Criminalizing SM: Disavowing the Erotic, Instantiating Violence

In England it was held under R v Brown and subsequent sadomasochistic (SM) cases such as R v Emmet that injuries, including those inflicted during sadomasochistic sex, amounting to or more serious than actual bodily harm cannot be justified by consent. This chapter presents some thoughts on the regulation of SM. It explores the criminalization of SM by examining the ways in which the debate appears to be plagued by a series of problematic and challenging dichotomies (for example, harm/consent, sex/violence, public/private). Questions about the criminalization of SM are deeply embedded within the framework of opposing dichotomies, furthering the tensions that arise when the views of those engaging in a practice that they see as non-criminal come into conflict with those of the state, which labels their acts as criminal offences. Problematizing the binary nature of this conversation implicates the very structure of the criminal law — is consent part of the offence definition or is it a defence to sado-masochistic sex? The chapter brings feminist and queer critiques to bear upon the criminalization of SM, so that the criminal law might acknowledge the ways in which sexual behaviours and desire defy neat binary categorization. In so doing, it aims to problematize the offence/defence distinction, while promoting respect for and protection of bodily integrity and sexual intimacy within the criminal law.