would the Operation Spanner raids ever have taken place had the
targets been heterosexuals? - I and may others i the gay
movement at the time, ISTR, were quite convinced the answer to
that was "NO WAY!!"
Since then, we've got the Equality Directive, even with its
flaws, we've got the equal male age of consent and no more the
requirement for two men only behind a locked door, Section 28
has been consigned to the trashcans of history, and there will
be civil partnerships registered before Christmas. We no longer
have the system of assessment on clear-up rate that inspired the
"pretty police" to go out and create victimless crimes so they
could clear them up. We also have the new generation spending
their pink pounds merrily and looking on the boring old fart
politicos with abject contempt. And further afield, legal
equality is amongst the EU accession criteria.
True, we are by no means out of the woods yet, whatever the pink
pound brigade may think. But we *have* come a long way in the
last 15 years.
Could the Operation Spanner raids be even contemplated today? - I
suspect not.
True, also, that UK law, operating as it does on its system of
precedent, is stuck with the precendent. Yet there is also
precedent for the overturned of an old and outdated precedent by
a court ruling that the world has changed and the precedent is
no longer valid. It *has* not happened yet, but sooner or
later, it *will*.
--
Rosemary