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Sado-Masochism and the Law

Matthew Weait, Keele University

Some Context: What does the law have to say about S/M?

First things first: S/M is not a crime. It would be absurd to contend otherwise, since the only satisfactory (if irreducibly circular) definition of a crime is something that is contrary to the criminal law; and although there are dimensions, or aspects, of S/M that may provoke a criminal law response, there is no “law against” being a sadist or a masochist, or against what might be thought of as the core elements of S/M relationships (domination, submission, ritualized humiliation, the eroticization of the giving and receiving of pain). To the extent that those in S/M relationships observe the behavioural boundaries that the law places on all adult human beings of full mental capacity, there is no question but that what such people do and how they do it us up to them. But – and it is, of course, a big but – the “problem” is that an S/M identity (just as any other identity) may entail a form of expression which brings it into conflict with the norms of a society for whom that identity is exceptional – whether that exceptionality is couched in terms of psychological abnormality, sexual perversity or immorality. And since law’s concern (within states based on governance under the rule of law) is with the maintenance of general standards of conduct – with the normative project of how all of us should behave towards each other and as members of a community – those whose identity and its expression challenges those normative standards will, necessarily, find that identity and its expression regulated and limited or (in certain circumstances) repressed and subject to a coercive, punitive response.

The problem, more simply put, is that although we may conceive of ourselves – especially at the dawn of the 21st century, and in the developed world as having certain inviolable rights that the state should not be able to infringe, the reality is that those rights are to be asserted within a framework of governance at whose core are the liberal ideas of negative liberty and the harm principle: the idea that we may do anything that we are not specifically proscribed by law from doing, and that the only legitimate limit on such proscription is harm to others. The impact of the inter-relationship between rights and these principles for those committed to an S/M lifestyle, who derive pleasure from representations of S/M, or who participate in S/M sex, is complicated and various. The following are merely some of the more obvious examples. 1

First, it may be against the law to engage in S/M which takes place in a particular location over a period of time (which, given the “underground” nature of S/M, the fact that it may involve a group of participants 2, and the need for sessions to be pre-arranged or organised, is not uncommon). The common law offence of “keeping a disorderly house” 3 – which requires proof of persistent or habitual use of premises for indecent 4 acts – was used against one of the appellants, and aiding and abetting the commission of the offence against another, in the notorious and important Operation Spanner case (R v Brown).

Second, the publication 5 of obscene 6, and the communication 7 of obscene or indecent images (in still or video form) that do in fact, or appear to, represent S/M may result in the imposition of criminal liability. Although there appear not be any recently decided cases in English law that address the meaning of indecency and obscenity in the context of representations of S/M, taking photographs and video recordings of S/M have been central to a number of important criminal cases, both in the UK 8 and in the United States 9 since they have provided the evidence upon which prosecutions on charges of assault and wounding have been based. Furthermore, the UK Government recently conducted a Consultation on the Possession of Extreme Pornographic Material (Home Office, 2006) 10, which provoked widespread concern from civil liberties and sexual freedom groups, especially organizations representing the interests of those involved in S/M, because the initial proposals would have made it an offence to possess pornographic 11 material whose content depicted “serious sexual violence” and “serious violence in a sexual context”. Even though the Government, in the face of significant concern and opposition that this would effectively proscribe the possession of images 12 of consensual S/M, has decided to adopt the phrase “serious violence”, and a threshold that would be met only by images of “acts that appear to be life threatening or are likely to result in serious, disabling injury”, it is clear that the representation of S/M remains a politically contentious topic and that possession of certain extreme forms of S/M pornography will result in the criminalization of those for whom this provides a form of erotic satisfaction.

Lastly, and most critically for the purposes of this chapter, the very conduct in which people involved in S/M engage – what might be thought of as the core means of expressing an S/M identity – may result in the imposition of liability if it comprises “violence” amounting in law to actual or grievous bodily harm or wounding. In what follows I will explore in some detail the reasons the English courts have given for imposing liability, usually through the denial of the defence of consent, however genuine that consent may be.

Go to next Section - Bodily Harm

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