A Modest Proposal.
Precisely because it is my conviction, following Kant, that individuals have no moral right to free love, and still less any moral right to consensual sadomasochism, it is my contention that, in an ideal world autonomous of contemporary political realities, consent ought not to be a defense for sexualized violence and, accordingly, sadomasochism ought to remain criminalized in toto. Yet inasmuch as the law in a liberal-democratic order stands especially condemned to make concessions to the spirit and mores of the time, I suggest that, at minimum, consent should be allowed as a defense only within the context of state-regulated “encounter” sadomasochism. Sexualized violence is too dangerous to allow total amateurs to practice the art and to hold themselves out to the subculture as “masters” or “mistresses.” That this is in fact the practice of the above-ground “bondage” community only serves to belie the point.(39)
Constitutionally, our high court has never recognized a constitutional right either to sexual intercourse or to sexual conduct.(40) Loving v. Virginia, overturning a recognized a constitutional right to choose marriage partners, did not establish a right to have sex irrespective of a State’s marriage licensing regime.(41) The holdings of the line of cases legalizing contraception and abortion—Griswold, Eisenstadt, Roe, and beyond—were framed in terms of procreative and not recreative autonomy.(42)
Within the federal system of the United States, I suggest that sadomasochism is best regulated by the States directly. States ought to be free to force their citizens to limit sexual activity to the state-supervised institution of marriage if their legislatures so wish. Conversely, States ought to be free to elect to prohibit (and criminalize) incest, polygamy, homosexuality, and prostitution, at the discretion of their legislatures. Within this framework, sadomasochism becomes another elective—next to same-sex civil unions and prostitution—on the smorgasbord of our culturally and geographically diverse federal republic. Prostitution may afford the best analogy. Like sadomasochism, prostitution implicates serious public health and safety concerns. States may choose, according to the judgment of their legislatures, to permit or prohibit prostitution. Those States which allow or have allowed prostitution have typically done so in a highly regulated context, replete with inspection and certification. Significantly, the practices of the above-ground “bondage” community anticipate such regulation through training, public demonstration, referral networks, and community censure. Here, at least, they provide a ready model showing how, if we are unable to extricate sex from violence, we might at least be able to prevent their complete confusion.
(1) See, e.g., Aristotle, Nicomachean Ethics 1133a18 (Bekker ed.).
(2) See Cheryl Hanna, Sex is Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L. Rev. 239 (2001); see also Monia Pa, Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex, 11 Tex. J. Women & L. 51 (2001).
(3) William Shakespeare, Antony and Cleopatra, V.2.
(4) See generally Marianne Apostolides, The Pleasure of Pain: Why Some People Need S&M, Psychol. Today, Sept. 1, 1999, at 60.
(5) Aristotle, Poetics, 1449b27 (Bekker ed.).
(6) But see, generally, Rousas J. Rushdoony, Politics of Guilt and Pity 1-10 (1970).
(7) Planned Parenthood v. Casey, 505 U.S. 833, 850 (1992).
(8) This concern animates, for instance, William N. Eskridge, Jr.’s treatment of sadomasochism in Gaylaw: Challenging the Apartheid of the Closet 243-263 (Harvard 1999).
(9) Other potential offenses implicated include the several forms of kidnapping (Model Penal Code § 212) and the various sex offenses (§ 213).
(10) For the historical background of the consent defense in the assault context, see Keith M. Harrison, Law, Order, and the Consent Defense, 12 St. Louis U. Pub. L. Rev., 477, 478-480 (1993). Note that the Model Penal Code equates attempts and completed offenses and so merges the traditional categories of assault and battery into a single offense, assault. Model Penal Code § 211.1.
(11) “The common law recognizes as not necessarily unlawful certain manly sports calculated to give bodily strength, skill and activity, and to fit people for defense, public as well as personal, in time of need. Playing at cudgels or foils, or wrestling by consent, there being no motive to do bodily harm on either side, are said to be exercises of this description. . . . But prize-fighting, boxing matches, and encounters of that kind, serve no useful purpose, tend to breaches of the peace, and are unlawful even when entered into by agreement and without anger or mutual ill will.” Commonwealth v. Collberg, 119 Mass. 350, 353 (1876).
(12) See 250 Cal. App. 2d 501, 513 (1967).
(13) See 380 Mass. 296, 310-311 (1980)
(14) Id., 380 Mass. at 309.
(15) 1 A.C. 212 (Eng. H.L. 1993). This decision was subsequently appealed to the European Court of Human Rights in Laskey v. United Kingdom, 24 Eur. Ct. H.R. 39 (1997), at http://www.spannertrust.org/documents/eurofinal.asp.
(16) “The acts consisted in the main of maltreatment of the genitalia (with, for example, hot wax, sandpaper, fish hooks and needles) and ritualistic beatings either with the assailant's bare hands or a variety of implements, including stinging nettles, spiked belts and a cat-o'-nine tails. There were instances of branding and infliction of injuries which resulted in the flow of blood and which left scarring.” Laskey , 4 Eur. Ct. H.R. 39, at ¶8.
(17) Brown, 1 A.C. at 236-37 (opinion of Lord Templeton). Cited in Laskey , 4 Eur. Ct. H.R. 39, at ¶20.
(18) Article 8 guarantees a right to respect of private life, “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Cited in Laskey , 4 Eur. Ct. H.R. 39, at ¶35.
(19) See id,, at ¶37-51.
(20) See 700 N.Y.S.2d 156, 160-163 (N.Y.App. Div. 1999)(Jovanovic I).
(21) See id., at 172; People v. Jovanovic, 95 N.Y.2d 846 (N.Y. 2000)(Jovanovic II).
(22) In a key footnote, the Appellate Division cautioned that it did not mean to imply that consent was a defense for sadomasochistic assault. “There is no available defense of consent on a charge of assault under Penal Law § 120.00 (1) and § 120.05 (2). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder, as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act [citing Samuels, Appleby]. And, although it may be possible to engage in criminal assaultive behavior that does not result in physical injury, we need not address here whether consent to such conduct may constitute a defense, since the jury clearly found here that the complainant was physically injured. Defendant's claim that there is a constitutional right to engage in consensual sadomasochistic activity is, at the very least, too broad, since if such conduct were to result in serious injury, the consensual nature of the activity would not justify the result.” Jovanic I, 700 N.Y.S.2d at 169, n5 (internal citations omitted).
(23) See, e.g., Joshua Dressler, Understanding Criminal Law 13-14 (3d ed. 2001).
(24) Jeremy Bentham, The Principles of Morals and Legislation 2 (Prometheus Books ed. 1988).
(25) Immanuel Kant, The Metaphysics of Morals 17 (trans. Mary Gregor, Cambridge ed. 1996).
(26) Bentham, Principles 3.
(27) Id., at 2.
(28) Id., at 9.
(29) Id., at 13.
(30) Id., at 3.
(31) See Harrison, n10, supra.
(32) Kant, Morals 105.
(34) Id., 191.
(35) One need only think of the plea for spiritual eros rather than crass physical exploitation in Plato, Phaedrus §255 (Stephanus ed.).
(36) Kant, Morals, 62.
(38) On the historical construction of secularism in early modern Europe, see Stephen L. Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago 1991).
(39) My own interviews confirm that this true of local groups in Columbus, OH.
(40) See Bowers v. Hardwick, 478 U.S. 186, 192-194 (1986). I am aware than this decision may be overruled this summer, but until then, Hardwick stands as good law.
(41) See Loving v. Virginia, 388 U.S. 1 (1967).
(42) “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Planned Parenthood v. Casey, 505 U.S. at 850 (internal cites omitted); accord Eisenstadt v. Baird, 405 U.S. 438 (1972); accord Roe v. Wade, 410 U.S. 113, 169-170 (1973).