FROM SMGAYS “Resource Book 2 ”
In December 1990, 16 gay men were given prison sentences of up to four and a half years or fined for engaging in consensual SM activity ... The convictions have now been upheld by both the Court of Appeal and by the Law Lords.
Despite what you may have read in newspapers, for the most part, the men were not convicted of sexual offences but the everyday crime of assault occasioning actual bodily harm. ...
In 1987 the police received, anonymously through the post, a video-tape which showed a number of identifiable men engaging in heavy SM activities including beatings, genital abrasions and lacerations. The police claim that they immediately started a murder investigation because they were convinced that the men were being killed. This investigation is rumoured to have cost £4 million. Dozens of gay men were interviewed. The police learned that none of the men in the video had been murdered, or even suffered injuries which required medical attention. However the police may well have felt that they had to bring some prosecutions to justify their expensive investigation.
16 of the men were found guilty (20th Dec. '90) of a number of offences and were sent to jail, given suspended jail sentences or fined. The men's defence was based on the fact that they had all consented to the activities. But Judge Rant, in a complex legal argument, decided that the activities in which they engaged fell outside the exceptions to the law of assault.
A number of the defendants appealed against their convictions and sentences. Their convictions were upheld though the sentences were reduced as it was felt they might well have been unaware that their activities were illegal. However the Appeal Court warned that this would not apply to similar cases in the future. The case then went to the House of Lords.
The Law Lords heard the case in 1992 and delivered their judgment in January 1993. They upheld the prosecutions by a majority of three to two.
The evidence against the men comprised the video-tape and their own statements. When they were questioned by the police, the men were so confident that their activities were lawful (because they had consented to them) that they freely admitted to taking part in the activities on the video. Without these statements and the video-tape , the police would have had no evidence to present against the men and would have found it impossible to bring any prosecutions.
The Law Of Assault
In law, you cannot, as a rule, condone an assault. There are exceptions. For example, you can consent to a medical practitioner touching and possibly injuring your body; you can consent to an opponent hitting or injuring you in sports such as rugby or boxing; you can consent to tattoos or piercings if they are for ornamental purposes. You can also use consent as a defence against a charge of what is called Common Assault. This is an assault which causes no injury.
The Law Lords have now ruled that SM activity provides no exception to the rule that consent is no defence to charges of assault occasioning actual bodily harm or causing grievous bodily harm. These are defined as activities which cause injuries of a lasting nature. Bruises or cuts could be considered lasting injuries by a court, even if they heal up completely and that takes a short period of time. Grievous bodily harm covers more serious injury and maiming.
Judge Rant introduced some new terms to define what he considered to be lawful and unlawful bodily harm. Judge Rant decreed that bodily harm applied or received during sexual activities was lawful if the pain it caused was “just momentary” and “so slight that it can be discounted”. His judgment applies also to bodily marks such as those produced by beatings or bondage. These too, according to him, must not be of a lasting nature. In essence, Judge Rant decided that any injury, pain or mark that was more than trifling and momentary was illegal and would be considered an assault under the law.
SMGAYS meet regularly in London, and publish a series of informative Resource Books which cover many different aspects of S&M including how to behave if approached by the police concerning SM related activities or possession of equipment. These Resource Books are valuable to people of all sexual orientations whether they have an active interest in or only a casual curiosity about this complex subject. For more information send S.A.S.E. to BM SM Gays, London WC1N 3XX