The Spanner Trust mentioned in the Sunday Herald (13)

This post is on the BDSM Activism web board.

Tue 3 Jun 08, 7:36 PM
backlash_uk
UK, 2 yrs
://www.sundayherald.com:80/news/heraldnews/display....
Fears over S&M clause in rape bill By John Bynorth Home Affairs Editor Comment | Read Comments (3) THE SCOTTISH government faces mounting pressure to close a loophole in its forthcoming rape bill which could see a rapist cleared if he proved his victim consented to sado-masochistic sex (S&M).
SNP MSP Nigel Don has written to the justice secretary, Kenny MacAskill, urging him re-think a recommendation in the Scottish Law Commission's (SLC) draft report on the issue, which will form the basis of the government's legislation, that an act providing "sexual gratification" between consenting people over the age of 16 should not be considered assault.
Don, Rape Crisis Scotland and police chiefs claim the proposal would allow domestic abusers to escape justice and is "against the spirit of the bill" - due to be presented to MSPs in the next few weeks - which aims to improve reporting of offences and Scotland's low conviction rates around 4%.
Pointing out there have been no recent convictions for consensual S&M in Scotland, Don said the statute would create a "loophole" which domestic sexual assault defendants could exploit. He said: "The average victim of domestic abuse complains after 30 incidents and if the accused is allowed to claim that it was consensual sexual gratification' it would add another doubt for jurors and places the victim under further immense pressure. To allow this goes against the spirit of the bill - that violence is unacceptable."
Rape Crisis Scotland, the Association of Chief Police Officers in Scotland, Scottish Women's Aid, the Catholic Church and the Free Presbysterian Church lodged objections to the proposal in a consultation after the SLC report was published in December.
The Spanner Trust, which promotes S&M, was the only organisation to make a case in favour of the legal change.
Sandy Brindley, co-ordinator of Rape Crisis Scotland, said: "Our worry is that it could be a legislative excuse for rape by suggesting the victim might have liked it rough'."
A government spokesman said: "We have been considering the consultation responses and will shortly be introducing a bill to Parliament for consideration by MSPs."

3 Jun 08, 9:34 PM
Vanilla_Spectator
8 mths
backlash_uk wrote:
The Spanner Trust mentioned in the Sunday Herald
://www.sundayherald.com:80/news/heraldnews/display....
Fears over S&M clause in rape bill By John Bynorth Home Affairs Editor Comment | Read Comments (3) THE SCOTTISH government faces mounting pressure to close a loophole in its forthcoming rape bill which could see a rapist cleared if he proved his victim consented to sado-masochistic sex (S&M).
Well, there's prejudice right there. It should only be possible to prove it was consentual if it actually was consentual. If it was consentual, it wasn't rape! If it was consentual, there's no victim!
Also, from how it's worded there (and given the blatantly prejudiced wording I'm not really keen to rely on how that journalist was wording things), it seems the defendant would have to prove that it was consentual.
If such S&M has to be proven, by the defendant, to be consentual, then that, to me, looks like a pretty hefty safeguard for potential victims of real abuse. Such a burden of proof would give participants in S&M something of an incentive to record evidence of consent prior to engaging in such activities. That, in turn, could strengthen the case against a genuine rapist who, due to lack of actual consent, cannot provide such evidence. This could be good news for potential victims of rape, couldn't it?
Of course, this is assuming that it's reasonable to expect participants in S&M to record evidence of consent prior to engaging in such activities. Being vanilla, I'm probably not in the most well-informed position to say!

3 Jun 08, 9:51 PM
skyfox
UK(EH), 22 mths

Vanilla_Spectator wrote:
Of course, this is assuming that it's reasonable to expect participants in S&M to record evidence of consent prior to engaging in such activities. Being vanilla, I'm probably not in the most well-informed position to say!
I still think it would be a vaulable study to look at how people obtain consent for any activity, from class field trips to SM to vanilla one-night stands. The problem is that people don't know or can't agree on what consent is and how it's obtained. If what "consent" is can be better defined, I think more rapes would be convicted.
The only thing we have to fear is fear itself.

4 Jun 08, 6:57 AM
emark
UK, 5 yrs You can consent to assault for all sorts of reasons - saying that it would be a loophole if an abuser could prove it was consensual S&M is no more of a loophole than saying the person consented to it for body modifications (things like brandings are legal, as long as not done for sexual pleasure).
And how many rapes or domestic abuse cases look like your typical S&M play, with things like canes and candle wax?

backlash_uk wrote:
Rape Crisis Scotland, the Association of Chief Police Officers in Scotland, Scottish Women's Aid, the Catholic Church and the Free Presbysterian Church lodged objections to the proposal in a consultation after the SLC report was published in December.
The Spanner Trust, which promotes S&M, was the only organisation to make a case in favour of the legal change.
And the ones in favour is police forces, women's groups who as we know tend to have an anti-SM viewpoint, and religious groups.
How many inidivduals responded, or was this only organisations, I wonder?

Sandy Brindley, co-ordinator of Rape Crisis Scotland, said: "Our worry is that it could be a legislative excuse for rape by suggesting the victim might have liked it rough'."
So they are perpetuating the myth that rape is synonymous with physical assault? Obviously if a woman isn't injured, it can't be rape!
Or to turn it about - are they saying that even rough sex (nevermind S&M) should be illegal, because it must mean rape?
Still, it's very pleasing to see that such a law change is even being considered - that's a start, I guess.
ETA: Another thought occurred to me - with Spanner, AIUI the supposed "victims" were sent to prison for aiding and abetting assault upon their own bodies! So are these people saying that it's okay to send the supposed domestic abuse or rape victim to prison?! Whatever the issues with domestic abuse or rape, the precedent set by Spanner is simply mad - it's not one that ignores consent altogether, because the "victims" are punished for having consented.
http://petitions.pm.gov.uk/extreme-images/ - Petition against "extreme porn" law!
See http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... for more details.
Edited 4 Jun 08, 7:09 AM by emark

4 Jun 08, 5:23 PM
skyfox
UK(EH), 22 mths

emark wrote:
You can consent to assault for all sorts of reasons - saying that it would be a loophole if an abuser could prove it was consensual S&M is no more of a loophole than saying the person consented to it for body modifications (things like brandings are legal, as long as not done for sexual pleasure).
And how many rapes or domestic abuse cases look like your typical S&M play, with things like canes and candle wax?
Is this a rhetorical question? I say, not many!

<snip>
Sandy Brindley, co-ordinator of Rape Crisis Scotland, said: "Our worry is that it could be a legislative excuse for rape by suggesting the victim might have liked it rough'."
So they are perpetuating the myth that rape is synonymous with physical assault? Obviously if a woman isn't injured, it can't be rape!
Or to turn it about - are they saying that even rough sex (nevermind S&M) should be illegal, because it must mean rape?
Still, it's very pleasing to see that such a law change is even being considered - that's a start, I guess.
I actually read it differently: I hear her as saying, "Even though you're in an SM relationship or play with Anne Summers toys, you could still be raped." It is still possible to be raped in a BDSM context, and would possibly have even more dire consequences. So if I'm playin with someone and he rapes me, does hejust have to say, "she likes it rough" in order to get off (ahem) scotfree (ahem)?
However, I can also see that people might just see an SM relationship as a form of abuse, and so some nice Dom/me hooks up with a nilla and then when it goes south they press charges. That's wrong, too.
SM or not, consent still needs to be established. Being kinky is not consent in and of itself. It involves consent, and that is why we have negotiations and safewords, but it is not a definition of consent.

ETA: Another thought occurred to me - with Spanner, AIUI the supposed "victims" were sent to prison for aiding and abetting assault upon their own bodies! So are these people saying that it's okay to send the supposed domestic abuse or rape victim to prison?! Whatever the issues with domestic abuse or rape, the precedent set by Spanner is simply mad - it's not one that ignores consent altogether, because the "victims" are punished for having consented.
Good point.
The only thing we have to fear is fear itself.

4 Jun 08, 5:46 PM
Vanilla_Spectator
8 mths
skyfox wrote:
I actually read it differently: I hear her as saying, "Even though you're in an SM relationship or play with Anne Summers toys, you could still be raped." It is still possible to be raped in a BDSM context, and would possibly have even more dire consequences. So if I'm playin with someone and he rapes me, does hejust have to say, "she likes it rough" in order to get off (ahem) scotfree (ahem)?
Oh, I hadn't thought of that...
Hmmm...

4 Jun 08, 6:54 PM
emark
UK, 5 yrs
skyfox wrote:
I actually read it differently: I hear her as saying, "Even though you're in an SM relationship or play with Anne Summers toys, you could still be raped." It is still possible to be raped in a BDSM context, and would possibly have even more dire consequences. So if I'm playin with someone and he rapes me, does hejust have to say, "she likes it rough" in order to get off (ahem) scotfree (ahem)?
She's quite right to say that people in BDSM play can still be raped, but that's the whole point - if she's raped, it wouldn't be a get out clause to say it was BDSM. The thing is that "she likes it rough" has nothing to do with the issue of consent. If a woman says she was raped, saying "she likes it rough" doesn't make it okay.
Now yes, it does mean that things like bruises can't be used as proof, but then as I say, it's a myth to equate rape with rough sex or violence anyway. They can still be used as evidence though, for a jury to decide whether bruises suggest it was rape - and that will still be the case with this law change.
Such a law does not just criminalise BDSM, it criminalises anyone who does a bit of rough sex.
Imagine if someone said it was a loophole that the defendant could claim that the woman consented to sex? Well obviously this would be nonsense, beacuse the purpose of the trial is to decide such facts in the first place. It would be worrying enough to suggest the burden is upon the man to prove his innocent - but with BDSM, that's what the law is proposing, and they are not even happy with that! (And as I say, the current law is even worse - in that even if the "victim" does not press charges and stands up in court and says "I consented", it's still considered illegal.)
(Although I note we do have this situation in other areas, such as people saying that it's a loophole that they can claim consent was given when the participants were drunk. Such a viewpoint would effectively criminalise sex under the influence of alcohol, criminalising millions of consenting adults, yet nonetheless, the idea that you shouldn't be able to consent one drunk is popular, and indeed, the belief that this is what the law states is a popular rape myth.)

SM or not, consent still needs to be established. Being kinky is not consent in and of itself. It involves consent, and that is why we have negotiations and safewords, but it is not a definition of consent.
Indeed, I fully agree.
http://petitions.pm.gov.uk/extreme-images/ - Petition against "extreme porn" law!
See http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... for more details.
Edited 4 Jun 08, 6:57 PM by emark

4 Jun 08, 10:13 PM
skyfox
UK(EH), 22 mths
Ok, wait a minute. Let me get this straight. The new law redefines rape. It includes a line that says:

which could see a rapist cleared if he proved his victim consented to sado-masochistic sex (S&M).
The Spanner Trust is FOR this definition. The Rape Crisis Scotland, Police, Women's Aid and Church are AGAINST it.
So those groups DON'T want the SM clause on the bill.
Why?
Thier logic equates SM with domestic abuse.

"The average victim of domestic abuse complains after 30 incidents and if the accused is allowed to claim that it was consensual sexual gratification' it would add another doubt for jurors and places the victim under further immense pressure. To allow this goes against the spirit of the bill - that violence is unacceptable."
Yet wouldn't the defendant still have to PROVE that there was consent? In typical SM, wouldn't this be fairly easy? For example, the very act of agreeing upon a safeword is one form of consent. Hm. Actually, that would turn into a he said she said.
I guess I can see why the Spanner Trust likes this bill. If someone sucessfully uses SM as a defense against rape (lord knows it'd be hard), then it could be shown that consent is given in SM, hence leading to a defense against the assault charges in the Spanner case.
I wonder how hard it would be to prosecute/defend a rape charge in an SM setting?
The only thing we have to fear is fear itself.

5 Jun 08, 1:42 AM
grahamm
UK, 8 yrs
Y!

skyfox wrote:
Ok, wait a minute. Let me get this straight. The new law redefines rape. It includes a line that says:

which could see a rapist cleared if he proved his victim consented to sado-masochistic sex (S&M).
The Spanner Trust is FOR this definition. The Rape Crisis Scotland, Police, Women's Aid and Church are AGAINST it.
The problem is that the quote says "could see a rapist cleared" which is effectively *assuming* guilt, ie that it was actually rape.
What they *should* have said is "someone accused of rape" based on the fundamental principle of Presumption of Innocence, but what they've written suggests that this person *has* committed a crime, but then "gets away with it" by proving they consented to S&M sex.

5 Jun 08, 6:46 AM
emark
UK, 5 yrs
skyfox wrote:
Hm. Actually, that would turn into a he said she said.
Indeed, but then this is the problem with rape we have full stop.
Given that the burden is on the defendant to prove it, I fail to see how it is a worry that this will create "doubt". Either he can't prove it, so no difference, or he can, in which case, I should darn well hope it does create doubt.
I am unsure how someone could prove that it was consensual S&M, when it wasn't. It seems like they genuinely believe that all sex which creates some bruises or other marks are rapes, so this would be a "loophole" to let them off,

I guess I can see why the Spanner Trust likes this bill. If someone sucessfully uses SM as a defense against rape (lord knows it'd be hard), then it could be shown that consent is given in SM, hence leading to a defense against the assault charges in the Spanner case.
It would lead to a rather odd situation in the law that after the defendant had proven his innocence (!), both the defendant, and even the supposed "victim" could be prosecuted under the Spanner precedent...
I think just having this wording in the law would be a step forward. It did occur to me that if someone used SM as a defence, but in a case where it was popularly assumed that the guy must be guilty, it would create bad publicity (similar to a recent case where someone had sex with a woman who was drunk, and was cleared because she couldn't remember what happened and no witnesses - there was an uproar from people who believed that any sex with alcohol should be rape, and I can see the same happening for SM). OTOH, if they prosecuted the supposed "victim" that the public had previously sympathised with, that'd show how stupid the SM law is...
http://petitions.pm.gov.uk/extreme-images/ - Petition against "extreme porn" law!
See http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... for more details.

5 Jun 08, 3:54 PM
skyfox
UK(EH), 22 mths

grahamm wrote:

skyfox wrote:
Ok, wait a minute. Let me get this straight. The new law redefines rape. It includes a line that says:

which could see a rapist cleared if he proved his victim consented to sado-masochistic sex (S&M).

The problem is that the quote says "could see a rapist cleared" which is effectively *assuming* guilt, ie that it was actually rape.
What they *should* have said is "someone accused of rape" based on the fundamental principle of Presumption of Innocence, but what they've written suggests that this person *has* committed a crime, but then "gets away with it" by proving they consented to S&M sex.

emark wrote:

skyfox wrote:
Hm. Actually, that would turn into a he said she said.
Indeed, but then this is the problem with rape we have full stop.
Gee, emark's comment applies to both my statement AND grahamm's.
So basically, this law does NOTHING to improve rape laws in Scotland, but instead provides only half a chance for the Spanner case to be thrown out.
Why on earth would they have put this on there?
The only thing we have to fear is fear itself.

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