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The Spanner case/human rights essay

23 Jun

Introduction

 

The European Court of Human Rights has been instrumental in upholding fundamental rights and in the process has generated a large body of case law. In accordance with common principles of law, these judgements may be relied upon in future cases.

However, blindly following this principle to the extent of replicating mistakes or wrong judgements by the ECHR does not seem to be a sensible or justifiable path. The focus of this essay will be on one such particular judgement; the controversial case of Laskey, Jaggard and Brown v United Kingdom; and I aim to show that the case was wrongly decided and should not be followed or considered by the European Court of Human Rights in any future cases. It is not my aim to discuss in-depth the ramifications of this decision for UK public law and criminal law, nor consider questions of ethics. Instead, the reasoning of the judgement will be subjected to scrutiny and considered from a practical perspective.

 

Article 8 of the ECHR

Article 8 states:

“1) Everyone is entitled to respect for his private and family life, his home and his correspondence.

2) 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…public safety…the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.[1]

Art 8(1) simply states the right, while 8(2) then provides limitations for the right[2]. However, the interference is subject to a two-prong test: it must be “in accordance with the law” and also “necessary in a democratic society.” Therefore, in order to show that the European Court of Human Rights decision in the case of Laskey, Jaggard and Brown v United Kingdom was wrong, it needs to be shown that the interference was either 1)not necessary in a democratic society or 2) not in accordance with law. As it was undisputed by both parties that the criminal proceedings constituted interference by a public authority and that it was in accordance with law[3], the focus of this essay will be on the question of whether the interference was necessary in a democratic society.

 

The Facts…or, The Road to the ECHR

In 1978, a group of homosexual friends started meeting, in twos and threes, to have sex. Over the years they began to experiment with sadomasochism. In 1987, the police charged the friends under sections 20 and 47 of  the Offences Against the Person Act: “the infliction of actual bodily harm and wounds[4]” for one-off offences such as hitting each other with a ruler, caning, and dripping ‘hot’ wax on each other that had taken place over a ten-year period[5].

The trial judge, Judge Rant, ruled that consent was not a defence to assault. They were convicted on 19th December 1990; The decision was upheld by the Court of Appeal and then confirmed by a split (three to two) decision by the House of Lords in 1992.

Mr Laskey, Mr. Jaggard and Mr Brown applied to the European Court of Human Rights. They complained that their convictions were an unlawful interference with their right to respect for their private life. .

 

The Judgement

The European Court of Human Rights held that there had been no breach of Article 8.[6] It was held that the provisions of Art 8(2) were satisfied by the reasons given by the national authorities[7], for three reasons:

(1) The applicants’ sadomasochistic activities caused a “significant degree of injury[8]

(2) Sadomasochism is potentially harmful, so can be prosecuted even if no harm occurs[9]

(3) The applicants were not singled out because of bias against homosexuals[10]

If it can be shown that the three reasons given by the court for holding that Art 8(2) was satisfied were wrong – (that the applicants’ activities did not cause significant injury, that sadomasochism is not potentially harmful, and that the Court did not have enough information/evidence to decide that the applicants were not singled out due to bias against homosexuality)- then it shall be proved that Article 8(2) was not satisfied. This would mean that there had been a breach of Article 8 (and it would not be necessary to apply the proportionality test, which is only applied if a legitimate aim can be found). Since the judgement holds that there has not been a breach of Article 8, the judgement would be wrong, meaning that this case was wrongly decided, and therefore should not be considered as precedent by the ECJ in future cases. It is my aim to accomplish the above in this essay. Firstly, we will examine the assertion that the applicants’ activities caused a significant degree of injury.

 

 

(1) Injury in the First Degree

The Court distinguished the case from Norris v Ireland and Dudgeon v Ireland, two cases which held that criminalising homosexuality breached Article 8, on the basis that the significant degree of injury or wounding itself was the feature that distinguished the applicants’ case. The Court stated that the significant degree of injury “in itself suffices to distinguish the present case.[11]

From this, two facts are apparent: firstly, the Court considered that the applicants’ activities involved a significant degree of injury or wounding, and secondly it is only because the activities involved a significant degree of injury or wounding that the case was able to be distinguished, and thus the applicants could not rely on those precedents to have their right to private life protected.

However, if it can be argued that a significant degree of injury did not occur, it will be proved that the applicants should have been permitted to rely on the precedents.

The fact that none of the applicants over the ten year period even needed to visit a G.P. should have been enough evidence that a significant degree of injury or wounding did not occur. Arguably, the Court may be said to have fabricated the term “significant degree of injury or wounding” (which has no legal meaning) to stop the applicants relying on the precedents which could have resulted in the opposite judgement being reached.

 

Piercing the Body Beautiful

Activities such as tattooing, body piercing and body modification were legalised in the United Kingdom at the time of the conviction, the appeals and the ECHR judgement. These activities continue to be legalised in the United Kingdom and other EU member states such as The Netherlands, Germany and France. To elaborate, “body modification” is an umbrella term for various “mods” including bifurcation of the tongue and the insertion of silicone into a pocket created in the skin[12].

Likewise, piercing studios in the vast majority of British towns offer microdermal implants, which are permanent piercings created by inserting a metal plate called a microdermal anchor into a pocket cut into the wearer’s skin[13]. If the piercing is successful, it can never be removed unless it is cut out from the skin by a doctor, which will leave permanent scarring[14]. It is worth noting that permanent scarring did not occur in the applicants’ case.

Why then are the above more ‘violent’ and public practices legalised by UK law, but less ‘violent’ and private sadomasochism is allowed by the Court to be criminalised by UK law? This appears to be illogical. If the Court’s reasoning is imposed on the body modification/piercing/tattoo industry, (i.e. that a “significant degree of injury” has occurred even if medical attention is not required) then these industries stand guilty of having committed a significant degree of injury on every person who is able to wear earrings that do not clip on. The Court erred in not considering the legality of these industries. Additionally, the very fact that these industries are found guilty of wounding when the Court’s argument is applied shows that the argument is flawed.

Furthermore, the Court’s judgement did not disagree with the United Kingdom’s assertion that the applicants’ activities amounted to “genital torture” and holding that Art 8 had been breached would be tantamount to imposing on the contracting parties “an obligation to tolerate acts of torture.[15]” However, the United Kingdom legalises genital piercing[16]. It seems inconsistent for the Court to allow a member state to imprison individuals for hitting a consenting partner’s genital region with a ruler while granting licences to other individuals to ensure that the area is permanently disfigured by the piercing hole.

These activities are far more extreme and dangerous than any act that the applicants performed. But the defence of consent is available to a tattooist; more than that, consent is presumed because tattooing cannot be prosecuted under UK law[17]. The consent defence is written into the statutes that regulate licensing; or rather, consent is presumed by the statutes. If the legal presumption of consent is available to a tattooist who commits a significant degree of injury, it makes no sense for the ECHR to uphold UK law which holds that the defence of consent is not available to a person who likewise commits a significant degree of injury.

 

The Problem of R v Wilson

A further inconsistency arises in the case of R v Wilson [1996] where the defence of consent was made available by the UK courts to a man who cut his initials into his wife’s skin, resulting in an infection; an act far more ‘violent’ than anything performed by the applicants. Since the Court’s argument that a significant degree of injury or wounding occurs even if a visit to the G.P. is unnecessary, then the harm caused in Wilson, which required medical treatment, must be greater than a significant degree of injury or wounding. The UK court used the analogy of tattooing to decide that the state cannot interfere in individuals’ private lives. This precedent overturns the ECHR’s ‘significant degree of injury’ distinction.

The ECHR claimed in their third reason (the issue of bias against homosexuals, an argument that revolved around Wilson) that this case was not similar to the present case. However, if R v Wilson is applied to the first reason (significant degree of injury), it is obvious that (at the very least) a significant degree of injury or wounding occurred; that the activity was held to be analogous to tattooing; that the defence of consent was allowed; and, finally, it was held that “it is not the role of the courts[18]” to interfere in the private life of a couple. If considered with reference to the Court’s significant injury argument, R v Wilson acts as a non-binding precedent, negating the significant injury argument and promoting the opposite conclusion that injury does not distinguish a case from other cases where right to respect for private life was protected.

R v Wilson also proves that UK law does not criminalise ‘violent’ acts if consensual and carried out in private. This negates the UK’s argument that the state is entitled to prosecute kinky people, as the UK’s argument was based on the premise that sadomasochism was illegal in the UK, but R v Wilson confirmed that some SM acts such as branding are not illegal in the UK. One could argue that the premise was flawed as it assumed that all SM acts were illegal. Since the premise and therefore the argument were flawed, arguably the ECHR should not have accepted the UK’s argument in the judgement.

 

The Problem of Ambiguity

       The United Kingdom argued that the injuries caused were not “of a trifling or transient nature[19]” and used this view to justify state interference with the applicants’ Art 8 right and non-entitlement of SM couples to a consent defence. This view was upheld by the Court in paragraph 45 of the judgement, without definition of the meaning of the terms “transient” or “trifling” in this context. However, since the applicants did not require medical treatment, this suggests that the ‘injuries’ were of transient and trifling nature in the ordinary sense of the terms. Additionally, it is not clear if this is a two-prong test requiring injuries to be both transient and trifling in order for state interference not to be justified, or whether only one term need be satisfied.

It is also not clear how this test interacts with the “significant degree of injury or wounding” test, as the judgement refers to “a significant degree of injury or wounding which could not be characterised as trifling or transient”, effectively making the two tests interact. Likewise,  the difference between significant injury and wounding, or even what amounts to a “significant degree” of injury is not stated. It is also unclear whether this “injury” test is a two-prong test or not. These ambiguities might cause problems or confusion if the ECJ was to adopt this case as binding precedent or consider/be influenced by this case in future judgements.

 

The Unknown Crime

Another practical problem with allowing the UK to criminalise sadomasochism arises when one considers the fact that sadomasochistic pornographic material was legalised, and, significantly, implements designed for sadomasochistic play were legally sold for this purpose in high-street stores such as Ann Summers and other licensed sex shops. Chain bookstores such as Waterstones sold sadomasochistic erotic fiction such as that published by Nexus. Sadomasochism legally appeared in mainstream films such as 9 1/2 Weeks; the BBC adaptation of Tom Sharpe‘s novel Blott on the Landscape was criticised by Mary Whitehouse due to a scene that depicted the caning of a man who was tied to a bed[20]. The UK has continued to permit SM references in the media up to the present day; the sitcom Coming of Age, usually broadcast on the major, mainstream channel BBC3, includes two teenage characters in an SM relationship. SM acts were performed on-screen in one episode.

When the Court of Appeal reduced the prison sentences for the reason that the applicants had not known they were committing crimes, Lord Lane commented that a reduction would not be available in future cases, as the post R v Brown public should now be expected to know that sadomasochism was a crime. However, it is not clear that individuals outside the legal profession are, even now, aware that their actions in the privacy of their bedrooms may be criminal. It is a long-standing principle in the EU member states that the law must be clear and accessible; this principle can be seen in Art 7 of the European Convention on Human Rights. Unfortunately, it appears that many people may have committed crimes multiple times without ever realising it, such as the couple in R v Wilson; although their case had a happier ending, they did not expect to end up in court in the first place. The problem is compounded by the legality of SM equipment, clothing and pornography; how many people are aware that buying an implement from Ann Summers is legal but using it could result in imprisonment?

Recently, a UK documentary titled Kinky and Proud was aired on a major UK network; the individuals featured were filmed performing sadomasochistic activities in the UK. It is debatable whether they would have agreed to be featured in the documentary if they had understood that they were committing crimes on national television and that the film could have been admitted as evidence in a criminal trial against them.    Likewise, it is probable that only a minority of viewers understood that it was legal for them to watch the broadcast but criminal to copy what they saw. Another problem is that the illegality of sadomasochism is not covered by the National Curriculum in sex education courses.

 

The Unknown Vendetta

The ECHR accepted the UK’s argument that states are entitled to criminalise sadomasochism to protect the public, but the above facts show that the UK was not taking the criminalising of SM seriously; everything facilitating, popularising, depicting or de-stigmatising SM was legal; only the act itself was now criminal. If the government was serious about criminalising such activities, it is unlikely that such significant oversights would have been made. Criminalising the sale of SM equipment such as whips, restraints, paddles etc would have reduced the ability of individuals to engage in sadomasochism. Illegalising SM  pornographic material and SM scenes in fiction and films would reduce the popularity and acceptability of sadomasochism.

 

Therefore…

       The Court should not have accepted the arguments of the United Kingdom on the grounds that criminalising SM would breach long-held EU principles regarding the clarity and accessibility of the law, and for protection of EU citizens against unknowingly committing crimes and being imprisoned.

The Court should also have rejected the United Kingdom’s argument on the ground that the United Kingdom was not taking serious preventative measures against sadomasochism, so the UK could not base their argument on the assumption or premise that the UK was trying to prevent sadomasochism. Furthermore, since the UK was not trying to prevent SM, the reasoning that criminalising SM was necessary in order for the UK to prevent SM is illogical.

The Court should likewise have rejected the reasons given by the United Kingdom on the ground that it makes no legal sense or common sense to criminalise SM while purchasing SM equipment, pornography and fiction is legal and extremely accessible (i.e. can be bought on the high street).

 

(2) The Cult of Violence

 

The second reason in the judgement given by the European Court Of Human Rights was the rejection of the applicants’ submission that they should not have been prosecuted as the ‘injuries’ caused did not require medical treatment. The submission was not accepted on the grounds that “in deciding whether or not to prosecute, the state authorities were entitled to have regard not only to the actual seriousness of the harm caused…but also…to the potential for harm inherent in the acts in question [emphasis mine].[21]” In other words, sadomasochism is likely to cause harm and due to this fact, states have the right to criminalise it.

The Court gave no evidence for this assertion in the judgement, apart from stating “In this respect it is recalled that the activities were considered by Lord Templeman to be ‘unpredictably dangerous‘[22].” Apparently, if Lord Templeman says so, then it must be so. The Court was wrong to assume that SM is likely to be harmful without providing any evidence for this opinion. Therefore, it is the Court’s definition of sadomasochism as a violent form of gratification that will now be challenged, as if it can be proved that SM is not likely to cause harm, then the Court’s second justification will fall.

 

Pleasure from Pain: an Evil Thing[23] or, Kinky People: Psychopathic Monsters

The judgement of the European Court of Human Rights judgement confused criminally dangerous, psychopathic sadists with sadomasochists, believing both to be one and the same thing. First, we will briefly look at those texts which back up the ECHR’s sadist-sadomasochism confusion, then explore how other authors have dismissed these views.

Robert Eisler promoted this confusion in his lecture delivered at a meeting of the Royal Society of Medicine[24]and subsequently in his book Man Into Wolf: An Anthropological Interpretation of Sadism, Masochim and Lycanthropy (1951). Eisler claimed “the sadist, including the murderer of the Neville Heath type, is…a-social…able to enjoy the most horrible sufferings inflicted upon others.”

This misunderstanding results from the misinterpretation of the work of early psychoanalysts; ironically, at the turn of the 20th Century a clear distinction was drawn between sadists and sadomasochists. Richard von Krafft-Ebing (1840-1902) was clear that sadomasochism did not need to involve hurting others.

 

The Seven Signs

More recently, forensic psychologist Park Elliot Dietz reasoned that there are seven common features in sadists’ behaviour that distinguishes them from sadomasochists[25].

The sadists studied by Dietz meticulously planned their horrific crimes, stalking their victims before abducting them. For sadomasochists, the  process of dating and finding a willing partner can be an enjoyable emotional journey. The second difference can be seen in the contrasting aims of these two groups. Sadistic criminals torture innocent victims to arouse themselves. In contrast, sadomasochists are concerned with arousing their partners and see no point in sadomasochistic activity if their willing partner is not entertained. A good example of this comes from Dale Patrias’ 1978 study, where a forty-year-old female masochist explained: “the man was really willing…but he thought it was kind of silly…he would have done it but he wouldn’t have received any enjoyment of it whatsoever. So I told him to forget all about it.[26]

The third distinction is that sadists are emotionally detached from their victims’ suffering, while sadomasochists receive pleasure from their play[27].The fourth contrast is less a psychological discovery than simple common sense: the injuries inflicted by the sadists in Dietz’s study group were designed to cause serious permanent harm or mutilation; they all brutally murdered their victims. Sadomasochists’ symbolic acts are designed to skilfully enhance arousal. Fifthly, the sadists’ most popular way of committing murder was by strangling, an act that does not feature in sadomasochism, which is concerned with the erogenous zones. Strangulation is also life-threatening, a direct contrast to SM activities, which are not.

Sixthly, a significant proportion of the study group had committed previous sexual assaults, including incest. The seventh difference: unlike many sadomasochists, sadists do not have a tendency to switch roles and take pleasure in being the victim[28].

 

The Wolf Rampant

       The European Court of Human Rights assumed that masochists are misguided, vulnerable individuals being used by sadists. In fact, the sadist and the masochist are one and the same person.

Sigmund Freud (1856-1939), recorded the case study of a wealthy young man, whom he dubbed ‘the Wolfman’. Freud admitted that the Wolfman exhibited both sadistic and masochistic desires from childhood and decided that this was due to “contradictory pairs of partial drives[29]”. Freud suggested that sadism can be turned on oneself[30] to become masochism. However, if one remains unconvinced by Freud’s theories, then one must re-interpret Freud’s Wolfman case study and accept that the Wolfman is evidence that sadism and masochism appear in the same individual.

A contemporary of Freud, Havelock Ellis (1859-1939) conducted an examination of his own and Krafft-Ebing’s case studies which led him to conclude that “there is no real line of demarcation[31]” between sadists and masochists, and even de Sade was not a pure sadist, considering his masochistic activities. Ellis also noted that sadomasochists always displayed the ability to switch between the role of the sadist and that of the masochist. This conclusion was accepted by the theorists of the time and even sparked a debate over terminology to describe the dual tendency. It is unfortunate that the true situation was recognised by professionals in the post-Victorian period, but the ECHR has yet to catch up.

.Iwan Bloch, (1872-1922) a Berlin physician who invented sexology was also convinced that “sadism and masochism may often appear in the same person; they are only the active and passive form respectively of the algolagnia which lies at the basis of both of them.[32]

Sexologists Charles Moser and Eugene E. Levitt confirmed in 1987 that many of their study participants regularly switched roles, depending upon particular partners or along gender lines, and most had tried both roles.

 

The Pity of Strangers

It is not completely surprising that the ECHR made the judgement it did, considering that sadomasochism has been stigmatised as the product of trauma and dysfunction, and sadomasochists regarded as problem people with psychological or emotional troubles.

Sigmund Freud promoted the view that sadomasochism is a perversion which arises from childhood trauma in his works Three Contributions to the Theory of Sex (1905), A Child Is Being Beaten (1919) and The Economic Problem in Masochism (1924). Freud believed that sadomasochists had been threatened with castration as children[33]. All he achieved was the stigmatisation of sadomasochism at the very time others such as Ellis and Bloch were trying to make society come to terms with itself.

Robert Eisler described the masochist as “a person of subnormal emotional sensitivity[34]” and more recently, Mollinger (1982) claimed that sadomasochism was a consequence of violent or neglectful parents, echoing Bernard Berliner (1958) who was convinced that the inclination was a pathological way of loving an abusive parent.

However, the truth is now visible. Anthropologist Paul Gebhard pointed to the widespread nature of sadomasochism in his 1968 essay Fetishism and Sadomasochism, and rejected the idea that sadomasochism is a pathology. Andreas Spengler’s 1977 study in Germany confirmed that the only feature that sadomasochists had in common was a high level of education, living and social status. His study also found that 90% of sadomasochists had never considered visiting a psychoanalyst; the 10% who had negative feelings towards their desires had not integrated into Germany’s extensive sadomasochistic subculture, so their problems may have stemmed from isolation or a refusal to accept their SM desires. Spengler’s study proves that sadomasochism is not a psychological problem as Freud and others believed.

 

Pleasure not Pain

Ellis believed that far from simply inflicting pain, the sadists were carefully responding to the masochists’ desires, and this was not felt as pain. The essence of sadomasochism was the overwhelming of the senses, which he described as “the joy of emotional intoxication.[35]

Gilles Deleuze claimed “In sadism no less than in masochism, there is no direct relation to pain: pain should be regarded as an effect only[36]” and more recently Anita Phillips criticized what she refers to as “the utterly mistaken belief that masochists enjoy and absorb violence.[37]

Sexologists Charles Moser and Eugene Levitt confirmed in 1987 that not all SM experiences involved pain; exposure games, obedience to verbal commands and name-calling were more common. Pain was only appropriate in certain situations and was not felt as pain.

Kamel toured the gay leather bars in Europe, posing as a potential participant. He found that most SM equipment used by homosexual sadomasochists, such as whips, were used only as symbols of the dominant’s role. The most common forms of sadomasochism were simply verbal abuse and obedience to commands.

Dale Patrias (1978) interviewed sadomasochists and discovered that sadomasochism was a game; the central factor was not pain, but instead the fiction of domination and submission. Most of the interviewees were not interested in pain and claimed that the purpose of the activities was pleasurable sensations, not the infliction of pain. He also found that the participants enjoyed high educational and income levels, and 40% regularly switched roles. The most common forms of SM were spanking, bondage, and wearing fetish clothing – hardly the nightmare image proposed by the ECHR judgement.

From the above data, two conclusions may be drawn: firstly that ‘pain’ is felt as pleasure, and secondly that ‘pain’ is not a central feature of sadomasochism and is not even present in most sadomasochistic activities. The Court did not even consider in its judgement that ‘pain’ is only one aspect of SM activity; as discussed above, the domination-submission roles are far more important, and it is from these roles that all SM activity, including the infliction of ‘pain’ stems. The Court also failed to note other SM activities such as enemas, cross-dressing, babying, use of nappies, scat, humiliation, exhibitionism, diaper discipline and desperation. Moser and Levitt’s 1987 survey listed even more activities, e.g. ice cubes, blindfolds and use of handcuffs. Sadomasochism appears to include much more than simply ‘pain’.

 

Controlling Risk

Lord Templeman stated in the House of Lords judgement that “Society is entitled and bound to protect itself against a cult of violence.[38]” Weinberg, Faulk, Lee and Kamel conducted a seven-year study in America. They found that the infliction of actual injury was very rare, as the sadomasochistic subculture enforced strict rules and norms. The SM community had developed its own beliefs, language and techniques to ensure the safety of its members; these norms were promoted by the community’s organisations and publications. New members were taught safety techniques at initiation meetings; the resident ’doms’ (sadists) at the SM Club Doma in the Netherlands will train anyone interested in safety and arousal enhancement skills. When acts such as caning were used, the sadist was expected to have developed the skills necessary to effect excitation transfer and make the experience pleasurable, while each masochist had a pain threshold or ‘limit‘, beyond which the act would fail to be experienced as pleasurable. SM experiences, known as ’scenes’, would gradually approach the ’limit’ so that the acts never became painful. Experienced sadists could tell when a masochist’s limit was being approached, and the less experienced would make use of stop-words or signals. Individual sadomasochists tended to agree on the roles, equipment and clothing of the scene beforehand and anyone who went beyond the level of ‘pain’ that had been agreed to would be ostracised by the SM community. Thus it is obvious that due to these precautions there is not a great likelihood for harm inherent in sadomasochism.

 

Intellectualising Instinct: the call of the fantasy world

Far from being obsessed with pain, sadomasochists use make-believe, sometimes entire playscripts, to intellectualise our basic urges. They make use of stereotypical situations and cultural symbolism; while acting out a ‘scene’ they may pretend that an act, e.g. posing, is humiliating in accordance with moralists’ ideology, when in fact they do not consider posing to be humiliating. This ability to temporarily adopt their opponents’ beliefs proves that sadomasochism may be compared to a play or a film; just as the audience pretends that some of the characters in Avatar died, they are able to enjoy the film because they know that the actors did not really die. The same audience would be traumatised by watching a real violent death. Similarly, sadomasochists do not really get hurt or mentally submit to each other, they only play at it, and would be horrified by real submission or violence. Another comparison may be made to young children’s ‘bang-bang, shoot you dead’ shooting games, where they play at being gangsters. It would be ludicrous to suggest that these children will grow up to be serial murderers, and it would be insane to suggest that they would enjoy a repeat of the Dunblane killings. However, this is exactly what the European Court of Human Rights has suggested about sadomasochists. Leopold von Sacher-Masoch, whom masochism is named after, wrote a famous sadomasochistic novel, ‘Venus in Furs.’ In the novel, the masochistic main character claims “I am a supersensualist; with me everything takes root in the imagination.[39]” This is further proof of the centrality of fantasy in sadomasochism, and that SM ‘scenes’ are enactments of that fantasy.

 

 

(3) Similar Facts?

 

The applicants claimed that the state authorities had been biased against homosexuality, and offered the similar facts of R v Wilson as evidence; the Court decided that the facts of R v Wilson were not similar to the applicants’ case and therefore the state authorities were not biased. It follows that all we have to do to illustrate that the Court’s third reason is flawed is to show that the facts in R v Wilson were indeed similar.

The facts of R v Wilson are that an individual branded his initials into a consenting partner’s buttocks which resulted in the wound requiring medical treatment. The facts of the present case are that these individuals hit consenting partners with rulers and canes, which did not require medical treatment. Both cases constituted assault. The only difference is that in R v Wilson the injury inflicted was more severe and required treatment. The Court of Appeal distinguished Wilson from R v Brown because the branding in Wilson was not inflicted for the purpose of gratification, as in the present case; however the ECHR did not argue this point, nor any other point, so cannot be presumed to have distinguished Wilson on this ground. Even supposing if the ECHR had used this reasoning, it seems unjustified to distinguish a case just because the purpose of the acts differed, especially since the act in Wilson was more serious. Therefore, it appears that the two cases were similar and as the Court offered no reasons as to why they considered the facts of Wilson to be dissimilar from the present case, they have provided no argument to engage with. As we do not have the Court’s argument, the only information available points to the two cases being similar; therefore I can come to no other conclusion than that R v Wilson was similar in its facts to the applicants’ case. Therefore the Court should not have rejected the claim of bias against homosexuality, as their only justification for doing so was that R v Wilson could be distinguished.

 

Conclusion

In the Introduction, I proposed that the European Court of Human Rights should not be influenced by the case of Laskey, Jaggard and Brown v United Kingdom, as this case was wrongly decided. In order to prove that the judgement was wrong, the three reasons for deciding that Article 8 had not been breached would have to be proved wrong.

The first reason (that the applicants had inflicted significant injury) was shown to be wrong by the analogy of body modification, the inconsistency of the ‘significant injury’ argument with R v Wilson, the problem of ambiguity, the problem of clarity of the law and the reasons why the Court should not have accepted the United Kingdom’s argument.

      The second reason (that sadomasochism is inherently violent) was shown to be wrong by revealing that this reason was based on the Court’s misunderstanding of the nature of sadomasochism, by showing that sadomasochism is not likely to cause violence due to sadomasochists’ concern with safety, that sadists are not violently using masochists, the fact that violence is only a small feature of sadomasochism and the pain is actually felt as pleasure.

The third reason (that the facts of R v Wilson were not similar to the present case) has been shown to be wrong as the facts were indeed similar and the Court did not state any justification for believing they were not.

The three reasons for the judgement have been shown to be flawed. Therefore, the case of Laskey, Jaggard and Brown v United Kingdom has been proved to have been wrongly decided and thus should not influence, or act as precedent for, the future decisions of the European Court of Human Rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

 

Betten, Lammy and Grief, Nicholas, EU Law and Human Rights, Addison Wesley Longman, England, 1998

 

Deleuze, Gilles and Sacher-Masoch, Leopold von, Masochism, Urzone Inc. New York, 1989

 

Eisler, Robert (1951) Man Into Wolf: An Anthropological Interpretation of Sadism, Masochism, and Lycanthropy, Routledge and Kegan Paul Ltd, London

 

Foster, Nigel (2010) EU Treaties and Legislation, 21st Edition, Blackstone, New York

 

Freud, Sigmund, Totem and Taboo, Routledge Classics, Oxon, 2009

 

Freud, Sigmund, The Wolf Man, Penguin Books, 2010

 

Merrills, J.G. and Robertson, A.H., Human Rights in Europe 4th Ed. , Manchester University Press, UK, 2001

 

Ovey, Clare and White, Robin C.A. The European Convention on Human Rights 4th Ed. Oxford University Press, USA, 2006

 

Phillips, Anita, A Defence of Masochism, Faber and Faber Ltd, England, 1998

 

Thomas, Neil, and Saux, Francois Unity and Difference in European Cultures, University of Durham Press, UK, 1998

 

Thompson, Bill (1994) Sadomasochism, Cassell, London

 

Steyger, Ellis, National Traditions and European Community Law, Dartmouth Publishing Company Ltd, UK, 1997

 

Websites

 

www.bmezine.com

http://www.bodyjewelleryshop.com/body_piercing_information/

en.wikipedia.org/wiki/Body_piercing

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en

 

List of Cases

 

Laskey, Jaggard and Brown v United Kingdom 109/1995/615/703-705

R v Wilson [1996] 3 WLR 125

A.D.T. v United Kingdom

R v Brown

Dudgeon v UK 23 Sep 1981


[1]  The European Convention on Human Rights 4th Ed by Clare Ovey and Robin CA White p218

[2]  Ibid p232

[3]  Laskey, Jaggard and Brown v United Kingdom109/1995/615/703-705  para 35

[4]  Sadomasochism by Bill Thompson p17

[5]  Laskey, Jaggard and Brown v United Kingdom para 8

[6]  Laskey, Jaggard and Brown v United Kingdom para 51

[7]  Ibid para 48

[8]  Ibid para 45

[9]  Ibid para 46

[10]  Ibid para 47

[11]  Laskey, Jaggard and Brown v United Kingdom 109/1995/615/703-705   para 45

[12]  www.bmezine.com

[13]  en.wikipedia.org/wiki/Body_piercing

[14]  Ibid

[15]  Laskey, Jaggard and Brown v United Kingdom 109/1995/615/703-705  para 40

[16]  www.bodyjewelleryshop.com/body_piercing_information/

[17]  www.bmezine.com

[18]  R v Wilson [1996] 3 WLR 125

[19]  Laskey, Jaggard and Brown v United Kingdom 109/1995/615/703-705   para 40

[20]  Sadmasochism by Bill Thompson p 69

[21]  Laskey, Jaggard and Brown v United Kingdom 109/1995/615/703-705  para46

[22]  Laskey, Jaggard and Brown v United Kingdom para46

[23]  per Lord Templeman in R v Brown [1993] 2 All England Law Reports 75

[24]  Man into Wolf: an Anthropological Interpretation of Sadism, Masochism and Lycanthropy by Robert Eisler  p 11

[25]  Sadomasochism by Bill Thompson p 111

[26]  Sadomasochism by Bill Thompson p144

[27]  Ibid p 111

[28]  Ibid p 112

[29]  The Wolfman by Sigmund Freud, p25

[30]  The Wolfman by Sigmund Freud, p24

[31]  Havelock Ellis, Studies in the Psychology of sex, quoted in Sadomasochism by Bill Thompson p 31

[32]  Iwan Bloch, quoted in Sadomasochism by Bill Thompson p 38

[33]  The Wolfman by Sigmund Freud, p22

[34]  Man into Wolf: an Anthropological Interpretation of Sadism, Masochism and Lycanthropy by Robert Eisler  p 26

[35]  Sadomasochism by Bill Thompson

[36]  Masochism by Gilles Deleuze and Leopold von Sacher-Masoch p 121

[37]  A Defence of Masochism by Anita Phillips

[38]  Laskey, Jaggard and Brown v United Kingdom 109/1995/615/703-705  para 20

[39]  Masochism by Gilles Deleuze and Leopold von Sacher-Masoch p178

 
 

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