50 SHADES OF CONSENT: RE-DEFINING THE LAW'S TREATMENT OF SADOMASOCHISM
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3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
50 SHADES OF CONSENT:
RE-DEFINING THE LAW’S TREATMENT OF
SADOMASOCHISM
INTRODUCTION
In the spring of 2012, former NFL linebacker Junior Seau committed
suicide as a result of repeated blows to the head during his career as a
football player.1 Medical experts reveal the cause of the suicide was chronic
traumatic encephalopathy (C.T.E.), a degenerative brain disease widely
attributed to athletes who have absorbed ongoing blows.2 In light of the
grave harm suffered by Seau and many other players, the Government has
stepped in to fund and conduct research about this disease.3
Alternatively, consider a case where two homosexual adult partners
engaged in a sadomasochistic relationship—one where expressions of
intimacy coalesce with expressions of violence. After a consensual
interaction in which the “Master” used a whip on his partner in the course
of their mutually desired sexual encounter, the “Master” soon became a
perpetrator in a criminal proceeding and received a sentence of 8 to 10
years for assault and battery with a deadly weapon.4
In both scenarios, the government clearly recognizes the need to
regulate injuries sustained from violence. However, a question remains:
Why doesn’t the government criminally prosecute Seau’s opposing players
or the NFL for orchestrating the beatings that led to his death? The answer
is that the law has carved an exception to sports-related injuries
1. Mary Pilon and Ken Bilson, Seau Suffered from Brain Disease: THE N.Y. TIMES, Jan.
10, 2013, available at http://www.nytimes.com/2013/01/11/sports/football/junior-seau-suffered-
from-brain-disease.html?pagewanted=1&_r=0&hp.
2. Id. The article notes that “[s]ince C.T.E. was diagnosed in the brain of the former Eagles
defensive back Andre Waters after his suicide in 2006, the disease has been found in nearly every
former player whose brain was examined posthumously.”
3. Id.
4. Commonwealth v. Appleby, 402 N.E.2d 1051, 1053 (Mass. 1980).
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notwithstanding the inherent danger in many contact sports. Conversely, the
law traditionally has not provided similar protections for “deviant” or
“kinky” sexual practices such as sadomasochism because it views these acts
as socially undesirable. However, in the recent U.S. Supreme Court case,
Lawrence v. Texas, the Court banned states from criminalizing sodomy
between two consenting homosexual adults.5 The opinion truly underscores
the importance of sexual and individual autonomy but leaves the legality of
sadomasochism unanswered.
Thus, this Comment proposes that sadomasochism (“S/M”) cases
should be de-criminalized and re-analyzed through a civil framework of tort
and contract theory in order to provide more protection for the privacy
interests that Lawrence guarantees. This framework would be feasible for
three reasons: First, S/M fits within Lawrence’s protective scope since
criminal law’s artificial construction of an “injury” is arbitrarily applied to
consensual S/M practices. Second, regulations based in tort and contract
law would not only respect and uphold the privacy rights articulated in
Lawrence, but the doctrines echo criminal law in ways that would preserve
each body of law’s underlying “social harm” rationale wherever an act is
deemed nonconsensual. Third, recent courts have effectively employed an
analytical scheme based in tort and contract law, thereby implicitly
recognizing the need for adaptation in this area of law.
I. CRIMINAL LAW EXPOSED IN AN S/M CONTEXT
A. Background
As a general matter, an individual may not consent to injury incurred in
the practice of S/M.6 The underlying rationale is that the principal injury
caused by this conduct is the “crime” suffered by the public.7 Thus, even
when an individual redresses his injury through private action, the state
nonetheless has a great interest in punishing a party for the wrongful act
itself. It has been stated that “the only true consent to a criminal act is that
of the community,”8 because even if the harm occurred in private, such an
5. Lawrence v. Texas, 539 U.S. 558 (2003).
6. States differ as to the level of injury to which an individual may consent, but the
proscribed level of injury is generally deemed “serious.” MODEL PENAL CODE § 2.11 (1962).
7. WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.5, at 59 (2d. ed. 2003).
Consequences: significance of consent, conduct, or condonation by victim.
8. State v. Brown, 364 A.2d 27, 29 (N.J. Super. Ct. Law Div. 1976).3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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act has an impingement upon the community and the very doing of the act
may tend to encourage repetition and undermine public morals.9
This public harm rationale poses a substantial wrinkle for legal analysis
in the face of Lawrence. In the handbook on the Law of Torts, leading tort
scholar W. Page Keeton laments criminal law’s limitations when “the
interest of the public is thrown into the scales and allowed to swing the
balance for or against the plaintiff, the result is a form of ‘social
engineering.’ A decisionmaker might deliberately seek to use the law as an
instrument to promote the ‘greatest happiness of the greatest number’ or
instead might give greater emphasis to protecting certain types of interests
of individuals as fundamental entitlements central to an integrity of person
that the law upholds above all else.”10 Given its utilitarian policy, criminal
law alone as an analytical device for S/M cannot adequately comport with
the Lawrence decision.
B. Modified Approach To S/M & Harm
The Lawrence decision undermines criminal law’s approach to S/M
since this approach fails to align the treatment of S/M with that of other
legally permissible practices including violent sports and body
modification. As a general matter, courts tend to frown on S/M for its
immoral undertones, even though Lawrence expressly proscribes such
reprehension based on moral judgment.11 Courts’ failure to adequately
explain why other dangerous practices like contact sports or body
modification are legally acceptable, while S/M remains legally confined,
suggests that courts use criminal law as a tool to artificially construe any
S/M act as an assault. As a result, courts deprive S/M practitioners of their
Lawrence protections of personal autonomy that other similarly situated
parties receive.12
In Lawrence, its landmark opinion banning states from criminalizing
sodomy between consenting adults, the Supreme Court noted that “[t]he
issue is whether the majority may use the power of the State to enforce
[their] views on the whole society through operation of criminal law. ‘Our
obligation is to define the liberty of all, not to mandate our own moral
9. Id.
10. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 16 (5th ed.
1984).
11. See Lawrence, 539 U.S. at 571.
12. Some activities that fall under Lawrence’s protective scope include: boxing, mixed
martial arts, football and cosmetic surgery; See Kathy Sisson, The Cultural Formation of S/M in
SAFE, SANE AND CONSENSUAL: CONTEMPORARY PERSPECTIVES ON SADOMASOCHISM 10, 23
(Darren Langdridge & Meg Barker eds., 2007).3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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code.’”13 Ultimately, this decision exposes criminal law’s shortcomings in
the context of S/M because according to Lawrence, “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.”14 Many S/M advocates would
read this statement to include their right to engage in safe and private S/M
conduct without fear of government intrusion since S/M is an expression of
sexual autonomy.15 Under Lawrence, this pro-S/M argument would likely
succeed but for the element of violence inherent in S/M.
That physical harm is the crux of S/M immediately places S/M cases
within the scope of criminal law with no legal recognition of a consent
defense.16 On the one hand, opponents to S/M correctly point out that two
individuals cannot consent or agree to commit a crime, which amounts to a
contravention of public policy.17 On the other hand, proponents argue that
S/M is not a crime at all but rather an expression of personal autonomy and
that the flagrant moral disapproval targeted at S/M comes sharply into focus
when S/M is compared to the physical incursions permitted in violent sports
and body modification including piercings, tattoos, scarification, splitting,
branding, and cosmetic surgery.18
13. Lawrence, 539 U.S. at 571 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 850
(1992)).
14. Id. at 574.
15. See NATIONAL COALITION FOR SEXUAL FREEDOM, When the Levee Breaks: A guide to
dealing with and avoiding arrest and prosecution in BDSM scenes (2012),
https://ncsfreedom.org/images/stories/pdfs/Consent%20Counts/CC%20Doc/NCSF_Levee_21feb1
2_WEB.pdf; NATIONAL COALITION FOR SEXUAL FREEDOM, Consent Counts Program
Description, A FEW RAYS OF HOPE available at https://ncsfreedom.org/key-programs/consent-
counts/consent-counts/item/580-consent-and-bdsm-the-state-of-the-law.html (explaining that “the
U.S. Supreme Court has created a doctrine of privacy that, at least in some areas of sexual
behavior, now insulates consenting couples from criminal prosecution. While the doctrine of
Lawrence v. Texas has not been applied in the BDSM context, the principle of privacy is a
powerful one that works in our favor”).
16. See MODEL PENAL CODE § 2.11.
17. See RESTATEMENT (SECOND) OF CONTRACTS § 178 (1979).
18. Kelly Egan, Morality-Based Legislation is Alive and Well: Why the law permits consent
to body modification but not sadomasochistic sex, 70 ALB. L. REV 1615, 1642 nn.3 & 100 (“Glans
splitting” refers to splitting the head of the penis); See, e.g., R.M. Schneiderman, Cut-Prone
Fighters Turn to Surgery to Limit Bleeding, N.Y. TIMES (July 10, 2009), available at
http://www.nytimes.com/2009/07/11/sports/11surgery.html?ref=mixedmartialarts&_r=0
(discussing plastic surgery procedures Mixed Martial Arts participants undergo, “Since at least the
1970s, boxers have had plastic surgeries to repair scar tissue and prevent excessive bleeding. But
mixed martial arts, which combines wrestling, kickboxing and grappling, has a higher incidence
of deep, potentially fight-ending lacerations, according to doctors who are familiar with both
sports.”). This example has two levels of body-alterations: the mutilation associated with the
actual fighting and the subsequent reconstructive surgeries to prevent excessive bleeding during
the violent matches.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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While body modification does not rise to the same level of acceptance
as sports, it nevertheless receives more legal protection than S/M does,
despite the physical harm involved in both practices including risk of
infections and complications.19 Proponents of body modification would
argue that its social value comes from personal autonomy and self-
expression.20 While S/M practitioners draw support from this same
argument, courts presiding over S/M cases nonetheless tend to reject this
argument, perhaps as a conscious (or even subconscious) way to denounce
the practice itself. For instance, in several S/M cases, courts often
exaggerate the seriousness of the injuries to condemn deviant sexual acts.21
In one S/M case, the court described the victim as having sustained “a
swollen lip, large welts on her ankles, wrists, hips, buttocks, and severe
bruises on her thighs”22—injuries that resemble the immediate markings of
those who undergo reconstructive or plastic surgeries—yet the court’s
deliberate and descriptive language suggests violence.23 Often, the
difference between the actual harm sustained in an S/M setting and that
incurred in a plastic surgery or tattooing procedure will be negligible, yet
the S/M practitioner is subject to criminal prosecution while the plastic
surgeon or tattoo artist is not. Thus, a comparison of the legal treatment of
S/M with that of body modification and other permissible physical injuries
exemplifies criminal law’s arbitrary definition of “harm.”
C. S/M: Sex or Violence?
This arbitrary notion of “harm” imposed on S/M is even more apparent
through courts’ assumption that any violence in an S/M scene practiced in
the privacy of one’s home is tantamount to assault. This misguided
assumption in turn invalidates a consent defense since courts routinely
conclude that no reasonable person would actually consent to violence
during sex.24 Thus, since the law conceptualizes S/M as pure violence rather
than sex, and violence is charged as an assault, S/M
19. Egan, supra note 18, at 1638-39 (noting that regulations for body modification have been
minimal despite the risk of complications or injury); id. at n.3.
20. Id. at 1639.
21. Vera Bergelson, Consent to Harm, 28 PACE L. REV. 683, 691 (2008).
22. State v. Collier, 372 N.W.2d. 303, 304 (Iowa Ct. App. 1985); Bergelson, supra note 21,
at 692.
23. Interview with Douglas M. Freedman, M.D., Orthopedic Surgeon associated with St.
John’s Health Center in Santa Monica, Cal. (Mar. 13, 2013) (noting that “typical immediate
findings after plastic surgery (and many surgeries) are bruising and swelling”).
24. See Govan v. State, 913 N.E.2d 237, 242-43 (Ind. Ct. App. 2009); see also State v.
Guinn, Nos. 23886-1-II, 25856-1-II, 2001 Wash. App. LEXIS 502 at *11-*12.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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practitioners/defendants cannot even raise a consent defense.25 S/M
practitioners argue that the exercise itself is not about hurting another
person but it aims to provide pleasure through inflicting some pain and
discomfort.26 In other words, since private S/M conduct is arguably
commensurate with other sexual activities like sodomy, courts’ legal
construction of S/M as assault is purely speculative and in need of
reconsideration.27
Despite the language in Lawrence limiting its protections to situations
that are free from injury or coercion,28 unfairly narrow interpretations of its
holding fail to consider the key argument advanced by S/M advocates: that
S/M is sex.29 As such, a re-conceptualized notion of S/M as private sexual
conduct would transform a charge of assault into one of battery involving
sexual overtones where courts do allow a consent defense.30 Thus far,
however, courts have been reluctant to categorize S/M activity as the
“sexual overtone” element in a battery charge and consequently courts view
S/M as strictly an assault barring any consent defense. This arbitrary
imposition that S/M can only be an assault “undermines the ability of
practitioners to define their own pleasure”31 and the right to define “one’s
own concept of existence, of meaning, of the universe, and of the mystery
of human life.”32
A recent S/M case in Indiana reaffirmed the general rule that consent is
ordinarily a defense to a charge of battery when the conduct involves sexual
overtones.33 However, the court concluded that the presence of a deadly
weapon, namely a knife, used in the sexual encounter between defendant
25. See supra note 6 and accompanying text; see also Monica Pa, Beyond the Pleasure
Principle: The Criminalization of Consensual Sadomasochistic Sex, 11 TEX. J. WOMEN & L. 51,
77 (2001); LISA ANNE ZILNEY & LAURA J. ZILNEY, RECONSIDERING SEX CRIMES AND
OFFENDERS: PROSECUTION OR PERSECUTION? 82 (2009).
26. ZILNEY & ZILNEY, supra note 25, at 82.
27. See, e.g., Lawrence, 539 U.S at 582-83.
28. See id. at 578.
29. See ZILNEY & ZILNEY, supra note 25, at 82; Matt Haber, A Hush-Hush Topic No More,
N.Y. TIMES, Feb. 27, 2013, available at http://www.nytimes.com/2013/02/28/fashion/bondage-
domination-and-kink-sex-communities-step-into-view.html?pagewanted=all (noting that domestic
violence and dominance/submission are entirely different); Charles Moser and Peggy J.
Kleinplatz, Themes of SM Expression in SAFE, SANE, AND CONSENSUAL: CONTEMPORARY
PERSPECTIVES ON SADOMASOCHISM 35, 45 (Darren Langdridge & Meg Barker eds., 2007)
(explaining that despite the common assumption that S/M is abusive, most S/M practitioners do
not consider the experience as “painful” and instead consider it a desired “intensity” of sexual
arousal).
30. Govan, 913 N.E.2d at 242.
31. See Pa, supra note 25, at 79.
32. Lawrence, 539 U.S at 574.
33. Govan, 913 N.E.2d at 242.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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and victim precluded consent as a defense.34 This case illustrates the
challenge that S/M practitioners face: the presence of violent expressions
and/or paraphernalia automatically transforms what sadomasochists call
“sex” into “assault” presumably because courts find it inconceivable (if not
abhorrent) that individuals would elect to use weapons during sex and
therefore, as a matter of law, a consent defense should not even be available
in this context.
In another case, the defendant solicited sex from prostitutes, and he
proceeded to assault, rape and sodomize the women after taking them into a
deserted shack and holding a gun to their head and a knife to their throat.35
He was charged with five counts of first degree rape, five counts of second
degree assault, four counts of first degree kidnapping and three counts of
first degree robbery.36 He argued that all of the women, but one, consented
to participate in this sadomasochistic activity including shaving their pubic
hair, pouring hot wax on various parts of their bodies, putting safety pins in
their nipples and foreign objects in their rectums.37 He claimed that the
women accused him of rape when he failed to pay them for their services.38
The appellate court held that there was no abuse in discretion in the trial
court’s excluding expert testimony which could explain how sexually
deviant activities like S/M can be consensual.39 The court reasoned that
such testimony would have minimal assistance to the jury:
That some people may consent to sadomasochistic acts has little bearing
on whether these victims did. Moreover, the issue of consent turns not so
much upon sadomasochistic practices as upon the entire course of events,
including taking the victims to deserted places, controlling them with a
gun, tying and taping them, and threatening to kill them. Jurors did not
need expert testimony to decide whether, under these circumstances, the
40
victim consented.
Apparently, the court assumed that “physical pain” satisfied the
“physical injury” element, and under this logic, naturally any S/M conduct
may be characterized as assault.41 In the foregoing examples, regardless of
whether the courts reached a “correct” conclusion as to the subject conduct,
the problematic issue is that the possibility of consent was never a
34. Id. at 242-43.
35. State v. Guinn, Nos. 23886-1-II, 25856-1-II, 2001 Wash. App. LEXIS 502 at *2-5.
36. Id. at *5-6.
37. Id. at *2-7.
38. Id. at *6.
39. Id. at *11.
40. Id. at *12 (emphasis omitted).
41. See id. at *34; Bergelson, supra note 21, at 692.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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consideration for the trier of fact. What Govan and Guinn illustrate is that
the rule of consent is arbitrary and strict and notably unavailable in certain
contexts.42 People may only consent to an activity if it is on a list of things
the state approves, “but the law envisions no balancing or accommodation
of conflicting interests of an individual and society. The disregard for an
individual, inherent in this rule, goes against the basic principles of
autonomy and personal responsibility defining American criminal law.”43
Thus, for an S/M practitioner to use Lawrence effectively as a shield from
criminal liability, courts must first re-characterize S/M as a form of private
and consensual sexual conduct rather than mere injury or coercion.44
Ultimately, a consent defense will not automatically condone all sexual
practices or excuse the perpetrators of violence from criminal liability by
merely raising such a defense. Rather, the critical issue is that the defense is
categorically unavailable in many cases where an individual is (or at least
should be) entitled to the rights and protections provided by Lawrence.
D. Re-conceptualizing S/M under Lawrence
Drawing on a more modern and liberal social understanding of S/M as
sex, rather than pure violence, S/M activists have argued that S/M
practitioners should fall within Lawrence’s protective ambit.45 One
important development in S/M activism is the forthcoming amendment to
the Diagnostic and Statistical Manual of Mental Disorders (DSM), which
will depathologize sadism and masochism in its upcoming edition.46 As
such, the American Psychiatric Association’s Paraphilias Subworkgroup’s
DSM revisions acknowledge that individuals can be fetishists and sexual
sadists or masochists without having a mental disorder.47 Even the most
recent edition of the DSM changed the criteria for S/M preferences to
diagnose these sexual urges or fetishes as mental disorders only if “‘the
42. See Guinn, 2001 Wash. App. LEXIS 502 at *11; see also Govan v. State, 913 N.E.2d
237, 242 (Ind. Ct. App. 2009); Bergelson, supra note 21, at 693.
43. Bergelson, supra note 21, at 693.
44. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
45. NATIONAL COALITION FOR SEXUAL FREEDOM, supra note 15. Aside from the legal
issue of consent, there is a changing social climate with respect to S/M and the current case law
and treatment of S/M does not fit with modern understandings of this practice. While maybe S/M
is not for everyone, proponents argue that practitioners should at least be given the option to fully
present their case.
46. NATIONAL COALITION FOR SEXUAL FREEDOM, Kinky is Not a Diagnosis (Feb. 16,
2010), https://ncsfreedom.org/key-programs/dsm-v-revision-project/kinky-is-not-a-diagnosis.html
47. Id.; Cf. Moser and Kleinplatz, supra note 29, at 60 (“[S]ports injuries are far more likely
to lead to emergency room visits but weekend athletes are not automatically diagnosed with
mental disorders.”).3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
2013] 5 0 S HAD ES O F CO NS E N T 105
behaviors cause clinically significant distress or impairment in social
occupational or other important areas of functioning,” or in the case of
sadism ‘if [t]he person has acted on these sexual urges with a
nonconsenting person.’”48
The changes to the DSM undoubtedly reflect a greater acceptance for
S/M and other alternative sex practices over the decades.49 For instance,
studies indicate that the overwhelming majority of people who engage in
S/M are individuals who are normal, healthy and contributing to society.50
Scientist Ronald Moglia claims that S/M is most popular among educated,
upper and middle class individuals, and that people of all races and creeds
practice S/M.51 The Kinsey Institute New Report on Sex estimated that
most individuals experiment with a mild form of S/M including spanking or
blindfolding.52 Research reveals that sexual arousal from S/M-related
activities is not rare and that an average of 5-10% of the U.S. population
engages in some form of S/M sex.53
Furthermore, the DSM’s history of pathologizing now commonplace
and accepted sexual urges and behaviors (like masturbation and
homosexuality) calls into the question the reliability of its previous
characterizations of S/M as “disorders.”54 As various “deviant” sexual
practices have gone in and out of fashion, they have also gone in and out of
psychiatric diagnosis suggesting that social norms implicitly dictate the
criteria associated with sexual disorders.55 Additionally, psychiatrists note
that any manifested dysfunction associated with S/M may come from the
social stigma surrounding the practice, akin to an internalized
homonegativity experienced by gay and lesbian individuals.56 The
48. Richard B. Krueger, The DSM Diagnostic Criteria for Sexual Masochism, AMERICAN
PSYCHIATRIC ASSOCIATION (2010) at *3, http://www.dsm5.org/Research/Documents/Krueger_
ASB%20Feb%202011.pdf. The older DSM included a per se diagnosis that association with S/M
alone was enough to be a mental disorder. Id.; Egan, supra note 18, at 1637; Moser and
Kleinplatz, supra note 29, at 57.
49. See Matt Haber, A Hush-Hush Topic No More, N.Y. TIMES, Feb. 27, 2013, available at
http://www.nytimes.com/2013/02/28/fashion/bondage-domination-and-kink-sex-communities-
step-into-view.html?pagewanted=all.
50. Pa, supra note 25, at 60; see Moser and Kleinplatz, supra note 29, at 56-59; see
NATIONAL COALITION FOR SEXUAL FREEDOM, Kinky is Not a Diagnosis (Feb. 16, 2010),
https://ncsfreedom.org/key-programs/dsm-v-revision-project/kinky-is-not-a-diagnosis.html.
51. Pa, supra note 25, at 60.
52. Moser & Kleinplatz, supra note 29, at 56; Pa, supra note 25, at 59-60.
53. Moser & Kleinplatz, supra note 29, at 56; Pa, supra note 25, at 59.
54. Moser and Kleinplatz, supra note 29, at 56.
55. Id.
56. Id. at 57.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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recommended “treatment” therefore is to validate these sexual preferences
rather than to suppress S/M desires altogether.57
Ultimately psychiatric research coupled with an increasing cultural
acceptance of S/M and experimentation with kinky sex58 suggests that
Lawrence should not be read too narrowly so as to exclude the possibility
that forceful sex can actually be consensual and mutually satisfying.59 In
addition, Lawrence explains the importance of respecting individual
autonomy under the Fourteenth Amendment and that “at the heart of liberty
is the right to define one’s own concept of existence.”60 Perhaps more
modern social interpretations of S/M will alter the way the law treats S/M
practitioners since many “demonstrate no more pathology than the general
public”61 and the ability to chose “one’s own concept of existence”62 as
espoused by Lawrence should include safe sadomasochistic practices.
Ultimately, individuals who practice S/M safely and consensually are
not very different than those participating in extremely violent athletics
including mixed martial arts or body alteration—the key distinction is the
latter group of activities enjoys the benefit of an exception to criminal
liability.63 While opponents of S/M certainly have a valid fear that de-
criminalization of S/M will create an easier defense for rapists and sexual
57. Id.
58. See Matt Haber, A Hush-Hush Topic No More, N.Y. TIMES, Feb. 27, 2013, http://
www.nytimes.com/2013/02/28/fashion/bondage-domination-and-kink-sex-communities-step-into-
view.html?pagewanted=all; NATIONAL COALITION FOR SEXUAL FREEDOM, 50 Shades PR: BDSM
50 Shades of Gray [sic] is a National Phenomenon (Mar. 4, 2012), https://ncsfreedom.org/
component/k2/item/693-50-shades-pr.html. Popular culture and media capture the growing
interest in S/M and bondage. The curiosity of S/M includes the proliferation of sex toys, high
fashion lines alluding to bondage and fetishism, S/M themed restaurants and hotels, films and
literature. More recently, the erotic novel entitled Fifty Shades of Grey which depicts S/M scenes
between two sophisticated young adults has become a cultural sensation introducing
dominant/submissive sex play into the bedrooms of people ordinarily unfamiliar with S/M; see
also Interview by The Cast of The View with E.L. James Author, Fifty Shades of Grey, N.Y.
(May 11, 2012), available at http://www.tressugar.com/EL-James-View-23063732 (featuring
interview with Fifty Shades of Grey author E.L. James and noting that she is responsible for many
revitalized marriages); for a discussion of these modern S/M trends, see Sisson, supra note 12, at
18, 21 & 29.
59. See Haber, supra note 58. Dr. Charley Ferrer, a clinical psychologist in Manhattan and
Staten Island and the author of “BDSM: The Naked Truth” notes that domestic violence is entirely
different than submission/dominance within BDSM. Id.
60. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 851 (1992)).
61. Egan, supra note 18, at 1637.
62. Lawrence, 539 U.S. at 574.
63. Assoc. Press, Connecticut Lifts Ban on Mixed Martial Arts Fights, NY TIMES (July 12,
2003), http://www.nytimes.com/2013/07/12/sports/connecticut-lifts-ban-on-fights.html?ref=
mixedmartialarts&_r=0.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
2013] 5 0 S HAD ES O F CO NS E N T 107
abusers, Lawrence does not eliminate prosecution against actual sex
offenders.64 Rather, Lawrence allows courts to protect private sexual
behavior that does not pose a real risk of violence, although it may be at
odds with societal norms. In other words, the essence of Lawrence as
applied to S/M is that certain sexual practices that some may consider
“abnormal” or “deviant” should not be criminalized per se.
In an effort to protect the abuse of a consent defense, expert testimony
could be used to educate the jury about S/M and how most S/M
practitioners engage in careful negotiation before sex.65 An expert could
also testify about the distinctive features of S/M that set it apart from
domestic violence. Domestic violence involves behavioral patterns aimed to
isolate the victim, and creates cycles of abuse and apologies.66 Unlike
domestic violence, however, S/M partners ask for and enjoy the behavior
and there is no apology for the behavior once it ends, both partners are
satisfied that it occurred.67
II. UNSHACKLING CRIMINAL LAW: CONSENT, TORT AND CONTRACT
THEORY
A. Consent & Tort Law
Redefining S/M as sex is only part of the solution. S/M—just like any
other arrangement between parties—can go awry. To balance the need for
sexual autonomy with the law’s need to protect the general public, a legal
framework of tort and contract law could be employed to determine
whether the alleged consent to certain conduct is in fact valid and/or
reasonable. This analytical scheme would ensure that privacy interests are
protected while simultaneously upholding public condemnation of
egregious and unilateral acts of violence.
In many ways tort law and criminal law are very similar since both
bodies of law seek to secure persons against harm or physical interference
and both have the purpose of establishing acceptable standards of conduct.68
The shared concern for public welfare is what unites tort law and criminal
64. See Lawrence, 539 U.S. at 578.
65. See discussion infra Part II.
66. Pa, supra note 25, at 87.
67. Id.
68. See KEETON ET AL., supra note 10, § 1, at 6-7; Susan Rose-Ackerman, Tort Law in the
Regulatory State, in TORT LAW AND THE PUBLIC INTEREST 80, 80-81 (Peter Schuck ed., 1991).3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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law.69 Unlike contract law, which governs parties who have elected to be in
a relationship, tort law governs individuals merely by virtue of their societal
membership, similar to criminal law. Even though tort law applies to
private actions between private parties with specific injuries and damages, it
emulates criminal law by espousing social policy goals by deterring
unreasonably risky conduct through shaping the behavior of individuals.70
Unlike criminal law, however, tort law adheres to the principle violenti
non fit injuria meaning: to one who is willing, no wrong is done.71 Thus,
under civil tort law, parties can use consent to negate the wrongfulness of
an alleged tort. Professor Keeton explains that, “[o]ne, of course, consents
to an invasion such as a sex contact if he or she wants or desires the
invasion. Consent avoids recovery simply because it destroys the
wrongfulness of the conduct as between consenting parties, however
harmful it might be to the interest of others, and even though it is perhaps
both immoral and criminal.”72 If this legal rationale were to apply to S/M,
an S/M participant charged with assault would have the option of
elucidating the facts and circumstances to the trier fact rather than that
person being strictly liable under the current legal regime that equates
sexual violence with criminality.
Again, the point of a consent defense is not that it would give a “get out
of jail free” card for any person who choses to assert that defense, but rather
it would be a way to ensure that a party is guaranteed his constitutional
right to a fair trial.73 As applied to S/M practitioners, the consent defense
would simply give the defendant the right to explain his or her side of the
story to the trier of fact. As tort cases illustrate, the issue of consent is a
matter of fact, and the trier of fact is able to consider all the evidence before
deciding whether there was valid consent. Moreover, a trier of fact can
determine that consent should not be a defense to certain conduct if there is
evidence that a party exceeded the scope of the actual consent given.74
B. Duty & Reasonableness
Both courts of law and S/M practitioners incorporate tort law principles
including duty, reasonableness, strict liability and assumption of risk into
their respective understandings and treatment of S/M. For instance,
69. See KEETON ET AL., supra note 10, § 1, at 6-7; Rose-Ackerman, supra note 68.
70. See KEETON ET AL., supra note 10, § 1, at 6-7; Rose-Ackerman, supra note 68.
71. See KEETON ET AL., supra note 10, § 18, at 112.
72. Id. at 113.
73. U.S. CONST. amend. VI; U.S. CONST. amend. XIV, § 1.
74. KEETON ET AL., supra note 10, § 18, at 118.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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practitioners recognize that sadists and masochists owe a duty of care to one
another and often have codes of conduct for their practices.75
In both tort and criminal law, the concept of “reasonableness” is
critical. The notion of “reasonableness” is a permanent fixture in tort law on
two levels. First, on an individual level, tort law assesses the reasonableness
of conduct between individuals and second, at a societal level, it
emphasizes the reasonableness of conduct as it applies to the public at
large.76
For instance, echoing the principles of both tort and criminal law, one
court noted that, “the public has an interest in the personal safety of its
citizens and is injured where the safety of any individual is threatened,
whether by himself or another.”77 In the criminal law context, however, at
least as it pertains to S/M cases, courts often project a biased assessment of
the “reasonableness” standard. For example, one court expressed its opinion
that, “a normal person in full possession of his or her mental faculties does
not freely consent to the use, upon himself, of force.”78 Clearly, this myopic
interpretation is problematic since it plainly ignores violent and
ultrahazardous activities. In other words, what makes violence unreasonable
in an S/M context would not necessarily be unreasonable in another socially
acceptable context like mixed martial arts or football.79
The inherently contradictory nature of S/M, urging safety and sanity80
on the part of participants, is a concept that many people, and indeed many
courts find difficult to accept. Specifically, the fact that a masochist
consents to and even derives pleasure from harm calls into question the
existence of an injury, yet the fact that is often overlooked is that
sadomasochists essentially tailor their personal notion of “reasonableness”
to fit their needs. For instance, S/M activists insist fellow practitioners to be
reasonable in their conduct in order to reduce injury, yet what a
sadomasochist considers “reasonable” sexual conduct often does not
comport with socially acceptable sexual practices.81
75. Sophia, Who Is in Charge in an SM Scene?, in SAFE, SANE, AND, CONSENSUAL:
CONTEMPORARY PERSPECTIVES ON SADOMASOCHISM 271, 274-275 (Darren Langdridge & Meg
Barker eds., 2007).
76. See State v. Brown, 364 A.2d 27, 28 (N.J. Super. Ct. Law Div. 1976).
77. Id.
78. People v. Samuels, 58 Cal. Rptr. 439, 447 (Ct. App. 1967).
79. See supra p.1 and text accompanying note 18.
80. See infra notes 84-87, 98 and accompanying text; see also Sophia, supra note 75, at 271.
81. See Pat Califia & Robin Sweeney, Safer-Sex Guidelines for Leatherdykes, in THE
SECOND COMING: A LEATHERDYKE READER, 351, 351 (Pat Califia & Robin Sweeney eds.,
1996).3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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While both courts of law and S/M practitioners espouse the principle
that “reasonableness” should govern interpersonal interactions, the implicit
standard of reasonableness that courts use in S/M cases only has room for
the court’s concept of what constitutes reasonable behavior. According to
one author writing about S/M, “the law limits women’s pursuit of pleasure
through pain, thus prescribing normative behaviors that can be paternalistic
and repressive. The current doctrine of consent assumes that no reasonable
woman would or should consent to sexual activity that involves violent
domination, just as it once assumed women had no right to play sports.”82
This assumption runs counter to the propositions set forth in Lawrence as
S/M practitioners are at the whim of decision maker’s constructions of
reasonableness.
One reason that the concept of “reasonableness’ varies between S/M
practitioners and the court is that the “reasonable person standard” does not
entail the consideration of a “reasonable sadomasochist.” According to
Professor Keeton, in tort law, the expected conduct from the reasonable
person “will vary with the situation with which he is confronted…. [H]e is
rather a personification of a community ideal of reasonable behavior,
determined by the jury’s social judgment.”83 Thus, the traits of this fictional
character include those of the actor whose conduct is being judged from an
S/M practitioner’s standpoint who can bring some degree of personalized
objectivity to an area that might be incomprehensible to an outsider.
Furthermore, safety and sanity are paramount to the reasonable S/M
practitioner who insists on exercising caution and informed consent prior to
an S/M activity. S/M activists Pat Califia and Robin Sweeney contend that
safe sex means being responsible for one’s conduct.84 While safety is a
matter of degree, there are basic imperatives that practitioners expect of
reasonable S/M participants including bringing one’s own sex toys to a sex
party and making sure to avoid inflicting unwanted injury on a partner.85
82. Cheryl Hanna, Sex is Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L.
Rev. 239, 270 (2001).
83. KEETON ET AL., supra note 10, § 32, at 175 (footnotes omitted). Keeton notes that this
fictitious character sometimes “is described as a reasonable person, or a person of ordinary
prudence, or a person of reasonable prudence, or some other blend of reason and caution. It is
evident that all such phrases are intended to mean very much the same thing. The actor is required
to do what such an ideal individual would be supposed to do in his place. A model of all proper
qualities, with only those human shortcomings and weaknesses which the community will tolerate
on the occasion, ‘this excellent but odious character stands like a monument in our Courts of
Justice, vainly appealing to his fellow-citizens to order their lives after his own example.’” Id. at
174 (footnotes omitted).
84. Califia & Sweeney, supra note 81, at 351.
85. See, e.g., Robin Sweeney, Sex Party Savoir Faire, in THE SECOND COMING: A
LEATHERDYKE READER 187, 189-91 (Pat Califia & Robin Sweeney eds., 1996); Pat Califia, A3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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Sanity too is crucial for a reasonable sadist so that he or she can make
informed decisions about activities to participate in.86 Ultimately then, it is
from a modified reasonable person standard that the principles of safety and
sanity87 are best communicated.
In sum, the legal system should adopt a looser framework to assess
S/M to provide for this flexible standard of reasonableness in an S/M
context. After all, the notion of a “reasonable person standard” necessarily
changes with the times, and in this post-Lawrence era, entails more of an
open mind than courts seem to afford to that “reasonable person.” If courts
were to broaden their analysis of reasonable conduct in accordance with the
modern social climate, courts, in theory, would be able to minimize the
possibility of excessive injury and exploitation as well as maintaining social
control of citizenry. While there is no guarantee that such a framework
would solve all problems, it is clear at this point that the current legal
regime does not even attempt the balancing act that Lawrence demands.
C. Contract Law
In addition to tort law, contract theory would be a viable legal device
for S/M analysis as many modern S/M practitioners enter into a contract
prior to an S/M scene to carefully delineate acceptable and prohibited acts.88
E L James’ book, Fifty Shades of Grey, highlights this negotiating practice
in a fictional setting,89 but importantly, it reflects changing social values
that criminal law is apparently ill-equipped to address.90 As such, to bridge
the gap between contract law and criminal law, the legal system must have
a modern understanding of what S/M entails.
House Divided: Violence in the Lesbian S/M Community, in THE SECOND COMING: A
LEATHERDYKE READER 264, 271-72 (Pat Califia & Robin Sweeney eds., 1996).
86. See Lisa Downing, Beyond Safety: Erotic Asphyxiation and the Limits of SM Discourse,
in SAFE, SANE, AND, CONSENSUAL: CONTEMPORARY PERSPECTIVES ON SADOMASOCHISM 119,
120 (Darren Langdridge & Meg Barker eds., 2007).
87. See id.
88. Lamar Van Dyke, Contracts and Contract Negotiating, in THE SECOND COMING: A
LEATHERDYKE READER 205, 208-19 (Pat Califia & Robin Sweeney eds., 1996).
89. EL James’ character, Christian Grey, “the Dominant,” requires his “Submissive,”
Anastasia, to sign an agreement before engaging in any S/M activity: “HARD LIMITS: No acts
involving fire play, no acts involving urination or defecation and the products thereof. No acts
involving needles, knives, piercing, or blood.” E L JAMES, FIFTY SHADES OF GREY 107 (2011).
90. Fifty Shades of Grey has cultivated a massive following and has become one of the
fastest-selling paperbacks of all time. Earlier in 1954, The Story of O, another erotic, S/M themed
novel gained a huge following as well. These cultural sensations reflect society’s growing interest
and acceptance with alternative sex practices; ultimately they suggest that notions of what
constitutes sex change over time.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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The main distinction between criminal law and contract law is that
contract theory protects private interests and criminal law preserves social
order. The policy behind contract law implicates notions of liberty and self-
determination that the Constitution recognizes in its Contract Clause.91
Thus, contract doctrine is a useful analytical device to appreciate the agency
of two consenting parties in an S/M arrangement.
More narrowly in the S/M context, contract law can be closely related
to criminal law with respect to mutual assent, consideration, interpretation
and breach as these principles set the foundation for whether a valid
agreement existed in the first place, and whether a party violated the
agreement. In other words, these concepts help determine whether the
participants to an S/M encounter truly agreed to the conduct that actually
took place, in the same way a showing of valid consent may preclude
criminal liability in a sexual assault case.
Yet, in the current legal regime governing S/M that finds it roots in
criminal law rather than contract law, courts are clear that evidence of
consent will not preclude criminal liability.92 Further, parties cannot
contract to commit acts that violate public policy considerations like
agreeing to commit serious crimes.93 However, a post-Lawrence
interpretation of sexual autonomy and liberty suggest that the practice of
S/M at least deserves to be examined through a contractual lens in order to
fully understand the parties’ rights at stake. Accordingly, supporters of S/M
frame their arguments under the policy of contractual freedom.94
Furthermore, various S/M advocate groups have formed over time such
as the Eulenspiegal Society and the Society of Janus—two of the largest
S/M organizations within the U.S.95 Within these groups is a consistent
community slogan: “safe, sane and consensual.”96 These organizations
insist on self-regulation within the community due to their lack of legal
recognition by establishing standards of conduct in accordance with the
credo “safe, sane and consensual”—with special emphasis on the
“consensual” element.97 The principles embedded in this slogan recommend
that S/M be practiced in such a manner: (1) to identify and prevent health
91. U.S. CONST. art. I, § 10, cl. 1.
92. See, e.g. MODEL PENAL CODE § 2.11(2) (Official Draft and Revised Comments 1985).
93. See, e.g. RESTATEMENT (SECOND) OF CONTRACTS § 178 (1979).
94. See Moser & Kleinplatz, supra note 29, at 35 (noting that contractual parties may,
themselves, have different views of what constitutes S/M, making “self-definition” of boundaries
crucial); Van Dyke, supra note 88, at 208-19 (discussing various S/M contract types and strategies
for contract negotiation).
95. Sisson, supra note 12, at 18.
96. Id. at 23.
97. Downing, supra note 86, at 120-127.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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risks (“safe”); (2) to engage in activities in a rational state of mind (“sane”);
and (3) to ensure that all the activities are agreed upon by the parties
involved (“consensual”).98 Within S/M discourse, advocates routinely
emphasize the “consensual” component and how mutuality of definition
and negotiation is extremely important for building trust in an S/M
relationship.99 Therefore, contract doctrine would be a particularly effective
framework for S/M analysis since the principles underlying contract law
would enable S/M practitioners to create a workable agreement, and the
enforceability of this agreement might be given more weight in light of
Lawrence. Ultimately, if contract law were to be included in the legal
analysis of S/M, the law would more effectively regulate the practice in
accordance with the values and regulations that S/M practitioners
themselves esteem.
D. Mutual Assent, Certainty of Terms & Consideration
As a starting point, S/M practitioners encourage a “meeting of the
minds” or mutual assent where both parties must intend to engage in S/M
activities and must agree on the main terms of the agreement.100 Califia
claims that an S/M relationship is successful when both parties negotiate
and reach a comfortable agreement.101 This contractual arrangement
incorporates the contract principles mutual assent and intent to be bound
whereby the top and bottom decide how they will “play,” what is likely to
occur and the duration of the scene.102 Another prominent S/M activist,
Lamar Van Dyke, also recognizes the importance in negotiating a scene
beforehand when she stresses that the parties bound to an agreement have
tremendous responsibility for a situation that should not be taken lightly.103
An S/M practitioner even noted that “the presence of violence enhances the
amount of trust we have for one another, and how important it is to trust
your partner that he will not hurt you more than what you’ve asked for.”104
98. Id.
99. Moser & Kleinplatz, supra note 29, at 38 (asserting that “SM is consensual by
definition . . . [T]he difference between SM and violence is consent”); Sophia, supra note 75, at
272 (“Negotiation, whether open or hidden, is the key to successful consensual BDSM.”).
100. See sources cited supra note 99; see also RESTATEMENT (SECOND) OF CONTRACTS § 17
(1979).
101. PAT CALIFIA, PUBLIC SEX: THE CULTURE OF RADICAL SEX 171 (2nd ed. 2000).
102. Id.
103. Van Dyke, supra note 88, at 211.
104. Interview with an Anonymous S/M practitioner in L.A., Cal. (Jan. 15, 2013); see Sophia,
supra note 75, at 272 (discussing the negotiated power exchange between S/M partners and how
an interaction will fluctuate based on the level of trust between the parties).3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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In contract law, the “certainty of terms” doctrine ensures that both
parties manifest their assent to a bargain in a way that is sufficiently definite
and certain in order to determine whether a breach exists.105 As applied to
S/M communities, this doctrine guides practitioners by reinforcing the
importance of defining the terms of the contract such that a breach will be
readily apparent when a partner strays from the terms within the agreement.
Specifically, the S/M community seriously frowns upon transgressions of
the limits that parties set in their agreement—this conduct resembles a
breach of contract.106 Thus, contractual negotiation within the S/M
community is of heightened importance as activists routinely encourage
practitioners to try to cover everything they [practitioners] are thinking
about, and not to make any assumptions, but to keep things clear.107
In addition to mutual assent and certainty of terms, a valid contract is
comprised of a bargained for exchange which requires mutuality of
obligation, also known as consideration.108 Within the S/M scheme,
consideration relates to the pain inflicted and simultaneous pleasure that is
derived from S/M acts. Pat Califia observes that, “S/M relationships are
usually egalitarian” and the shared pleasure results in intense sensations for
both parties.109 Furthermore, the consideration element distinguishes fair
and mutually satisfying S/M play from unwanted sex because when an act
resembles assault this conduct is no longer part of the bargained for
exchange.
Finally, S/M practitioners and advocates even recommend that parties
draft a written contract prior to engaging in an S/M scene so that the terms
of the agreement are spelled out.110 Activist Van Dyke even offers a
boilerplate form for a Thirty-Day Consensual Slave Contract that reads: “I,
________,do hereby willingly and consensually agree to serve as slave to
____________for a period of thirty days . . . I agree to turn my body, mind,
and spirit over to the Boss Lady to do with as she pleases.”111 Van Dyke
underscores the importance of having a written agreement based on her
personal experience. She notes,
When I began to put things in writing, it seemed to help clarify exactly
where I was at. When others found themselves engaging in dialogue prior
to signing a piece of paper, they took it more seriously . . . [w]e could both
105. See RESTATEMENT (SECOND) OF CONTRACTS § 33 (1979).
106. Moser & Kleinplatz, supra note 29, at 37-38; see also Sophia, supra note 75, at 273.
107. Van Dyke, supra note 88, at 208.
108. RESTATEMENT (SECOND) OF CONTRACTS § 71 (1979).
109. CALIFIA, supra note 101, at 172.
110. Van Dyke, supra note 88, at 214-15.
111. Id. at 215.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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refer to it when we needed to. There could be no mistaken intentions. Our
112
agreement was clear.
E. Tort and Contract Law applied to S/M Case Law
In 1980, the court found consent to battery immaterial in
Commonwealth v. Appleby,113 (hereinafter referred to as “Appleby”), an
S/M case where the defendant’s use of a riding crop was sufficient for
purposes of finding the use of a dangerous weapon.114 The court stated that
the law need not wait until the instrument actually does cause serious bodily
injury, and that any touching with a potentially dangerous weapon can
satisfy assault and battery by means of a dangerous weapon under
Massachusetts criminal statutes.115 However, had the case been analyzed
under the umbrella of tort and contract law, the defendant’s consent
argument might at least have mitigated his liability under the backdrop of
Lawrence where sexual freedom and privacy is conferred to consenting
adults. In Appleby, the complaining witness and his testimony that the
“[defendant] was going a little over what [the witness] was used to”116
would still be a valid defense that the defendant either exceeded consent,
breached his duty of care or went outside the terms of the agreement.
The Supreme Court of Massachusetts in Appleby even recognized the
disproportionately extreme sentence Appleby received of 8 to 10 years since
no physical injury resulted and the assault consisted of a riding crop blow
that just barely connected with the witness’ back.117 The court noted: “[W]e
express some reservation on the severity of the sentence imposed for the
particular assault and battery on August 31, 1976, as established by the jury
verdict . . . [but] that subject is not open to review by this tribunal.”118
Additionally, the concurrence recognized this concern too by stating that
since the injury was very minor the sentence was likely influenced by
“certain related circumstances which are abhorrent to most persons.”119
The tacit recognition of consent in Appleby suggests that courts are
aware that a strict criminal law analysis has deficiencies. For instance,
People v. Samuels was the first case to hold that a victim’s consent to S/M
112. Id. at 208.
113. Commonwealth v. Appleby, 402 N.E.2d 1051, 1060-61 (Mass. 1980).
114. Id. at 1058. The court noted that “the riding crop never caused ‘welts,’ but only
‘redness,’ in fact none of the beatings caused more than ‘redness.’” Id. at 1056.
115. Id. at 1058.
116. Id. at 1054.
117. Id.
118. Id. at 1061
119. Id. at 1062.3.MEEPOS.ARTICLE.MACRO (DO NOT DELETE) 3/7/2014 1:30 PM
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is not a valid defense to assault.120 The defendant in this case made violent
sadomasochistic themed movies, and contended that the alleged victim
consented since he was merely acting for the role.121 Hypothetically under
tort theory, the analysis could have shifted to allow for an assumption of
risk defense. In this case, law enforcement officers were unable to locate the
complainant but in his absence the court nonetheless reasoned that “[i]t is a
matter of common knowledge that a normal person in full possession of his
mental faculties does not freely consent to the use, upon himself, of force
likely to produce great bodily injury.”122 Again, this notion fails to account
for ultrahazardous activities that fall within the protective scope of the
assumption of risk doctrine. Ultimately, the court restricted an assumption
of risk approach by looking at the public policy underlying this defense:
that assumption of risk cannot go so far as to defeat the fundamental
purpose of statutes enacted for the actor’s benefit.123
In State v. Collier, the court evaluated the “reasonableness” of S/M
itself and ultimately confined its reasoning to pre-Lawrence assumptions
about morality.124 The court balanced the social utility of S/M with the
likelihood of harm and found that “[w]hatever rights the defendant may
enjoy regarding private sexual activity, when such activity results in the
whipping or beating of another resulting in bodily injury, such rights are
outweighed by the State’s interest in protecting its citizens’ health, safety,
and moral welfare.”125 This superficial negligence analysis reveals that
courts tend to exaggerate the seriousness of factors “in order to condemn an
unwanted activity.”126 Thus, the court here seemed to tailor its evaluation of
reasonableness to preserve community values threatened by S/M conduct.
The court noted that, “to allow an otherwise criminal act to go unpunished
because of a victim’s consent would not only threaten the security of
120. People v. Samuels, 58 Cal. Rptr. 439, 447 (Ct. App. 1967).
121. Id. at 443-47.
122. Id. at 447.
123. The Samuels court reasoned that “[e]ven if it be assumed that the victim in the ‘vertical’
film did in fact suffer from some mental aberration which compelled him to submit to a beating
which was so severe as to constitute an aggravated assault, defendant’s conduct in inflicting that
beating was no less violative of a penal statute obviously designed to prohibit one human being
from severely or mortally injuring another.” Id. Again, this argument improperly suggests that
S/M practitioners not only have “mental aberrations” but that the presence of violence during sex
can be nothing more than assault.
124. State v. Collier, 372 N.W.2d 303, 307 (Iowa Ct. App. 1985).
125. Id. at 307 (“[I]t is obvious to this court that the legislature did not intend the term to
include an activity which has been repeatedly disapproved by other jurisdictions and considered to
be in conflict with the general moral principles of our society.”).
126. Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 GEO.
WASH. L. REV. 165, 179 (2007).You can also read
