O Filho da Noiva de Spanner Retorna — Parte II

Readers who know their kink history, or have simply read the earlier blogpost on Elephant about Operation Spanner, know the importance of the case in the organization of BDSM in Britain and the U.S. But they couldn’t have been pleased to see the Federal Court of the Eastern District of Virginia assert: “There is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, chocking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.” The argument that consent is no defense against assault was precisely at issue in Spanner, and this looks like that argument all over again.

First, let’s briefly review the original horror show, which derived its title from Scotland Yard’s investigation, ‘Operation Spanner’, of an alleged ‘snuff’ film back in 1987. Local police had found a gay kinkster’s erotica collection which included a videotape of genital torture. Never having seen anything like it before, they presumed that the scene was coercive and part of torturing someone to death and a huge and expensive investigation was launched. It culminated in Scotland Yard swooping down on a local group’s play party and 16 gay men were arrested. When the stunned authorities learned that all the action was consensual, the prosecutors declared that the participants had no right to consent to assault, which was criminal under British statutes. All 16 either plead to the charges, or were tried and sentenced to several years in prison. The case wended its way through the appeals process. A special panel appointed by the House of Lords which serves as the British Supreme Court ruled 3-2 that consent was indeed no defense against criminal assault charges. The case was eventually referred to the European Union’s Court of Human Rights, where member nations unanimously voted that Britain was not violating human rights principles to criminalize assault and to disallow consent as a defense. The net legal result: BDSM that involves significant sensation play remains illegal in Great Britain to this day.

Our sequel begins with a relationship gone bad between two anonymous parties, non-student Jane Roe, who entered into the problematical relationship with plaintiff and George Mason University student John Doe. In 2012, Doe came to the attention of University when a dorm resident adviser reported him for consensually carving ‘Kill Them’ into Roe’s knuckles with a pen knife in his dorm room. Referred to the Campus Assistance and Intervention Team (CAIT), Doe was on George Mason University’s radar as a potential safety threat thereafter. He accumulated additional interventions for minor offenses that had nothing to do with his relationship with Roe, before he committed an alleged safeword violation and Roe decided to terminate the relationship in 2014. At this point, Doe repeatedly and non-consensually contacted Roe, who eventually complained of his behavior to campus officials following receipt of a text message threatening to shoot himself if she declined to respond.

At this point, George Mason University CAIT officials began proceedings to remove Doe from the University as a threat. Despite the CAIT eventually deciding that discipline should not include expulsion, a higher level administrator took over and ruled against Doe, committing alleged due process violations in the process of expelling him. Doe sued, complaining of the due process violations, and argued that his behavior was proper within a BDSM sub-cultural context.

Enter at this point, Judge T C Ellis III of the United States District Court for the Eastern District of Virginia. Harvard and Oxford University trained, he was a naval aviator during the Vietnam War era and a Ronald Reagan appointee back in 1987. The bulk of the Judge Ellis’s ruling focuses on the due process issues and he cogently finds plenty of fault with the George Mason University, especially after the case was removed from the hands of the CAIT after it found too little evidence of safety threat to the community to remove Mr. Doe despite his obnoxious conduct toward Ms. Roe.

The potential threat to BDSM comes in the opinion’s short third section, and proposes that a high bar be set to ‘ordered liberties’ that merit constitutional protection. As irritating as Judge Ellis’ opinions maybe to those of us who believe private personal conduct merits constitutional protection, the plaintiff’s claim that he faced discrimination due to failure to recognize his sub-cultural identity and values is too weak for the attack on BDSM to gain much legal traction. Doe was hardly acting on a basis of continuously communicated consent as advocated by the BDSM community.

Ellis’ attack on BDSM must needs be circuitous, by suggesting that BDSM does not deserve the same kinds of protections offered homosexual conduct in the United States Supreme Court’s landmark Lawrence v Texas (2003) decision. In this attempt to limit applicability, Ellis takes a strict constructionist stance following Washington v Glucksberg that in order to merit protection, an activity needs to be “deeply rooted in the nation’s history and traditions, and implicit in the concept of ordered liberty.” Although BDSM has a long and varied human history, Ellis is arguing here that it lacks significant standing in American cultural history for kinksters to be a protected class with a history of unjustified discrimination that requires judicial acknowledgement for possible protection or redress.

The National Coalition for Sexual Freedom (NCSF) has issued a public statement that, holding no power to set precedent, this judicial pontification constitutes dictum; the judicial equivalent of an empty gesture. On BDSM, it is an opinion, not a ruling. George Mason University might appeal the case, but can only do so on the grounds they lost, about the due process concerns. Doe, who won the summary judgment he requested, cannot appeal the part of the case he disagrees with because he won. So legal argument about the standing of BDSM is not going anywhere from this legal dead end.

From a strictly legal point of view, this is surely right, but from a social constructionist view, this is not a very reassuring discourse. For example:

Interested people might decline to explore their kink desires because the behavior of Doe in this story suggests that some BDSM practitioners aren’t very safe to play with. This is true as far as it goes. It is very important to stay connected with a community and use your scene relationships to protect against a rogue practitioner like Mr. Doe. Conventional people have trouble letting go when relationships end, so this part of the story is far from unique to kink.

Interested people might decline to explore their kinky desires because they have no constitutional protections, and institutional responses to kink might be discriminatory. Sexual rights aren’t well protected under the Constitution, but institutional responses are becoming less discriminatory. You are safer now than pioneers in the field were 40 years ago.

Not long after the 1997 Human Rights Court decision in Strasbourg cementing Britain’s ruling that consent was no defense, Scotland Yard recognized that their relationship with the British kinky gay community was in shambles. They began programs to cooperate with the community so that the community would not shun them when Scotland Yard had serious crimes that needed investigation and they needed community help to protect community people.

Another part of Spanner’s legacy is that kinksters, gay and heterosexuals alike, realized that they needed to get much better organized to protect against this kind of discrimination. The Spanner Trust was started, and money goes to kink charities and organizing from events like Folsom Street Fair. Although leather activism did not begin with NCSF, it formally launched in 1997 as part of the increase in social organization caused in part by Spanner.

Part of the British legal argument against consent was valid: it is impossible to prosecute domestic violence cases on either side of the Atlantic if authorities must rely exclusively on victims’ willingness to prosecute abusers. Victims withdraw consent in large numbers and cases would collapse if the state did not retain an interest in and the legal authority to continue prosecutions. Yet BDSM practices and domestic violence do not present to the authorities in the same way, and, taught to differentiate consensual BDSM from domestic violence, police can discern the difference in many instances. Since 1997, NCSF has spent lots of time and energy supporting programs for educating police on just these points.

While we are not very entertained by this court decision, it is not nearly as scary as it looks, and there are lots of things you can do to protect yourself and the BDSM communities, until next time. Until we have more substantive protections for personal and sexual expression in this country, there will surely be a next time.

© Russell J Stambaugh, January 2016, Ann Arbor MI, All rights reserved

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