BDSM and the law

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Disclaimer: This article is offered in good faith, but people should seek the advice of a qualified lawyer familiar with local laws.

Legal provisions vary from place to place. Nevertheless, unfortunately the best advice is probably still don't get caught.

Most of the emphasis in legal discussions on BDSM discussion pages is with respect to the criminal law, but for most of us, it is actually through employment or family law that our sexuality poses the most risk. In the UK, Lawrence Pay, from Roissy, was initially reported to the Police but they weren't interested in pursuing any criminal charges. What caused him damage was that all the details about his involvement with Roissy, whether legal or illegal having not been determined, were then passed on to his employers, the Probation Service, where he worked with sex offenders. He lost his job, and then lost his claim for compensation in the employment tribunal (although he is said to be taking his case to higher authority in the European Union).

Part of the reason for this is that there is even more scope for personal prejudice (or malice) in employment and family law disputes. For instance throughout the US, employment (aside from that covered by a union labor agreement) is at will, meaning that an employee may be dismissed for any purpose, incuding being unable to stop smoking (away from the workplace) as shown by an employer required drug test. Having said that, one of the difficulties with the English and North American criminal law in this field is that there is generally a wide disparity between the strict letter of the law and the extent to which many authorities are interested in carrying it. This leaves a lot of scope for capricious behaviour by authorities. However, it makes sense to consider the criminal law first, because it provides the jumping-off point for much of the rest.

Spanner is notorious throughout the BDSM community, especially in the UK. There are many good websites which go into the issues in detail, and many more campaigning web-sites for example Spanner Trust and SFC. Perhaps the most notable thing to have come out of the Spanner decision was a much stronger sense of a BDSM community identity. It has launched the SM Pride March, and in many ways what was heralded as a victory for the sexual conservatives was wonderfully counter-productive.

However, in the UK, Spanner established the basic rule that consent is no defence to an assault charge arising from sadomasochistic play, so long as the injury is more than trivial. There has been much disagreement, both in the courts and by commentators, about what counts as "more than trivial". Bleeding, breaking the skin and bruising will strictly speaking be held to be non-trivial. However, the reality is that the Police and the CPS have better things to do than trawl SM clubs looking for kinksters. In this respect, the UK (at any rate in the big cities) has a different ethos from the US. The problem for us is that the law is still present in the background, ready to be used should the climate change, or if a reactionary police officer or prosecutor decides to take action, or a radical priest or pastor prods one to do so. Even if you are into caning, needle-play or heavy flogging, you'll very probably be ok. The risks increase if what you're doing actually causes permanent damage.

The best advice is: don't create any permanent record of what you're doing. If there's no evidence, you can't be prosecuted (nor will it be as easy for someone to use it against you in a family court or employment tribunal). Making videos or taking photos of what you are doing may be sexy, but keeping them is most likely unwise. If you must keep records, there are encryption programs such as TrueCrypt and GnuPG that can protect records to a substantial degree. Because SM is consensual, it is unlikely that there will be a "victim" to make a complaint. Most serious play takes place in the privacy of our own homes, with no witnesses and usually no record. The Spanner men became trapped by the law in great part because they had made videos. It's not what you do that counts, it's what you can be proved to have done.

Various myths and rumours have swirled around about the new UK Sexual Offences Act 2003 (in force in May 2004), and the bizarre inconsistencies it may have introduced. Again however, it doesn't really create additional risks for clubs. There's a new offence of "voyeurism" but this means watching or filming others who don't consent to you watching, when you know that they don't. It's more aimed at men who like to video themselves having sex with women without them knowing. There's an offence of "exposure" of the genitals, by either men or women, but to constitute an offence, this must be done "intending others to see and to be caused alarm or distress". Not merely caused offence you note, which would depend on the subjectivity of the viewer. Undercover vicars in SM clubs are going to have some difficulty proving that the guy with his tackle out or the girl in the stirrups was intending to cause anyone alarm or distress. There is a new offence consisting of any sort of sexual activity in a public toilet - and clubs open to anyone who pays to get in are public for this purpose. So expect more signs in the loos banning shagging. And necrophilia has now been made an offence for the first time!

There are signs that BDSM imagery is under threat with proposals to change the law in the UK, US and a number of European countries to amke it illegal to view images of extreme sexual violence. In the US, such a law has also had the effect of action against Web sites hosting only text stories, clearly labeled so, if they involve underage participants (Lolita would likley qualify, except that it is printed and so has greater protection under US law) or animals.

With regard to family and employment law, there are basically two sorts of family law disputes:

  • those involving local authorities, care orders and the like, and
  • private disputes between individuals. Plus adoption and fostering.

First of all, that you are into SM should not, by itself, cause a visit from a social worker. They won't be interested unless a child watches or is any way involved in what's going on. However, it's different if there are already child protection concerns, e.g., because of accusations or a record of neglect or abuse. If there are, then every tiny aspect of your life will come under scrutiny, including your diet, your poor taste in men (or women), and, inevitably, your sex life.

Prospective adopters, and most particularly foster parents, should be very careful, though. This is because the State has to carry out a prior investigation into whether you are a "suitable" person to have responsibility for someone else's child. Inevitably this involves making moral judgments, which takes everyone into murky waters. The best advice is to keep that side of your life absolutely separate and hidden.

On the other hand, in private disputes over residence and contact between mother and father, in the UK, Courts don't much care most of the time. Family judges are typically case-hardened people who have seen it all. They become impatient with parents trying to sling mud at each other, since all it does is prolong the agony. So long as the children were unaware of Mum or Dad's taste for kink, the judge probably won't care - it'll just provide the lawyers with extra amusement and fees. If that's what's hidden in your closet, don't lose too much sleep over it. And try not to rise to the bait when your ex-partner tries to make a big deal out of it. Remember, mud-slinging tends to bore judges to death. It's probably only if mother makes her living as a pro-domme that she may run into trouble - in a judge's eye, that unfortunately won't be seen as much different from prostitution.

It's in the employment arena that most of us probably face the greatest risk. The risks are much higher for those who are involved with children or offenders, or who are public sector employees, such as teachers, police and probation officers, or social workers. It makes no difference that your activities take place in your own time. Nor will your right to privacy help you: both the English and European courts have held that it is no breach of your right to privacy for an employer to sack you on the basis of your sadomasochistic activities, if they are in clubs or appear on web-sites. That counts as being 'in public'. In Lawrence's case, his involvement with Roissy was considered to be "incompatible" with his duties as a probation officer working with sex offenders and other vulnerable people. In particular, it was reasonable for his employer to take the view that this brought them into disrepute and might undermine public trust. In addition, if you have been convicted of a criminal offence (or even cautioned) in relation to your BDSM or sexual activities, this in itself may be fair grounds for dismissal.

Sadly, this means that those of us who are sensitive about our photographs being taken in clubs and publicised on websites are probably right to feel that way. Again, it's all a matter of evidence. There is always a danger, however remote, that someone else in the community may decide to send photos to your employer as a way of making trouble, or tht they will come to light in some less malicious way.

There hasn't been a recent test case involving someone dismissed from employment which did not involve contact with children, offenders or other vulnerable people. Given the emphasis in Lawrence's case on these factors, as making his dismissal justifiable, it may be that being sacked from a job as say an accountant, would not be so defensible. But of course, few of us want to be a test case.

Finally, we all know stories about actions that technically constitute offences, and urban myths about people who unexpectedly and bizarrely found themselves on the wrong end of the law. They do happen, especially when the police or prosecutors involved are self-rightous or embarrassed and behave badly. But, before you all email in on one side or another - this piece isn't intended to be a definitive account of what's legal and what's not. It's more in the nature of a risk assessment, assuming that we all want to carry right on doing what we do!

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