I am old enough to remember Spanner. It is the jokes made in the office where I worked at the time that stick in my mind. I remember thinking that it seemed illogical that consent could be a defence to an assault in a boxing ring but not to the infliction of pain in a BDSM context. But that was all. I am ashamed to say I rather enjoyed the titillating stories in the tabloid papers and did not think about the wider implications. I was, after all, only dimly aware of the huge part that BDSM would come to play in my life.
That was all nearly thirty years ago and the reason why I attended a conference at Royal Holloway College in early September. At times this day was heavy going with one presentation following another and some of the delivery being a bit on the dry side. An honourable exception was Myles Jackman who was both entertaining and well informed. His presentation was, however, a sort of appetising side dish (or maybe unappetising in view of what he had to say) to the main course which was academic lawyers and criminologists, (some of them with a personal commitment to alternative sexualities) sketching out the bones of theoretical perspectives on the control of our bodies and the politico-legal discourse surrounding it. This work will draw on Spanner and its implications but move far beyond it to look at what has happened since. There was too much said in the course of a long day to summarise what every speaker said , and my notes are sparse and illegible, ere but I will just set out a few thoughts:
In terms of the case itself homophobia has been cited as a main theme. The judgement, it has been argued, was not homophobic as such although I do wonder whether the case would have been brought at all today, when Clause 28 and the AIDS moral panic seem a distant memory. two themes emerge, manly pursuits and homophobia. Nonetheless when Lord Justice Templeman addressed the question of the seeming illogicality of accepting consent as a defence against an assault charge in the case of combat sports but not in the case of BDSM play he made specific reference to combat sports being ‘manly diversions’ the implication being that being kinky or gay or both is ‘unmanly’. Isnot this whjat popular prejudice has said about gay men since time immemorial?t
I will not pursue the issue of homophobia here, but will turn instead to the real significance of the case which is much more interesting. It is, of course, that this was an example of the state sanctioned policing of bodies.
This, of course, raises all sorts of issues of the [political significance of certain sexual ;practices. And questions these practices. For example is BDSM genuinely transgressive and subversive or is it simply a form of hedonism without wider significance? If the latter, why is it stigmatised and, as we have seen, potentially criminalised?
So why the urge to control what we do with our bodies? A couple of speakers offered neo-liberal free market capitalism as a potential explanation. Where economic efficiency and profit are ultimately the only things that matter the human body has value only as factor of production. If bodies are to be productive in economic terms the capitalist state must intervene to proscribe activities deemed non-productive. Enjoyment is subversive by opening up perspectives of human fulfilment that go beyond work and the consumption of fetishized goods.
There are a couple of problems with this. Whilst I accept that the social construction of the family, of gender identity and sexuality have undergone significant change in the last two hundred years and that much of this change has gone in step with the development of industrial capitalism I am a little wary of taking this argument too far. The argument has a certain whiff of functionalism not to say crude reductionism about it. What are the mechanism by which the legal dispensation around sexuality and its expression are changed in response to the needs of capital? This is not clear. Secondly we can observe that the control of sexuality has changed significantly over the last hundred years or so within the context of a mode of production that has remained essentially free market and capitalist. A notable example of this is the decriminalisation of homosexuality begun in 1967 and ending with the laws to equalise the age of consent. I would suggest that the politico-legal debates about sexuality are, to a degree at least, autonomous. Furthermore, some functionalist and reductionist arguments deny the meaning sometimes even the possibility of struggle. Those of who identify on the LBGTQI spectrum (this includes a number of the participants at the conference) are not, and never have been, passive recipients of proscription , persecution and so on. We are active in creating our identities and in resisting attempts to make us conform to norms and regulation imposed from above. This recognition is important since, surely, one of the aims of gaining a better theoretical understanding of these issues is to inform struggle. Theory and praxis if you will.
A further point is that capitalism is a flexible also chameleon like mode of production. Anything can be commodified and exploited for profit. There have even been attempts to patent genetic sequences, attempts to commodify the very stuff of life. The same is true of sexuality. Kink, gay sex etc etc can all be exploited for profit and, at the same time, rendered harmless. We need only look at homosexuality and look as the way being gay has gone mainstream, how gay culture has ben captured in the corporate embrace. Not for nothing have alternative Prides been held as a protest against the depoliticisation of mainstream gay culture.
What I am arguing here is that the relative autonomy of the political and legal sphere creates a dual threat, The battle against criminalisation will not end in victory if the price is the corporate embrace and the mainstreaming of our sexual practices. I love BDSM precisely because it is transgressive.
And talk of commodification brings me o n to areas that were touched on but which it would be fascinating to see developed as this project progresses. not developed and which could usefully form part of the project not least because some of them are forming new terrains for struggle, sex workers rights and the rights of porn producers and performers moist notably. Prominent in the campaigns that threaten the livelihoods of both sex workers and porn producers are radical feminist.
Radical feminists are not only hostile to sex work and porn, however much these may be expressions of female empowerment, they are also hostile to BDSM generally, (femdom very much included) and all manifestations of transgenderism. In fact anything that has the possibility of being transgressive and subversive of the gender binary and accepted expressions of sexuality they are against. In their fight against patriarchy and gender they end up paradoxically as agents of the patriarchal capitalist state doing the enforcing. None of this is new but worth saying again. But in the struggle for true sexual freedom they have nothing to contribute. It is the queers, the kinksters, the perverts, the trans men and trans women who can take the battle forward, both intellectually and in terms of political action. And a conference on a sunny September day at Egham was not a bad place to start.
We finished off with wine and snacks in the Colonnades of the lovely main building before heading to the pub afterwards where I had rather too much wine. I vaguely recall staggering around Egham with Roz Kaveney trying to find the station and then waking up the following day with a bad head. But that, as they say, is another story…..