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This House would decriminalise sadomasochism
This House would decriminalise sadomasochism
Sadomasochism can be defined as the consensual infliction of physical pain for the purposes of sexual gratification[i]. The practice has received sensational media coverage following the separate deaths of the rock star Michael Hutchence[ii] and Stephen Milligan, a Conservative Member of the UK Parliament[iii], whilst reportedly engaged in sadomasochistic practices. However, sadomasochism should not be regarded as the sole preserve of the disturbed and perverted. Recent commercial films such as David Cronenburg’s Crash, David Lynch’s Blue Velvet, Quills, a biopic of the Marquis De Sade, Secretary,[iv] 9 ½ weeks and the television show Buffy: The Vampire Slayer have devoted artistic attention to the practice. The popularity of fetishistic clothing amongst certain pop music performers, such as Rihanna, and nightclub clientele, indicate that sadomasochism might have mass-market credibility, if not participation[v].
This debate raises the question of whether popular toleration of a practice should make it a legal one. The legality of the practice was considered by the highest judicial authority in the United Kingdom, the Judicial Committee of the House of Lords, in the case of R v Brown[vi]. By the narrowest possible majority it was held that a participant in sadomasochism could not legally consent to the commission of any injuries. The core of this debate concerns the moral arguments for individual liberty, privacy, and social protection. In order to avoid an arid technical dispute, it is suggested that the proposition model concern the legalization of sadomasochistic acts between consenting adults which do not lead to permanent injury or disablement
[i] “Sadomasochism." Merriam-Webster. Web. http://www.merriam-webster.com/dictionary/sadomasochism.
[ii] "BBC ON THIS DAY: 1997: Michael Hutchence Found Dead in Hotel." BBC News. Web. 18 Jun 2011. http://news.bbc.co.uk/onthisday/hi/dates/stories/november/22/newsid_4006000/4006205.stm
[iv] For a developed analysis of this film see Khan, Ummni “A Woman’s Right to be Spanked: Testing the Limits of Tolerance of S/M in the Socio-Legal Imaginary”. Law and Sexuality, Volume 18, 2009, 79.
[v] Formica, Michael J. "Sadomasochism in Everyday Relationships." Psychology Today. 13 JUN 2008: n. pag. Web. 18 Jun 2011. http://www.psychologytoday.com/blog/enlightened-living/200806/sadomasochism-in-everyday-relationships
[vi] R v Brown  1 AC 212
|Points For||Points Against|
|The criminalisation of sadomasochism infringes on individual liberty||The pursuit of pain for the purpose of achieving pleasure is an immoral act|
|Decriminalisation will protect practitioners of sadomasochism||It is not possible to meaningfully consent to sadomasochistic sex|
|Sadomasochistic practices should be legal between informed, consenting adults.||The state permits individuals to risk harming themselves only where such risks can be independently scrutinised and regulated|
|Western ideals of beauty already permit individual to endure intense physical pain in order to achieve sexual gratification||The right to privacy counterbalances the state's obligation to ban sadomasochistic sex|
Remember to choose a winning argument!
The criminalisation of sadomasochism infringes on individual liberty
Control of one’s own body is the most fundamental of human rights. No government should be permitted to define how its citizens can express themselves. The distinction between the permissible and the impermissible should be drawn at the line of consent. This is not a novel distinction. Your property cannot be stolen from you if you agree to give it away. You have no legal remedy if your property is damaged by another with your consent, or if you damage it yourself. Why should there be a moral difference when this property is flesh and blood? Paternalism in this instance only protects those who do not want to be protected.
The prohibition of sadomasochism is simply inconsistent with the liberty that governments already permit their citizens to exercise to injure each other and themselves. When people are entitled to risk pain, serious injury, or even death in sporting activity, why should they not also be permitted to suffer some discomfort in consensual sexual activity? The same piercing of flesh which attracts criminal liability in a fetishistic context can be performed legally in a chemist’s shop or tattooist’s parlor. The distinction between the rugby scrum, the bungee tower and the bedroom is an arbitrary one.
Some of the pleasure that is inherent in contact sports is derived from the adrenal thrill of flirting with injury. It is widely known that a significant proportion of individuals find jeopardy and danger as enjoyable as decadence. A sport purged of all risk would be unwatched and unplayed. Comparably, a corpus of law that did not acknowledge or protect the diversity of human sexual experience would needlessly limit individual sexual freedom, and would probably be ignored.Improve this
Every government has a duty to protect the moral and physical health of all its citizens. Firstly, the defining characteristic of sadomasochism is that it does harm to others. The activity has a victim. It is not a simple question of one individual being permitted to harm himself. Secondly, the fact of the victim’s consent is immaterial. The use of seatbelts is mandatory because citizens should not be allowed to risk their bodies for such a nugatory freedom. Citizens are allowed to lose or jeopardize their material assets through foolishness, since the assets are replaceable, or at least not critical to survival. Paternalism exists to protect people from themselves.
As noted below, governments are able to exercise varying degrees of regulation over potentially harmful activities according to the contexts that they occur in. Under these circumstances, the beneficial aspects of contact sports, risky performance arts and non-essential medical procedures can be balanced against the harms they might cause. Dangerous sporting activities invariably occur in public, are supervised by coaches and referees, and are subject to rule-sets agreed on by players and overseen by professional bodies. Under such circumstances, it is possible for the state to be satisfied that risk to the individual has been minimized as far as possible, and that there can be no confusion over which risks an individual consents to.
Where altercations on the sports field result in criminal prosecutions, much discussion is focused on the risks that the victim foresaw he would be exposed to. Hockey players have previously been held to have implicitly accepted the possibility that they might be deliberately struck with a hockey stick in the course of a match[i]. A recent English case ruled that a rugby player does not impliedly consent to run the risk that another player might bite and tear at his ear during a match[ii].
Decriminalisation will protect practitioners of sadomasochism
The criminalisation of S&M removes legal protection from individuals who suffer an abuse of consent while submitting to sadistic practices. Where a dominant partner ignores safe words or pushes a session too far, the criminal status of S&M may lead to a victim being prosecuted alongside a perpetrator. Alternately, victims may be disincentivised from approaching the police altogether.
Although it is not possible to be prosecuted for being the victim of a crime, individuals who are harmed during sadomasochistic sex many not be able to engage in a rational assessment of their own criminal liability. Even though laws against sadomasochistic acts pin liability only on the sadistic partner, they also serve to criminalize the act itself. Victims of abuses of consent may therefore become wary of informing the police that they have participated in such activity, for fear that they will be publicly stigmatized or subjected to police investigation themselves.
The only time S&M can be problematic is when someone does not listen to their partner when they withdraw their consent and ask for the session to end. Individuals will not stop engaging in S&M simply because the state says so, but victims of over-aggressive partners will lose recourse or protection under the law if they try to approach the police about such an incident. Where an S&M session goes awry, victims of an abuse of consent will have to admit to engaging in a criminal act. In the same way prostitutes have no real protection from assault and rape due to the criminality of their acts, victims of assault and rape in S&M are no longer protected.
The opposition may attempt to claim that there will be a clear distinction between a sadistic “criminal” and a submissive “victim” whenever a complaint is raised. This is not true. Many sadomasochistic relationships are based around fluctuating and interchangeable roles. Both partners may engage in sadistic acts at different times.Improve this
Victims of any form of crime, regardless of their life choices, are free to come to the police for protection and will be provided with the same protections as anyone else. The fact that people who commit crimes may feel less comfortable going to the police to avoid self-incrimination is not a reason to remove those laws.Improve this
Sadomasochistic practices should be legal between informed, consenting adults.
It is sufficient for the decriminalization of sadomasochism that each participant is aware of the hazards inherent in the fetishes they will be exploring and consents to them. No law prohibits people from refusing to wear a condom during sexual intercourse, notwithstanding the peril of infection.
Furthermore, all cases where an individual withdraws their consent for the activity can be arbitrated and prosecuted like every other situation of consensual sex where an individual withdraws consent and their partner does not respect that wish. The police and courts will investigate it in the same way and will prosecute those who commit rape under the guise of S&M just as they prosecute those who commit rape under the guise of consensual intercourse.
The notion of consent cannot apply to a practice in which participants lack the ability to withdraw at any given time. Rape cases are easier to prosecute as it is clear and evident that the victim did not consent to the activity. The legalization of sadomasochism would create situations in which consent has been given beforehand but cannot be withdrawn during the activity.
There may be genuine confusion between participants in a situation where one party wishes to withdraw their consent but is unable due to the activities already underway. In that case, it would appear unreasonable to prosecute despite the victim’s anguish. To spare such horrible situations arising, the practice must remain illegal.
Finally, a number of criminal cases, including the English case of R v Dica, have held that intentionally or recklessly exposing a partner to a sexually transmitted infection by refusing to wear a condom can be a criminally action. Where an individual is aware that certain sexual interactions carry a risk of harm, and he does not obtain his partner’s full and informed acknowledgment of that risk, in English law at least, he commits a crime[i].
If a man forces sex on a woman who has rejected his advances on the basis that he will not wear a condom, a rape is committed. If a man deceives a woman into having unprotected sex by lying about his sexual health, the decision in R v Dica will hold him liable for any resulting harm.
[i] R v Dica  QB 1257
Western ideals of beauty already permit individual to endure intense physical pain in order to achieve sexual gratification
The idealization of physical beauty within American and European culture has created a demand for increasingly interventionist forms of cosmetic enhancement. Women and men are prepared to pay hundreds of thousands of pounds to have their faces, breasts and genitals maimed and modified by surgeons, to have their skin bleached or their facial muscles temporarily paralyzed by “beauticians” and to be badgered, bullied and blackmailed into complying with restrictive diets and extensive regimes of physical exertion by domineering personal trainers. Except in the most extreme and obvious cases of emotional or psychological disturbance, adults are automatically assumed to be capable of consenting to these acts.
Further, the western ideal of physical beauty is closely associated with the cultural norms that influence and control sexual attraction, compatibility and enjoyment. The erotic is almost inextricably linked with the aesthetically idealized. The intense pain and extensive physical injuries that individuals endure in the pursuit of physical beauty are also endured in the pursuit of sexual gratification.
The risks inherent in invasive cosmetic treatments are poorly explained. The expense of these products and services and the pervasiveness of idealized physical forms combine to create parallel markets comprising cheaper, poorly regulated forms of “beauty enhancement”, including intensive tanning and skin bleaching lotions.
The ultimate objective of these physically painful and dangerous activities is sexual pleasure. Even if the heightening of sexual pleasure that results from physical modification is less direct than in a sadomasochistic encounter, many cosmetic surgery patients find the aesthetic pleasure attendant on successful surgery to be satisfying too.
It seems hypocritical and perverse for a supposedly liberal system of law to allow individuals who are openly pursuing a sexual objective to consent to the harms and risks of cosmetic surgery, while limiting the legality of sadomasochistic acts. Both activities have the same underlying purpose, and both produce dangerous externalities. Rational, consenting adults should have as much freedom to engage in S&M play as they currently have to submit to cosmetic surgery.Improve this
When less painful but equally effective variations on existing beauty treatments enter the market, they quickly assume a position of dominance. Women and men who want to enhance their physical appearance do not automatically seek out the most painful way of doing so.
The proposition conflates a means of achieving sexual gratification with the gratifying act itself. A masochist finds erotic pleasure in being subjected to pain, irrespective of the ultimate purpose of that pain. Likewise, a sadist will inflict pain to achieve pleasure, without feeling that his actions require further justification or purpose.
A surgeon will design his procedures so that a patient will suffer an absolute minimum of pain and discomfort. A medical professional would likely be subjected to professional disciplinary measures if it were to become apparent that he derived gratification from the unavoidable pain sometimes endured by his patients. The consequences of a medical intervention sometimes mean that a patient will experience pain, but this is not evidence for the existence of underlying sadomasochistic motives.
Put simply, individuals with more typical sets of sexual desires regard cosmetic treatments as a means of achieving gratification, not the end in itself. Pain and infirmity take on great significance when an individual decides whether he wants to undergo cosmetic enhancement. The psychological screening that cosmetic surgeons employ is likely to detect individuals for whom pain and sexual pleasure have become interchangeable.
As side opposition’s third point will demonstrate, states permit individuals to consent to dangerous cosmetic procedures precisely because the risks inherent in these practices can easily be subjected to third party scrutiny.
Cosmetic surgery and beauty products exist in public, and are open to regulation and oversight. The bedroom, the basement and the private members club are, by contrast, concealed and secretive.Improve this
The pursuit of pain for the purpose of achieving pleasure is an immoral act
Not only does the state have the right and obligation to uphold the morals of society and stop deviant behavior, but it also has an obligation to prevent escalation of deviance. Acts such as sadomasochism are good indicators of the propensity for escalation to further deviant acts.
With the passing of the Anti-Social Behaviour Act 2003[i] in the UK, a legal precedent has been established where the government has the right and obligation to tackle minor deviant behavior as it can be a precursor to larger and more harmful deviance in the future. Even if S&M was “victim-less”, it demonstrates a propensity to inflict pain to gain pleasure and thus indicates high risk for developing a craving for infliction of pain of higher magnitude and scope in the future, which could be even more damaging to society.
[i] Anti-social Behaviour Act 2003." legislation.gov.uk. The National Archives, n.d. Web. 20 Jun 2011. http://www.legislation.gov.uk/ukpga/2003/38/contents
The state has no right to decide what is “moral” or “immoral” for society. Each and every individual through their freedom of conscience is allowed to determine for themselves what a moral act would be as the government has no way of determining that with any certainty.
Moreover, there is no evidence that suggests any link between S&M and propensity or escalation of criminality. Simply because someone enjoys the infliction or the feeling of pain does not mean that they will become a criminal who inflicts pain on other, un-consenting people in the future. Further, it could be argued that allowing people a consensual outlet for such urges reduces the probability that such escalation and criminality will occur.Improve this
It is not possible to meaningfully consent to sadomasochistic sex
Meaningful consent requires both that the person is informed and of age when consenting, but also requires the ability to withdraw consent at any point in time. Sadomasochism does not afford this crucial requisite of consent to the individual, and therefore no individual can legitimately and fully consent to the act.
Safe words are ludicrously impractical. Their utility is dependent upon their actually being agreed and committed to memory in advance and their declaration being heeded by the individuals who are under the influence of intense sexual desire. The passive ‘victim’ might be subject to the physical constraints, characteristic of bondage, that make speech or even flight impossible. It might be difficult to distinguish between an injunction to cease and an exclamation of pain, which presumably is a relatively regular occurrence.
Even where a number of individuals are able to demonstrate that their sadomasochistic encounters are conducted on a safe, regulated and consensual basis, it is not possible to give a concurrent guarantee that S&M is generally safe and cannot be used to perpetrate rape or abuse. The existence of a group of individuals able to interact safely in a sadomasochistic context does not mean that S&M does not present a risk to the wider population, nor that ordinary individuals are not excessively vulnerable to harm when engaged in S&M activities.Improve this
Sadomasochism need not be rendered completely free of risk. It is sufficient that each participant is aware of the hazards and consents to them. Moreover, no government can legislate for the most reckless of its citizens. If an individual is so disturbed as to place a plastic bag over his head for the purpose of sexual stimulation, the contrary opinion of the law will not be a great deterrent.[i]
Nevertheless, Sadomasochism can be rendered relatively free of physical risk for its participants. ‘Safe words’ can be agreed in advance, and then announced to end an S&M session immediately. Where participants are restrained or prevented from speaking, movement signals or the dropping of a marble held in the hand can be used to indicate withdrawal of consent. This simple device ensures that participants continue to agree to the terms on which their encounters take place.
It is patronizing to assume that participants in S&M scenarios have not considered the possibility that expressions of pain and reluctance will be a regular occurrence during such activity. Deliberately quixotic ‘safe words’ and stop signals are used in order to avoid inadvertent abuses of consent.
[i] Annette Houlihan, ‘When “No” means “Yes” and “Yes” means Harm: Gender, Sexuality and Sadomasochism Criminality’ (2011) 20 Tulane Journal of Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues 31
The state permits individuals to risk harming themselves only where such risks can be independently scrutinised and regulated
A distinction should be made between socially legitimatized recreational violence- such as rugby or boxing- and stigmatized recreational violence- such as S&M[i]. Rugby, ice hockey or motor racing must, of necessity, occur in public. Each of these events incorporates large numbers of competitors and is regulated by a referee. It is not possible for a Rugby player to be forced to play a match against his will, nor will he be prevented from leaving the field if he is injured or feels threatened. Indeed, referees can force players to withdraw if they believe they are at risk.
Where violent sports events take place without any form of official sanction or oversight, their size makes them easy to detect, and legal principles such as negligence and ineffective consent make them easy to prosecute.
Society permits violent public events such as rugby, while condemning violent private entertainments such as S&M partly because consent, capacity and safety are much easier to determine in a public context.
In short, individuals are allowed to consent to the risks inherent in participating in a rugby match because the state- and society at large- is satisfied that sufficient safeguards exist to ensure that players’ consent is informed – that the risks they will be exposed to are foreseeable. This level of control and accountability cannot be generally guaranteed within individuals’ private sexual relationships.
Although S&M practices, when properly conducted, do not carry a risk of permanent harm and are not likely to result in non-consensual activity, oversight of participant’s behavior is simply not possible. Sexuality is inherently private and individual sexual acts are closed off from public discussion.
[i] Farrugia, Paul, ‘The Consent Defence in Sport and Sadomasochism’ (1997) Auckland University Law Review, 8 (2), 472
Where should the line between sadomasochistc and “conventional” sexual activity be drawn? The English appeal case of R v Slingsby[i] concerned the accidental death of an individual who had consented to an inherently risky sexual act (the insertion of her partner’s fist into her anus) that was considered “vigorous” but not masochistic. As noted above, conventional sexual interaction is just as susceptible to subversion as S&M encounters, and can just as easily collapse into a non-consensual act.
In effect, “normal” sexual expression is as difficult to regulate, and as likely to incorporate violence (or “vigorous activity” as the judge in Slingsby would have it) and to cause harm, as sadomasochism. Society at large does not demand that all private sexual activity is as tightly regulated as professional sport, nor does it attempt to outlaw sexual activity. Instead, it is acknowledged that personal freedom outweighs the occasional harms that private sexual relationships produce. Existing legal safeguards are seen as providing victims of abusive conventional relationships with adequate protection and recompense.
Indeed, the dangers that accompany conventional sex may be less obvious to the participants in a relationship than the dangers posed by a poorly tied knot or an inexpertly wielded crop. Sexually transmitted infections, concealed personality disorders, infidelity or jealous former partners all constitute significant and easily overlooked sources of harm.
[i] R v Slingsby  Crim LR 570
The right to privacy counterbalances the state's obligation to ban sadomasochistic sex
As noted by the proposition, those who want to engage in violent sexual activities will do so, irrespective of laws to the contrary. Without undermining core liberal concepts of privacy and freedom of association, the state will be unable to regulate private sexual interaction. This being the case, when is violent activity most likely to be detected and prosecuted under the status quo? When such acts become too visible, too public or too risky. When the bonds of trust and consent that (as the proposition has agreed) are so vital to a sadomasochistic relationship break down.
Liberal principles of privacy and autonomy allow individuals to engage in consensual activities that may fall outside established boundaries of social acceptance. In this way individual liberty is satisfied, while the risk of others being exposed to harmful externalities is limited. In the words of the anthropologist and lawyer Sally Falk-Moore, “the law can only ever be a piecemeal intervention in the life of society”[i].
The prosecution of a large and organized community of sadomasochistic homosexual men in the English criminal case of R v Brown was in part motivated by the distribution of video footage of their activities[ii]. Doubts were also raised at trial as to whether or not some of the relationships within the group were entirely free of coercion. Their activities had become too public, and the bond of consent between the sadistic and masochistic partners too attenuated for the group to remain concealed.
Individuals break the law, in minor and significant ways, all the time. Due to the legal protection of private life, due to an absence of coercion, due to a consensual relationship between a “perpetrator” and a “victim”, such breaches go entirely undetected. The general right to privacy balances out the obligation placed on the state to ensure that individuals who encounter abuse and exploitation within sadomasochistic relationships can be protected.
The protection afforded by privacy incentivizes individuals engaged in S&M activities to ensure that they follow the highest standards of safety and caution. Arguably, where “victims” have consented to being injured, but have then been forced to seek medical treatment due to their partner’s incompetence or lack of restraint, complaints to the police by doctors and nurses have helped to identify and halt reckless, negligent or dangerous sadomasochistic behavior.
Correctly and safely conducted, a sadomasochistic relationship need never enter the public domain, and need never be at risk of prosecution. However, without the existence of legal sanctions the state will have no power to intervene in high-risk or coercive S&M partnerships.
[i] “Comparative Law in a Global Context: The Legal Systems of Asia and Africa”, Werner Menski, Cambridge University Press, 2006
[ii] Annette Houlihan, ‘When “No” means “Yes” and “Yes” means Harm: Gender, Sexuality and Sadomasochism Criminality’ (2011) 20 Tulane Journal of Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues 31
It should first be observed that accidents and inadvertent harm can befall S&M practitioners irrespective of the level of caution that they exercise. It is unacceptable to require responsible adults to run the risk of prosecution whenever they engage in a consensual act of sexual expression.
Further, relationships, even sadomasochistic relationships, can break down and become acrimonious. There is a risk that an embittered partner who formerly consented to prohibited S&M activity might try to use that fact to blackmail or persecute his or her ex-lover.
The opposition state that the freedom to dissent from laws regulating one’s private conduct begins to break down when the number of people engaging in a “private” activity grows. Why should the freedom to engage in a particular sexual activity imply a trade off against the freedom to choose how many people we engage in that activity with? Interacting with multiple sexual partners is not, in itself, illegal in the majority of western liberal states, but it does not exclude other sexual fetishes, such as S&M. The opposition is disguising a further limitation on sexual freedom- the freedom to engage in group S&M- as a concession to liberalism.
Finally, the awareness that a particular activity is proscribed can affect an individual’s ability to enjoy that activity. The pleasure inherent in free expression of sexual identity is compromised by the knowledge that discovery will lead to prosecution and stigmatization. As numerous accounts by those involved in the LGBT liberation movement have demonstrated, knowing that one’s sexuality is seen as something immoral and socially destructive is inhibiting and upsetting, even in private contexts.Improve this
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Waldby, Catherine, Annette Houlihan, June Crawford and Susan Kippax , ‘Medical Vectors: Surgical HIV Transmission and the Location of Culpability’ (2005) June 2(2) 23 Sexuality Research and Social Policy: Journal of NSRC
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