Abstract
Against a negative background, recent scholarship indicates a socio-cultural and medical reconceptualisation of consensual BDSM. At a point where consensual BDSM appears to be on the cusp of a new understanding and the question of full inclusion in the polity arises, any new legal frustration of its expression may have profound impacts, particularly in terms of citizenship claims. Focusing on the European Court of Human Rights’ decision in Pay v UK (2009) concerning the dismissal of a self-identified BDSM probation officer, this article considers the case’s significance for the development of consensual BDSM as a rights-bearing identity before the law and in relation to questions of sexual citizenship. Noting how the Court relies on negative and distorted stereotypes of consensual BDSM, this article further observes how the expulsion of the consensual BDSM identity from the probation service is rendered necessary to maintain the sexually normative coherence of the polity and, in the context of the Pay case, the civil institutions that regulate it.
Introduction: Of moment and momentum
BDSM sexuality, where consensually agreed upon explicit power and/or pain exchange has perceived erotic centrality, 1 has traditionally been located as marginal, and commentators have long noted how it has been characterised by an oppressive medico-legal taxonomy (Beckmann, 2001a, 2004, 2005, 2007, 2009; Califia, 1994; Califia and Sweeney, 1996; Langdridge, 2006; Langdridge and Butt, 2004; Moore, 2009; Sagarin et al., 2009; Sisson, 2007; Taylor and Ussher, 2001; B Thompson, 1994; M Thompson, 1991; Weinberg et al., 1984). Whereas pathological classifications of homosexuality have largely been revised, influential diagnostic and classification manuals such as the World Health Organisation’s ICD–10 and America’s DSM-IV have retained the view of consensual sadomasochism as a mental/behavioural disorder which poorly reflects the critical distinctions between consensual and non-consensual practice (Beckmann, 2004, 2009; Langdridge, 2006; Reiersøl and Skeid, 2006; Sagarin et al., 2009; Taylor and Ussher, 2001; B Thompson, 1994; M Thompson 1991; cf. Krueger, 2009). Yet against this background, a growing body of work argues that consensual BDSM ought to be seen more positively. Such work has gained crucial momentum, describing an increasingly public manifestation and politicisation of consensual BDSM where full inclusion in the polity is a realistic consideration. Scholarship on sexual identity narratives bears witness to the rising profile and circulation of consensual BDSM stories and their central role in the social construction of the consensual BDSM-self, a scripting which now appears to be coming into its own (Barker and Langdridge, 2009; Chaline 2010; Langdridge, 2006; Langdridge and Butt, 2004). In sum, as Langdridge and Butt (2004: 35) have asserted, the time for consensual BDSM to be heard has now come.
At this critical juncture, where consensual BDSM appears to be on the cusp of a new understanding, it is arguable that any new legal frustration of its expression may have profound impacts, particularly in terms of citizenship claims. As Langdridge (2006: 385) has alluded to in his analysis of BDSM citizenship, strategies for inclusion must contain consideration of moment as well as momentum. Taking the question of consensual BDSM citizenship seriously, I suggest that whilst there is a degree of momentum here in that the conditions of possibility for BDSM citizenship look increasingly favourable, legal developments at this moment of reframing require careful consideration. Although the role of the criminal law in the negative positioning of consensual BDSM has been well documented, recent litigation in the field of employment law culminating in the European Court of Human Rights (ECHR) decision of Pay v UK 2 also demands scrutiny. Given that the social, cultural and medical construction of consensual BDSM as well as the conditions of citizenship exist within the context of a regulatory framework, any development in the legal (and resultant institutional) control of consensual BDSM needs analysis. In this article, after outlining some key shifts in the socio-cultural and medical representations of consensual BDSM, I consider law as a key site of contest in the construction of the consensual BDSM-self, focusing on the recent case of Pay v UK. I seek to identify the wider significance of the case in relation to questions of citizenship with specific emphasis on issues of visibility, acknowledgement and the ability to render civic service. I argue that in Pay negative and distorted stereotypes of consensual BDSM are invoked to justify its expulsion; an expulsion which serves to maintain the sexually normative coherence of the polity and, in the context of the Pay case, the civil institutions that regulate it. The term ‘sexually normative’ may be taken to mean where sexuality is reflective of or conforming to heteronormative structures typically characterised by binary, gendered and hierarchical ideals of appropriate sexual containment, propriety and boundedness, and in this respect, sexual normativity should be understood to include homosexuality and lesbian sexuality that also mirrors these structures and ideals (see further Hubbard, 2001).
(Re)presentations: Alternative narratives of consensual BDSM
In relation to the early history of consensual BDSM, Rambukkana (2007: 70) notes that the process of tracing is problematic because such groups were mostly small and isolated but Chaline (2010) identifies that for gay men in the UK there have been four distinct periods characterising their access to and interaction with sadomasochism. From the leather subculture of the 1950s–1960s, mostly comprising gay males who identified with a ‘leatherman–biker ethic’ (Chaline, 2010: 344; Rambukkana, 2007), the following decade saw the gradual evolution of more organised leather institutions, albeit constrained by the existing regulatory framework at the time (Chaline, 2010). The 1990s are identified by Chaline (2010) as being characterised by a period of commercialisation (see also Beckmann, 2001a, 2009), whereby the social world of gay SM moves beyond a core ‘leather’ identity, facilitated by early online fora and specialist internet sites, whereas the contemporary phase (starting from the late 1990s) may be described as one of pluralisation, characterised by ‘the development of large bisexual and heterosexual SM social worlds’, greater and more mainstream commercialisation and readily accessible online communities (Chaline, 2010: 344; Rambukkana, 2007). In this current context, the picture of consensual BDSM that is emerging is one of complexity and at times contradiction. Some critical distinction (and indeed tension) exists between how consensual BDSM is understood by those allied to it and how it is constituted as medico-legal discourse (Bastian, 2002; Bauer, 2008; Beckmann, 2001a, 2001b, 2004, 2005, 2007, 2009; Califia and Sweeney, 1996; Langdridge, 2006; Moser and Kleinplatz, 2007; B Thompson, 1994; M Thompson, 1991; Yost, 2010). There is also no consensus as to whether BDSM simply connotes a range of sexual acts or a sexual orientation (Langdridge and Barker, 2007; Monceri, n.d.). However, viewing it as a sexual identity is not exceptional, and to do so would correspond to an increasing number of individuals that self-identify with consensual BDSM (Bauer, 2008; Langdridge, 2006). As Chaline has noted (2010; see also Langdridge 2006; Langdridge and Barker, 2007), people may simultaneously or consecutively inhabit a number of sexual identities and sexualities, none of which may be solely representative. Engagement with consensual BDSM may be on spectrum where identification is only occasional, or where through its mainstreaming and relabelling as ‘kink’ or ‘sleaze’, BDSM is no longer (or never was) the primary identity for the self (Beckmann, 2009; Chaline, 2007, 2010). In this respect, questions of citizenship may not arise at all; alternatively citizenship may be acquired through another vector of the self as in the context of consensual gay BDSM where, based on the citizenship rights of gay sexuality, practitioners may not be discontented. However, for those whose primary identity is founded on consensual BDSM, the question of citizenship may well be pertinent, particularly when, as seen in contexts such as Pay, they find themselves excluded from self-definition and expression in the public sphere, and denied the opportunity to render civic service. In that the claims of aspiring sexual citizens may be founded on the desire to define themselves ‘both in terms of personal and collective identities by their sexual attributes, and to claim recognition, rights and respect as a consequence’ (Weeks, 1998: 36), the representation of consensual BDSM itself as a specifically rights-bearing identity as opposed to a sexual practice certainly has significance for engaging with claims of rights and recognition as well as issues of visibility, acknowledgement and respect before the law.
At the time of writing, it is arguable that BDSM is finding a new place in the mainstream imaginary. Scholarship from the social sciences identifies the rise of a very public BDSM aesthetic, which is evident across the board in popular culture (Barker and Langdridge, 2009; Langdridge and Butt, 2004; Wilkinson, 2009). Although the rise of BDSM’s social profile has not been unproblematic, potentially serving to further underscore the theme of deviance for ‘real’ BDSM whilst reifying a highly selective, commercialised and heteropatriarchal view (Wilkinson, 2009; see also Beckmann, 2001a, 2005, 2009; Califia and Sweeney, 1996), when contrasted with the traditional view such visibility is noted as progressive (Barker and Langdridge 2009; Wilkinson, 2009: 187). It is notable that several variants of a BDSM flag have been developed, a phenomenon that speaks to a shared sense of identity, the iconography and symbolism of representation and belonging representing the quest for a sign under which to identify and rally; a symbolic appeal to concepts of citizenship and nationalism. 3 Alongside this socio-cultural repositioning, mounting arguments suggest that consensual BDSM has the potential to be physically and psychologically therapeutic in some contexts (Bastian, 2002; Beckmann, 2001a, 2001b, 2005, 2007, 2009; Sagarin et al., 2009; Norman, 1991), thus challenging traditional medicalised models. Although Barker and Langdridge (2009; see also Barker et al., 2007) observe that an emphasis on narratives of healing may only serve to underscore the persistent understanding of consensual BDSM as founded in trauma, a medically founded challenge may help counter the pathological model. Likewise, academic studies focusing on the accounts of practitioners themselves (Beckmann, 2001a, 2001b, 2004, 2005, 2007, 2009; Chaline, 2007, 2010; Langdridge and Butt, 2004; Taylor and Ussher, 2001; Weinberg et al., 1984) provide a useful counterpoint to standard clinical understandings. Online consensual BDSM communities such as ‘Unfettered’ and ‘Revise F65’ 4 as well as academic research (Reiersøl and Skeid, 2006; cf. Krueger, 2009) can be seen to mobilise around common points of oppression such as the ICD and DSM diagnoses, achieving some degree of success; at the time of writing (2009–2010) Sweden, Norway and Denmark have altered their official lists of diseases and mental disorders and ReviseF65 have been invited to collaborate with the World Health Organisation for its 2015 revision of the ICD. Such repositionings do not imply that consensual BDSM relationships/encounters are without problems, or that the consensual BDSM world is an ideal one, but note that such issues are by no means characteristic of or exclusive to such relationships (Beckmann, 2004; Califia, 1996; Rubin, 1987; Stychin, 1995; M Thompson, 1991). Whilst acknowledging these tensions, it is argued that consensual BDSM may be seen as a potentially liberating and disruptive sexuality which involves the participant in constant reflexivity and challenge, testing the boundaries of gender, (dis)ability, sexuality, self and other and suggesting a radical challenge to (hetero)normative power structures (see Bastian, 2002; Bauer, 2007, 2008; Beckmann, 2001a, 2001b; 2005, 2007, 2009; Califia, 1994; Califia and Sweeney, 1996; Henkin, 2007; SAMOIS, 1987; M Thompson, 1991). Indeed, consensual SM is explicitly predicated on an overt negotiation of consent and boundaries, where engagement may require and allow of its participants ‘far more reflection (self and contextual) about personal responsibility and rights than any ‘normal’ sexual encounter’ (Beckmann, 2001b: 98; see also Beckmann, 2001a, 2004, 2009). Consensual BDSM further challenges the wider, sedimented and non-consensual power structures of everyday life that frequently remain hidden and uninterrogated (Beckmann, 2009; Chancer, 1992).
Sites of contest: Law and consensual BDSM sexuality
Much in the way that medicalisation frames the debates on consensual BDSM, the symbolic and practical effects of its legal regulation cannot be understated. To date, the discussion of BDSM regulation has largely centred on the leading English case of R v Brown (1994) where a group of men engaging in consensual sadomasochistic sex were successfully prosecuted for contravening the Offences Against the Person Act 1861. Framed against the background of the emerging HIV/AIDS crisis and a conservative moral climate, the majority of the House of Lords viewed the whole scenario with unreservedly excoriating criticism and found that consent could afford no defence to the injuries inflicted (see further Bibbings and Alldridge, 1993). On appeal to the ECHR as Laskey, Jaggard and Brown v UK (1997) the judgment in Brown was endorsed on the basis that the State could legitimately interfere with rights to privacy where the health of its citizens is at stake. In this respect, the discourses of law and medicine can be seen as mutually reinforcing. Whereas Brown related to consensual BDSM activity in a homosexual context involving several sexual partners, similar activity in a heterosexual marital context has been seen by the judiciary as completely different, as seen in the later case of Wilson (1997) where the Court found that there was no proper role for the law (Weait, 2007). The Criminal Justice and Immigration Act 2008 (CJIA) has recently criminalised the possession of ‘extreme pornographic images’, yet whilst under the CJIA consent may be a defence, this defence is limited and only extends to the depiction of those acts which one may lawfully consent to, thus underscoring the legal disapproval of gay male consensual BDSM as seen earlier in Brown and revealing of the differential legal attitudes that still to gay, bisexual and heterosexual consensual BDSM.
Whilst the contextualisation of consensual BDSM in relation to sexual normativity is a central feature of traditional medical and judicial thinking and thus critical to its understanding, as are questions of consent, privacy and the criminal law, developments in the field of employment law as seen in the case of Pay v UK in relation to consensual BDSM in its own right signal a site of renewed and expanded legal engagement. The litigation concerned a man employed by the Lancashire Probation Services (LPS) whose work involved the treatment of sex offenders. It was never in dispute that he was well regarded by his employer in respect of his work; rather, the contention lay with his extra-curricular activities. Following his employer’s inquiry (directed to all employees) as to whether or not they were Freemasons, the employee responded in the negative, but disclosed that he was a member of a number of other organisations, including ‘The House of Roissy’ (later to become ‘Roissy Workshops Ltd’ of which the employee was a director). The employee had also disclosed that his hobbies included a circus-type fire act, which was even performed on one occasion for a probation service open day, with no apparent controversy (Pay, 2004: 193).
However, a few months after the questionnaire was circulated, Lancashire police received an anonymous fax indicating that Roissy advertised online as a manufacturer and supplier of BDSM goods and services. The fax included a photograph of the applicant in a mask, accompanied by two semi-clothed women. The police took no action, but referred the matter to the LPS, who conducted an investigation. The LPS established that Roissy was indeed registered at the applicant’s address, supplied BDSM goods and services, and that its website was linked to a number of BDSM websites, one of which included photographs of the applicant ‘engaged with instruments of fire’ with semi-clothed women (Pay [2004]: 193). There were also photographs of the applicant engaging in performances involving bondage and domination. Associated text suggested that the acts had taken place at a local private members’ club, involving male domination over submissive women.
The LPS immediately suspended the applicant on full pay. It argued that his sexual activities, although not criminal, might be incompatible with his role as a probation officer and bring LPS into disrepute. Although the applicant admitted that he was involved in performance shows at fetish and hedonist clubs, and had already stated his involvement with Roissy, he argued that he had never authorised the photographs and had asked the website to remove them, which they had since done. Upon review, although weighing in the balance the ECHR rights of respect to private and family life (Article 8), freedom of expression (Article 10) and the 17 years of good service rendered by the applicant, the LPS still concluded that the applicant had acted in a manner incompatible with his work and was dismissed. In both the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT), the claims under Articles 8 and 10 were rejected. The EAT felt that the response of the employer was proportionate and noted the finding of fact made by the ET that the applicant had consistently refused to accept the employer’s view as reasonable and that he had been reluctant to sever his connection with Roissy. Given these facts, and the employer’s views, alternative employment within the organisation was not feasible.
The applicant appealed to the ECHR (the Court) on a number of grounds, including those that his dismissal was a disproportionate interference with the exercise of his rights to respect for a private life under Article 8 and that of his freedom of expression under Article 10. It was further argued that he was the victim of discrimination, on the basis of his sexual orientation, in the exercise of those rights under Article 14, which establishes that Convention rights should be enjoyed without discrimination. In relation to Article 8, the Court recognised that his dismissal was a severe measure, but that given the nature of his work and the fact of the duties he owed his employers, it was not, in the event, disproportionate. Although the LPS could have taken measures short of dismissal, the Court accepted the domestic tribunal’s finding of fact that the applicant did not accept the employer’s view that the activities with Roissy were of concern and that he had been unwilling to sever his connection with the Company. Whilst Article 8 in principle could be said to apply, and that dismissal in the circumstances could amount to an interference with the applicant’s right to a private life, that interference could be justified in accordance with the needs of a democratic society. The interference followed a legitimate aim, that being the risk to the reputation of the probation service, and was a proportionate action taken in pursuit of that aim. Therefore, the claim under Article 8 was rejected.
The Article 10 claim was also disposed of, in that although the Court accepted the applicant was dismissed as a consequence of his expression of aspects of his sexual identity, including photographic representations thereof, the interference with Article 10 rights was necessary in a democratic society for the reasons already explained in relation to the Article 8 argument. Regarding the Article 14 claim, the Court found that the applicant was not dismissed because of his sexual orientation per se, but rather for the reason that knowledge of his participation in BDSM nightclub performances might become public knowledge and undermine his work with sex offenders. The Court was unanimous in its decision of inadmissibility.
Commentary: Pay and the question of sexual citizenship
(1) Visibility and acknowledgement
Whilst it is possible to analyse the case from a doctrinal perspective (see further Mantouvalou, 2008; Mantouvalou and Collins, 2009) considering the earlier arguments of consensual BDSM as entering into a new phase of recognition, I think that it is productive to consider Pay explicitly through the lens of sexual citizenship. Langdridge (2006) has argued that it is precisely because of this changing context that the moment of proposing full consensual BDSM citizenship has become plausible, but as I will illustrate, the case of Pay signals some significant resistance to such a prospect.
Phelan (2001) notes that the concept of citizenship is central to calls for inclusion into the polity, a call that has been particularly pertinent for sexual groups who have traditionally been excluded. Citizenship entails ‘the recognition that one has a claim to be heard and responded to … the emergence into publicity as an equal citizen … that one be an active constructor of one’s public appearance’ (2001: 14–16). She argues that citizenship refers to equal recognition and protection under the law, social and political participation in the community, visibility and acknowledgement and an entry into the ‘national imaginary’ as something other than threat (2001: 7). Likewise, Weeks considers the emergence of the ‘sexual citizen’ as being marked by the emergence of democratised relationships and the circulation of sexual stories that work to challenge normative forms of sexuality and seek their own independent acknowledgement (Weeks, 1998). Arguably what is being presented to the Court in Pay is a BDSM identity claim, articulated in the public sphere, and a request that it be afforded public acknowledgement and respect. But more than this is at stake, in that at the heart of the case lies the ability of the BDSM subject to be an active citizen; not only to be recognised and acknowledged but to be able to render civic service and meaningfully contribute to the public sphere. Such participation is critical both to constitute citizenship and support the polity, as Calhoun has observed (1992: 2): ‘A public sphere adequate to a democratic polity depends upon both quality of discourse and quantity of participation’. Arguably it is thus a claim of citizenship, founded in relation to a BDSM identity, that lies at the heart of Pay.
As an extract from the transcript indicates: [The applicant] submitted that his activities … fell within the scope of ‘private life’, since they were an important part of his sexual expression and sexual orientation. The public performance aspect involved in his act was a fundamental part of his sexual expression, rather than an adjunct to it … the applicant complained that he was the victim of discrimination, because of his sexual identity … The Court considers that … the applicant was dismissed as a consequence of his expression of aspects of his sexual identity. (Pay, 2009: 22, 27, my emphasis)
It is not the fact of asserting a self-defined identity alone that is of significance, but that the identity be publicly articulated. In considering how identity is constructed, it has been argued that the ability to participate in the creation and consumption of imagery is central, with cultural consumption and production being the key methodologies in the process of constituting the self (Stychin, 1995). Messages and images are circulated and received in cultural discourse, and identity is forged through the consumption and understanding of such material, in that it is ‘[t]hrough cultural appropriation [that] the subject receives “an education” about the “self” and its relation to the world and others to it … images are consumed, appropriated and redeployed’ (Stychin, 1995: 24). This is not to deny that mainstream depictions of consensual BDSM can be problematic, and that the context of commercialisation can also be problematic, but this is arguably true of all sexual identities (Stychin, 1995) and in the case of forging an identity, particularly one that has been traditionally subjugated, there is all the more need for a wider and more informed discourse (see e.g. Califia, 1994). That the articulation of identity is in the public sphere is important (Stychin, 1995), because the public sphere is a space of the political, designating ‘a theater in modern societies in which political participation is enacted’ (Fraser, 1992: 110). These arguments can been readily applied to consensual BDSM, whereby the circulation of consensual BDSM stories – their consumption and public articulation – have been recognised as critical to the construction of a less subjugated identity. If consensual BDSM is understood to be performative; disseminated and concretised by the repeated re-articulation of central themes and scripts (Chaline, 2010), then it is the literal as well as the figurative performance of the BDSM identity that is at stake in Pay.
With the growth of online spaces, arguably the sites of citizenship and the forums for its contestation are being reconfigured. In that visibility is key to citizenship, the opportunities presented by online space have been transformative, particularly in relation to traditionally subjugated sexualities. It can be no coincidence that at the very moment when the sexual narrative of consensual BDSM is entering into a new economy of representation, poised on the threshold of more fully entering into the public imaginary, we find its suppression. For the constitution of citizenship, Phelan argues that bare visibility alone is not sufficient in that notice does not necessarily equal acceptance (2001: 16–17). Drawing on the etymology of acknowledgment to include the particularly public act of recognition, honour and respect, she asserts that ‘[f]ull citizenship requires that one be recognised not in spite of one’s unusual or minority characteristics, but with those characteristics understood as part of a valid possibility for the conduct of life’ (Phelan, 2001: 15–16). It is thus at the horizon of visibility that the ‘threat’ of consensual BDSM entering the imaginary becomes actualised that the law must take action; it is because of what the public might see or find out that motivates the Court. As Beckmann (2009: 126) notes, the public acceptance of sadomasochism is still largely predicated on highly commercialised representations whilst ‘an authentic, contextual understanding is not provided.’ Pay represents the perceived risk of an unmediated and experiential narrative of consensual BDSM escaping into the public consciousness, which must be checked – in the words of the Court: ‘dismissal resulted from his failure to curb even those aspects of his private life most likely to enter into the public domain’ (Pay, 2009: 26).
It is notable that the Court in Pay appears willing to consider, in principle, the increasing acceptance and understanding that mainstream British society has for consensual BDSM. In its observation: ‘The applicant may be correct in thinking that consensual BDSM role-play, of the type depicted in the photographs on the … website, is increasingly accepted and understood in mainstream British society. Indeed, the hallmarks of a “democratic society” include pluralism, tolerance and broadmindedness …’ (Pay, 2009: 26). Given the wider context of legal opprobrium that has traditionally marked BDSM, such apparently progressive statements are arguably an advance. However, whilst the symbolic importance of such statements should be acknowledged, their proper contextualisation in relation to the judgments taken as a whole is critical. The Court effectively bases its decision on an uncritical acceptance of the respondent’s position that the public reputation of the probation service might be damaged. Whilst noting that the dismissal of a specialised and highly trained public servant is a severe measure: At the same time, the Court is mindful that an employee owes to his employer a duty of loyalty, reserve and discretion … As such, it was important that he maintained the respect of the offenders placed under his supervision and also the confidence of the public in general and victims of sex crime in particular … given the sensitive nature of the applicant’s work with sex offenders, the Court does not consider that the national authorities exceeded the margin of appreciation available to them in adopting a cautious approach as regards the extent to which public knowledge of the applicant’s sexual activities could impair his ability effectively to carry out his duties. (Pay, 2009: 25–26)
But the loss of confidence is something never actualised, rather a spectre lying at the heart of the case such that the language of risk becomes self-justifying. The conclusion of unacceptable risk appears to be directly at odds with the Court’s own consideration that society may be increasingly tolerant and broadminded, and in contradiction to the mounting body of evidence that suggests a more positive reception for consensual BDSM. There is no real debate as to precisely why the applicant’s BDSM identity is at odds with his role as a probation officer working with sex offenders, which is particularly curious given the evidence accepted by the Court, which attests to his considerable abilities in this role. This lack of discussion is worrying, suggesting an assertion based on a ‘common sense’ argument that is self-justifying and as such requires no further explanation or comment. As such, the argument could be broadly applied to any public sector of employment in order to dismiss those who appear not to fit in to a model of normative sexuality. The rationale that the probation service’s work with sex offenders might be undermined both in the public eye and in the estimation of sex offenders themselves effectively conflates consensual BDSM and explicitly non-consensual sex offences, a move which compounds the traditional pathological model. Whatever risk may arise in the context of the employers’ reputation in Pay is implicit, unspoken and relying on sedimented stereotypes of consensual BDSM. Whilst there is visibility in Pay it is a paradoxical visibility, erased through its very emergence, and acknowledgement, in the sense of the legal recognition of the ‘authentic’ BDMS self – actively constructed and publicly apparent as valid and viable thus worthy of recognition as equal – is lacking.
(2) Citizenship and probation
A closer focus on the context of the employment itself is instructive in analysing Pay in terms of a discourse of citizenship. Maintaining the internal integrity of the state is achieved by the surveillance and control of those within (see further Bottomley and Moore, 2007), a role central to the probation service. As noted by the EAT: The modern probation service is a law enforcement agency at the heart of the criminal justice system. It aims to see that offenders receive proper punishment for their offending by the way they are supervised in the community. It works for their effective rehabilitation so they are less likely to offend in the future … Its responsibilities include the delivery of effective programmes for supervising offenders safely in the community and upholding the interests of victims of crime. (Pay, 2004: 192)
The probation service can be seen in this respect to serve a double function in terms of citizenship. Firstly, the right to render civic service can be seen as a key factor in the construction of the active and engaged citizen, thus through being a probation officer one actively contributes by helping to secure the health and well-being of the polity. Secondly, it is through civic service that offenders may be redeemed, community service orders prompting their re-engagement with the polity to repair their alienation. In that the body politic is open to infection, the risk in this context can be understood as that posed by sexually deviant criminal elements, the sex-offender (in particular the paedophile) arguably being seen as the current apex of anti-citizenship. In this respect, the probation service is an important location of the construction and maintenance of a secure, healthy and sexually normative polity. Owing to public concern, sex offenders in particular are subject to explicitly heightened scrutiny in relation to probation, and must be overtly managed (HMI Probation and HMI Constabulary, 2010). But whereas the criminal law can be seen to demarcate the distinction between self and perverse ‘other’ – those whose (typically non-consensual) sexual deviancy is registered by the law such as the rapist and the paedophile, the probation service, as a law enforcement agency, further reinforces this distinction as the very service dedicated to the successful monitoring, socialisation and rehabilitation of offenders; socialisation and rehabilitation in particular being redemptive processes that explicitly speak of the active transformation from deviant to one who is, in the common parlance, ‘going straight’, whereas monitoring and managerialism speak to the (unredeemed) deviant’s continued separation and otherness. In the current context, probation can be contextualised within the conditions of a ‘new penology’, where transitions are seen ‘from rehabilitation and treatment to a language of probability and risk’ and ‘from ideals and values associated with people, towards managerial, technocratic and bureaucratic procedures’ (P Whitehead, 2007: 46). As part of the ‘new managerialism’ that can be seen to pervade many public services, non-consensual ‘conditions of domination’ are produced (see further Beckmann and Cooper, 2005), where a chronically under-resourced probation service (BBC, 2008, 2009; McKnight, 2009; Penrose, 2009; P Whitehead, 2007, 2010; T Whitehead, 2010) becomes increasingly mired in neo-liberal managerialism (P Whitehead, 2007, 2010) and framed by a ‘dogmatic approach, based upon penal populism and constant restructuring’ (McKnight, 2009). P Whitehead notes that the very vocabulary of contemporary probation has visibly shifted to reflect a new right-wing political agenda which introduces terms such as ‘risk, management, containment and control’ (2007: 86). Thus the probation service has moved from a social work agency to a law enforcement organisation which deals no longer with ‘clients’ but ‘offenders’ in which the probation officer is not a social worker but someone who ‘manages’ offenders (P Whitehead, 2007: 86–87). Under the current model of probation he observes that: the contemporary probation officer has been provided with an extended linguistic repertoire and additional scope to characterise, label, and ‘fix’ the essence of an offender. This endorses/creates a deviant identity and potentially excludes from the community of the ‘normal’ those who are deemed to pose a risk to others. (P Whitehead, 2007: 86)
Gatekeeper to successful re-entry into civilised society and monitor of identified threats within, the probation service is arguably a key site of brokerage, complicit in the construction and policing of normative sexual citizenship. Thus the probation service, which regulates the sexually ‘deviant’, must not be found to be ‘deviant’ itself. The inaccurate juridical and institutional conflation of consensual BDSM with non-consensual sex offending in Pay thus leads the courts to endorse the conclusion that consensual BDSM is threatening to the probation service in its entirety: it was agreed that alternative employment would not be an option ‘given the conclusion that his activities had been found to be incompatible with the role of any probation officer’ (Pay, 2009: 16, my emphasis). But consensual BDSM explicitly plays on the subversion of juridical discipline and punishment, revealing the latter in itself to be inherently sadomasochistic (McClintock, 1993). Tacit acknowledgement of this may be seen to underlie the judgment: ‘the equipment for sale and for hire included a dungeon which is, of course, a prison cell’ (Pay, (2004: 196, my emphasis). Whereas ‘common sense’ understandings of power may claim ignorance of (and thus mask) its dynamics and asymmetries, consensual BDSM facilitates its explicit recognition and through this, its deconstruction (Beckmann, 2009). Thus the applicant’s BDSM sexuality becomes a highly resistant and challenging act, one which actively resignifies ‘the ideality of the norm’ (Loizidou, 2007: 155) – a move which not only reveals the performativity of the BDSM identity as well as that of the normative identity, but also the inherent performativity of institutions which construct and maintain such norms (see further Beckmann, 2009; Butler, 1990; Chancer, 1992). Rendered visible, the presence of the consensual BDSM identity in the probation service engenders a profound moment of crisis as such norms are revealed to be unstable and contingent. Thus its expulsion becomes inevitable in order to maintain the sexually normative character of the probation service, and with it the polity. However, such institutional and juridical censure of consensual BDSM in itself effectively serves to mask not only the institutionalisation of the conditions of non-consensual domination and control in the probation service but the wider instances of such non-consensual ‘sadomasochistic dynamic[s]’ (Chancer, 1992: 3) that may be seen as characterising contemporary social power conditions, organisations and institutions in everyday life (see further Beckmann, 2009; Beckmann and Cooper, 2005; Chancer, 1992).
Conclusion
It may seem that the position sought by the litigant in Pay is paradoxical, in that the claim to a private life may be seen as standing in contradiction to the right of public articulation. Yet this very paradox lies at the heart of debates on sexual citizenship: ‘the tension between transgression and inclusion, dissidence and accession to the dominant legal and political order’ (Grabham, 2007: 37; see also Bell, 1995; Bell and Binnie, 2000; Hubbard, 2001; Richardson, 2000; Weeks, 1998). In relation to consensual BDSM, Bell (1995: 147) has noted that the ‘citizen pervert’ who does not conform to normative sexual citizenship is ‘exactly on the slash of the public/private split, irreducible to either domain’ and that ‘law’s eruptions into the private begin a process of reducing or even erasing the private as a site of pleasure, rendering pleasure a public – and by that political – issue’. In that the sexual citizen negotiates the public/private sphere paradoxically, as the security of private space is claimed through an emergence into publicity, Bell and Binnie warn against a merely tactical emergence which only serves ‘to enable the claim to privacy – the ‘proper home’ of the sexual citizen’ (2000: 4). On such a model, a politics of assimilation is invoked where a rights-based strategy forces the sexual citizen into a modality that is ‘privatised, deradicalized, de-eroticised and confined in all senses of the word’ (Bell and Binnie 2000: 3, their emphasis). As they see it, the challenge for a project of sexual citizenship is therefore to negotiate a model of citizenship (and citizen) that does not reproduce the exclusion of difference and dissidence. Richardson also warns against a citizenship whereby the public/private divide works to underscore ‘a liberal model of sexual citizenship … based on politics of tolerance and assimilation’ (2000: 110; see also Grabham, 2000). Although for some, the very allure of consensual BDSM may well lie in its transgressive status, and thus questioning the desirability of an entry into full citizenship, commentators such as Stychin (2001) have suggested that a concentration on more than one strategy is necessary to fully critique citizenship itself. Stychin considers that plural spheres of engagement and development are necessary: [T]he elaboration of identity politics … [requires] both separate spaces for the development of a shared subculture and an ongoing focus on the integration of groups into broader social forms. This provides a useful way of ‘troubling’ the dichotomy between social assimilation and separatism … between normalization and transgression … [n]either side … can be renounced, for both become ‘moments’ which are of ongoing importance for the possibility of civic inclusion. (2001: 288)
Thus citizenship ‘always has the potential to be rearticulated’ (Stychin 2001: 289, original emphasis) and whilst consensual BDSM has been theorised as a ‘limit’ identity for citizenship, this very marginality need not necessarily be reduced to a choice between assimilation and transgression. As Langdridge (2006: 387) argues, ‘SM practitioners may be too sexual, too fragmented and/or too transgressive for citizenship as it now stands, but through their strangeness the limits of citizenship become apparent and the need for radical reconceptualization obvious’. This dialectic is, in itself, the very discourse of citizenship.
In relation to these problematics, it can be argued that the emergence into publicity in Pay is not merely tactical and thus transient, in that it represents a demand to be self-definitional and expressive and fully acknowledged by the state and its institutions as such and not as a precursor to disappearance in the private sphere. The claim in Pay is not a demand for consensual BDSM to be tolerated only ‘out of sight’, nor is it one predicated on access to an already normatively constructed legal institution such as marriage, rather it challenges the existing legal mode of citizenship by demanding inclusion on its own terms. Thus whilst on the surface the claim to a private life may be seen as standing in contradiction to the right of public articulation, the claims can be read in terms of the desire for the articulation of the BDSM self to be free from state interference, hence conceptualised as a desire for a private life, but performed as communicative, democratic and equal, requiring a specifically public context of performance such that it is not socially and legally closeted, repressed or otherwise subjugated. The spatial dynamics of the would-be sexual citizen in Pay are fluid – as Hubbard (2001: 67) has indicated: ‘publicity and privacy co-join differently in different places, and it is in sites that are imagined as not solely public or solely private that new identities will emerge’. Yet the potential space in which this citizen might emerge is collapsed by the construction of citizenship as marked by a strict re-inscription of the public/private divide, in that either the applicant may be a public servant as a probation officer, but by definition this cannot be one who is self-identified with consensual BDSM; or a private individual so identified who by virtue of this very self-definition may not be an active citizen engaged in the public service of probation. Whilst state recognition is not, as Phelan states (2001: 6), the sole arbiter of citizenship, Pay reminds us that the effects of the law can be extensive and cannot necessarily be seen in isolation from other institutions and modes that constitute the engaged and politicised citizen. Indeed, as Phelan herself also notes (2001: 18), ‘[a]cknowledgement consists both in legal inclusion and formal rights and in active acknowledgement of individuals and groups as part of the polity.’ Although it could be argued that there could be a danger of overinvesting in the power of the law as an arbiter of citizenship, its significance and influence in relation to other vectors of citizenship soon becomes apparent when the prospective sexual citizen, as in Pay, faces the prospect of being denied the right to articulate their chosen identity, to a livelihood in their chosen profession, to civic service and to legitimacy and recognition; a prospect that is surely antithetical to even the most reflective and inclusive model of sexual citizenship.
Footnotes
Acknowledgments
I wish to thank the anonymous reviewers for their close reading and helpful suggestions. Thanks also to Suzanne Ost, David Sugarman, Madeleine Chatterjee and Christiana Markou for their discussion of previous drafts. Previous versions of this article were presented at the Socio-Legal Studies Association Conference, UWE Bristol 2010, and the University of Lancaster Centre for Gender and Women’s Studies Research Day 2010. I thank the audiences at both events for their valuable feedback. All errors are my own.