Academic journal article International Journal of Punishment and Sentencing

Sado-Masochism and the Rule of Law: Brown Re-Examined

Academic journal article International Journal of Punishment and Sentencing

Sado-Masochism and the Rule of Law: Brown Re-Examined

Article excerpt

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. (1)

--Jeremy Bentham


Pain and pleasure do not co-exist in the mindset of a normal (2) citizen. Thus, the infliction of pain, physical and mental, has long been used as punishment, particularly upon those who are disempowered such as children and juveniles, for acts that society deems wrong or sinful. Indeed, the ability to inflict pain upon another person is further conceived as a manifestation of rightful authority, which no right-minded person would willingly give away easily if ever at all. As Scott discerns, '[i]t would appear to be natural for every man to grasp the opportunity of exhibiting his superiority over others, and nothing provides better and more spectacular evidence of this superiority than the trampling underfoot of one's fellow men'. (3) Speaking of early-twentieth-century England where judicially imposed corporal punishment was permitted, sometimes mandated, by the law, the historian observes that '[m]any judges and magistrates ordered the "cat" and the birch whenever and wherever the law allowed them to do so, and there can be little doubt that floggings and birchings would have been much more common had the number of offences for which they could be given been increased'. (4) It is therefore not surprising that many members of society find it both puzzling and bizarre that some of their fellows would find the infliction of pain upon themselves to be a pleasurable, indeed exhilarating, experience. Like their incomprehension or miscomprehension of many of the manifestations of human sexuality, they fail or do not care to appreciate the complexity of the underlying reasons for an individual's participation in an enterprise that involves the infliction of pain upon him- or herself for the sole purpose of sexual and emotional fulfilment. Instead, they deplore such activities, and more so the underlying sexual motivation, and subscribe to the belief that those who would willingly allow their bodies to be beaten, in the process of which they would derive pleasure therefrom, must be self-indulgent and debauched. These depraved individuals, so the majority believe, are most commonly and especially found in homosexuals who are perforce willing to forfeit the joy and pleasure of heterosexual vaginal intercourse and marriage only to perform abominable sexual acts which, according to Finnis who has reignited the debate on the role of morality in the institution of law, are synonymous to 'a prostitute [pleasuring] a client to give him pleasure in return for money, or (say) a man [masturbating] to give himself pleasure and a fantasy of more human relationships after a gruelling day on the assembly line'. (5)

As society considers the infliction of pain to be exclusively for the purpose of punishment, which must be dreaded, the notion that it could also arouse pleasure, let alone sexual pleasure, is startling and thus must be disallowed. Thus, society seeks to use the law to punish those who transgress the rightful function of pain, and R. v. Brown, (6) a set of appeals to the House of Lords in 1993 concerning whether a consensual sado-masochistic act constituted assault occasioning actual bodily harm or wounding sunder the United Kingdom's Offences Against the Person Act 1861, was a splendid opportunity to indicate by way of judicial criminalisation societal disdain for the use of pain for pleasure, especially by homosexuals.

However, contrary to Lord Templeman's belief in Brown that '[i]n my opinion [consensual] 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 are developed with increasing barbarity and taught to persons whose consents were dubious or worthless', (7) participation in a consensual sado-masochistic activity may well confer upon the participants' respective lives meanings otherwise unattainable and in some cases is an expression of love indeed. …

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