Is SM Illegal?

SM activity is an illegal assault if it results in marks or injuries which are more than transient and trifling.

These words from the Operation Spanner trials of the early 1990s are highly subjective and open to interpretation.

The following are could be considered illegal: heavy beatings which leave lasting marks; any activities which leave scars, bruises etc. A heavy love bite could now be unlawful. There are some areas which are well clear of the ruling. Fantasy sex, role playing and dressing up are outside his judgement. So you can wear as much leather, rubber, uniforms and fetish gear as you wish. Bondage falls outside his judgement too, if there are no lasting marks. Shaving, mummification and watersports are unlikely to be considered assaults. It is likely that mild corporal punishment, where there is no injury, would be considered trifling. However you should be aware that the judgement does not define what is trifling and the ruling is open to many interpretations. Any prosecutions which attempt to define these need to be fought, supported by the best, well-informed legal advice.

 

How To Protect Yourself

This article cannot encourage you to break the law. However it can offer you advice on what you should avoid. If you believe you may have engaged in SM activity which could be classified as actual bodily harm or grievous bodily harm, then you can only be prosecuted it there is evidence against you. This evidence could be your own statement, or that of another participant. The evidence could be in the form of documentation such as letters, photographs cassette recordings or videos.

If you are questioned by the police, remember that, whatever they say, you are under no obligation to say anything to them, even if they arrest you. However it may in certain circumstances be in your interests to answer police questions at a Police Station. You should NEVER try and decide this on your own. You should ALWAYS seek legal advice.

If you are arrested you must ask for a solicitor as soon as you arrive at the Police Station. Solicitors are completely free whilst you are in police custody. Don’t let the police persuade you that waiting for a solicitor will delay your detention. Don’t be taken in by a friendly copper who “just wants to help you through this difficulty”. The police have no right to search your home unless they have a Warrant or unless you are arrested for certain types of offence. Don’t be taken in by statements by them to the effect that, it you admit the offence, things will go easier for you in court. Or that, if you give them details of other people’s activities or identities, they will go easy on you or ‘let you off’. Without your statement, they may have no evidence to convict you or your friends.

Always insist on having a solicitor present when you are questioned. These are your rights. A videotape or photograph, cassette recording or letters which identify individuals engaging in SM scenes which could now be unlawful will provide the police with good evidence with which to bring a prosecution. Be aware that identification of individuals can come from recognisable surroundings or body markings such as tattoos or piercings.
 

Prosecutions since the Spanner Case

Since the original case there have been a number of police raids, arrests and prosecutions for both gay men and heterosexuals based on the possibility that they had engaged in illegal SM activities. In a raid on a house in Hoylandswaine in West Yorkshire 36 gay men were arrested and their clothing and accessories were taken away. Despite persistent questioning the men refused to divulge any information to the police about their actual or intended activities and in the end no charges were made. However it took the men some time and legal assistance to recover all their property.

Two further cases concerned heterosexual married couples. In both cases the husband had placed serious marks on his wife’s body in the course of a consensual SM scene. In each case when the case came to trial the Judge ruled that what took place within the confines of a consensual private relationship was of no concern to the court. These cases do not invalidate the original Spanner judgement nor is it clear how they affect SM activity outside heterosexual marriage.

Listed here are some people and organisations who are willing to provide advice and legal representation to gay men involved in SM activities.

 

  • David Clark 020 7433 1562
  • John Lovatt 020 7247 9336
  • London Lesbian & Gay Switchboard 0300 330 0630 (Daily 10am to 11pm)

 

What To Do If Police Raid Your Home

There’s a slim chance that the police might decide one day to visit your home searching for SM pornography or illegal activities or substances.

The likeliest scenarios are that they have been given a tip-off that you are involved in illegal activities (even if this isn’t so) or that they found your name and address on letters or in an address book belonging to someone else they are investigating.

Either way, as the police search your home, they will be on the look out for anything which might be evidence of a crime. The best way to deal with this situation is to be prepared and to know what your rights are beforehand so that you don’t undermine your legal rights through ignorance.

In almost all cases the police must have a search warrant to enter your house unless you have already been arrested for an alleged criminal offence. There is in practice nothing you can do to stop them coming in if they have a warrant.

Do check however that it is actually your address on the warrant and of course ask the police to show you their official identification.

Though the police may have a warrant for, say, stolen goods, they can take away anything they find which they believe is evidence of any offence being committed, not just the one on the warrant. So a video camera might be evidence that you were making and selling sexually explicit videos, and leather jeans might be used in an SM scene where activities which constituted an illegal assault had taken place. However the police must at all times act reasonably and within the law and are not entitled to go on speculative fishing expeditions – this is particularly so in the case of computer equipment.

As always with the police, you are best off not saying anything to them before you have consulted a solicitor. If they ask you what certain items are for (such as giant paper clips or leather thongs), or whether you engage in SM activities, you should tell them that you are not willing to answer questions of that nature without first taking legal advice. If you give this response to all such questions you avoid revealing things by the pattern of questions you are and are not willing to answer. The police like to get people chatting in the hope that information will be accidentally disclosed that they would not reveal if questioned directly.

There is no advantage in being hostile to the police, but there is no need to be over-friendly either. Take a business-like approach and say as little as possible. The police should allow you to use the phone while they are in the house, for example to ask a solicitor or friend or neighbour to come over. The only likely reason they might refuse is if they believe that you were about to warn other people whom they were also investigating. Ideally you should accompany the police as they search your house. But if there are a number of them you cannot be in all the rooms at once. So it’s very worthwhile asking a friend or neighbour to come over to help you watch them as the various officers move from room to room.

The police are not required to give you a detailed receipt for goods they take away at the time though they must do so within a reasonable period afterwards. So you and your friends should make a written list of things as they are taken out of each room. Contemporary records such as these can be very valuable if later on there is a dispute with the police about whether a particular item was actually taken from your house. In addition the fact that you are seen by the police to be recording what they take will discourage them from changing the facts later.

If the police are looking for specific item which they know or believe you to possess you are not obliged to tell them where it is if they can’t see it immediately. However if you think they will find it anyway it may be better to tell them than for them to demolish half your house searching. There is little chance of compensation for damage caused if you are later successfully prosecuted.

The police can take anything they reasonably believe might provide them with evidence of a crime. So a computer might hold records of names and addresses, or transactions for video sales, or magazine subscription records or a club membership list, for example. Even if the police take away equipment essential to your livelihood like computers you may find it difficult to get it back quickly and you may have to engage a solicitor to go to court to get them back. If the information on your computer is password protected the police will send it off to one of their computer experts to try to extract the information. They can’t force you to tell them the password. If you need to keep confidential information in a computerised form get expert opinion on how to protect it. If the police take essential items like address books or business records you can ask to have access to them or have copies of them. The police will only refuse if they think your access will prejudice their investigation,

Whether the police arrest you or not, you should get in touch with a solicitor as soon as possible. There is a list of SM-friendly legal organisations and people in this article. Don’t wait until the police contact you again or charge you. The earlier you get legal advice the more chance you have of avoiding prosecution and getting your stuff back.

Anyone who needs to see a solicitor at a police station can see one without paying under what is left of the Legal Aid scheme. You can then discuss with the solicitor whether you qualify for aid for further legal representation. If your home is searched and property seized without your being arrested you may still be able to get free legal advice and assistance if you are financially eligible. A quick phone call to a solicitor should clarify whether you are eligible.

THIS DOCUMENT LAST REVISED APRIL 2000

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