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 homosexual BDSM activities. Although all of those seen in the videos stated that they were willing participants in the activities depicted on the videos, the police and Crown Prosecution Service insisted on pressing charges. Sixteen men were charged with various offences, including "assault occasioning actual bodily harm" (ABH).
Heavily influenced by the nineteenth century boxing case of R v. Coney, the trial judge ruled that consent was not a valid defence to ABH, 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 (R v. Brown (1994) 1 A.C. 212) by 3-2 majority of the Lords, with Lord Templeman in particular declaring that:
- "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."
The legal rationale for the decisions was broadly speaking as follows:
- (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.
- (European Courts) 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 human rights legislation would not overrule this.
In the Criminal Justice and Immigration Bill 2007, the Government cited the Spanner case (Brown  1 AC 212) as justification for criminalising images of consensual acts, as part of its proposed criminalisation of possession of "extreme pornography".
- Anne-Marie Cusac: Profile of a sex radical - lesbian, sadomasochist author Pat Califia, The Progressive, Oktober 1996, online unter: Profile of a sex radical
- 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
- Spannerman on BME - Article on Spanner case from a personal perspective of one of the defendants.
Further reading Edit
- 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.