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Consensual sadomasochism is private sex — not violence

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Law students marvel at R v Brown, but has the law got it right?

The criminal law faces a precarious task of finding a suitable balance between allowing dangerous consensual activity and restricting individual autonomy.

Judges have wide discretion to determine morality in the context of sadomasochism, and characterising it either as sex or violence is subjective. The European Convention on Human Rights (ECHR) has now played a role, deciding cases relating to the right to make choices concerning one’s body which are likely to have a great impact on the law of consensual and privately-arranged sadomasochism.

In the law student favourite case of R v Brown, the court emphasised that sadomasochistic behaviour was not in the public interest. Yet, the court here missed an opportunity to clarify the meaning of ‘public interest’, leading to inconsistent approaches and incoherence in the subsequent case law.

The court said that the sadomasochism in Brown “glorifies the cult of violence” and that pleasure derived from the infliction of pain is an evil thing (whereas a husband scarring his wife in the R v Wilson case can be regarded as coming within the tattooing exception). This was so, even though the man branding his initials on his wife’s buttocks (Wilson) caused a more serious injury than that in Brown.

In exercising this flexibility, the court seems to be influenced by concepts of morality. The judiciary has wide discretion in determining which conduct is ‘in the public interest’ and what amounts to criminal behaviour.

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The outcome of each case is uncertain simply because the public policy reasoning is often no more than an exercise of judges imposing their own personal and moral values. It seems that the court in Wilson was reluctant to regulate the private conduct of married adults, but not that of unmarried or homosexual couples. That said, in R v Emmett it was decided the dangerous sexual activities of a heterosexual engaged couple did lead to a charge under s47 of the Offences Against the Person Act. The court emphasised that sadomasochistic activities in heterosexual and homosexual encounters had no distinction. It also mentioned that the rationale behind Emmett was that the injuries sustained “crossed the line of consent” drawn in Brown.

Again, it seems judges missed an opportunity here to make clear why legal intervention was in the public interest in this case but not in Wilson. Certain guidance should be provided on how the public interest factor operates because it now causes confusion.

The inconsistency of the decisions raises questions under Article 14 of the ECHR, which prohibits discrimination on the grounds of sexuality (among other things). This may have an impact on judges whose discretion is potentially affected by hetero-normative bias and make the development of this area of law more consistent — but so far, it is still unpredictable.

This is also because of the inextricable link between sex and violence in sadomasochism, which is ripe for confusion. This is borne out in the judiciary’s reluctance to tackle the issue, various judges in the R v Brown decision pointing to parliament as the appropriate forum for the matter.

The balance between public health and individuals’ rights to privacy should be clarified in court to make the current law on non-fatal offences against the person more predictable and consistent than is the case currently. Better still would be if parliament would legislate to formally clarify the legal status of consensual sadomasochism.

Gina Heung Lai Yin is a law student at the University of Sussex.

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35 Comments

Scep Tick

I think were it to come before the SC today they would take a very different view. Not least because society’s tolerance of unorthodox private lives has expanded. In 1993 there was still a large number of people claiming AIDS was God’s revenge. Now we have homosexual marriage. Many people now would say about a supposed cult of violence “so what? Whatever floats your boat.”

Anonymous

Nope.

Whippy pervy spanky types need to be protected from themselves and so too the youngsters they might prey on.

Try ABDL instead- it’s kinda the opposite…

Curious George

Who is Abdul and why is he the opposite of BDSM?

Anonymous

Google it.

Trumpenkrieg

It is the current year.

Now we have homosexual marriage.

We therefore must allow hoary old gay men to groom young men barely out of childhood into having nails driven through their genitals.

If you question the desirability of this you are a bigot.

Corbyn. Sympathiser

What you do in your own time is your issue, wank stain.

Corbyn. Symphathiser

I’d like to take a brief break from dunking on you repeatedly to ask you something.

Are you alright?

People don’t get this broken without something having gone seriously wrong for them. I don’t know who or what hurt you, but I really think you should get help.

You’re on a legal gossip blog posting bizarre fantasies about men mutilating one another’s bits. And you think this is a convincing argument.

Please seek professional assistance.

Trumpenkrieg

When I wake up some days all I can think of is my childhood best friend, standing over me, his manhood swollen and ready. How we enjoyed the times we spent frolicking in the bushes, until his parents found out and he moved away. There is a hole in my heart where most people have love now.

Anonymous

And presumably a hole in your arse.

Anonymous

I’m pretty sure we all have those, though.

Anonymous

I suppose the chap’s point is, not everyone speaks out of theirs.

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

To be fair, the sadomasochistic behaviour in R v Brown does not compare to the routine behaviour trainees are subject to throughout their 2 years at firms such as K & E. They’re just well compensated for being the whipping boys 24/7

Jones Day Equity Partner

I prefer to whip trainees off the clock 😉

Anonymous

I have a consensual sadomasochistic relationship with Legal Cheek.

Anonymous

This is fantastic news.

Trumpenkrieg

Yawn! These socially liberal critiques of R v Brown could be generated by a computer programme they are so predictable.

Surprising they never seem to make much of the “experienced homosexual sadomasochists grooming inexperienced (and barely legal) young men” angle.

Corbyn. Symphathiser

Sorry to hear you’re no longer on speaking terms with Milo.

Anonymous

Barely legal is still legal.

Then when they turn 18 you can film it. Happy days.

Anonymous

They WILL be generated by a computer programme in a few years…

Anonymous

I have no problem whatsoever with consensual BDSM, and have even engaged in it myself, but I think that making this an issue of consent would make things way harder.

– If I consent to my beau chopping my arms off, should he really be free from prosecution?
– If a couple has been living in a “master-slave” relationship for a decade, is a “slave” necessarily giving his or her free consent to violence, or has an imbalance in the relationship become entrenched?
– If there is a genuinely abusive individual, do we really want to give him the defence of consent, when a victim might easily be convinced or coerced into agreeing that she did consent when in fact she did not?

The courts are dreadful on the issue of consent. Why introduce unnecessarily into another area? If there was a spate of inappropriate prosecutions of BDSM practitioners I might agree that change was needed, but as things stand the prosecuting authorities appear to be acting with appropriate discretion.

Alex Aldridge’s vicar

I too have engaged in consensual BDSM

TGF

Nobody is interested in the fact that you:

(a) ” have no problem with consensual bdsm”

Or

(b) have engaged in it yourself (ooooh you daring adventurous libertine you. My my arent you naughty??)

What a f#cking creep. No wonder u posted as anon. Do you w@nk over your work colleagues too by any chance???

Anonymous

The implication in the article above is that judges are making decisions based on their own prejudices, so yes it’s relevant to say that I’m not prejudiced.

TGF

(Will the real TGF please stand up ?)

I’m afraid the above is not me. It is Oppidan/Trumpenkrieg/whateverthefuckthebulbiscallinghimselftoday trying to ape me by painting me as some sort of uberprude..

I am a bit prudish but on this subject, I don’t really care what people get up to behind their closed door. I’m sure Oppidan/Trump/etc got up to plenty himself in his all boys school involving clices, ceremonial maces, cats-o-nine-tails, whatever. Not for me to speculate, not for me to judge.

I’m sure it goes a long way to explaining his prejudices and pecadilloes plus the paradox between them though. I ain’t a psychiatrist though – so not going there.. Good luck to the brave man/womain that does..

TGF

I think the fact that he couldn’t quite manage to post in reply directly to the Anonymous above but the post above it and the fact he failed to notice the word beau indicating that they are most likely female.

Not the sharpest see – in spite of his endless proclamations on the vast superiority of fee-paid education. 🙂

Corbyn. Symphathiser

It’s quite funny having cosplayers, isn’t it?

TGF

And by the way anon. If you want to practice bdsm with me I’m up for it LOL😀

TFG

Yep this ^^^

Not me again. My attempts at humour may often verge on the pathetic but I don’t think ever quite that bad…

Anonymous

“Offences Against the Personal Act” ???

Lois Griffin

I’m a naughty girl…

I need a spankin’!

Anonymous

Any discussion of this area of the law now really must cite R v BM [2018] EWCA Crim 560 – the CA discussing body modification and deciding that it isn’t lawful.

I recommend the Jonathan Herring chapter on Brown in Landmark Cases in Criminal Law. Lots of interesting detail. There’s also a good point there that while fully consensual BDSM might be OK, the problem is (predictably) ascertaining consent. There is a risk of practices identified as BDSM or even tattooing (Wilson) potentially being used to cover for an abusive relationship, especially as in that context the possible victim might not be willing to give evidence (the wife in Wilson didn’t).

RD

I was going to cite the same case. It’s a bit pointless debating what might or might not be acceptable post-Brown when the Court of Appeal game a pretty good steer so recently.

Ciaran Goggins

Indeed, as Max Mosley said (redacted)

Marc-Anthony

I am a first-year law student and I think I know soooo much about the law – Every year there is a stupid student who takes on R v Brown on this site!

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