Operation Spanner

Operation Spanner was the name of an operation carried out by police in the United Kingdom city of Manchester in 1987, as a result of which a group of homosexuals were convicted of assault occasioning actual bodily harm for their involvement in consensual sadomasochism over a ten year period.

The resulting House of Lords case (R v Brown, colloquially known as "the Spanner case") ruled that consent was not a valid legal defence for wounding and actual bodily harm in the UK, except as a foreseeable incident of a lawful activity in which the person injured was participating, e.g. surgery.

Legal reform and review of the concern is ongoing and the convictions are controversial^[1][2][3][4] due to issues of whether a government or one's self is justified to control one's own body in private situations where the only harm is to consenting adults.

Investigation

The police had obtained a video which they believed depicted acts of sadistic torture, and they launched a murder investigation, convinced that the people in the video were being tortured before being killed. This resulted in raids on a number of properties, and a number of arrests.

The apparent "victims" were alive and well, and soon told the police that they were participating in private BDSM activities. Although all of those seen in the videos stated that they were willing participants in the activities, the police and Crown Prosecution Service insisted on pressing charges. Sixteen men were charged with various offences, including assault occasioning actual bodily harm.

Trial and conflicting arguments

Heavily influenced by the nineteenth century boxing case of R v Coney, the trial judge ruled that consent was not a valid defence to actual bodily harm, and the defendants pleaded guilty. The case was appealed first to the High Court, then to the House of Lords. In March 1993, the appeal was dismissed^[5] by 3–2 majority of the Lords, with Lord Templeman in particular declaring that the reasoning for his decision was:

"In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty [...]. Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized."

However, upon comparing this judgement to similar court cases involving heterosexual couples or others whose cruel and sadistic actions resulted in intentional or reckless infliction of injuries with the alleged victim's consent, some legal experts and advocacy groups have noted why they consider the R v Brown judgement to be an example of homophobia in the English legal system, a legislature which allows judges to legislate from the bench using unequal and arbitrary applications of the law, and "paternalism" which intrudes on liberty.^[2][3][4][6]

For example, the R. v Wilson (1996) judgement ruled that an intentional act of human branding between heterosexuals which caused pain and permanent bodily harm (a scar) was a non-criminal act, on grounds of the alleged victim's consent;^[3] branding was one of the very same acts presented as evidence against the homosexuals in R. v Brown^[2] (as well as evidence of homosexual acts "even where no lasting harm or disability was caused"^[4]). R. v Wilson was decided after R. v Brown, but it remains unclear whether R. v Wilson or R. v Emmett might be used by the judiciary to constitute newer precedents for sadomasochistic acts between lovers.^[2] In R. v Jones (1987) and R. v Atkin & Others (1992), rough horseplay for no purpose besides enjoyment of sadistically taunting others to the point of injuring them was deemed non-criminal (even in cases where the victim has not consented, so long as the accused honestly but not reasonably believed the victim to have consented (DPP v Morgan 1976)).^[2] In the case most cited^{[by whom?]}, the 1995 manslaughter case of R. v Slingsby, consent was considered a valid defence, when a man wore a signet ring as he engaged in the act of inserting his entire fist into his sexual partner's vagina and anus,^[4] which may cause pleasurable pain (algolagnia) for some women, as the homosexuals in the R. v Brown case were also acknowledged to be seeking sexual pleasure using painful acts (algolagnia); however, in R. v Slingsby, the injury only became a fatal one by accident, with the prosecutor contending recklessness (Safety advice which is commonly available from some of the Internet's more notable websites include advisories that, during fisting, sharp objects even smaller than a signet ring should be avoided as one should even "make sure his nails are clean, short, and not sharp,"^[7] or "First of all, cut and file all your nails until every finger is as smooth as it could possibly be"^[8]).

R. v Brown also differs from the heterosexual cases of Wilson, Slingsby, and Emmett in that even recipients of injuries in R. v Brown were convicted of "aiding and abetting," for the crime of consenting to their own injuries, yet none of the women who remained alive in the heterosexual cases were even arrested for their decision to consent.^[4]

Marianne Giles, author of Criminal Law in a Nutshell, called it "Paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power," as the House of Lords failed to establish a precise guide for the United Kingdom's courts to consistently decide where a defence of consent should succeed or where it should not, and as Roger Geary argues in Understanding Criminal Law, this lack of a precise guide gives rise to legislating from the bench or other kritocracy, and laws being applied unequally to homosexuals or others whose practices are in the minority where pain is inflicted with consent, even potentially body art such as tattooing.^[3] Some body art professionals worry that UK judges can interpret their practices as illegal, determining which consensual acts are too extreme and constitute assault, on a case-by-case basis, with no way of the practitioner knowing beforehand.^[9]

Appeal to the European Court of Human Rights, summary of each decision

An attempt to overturn the convictions in the European Court of Human Rights in 1997 failed (see Laskey, Jaggard and Brown v. United Kingdom).

The legal rationale for the decisions was, in general:

1. (UK courts) A person does not have the legal ability to consent to receive an act which will cause serious bodily harm, such as extreme activities of a sadomasochistic nature.
2. (European Court of Human Rights) Whilst a person has a general right of free will, a state may as a matter of public policy restrict that in certain cases, for example for the general public good and for the protection of morals. The present case was judged by the European Court to have fallen within the sovereign scope of the UK Government's right to determine its legality, and current (as of 1997) human rights legislation would not overrule this.

Aftermath

The fallout from the Spanner case led to the setting up of the Countdown on Spanner (now SM Pride) and Spanner Trust organizations. A formal petition to de-criminalise acts that temporarily injure a consenting adult was filed with the U.K.'s parliament, then in the Criminal Justice and Immigration Act 2008, S.66 de-criminalised possession of "pornography" which depicts some acts of injurious sex if it involves oneself (and potentially others, except for those who cannot or do not consent), with the burden of proof being on the accused; Spanner Trust noted their happiness with the consent clause in the Sexual Offences Act 2003.^[4][10]

On the other hand, in the Criminal Justice and Immigration Bill 2007, the Government cited the Spanner case (Brown [1994] 1 AC 212) as justification for criminalising images of consensual acts, as part of its proposed criminalisation of possession of "extreme pornography".^[11]

Experts and advocates besides Spanner Trust have also called for the law to be stated more clearly so that it is applied practically equally from one judge to the next, and to unevoquivocably legalize the minority sexual preference of finding pain pleasurable (algolagnia) for consenting adults.^[2][3][6]

As a result of the Spanner case, the Law Commission decided in 2007 to investigate the status of consensual sadomasochistic acts in the law of England and Wales.^{[citation needed]}

See also

• Consent (criminal law)
• Consensual crime
• People v. Jovanovic
• Victimless crime

Notes

1. ^ S Bottomley & S Bronitt, Law in Context (3rd ed, Sydney: The Federation Press, 2006), Chapter 11.
2. ^ ^{a b c d e f} http://www.stjosephs.s-tyneside.sch.uk/resources/Law/lawExtraReading/A2/Unit5/Consent.doc
3. ^ ^{a b c d e} Giles, M. (1993). Criminal law in a nutshell. Sweet & Maxwell. p. 121. ISBN 9780421474406. http://books.google.co.uk/books?id=ad7zAAAAMAAJ. Retrieved 2011-2-21. 
4. ^ ^{a b c d e f} "Uncorrected Evidence m407". Publications.parliament.uk. http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/memos/ucm40702.htm. Retrieved 2011-04-23. 
5. ^ R v. Brown [1994] 1 A.C. 212, [1992] UKHL 7
6. ^ ^{a b} S Bottomley & S Bronitt, Law in Context (3rd ed, Sydney: The Federation Press, 2006), Chapter 11
7. ^ "Some tips on vaginal fisting, for [e-mail]". Everything2.com. http://everything2.com/title/some+tips+on+vaginal+fisting%252C+for+beginners. Retrieved 2011-04-23. 
8. ^ "Fisting". SexInfo101.com. http://www.sexinfo101.com/as_fisting.shtml. Retrieved 2011-04-23. 
9. ^ http://www.preston.gov.uk/GetAsset.aspx?id=fAAyADIAMQAwAHwAfABGAGEAbABzAGUAfAB8ADAAfAA1
10. ^ "Criminal Justice Act 2003". Opsi.gov.uk. http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_1#75. Retrieved 2011-04-23. 
11. ^ House of Commons: Criminal Justice And Immigration Bill

References

• Anne-Marie Cusac: Profile of a sex radical "Profile of a sex radical - lesbian, sadomasochist author Pat Califia", The Progressive, October 1996.

Further reading

• Great Britain. Law Commission; Great Britain. Home Office. Sex Offences Review. Consent in sex offences: a report to the Home Office Sex Offences Review. Law Commission. 
• Weait, Matthew. "Fleshing it Out" in Bentley, L. and Flynn, L. Law and the Senses (London: Pluto Press, 1996)
• Athanassoulis N. "The Role of Consent in Sado-masochistic Practices". Res Publica. 2002;8(2):141–155.

External links

• Spanner on the Web
• The Causing of Pain to Enhance Sexual Pleasure: An extract from a Law Commission document
• Law Commission report: Consent in Sex Offences (A Report to the Home Office Sex Offences Review)
• The Spanner Trust: History of the Spanner Case
• Sex is not a sport, Consent and Violence in Criminal law