tag:theconversation.com,2011:/us/topics/sadomasochism-49894/articlesSadomasochism – The Conversation2020-09-24T10:45:41Ztag:theconversation.com,2011:article/1455762020-09-24T10:45:41Z2020-09-24T10:45:41ZMarquis de Sade: depraved monster or misunderstood genius? It’s complicated<figure><img src="https://images.theconversation.com/files/358225/original/file-20200915-14-aqu8up.jpg?ixlib=rb-1.1.0&rect=5%2C15%2C3510%2C3521&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Portrait of the sadist as a young man by Charles Amédée Philippe van Loo (1719-1795).</span> <span class="attribution"><span class="license">Author provided</span></span></figcaption></figure><p>Donatien Alphonse François, <a href="https://www.smithsonianmag.com/history/who-was-marquis-de-sade-180953980/">Marquis de Sade</a>, was a bestselling author in his day and yet he spent most of his life behind bars. His novels inspired the term “sadist” - “a person who derives pleasure, especially sexual gratification, from inflicting pain or humiliation on others” – and yet, in 2017, France declared his work a “<a href="https://www.theguardian.com/world/2017/dec/18/120-days-de-sodom-made-national-treasure-by-french-government">national treasure</a>”. So, was Sade a pornographer or a philosopher – and why does his name continue to cause such heated debate?</p>
<p>Two centuries after his death, Sade (1740-1814) remains a figure of controversy. On the one hand, his name is associated with the French Revolution and the <a href="https://www.history.com/this-day-in-history/french-revolutionaries-storm-bastille">storming of the Bastille</a>, on the other, with rape, sexual terror and torture. During his lifetime, Sade was found guilty of sodomy, rape, torturing the <a href="http://www.artandpopularculture.com/Rose_Keller">36-year-old beggar woman Rose Keller</a>, imprisoning six children in his chateau at Lacoste, and poisoning five prostitutes with the aphrodisiac “Spanish fly”.</p>
<p>He managed to avoid the death sentence but still spent 32 years in prisons and insane asylums, partly due to the intervention of family members who kept him locked up to avoid disgrace. Momentarily freed under the French Revolution, he became “Citizen Sade”, participating in some of the key political events of the era, only to see his works seized, destroyed and banned under Napoleon Bonaparte. </p>
<p>His work remained censored throughout the 19th century and most of the 20th – but in 2017 the French State declared his <a href="https://voltairefoundation.wordpress.com/tag/marquis-de-sade/">120 Days of Sodom (1785)</a>, written in the Bastille on a 12-metre scroll, to be a “national treasure”. So what happened between his lifetime and ours to change his profile so radically? Here are five things we should all know about the Marquis de Sade.</p>
<h2>1. The most disgusting books</h2>
<p>Justine, or The Misfortunes of Virtue (1791), Philosophy in the Bedroom (1795), The New Justine (an extended version of Justine published in 1797) followed by the Story of Juliette, Her Sister (1797) and The 120 Days of Sodom, or the School of Libertinage (1785) – these are the works that led Napoleon Bonaparte to call Sade an author of “abominable” books and to have a “depraved imagination”. But they were penned behind bars and are the products of an incarcerated imagination – not accounts of his personal life and crimes. </p>
<p>No one escapes the satirical power of Sade’s pen – young or old, virtuous or corrupt, rich or poor – although his narratives are dominated by certain types, especially bankers, clergy, judges, aristocrats and prostitutes.</p>
<h2>2. Philosopher of the bedroom</h2>
<p>Sade lived in a time of terror. His writings may be read as a knowing inversion of Enlightenment high ideals as they were penned in France at the end of the 18th century in the shadow of the bloody guillotine. For example, <a href="https://core.ac.uk/download/pdf/286357326.pdf">Philosophy in the Bedroom</a> – which contains a mock political pamphlet: “Yet Another Effort, Frenchmen, If You Would Become Republicans” – was written shortly after the fall of the leading radical Robespierre and it offers an absurdist take on the rhetoric and promises of the French Revolution. </p>
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<p>In it, Sade also reminds us that “were it among Nature’s intentions that man be born modest, she would not have caused him to be born naked”.</p>
<h2>3.Sade and sadism</h2>
<p>Sade’s taste for sodomy, paedophilia and flagellation, in addition to his fictional accounts of excessive orgies, which describe sexual cruelty and murder in excessive detail, led many to presume he was deranged. This status was magnified by the fact that he ended his life in the asylum of Charenton, although a scientific examination of his skull by a Dr Ramon after his death showed no physical or mental abnormalities - phrenology determined the skull “was in all respects similar to that of a Father of the Church”. Casts were even made of his skull, one of which now <a href="https://www.mnhn.fr/en/visit/lieux/musee-homme-museum-mankind">sits in the Musée de l'Homme in Paris</a>.</p>
<p>In Sade’s writings, however, the clergy are typically amoral characters and by the 19th century, the term “sadism” was <a href="https://nosubject.com/Sadism/Masochism">coined by psychoanalysts</a> to denote the experience of pleasure through the infliction of physical pain.</p>
<h2>4. Pornography at the service of women</h2>
<p>The feminist philosopher Simone de Beauvoir defended Sade in a 1951 essay entitled: “<a href="https://plato.stanford.edu/entries/beauvoir/#:%7E:text=%E2%80%9CMust%20we%20Burn%20Sade%3F%E2%80%9D%20identifies%20the%20Marquis's%20decision%20to,his%20utopian%20appeal%20to%20freedom.">Must We Burn Sade?</a>”.</p>
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<a href="https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Cover for 2020 book about Sade by the author Alyce Mahon." src="https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=857&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=857&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=857&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1077&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1077&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359046/original/file-20200921-20-119zlle.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1077&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Controversial study: the author’s recent book about Marquis de Sade.</span>
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<p>She argued that his novels’ exploration of the idea that “in a criminal society, one must be criminal” was never more relevant and that his life story and increasing perversity in his fiction was a symptom of society’s increasing attempts to control him. </p>
<p>In the 1970s and 1980s, feminists engaged in heated debate over Sade and his philosophical value. <a href="https://www.bl.uk/collection-items/typescript-draft-of-the-sadeian-woman-by-angela-carter">Angela Carter defended</a> him for putting pornography “at the service of women” while <a href="https://nymag.com/nymetro/news/people/features/11907/">Andrea Dworkin insisted</a> his fiction only defended the male sexual desire to “possess” women.</p>
<h2>5. ‘Divine Marquis’</h2>
<p>By the 20th century, Sade was deemed “divine” by many intellectuals and artists who interpreted his writings as a dark mirror of man’s inhumanity to man. From <a href="https://diaboliquemagazine.com/legacies-sade-man-rays-imaginary-portraits/">Man Ray’s imaginary portraits of Sade</a> in the late 1930s, portraying him as a paragon of liberty beside the burning Bastille, as war loomed in Europe, to <a href="https://newhumanist.org.uk/articles/4908/salo-the-unseen-movie">Pier Paolo Pasolini’s film Saló (1975)</a>, which restages Sade’s 120 days of Sodom in fascist Italy, Sade’s name and writings offered modern artists and writers a means to address the horrors of war and totalitarian regimes. These are themes American artist Paul Chan explores in his mixed-media installations “<a href="https://www.greenenaftaligallery.com/exhibitions/paul-chan/press-release1">Sade for Sade’s Sake</a>” (2009) by conflating Sade and the “War on Terror”.</p>
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<p>Sade’s writings may seem cold and cruel, but they can but leave a mark on the reader. Surely that is the power of art and why we must continue to read Sade.</p><img src="https://counter.theconversation.com/content/145576/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alyce Mahon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>His name has become a byword for deviancy and sexual cruelty. But Sade has also provided creative inspiration for generations of writers and artists.Alyce Mahon, Reader in Modern and Contemporary Art History, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1083762018-12-10T13:44:08Z2018-12-10T13:44:08ZBDSM: when is sadomasochism an act of domestic violence?<figure><img src="https://images.theconversation.com/files/249666/original/file-20181210-76986-1cvtkqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTU0NDQ2Nzc5OCwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfNzc5ODI4MDE3IiwiayI6InBob3RvLzc3OTgyODAxNy9tZWRpdW0uanBnIiwibSI6MSwiZCI6InNodXR0ZXJzdG9jay1tZWRpYSJ9LCJLdEhSTmRlREp2MTF5akFvSHBTdDVtSmZaMTgiXQ%2Fshutterstock_779828017.jpg&pi=33421636&m=779828017&src=yKh-JwR8hZtGFckdikiqOQ-2-1">Shutterstock</a></span></figcaption></figure><p>The UK House of Lords ruled 25 years ago <a href="http://www.cirp.org/library/legal/UKlaw/rvbrown1993/">in the case of Brown</a> that there was no public interest in allowing individuals to consent to injuries during sadomasochistic (S&M) encounters. In Brown, the appellants had engaged in various acts ranging from whipping and branding to beatings. </p>
<p>The Law Lords expressed concerns about the dangers posed by these activities, particularly that they could get out of control and that the resultant harm may be greater than that which was anticipated. In their appeal, the participants, a group of largely professional men who had taken great care to ensure their activities were safe, had argued that they had a right to engage in these private sexual activities. They maintained that no harm had been caused that had not been consented to, and that their use of code words and the sterilisation of their equipment meant that there was little risk of serious injury or the transmission of disease. </p>
<p>These arguments were unsuccessful and where bodily harm is inflicted during consensual S&M – for example, consensual spanking which leaves a bruise – the person who has caused the injury has committed a criminal offence. </p>
<p>Since this ruling, <a href="https://theconversation.com/where-should-the-law-draw-the-line-between-consent-and-culpability-in-sadomasochism-91229">academics</a>, <a href="http://www.spannertrust.org/">campaigners</a> and even bodies charged with <a href="https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1994.tb01984.x">reviewing</a> the law have argued that this principle intrudes too far into the private lives of individuals. </p>
<p>The law has certainly failed to keep apace with social change. In 2011, Fifty Shades of Grey thrust BDSM (bondage, domination, sadism and masochism) into <a href="https://theconversation.com/from-the-dungeon-to-the-multiplex-how-bondage-has-gripped-the-nation-72527">popular culture</a> and started a national conversation about sexual acts that had previously only been whispered about. Since then, BDSM has featured in <a href="https://www.huffingtonpost.com/college-candy/whats-the-big-deal-about-_b_819878.html">music videos</a>,
<a href="https://www.goodreads.com/shelf/show/bdsm-fiction">popular fiction</a> and <a href="https://www.telegraph.co.uk/culture/film/11394951/Fifty-Shades-cinemas-kinky-side.html">cinema</a>. It may then come as a surprise that it remains a criminal offence to inflict even minor harm during consensual S&M activities. </p>
<h2>Time for change</h2>
<p>Suggestions for changes to the law have included increasing the level of harm that can be consented to – allowing consent to nullify liability where injury is less than serious. It has also been suggested that as S&M may be part of a normal healthy sex life the law should never intervene when consensual injuries are caused. </p>
<p>There are obvious benefits to liberalising the law in this area. Personal autonomy and the right to a private life are key considerations for the law in any progressive democracy. There have, however, been a number of cases that have recently reached the UK courts that illustrate the danger of taking too liberal an approach here. </p>
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<img alt="" src="https://images.theconversation.com/files/249667/original/file-20181210-76962-1e8p6h6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/249667/original/file-20181210-76962-1e8p6h6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=299&fit=crop&dpr=1 600w, https://images.theconversation.com/files/249667/original/file-20181210-76962-1e8p6h6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=299&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/249667/original/file-20181210-76962-1e8p6h6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=299&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/249667/original/file-20181210-76962-1e8p6h6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=375&fit=crop&dpr=1 754w, https://images.theconversation.com/files/249667/original/file-20181210-76962-1e8p6h6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=375&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/249667/original/file-20181210-76962-1e8p6h6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=375&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A dangerous subject for the law.</span>
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<p>In August 2018, Jason Gaskell <a href="https://www.lancashiretelegraph.co.uk/news/national/16412189.jail-for-man-who-fatally-stabbed-woman-in-neck-during-sadomasochistic-sex/">admitted</a> gross negligence manslaughter after stabbing Laura Huteson in the neck during sadomasochistic sex. In December, Dean Wilkins <a href="https://www.dailymail.co.uk/news/article-6453313/Electrician-36-admits-ABH-battering-lover-Fifty-Shades-style-rough-sex.html">pleaded guilty</a> to actual body harm after engaging in – what he argued – was consensual S&M. And the trial of <a href="https://www.dailymail.co.uk/news/article-6393863/Property-developer-killed-girlfriend-violent-sex-session.html">John Broadhurst</a> for the murder of his partner – who allegedly died during sadomasochistic sex – continues.</p>
<p>If we allow consent to negate liability for injuries inflicted during S&M, it could pose additional difficulties for the criminal justice system in convicting abusers. </p>
<p>Unpicking whether consent has been freely given can be a difficult task in <a href="https://www.dailymail.co.uk/news/article-4433480/Bondage-fanatic-not-guilty-sexual-assault.html">these</a> circumstances. Those who engage in S&M are usually careful to respect personal boundaries, but there is, as the Law Lords have suggested, the potential for matters to get out of hand. S&M also necessarily relies on dominance and submission and any consent that is obtained, for example, under duress is not “real” consent. </p>
<h2>Eroticising violence</h2>
<p>The popularity of the Fifty Shades of Grey books and films has also prompted <a href="https://theconversation.com/violence-dressed-up-as-erotica-fifty-shades-of-grey-and-abuse-37589">commentators</a> to ask whether it is appropriate to:</p>
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<p>Talk about ‘good’ or ‘consensual’ BDSM without taking into account the endemic levels of violence against women and the eroticising of that violence in a pornified culture.</p>
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<p>Perhaps our greatest concern here should be that consent could be used to mask domestic violence and could provide an additional obstacle to claims of domestic abuse. It is certainly not difficult to imagine abusers arguing that the injuries they have inflicted upon their partner were part of a consensual S&M encounter. </p>
<p>This is the problem with too readily allowing consent to negate liability in S&M encounters. In an environment where we recognise the dangers of <a href="https://theconversation.com/coercive-control-cases-have-doubled-but-police-still-miss-patterns-of-this-domestic-abuse-100347">coercive control</a> and <a href="https://theconversation.com/s-upport-programmes-for-perpetrators-of-domestic-abuse-are-controversial-but-new-research-finds-they-bring-benefits-88092">one in three women experience domestic abuse</a> we do need to think very carefully about loosening the reins here. </p>
<p>There are many <a href="https://theconversation.com/is-extreme-body-modification-even-legal-73242">good reasons</a> for revisiting the principle in Brown and updating the law. Those who engage in S&M as part of a healthy sex life should be able to inflict consensual harm without being unfairly criminalised. But we also need to ensure that victims of abuse are protected. This is a delicate balancing act and it’s no surprise that successive governments have been unwilling to address the question of consent in this area.</p><img src="https://counter.theconversation.com/content/108376/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Samantha Pegg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The law needs updating – but great care is required when it comes to consent and sadomasochistic sex.Samantha Pegg, Senior Lecturer, Criminal Law, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/912292018-02-20T19:09:06Z2018-02-20T19:09:06ZWhere should the law draw the line between consent and culpability in sadomasochism?<figure><img src="https://images.theconversation.com/files/206478/original/file-20180215-124924-4awdky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We need more clarity around this difficult question: when are sexual acts so extreme that consent is irrelevant?</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The worldwide #MeToo movement has brought with it a new platform to discuss the intricacies of human relationships and sexual consent. Key to these discussions is an understanding of when and how the criminal law recognises formal consent to sexual acts.</p>
<p>However, a far more surprising legal distinction also exists: when are sexual acts so extreme that consent is irrelevant?</p>
<p>In 1987, the UK Metropolitan Police discovered what they thought was a snuff film, depicting acts of violence and abuse of a group of young men. Some years later, the House of Lords upheld the conviction of five men who inflicted the horrible injuries. Problem was, the “victims” in this case never filed a complaint – indeed they asked to be injured.</p>
<p>The men convicted were not thugs, but hedonists, entering into a consensual sado-sexual arrangement with a group of younger men, all of whom consented to the acts performed.</p>
<p>The resulting decision of <a href="https://www.princeton.edu/%7Eereading/ReginaVBrown.pdf">R v Brown</a> is an infamous piece of legal history, establishing the legal precedent that certain “extreme” consensual acts – like heavy sadomasochistic activity – can be criminalised even without a victim complaint. </p>
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Read more:
<a href="https://theconversation.com/yes-means-yes-moving-to-a-different-model-of-consent-for-sexual-interactions-90630">Yes means yes: moving to a different model of consent for sexual interactions</a>
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<p>In Australia, how the law might interpret consent in situations like this is far from clear. In the current climate around sexual relations, the Australian High Court needs to clarify this confusing legal situation.</p>
<h2>‘A culture of violence’ and the legacy of R v Brown</h2>
<p>Let’s be clear, the kinky acts at play here weren’t 50 Shades of Grey-style fluffy handcuffs and a light spanking. Among the plethora of acts depicted on video were genital torture, branding and bloodletting.</p>
<p>But all of these boundary-pushing acts were consensual. In fact, the slicing and dicing had been going on between the men for over ten years.</p>
<p>Prior to this case, consent by an injured party was seen as a relatively safe “defence” to charges of assault or injury under British law. Previous court decisions on assault and injury offences had found boxing, rough-housing, surgery and macho sporting activities were all justifiable if the person hurt had consented.</p>
<p>But the House of Lords felt that S&M was different implicitly because of its sexual motivation, not to mention that it involved sex between men. Essentially, in the eyes of the law, it’s all fun and games until someone pierces a urethra.</p>
<p>Despite this obvious prejudice, the Lords spend a lot of time in their judgment making it clear that sex was not the major problem – it was the public interest they were concerned with. In the words of Lord Templeman:</p>
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<p>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.</p>
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<p>It is curious that Lord Templeman did not see a similar “culture of violence” surrounding boxing matches, long approved under law with consent. But his fellow Lords shared his concern regarding cultural effect.</p>
<p>Lord Lowry decried that it was “not in the public interest” that people cause bodily harm “for no good reason”. Pleasure from beating a man senseless was fine, as long as it occurred above the belt. </p>
<p>Over the past 20 years, R v Brown has been heavily critiqued for its misunderstanding of sadomasochism, its obvious homophobia (one of the Lords considered it a “comfort” that a “victim” involved had “settled into a normal heterosexual relationship”) and its reflection on early ’90s social mores.</p>
<p>But it also raises the question of whether consensual sexual acts that “push the boundaries” are at risk of criminalisation in Australia.</p>
<h2>The impact of Brown in Australia</h2>
<p>If you were to enter an Australian law firm with a whip in one hand and ask the nervous solicitor sitting behind her desk whether S&M was legal, she would probably stutter out something like “kind of”.</p>
<p>Clearly, the police are not overly concerned with what occurs between two consenting adults in their makeshift basement dungeon. Indeed we have seen very few charges laid for consensual S&M acts. But the law regarding such acts in Australia, particularly when actual injury is being inflicted, is quite unclear.</p>
<p>The only relevant Australian cases we have on the subject of consensual S&M involve situations where something has gone wrong and someone has died.</p>
<p>In the Victorian case of <a href="https://jade.io/j/?a=outline&id=72290">R v Stein</a> – a farcical manslaughter case involving a sex worker, a pimp and a consenting client with a taste for bondage – Stein, the “pimp”, had placed a handkerchief gag in the client’s mouth, resulting in his death from suffocation.</p>
<p>In assessing Stein’s appeal of his manslaughter conviction, the court cited R v Brown for the proposition that consent was not relevant to the case, as the victim had suffered “significant physical injury” (namely, death).</p>
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Read more:
<a href="https://theconversation.com/craig-mclachlan-defamation-and-getting-the-balance-right-when-sexual-harassment-goes-to-court-91223">Craig McLachlan, defamation and getting the balance right when sexual harassment goes to court</a>
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<p>But how significant does an injury have to be before consent is irrelevant? Is it when a flog breaks the skin? Is it when a life is in danger? Unfortunately, the judiciary has given some mixed signals on the “public interest” line between consensual fun and criminal act.</p>
<p>In Q v Meiers, a man suffocated to death after being bound to a veranda pole with tape by his reluctant wife. In this case, the sentencing judge was highly dismissive of the consensual sadomasochistic activity undertaken, wishing to “make it clear to the community that the Court does denounce [such] conduct”.</p>
<p>This critical view can be contrasted to the judge’s words in <a href="https://jade.io/article/73081">R v McIntosh</a>. In this case, a man was asphyxiated by his lover who pulled too hard (and for too long) on a cord wrapped around his neck. Unlike the Meiers case, the sentencing judge in this case made it clear that the sentence delivered was “not based upon any moralistic response to the sexual predilections of those involved in bondage or sadomasochistic activities”.</p>
<p>So, which is it? Are the courts OK with a bit of kink, or concerned about spreading a “culture of violence” in Australia?</p>
<p>Things are made even more confusing as the criminal offences the men were charged with in R v Brown – unlawful wounding and assault occasioning actual bodily harm – are different (but similar to) the assault and injury offences found in Australia. Moreover, UK cases have a “persuasive” rather than “binding” effect on Australian courts. Does this mean that R v Brown is limited to a certain time and place, or does it have a continuing impact on Australian criminal law?</p>
<h2>The case for consent</h2>
<p>The decision in Brown to place a limit on what two consenting adults can get up to is steeped in outdated views on sadomasochism, sexuality and harm.
Given recent discussions about consent, it also highlights the importance of the law recognising the sanctity of consent to sex.</p>
<p>One can accept that amateur bloodletting and testicle clamps are probably not the safest of recreational activities, but a bit of squeamishness should not lead to the criminalisation of bodily autonomy.</p>
<p>Indeed, the best case against the status quo came from one of the two dissenting Lords in R v Brown. Lord Mustill noted the need to leave aside: </p>
<blockquote>
<p>repugnance and moral objection, both of which are entirely natural, but neither of which are in my opinion grounds upon which the court could properly create a new crime.</p>
</blockquote><img src="https://counter.theconversation.com/content/91229/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jarryd Bartle consults for the Eros Association, which represents adult retailers and wholesalers including sellers of S&M products.</span></em></p>How Australian courts might interpret consent in situations like this is far from clear, and needs to be sorted out.Jarryd Bartle, Sessional Lecturer in Criminal Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.