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Article

Pay v UK, the probation


service and consensual
BDSM sexual citizenship

Sexualities
15(5/6) 739757
! The Author(s) 2012
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DOI: 10.1177/1363460712446279
sex.sagepub.com

Bela Bonita Chatterjee


Lancaster University, UK

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 cases 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.
Keywords
Consensual BDSM, European Court of Human Rights, law, Pay v UK, probation service,
sexual citizenship

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;
Calia, 1994; Calia and Sweeney, 1996; Langdridge, 2006; Langdridge and Butt,
2004; Moore, 2009; Sagarin et al., 2009; Sisson, 2007; Taylor and Ussher, 2001;
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

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Sexualities 15(5/6)

B Thompson, 1994; M Thompson, 1991; Weinberg et al., 1984). Whereas pathological classications of homosexuality have largely been revised, inuential diagnostic and classication manuals such as the World Health Organisations ICD10
and Americas DSM-IV have retained the view of consensual sadomasochism as a
mental/behavioural disorder which poorly reects the critical distinctions between
consensual and non-consensual practice (Beckmann, 2004, 2009; Langdridge, 2006;
Reiersl 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 prole 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 eld of employment law culminating in the
European Court of Human Rights (ECHR) decision of Pay v UK2 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 signicance
of the case in relation to questions of citizenship with specic 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
reective of or conforming to heteronormative structures typically characterised by

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741

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) identies 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 1950s1960s, mostly comprising
gay males who identied with a leathermanbiker 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 identied 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; Calia 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 identication 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

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citizenship may well be pertinent, particularly when, as seen in contexts such as


Pay, they nd themselves excluded from self-denition 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 dene 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 specically rights-bearing identity as
opposed to a sexual practice certainly has signicance 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 nding a new place in the
mainstream imaginary. Scholarship from the social sciences identies 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 BDSMs social prole 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; Calia 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 ag 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 F654 as well as
academic research (Reiersl 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 (20092010) Sweden,
Norway and Denmark have altered their ocial 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

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characteristic of or exclusive to such relationships (Beckmann, 2004; Calia, 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 reexivity 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;
Calia, 1994; Calia 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 reection (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 eects 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 Oences 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
aord no defence to the injuries inicted (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 dierent, 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 dierential 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

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critical to its understanding, as are questions of consent, privacy and the criminal
law, developments in the eld 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
oenders. 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 employers 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
re 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 applicants 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 re 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 ocer 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 nding of fact made by the ET
that the applicant had consistently refused to accept the employers view as
reasonable and that he had been reluctant to sever his connection with Roissy.
Given these facts, and the employers views, alternative employment within the
organisation was not feasible.

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745

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 tribunals nding of fact that the applicant did not accept
the employers 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 applicants right to a private life, that interference could be justied 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 oenders. 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 signicant 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

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claim to be heard and responded to . . . the emergence into publicity as an equal


citizen . . . that one be an active constructor of ones public appearance (2001:
1416). 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 aorded 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-dened identity alone that is of signicance,


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. Calia,

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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 gurative 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 recongured. 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 nd its suppression. For the
constitution of citizenship, Phelan argues that bare visibility alone is not sucient
in that notice does not necessarily equal acceptance (2001: 1617). 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 ones unusual or minority characteristics, but with
those characteristics understood as part of a valid possibility for the conduct of
life (Phelan, 2001: 1516). 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 nd 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 eectively bases its decision

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on an uncritical acceptance of the respondents 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 oenders placed under his supervision and also the condence of the
public in general and victims of sex crime in particular . . . given the sensitive nature of
the applicants work with sex oenders, 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 applicants
sexual activities could impair his ability eectively to carry out his duties. (Pay, 2009:
2526)

But the loss of condence 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 Courts 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
applicants BDSM identity is at odds with his role as a probation ocer working
with sex oenders, 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 t in to a model of normative sexuality. The
rationale that the probation services work with sex oenders might be undermined
both in the public eye and in the estimation of sex oenders themselves eectively
conates consensual BDSM and explicitly non-consensual sex oences, 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

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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 oenders receive proper punishment for their oending by the way they are supervised in the community. It works for their eective
rehabilitation so they are less likely to oend in the future . . . Its responsibilities
include the delivery of eective programmes for supervising oenders 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 ocer one actively contributes by helping to secure the health and wellbeing of the polity. Secondly, it is through civic service that oenders 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-oender (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 oenders 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 oenders; 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) deviants 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

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of contemporary probation has visibly shifted to reect 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 oenders
in which the probation ocer is not a social worker but someone who manages
oenders (P Whitehead, 2007: 8687). Under the current model of probation he
observes that:
the contemporary probation ocer has been provided with an extended linguistic
repertoire and additional scope to characterise, label, and x the essence of an
oender. 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 identied 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 conation of consensual BDSM with non-consensual sex oending 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 ocer (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 applicants BDSM sexuality becomes a
highly resistant and challenging act, one which actively resignies 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
eectively serves to mask not only the institutionalisation of the conditions of
non-consensual domination and control in the probation service but the wider

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751

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 laws 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 conned 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 dierence 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)

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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-denitional 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 specically 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 uid as Hubbard (2001: 67) has
indicated: publicity and privacy co-join dierently in dierent 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
ocer, but by denition this cannot be one who is self-identied with consensual
BDSM; or a private individual so identied who by virtue of this very self-denition 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 eects 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 signicance and inuence 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 reective 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 Womens 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 (20002008). See
also backlash-uk.org.uk (2012).

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Bela Bonita Chatterjee is a lecturer in Law at Lancaster University Law School.


She has particular research interests in interdisciplinary legal studies and cyberculture/cyberstudies, in particular issues relating to sexual expression and
identity.

Chatterjee

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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