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Debate: Legalization of sado-masochism

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Should sado-masochism be legalised?

Background and context

Sado-masochism can be defined as the consensual infliction of physical pain for the purposes of sexual gratification. The practice has received sensational media coverage following the separate deaths of the rock star Michael Hutchence and a Conservative Member of Parliament, whilst reputedly engaged in sado-masochistic practices.However, sado-masochism should not be regarded as the sole preserve of the perverted. Recent commercial films such as David Cronenburg’s Crash, David Lynch’s Blue Velvet, and Quills, a biopic of the Marquis De Sade, have devoted artistic attention to the practice. The popularity of fetishistic clothing amongst certain pop music performers and nightclub clientele, indicate that sado-masochism might have mass-market credibility, if not participation.Thus this debate raises the question of whether popular toleration of a practice should make it a legal one. The legality of the practice was considered by the highest judicial authority in the United Kingdom, the Judicial Committee of the House of Lords, in the case of R. v. Brown. By the narrowest possible majority it was held that a participant in sado-masochism could not legally consent to the commission of any injuries.The core of this debate concerns the moral arguments for individual liberty, privacy, and social protection. In order to avoid an arid technical dispute, it is suggested that the proposition model concern the legalisation of sado-masochistic acts between consenting adults which do not lead to permanent injury or disablement.[1]

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Individual freedoms: Does the individual have the right to subject their own body to injury?

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Yes

Control of one’s own body is the most fundamental of human rights: No government should be permitted to define how its citizens can express themselves. The distinction between the permissible and the impermissible should be drawn at the line of consent. This is not a novel distinction. Your property cannot be stolen from you if you agree to give it away. You have no legal remedy if your property is damaged by another with your consent, or if you damage it yourself.Why should there be a moral difference when this property is flesh and blood? Paternalism only protects those who do not want to be protected.[2]

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No

Every government has a duty to protect the moral and physical health of all its citizens, even from themselves in some circumstances: Firstly, the defining characteristic of sado-masochism is that it does harm to others. The activity has a victim. It is not a simple question of one individual being permitted to harm himself.Secondly, the fact of the victim’s consent is immaterial. The use of seatbelts is mandatory because citizens should not be allowed to risk their bodies for such a nugatory freedom. Citizens are allowed to lose or jeopardise their material assets through foolishness, since the assets are replaceable, or at least not critical to survival. Paternalism exists to protect people from themselves.[3]

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State consistency: Are there examples of lawful practices that involve intentional harm to oneself and another?

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Yes

A prohibition of sado-masochism is simply inconsistent with the liberty that governments already permit their citizens to injure each other and themselves. When people are entitled to risk pain, serious injury, or even death in sporting activity, why should they not also be permitted to suffer some discomfort in consensual sexual activity ?The same piercing of flesh which attracts criminal liability in a fetishistic context can be performed legally in a chemist’s shop or tattooist’s parlour.The distinction between the rugby scrum, the bungee tower and the bedroom is an arbitrary one.[4]

Counter that boxing is a primary example of an activity that involves the direct, intentional harm to one's self and other individuals, and which is legal: As such, how can sadomasochism be banned without being seen as arbitrary.[5]


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No

The crucial distinction between dangerous sports and sado-masochism is that sporting injuries are suffered accidentally and occasionally. Sado-masochistic wounds are inflicted deliberately as the very object of the activity.The piercing of flesh for the purpose of adornment ought to be relatively hygienic, free of pain, and not for the purpose of gratification.The intention that is the crux of sado-masochism, the desire to inflict or suffer pain, is immoral. As Lord Lloyd noted in R. v. Brown : “The infliction of pain for the purposes of pleasure is an evil thing”. It does not take a great feat of Aristotelian philosophy to realise that the pain receptors act as a warning system to prevent the infliction of injury.[6]

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Harm and risks: Is Sado-masochism free of serious bodily harm and risks? Need it be?

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Yes

Sado-masochism need not be rendered completely free of risk, as long as the risks are understood by the consenting parties: It is sufficient that each participant is aware of the hazards and consents to them.No law prohibits people from refusing to wear a condom during sexual intercourse, notwithstanding the peril of infection.Moreover, no government can legislate for the most reckless of its citizens. If an individual is so disturbed to place a plastic bag over his head for the purpose of sexual stimulation, the contrary opinion of the law will not be a great deterrent.[7]

Sado-masochism can be rendered relatively free of physical risk for its participants. ‘Safe words’ can be agreed in advance and announced to end immediately the activity in question. This simple device ensures that both individuals give their continuing consent to every encounter.[8]

Sado-masochism is already practised without a significant degree of complaint. Even the case of R v. Brown was not prosecuted at the behest of any ‘victim’ of the activity. The police and judicial authorities should not devote resources to acts that enjoy the consent of the participants and occur in private.The majority of society might not condone sado-masochism. However, the activity has no direct effect upon them. Toleration of the lifestyles of a minority is characteristic of a caring society.[9]

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No

Sado-masochism is dangerous: The consequence of the infliction of injury is commonly bleeding. There is a significant risk of infection, in particular from the lethal HIV virus.Individuals have already been reported as having died from engaging in the activity of ‘auto-erotic asphyxiation’. Should a government draft a detailed code of those activities which are permitted and those which are prohibited ? Or would it not be better to adhere to a simple ban that protects every citizen ?[10]

Safe words are ludicrously impractical: Their utility is dependent upon their actually being agreed and committed to memory in advance ; and their declaration being heeded by the actors in the heat of sexual activity. The passive ‘victim’ might be subject to the physical constraints, characteristic of bondage, that make speech or even flight impossible.It might be difficult to distinguish between an injunction to cease and an exclamation of pain, which presumably is a relatively regular occurrence.[11]

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The law and ambiguity: Would the legalization of sado-masochism be enforceable and appropriate in the broader context of law enforcement?

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Yes

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No

Legalization of sado-masochism holds a number of risks to the application of the law: Even the most liberal government would protect its citizens by prohibiting activities that lead to death or serious injury.Yet, each participant will need to predict the exact physical consequence of every action. Moreover, every police investigation, into even the most minor sado-masochistic injuries, would require a torturous inquiry into the extent of each victim’s consent. The difficulty of proving that a victim of rape did not consent to sexual intercourse is well documented. How much greater the difficulty of establishing that a victim of sado-masochism did consent, but only to a certain degree of injury ? Thus there are two equally unappealing scenarios: Either, participants being convicted of heinous crimes on account of sheer accident or misfortune, or, victims being injured and having no recourse to the law.[12]

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