is a

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

judgment which re-affirmed the conviction of five men for their involvement in consensual unusually severe

sadomasochistic Sadism () and masochism (), known collectively as sadomasochism ( ) or S&M, is the derivation of pleasure from acts of respectively inflicting or receiving pain or humiliation. The term is named after the Marquis de Sade, a French author known ...

sexual acts over a 10-year period. They were convicted of a count of unlawful and malicious wounding and a count of

assault occasioning actual bodily harm Assault occasioning actual bodily harm (often abbreviated to Assault OABH, AOABH or simply ABH) is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and t ...

(contrary to sections 20 and 47 of the

Offences Against the Person Act 1861 The Offences against the Person Act 1861 ( 24 & 25 Vict. c. 100) is an act of the Parliament of the United Kingdom that consolidated provisions related to offences against the person (an expression which, in particular, includes offences of ...

). The key issue facing the Court was whether consent was a valid defence to assault in these circumstances, to which the Court answered in the negative. The acts involved included the nailing of a part of the body to a board, but not so as to necessitate, strictly, medical treatment. The court found no direct precedent for sadomasochism among the senior courts (those of binding precedent) so applied the reasoning of three indirectly analogous binding cases and others. The case is colloquially known as the Spanner case, named after

Operation Spanner Operation Spanner was a police investigation into same-sex male sadomasochism across the United Kingdom in the late 1980s. The investigation, led by the Obscene Publications Squad of the Metropolitan Police, began in 1987 and ran for three year ...

, the investigation which led to it.

Facts

The five appellants engaged in sadomasochistic sexual acts, consenting to the harm which they received; whilst their conviction also covered alike harm against others, they sought as a minimum to have their mutually consented acts to be viewed as lawful. None of the five men complained of any of the acts in which they were involved, which were uncovered by an unrelated police investigation. The physical severity was not disputed. Each appellant (having had legal advice) pleaded guilty to the offence when the trial judge ruled that consent of the victim was no defence. The question approved and certified as in the public interest on appeal was whether the prosecution had to prove (in all similar cases) a lack of consent on the recipient's part. The appellants argued against conviction under the

as they had in all instances consented to the acts they engaged in (''

volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a Roman legal maxim and common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing ...

''), that as with tattooing and customary-site body piercings their consent would be directly analogous to the lawful exceptions laid out by three cornerstone (and other) widely-spaced precedent cases.

Judgment

The certified question of appeal which the

was asked to consider was: The Lords – by a bare majority, two out of five dissenting – answered this in the negative, holding that consent could not be a defence to these (typically overlapping) offences. Lord Templeman stated: His judgment examined the acts to be "unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless". Lord Jauncey stated: Lord Lowry stated:

Dissents

Lord Mustill preferred consensual, private, sexual acts, up to and including involving ABH, to be outside of criminality:

In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all ... eaving asiderepugnance and moral objection, both of which are entirely natural but neither of which are, in my opinion, grounds upon which the court could properly create a new crime.

Lord Slynn agreed:

Criticism

Legal journals and textbooks of the 21st century tend towards criticism of the majority's analysis and overtones. Baker writes: Marianne Giles calls the judgment "paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power". Two years later Baker argued

Social impact

Opposition to the judgment (in both consecutive appeals) legally focusses on the dissenting two final judges and the contrasting ''R v Wilson'' whereby a husband painfully branded his initials on his wife's buttocks at her request. Fears of bias due to

heteronormativity Heteronormativity is the definition of heterosexuality as the normative human sexuality. It assumes the gender binary (i.e., that there are only two distinct, opposite genders) and that sexual and marital relations are most fitting between peo ...

were allayed in ''R v Emmett'', whereby the lower court of binding precedent, the Court of Appeal of England and Wales, held the same rules apply to heterosexual participants in such acts. Citing ''R v Brown'', law professors Fox and Thomson (2005) argue against non-therapeutic circumcision of boys, to the audience of medical professionals.

Similar cases

* '' K. A. v Belgium'' * '' Laskey, Jaggard and Brown v United Kingdom'' * ''R v BM'' * ''R v Hobday''

Footnotes

References

{{LGBT in the United Kingdom House of Lords cases BDSM 1993 in United Kingdom case law 1993 in LGBTQ history United Kingdom LGBTQ rights case law