Sado-Masochism and the Law

Matthew Weait, Keele University

Autonomy and Consent

Autonomy is foundational to societies in which the principles of governance and adjudication are informed by the tenets of liberalism and the rule of law. At its moral-philosophical heart lies the notion that to flourish and realize his full potential every person is to be conceived of as an individual, as an end in himself rather than as means to the ends of others, whether those others be individuals or the state. Conceived of as a cognitively aware, rational agent, the autonomous person is free to make choices, whether those choices be intimate or economic, private or public. Where those choices produce benefits the autonomous person may legitimately treat these as his to enjoy; where they result in disbenefits (e.g. punishment for those who choose to offend), he must bear responsibility for them. Literally understood, autonomy means self-government. In the context of offences against the person, it carries with it the idea that every person is entitled to be free from undesired and unjustified physical interference. However, where a person consents to what would otherwise be an assault, there is – on one reading – no harm caused because he is exercising his autonomy; and where law recognises the defence of consent, it does so because it acknowledges that there exists a domain in which people should be allowed to act free from the threat of criminal liability, because to conclude otherwise would result in a significant diminution of fundamental human freedoms (in this context, the “right” of a “top” in an S/M relationship or encounter to rely on the consent of a “bottom” partner, and the “right” of that partner to give that consent).

In many contexts the law does recognise that the fact of consent to injury, or to the risk of injury, should operate as a bar to criminal charges, even where the injury sustained is – or could be – substantial. The most commonly cited example is that of contact sports. In contact sports the causing of physical injury may either be intentional (as in boxing) or incidental (as in rugby). The traditional, judicial, reason for this is that such sport is part of our shared “culture” and that injuries sustained within its confines (i.e. within the rules of the sport in question) are not something with which the courts should be concerned, or should interfere with. Physical engagement of this kind, whatever its consequences, is valued by many – and by respecting the right of people to participate the courts are merely reflecting the “zeitgeist”. It is a position that has a long pedigree, as can be seen from this extract from an early nineteenth century text on the criminal law

... If death ensue from such [sports] as are innocent and allowable, the case will fall within the rule of excusable homicide; but if the sport be unlawful in itself or productive of danger, riot, or disorder, from the occasion, so as to endanger the peace, and death ensue; the party killing is guilty of manslaughter.... Manly sports and exercises which tend to give strength, activity and skill in the use of arms, and are entered into merely as private recreations among friends, are not unlawful; and therefore persons playing by consent at cudgels, or foils, or wrestling are excusable if death ensue. For though doubtless it cannot be said that such exercises are altogether free from danger; yet they are very rarely attended with fatal consequences; and each party has friendly warning to be on his guard. And if the possibility of danger were the criterion by which the lawfulness of sports and recreations was to be decided, many exercises must be proscribed which are in common use, and were never heretofore deemed unlawful ... But the latitude given to manly exercises of the nature above described, when conducted merely as diversions among friends, must not be extended to legalise prize-fighting, public boxing matches and the like, which are exhibited for the sake of lucre, and are calculated to draw together a number of idle disorderly people ... And again, such meetings have a strong tendency in their nature to a breach of the peace ... ²⁶

It is clear from this that a sharp distinction is to be made between those activities which exhibit athleticism for its own sake, and those that have baser motives. More importantly for present purposes is the fact that such sport affirms the values associated with masculinity itself. The existence, in competitive sport – its essence, perhaps – of a victor and vanquished, is something that mirrors broader, conservative, notions of what being masculine is and should be. To be injured fighting and to lose, when one’s goal is the same as one’s opposition, is not shameful or barbaric – it is to be applauded. How much more of a threat, then, to the common law and the traditions it seeks to uphold is S/M – where the objective of one partner (at least as this is understood in the judicial mind) – is to experience the erotic potential of pain and injury: consciously to seek submission, and to “lose”? The same point may be made in relation to non-essential cosmetic surgery. Although it is uncontentious that people should be entitled to consent to wounding (for that is what the surgeon’s scalpel inflicts) where this is necessary for our health, it is less evident that surgery purely for the purpose of vanity should be sanctioned: less evident, that is, unless we recognise that most, if not all, cosmetic procedures are ones undertaken in search of a notion of feminine or masculine “perfection” (perter, larger, breasts; slim hips; longer penises; more defined chests). For those who seek to modify themselves in accordance with prevailing notions of feminine and masculine archetypes, the law has nothing to say. In contrast, injury to the genitals or breasts, scarring, branding – damage, no less – produce none of the socially or culturally approved outcomes that those procedures enable. Nor, and this is perhaps even more illuminating, does the law have anything to say where injuries are sustained outside these established contexts, but where they nevertheless affirm established gender roles. In R v Wilson a man was convicted under section 47 of the Offences Against the Person Act 1861 as a result of branding his wife’s buttocks with his initials. Having been heard after R v Brown (in which branding had also been the basis of some of the charges) it might reasonably be thought that wife’s consent would not provide him with a defence – and this is what the trial judge concluded. The Court of Appeal, however, quashed the conviction. Russell LJ was trenchant in his criticism of the prosecution and of the wider implications of criminalising such behaviour. In his view, the facts before him were entirely different from Brown. The wife had not merely consented to the injury, she had instigated it (as if this was not the case in S/M sex). He quoted approvingly the husband’s statement in police interview, that his wife had said she wasn’t “scared of anybody knowing that I love you enough to have your name on my body”. The branding was, the judge thought, no different from tattooing – which had been the husband’s original intention. This would have been lawful, and so, therefore, should this be. Russell LJ concluded:

Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone prosecution.

The distinction drawn by the judge with R v Brown rests explicitly on the cultural dimensions of the case. The branding took place within a marriage. The injury was a symbolic one that represented the traditional subordination of wife to husband. It marked his ownership of her. It represented the positive value of fidelity. It took place in their matrimonial home. The fact that the injury itself was physically no different in fact from that which was inflicted on some of the men in Brown is not the relevant consideration. It was not the product of aggression, nor done for sensual gratification, nor witnessed by others (other than the doctor who reported the injury to the police), nor was it inflicted in a specially constructed dungeon. In short, the injury affirmed, rather than challenged, heteronormative sexuality. ²⁷

These cases demonstrate, I believe, that the criminal law conceives of autonomy not as a value that it should strive to protect at all costs, but rather as one which it can and should protect if and only if it is expressed in a particular way, for particular reasons, and that those reasons are consonant with the broader cultural values which law seeks to protect and affirm. More critically perhaps – and this requires a closer and more creative reading of the courts’ approach – the law will acknowledge the validity of consent to injury, and so permit the defence of consent, where that injury is not one in which pleasure is taken. For what distinguishes the courts’ response to injury in sport or surgery as compared with S/M, or the branding in R v Brown with that in R v Wilson, is not simply their relative value or context but the presence or absence of sensual gratification. Those who seek to knock each other out in the boxing ring try to avoid pain; those who seek cosmetic modification do so under anaesthetic; for Mrs Wilson, the branding was something to be endured. But in R v Brown, the injury was of the essence – it was an aesthetic, sensuous, desired experience for the men who consented to the injury. And why should this make a difference? Because law – in the last analysis – depends for its authority on the assumption that human beings will seek to minimise the risk of being hurt, deprived of liberty, subjected to the degradation of captivity. Those who participate willingly in S/M are thus, at least at a symbolic level, law’s gravest threat. Not only do tops place themselves in the position of the law (by inflicting the pain and / or injury that will satisfy their desire) but bottoms ridicule the power of law by actively enjoining the top to engage in the discipline and ritual humiliation upon which the law depends for its authority. ²⁸ Put in the strongest of terms, it is possible to argue, as Bataille (1962) has done, that the erotic – in which the body is, literally, wasted – is a threat to law, and since it is the most extravagant of erotic practices, in which blood may be lost simply for the thrill of it, S/M represents the most fundamental expression of that threat: the embodied, sensuous, articulation of autonomy at the expense of the power of law: ²⁹

… everything to do with eroticism and infamy play their part in turning the world of sensual pleasure into one of ruin and degradation. Our only real pleasure is to squander our resources to no purpose, just as if a wound were bleeding away inside us; we always want to be sure of the uselessness or the ruinousness of our extravagance. We want to feel as remote from the world where thrift is the rule as we can. That is hardly strong enough; we want a world turned upside down and inside out. The truth of eroticism is treason. (Bataille, 1962: 166-7)

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