Consent is Not a Defense: The Legal Ruling that Criminalized Consensual BDSM in Britain

In the late 1980s, British police launched a massive investigation into men who were participating in sadomasochistic acts with other men in the United Kingdom. Known as Operation Spanner, the investigation lasted three years. During that time, dozens of gay and bisexual men were questioned by the police and 16 of them were eventually prosecuted for engaging in consensual sadomasochistic acts that took place in private settings.

The ensuing trial led to a judgment from the House of Lords known as R v Brown, which established a legal precedent that holds today: consent is not a valid defense for committing bodily harm. The result is that it criminalized many BDSM acts and opened the door to prosecuting those who engage in them, even in the complete absence of someone making a victim complaint.

How did the court arrive at this judgment? In reviewing the records, it appears to have stemmed, in part, from the incorrect presumption that persons who have BDSM interests are “sick” and inherently inclined toward real-world violence and society therefore needs to be protected from them. As stated in the judgment in this case made by Lord Templeman: “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 uncivilised.”

This judgment is interesting because it doesn’t extend to all forms of consensual violence. In fact, bodily injury resulting from boxing or other sports isn’t addressed under R v Brown and has long been legal under British law. Sporting injuries are considered legally justified because the injured party consented to them.

A legal double standard for dealing with injuries sustained through sports and injuries sustained through consensual BDSM is not unique to Britain—it exists in the United States and many other parts of the world, too.

All of this raises the important question of what role (if any) governments should play in policing consensual sexual practices. Further, if consensual BDSM were to be legalized, some are concerned that people who commit sexual violence and domestic abuse might try to use it as legal cover to prevent themselves from being held accountable for their crimes.

To learn more about Operation Spanner and the R v Brown judgment, check out the fascinating video below, in which one of the men who was arrested during this operation is interviewed. Also, to learn more about the intersection of BDSM and the law, check out this review I wrote of a fascinating book titled Consensual Violence: Sex, Sports, and the Politics of Injury.

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Image Source: 123RF/kladyk

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