BDSM Law

The law in the UK is frankly a mess …..and the law is getting worse and more bizarre.

Grooming: 
The term grooming was coined to reflect the growing problem of those who use online facilities to talk to children with the ultimate goal of meeting them for the purpose of committing a sex offence, although any communication with a child for the purpose of abusing them – in person or otherwise – is legally considered to be grooming. (This is usually interpreted as abusing them in person or arranging for another person to abuse them).

Police believe they have exposed a new groomign gang in London as officers warn widespread abuse is taking place across the country. with girls (possibly up to 30) between the age of 13 and 15 being raped by a group based around a McDonald’s in Stratford. Police are arresting around 420 men every month over child sexual exploitation across England and Wales.

Grooming is covered by 

  • Sexual Offences Act 2003, Section 14/15 

Sexual Offences Act 2003, Section 14
– Meeting or arranging the meeting of a child under 16 with the intent of sexual abuse.

Under the Sexual offences Act 2003 (SOA 2003), s 14, it is an offence to arrange a meeting with a child under 16, for oneself or someone else, with the intent of sexually abusing the child. A person commits such an offence if:

  • they intentionally arrange or facilitate something that they intend to do, intend another person to do, or believe that another person will do, in any part of the world; and
  • doing it will involve the commission of an offence under any of ss 9 to 13 of SOA 2003 (ie, sexual activity with a child; causing or inciting a child to engage in sexual activity; engaging in sexual activity in the presence of a child; or causing a child to watch a sexual act).

Consequences:
Magistrates Court: up to 6m in jail &/or fine. (In practice everything gets sent to Crown Court)
Crown Court: Up to 14 years inside

Defence: The person arranging/ facilitating something that, although they believe an offence might happen, they do not intend it to happen, and they act for the protection of the child.
A person acts for the protection of a child if their aim is to:

  • protect the child from sexually transmitted infection;
  • protect the physical safety of the child;
  • prevent the child from becoming pregnant; or
  • promote the child’s emotional well-being by the giving of advice.An example of this would be where a person provides a condom to a girl under 16 to protect her from sexually transmitted infections/pregnancy where she says she is already having sexual intercourse.

Section 15: Meeting a child as part of grooming
Section 15 of SOA 2003 also make it a criminal offence to meet a child following the grooming process.

Someone aged 18 or over (A) commits this offence:

  • if they have met or communicated with another person (B) on at least two occasions and later intentionally meet B;
  • arrange to meet B;
  • A or B travel anywhere in the world with the intention of meeting each other and A has the intention of abusing them.For the offence to be committed, B must be under 16, and A does not reasonably believe that B is 16 or over.

Consequences:
Magistrates Court: up to 6m in jail &/or fine. (In practice everything gets sent to Crown Court)
Crown Court: Up to 10 years inside

Section 5: Sex with a child under 13=Rape
SOA 2003 makes it clear that no child under 13 years of age can ever consent to sexual activity. This means that sex with a child under 13 is automatically classified as rape and carries a maximum life sentence.

Consequences:
Magistrates Court: Not available
Crown Court: Up to life

The Sex Offenders Register
Anyone convicted of a grooming offence under ss 14 or 15 of SOA 2003, is required to notify the police of certain details, either for a period of time or for life. These are known as ‘notification requirements’. Within three days of the conviction (or within three days of release from prison if they are jailed for the offence) they must tell the police:

  • their date of birth;
  • their national insurance number;
  • their name and any other names they use;
  • their home address;
  • the address of any other premises in the UK at which, at the time the notification is given, they regularly reside or stay;
  • whether they have any passports and the details of any information recorded in them.
  • Any changes to the above information must be reported to the police within three days and if the offender spends seven days (either continuously or over a period of 12 months) in a different address to their home address, then this must also be notified.
  • They must confirm annually to the police that the information remains the same.
  • Period on Sex Offenders Register from two years (for someone cautioned for a relevant offence) to life for someone jailed for more than 30 months for a sex offence.

Risk of Sexual Harm Order
A new civil preventative order, the Risk of Sexual Harm Order, may be imposed which will prohibit adults from engaging in inappropriate behaviour such as sexual conversations with children online.

Eliciting sexual chat: On 3 April 2017, the UK brought into force s67 of the Serious Crime Act 2015 which makes it a criminal offence for anyone aged 18 or over to intentionally communicate with a child under 16, where the person acts for a sexual purpose and the communication is sexual or intended to elicit a sexual response. (The offence applies to online and offline communication, including social media, e-mail, texts, letters, etc.), this means that the communication must
1. be for a sexual purpose (and not merely educational) 
2. a) the communication must be sexual or
     b) it is intended to elicit a sexual response
This means that it’s no longer possible to chat to anyone under 16 about BDSM in case it is deemed to be a breach of the act. (More Here)

What is Consent and Injury?
It would appear that normal BDSM is OK and that causing severe bruising of a willing but submissive partner is assault but only if the welts are more than transient or the behaviour excessive; however the status of the law is unclear because it would appear that consent to actual bodily harm removes the offence of assault (ABH) in consentual BDSM in the same way that consent removes it in boxing or football. Since the Equality Act, it would appear in the UK that normal BDSM if genuinely consentual is OK ……. and the overriding lesson is get it in a written contract and do so at the start of a relationship so there is no assertion of fear or undue influence in the signing of the contract.

The caselaw on injury is also a mess because older cases involved homosexualilty at a time when it was illegal and when there were therefore policy decisions.

Relevant Cases:

R v Brown 1994 (gay) – consent not defence to ABH (convicted for nettles being rubbed onto nipples, testicles being held with spiked gloves, scrotums being sandpapered and foreskins being mailed to wooden boards.
(Upheld by European Court of Human Rights in Laskey v UK 1997)

R v Wilson 1996,(hetero)  the defendant heated a knife and branded his initials on his partners bottom with her consent and it was held to be like a tattoo and with consent and within a proper relationship, so Wilson was acquitted.

Sutton v Mishcon de Reya (2003)(gay)  EWHC 3166, all about enforceablility of contracts and whether there is undue influence in the signing of the contract.

R v Walsh 2012, (gay) the Court acquitted the defendant having found pictures of a private sex party with willing adults engaged in fisting and urethral sounding (I had to look it up too, its medical probes being placed into the urethra – CV) and in which the acts were deemed not extreme because they were commonplace in the relevant community. The Brown convictions appear to be the wrong side of the line because they involved a group of men carrying out activities not normal in the gay BDSM community and which carried an unpredictably dangerous activity.

R v Raymond Hodgson (2012) (hetero – but no physical harm) The case arose where Raymond Hodgson was charged with common assault (pleading guilty) because after a row, he then squirted brown sauce over his girlfriend for reading 50 Shades in order to show her what saucy meant. He intended to demean his girlfriend and there was no issue of any consent.

R v Lock 2013 : The latest 50 Shares case, R v Steven Lock 2013 resulted in an acquittal …..and is probably a case of a Sub rather than a Slave. The complainant went to Mr Lock’s flat and during the course of a 50-shades inspired session, she was tied up and whipped. Too hard she said although she admitted that there had been numerous blows and that she hadn’t used an agreed safety or stop word “Red”. Lock went into another room leaving her bound and she texted a friend for help. She then refused sex and left the flat and just after that the police arrived. The written contract and tattoo on her body saying “Property of Steven Lock” helped to establish consent and obtain his acquittal.

Commentary:
In Walsh and in Lock, the events were not criminal because of provable consent (Lock had a written contract and Walsh’s video proved consent), and because they were normal within BDSM. In Lock, the complainant admitted the existence of a safety word and that she had not used it although lock would have been wise to gradually increase the level of any corporal punishment rather than to start it at full power.)

Assault is however a strange thing because it has a very low threshold – for example, slapping a woman’s bottom is assault, however gently it is done, unless she has consented to it and

Prize fighting without boxing gloves is illegal but boxing in legal and it’s all to do with safety. Asked to explain the difference between R v Wilson and R v Brown, Master Charles said “Its difficult to distinguish the two cases, except that Wilson was hetero and Brown homosexual at a time when homosexuality was illegal, and that Brown was extreme and involved a group of men in a sadomasochistic event whereas Wilson was two individuals (and similarly Walsh involved consenting couples at a sex party).

It is now thought that R v Brown is out of date, but might still result in a conviction because of the extreme nature of the act of nailing the foreskin to wood. It is considered that genuinely consentual and informed BSDM which is not extreme (minor electric shocks, corporal punishment not leaving welts visible the next day, nettles being rubbed onto nipples, testicles being held with spiked gloves, probably OK – but sandpapering testicles and nailing foreskins probably not OK for health reasons (although ….. if consentual and demonstratively sterile to medical standards, then ……).

In short if it is no more dangerous than a game of football or boxing match, then you’re probably OK if you have consent, after all a boxer can always throw in the towel just as a Submissive can always shout RED!