Sado-Masochism and the Law

Matthew Weait, Keele University

Concluding Remarks

I stated at the outset of this essay that S/M is not, as such, against the law; but in its extravagant eroticism, its manifestation of a desire that challenges the very logic upon which law depends, its parodic subversion of punishment, authority, power, domination and submission, its aesthetics, its playfulness and its disregard for the body which the courts see it as their duty to protect, it is in a very real sense against the law. It is against the law because it is an erotics of anarchy, of treason, and an inversion of all that the law stands for. To be a practitioner of S/M is to be a resistance fighter, to assume an identity and to express that identity in a way which is, literally, incomprehensible to a legal system that sees its responsibility as one of sustaining traditional heteronormative values. At the level of the individual case the question of the legality of S/M may be framed in the technical language of the defence of consent, the meaning of a disorderly house, or the scope of a Convention right; but conceived of more broadly, it is a question that goes to the heart of the function of law itself.

References

• Bamforth, N,. “Sado-Masochism and Consent”, Criminal Law Review (1994) 661.
• Bataille, G. Eroticism (London: Marion Boyars, 1962).
• Boyd, Susan B., (ed.), Challenging the Public/Private Divide: Feminism, Law, and Public Policy, (Toronto: University of Toronto Press, 1997).
• Comment, “Keeping a Disorderly House – a Common Law Offence” Criminal Law Review (1992) Jan, 49.
• Conaghan, J., “Gendered Harm and the Law of Tort”, Oxford Journal of Legal Studies 16 (1996), 407.
• Conaghan, J., “Law, Harm and Redress: A Feminist Perspective”, Legal Studies 22/3 (2002), 319.
• Cover, R.M. “Violence and the Word”, Yale Law Journal, 95 (1986), 1601
• Edwards, S., “On the Contemporary Application of the Obscene Publications Act 1959” Criminal Law Review (1998) Dec, 843.
• Graycar, R., “Review of Katherine O’Donovan, Sexual Divisions in Law”, Journal of Family Law, 26 (1987-88), 265.
• Hanna, C., “Sex is not a Sport: Consent and Violence in the Criminal Law” 42 Boston College Law Review (2001) 239.
• Harvard Law Review, “Note: Assault and Battery—Consent of Masochist to Beating by Sadist is No Defense to Prosecution for Aggravated Assault”, 81 Harv. L. Rev. (1968) 1339.
• Inness, J.C., Privacy, Intimacy and Isolation (New York: Oxford University Press, 1992).
• Lacey, N., Unspeakable Subjects (Oxford: Hart Publishing, 1998).
• Nedelsky, J., “Reconceiving Autonomy: Sources, Thoughts and Possibilities”, Yale Journal of Law and Feminism 1 (1989) 7.
• Nedelsky, J., “Law, Boundaries and the Bounded Self”, Representations 30 (1989) 162.
• Nedelsky, J., “Reconceiving Rights as Relationship”, Review of Constitutional Studies (1993) 1.
• O’Donovan, K., Sexual Divisions in Law (London: Weidenfeld and Nicolson, 1985).
• Olsen, F., “The Myth of State Intervention in the Family”, University of Michigan Law Review 18 (1985) 835.
• Parpworth, N. “Sending obscene or indecent material through the post” Justice of the Peace 170(21) (2006) 384.
• Sarat, A. “Making Peace with Violence: Robert Cover on Law and Legal Theory” in Law, Violence and the Possibility of Justice (Princeton: Princeton University Press, 2001), 49.
• Weait, M.J., “Fleshing it Out”, in Law and the Senses ed. L. Flynn and L. Bentley, (London: Pluto Press, 1996).
• Weait, M.J., “Harm, Consent and the Limits of Privacy”, Feminist Legal Studies 13(1), (2005) 97.

School of Law
Keele University
Keele
Staffordshire
ST5 5BG
E-mail: m.weait@law.keele.ac.uk

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