Sadomasochism by Kleinplatz Peggy J. Moser Charles

Author:Kleinplatz, Peggy J., Moser, Charles
Language: eng
Format: epub
Publisher: Taylor and Francis

The Issue of Privacy

Hilary Benn MP was Under Secretary of State in the Home Office at the time and thus one of the ministers responsible for the Sexual Offenses Act (which includes references to a wide range of sexual offences, but does not include any references to sadomasochism). Responding to a letter from a Member of Parliament sympathetic to concerns raised over the proposed legislation, Benn wrote, “Under current law sadomasochistic activity which results in physical or mental harm to another could be charged under the Offences Against the Person Act 1861” (Benn, Personal Communication, January, 2003). However, Benn goes on to suggest that the use of a defense of consent where injury or serious injury has been caused during sadomasochistic acts is an aspect of the criminal law that rarely comes before court because it relates usually to activities that take place in private (Benn, 2003).

Although seeming to offer reassurance that the law is unlikely to be enforced very often because the acts take place in private, the UK Government claimed a right and responsibility in the Spanner case to intervene in private sadomasochistic practices. The Government took the view that it cannot condone acts, even consensual ones, involving injury, a position accepted by the European Court of Human Rights.

The claims of the British courts to regulate the private conduct of consenting adults on the basis of public interest were upheld by the ECHR. The Spannermen sought to overturn the UK courts’ judgments on the grounds that they violated Article 8.1 of the European Human Rights Convention: “Everyone has the right to respect for his private and family life, his home and his correspondence.” In 1997, the ECHR ruled that the UK Government had not breached the right to privacy as defined by Article 8 since it had legitimately intervened to defend the public health of UK society. This is consistent with the terms of Article 8.2, which states:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

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