Operation Spanner
Encyclopedia
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 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.
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.
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 appeal
ed first to the High Court
, then to the House of Lords
. In March 1993, the appeal was dismissed by 3–2 majority of the Lords, with Lord Templeman
in particular declaring that the reasoning for his decision was:
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
.
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
; branding was one of the very same acts presented as evidence against the homosexuals in R. v Brown (as well as evidence of homosexual acts "even where no lasting harm or disability was caused"). 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 precedent
s for sadomasochistic acts between lovers. 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)). In the case most cited, 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
, 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," or "First of all, cut and file all your nails until every finger is as smooth as it could possibly be").
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.
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 tattoo
ing. 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.
in 1997 failed (see Laskey, Jaggard and Brown v. United Kingdom
).
The legal rationale for the decisions was, in general:
, 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
.
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
".
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.
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
.
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
city of Manchester
Manchester
Manchester is a city and metropolitan borough in Greater Manchester, England. According to the Office for National Statistics, the 2010 mid-year population estimate for Manchester was 498,800. Manchester lies within one of the UK's largest metropolitan areas, the metropolitan county of Greater...
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
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
case (R v Brown
R v Brown
R v Brown [1994] 1 AC 212 is a House of Lords judgment in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10 year period. They were convicted of "unlawful and malicious wounding" and "assault occasioning actual bodily harm" contrary to...
, colloquially known as "the Spanner case") ruled that consent
Informed consent
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...
was not a valid legal defence for wounding and actual bodily harm
Actual bodily harm
Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands...
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 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 policePolice
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
had obtained a video which they believed depicted acts of sadistic torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, 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
BDSM
BDSM is an erotic preference and a form of sexual expression involving the consensual use of restraint, intense sensory stimulation, and fantasy power role-play. The compound acronym BDSM is derived from the terms bondage and discipline , dominance and submission , and sadism and masochism...
activities. Although all of those seen in the videos stated that they were willing participants in the activities, the police and Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
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 boxingBoxing
Boxing, also called pugilism, is a combat sport in which two people fight each other using their fists. Boxing is supervised by a referee over a series of between one to three minute intervals called rounds...
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 appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
ed first to the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, then to the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
. In March 1993, the appeal was dismissed by 3–2 majority of the Lords, with Lord Templeman
Sydney Templeman, Baron Templeman
Sydney William Templeman, Baron Templeman, MBE, PC, is a former British judge. He served as a Lord of Appeal in Ordinary from 1982 to 1995 in the House of Lords and was created a life peer as Baron Templeman, of White Lackington in the County of Somerset....
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
R v Brown
R v Brown [1994] 1 AC 212 is a House of Lords judgment in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10 year period. They were convicted of "unlawful and malicious wounding" and "assault occasioning actual bodily harm" contrary to...
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
Paternalism
Paternalism refers to attitudes or states of affairs that exemplify a traditional relationship between father and child. Two conditions of paternalism are usually identified: interference with liberty and a beneficent intention towards those whose liberty is interfered with...
" which intrudes on liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
.
For example, the R. v Wilson (1996) judgement ruled that an intentional act of human branding
Human branding
Human branding or stigmatizing is the process in which a mark, usually a symbol or ornamental pattern, is burned into the skin of a living person, with the intention that the resulting scar makes it permanent. This is performed using a hot or very cold branding iron...
between heterosexuals which caused pain and permanent bodily harm (a scar) was a non-criminal act, on grounds of the alleged victim's consent
Consensual crime
A consensual crime is a public order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful....
; branding was one of the very same acts presented as evidence against the homosexuals in R. v Brown (as well as evidence of homosexual acts "even where no lasting harm or disability was caused"). 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 precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
s for sadomasochistic acts between lovers. 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)). In the case most cited, 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
Fisting
Fisting is a sexual activity that involves inserting a hand into the vagina or rectum. Once insertion is complete, the fingers either naturally clench into a fist or remain straight. In more vigorous forms of fisting, such as "punching", a fully clenched fist may be inserted and withdrawn slowly...
, which may cause pleasurable pain (algolagnia)
Algolagnia
Algolagnia is a sexual tendency which is defined by deriving sexual pleasure and stimulation from physical pain, often involving an erogenous zone.Studies conducted indicate differences in how the brains of those with algolagnia interpret nerve input....
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," or "First of all, cut and file all your nails until every finger is as smooth as it could possibly be").
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.
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
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
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
Body art
Body art is art made on, with, or consisting of, the human body. The most common forms of body art are tattoos and body piercings, but other types include scarification, branding, scalpelling, shaping , full body tattoo and body painting.More extreme body art can involve things such as mutilation...
such as tattoo
Tattoo
A tattoo is made by inserting indelible ink into the dermis layer of the skin to change the pigment. Tattoos on humans are a type of body modification, and tattoos on other animals are most commonly used for identification purposes...
ing. 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.
Appeal to the European Court of Human Rights, summary of each decision
An attempt to overturn the convictions in the European Court of Human RightsEuropean Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
in 1997 failed (see Laskey, Jaggard and Brown v. United Kingdom
Laskey, Jaggard and Brown v. United Kingdom
Laskey, Jaggard and Brown v United Kingdom is a case that was argued before the European Court of Human Rights, which ruled in January 1999, that no violation of Article 8 of the European Convention on Human Rights occurred.-Facts:...
).
The legal rationale for the decisions was, in general:
- (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 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 moralsPaternalismPaternalism refers to attitudes or states of affairs that exemplify a traditional relationship between father and child. Two conditions of paternalism are usually identified: interference with liberty and a beneficent intention towards those whose liberty is interfered with...
. 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 2008Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland...
, 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
Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
.
On the other hand, in the Criminal Justice and Immigration Bill 2007
Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland...
, 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
Extreme pornography
Section 63 of the Criminal Justice and Immigration Act 2008 is a piece of legislation in the United Kingdom that criminalises possession of what it refers to as "extreme pornographic images". The law was enacted from 26 January 2009...
".
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
Algolagnia
Algolagnia is a sexual tendency which is defined by deriving sexual pleasure and stimulation from physical pain, often involving an erogenous zone.Studies conducted indicate differences in how the brains of those with algolagnia interpret nerve input....
) for consenting adults.
As a result of the Spanner case, the Law Commission
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
decided in 2007 to investigate the status of consensual sadomasochistic acts in the law of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
.
See also
- Consent (criminal law)
- Consensual crimeConsensual crimeA consensual crime is a public order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful....
- People v. JovanovicPeople v. JovanovicPeople v. Jovanovic, 263 A.D.2d 182, 700 N.Y.S.2d 156 , was a highly publicized criminal case in New York. In 1996, Oliver Jovanovic was accused of sadomasochistic torture of a woman whom he had met shortly before on the Internet...
- Victimless crime
Further reading
- 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