Academic journal article Texas Journal of Women, Gender, and the Law

Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex

Academic journal article Texas Journal of Women, Gender, and the Law

Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex

Article excerpt

"Bind my ankles with your white cotton rope so I cannot walk. Bind my wrists so I cannot push you away. Place me on the bed and wrap your rope tighter around my skin so it grips my flesh. Now I know that struggle is useless, that I must lie here and submit to your mouth and tongue and teeth, your hands and words and whims. I exist only as your object. Exposed."1

I. Introduction

Lord Devlin proclaimed "all sexual immorality involves the exploitation of human weakness . . . An established morality is as necessary as good government to the welfare of society."2 Laws often attempt to police sexual behaviors considered aberrant or deviant. Although much has been written about the regulation of various sexual practices, regulations of sadomasochistic ("S/M") sex have for the most part escaped legal analysis. However, S/M sex has not escaped the interest of criminal prosecutors, and SIM practitioners face threats of arrest and prosecution. Also, there have been numerous attempts to close sex clubs, and discrimination against S/M practitioners in child custody, employment and other arenas is common.3

This paper analyzes the legal treatment of S/M sex, specifically where S/M has been charged as criminal assault. My analysis is framed by the assumption that the promotion of procreative sex is no longer the predominant policy underlying sex laws following legalization of contraceptive information in Griswold v. Connecticut,4 Eisenstadt v. Baird5 and the legalization of abortion in Roe v. Wade.6 This assumption raises many questions: As sex laws currently shift toward configuring sexuality in a post-procreative sex jurisprudence, how can laws regulate the pursuit of sexual pleasure without invoking hasty moralistic gag reflex responses? If the pure pursuit of pleasure is permissible, how can principled limits be placed on pleasure seekers? How does society go about designing a laissez faire rubric that allows individuals to follow their pursuit of happiness without interference, while preventing the exploitation of human weakness?

S/M sex fails to fit neatly in such a laissez faire scheme because minor physical injuries are inflicted with the person's consent. Other potentially self-injurious behaviors include sports, cosmetic surgery, piercing and tattooing, but consent is a defense to a charge of assault for these behaviors. However, where S/M sex is charged as assault, no consent defense is available.7 Is it the sexual nature of SIM that excepts the applicability of the traditional consent defense?... the perception that the intent to injure is a primary rather than secondary purpose?.. a judicial repugnance for the activities involved and a presumed universal abhorrence?

I argue that the mere act of engaging in S/M activities should not lead to criminal prosecution absent the victim's complaint. Criminal prosecution for S/M sex should occur only where the victim claims he or she was sexually assaulted because there was no clear consent to the S/M encounter, consent was revoked, or the perpetrator exceeded the scope of consent. Criminal prosecution of S/M sex in any other circumstance is a misapplication of criminal assault law. This is because such prosecutions mistake S/ M sex as only violence. Prosecutors confuse the presence of traditional symbols of violence (whips, chains, handcuffs), utilized in a theatrical and self-conscious simulation of power relationships, as the presence of real dominance and exploitation. I wish to dispel this confusion and advocate for a more culturally informed legal treatment of this behavior.

In Part II of this paper, I discuss how the current media proliferation of S/M symbols acknowledges the prevalence of S/M, while simultaneously demonizing the act as aberrant, violent and pathological. The media is replete with sensationalistic stories that treat sadistic sexual assaults as consensual S/M gone bad. Part III describes how these depictions of S/M have allowed for the rampant discrimination against S/M practitioners. …

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