 [33] Libertarian (1:375/48)  ALT.POLITICS.LIBERTARIAN 
 Msg  : #2332 [224]                                                             
 From : Ian Geldard                         1:2613/335      Wed 03 Aug 94 13:15 
 To   : All                                                                     
 Subj : Pt 1/2: Sado-Masochism                                                  

From: igeldard@capital.demon.co.uk (Ian Geldard)
Organization: Myorganisation


             WHY SADO-MASOCHISM SHOULD NOT BE CRIMINALISED

                            By Chris R. Tame

What follows is the text, very slightly amended for publication, of the
evidence submitted in July 1994 by the Libertarian Alliance to the Law
Commission, in response to Consultation Paper No. 134, On Criminal Law:
Consent and Offences Against The Person.[1]  When submitted to the Law
Commission, the evidence was accompanied by copies of two other
Libertarian Alliance publications, both by Anthony Furlong.  These were
"Sado-Masochism and the Law: Consent Versus Paternalism", Legal Notes
No. 12, and "Reflections on the Case of R v Brown", which was in issue
No. 18, May 1993 of the Libertarian Alliance's journal "Free Life", pp.
4-6.

                           Legal Notes No. 20

              ISSN  0267-7083         ISBN  1 85637 242 1

         An occasional publication of the Libertarian Alliance,
       25 Chapter Chambers, Esterbrooke Street, London SW1P 4NN.

Chris R. Tame is the Director of the Libertarian Alliance.  He
broadcasts regularly, and has contributed to a wide range of scholarly
journals and books.

             (c) 1994: Libertarian Alliance; Chris R. Tame.

The views expressed in this publication are those of its author, and not
necessarily those of the Libertarian Alliance, its Committee, Advisory
Council or subscribers.

 LA Director: Chris R. Tame      Editorial Director: Brian Micklethwait

                     FOR LIFE, LIBERTY AND PROPERTY

--------------------------------------------------------------------------

I The "Spanner" Case and Offences Against the Person

The Libertarian Alliance has previously expressed great concern over the
"Operation Spanner" prosecutions, on the original December 1990 case,
the February 1992 Court of Appeal judgment, and the March 1993 House of
Lords final judgment.  We therefore do not intend to repeat all the
points made in our publications in this Submission, but to focus on the
specific points raised in Law Commission Consultation Paper No. 134,
"Criminal Law: Consent and Offences Against the Person".

II A Critique of Law Commission Consulation Paper No. 134 on "Criminal
Law: Consent and Offences Against the Person"

In our view the Consultation Paper is thoroughly unsatisfactory as a
basis for re-examining the subject of consent and offences against the
person.  We do not intend to comment on every issue raised by the
report, nor to respond to every Question for Consultation raised in Part
IV of it, pp. 70-71.  Rather, we will make a number of observations that
we hope will cut through what in our view is the muddled,
self-contradictory and illiberal analysis contained in that Paper.

1. Common Law

As libertarians we take a generally favourable view of both the
evolution and content of Anglo-American Common Law.  We believe that
common law arrives frequently at a substantive content which can largely
be identified as liberal: that is, it sanctions rules and values largely
identifiable as being supportive of individual freedom, autonomy,
freedom of choice, and self- determination.  We believe these values to
be rationally and scientifically defensible as a body of "Natural Law"
derived from, and sustaining, the nature of humanity - values that can
fairly be termed, in political terminology, classically liberal or
libertarian. [2]

However, where common law departs from such liberal principles we
believe it to be flawed, illegitimate as real law, and subject to
correction by legislative reform.  We thus dissent from the Consultation
Paper's view that present common law on the topic of consent to harm
should be reproduced (1.1, p. 1)

2. Our Basic Principle: Individual Self-Determination

In our view the principle of consent (provided such consent is not
gained fraudulently or coercively, and is hence not truly consent)
should be a total and absolute defence in law.  We thus agree with the
principle enunciated by John Stuart Mill in "On Liberty" (although not,
unfortunately, actually fully or consistently maintained by him), that
"Over himself, over his own mind and body, the individual is sovereign."
[3]  Just as the individual is now recognised in British law as having
the right to commit suicide, we believe that the individual should have
the right to harm him or herself in whatever way he or she so desires.
We believe that the right to autonomy further means that an individual
can consent to the involvement of others in the infliction upon himself
of temporary pain or injury, permanent harm, damage, and mutilation or
even loss of life.  (In the case of such extreme forms of harm and/or
death we would, of course, certainly recognise that surviving
participants would be well advised to establish clear and demonstrable
evidence that such activities were indeed fully voluntary and
non-coerced, and that the police and the courts would expect such
evidence to be available.)

Hence, we disagree fundamentally with the assertion in 12.4, p. 40,
"that it is not enough to rely simply on the right of self-determination
of the victim to do what he likes with his own body."  This principle,
in our view,  *does* cut through the Gordian knot of confusion and
prejudice manifest in the Consultation Paper.  It is the role of the law
to protect individuals against invasive acts, against coercion.
"Violence" is to be prohibited because of its invasive and coercive
character. When "violence" is involved in consensual activity it is not
a coercive act and is an entirely "private" transaction.   Consent fully
and absolutely alters the nature of "violence".  If acts are consensual,
they are not coercive, and hence should not be interfered with by the
law.

The irony of the Spanner decisions, and the sort of laws being endorsed
by the Consultation Paper, is that real, non-consensual harms
(imprisonment, loss of employment, invasion of privacy and social
stigmatisation, personal despair and suicide) have been inflicted upon
non-criminal individuals, in the absurd guise of protecting them from
themselves and of "draw[ing] the line between what is acceptable in a
civilised society and what is not", as the trial judge, Mr. James Rant
QC, put it in the first December 1990 case.

We thus address explicitly the comments made in 12.3 and 12.4 (pp.
39-40).  The fact that the law currently "protects" individuals against
self "abuse" by drug-taking is no argument against the principle we are
enunciating.  Such "protection" is also, in our view, immoral and wrong
in principle.  It not only infringes the legitimate rights of
individuals, but creates social consequences that are disastrous.
(Namely: it is impossible to enforce successfully such paternalist and
prohibitionist laws; the police are corrupted; super-profits are
generated that enrich organised crime and subvert society at almost
every level; drugs are rendered more dangerous as they are supplied
outside the normal constraints of market standards, competition and
common law consumer protections; artificial inducements to "pushing" and
subcultures of deviancy are created, etc., etc.).  The counter-
productive consequences of drug prohibition are now recognised by a
large and growing number of economists, sociologists, psychologists,
drug treatment experts, policemen, judges, and public officials. [4]
Drug paternalism is as immoral and socially harmful as sexual
paternalism is now, and as the religious paternalism that effectively
ended in the early 19th century was in its time.

We reject totally the view, enunciated by Judge Rant, that "the courts
must draw the line between what is acceptable in a civilised society and
what is not".  The role of the courts in a free society is to protect
the lives, liberty and property of individuals from force and fraud.
The fact that some people find sado-masochism "unacceptable" is a matter
of their personal opinion, just as views on the religious beliefs and
observances, the political beliefs or the artistic expression of other
individuals are also a matter of personal opinion.  The liberal order of
Britain, and most Western nations, has now rejected the idea that the
state should dictate what is religiously "acceptable".  We see no
logical or good reason for it dictating what is *sexually* acceptable -
or, rather what is sexually acceptable to Judge Rant and his colleagues.

3. Distinguishing Forms of Self-Harm

The libertarian principle of self-determination or self- sovereignty
cuts through the intellectual gymnastics engaged in by the Consultation
Paper in trying to distinguish between permissible and impermissible
forms of risk and "violent" activities.  Indeed, in our view the
Consultation Paper, like the original Spanner judgment, engages in a
classic example of disguising subjective preference with a veil of
principle.  As Professor Christie Davies, of the Department of Sociology
of the University of Reading, has put it in a forthcoming paper:

     "What happened [in the Spanner case]  was that the prosecutors and
     the judges put up what purported to be a general argument applied
     to a specific case.  In reality, it was a device applied in a
     discriminatory way to the behaviour of a minority of which they
     disapproved on other grounds.  In the Spanner case the general
     argument put forward was that you cannot `consent to an assault on
     yourself' ... several people were prosecuted, convicted and
     punished, even though there were no unwilling `victims' to
     complain.  They had agreed among themselves to get up to all manner
     of sado-masochistic sexual activities, but there was no harm done
     outside the group.  Then the judge popped up and said in effect:
     `You can't consent to an assault against yourself. You have no
     defence and you are obliged to plead guilty'."

     This bizarre perversion of an argument was upheld in appeal by
     other judges though only by three to two in the House of Lords. The
     problem is that the judges apply this principle in a very selective
     way.  It isn't applied in the case of a boxing match or a rugby
     match even when boxers or rugby players batter into nothingness
     such few brain cells as they have or when rugby players end up
     crippled for life.  In other words there are cases involving great
     harm where the principle is not employed, and cases of very minor
     harm where the principle is employed extremely rigorously to the
     point where the law is used to inflict far more harm on the
     individuals involved than they ever inflicted on each other. [5]

It is clear that the authors of the Consultation Paper find "manly
sports" and even "horseplay" and possibly religious self-mortification
morally or personally acceptable, but sado-masochistic sexual pleasure
unacceptable.  It is thus equally clear that the judges were ruling not
legally, but morally, or as the Consultation Paper itself concedes, by
"policy" rather than "strictly legal" considerations (8.1, p. 19).  The
Consultation Paper does not seem to realise that much of what it sees as
"manly" and traditional horseplay (which actually borders on the truly
coercive) might be seen by others as a morally unacceptable tradition of
brutalisation and religious self-mortification the manifestation of
outright mental illness.  Those who would take such a view, such as
myself, would, however, have no more right to impose their tastes by
force of law than the judges or the Law Commission.

4. The Validity of Sado-Masochistic Sexuality

We see no difference in the moral status of sado-masochistic sexuality
(whether homo- or heterosexual) and homosexuality.  It has taken time
and a great deal of intellectual and Parliamentary endeavour to expel
the law from the private lives of homosexuals.  That process has still
not quite been completed in the case of homosexuality, as the inequality
in the age of consent, and the continuation of other discriminatory
legal and law enforcement practices still attests.  Nevertheless, most
people now accept that homosexuality cannot be repressed by legal
measures, that homosexuals are not demonic monsters whose presence will
lead to the end of civilisation, and that people are entitled to have
different sexual orientations.  It is bizarre that the judges in the
Spanner case, the appeal, and the House of Lords ruling, and the authors
of the Consultation Paper, should all be so set upon criminalising
sado-masochism.

The sole basis for this criminalisation appears to be that
sado-masochism, like drug addiction, is "dangerous and injurious to
individuals and ... if allowed and extended is harmful to society"
(12.3, p. 39) and productive of "social damage" (12.4, p. 40).

We have already argued for the principle that individuals have a right
to engage in self-harm.  However, it should be pointed out that most
sado- masochistic acts involve no permanent harm, disfigurement, or
damage to their practitioners.  Indeed, most sado-masochists have far
less chance of receiving serious injury than practitioners of the "manly
sports", whether boxing, martial arts, rugby, soccer, skiing or a

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 [33] Libertarian (1:375/48)  ALT.POLITICS.LIBERTARIAN 
 Msg  : #2333 [224]                                                             
 From : Ian Geldard                         1:2613/335      Wed 03 Aug 94 13:15 
 To   : All                                                                     
 Subj : Pt 2/2: Sado-Masochism                                                  

thousand and one other risky pastimes.  (In fact, no one in the Spanner
case, which constituted a fairly extreme piece of sado-masochist
activity, needed medical treatment).

In passing, we would also note that we find it ironic that "lawful
correction", the truly coercive infliction of punishment upon children,
should be should be viewed as acceptable by the Consultation Paper,
while consensual activities are not!

5. "Social Damage"

We simply do not believe that any more "social damage" will occur by
refraining from criminalising sado-masochism than has occurred from
decriminalising homosexuality.  We reject as fallacious the idea
suggested in the passage quoted from Professor G. P. Fletcher (12.2, p.
39), that someone who has participated in consensual "sexual violence"
is more likely to engage in non-consensual (i.e. real) violence.  (If he
does, he should be punished of course).  We know of no research that has
established any such likelihood.  Indeed, we believe that Professor
Fletcher's suggestion misunderstands the nature of sado-masochism and
the character of sado-masochists.  As a result of extensive contacts
with participants in both the homosexual and heterosexual sado-masochist
communities, and as a result of examining the research into
sado-masochism currently being conducted (and scheduled for publication)
by Dr. Bill Thompson of the Department of Sociology at the University of
Reading, we see no evidence that sado-masochists are more likely to be
anti-social, dangerous or mentally pathological in any way.
Sado-masochistic "violence" is not invasive or indicative of desires to
commit invasive or coercive acts upon other people.  Sado-masochism is
usually a form of sexual *play* which is usually "negotiated" in great
detail by its participants and which is conducted with great concern for
their mutual satisfaction  by its participants.  It should also be
pointed out that in some theories of sado-masochism it has been argued
that the conscious engagement in such forms of sexual play acts as a
psychologically beneficial way of dealing with certain aspects of our
socio-biological nature (relating to power, hierarchy, dominance and
submission), and renders one less likely to be pathologically motivated
in real life.

6. Personal "Damage"

The Consultation Paper states that any prospective defenders of the
right of self-determination should also deal with the damage that
participating in sado-masochism would inflict upon the active instigator
(12.4, p. 40).  We find it far from apparent as to what the nature of
this damage is supposed to be.  The question can only rest upon an
assumption that sado-masochism is a form of mental pathology and thus
harmful in this way to its practitioner.  But, as suggested above, this
is by no means obvious.  The only other interpretation we could put upon
this point is that participants in sado- masochism are religiously
harming themselves, i.e., damaging their chances of divine salvation.
Whether or not this is true seems irrelevant for modern law.  We have
long since rejected the idea that the religious stewardship of souls is
a legitimate function of the law.

7. The Consequences of Criminalising Sado-Masochism

We would also like to draw your attention to the practical consequences
of criminalising sado-masochism.   The number of ordinary men and women
who engage in varying forms of consensual sado-masochism is unknown.
The popularity of sado-masochistic pornography, both "soft" and "hard",
in books and magazines read by men and women alike, the results of
certain sex surveys, the popularity of "Skin 2" magazine and various
sado-masochist and fetish clubs throughout the country, and the
extensive supplying of such services by prostitutes, would suggest,
however, that it is huge.  Many celebrities, writers, film stars,
artists, entrepreneurs - and even a considerable proportion of
politicians, lawyers and judges - are known to participate in
sado-masochism.  Indeed, some sexologists suggest that elements of
sado-masochism ("forceful" sex, bondage, spanking, slapping, fantasy
games, etc.) are engaged in at some time or another by the majority of
people.

The Consultation Paper is thus proposing the criminalising of an
activity which is engaged in or seen as normal or legitimate by
extremely large numbers of people.  It will thus bring into further
disrepute a legal system that is already seen by many people as failing
to perform its proper function, that is, protecting their lives and
property against the rising tide of criminality.

In our view, rather than concerning itself with what ordinary people are
doing in their bedrooms, it would be more appropriate for the law to pay
increased attention to ensuring that it delivers speedy, efficient and
reasonably priced redress to ordinary people in civil matters, and
effective protection and restitution in criminal ones - things it is so
notably failing to do at the present time.

If the Law Commission is determined to create *real* "social damage"
then it will continue on its present course and criminalise
sado-masochism.  It should be fully aware, moreover, of the
ramifications of such a decision.  Amongst the consequences will be the
ruining of the lives of thousands of ordinary people and their
subjection to blackmail, stigmatisation, and imprisonment.  The
Commission should also bear in mind that there is an enormous likelihood
that amongst those affected will be close friends, relatives, children,
and perhaps even spouses.  We trust that you might give a moment's
thought to this fact: sado-masochism is not confined to a minority of
"deviants" and "monsters".  You will be surprised how many of your
friends and relatives are going to be criminalised by your decisions.

You should also bear in mind that there will also be the  birth of a new
struggle, uniting civil libertarians on both the so-called "left" and
"right" of the political spectrum; it will lead to civil disobedience,
protest campaigns, and the "outing" of sado-masochist politicians and
judges.  Sado- masochists and civil libertarians are not going to rest
until the criminalisation of sado-masochism is swept into the same
dustbin of history as the criminalisation of religious dissent and of
homosexuality.  The Libertarian Alliance will certainly give every
support possible to those resisting the persecution of sado-masochists
and fully endorses the right of civil disobedience against such
injustice.

Criminalisation will thus lead to both a further decline in the respect
for, and adherence to, even the legitimate functions of law and to
increased social division and conflict.

III Conclusion

We thus appeal to the Law Commission to realise the folly of
criminalising sado-masochism.  We appeal not merely on grounds of
principle - the libertarian philosophy of autonomy and
self-determination - but also of social utility.  A harmonious and
decent society cannot be built upon a basis of paternalism and social
engineering, whether relating to religion, politics, economics, health,
lifestyle or sexuality.  The purpose of the law is to protect individual
liberty, not to enforce the subjective opinions of one segment of
society upon the beliefs, expression or non-coercive behaviour of
others.

Notes

1. "Criminal Law: Consent and Offences Against The Person", Her
Majesty's Stationery Office, London, 1994.

2. See Bruno Leoni, "Freedom and the Law", Nash Publishing, Los Angeles,
1972; John C. H. Wu, "Fountain of Justice: A Study in the Natural Law",
Sheed and Ward, London, 1959, esp. Part One, "The Natural Law and Our
Common Law", pp. 55-154; Leon Louw, "Libertarianism and the Lessons of
the Common Law", Legal Notes No. 10, Libertarian Alliance, London, 1990;
Murray N. Rothbard, "The Ethics of Liberty", Humanities Press, Atlantic
Highlands, New Jersey, 1982; Douglas Rasmussen and Douglas Den Uyl,
"Liberty and Nature: An Aristotelian Defense of Liberal Order", Open
Court, LaSalle, Illinois, 1991.

3. John Stewart Mill, "On Liberty ... Three Essays", Oxford University
Press, p. 15.

4. Some of the best studies of this issue are: Mark Thornton, "The
Economics of Prohibition", University of Utah Press, Salt Lake City,
1991; Richard Stevenson, "Winning the War on Drugs: To Legalise or Not",
Institute of Economic Affairs, London, 1994; Thomas Szasz, "Our Right to
Drugs: The Case for a Free Market", Praeger, New York, 1992; Ronald
Hamowy, ed., "Dealing With Drugs: The Consequences of Government
Control", Pacific Research Institute for Public Policy, San Francisco/
Lexington Books/D. C. Heath, Lexington, Mass., 1987.

5. Christie Davies, "Invisible, Intrusive and Insidious: The Discourse
of Contagion in the Anti-Smoking Movement", FOREST, London, forthcoming
1994.

--
          +-----------------------------------------------------+
          | Ian Geldard | FidoNet  2:254/151      CIS 70734,426 |
          | London, U.K.| Internet igeldard@capital.demon.co.uk |
          +-----------------------------------------------------

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