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15(5/6) 739–757
Pay v UK, the probation ! The Author(s) 2012
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DOI: 10.1177/1363460712446279
BDSM sexual citizenship sex.sagepub.com
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, particu-
larly 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 sexu-
ally normative coherence of the polity and, in the context of the Pay case, the civil
institutions that regulate it.
Keywords
Consensual BDSM, European Court of Human Rights, law, Pay v UK, probation service,
sexual citizenship
Corresponding author:
Bela Bonita Chatterjee, Director of Studies, LL.B Degree, Lancaster School of Law, Office C63 Bowland
North, Lancaster University, Lancaster LA1 4YN, UK.
Email: b.chatterjee@lancaster.ac.uk
740 Sexualities 15(5/6)
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 regis-
tered 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 photo-
graphs 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.
Chatterjee 745
[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)
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 cau-
tious 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 con-
structed and publicly apparent as valid and viable thus worthy of recognition as
equal – is lacking.
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 offend-
ing 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 import-
ant 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 man-
aged (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 rehabili-
tation 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) devi-
ant’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 manager-
ialism’ that can be seen to pervade many public services, non-consensual ‘condi-
tions 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 con-
stant restructuring’ (McKnight, 2009). P Whitehead notes that the very vocabulary
750 Sexualities 15(5/6)
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)
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 devel-
opment 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 transgres-
sion . . . [n]either side . . . can be renounced, for both become ‘moments’ which are of
ongoing importance for the possibility of civic inclusion. (2001: 288)
752 Sexualities 15(5/6)
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 dia-
lectic 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 conceptua-
lised 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 dynam-
ics 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-defini-
tion 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]cknowl-
edgement consists both in legal inclusion and formal rights and in active acknow-
ledgement 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 recog-
nition; a prospect that is surely antithetical to even the most reflective and inclusive
model of sexual citizenship.
Chatterjee 753
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.
Notes
1. I use the term BDSM to describe sexual identities allied to bondage, domination and
sadomasochism in the non-medicalised (i.e. non-pathologised) sense, that is, where
power differentials are sexualised and/or where intense sensations are exchanged,
and, importantly, where parties are consenting. This acknowledges that the term
BDSM is increasingly used by those who self-identify as such, in preference to the
term SM, as it is felt that the latter has pathological associations and places too
much emphasis on the pain aspect of such practices. Thus BDSM is descriptive of a
broader range of practices, a non-pathological term, and a self-definition arising from
communities themselves (Bauer, 2008). When citing case reports, as with academic
commentators, I have chosen to retain their original terminology, using whichever
term or variant appears.
2. For a list of cases and statutes, please see Appendix.
3. See e.g. bdsmrights.com (bdsmrights.com, n.d.)
4. See revisef65.org (n.d.: postings of 11 November 2011); unfettered.co.uk (2000–2008). See
also backlash-uk.org.uk (2012).
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Appendix
Cases/statutes
Criminal Justice and Immigration Act 2008
Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39
Pay v Lancashire Probation Services (EAT) (2004) ICR 187
Pay v UK (2009) 48 EHRR SE2
R v Brown (1994) 1 AC 212
R v Wilson (1997) QB 47
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