The Interception of Sex by Violence:
Sadomasochism and the Criminal Law
From the inception of human society, the law has tended to proscribe violence on the part of lesser individuals and limited violence to the hands of great men, such as kings, nobles, or judges. From the early modern period onwards, the law has been thought to monopolize violence in the executive arm of the State, which censures any competing eruptions of violence in civil society, according to the provisions of the criminal law. Although traces of the older Aristotelian and Semitic sense of crimes as wrongs in personam linger on--mostly in the tort system and in the occasional incorporation of restitution in criminal sentencing--modern criminal law treats violence primarily as a crime against the res publica and against public order. To the extent to which this is realized, the criminal law is concerned primarily with distributive justice and not with retributive justice as such. (1)
Sadomasochism challenges the civil monopoly of violence in its employment of private violence for personal gratification.(2) In sadomasochistic activity, a sadistic actor inflicts violence upon a masochistic subject for mutual gratification. It is, in the Bard’s apt phrase, “The stroke of Death is as the lover’s pinch / Which hurts, and is desir’d.”(3) As I shall use the term in this paper, sadomasochism is inherently consensual inasmuch as it involves the willing participation of both sadists and masochists. I do not intend to challenge the claim of masochists that they, subjectively, believe that they need pain.(4) Where the subject is not masochistic—i.e., the subject does not enjoy and does not consent to the infliction of pain at the hands of another—the activity is merely sadistic, not sadomasochistic. As will be shown, it makes little sense, given the context of a free society, to speak of nonconsensual sadomasochism, save perhaps as a label for the aggregate of all of these activities.
Sadism, masochism, and their conjunction, sadomasochism, are essentially cathartic activities in which the sadists or masochists (or both) experience emotional climax and a sense of release. Sadomasochism, sadism, and masochism are often erogenous activities conceptualized in sexual fantasy, accompanied by sexual arousal, and culminating in sexual contact or sexual intercourse. Yet they are not necessarily erogenous. Throughout history, man has sought release through a variety of mechanisms. Greek tragedy, for instance, no less than its modern cousin, the horror film, seeks to affect its audience with pity and fear.(5) Asceticism seems to create and perfect chronic pain through deprivation or stimuli, in order to achieve a heightened spirituality. Self-flagellation exemplifies such nonsexual masochism, but really no less than the entire medieval system of penance. On the other hand, sadism, masochism, and sadomasochism are deeply rooted in the traditional experience of childrearing. In the last analysis, no evaluation of sadomasochism can hope to be complete without resolving its troubling, ambiguous relationship with the form and content of childhood discipline. But the explication of such connections must be placed outside the scope of this paper, equally as must the consideration of those theological questions of sin and death, which, I think, sadomasochism so very quickly begs.(6)
In modern society, sadomasochism is typically justified in terms of a right of personal autonomy. “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”(7) Although this right may be claimed as justification for other potentially masochistic activity such as body piercing, its primary function is to underwrite the free love of liberal democracy’s “liberated” citizen. To the extent to which sadomasochism is identified with individual sexual autonomy, it becomes a “hot,” highly visible shibboleth within a larger debate over place of human sexuality in civil society and in the criminal law. It is my contention that inasmuch as sadomasochism is identified with sexual autonomy, it has become a proxy, even a guerilla, in what is by now a long, cold kulturkampf between the “old” Right and the “new” Left.(8) As 1968’s revolutionary armada coasts into apparent stalemate with various conservative flotillas on flagship issues such as abortion, prostitution, and homosexuality, sadomasochism functions as a bit of speculum in which we may reflect on and perhaps reconsider the post-procreative jurisprudence of the late twentieth century.
Sadomasochism in the Case Law.
Although the intersection of sex with violence may give rise to a variety of criminal offenses, sadomasochism primarily implicates the criminal offense of assault, and so our review of the case law will focus on that offense.(9) Traditionally, assault with violence or force has been considered a breach of the peace for purposes of criminal law.(10) In the presence of injury, assault constitutes a breach of the peace to which the victim is merely a witness for the prosecution (and a potential tort plaintiff). In the absence of injury or where the injury or imposition is very slight, the consent of the victim might be available as a defense. Traditionally, consent is allowed as a defense in socially beneficial activities involving assault, such as contact sports.(11)
Unlike most sports, sadomasochistic activity necessarily involves the intentional infliction of pain on one of the participants. This infliction of pain need not be accompanied by serious bodily injury, and, in the vast majority of instances, is not. And yet, rather undeniably, the infliction results in minor bruising and psychological conditioning in many instances. Accordingly, American courts have consistently refused to recognize the consent of the masochistic subject as a defense to assault. In People v. Samuels, a male sadist was convicted of aggravated assault on the basis of his filming of a beating of a masochistic male subject; a California appellate court held that the consent of the victim was not a defense, inasmuch as sadomasochism was not analogous to a contact sport.(12) In Commonwealth v. Appleby, the Massachusetts Supreme Judicial Court upheld the conviction, for assault and battery with a dangerous weapon, of a male sadist who beat his live-in male lover with a ridding crop. The actual holding of the appeal was to reject the defense that, as a matter of law, the victim could have consented to the violence.(13) Evidence offered at trial indicated that the victim was essentially analogous to a battered spouse—and had actually sought sheltered in a monastery after one of the beatings.(14)
Perhaps the most famous articulation of denial that masochistic victims’ consent can be a defense to assault is found in the British “Spanner” case, Regina v. Brown.(15) This case resulted from a sustained police investigation into a private sadomasochistic club in London; the sadists were a group of older men who engaged in sadomasochistic activities with a number of younger men over the time period of a decade. The activities were consensual and sexually gratifying yet painful to the extreme and (at the risk of prejudice) positively brutal.(16) Videotapes were made and distributed. Writing for a 3-2 majority, Lord Templeton distinguished this sadomasochistic conduct from sporting activities as effecting violent injury not as a secondary incident to a social good, but as an end in itself and, thus, positively evil.
In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty . . . Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.(17)
The dissenting lords argued that the conduct should be analyzed under the law of private sexual relations, but the European Court of Human Rights unanimously upheld the decision. The court held that conviction of the sadists was not inconsistent with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.(18) Observing in dicta that the activities in question might lie outside the defendants’ private lives by virtue of the club-setting, the court declined to resolve the question of whether the State could prohibit such sadomasochism as moral evil, and found only that the State was justified in prohibiting the activity on account of its potential for harm—precisely as genital torture.(19)
The New York case of People v. Jovanovic might seem to offer support for the view that consent may be a defense for sadomasochism, but this interpretation seems dispelled by a close reading. At trial, a male sadist was convicted of assault, sexual abuse, and kidnapping for his actions in what seems to have been a sadomasochistic encounter gone away.(20) A New York Appellate Division court reversed his conviction on evidentiary grounds, finding that the exclusion of email correspondence with the victim prejudiced his ability to present his defense and to confront his accuser; this decision was upheld by the New York Court of Appeals.(21) Significantly, however, the Appellate Division rejected the defendant’s argument that consent was a defense to sadomasochistic assault or that he had a constitutional right to engage in sadomasochistic sex.(22)