Sado-Masochism and the Law

Matthew Weait, Keele University

S/M and Privacy Rights ³⁰

For those who practise S/M sex, one of the most intuitively appealing claims is that it is an aspect of their private lives, and so beyond the legitimate reach of the state. Just as other dimensions and expressions of sexuality (such as homosexuality) should be free from interference, because they are intrinsic to a person’s identity, so – it is often claimed – should the expression of a sexuality of which S/M forms a part (to whatever extent, of whatever kind, and to whatever degree). There are, however, two significant problems with claims grounded in privacy. First, despite immediate appearances to the contrary, privacy is a complex and fiercely contested and problematic concept – politically, legally and philosophically. This means that arguments for freedom to practise S/M grounded in privacy should, if they are to be persuasive, be coherent, well-argued and take into account competing rights claims, and also acknowledge the non-radical, conservative and (potentially) oppressive dimensions of such arguments. Second (and more practically) there exists, at least within English and European Human Rights law, no right to privacy as such. At the very most, there exist a number of limited and context specific circumstances in English law in which a person’s privacy will be protected, and – so far as European human rights jurisprudence is concerned – the “right” is a qualified one, subject to numerous and important exceptions, to respect for private life, not to private life or privacy as such.

Let us take each of these two aspects of privacy in turn, dealing first with the problematic meaning of privacy itself. To claim that an aspect of oneself or one’s behaviour is private, is to make two kinds of claim. The first of is that there is something about one’s identity, relationships, behaviour etc – that is so fundamental that it merits recognition and respect for its own sake. The second is that because of its importance the particular dimension of privacy in question should be protected from external interference, and that such protection is both legitimate and necessary. Privacy claims are, thus, about freedom from (a particular threat), and freedom to (engage in a particular activity or mode of being) and comprise both positive and negative liberties. Privacy may also be understood in consequentialist, or teleological, terms (as important because it promotes certain individual or social benefits), or deontological ones (because it respects core human values, such as dignity and freedom of expression). For feminists, this mode of analysis is problematic because it implies the existence of a non-public domain – comprising the personal, sexual, reproductive, domestic, relational and familial dimensions of people’s (and especially women’s) lives – which has resulted both in its exclusion from mainstream political debate and legislative reform, and also in the oppression of, and discrimination against, those who – for socio-cultural and economic reasons - have been in some sense relegated to live their lives in that domain (see, e.g., O’Donovan, 1985). In much the same way, liberal analyses and critiques of privacy that focus on the extent to which the state should have access to the private lives of people have been criticised for organising their assumptions about personhood around a presumption of autonomy, rather than one grounded in interdependency and connectedness (see, e.g., Nedelsky, 1989; 1990; 1993).

Framing the legitimacy of S/M sex within a discourse of privacy therefore, raises a number of difficult issues. First, any claim is based on the suggestion that there is something akin to an S/M identity or sexuality, of the same kind as a homosexual identity – means (if it is to mean anything at all) that the expression of that identity should be respected by law. So, in the same way that respect for homosexual identity necessitates that those who engage in consensual same-sex relations are free from legal sanctions, so respect for S/M sexuality requires the same. The difficulty, explored above, is that whereas same-sex sexual behaviour does not entail violence, or the infliction of injury (as the law conceives of these), S/M sex may do so; and to the extent that the freedom to express S/M sexuality in this way, to this degree, is understood as constitutive of that sexuality, this renders privacy claims difficult, if not impossible, to argue for because they entail a claim to be free to do physical harm and a freedom from punishment in the event that such harm is caused. Second, because this kind of privacy claim depends largely on the assertion of a protected domain of properly called “private” life, it risks grounding the legitimacy of S/M sex within a discourse that has – far from being liberatory – been implicated in the oppression of women, and of affirming the primacy of individual autonomy and self-determination, masculine values that can all too easily slide into a neo-liberal or libertarian politics that denies the legitimacy and importance of the relational, social and collective dimensions of morality, ethics and law. ³¹ Although its meaning is no doubt fluid over time, the symbolic and normative power of “the private” as a category that frames our perceptions of the world ensures its continued use in the distinctions drawn in law, and nowhere is this clearer, or more relevant in the present discussion than in Laskey v UK ³², the litigation before the European Court of Human Rights that followed on from, and was based on the same facts as, the decision of the House of Lords in R v Brown.

In Laskey v UK, the issue before the court was whether there had been a violation in the applicants’ right to respect for private life under Article 8 of the European Convention on Human Rights, which states:

1. Everyone has a right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This right, which is enforceable in the UK via the Human Rights Act 1998, is one that significantly increases privacy protection for individuals since there is no legally recognised right to privacy as such in English law. ³³ It is, however, a qualified right – as the exceptions and limitations in Article 8(2) make clear; and while the Court in Laskey held that the criminal proceedings against the applicants had constituted an interference by a public authority with their right to respect for private life, it also held that the interference was in accordance with law and pursued the legitimate aim of protecting health and morals within the meaning of Article 8(2). The success of the application therefore turned on whether the interference was “necessary in a democratic society”.

In addressing this question, the Court emphasised that the UK had a wide margin of appreciation when determining the scope and application of the criminal law, particularly in matters relating to personal morality and its regulation through law. Although it had been accepted that Article 8 was engaged, the Court determined that not every kind of sexual activity which took place behind closed doors was of a kind that would fall within the right to respect for private life. In its view it was at least open to question whether sexual activity which involved a group of people, the recruitment of new members, the creation of specially equipped rooms, and the shooting of videos ought properly to be treated as private within the meaning of Article 8. Similarly, the Court was unpersuaded by the applicants’ argument that their conduct was a manifestation of their sexuality, that the participation was truly consensual, that no-one other than members of the group observed their activities, that no infection had resulted or permanent injury been caused, and that no complaints to public authorities had ever been made. Nor was it persuaded by the suggestion that concerns about moral corruption were speculative, and that they were being targeted as a result of their homosexuality. Accordingly, it held that the only relevant question was whether the state was entitled to criminalise the infliction of physical injury – irrespective of context – and concluded that it was. For the Court a democratic society is one that depends on the imposition of limits to behaviour, and those limits are not ones to be decided unilaterally by individuals, or groups of individuals, even where such determination is exercised in the context of consensual activity experienced by participants as expressive of identity and sexuality and therefore of their embodied autonomy.

It remains open to question whether the decisions in R v Brown and Laskey v UK are ones that would stand, especially given the decision in R v Wilson (there is a strong argument that the inconsistency of the decisions amounts to discrimination on grounds of sexual orientation under Article 14 of the Convention ³⁴); but as the law stands, it is reasonably clear that the right to respect for private life is not one that will protect those whose private life involves the infliction of injury in the context of expressing an S/M identity. And, on the basis of the analysis and critique presented in this essay, this makes perfect sense. Because one of the functions of the criminal law is to set out generally applicable benchmark standards against which people may legitimately be judged, and because those standards incorporate, in principle, the values of the society in which they apply, it would be bizarre in the extreme if the law were to abrogate its own jurisdiction – its authority to judge – through deference to claims of privacy. To do so would, in effect, result in the affirmation, at its own expense, of true individual autonomy - of self-determination beyond the law). More significantly here, it is not merely the value that we place in our bodily integrity which the law mirrors in its refusal to allow us to consent to injury, even where that might be experienced in the context of S/M as an expression of love, care and affection (Inness, 1992). Instead, its regulation of the public / private distinction reflects its critical interest in sustaining and reinforcing the legitimacy and desirability of certain other values, conceptual categories, identities, relationships, and behaviours.

Go to Concluding Remarks and References

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