Morality-based legislation is alive and well: why the law permits consent to body modification but not sadomasochistic sex.

• Author: Egan, Kelly

1. INTRODUCTION

   In 1993 the U.K. House of Lords held that consent of the participants was no defense to charges of assault arising from consensual sadomasochistic (SM) sex, even though the participants sustained no serious, permanent injuries and testified that the activities had been consensual. (1) This case fueled the debate about whether a defense of consent should be available to defendants when charges of assault arise out of consensual SM activity. The Supreme Court's recent holding in Lawrence v. Texas, that morality alone is not a sufficient justification to infringe on an individual's right to privacy, (2) adds a new wrinkle to the analysis. While commentators and statutes are split on the issue, no comparable American case has yet risen to the appellate level.

   This Comment will explore the reasoning behind prohibiting a consent defense in SM, while making exceptions for other "assaultative" activities such as body modifications. (3) This Comment will argue that for reasons of personal autonomy and privacy, a consent defense should be permitted in cases of consensual SM sex, as long as serious bodily injury is not sustained. Parts If, III, and IV will provide background information about the nature of SM sex and the concepts of legal consent. Part V will review existing cases that discuss consent to SM sex. The rationale for permitting consent to body modifications will be compared to the rationale for forbidding consent to sadomasochistic sex in Part VI. The Comment will close with a proposed framework for permitting legal consent to SM sex while maintaining practical limits on this consent.

2. DYNAMICS OF SM SEX

   1. What Is SM Sex?

      It is not always clear exactly what constitutes SM sex. The line between SM and "normal" sex is fuzzy, and many people who would not identify themselves as sadomasochists enjoy sexual acts that involve some level of pain. (4) "'[T]here's an element of domination or submission or pain involved in almost any sexual interaction. What sadomasochism does is take these elements of eroticism further toward their extreme.'" (5) There are many definitions of SM, none completely comprehensive. One SM practitioner has defined SM as "the knowing use of psychological dominance and submission, and/or physical bondage, and/or pain, and/or related practices in a safe, legal, consensual manner in order for the participants to experience erotic arousal and/or personal growth." (6) Another definition emphasizes that the ultimate goal of SM is not the infliction of pain, but control:

      [S]adomasochism involves a highly unbalanced power relationship established through role-playing, bondage, and/or the infliction of pain. The essential component is not the pain or bondage itself, but rather the knowledge that one person has complete control over the other, deciding what that person will hear, do, taste, touch, smell, and feel. (7) While there is no "typical" SM interaction, frequently one participant will take on the role of the sadist or dominant (hereinafter "dominant"), who inflicts pain and/or exerts control, and another participant will act as the masochist or submissive (hereinafter "submissive"), who receives pain and/or is controlled. Some individuals will "switch" roles, while others identify themselves solely as dominant or submissive,s An SM encounter may involve a wide range of activities, including bondage, domination, flogging/whipping, humiliation, clamping, piercing, cutting, and "breath control play." (9) The majority of SM participants also engage in non-SM sex. (10)

   2. SM and Consent

      Consent is a cornerstone of SM; "Safe, Sane, and Consensual" is a popular phrase in the SM community. (11) Participants usually negotiate ahead of time what activities will be permitted, what activities are off limits, who will fill what role, and how long the scene will last. (12) Frequently a "silent alarm" or "safeword" is used. (13) A silent alarm involves telling a trusted person where and with whom the participant will be "playing." (14) A time is arranged to contact this person to let him or her know all is well, and if no contact is made within the designated time period, the contact person is to call the police. (15) A "safeword" is an agreed upon word that the submissive would not be likely to spontaneously utter during the scene, which tells the dominant to slow down or stop the activity. (16) Ironically, the use of a safe word puts the ultimate control of the scene in the hands of the submissive. (17) A safe word gives the submissive a way to revoke his or her consent. In non-SM sex, this could be accomplished in many ways, including simply saying "stop." Because the control dynamic in SM may make it desirable for the submissive to be able to say words such as "stop" and "no" as part of his or her role within the scene, it is vital that an alternative means of revoking consent is employed.

      In contrast, the negotiation of consent in non-SM sex frequently does not occur in advance, but proceeds in stages during the sexual encounter with one person "advancing" interaction to another level, and assuming that lack of resistance indicates consent. (18) The means to revoke consent are generally not agreed upon in advance. In response to the growing problem of acquaintance rape on campus, Antioch College students designed a procedure for verbally obtaining consent in advance for each new level of sexual interaction. (19) The procedure was generally mocked and criticized for being unrealistic and unnatural. (20) The "traditional" method of negotiating consent, however, often leads to miscommunication. (21) In one study of how women communicate consent and non-consent to sexual intercourse, 91% of men and women surveyed had had an experience where "[t]he [m]an was [s]urprised [w]hen the [w]oman [b]ecame [a]ngry or [u]pset or [t]ried to [r]esist [h]im in a [p]hysical or [v]erbal [w]ay." (22) For approximately 50% of those surveyed, this experience occurred when the man tried to initiate intercourse. (23)

      The potential legal relevance of the differences between the methods of communicating consent to SM sex versus non-SM sex will become clearer when reading the next section.

3. CONCEPTS OF CONSENT

   As background to the analysis of a consent defense in the context of SM sex, it is useful to review the concepts of legal and factual consent. (24) There are circumstances in which behavior that looks like consent will not be accepted as consent for legal purposes. The theories of consent also provide insight as to why consent is important, what goals are served by requiring consent, and the relation of consent to personal autonomy.

   1. Factual Versus Legal Consent

      When laypeople talk about consent, they are likely referring to factual consent. When an individual (hereinafter "S" for subject) agrees to something subjectively in his or her mind, or expresses agreement in an objective way, S can be said to have given factual consent. (25) Factual consent constitutes legal consent when it is given under circumstances that would provide a "complete or partial criminal defense[]" to another individual (hereinafter "A" for actor) having done some act to S. (26) Legal consent may be "imputed" to S in certain situations through the creation of legal fictions, even when S has not actually expressed consent. (27) "'[C]onstructive consent,' 'informed consent,' and 'hypothetical consent,'" are forms of imputed consent. (28) When an assumption is made that S consents to one act, because S consented to another, different act, S is said to have constructively consented to the act in question. (29) When S is informed of the risks associated with consenting to an act, and proceeds aware of the risks, S is deemed to have given informed consent to the risk if it in fact occurs. (30) When it is believed that S would consent to some act were S competent to do so, S is presumed to have hypothetically consented to that act. (31)

   2. Legally Defective Consent

      Consent is legally defective when it is obtained under circumstances that render it insufficient to form a criminal defense to the act in question. (32) The primary defects in consent that will be discussed here are coercion, deception, and incompetence.

      Consent is coerced when it is given in response to a persuasive offer or threat, and therefore cannot be said to be truly voluntary. (33) A "coercive threat" involves an implicit or explicit threat of a result that would leave S worse off than before. (34) Consent obtained by coercive threat is generally not legally sufficient when it is reasonable for S to consent rather than suffer the consequences, or when it would not be reasonable for S to consent, but it is "seriously wrong for A to proceed in the face of [S's] unreasonable behavior." (35) A "coercive offer" is a proposition used to bargain for consent that, while possibly immoral, will not leave S worse off than before if S does not accept the offer. (36) Consent obtained through a coercive offer is usually legally sufficient, unless the offeror deliberately placed S in a disadvantageous situation with the intent to make the coercive offer within that situation, or the offeror has an independent duty to perform the act being used as a bargaining chip. (37)

      Consent obtained by deception may or may not be legally sufficient, depending on the nature of the deception. (38) The law typically distinguishes between "fraud in the factum" and "fraud in the inducement." (39) Fraud in the factum refers to the deception of S as to the nature of the act that is done. (40) Fraud in the inducement occurs when S is deceived as to the purpose of the act, the identity of A, or the characteristics of A. (41) Consent induced by fraud in the factum is generally not legally sufficient, because the act that was done is not the act for which consent was given. (42) Since fraud in the inducement deceives only with respect to collateral issues, and the act consented to is the act...