The stark potential consequences of lack of empathy for the Other are illustrated by the Operation Spanner case.
As a result of investigation of another case, the Manchester, England police Obscene Publications Squad came into possession of a video tape they believed depicted acts of nonconsensual sexual torture. Although it is not known precisely which of several videos was seen first, acts included genital piercing, cutting of the scrotum and penis, and acts the defendants described as ‘heavy S&M’. Convinced of the depravity of these acts, and anticipating that ‘snuff’ films were being made, the OPS launched a major investigation. In late 1987, the police descended and arrested ‘dozens’ of gay men in the Manchester S&M scene. Initially, the police were incredulous that the acts depicted on tape were consensual. In the face of indisputable video evidence, and believing that consent would mitigate charges of committing gross bodily harm, 16 defendants, tops and bottoms, plead to charges of assault occasioning actual bodily harm.
The authorities took 21 months to proffer charges, but eventually proceeded with the legal claim that British case law in a nineteenth century boxing prosecution disallowed consent as a defense against assault charges. The Spannermen, as they came to be known in the BDSM world, were sentenced to prison terms of up to three years. Many decided to appeal the case, and the attempted defense of consensual BDSM in Britain would drag on for years. After losing in appeals court, the case was heard by the equivalent of the British Supreme Court; 5 Members of Parliament from the House of Lords appointed to hear the case in March of 1993. They refused to overturn the convictions 3-2. Lord Templeton spoke for the majority in ruling:
"In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty [...]. Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized."
A number of interesting arguments were made in criticism of the convictions. The routine injuries of sports and other dangerous recreational activities ruled legal in England were compared with the degree of actual damage inflicted on the consenting defendants. The prosecution of defendants as accessories in their own victimization was challenged. All the defendants claimed that they were ignorant of the possibility that they could have been guilty of assault because they thought consent was a defense, a claim of some justice since the case that it wasn’t was largely constructed during the prosecution and appeals. And it was observed that acts of equal severity in heterosexual S&M had been ruled as noncriminal because the defense of consent was allowed, thus creating a double standard inherently discriminatory against homosexual activity.
The prosecution also made some rather novel and cogent points, the most important being that police commonly encountered repeated domestic assault cases in which (mostly female) victims would complain, then recant that domestic violence was consensual. If post traumatic stress or pathological dependency could undermine consent, how were the police to intervene to protect victims of domestic violence? Furthermore, there were a great many more domestic violence cases at risk than S&M prosecutions. This argument helped frame the Lords’ decision that the acts depicted in the videos turned on cruelty, rather than autonomy.
By the time the case was referred to the European Court of Human Rights in Strasbourg, a number of BDSM organizations in Britain and the US had taken up the cause of fund-raising for the defense. These organizations, such as SM Pride, and the Spanner Trust, continue today, long after the unanimous adverse human rights court ruling in 1997 that Britain was within its legal rights to make law to protect public morals. Fund raisers for legal defense are held at many BDSM events. ...