Sado-Masochism and the Law

Matthew Weait, Keele University

Bodily Harm

On the face of it, English criminal law adopts a straightforward and relatively unproblematic approach to the classification of those interferences with other people’s bodies that justify state punishment. Starting from the very low threshold of battery (which means any unlawful touching), it graduates through the unlawful infliction of actual bodily harm (which means causing any hurt or injury that is more than merely “transient or trifling”) through to the unlawful causing of grievous (i.e. really serious ¹³ ) bodily harm. It also imposes liability on those who unlawfully wound, a term which means the breaking of both the outer and inner layer of the skin ¹⁴. These degrees and types of interference, it should be noted, only attract criminal liability if they also meet the condition of unlawfulness. This condition ensures that, for example, bodily interference that occurs in the context of self-defence, does not attract liability ¹⁵. It also means – critically – that no liability arises where the defendant is, or would be ¹⁶, allowed to raise the defence of consent and that defence is, or would be, successful. As we shall see, it is because consent (where it is available) operates in law as a way of determining whether a person has exercised an autonomous choice to be touched, injured or wounded – and so cannot be said to have been harmed in any meaningful sense – that it renders lawful what would otherwise be criminal. For now, however, it is important to think a little more critically about what is meant by bodily harm in the context of S/M, and how the courts have characterized it

The first thing to note is that the law’s approach to bodily harm is based on a relatively blunt (if superficially appealing) descriptive premise: that we exist, in our embodied selves, as intact, integrated, autonomous physiological and psychological systems. This makes it easy to conceive of bodily harm as anything that disrupts the smooth operation of those systems (a broken leg, a ruptured spleen, being infected with disease, suffering psychological illness). These observable disruptions to the functional equilibrium which bodies are treated as having may then be categorised according to the degree of adverse impact that they have on them, thereby enabling the idea of offence seriousness and the grading of punishments. This rough and ready approach to bodily harm, manifest in the Offences Against the Person Act 1861, is one that may cause no difficulty in the paradigm case of injury sustained by stabbing, shooting, punching and kicking during aggressive and unwanted confrontation; but by focusing on the disruptive consequences and effects of one person’s actions on the body of another it fails, necessarily, to reflect the parties’ inter-subjective understanding of what those consequences and effects may mean for them. This, of course, is unsurprising given – as I have explained above – that the function of law in a community is to articulate and maintain norms of behaviour of general application. This means that objective standards are inevitable. But where, as in S/M, it is precisely the inter-subjective meaning of acts and effects that matter to the participants, the necessity of objectivity and the absence of any sensitivity to context or meaning creates substantial difficulties.

Those difficulties stem, in part, from the complex relationship found in the law between the concepts of harm, injury and violence. Because the paradigm case that the law confronts is unwanted physical interference, and because one of the functions of law is to protect – for paternalistic reasons – the interests of those subject to such interference, it is all too easy for the courts both to frame any conduct that causes adverse physical or psychological consequences as violence, and the consequences themselves on the “victim” as harm – a term that is not simply descriptive but carries with it a strong sense of moral wrong. This construction of harm is readily apparent in, for example, the language of the Court of Appeal and the House of Lords in the judgments in R v Brown ¹⁷. This, it will be recalled, was the case that arose out of Operation Spanner – where a number of men who had met for a number of years to engage in consensual S/M were arrested and charged with a range of offences, primarily under the Offences Against the Person Act 1861, after the police seized videos depicting their activities. In the words of the Lord Chief Justice:

The appellants belonged to a group of sadomasochistic homosexuals who willingly and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure which it engendered in the giving and receiving of pain.

That “violence” comprised what might reasonably be termed some fairly hardcore activities and it is important, if we are to be clear about the context in which arguments the legal response to S/M has been framed, to be clear they involved. For example:

Count 5: … [the appellants] branded a man “A” with Laskey’s initials using a wire heated by a blow lamp. Scarring from those injuries remains. Matches were taped to the vicitim’s nipples and the navel and having been set alight were then doused

Count 6: … This involved [the appellants] in what can best be described as genital torture, including hitting the victim’s penis with a ruler and holding his testicles with a spiked glove. Map pins were inserted into the buttocks of one of the victims …

Count 12: … The victim had his body hair shaved. He was hit with stinging nettles. He had 36 cuts to his back and buttocks causing blood to flow …

Count 14: … The victim had hot wax dripped into the urethra of his penis. The penis was burned with a candle flame and then a syringe needle was inserted …

Count 17: … [a co-defendant] had his penis nailed to a bench. He was caned, hit and rubbed with a spiked strap, then cut with a scalpel by [one of the appellants]. There were five lateral cuts together with further cuts to [one of the co-defendant’s] scrotum. There was a free flow of blood …

Count 28: The victim … had his penis hit and rubbed with sandpaper, then his scrotum was clamped and pinned to a board with three pins. His foreskin was nailed to a board. ¹⁸

Reading these counts, as text and at a critical distance, it is not difficult to see how those for whom S/M is not central to sexual identity or practice would interpret the conduct of the appellants as violent, or the effects of their actions as harms; nor, by extension, how the judiciary – notwithstanding its recognition that these activities were engaged in willingly and enthusiastically – would characterize them as involving “torture”. It is worth quoting at length from the leading judgment in the House of Lords of Lord Templeman:

The assertion was made on behalf of the appellants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado-masochism were only concerned with sex, as the appellants contend. In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless. ¹⁹

He continues:

In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty … ²⁰

And he concludes:

Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized … ²¹

Violence, degradation, barbarity, cruelty, cult, evil – it is clear that for Lord Templeman at least (and those other judges in the majority in R v Brown, though in not quite such ascerbic terms) the bodily harm inflicted in the context of S/M is not something that is, or should be, understood as the participants themselves might understand it, or wish it to be understood. It is certainly not primarily “sexual” (an important point, since were the conduct to be treated as such, denying the defence of consent as a matter of principle would be far more problematic ²²). To the extent that the English legal position of characterizing S/M as violence (one that is shared in other common law jurisdictions ²³) is one that serves to protect masochists or “bottoms” whose limits are not respected, or who would otherwise find it difficult to bring charges in cases of non-consensual violent sex which the “top” argues was consensual, it is one that even those uneasy about the potentially oppressive consequences on sadistic “tops” ²⁴ may acknowledge to be one that reflects a defensible position. ²⁵ And it is also the case, given the fundamental difficulty a liberal legal system has in both seeking to preserve individual freedoms and protecting its subjects from harm – a difficulty that generates the most profound paradox in the context of S/M – that the pragmatic precautionary position which the courts have adopted is the least worst option. This, however, does not provide a satisfactory answer to the deeper factors informing the law’s response, ones that go to the heart of why it is that it should adopt such a forceful, uncompromising and moralising approach when there exist so many other contexts in which the deliberate or incidental infliction of injury is sanctioned. It is to those reasons that we now turn.

Go to Autonomy and Consent

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