Hot off the presses

I’ve been studying this afternoon. Not the work documents I should have been reading, you understand, but the 54 pages of Mr Justice Eady’s Judgment in the Max Mosley vs. News of the World case. This is an important case for the spanko community – the consequences had the judge ruled that Mosley was an evil pervert, and that the press should have the right to “out” as many participants in S&M activities as possible, would have been just too scary.

But Mr Justice Eady ruled for Mosley, awarding him £60,000 in damages. The Judgment is wonderful stuff – written with real panache. I’m sure other blogs will dissect the document in great detail in the coming days, and I’m no lawyer. However, I thought I’d share a few choice paragraphs that caught my eye in case you’ve not yet had the time – or don’t have the inclination – to read the whole thing. I’ve highlighted a few of my favourite lines towards the end in bold.

The judge starts by describing the context for the complaint, and summarises the events that took place:

4) …They had all known each other for some time and took part in such activities on the understanding that they would be private and that none of them would reveal what had taken place. I was told that there is a fairly tight-knit community of S and M activists on what is known as “the scene” and that it is an unwritten rule that people are trusted not to reveal what has gone on. That is hardly surprising.

48) … Beatings, humiliation and the infliction of pain are inherent to S and M activities. So too is the enactment of domination, restraints, punishment and prison scenarios. Behaviour of this kind, in itself, is in this context therefore merely neutral.

He addresses – and dismisses – the allegation that there was a “concentration camp” theme. For example:

53)   [The NOTW] also relied upon the fact that the Claimant was “shaved”. Concentration camp inmates were also shaved. Yet, as Mr Price pointed out, they had their heads shaved. The Claimant, for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation. He explained to me that while this service was being performed he was (no doubt unwisely) “shaking with laughter”. I naturally could not check from the DVD, as it was not his face that was on display.

On the use of German, he observes:

59… As was further explained, to many English ears at least, the language is perceived as having a harsh and guttural sound and is thought to be more suitable for use by those playing a dominant role in S and M scenarios than (say) French or Italian. Apparently Russian might have also been suitable, but unfortunately none of the participants spoke Russian.

Later, he is damning about the newspaper’s conduct:

169. I am prepared to accept that [the NOTW], on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe…

170. The belief was not arrived at, however, by rational analysis of the material before them.

He also slates the NOTW for their attempts to cajole two of the women involved to provide information for a follow-up story:

82. This would appear to contain a clear threat to the women involved that unless they cooperated with Mr Thurlbeck (albeit in exchange for some money) their identities would be revealed on the following Sunday…

84. Perhaps to their credit, the two women concerned resisted these blandishments and thus risked the further exposure he had threatened….

88. ….it is elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful.

The judgment goes on to record some important points regarding sexual activity and S&M:

98. … One is usually on safe ground in concluding that anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults (paid or unpaid).

99. There is now a considerable body of jurisprudence in Strasbourg and elsewhere which recognises that sexual activity engages the rights protected by Article 8…. Article 8 rights protect in this respect “an essentially private materialisation of the human personality”…. [100] The underlying sentiments are readily understood in everyday language; namely, that people’s sex lives are to be regarded as essentially their own business – provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable.

113. Perhaps the most artificial argument, verging on desperation, was to the effect that the Claimant was inciting or aiding an offence of assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861 – on himself… [114] There is no question of a sexual offence being committed, since everything was consensual.

115. [The NOTW] placed considerable reliance on the [Spanner] case… in which the majority held that neither consent nor the sexual context could afford a defence in a case concerning extreme sado-masochistic activity. Thus, it was argued that the consent of these women to the spanking, despite their evident enjoyment, does not excuse the fact that a technical assault contrary to the 1861 Act was committed by the Claimant with every thwack. Yet again, however, I must try to maintain some sense of reality. In any event, consent is a valid defence so far as common assault is concerned.

116. The facts of [the Spanner case] involved cruelty of an altogether different order and activities that were extremely dangerous… There was also the issue, which does not arise here by any stretch of the imagination, that some very young people were victimised or corrupted.

117. It is well known that the Attorney-General and the Crown Prosecution Service exercise discretion in deciding whether to institute criminal proceedings and frequently acknowledge that it would not be in the public interest to prosecute every crime – however trivial. I have little doubt that such a discretion would be exercised in cases of this kind. This was rather confirmed by the CPS prosecution guidelines and “Charging Standard” introduced by Mr Price. It would hardly be appropriate to clutter up the courts with cases of spanking between consenting adults taking place in private property and without disturbing the neighbours. That would plainly not be in the public interest.

The conclusions are a joy to read:

125.   It has now to be recognised that sexual conduct is a significant aspect of human life in respect of which people should be free to choose.

127… it is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law. That is so whether the motive for such intrusion is merely prurience or a moral crusade. It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they are entitled to hound those who practise them or to detract from their right to live life as they choose.

128. It is important, in this new rights-based jurisprudence, to ensure that where breaches occur remedies are not refused because an individual journalist or judge finds the conduct distasteful or contrary to moral or religious teaching. Where the law is not breached, as I said earlier, the private conduct of adults is essentially no-one else’s business. The fact that a particular relationship happens to be adulterous, or that someone’s tastes are unconventional or “perverted”, does not give the media carte blanche.

More debate to follow, no doubt. But in the meantime, it feels like it’s been a good and important day for kinky folks here in the UK.
PS is it too much to hope that Mosley might divert some of the £60k to those who’ve been affected within the scene by recent events – some of the women concerned, and Paul and Lucy at Northern Spanking?