Double standards that damn S&M enthusiasts

Her day job might've been working in a chip shop but she knew how to handle a cat-o-nine-tails. My best friend's bare bum hanging out of his trousers looked especially defenceless. She'd come out of the Yellow Pages - not just for the nasty things in life, but for the really nasty things, too. After his whipping, we examined the damage. The angry welts on his arse clearly amounted to actual bodily harm. Had he consented? Was meekly lowering his trousers the same as giving the thumbs up?

The House of Lords ruled in the so-called 'Spanner' case, named after the police operation, that you couldn't consent to ABH in sadomasochistic sex. In his judgement, Lord Templeton said that, "Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised." The participants in the Spanner case, which involved gay men filming the torture of each other's genitals, would disagree. It was entirely consensual. They volunteered to have their foreskins nailed to bits of wood. No one ended up in A&E explaining how they happened to become so uncomfortably attached to faux-Regency coffee tables. Their lordships, shocked by the disparities in age between the nailers and the nailed, felt that a line must be drawn to protect those who couldn't protect themselves. The line they drew is not at all straight but slithers across our peculiar attitudes to what is and what isn't acceptable.

In the case of Wilson, where a husband branded his wife's bottom with his initials, the Court of Appeal held that Spanner didn't apply because a consenting married couple could commit acts that led to mild injury. The doctor treating the burns clearly thought otherwise when he reported the couple to the police. Is nicking some other guy's penis with a knife worse than scarring your wife? After another 'grass up' from a doctor, the Court of Appeal ruled that there was no defence of consent in erotic-asphyxiation, either. Surely the real deterrent is the prospect of getting convicted of manslaughter if it all goes wrong.

The Americans are just as potty. An Iowa court decided in a case where a prostitute had been sexually tortured by her pimp that S&M was not a 'social activity' (so no photos of 'spanked out' debs in Tatler then) and therefore consent couldn't be a defence. Sportsmen kicking each other in the kidneys are protected but your suburban S&Mer isn't. These value judgements say more about the judges than what is or isn't safe and fun for consenting adults.

The line should be drawn closer to GBH ('really serious harm') than ABH ('any hurt calculated to interfere with the health or comfort of the victim'). I propose the 'matron test', which is that no one should be able to consent to anything that cannot be treated by a competent district nurse.

If the current law were consistently applied Max Mosley, like my friend, couldn't consent to his injuries. This is ludicrous. Just because there is a defence in law doesn't mean it will be made out on the facts, and it's the facts that really matter. Consider Mosley's case: he played punishment games with willing participants, had sex - what's the point otherwise - and enjoyed a post-coital cup of tea. Nothing could be less evil or more civilised than that. ·