SM and the law

If you’re going to partake of the SM scene, it’s best you know a bit about SM acts and the law (UK-only):

Operation Spanner

After the police by chance came across a home-made video, 16 gay and bisexual men from the Manchester area were tried and convicted in 1990 of offences to do with ‘assault with actual bodily harm’ and ‘unlawful wounding’. The tops were charged with assault; the bottoms with ‘aiding and abetting an assault’ on themselves.

All had consented and none needed medical treatment. Yet some received prison sentences of up to four-and-a-half years. Several appeals to higher courts failed.

This case, known as Operation Spanner, established for the first time that certain sex acts associated with SM or rough sex could be criminal offences in England, Wales and Northern Ireland (Scotland has a different legal system). It made this clear in law: you cannot consent to being harmed during sex (like you can in boxing, contact sports, piercing and medical procedures).

Legal or not?

Only injury that is ‘trifling and transient’ (that is, unimportant and short-lived) is legal. Anything leaving permanent marks or damage is illegal and the legality of a range of other acts is in doubt.

The acts videoed in the Spanner case involved:

  • CBT (with wax, sandpaper, hooks, needles, cutting with a scalpel and inserting objects into men’s urethras)
  • CP (hitting with bare hands, stinging nettles, spiked belts and cat-o-nine tails)
  • branding and other injuries that left scarring.

One rule for some…

At the Spanner trial the judge said heterosexuals faced with similar charges would have been treated in the same way. But a later conviction of a heterosexual couple (the man branded the consenting woman’s buttocks with a hot knife) was dismissed on appeal, the judge saying what married couples did should not concern the law.

This heterosexual case cannot be taken to mean gay and bisexual men are no longer at risk of being charged with assault. At one of the Spanner appeals the married couple’s case was dismissed as not relevant because the injuries in the Spanner case were ‘more serious’. Also, the appeal judge said marriage gives heterosexual couples the right to such behaviour. It is unclear whether in this respect the law would treat gay marriages or civil partnerships as the same as heterosexual marriages.

Developments

As a result of Spanner there is uncertainty over what SMers can and cannot do legally. Two developments may have made more prosecutions for SM sex less likely:

  • A 1995 Law Commission report on consent recommended that injury that is been consented to and is not permanent should not be illegal.
  • The introduction of the Human Rights Act in 1998.

In a separate case in 1993, 36 men were arrested at a house in West Yorkshire and fetish gear and sex toys were seized by police. But no one would tell the police what they were intending to do and no charges were brought against them.

Filming or photographing SM sex carries risks as it can be used as evidence by the police.

If the police search your home, question you or arrest you

In almost all cases the police will need a search warrant before searching your home, in which case you can’t refuse. But first, check their identification and whether the warrant has your correct address on it.

The police might try to and get you chatting in the hope you’ll give them information without realising. The best advice is to refuse to answer any questions until you’ve spoken to a solicitor.

The police should let you make a phone call which you might want to use to get a friend or solicitor to come over, for example to be with the police as they search each room. Within a reasonable time after the search the police should give you a receipt for everything they take. If possible make your own list while they take things in case later there’s a dispute about items not returned.

If taken to a police station you can ask for a free solicitor under the Legal Aid scheme.

Don’t be taken in by the police saying getting a solicitor will keep you there longer, or by a ‘friendly’ policeman trying to persuade you that you’ll be treated less harshly if you talk or name others.

Legal help

If you need legal help contact:

GALOP

London’s lesbian, gay, bisexual and transgender community safety charity offers advice on dealing with the police. It has details of gay-friendly solicitors.

Helpline: 0207 704 2040 (Mondays 5pm to 8pm, Wednesdays 2pm to 5pm, Fridays 12 to 2pm)

Out of hours: 24hour answermachine

www.galop.org.uk

Switchboard,the LGBT + helpline can also give advice: 0300 330 0630 – open everyday 10am-10pm

Things to know

Generally the police have better things to do than go looking for people into kinky sex. But there’s a risk they might come across evidence of kinky/rough sex while investigating something else. And they then could start looking into people’s sex lives.

The police need evidence to prosecute. The Spanner men admitted what they’d done and had made videos of it. Without both of these there could have been no trial. Diaries, letters, email or internet messages, computers, photos and video film can all be used as evidence in court. Keeping such records carries a risk, even if faces can’t be seen (people can be identified from tattoos, addresses identified by furniture, and so on).

Porn

Showing porn to someone else or uploading (but not downloading) an image onto the internet can count as publishing. It is illegal to possess child pornography (defined as under 18), as well as make or distribute it. Porn is illegal in the UK if it shows sex with minors (under 18 years old) or animals. It is not legal to bring violent SM, underage or animal porn into the UK from abroad (including other EU countries), even if it is legally for sale there.

The UK government has criminalised the possession of what it calls ‘extreme pornographic material’ (that showing real or pretend ‘serious sexual violence’ that ‘appears to be life threatening or likely to result in serious, disabling injury’). Making and distributing such material is already illegal.

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Last review: 07/09/2018
Next review: 07/09/2021