THE SEXUAL FREEDOM COALITION

Below is a letter from a Polish producer of BDSM pornography, and the reply from the SFC:

Dear The Spanner Trust,

My name is Marcin Szymonik, I'm living in Poland and I have been webmaster of BDSM oriented website with discussions, photos and few videos. In last months site have been closed by polish police and I will be judged.

Polish law says that you can't publish pornography presenting violence and punishment is really high (up to 12 years of prison)

Public prosecutor just can't and don't want to understand that BDSM is not the same as sexual crimes, and that BDSM is not connected with real violence.

I think the main problem is that some people just don't understand what is BDSM and can't understand and imagine that some people may want to practise S/M of their own free will.

Can you help me in any way?

I don't know if helping in such cases is part of your activity. If not, maybe you could send me some scientific elaborations about BDSM showing that publishing BDSM materials should not be criminalized. There are not many of them in Poland. I'm searching for them on Internet but you propably have better access to such elaborations.

I think it would be helpful in court but I have not much time. Judicial process will start on 11th March 2008
Thank you and sorry for my not very good english
Best wishes
--
Marcin Szymonik

Reply from the SFC:

Our ref: L/C/S49

Dear Marcin

Thank you for your email addressed to the Spanner Trust.

I am sorry to hear that you are being prosecuted in this way and will see if there is anything that the Trust can do to assist you. You mention that your English is not very good but I think your English is excellent, with one exception. This is the use of the phrase "scientific elaborations". It is not an idiomatic phrase used in English and in this context, the word 'academic' would be used for the word 'scientific', and either the word 'articles' or 'arguments' would be used for the word 'elaborations'. Accordingly any request you send out should be asking for 'academic articles'.

By a coincidence although we do not have a similar law in the United Kingdom at the moment (except for child pornography) but the UK Government is proposing to create such a law. This is presently being debated in Parliament. The one consolation I can see between our proposed law and your law is that in the UK the maximum term for imprisonment proposed is five years and not twelve years. However, the opposition being mounted against the proposed law is considerable and although the Government has a huge majority in the House of Commons it does not have a majority in the House of Lords and that is where we are concentrating the efforts being put forward to oppose this new law.

I mention this because recently an academic article has been prepared to show to the House of Lords indicating what an undesirable impact there will be and a very large number of British people will be criminalised if this law is made. I attach a copy which please show to your lawyers.

We have sought legal advice from one of the most important Human Rights Lawyers in the country called Rabinder Singh QC and he is also one of the most important Human Rights Lawyers in Europe. I attach a copy of his Legal Opinion and again, would suggest that you show this to your lawyers.

Finally, in regard of further academic arguments, I would refer you to the website of the United Kingdom Parliament at the following link for the Criminal Justice and Immigration Bill: http://services.parliament.uk/bills/2007-08/criminaljusticeandimmigration.html

There are a large number of submissions which were made to the committee of the Parliament which examined the Criminal Justice and Immigration Bill and most of those submissions will be arguing against the introduction of such a law and I would suggest that you print off the ones which are most favourable, and again, show those to your lawyers. Most of these Submissions can be found at: http://www.publications.parliament.uk/pa/cm/cmpbcriminal.htm#memo - in particular, the submissions from 'Backlash': http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/memos/ucm40502.htm and The Spanner Trust: http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/memos/ucm40702.htm

In terms of evidence the article I would refer you to the Consultation Paper of the United Kingdom Government which it made before introducing the proposed legislation into Parliament. The Government conceded that there was no evidence to show that the viewing of pornography led to violence.

In order to counteract this, the Government commissioned four academics to provide a report knowing that they were academics who had previously expressed anti-pornographic views. As a result of this a campaign was undertaken to find other academics who would counteract those views and letters were signed by forty academics doing so were made available to the British Government. Again, you should be able to find copies of all this information on the UK Parliament website.

Personally, I always think that it is best to try to argue with simple arguments and the simplest argument I can find is by looking at the evidence from other countries.

Countries with the most relaxed and liberal laws which do not criminalise the possession of pornography such as countries in Scandinavia have very low incidences of crimes of sexual violence.

Countries which are in the middle, with some laws against pornography, such as The United Kingdom and Poland tend to have a moderate number of crimes involving sexual violence.

For countries which have the most extremely draconian anti-pornographic laws such as Saudi Arabia and Iran, the number of crimes of sexual violence perpetrated is extremely high.

Poland is now a member of the European Union and the Polish Government must comply with the European Convention on Human Rights. I would advise that you should pursue all your legal remedies of appeal to the highest court in Poland and then consider (if the appeal is unsuccessful) whether to take the matter to the European Court of Human Rights in Strasbourg.

The European Convention contains three important rights which may be of assistance, although the rights are qualified and not absolute.
1. Article 8 of the Convention gives every individual a right to a private life.
2. Article 10 of the Convention gives every person the right of freedom of speech and freedom of expression, and, finally,
3. Article 14 gives every person the right to expect the other Convention rights to be interpreted in a non-discriminatory manner.

If the group of individuals who engage in BDSM are not permitted by law to possess images of their activities then this might be regarded as a breach of Article 14. However the main Articles to be relied upon are Articles 8 and 10. Previously decided cases at Strasbourg have not been favourably heard. However, the Convention is a living body of law and as social conditions change in society the judges will take more lenient views and we believe that it is important for all the peoples of Europe constantly to be pushing back the boundaries of freedom and liberalism. The opinion of Rabinder Singh QC who, as I mentioned above, is one the other most eminent Human Rights Lawyers in London, is that the likelihood of success is difficult to estimate and is somewhere in the middle of the range of likelihood, but opinion was that it would be worthwhile making an appeal to Europe.

Would you please keep us informed of all developments and if you do wish to go ahead and lodge an appeal with Strasbourg and require some assistance with raising funds then please contact us again and it might be that the best thing would be for there to be a Europe-wide campaign launched to do this in which we would endeavour to play a part. It might also be possible to raise some funds in the USA. I would recommend that the lawyer you should use should be Rabinder Singh QC.

It is important that throughout Europe the BDSM community stands up in all the member states with solidarity. It was the country of Poland which showed the rest of Europe that solidarity can overcome tyranny after all.

Our thoughts and best wishes are with you.

John M Lovatt
Legal Adviser
Spanner Trust