Academic journal article Albany Law Review

Morality-Based Legislation Is Alive and Well: Why the Law Permits Consent to Body Modification but Not Sadomasochistic Sex

Academic journal article Albany Law Review

Morality-Based Legislation Is Alive and Well: Why the Law Permits Consent to Body Modification but Not Sadomasochistic Sex

Article excerpt

I. INTRODUCTION

In 1993 the U.K. House of Lords held that consent of the participants was no defense to charges of assault arising from consensual sadomasochistic (SM) sex, even though the participants sustained no serious, permanent injuries and testified that the activities had been consensual. (1) This case fueled the debate about whether a defense of consent should be available to defendants when charges of assault arise out of consensual SM activity. The Supreme Court's recent holding in Lawrence v. Texas, that morality alone is not a sufficient justification to infringe on an individual's right to privacy, (2) adds a new wrinkle to the analysis. While commentators and statutes are split on the issue, no comparable American case has yet risen to the appellate level.

This Comment will explore the reasoning behind prohibiting a consent defense in SM, while making exceptions for other "assaultative" activities such as body modifications. (3) This Comment will argue that for reasons of personal autonomy and privacy, a consent defense should be permitted in cases of consensual SM sex, as long as serious bodily injury is not sustained. Parts If, III, and IV will provide background information about the nature of SM sex and the concepts of legal consent. Part V will review existing cases that discuss consent to SM sex. The rationale for permitting consent to body modifications will be compared to the rationale for forbidding consent to sadomasochistic sex in Part VI. The Comment will close with a proposed framework for permitting legal consent to SM sex while maintaining practical limits on this consent.

II. DYNAMICS OF SM SEX

A. What Is SM Sex?

It is not always clear exactly what constitutes SM sex. The line between SM and "normal" sex is fuzzy, and many people who would not identify themselves as sadomasochists enjoy sexual acts that involve some level of pain. (4) "'[T]here's an element of domination or submission or pain involved in almost any sexual interaction. What sadomasochism does is take these elements of eroticism further toward their extreme.'" (5) There are many definitions of SM, none completely comprehensive. One SM practitioner has defined SM as "the knowing use of psychological dominance and submission, and/or physical bondage, and/or pain, and/or related practices in a safe, legal, consensual manner in order for the participants to experience erotic arousal and/or personal growth." (6) Another definition emphasizes that the ultimate goal of SM is not the infliction of pain, but control:

   [S]adomasochism involves a highly unbalanced power relationship
   established through role-playing, bondage, and/or the infliction of
   pain. The essential component is not the pain or bondage itself,
   but rather the knowledge that one person has complete control over
   the other, deciding what that person will hear, do, taste, touch,
   smell, and feel. (7)

While there is no "typical" SM interaction, frequently one participant will take on the role of the sadist or dominant (hereinafter "dominant"), who inflicts pain and/or exerts control, and another participant will act as the masochist or submissive (hereinafter "submissive"), who receives pain and/or is controlled. Some individuals will "switch" roles, while others identify themselves solely as dominant or submissive,s An SM encounter may involve a wide range of activities, including bondage, domination, flogging/whipping, humiliation, clamping, piercing, cutting, and "breath control play." (9) The majority of SM participants also engage in non-SM sex. (10)

B. SM and Consent

Consent is a cornerstone of SM; "Safe, Sane, and Consensual" is a popular phrase in the SM community. (11) Participants usually negotiate ahead of time what activities will be permitted, what activities are off limits, who will fill what role, and how long the scene will last. (12) Frequently a "silent alarm" or "safeword" is used. …

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