Cracking the Whip on BDSM

BDSM has become more visible and arguably more acceptable in modern society in recent years. The extent to which BDSM has become saturated in the modern media has increased. The 2002 film Secretary starring James Spader and Maggie Gyllenhaal depicted a relationship between a dominant male and a submissive female. In the literature world, Fifty Shades of Grey depicted a BDSM relationship between its protagonists, dominant Christian Grey and submissive Anastasia Steele and has gone on to become a bestseller. Billie Piper’s Secret Diary of a Call Girl not only featured her character Belle taking a lesson from a dominatrix, but also a recurring character who is a professional dominatrix. Music is littered with references to BDSM, the most recent of attempts by the artist Rihanna celebrate it, with one lyric extolling: ‘sticks and stones may break my bones but chains and whips excite me.’ High street shops such as Ann Summers perhaps have made BDSM-inspired sexual activity more mainstream.

BDSM encompasses three main aspects: bondage, domination/submission (alternatively Master or Mistress/submissive or slave), sadism/masochism. A couple that engages in one aspect of BDSM may engage in all aspects, but simply being involved in one does not necessarily mean that they will be engaged in all. As an example, men and women engage in dominant/submissive relationships where one partner, whether it is the male or female, has more control or authority in the relationship than the other, but this does not mean that their relationship necessarily involves bondage or the infliction of pain either for sadistic or masochistic purposes.

A feature of sexual sadomasochism is that in order to gain pleasure for one or both parties, harm will be caused. The criminal law generally speaking attempts to protect people from being recipients of harm, whether it is either physical or psychological, but the distinction between what is acceptable harm and unacceptable harm within the boundaries of sexual sadomasochism is a fine one. The issue which shall be addressed is when is consensual harm unacceptable in the eyes of the law, and should the law be allowed to intervene and regulate the sexuality of citizens?

Consensual bondage and actual bodily harm

Physical harm, however enjoyable and regardless of consent, is often inevitable in sexual sadomasochistic play. It could include the bruising of a slave’s buttocks after a whipping or abrasions to the wrists after being shackled. In sexual sadomasochistic play where one partner is dominant and the other submissive, there are a range of activities that can be used to satisfy their partner’s desire to be submissive and the recipient of pain or discomfort. This could include whipping, spanking or gagging. There is currently no specific law rendering a person participating as a dominant or a dominatrix illegal per se. However, activities which dominant partners can engage in sometimes do cross the line of the law. If actual or grievous bodily harm is caused throughout the course of a session of sexual sadomasochism, consent will not act as a defence for the dominant partner and whether the activity was consensual or not is irrelevant.

This is because consent can only be a defence to a crime if there is a good reason why it should be, or if it is in the public interest. To date, the courts have not considered the defence of consent in relation to sadomasochistic activity in the public interest. The question therefore becomes: in today’s society, is sexual sadomasochism and specifically the dominant partner’s practice in the public interest?

Almost twenty years ago in R v Brown [1994] 1 A.C 212, the leading case on consent, Lord Templeman answered this question with a formidable ‘no’:

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.

This reinforces the principle that in this context, consent is not a valid defence to harm arising out of consensual sexual sadomasochistic activity because consent to acts of sadomasochism is not in the public interest. Does this point remain valid twenty years on? It would appear that as society’s view of an activity, such as the practice of BDSM changes, so too will the courts adapt accordingly. If the courts feel there is a good reason for the activity to be lawful the defence of consent will be permitted to operate.

Shades of grey

The question of when the sadomasochistic activity becomes illegal lies within our understanding of Brown.  If a couple engages in bondage-esque activity such as light spanking or utilising handcuffs, or if no actual bodily harm is caused, there is no offence committed. If however, as a result of the spanking, more than trivial harm is caused to the submissive partner, the dominant is potentially liable. The line between legal activity and illegal activity is a fine one and wholly depends on the degree of harm which the submissive partner receives from his or her partner.

Should the law be allowed to intervene?

Twenty years ago, Lord Templeman stated that society was bound to protect itself against a cult of violence. However, it would appear that society’s attitude to what is acceptable sexual behaviour has undergone an evolution. Sadomasochism has, to a certain extent, been normalised in society. Fifty Shades of Grey is not the subject of top-shelf magazine publications or B-movies, but can be found with ease in respectable bookstores such as Waterstones. Society is becoming increasingly liberal and aware of the range of sexual practices individuals engage in. Given this, it would seem that the problem with S&M lies in whether or not harm is caused to the willing submissive partner.