Date01 April 2004
Published date01 April 2004
AuthorSusan R Schmeiser
Susan R. Schmeiser
Under Anglo-American law, the consent of the masochist furnishes no
defense to a charge of assault arising fromsadomasochistic sexual practices.
Our unwillingness to recognize consent in this context suggests disquiet with
the ways in which S/M reflects the operations of law. Although the case law
casts the masochist as a victim, other accounts represent masochism as a
forceful enactment of submission. Masochism also challenges certain ideals
of masculinity central to legal reason. Misgivings about the legitimacy of
consent to S/M find a useful analogy in critiques of psychoanalytic treatment
that understand consent in that context as irreducibly fraught.
What law not simply an exterior limit or subjection, but equally an interior
emotional structure which will bind the subject through fear and through love, through
fascination and through fealty, to the theatre of justice and truth.
–Introduction: Psychoanalysis and Law (Goodrich, 1997).
Some people have to be tied up to be free...
–James, participant in S/M community (Apostolides, 1999).
In his widely cited article “Violence and the Word,” legal theorist Robert Cover
(1986) describes the process by which violence undergirds legal authority.To say,
as Cover does, that “[l]egal interpretation takes place on a field of pain and death,”
Studies in Law, Politics, and Society
Studies in Law, Politics, and Society,Volume 32, 3–38
© 2004 Published by Elsevier Ltd.
ISSN: 1059-4337/doi:10.1016/S1059-4337(03)32001-0
(p. 1601) to point to the “unseverable connection between legal interpretation and
violence” (p. 1610), is not necessarily to lament that fact. Indeed, Cover argues
that the law’s violence is an occasion for a certain relief: better that violence be
partly contained within law than that it be always elsewhere. “As long as death and
pain are part of our political world, it is essential that they be at the center of law”
(Cover, 1986, p. 1628). Hence the violence with which law’s interpreters must
enforce their edicts, the coercion and domination brought to bear on those who
transgress the social contract, emerges as the inevitable, if sometimes distressing,
predicate of a civilized society. As a system of collective decisionmaking and
individual adjudication within shared values and understandings, law provides,
for Cover, a forum for “the domesticating of violence” (p. 1628). But what about
forms of violence that resist domestication?
One such form might be sadomasochism, the consent to which receives no
recognition under Anglo-American law. In several cases decided over the past
three decades, British and American courts have treated sadomasochistic practices
as illegal violence against the masochist regardless of his professed consent.
What might we make of the legal treatment of erotic force – which I distinguish
emphatically from sexual and other forms of abuse – under Cover’s framework,
which understands violence as integral to law’s rational interpretation and
application? Why does consent seem so illusory to courts in this context? In the
discussion that follows, I attempt to complicate Cover’s account and to provide a
more nuanced understanding of the juridical subject’s fraught relationship to legal
authority. While critics have produced incisive analyses of the ways in which the
jurisprudence of sexuality troubles legal categories such as public and private and
status and conduct,1they have largely neglected sadomasochism as a site where
legal subjects negotiate the intersections between and among law, power, reason,
and violence.2In addition to considering these issues, though, I shall also propose
an analogy between the function of consent in the sadomasochistic context – its
juridical illegibility and the legal trepidation to which its suggestion gives rise –
and its function in a seemingly quite different context: that of psychoanalysis.
In a footnote to his article, the buried and unremarked status of which belies
its significance, Cover alludes to a link between violence and eroticism that
would seem to threaten his faith in the rational, deliberative capacity of law to
domesticate violence. Over the course of his discussion, Cover seeks to explain
both how law’s violence differs from extralegal violence and how legal interpre-
tation has come to “depend[] upon the social practice of violence for its efficacy”
(p. 1613). Having just established that considerations emanating from cultural,
moral, psychological, and evolutionary forces usually inhibit our infliction of pain
on others (considerations potentially overridden within hierarchies of authority,
as suggested by the infamous Milgram experiment to which Cover alludes),
Forces of Consent 5
Cover then qualifies this general statement with the observation that “[t]here are
some deviant individuals whose behavior is inconsistent with such inhibitions”
(p. 1613). Indeed, the existence of such “deviant individuals” whose inhibitions
against violence fail is, for Cover, precisely what makes law necessary.
Rather than elaborate on this exception to his general rule in the body of his
argument, though, he drops a footnote invoking “persons whose behavior is both
violent toward others and apparently reckless in disregard of violent consequences
to themselves,” behavior that is “frequently accompanied by a strange lack of
affect” (p. 1613, Note 29). He then refers his reader to select psychiatric literature
onaffectlessviolence.Immediatelyfollowingthis allusion to “deviant individuals”
in the text, he declares that “almost all people are fascinated and attracted by
violence, even though they are at the same time repelled by it” (p. 1613). In the
note that purports to explain this claim, Cover cites a book called Patternsof Sexual
Behaviorthatdescribes,in his summary, “varyingculturalresponsesto linking pain
andsexuality”(p.1613, Note 30). Following this citation, he remarks off-handedly:
“Whetherthereis a deeper sado-masochistic attraction topainorviolence involving
more serious forms of imposition or suffering of pain that is similarly universal
is a matter of dispute” (p. 1613, Note 30). Where the former example of violence
derives its strangeness from the participants’ lack of affect, then, the latter is
noteworthy specifically because of its origins in “attraction” or sexuality.
If it seems a bit odd that an ongoing “dispute” about the universality of “a deeper
sadomasochistic attraction to pain” and its imposition should have no bearing on a
discussion of law’s inherent and necessary violence and the deliberative capacity
that domesticates it, I would argue that Cover’sdisengagement reflects an aporia at
the heart of his argument. These notes, taken together,seem to represent the specter
of irrationality in Cover’sargument. By “irrationality,” I mean forces ranging from
desire to psychosis that potentially erode the deliberative capacity required for acts
of judicial interpretation – acts whose complicity with corporeal violence Cover so
eloquently describes. Footnotes 29 and 30 follow Cover’ssole admission in the text
of his article that the violence of legal interpretation may not be entirely extricable
from acts of violence that do not, as does the former, subtend social order, and
that are not authorized by the originary violence of the social contract. Cover first
concedes the existence of “deviant individuals” (whose violent acts indeed make
law necessary), and then universalizes this deviance to “almost all people” who
share an attraction to violence and may only be deterred from engaging in it by
a simultaneous repulsion. Rather than explore the possible ramifications for this
less-than-deliberativerelationship to violence, however, Coverconsignsittoacou-
ple of footnotes, to medical texts (the DSM-III, etc.) and anthropological accounts
of sexual deviance. In relegating such examples of violence to footnotes, Cover
suggests that these are somehow different from the acts of violence with which his

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