In 1987 police in Manchester, England obtained a video that showed a group of men perpetrating acts of sadistic torture, including beatings and genital abrasions. Convinced that this was a recording of men being tortured prior to being killed, the police launched a murder inquiry – Operation Spanner – that involved the questioning of hundreds of gay men.

When the video participants learned that the police had misinterpreted the video they contacted them immediately. They explained that the tape was, in fact, a recording of a BDSM (Bondage, discipline, sado-masochism) session in which they had all been willing participants. They then reassured the police that none of the injuries sustained during the session had required medical treatment. Understandably, they assumed that this information – plus the fact that the acts were undertaken in private – would resolve the matter. But they were wrong.

The police pressed various charges – including that of ‘assault occasioning actual bodily harm’ – against 16 of the men. Even more disturbingly, all 16 were found guilty and subject to a variety of penalties that ranged from fines to a four and a half year prison sentence. Nor did the situation improve when the defendants launched an appeal. The case went to the Court of Appeal and the House of Lords before finally ending up at the European Court of Human Rights. The defendants lost their appeals in every Court.

Within the UK, the various judges came to the rather strange conclusion that, even though all of the men had been willing participants, it was still somehow possible to ignore their consent and declare it a crime. For example, one of the House of Lords judges declared:

“I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty.”

The European Court of Human Rights basically took the position that ‘it’s up to each individual country to decide how to deal with this sort of thing.’

These were particularly extraordinary judgements in light of other case law involving BDSM and, in one case, rape. For example, the case of R. v Wilson (1996) involved a man who used a hot knife to brand his initials on his wife’s buttocks. She had consented and the Court of Appeal had ruled that this meant there was no criminal act. More disturbing was the case of DPP v Morgan (1976), wherein a man had convinced three of his friends to rape his wife. He had told them she was ‘a bit kinky’ and would ‘pretend’ she didn’t want to do it. When all four men were tried with rape three of them argued that they thought she had consented. They were found guilty but not before the House of Lords had decreed that the mistaken belief that the victim had consented could be enough ‘to rebut a charge of rape’.

So, in one case the Court finds that consent does absolve the perpetrator of criminal liability and in another the Court finds that simply being mistaken about consent can be enough to escape criminal liability. Which raises the question of why the same logic wasn’t applied to the 16 victims of Operation Spanner. There really is only one fundamental difference – and that is the fact that the other two cases occurred in the context of heterosexual marriage.