Sexuality Assignment PDF

 

22167 SEXUALITY, GENDER AND THE LAW

STUDENT ID: 201604269

Title

Pages

1. 

Introduction

2

2. 

History and Culture of BDSM

2

3. 

Important Facts of BDSM

3

4. 

Legal perspective of BDSM and the informed consent

5

5. 

Public Interest

8

6. 

Human Rights

10

7. 

The Recent Law

12

8. 

Conclusion

15

9. 

Bibliography

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22167 SEXUALITY, GENDER AND THE LAW

STUDENT ID: 201604269

Word Count: 5292 Introduction:

There is a child’s game called ‘Trust Me’, a person stands in front of another and falls backward, by trusting that the person behind will catch them before crashing to the floor. This game involve the component of danger, the risk of getting hurt if the person are not getting caught. The person falling places a great trust on the person who catch him or her. When the falling player believes the catcher sufficient to let go completely, and the catch take place as planned, both of the players will experience an exhilaration moment that is hard to duplicate any other way. This game is similar with BDSM. This is an abusive lifestyle which including chains, whips and torture. When trust trump over the possibility of harm, BDSM can provide a result of feeling incredibly intimate and erotic. 1  History and Culture of BDSM:

Figure 1: Combination of the terms of BDSM BDSM can be said as an abbreviation of the combination of the terms t erms Bondage and Discipline (B/D), Dominance and submission (D/S) and Sadism and Masochism (S/M). 2 In 18th  century, a French aristocrat and philosopher, the Marquis de Sade, was well recognised because of “his shocking, libertine sexual politics and personal lifestyle.”3 Marquis took part in discourse of philosopher ph ilosopher around the sexual behaviour, his philosophy, sexual practices and erotic writing were known to merge the prurient with some violent. His deeds and words has been considered as crime and blasphemy in opposed to Catholic Church, he would be locked or imprisoned for 32 years of his life in an insane asylum. The words of “sadism” and “sadist” were came from his name, Sade. Though Sade.  Though the eponymous adscription of this term goes to Marquis, it was applied by Freud and the 20 th century psychoanalysts. The consolidation between sex and violent practices did not originate with the infamous

1

 'A Loving Introduction To BDSM' ( Psychology Today , 2017) accessed 17 April 2017. 2

(En.wikipedia.org , 2017) accessed 17 April 2017.  'BDSM History' [2012] BDSM: History, Culture, and Awareness accessed 17 April 2017.

3 'BDSM'

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22167 SEXUALITY, GENDER AND THE LAW

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Marquis. Many things regarding S/M emerge in historical research in medieval period, though it is doubtful these things arose even there. 4  Now, BDSM has been used as a catch-all-phrase which covering a broad of behaviour. It’s characterized mainly by restrain and bondage play. Nevertheless, the subcultures of BDSM have come to embrace various irregular sexual practices. These practices including extreme body modifiers, rubber enthusiasts and animal players (not necessarily furries). But, although BDSM including all this, the most common one remains dominance and submission.5  Important Facts of BDSM:

On the other hand, the important fact about BDSM is, it does not always involve sex, but it can be. Normally, when talk about BDSM, majority of people will think that it is the most challenging, richest, scary-vulnerably and demanding, when it is combined with a loving, romantic sexy relationship.6 In fact, a professional dominatrix NEVER have sex with her client. Isn’t it sound crazy? The crazy? The thing is, BDSM is not constantly related with erections and orgasms. It's more similar to a meditation or therapy. It's a place to probe boundaries, fantasy, and emotions. Yet, it is very erotic. An example can be used is, a massage. Sometimes, a massage, no matter how sensual it feels, it is merely a massage. For most of the persons, a rubdown is pretty much always leads to sex. This is alike with BDSM, it is a matter of personal and sexual preference.7  "On a level in physiology, the fear and danger elements get the adrenal glands going, flooding the system of a person with epinephrine, followed by endorphins. These are the natural painkillers of the body and they model opioids op ioids in how they make people ffeel, eel, giving people feelings of relaxation, calm and well-being." 8Sandra LaMorgese Ph.D, an expert in bridging the gap between a lifestyle and sexuality which concern on holistic health of the spirit, body and mind held that, "Majority of the clients sai said, d, when a session is over, they feel a sense of a warm or euphoria, ecstatic glow. On a Psychologically respect, this kind of activity can be very healing too. Normally subs have gone through life harbouring sexual

4

 'BDSM History' [2012] BDSM: History, Culture, and Awareness accessed 17 April 2017. 5  'Cite A Website - Cite This For Me' (Observationdeck.kinja.com , 2017) accessed 18 April 2017. 6  'BDSM Does Not Equal Sex Does Not Equal Love (Automatically)' ( Dominantguide.com, 2017) accessed 19 April 2017. 7 (2017) accessed 8

19 'What April 2017.  Gigi Engle, Is BDSM And Why Are People So Into It?' (POPSUGAR Love & Sex , 2017) accessed 19 April 2017.

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22167 SEXUALITY, GENDER AND THE LAW

STUDENT ID: 201604269

desires that they feel very shameful, but practicing BDSM provides them a free space to explore their fantasies without the fear of shame and judgement."9  Owing to the facts that BDSM is not always about intercourse, a person is not necessarily to say that he or she “hooked up” or “had sex” with someone after an experience of BDSM. Rather, these are called scenes, for example, a person scene with another or the person had a scene. An expert in sex, Gloria Brame, Ph.D, author of the Different Loving said that, "It's an evolution from a time where, if you did S/M, you might only do it with a professional for an hour, or you might just see it performed at a BDSM club.” "Now people have much more organic relationships, but they still call it a scene — the time when we bring out the toys or get into that headspace."10 

9

 'Dominatrix Explains How 'BDSM Can Be A Form Of Meditation' (The Huffington Post , 2017) accessed 19 April 2017. 10

 '25 Facts About BDSM That You Won't Learn In 'Fifty Shades Of Grey' G rey' ( BuzzFeed , 2017) accessed 19 April 2017.

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22167 SEXUALITY, GENDER AND THE LAW

STUDENT ID: 201604269

Legal perspective of BDSM and the informed consent:

There is an article published last year, entitled “Love Hurts: Sadomasochism’s Sadomasochism’s Dangers”, which Dangers”,  which discussed about an old man who have lost consciousness in a sex club and have been sent to the emergency room. He has involved himself in a S/M scene by hanging him arm from a cross. The harm which caused to him during this practice was so serious that it took him several days to regain his consciences. This article even discuss about how fortunate the man is to be alive, and continue by talking regarding the more unlucky persons who have died during BDSM practices. Unsurprisingly, the primar primary y message of this article is, is, it seems that people shouldn’t get into dangerous sex. 11  Therefore, the public started to aware that the danger and risk of BDSM practice cannot be ignored. This issue also has been discussed in UK. Of course, UK courts owe a duty to safeguard and uphold UK’s value. But, does this duty du ty including BDSM which engaging by the consenting adults? In the aspect of consensual sex, the purpose of sexual satisfaction usually did not leave the permanent mark on the person who engaging in it. Yet, in kinkier, informed consent of sex or sexual satisfaction is obtain from the acts that occupied part of the law which is in grey area, one concerning to consent to bodily harm. 12 This is obviously similar with BDSM. Under English law, the S/M or BDSM practices are deemed to be a crime and the person engaged in these bear the criminal liability. The objective of these is that one who acquire satisfaction from infecting pain should be sanction by law, disregard of whether it was privately arranged or consensual. It will not deemed to be tommyrot to impose a maximum limit on the injury level which might be a consequence of the consensual practice. Thus, one cannot legitimately consent to the conduct that inflicted Grievous Bodily Harm(GBH) and Actual Bodily Harm(ABH).13  The Offences against the Persons Act 1861 (OAPA) ruled the scope of the liability under section 20 and 47. Under section 20, it provides that, “which held that whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm on any other person, either with or without a weapon or instrument, shall be guilty of a misdemeanour”14  and section 47, it is an offence to commit an assault which caused ABH15 under OAPA. Once the result caused by the act reached the threshold of ABH, a person’s pers on’s consent to the related conduct will become inadequate to release the act from the scope of criminal law, only if the class of the action is such that it have sufficient public interest to exempt it to be 11

 Jennifer Sweeton, 'BDSM: Loving, Dangerous Or Deviant?' [2009] [ 2009] What's dangerous about BDSM? accessed 19 April 2017. 12  'It’S Not The Judiciary’S Place To Stop People Having Kinky Sex - Legal Cheek' (Legal Cheek , 2017) accessed 20 April 2017. 13  Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to Harm: Are the Courts under undue pressure pr essure to overturn R V Brown ? 14  Offence Against Person Act 1861, section 20 15  Offence Against Person Act 1861, section 47

accessed 21 April 2017.

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22167 SEXUALITY, GENDER AND THE LAW

STUDENT ID: 201604269

criminalised. Strictly speaking, only when the Parliament or court able to obtain some public interest from preventing to criminalize the conduct in question will the putative putativ e victim’s consent be adequate to exempt from criminal liability. Yet, case law has figure out that injuries caused by the act for sexual satisfaction is not in the public interest; but it does not adequately distinct how the interest of public serves to legalize other groups of conduct.16  In fact, the decision to prosecute any suspected criminal conducts depends on the prosecution being ‘in the public interest, interest, and there is adequate evidence to prove that there is a justifiable prospect of conviction. Nevertheless, in deciding whether the public interest is served through prosecution inevitably involving the discretion on the prosecutor’s part. In part. In the S/M case, it is regrettable that, the moral view regarding the behaviour will often affect the manner in which discretion is exercised. Not merely private voluntary sexual activities prosecuted too readily, but also causing the case law incoherent and mostly undesirable. 17  In Regina v Brown18 , a leading case of the consent in a sadomasochistic assault, where a group of men have been charged for the offences of engaging in the sadomasochistic activities which were “ positively wanted, wanted, asked for, the acts to be be done to them” ,19 and all had consented to being involved over an extended period of time. Their activities including, using the fish hooks to pierce the penile skin. But, none of them complained about any of the activity they were engaging in, they were uncovered by an unrelated investigation of the police.20 A question posed for the jury was whether the victim have agreed with the conduct and whether the defendant believed that she consented. Yet, under the House of Lords in Brown this is irrelevant. The consenting ‘victims’ in  in Brown asked for the court to rule their acts legitimate because they were consent with the acts. Each  judgement makes a separate separate conclusion on the different factors, and the three to two of the decision in favor of convicting the offences of defendant under section 20 and section 47 of OAPA which did not makes clear about criminal sanctions for public interest. 21  Lord Templeman even emphasized that, it is an evil thing where the satisfaction is derived from the infliction of pain. The consensual violent behaviour are still violent

16

 Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to Harm: Are the Courts under undue pressure to overturn R V Brown ? accessed 21 April 2017. 17  'It’S Not The Judiciary’S Place To Stop People Having Kinky Sex - Legal Cheek' (Legal Cheek , 2017) accessed 20 April 2017. 18  Regina v Brown [1993] 2 All ER 75 19  'Recap Part 1' [2015] R v Brown – Brown  – twenty  twenty four years on, a critical secular perspective (part 2) accessed 20 April 2017. 20  'R V Brown [1993] 2 All ER 75' ( Lawlims.co.uk , 2017) accessed 20 April 2017. 21  Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST: DISTINGUISHING MORALITY AND LEGALITY accessed 21 April 2017.

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22167 SEXUALITY, GENDER AND THE LAW

STUDENT ID: 201604269

behaviour and are thus prohibited under the law. 22 Moreover, Lord Lowry and Lord Jauncey adopted the approach of paternalism and conjecture on how allowing the appeal may be dangerous when the violence of less conscientious the S/M practices have failed to be sanctioned. Their approach of paternalistic is shown in the weight both judgments gave to the possibility of corrupting others. Broadly speaking, paternalism is the public’s interference or an individual with another, against their will, and motivated or defended by a claim that with the interference of the person, it will be better off or protected from harm.23 The state play a major role as a benign parent’. In a simple way, government is in the position of power, just like the relationship between parents and their kids, government owe the right and duty to overrule the preferences of those who considered to be not capable to know their true interests. Therefore, in the field of politics and public policy, paternalism is generally adopted in a wide sense, referring to any interference of the government or any other authorities in the private decision-making and/or elitism.24  Contrastingly, in dissenting speeches, Lord Mustill specifically pointed that the interest of public does not demand all such actions to be subject to the law by default. Instead, a criminal sanction will only be justified where the factors related to a specific case require it. The majority approach is thus concern on the context of S/M practices generally, instead of whether the situation in the case meant that the use of criminal law was demanded.25 It can be held that Brown upheld the principle of paternalism, as criminalisation in such a circumstance invades the realm of individual where each competent and responsible adult should reign supreme. As a leading case of this field, it have been argued that Brown is an dissatisfying precedent. This is clearly in the fact that almost two decades later, Brown remain validity as a contentious area in debate and legal policy.26  R v Brown was affirmed in Sutton v Mishcon de Reya27, where there is an agreement

that the court must consider whether the agreement signed by the gay couples Staal and Mr. Sutton on abusive behaviour is legitimate. The pair’s deed about the cohabitation allegedly tied them into a relationship of salve and master. Mr Sutton, a male escort and a cabin crew act as a master, while Mr Staal, a rich businessman act as his slave. The S/M practice causing Staal to hurt, and he reported his “master” to the police. When the issue 22

 'R V Brown: Where Are We Now? | North East Law Talk' ( Blogs.ncl.ac.uk , 2017) accessed 21 April 2017. 23  Gerald Dworkin, 'Introduction Of Paternalism' [2017] Paternalism accessed 21 April 2017. 24  'Paternalism In Social Policy When Is It Justifiable? – Justifiable?  – Parliament  Parliament Of Australia' ( Aph.gov.au, 2017) accessed 21 April 2017. 25  Amy Kerr, ' THE DECISION TO PROSECUTE CONSENSUAL SADOMASOCHISM' [2013] CONSENSUAL SADOMASOCHISM AND THE PUBLIC INTEREST: DISTINGUISHING MORALITY AND LEGALITY accessed 21 April 2017. 26

 Dennis J Baker, 'Consenting To Grave Harm' [2008] RETHINKING CONSENSUAL HARM DOING accessed 21 April 2017. 27  Sutton v Mishcon de Reya [2003] EWHC 3166

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22167 SEXUALITY, GENDER AND THE LAW

STUDENT ID: 201604269

came to the trial for an assult, Sutton argued that the contract which have been signed by each other as giving rise to consent. In reaching a decision, the judge held that since the consent under the agreement was invalid based on the fact that English law does not recognize the slavery institution, the S/M activities engaging by Sutton and Staal was considered as an assault under Section 47 OAPA. Hart J stressed that, a statement of trust indicates “an approach to express (husband and wife) wife ) sexual relationship in terms of property and the relationsh relationship ip “rooted from” the lust of lust  of giving a sexual role play verisimilitude. This was "an attempt to prove an illegal ideal" and was therefore unable to enforce. So, the principle of British law is that, an unlawful contract which is invalid may also override any consensual agreement where physical harm is an aftermath of S/M practice. 28  Due to the removal of S/M from the Diagnostic and Statistical Manual of Mental Disorder (DSM), the pressure became greater in overturn the judgement in R v Brown. This is encouraging for those who think that SM is mainstream and normal, so even if violence is accompanied by a commission, it is still acceptable. It needs to examine of the change in the limits of acceptable behaviour that are considered to be a normal conduct which is no longer subject to legal sanctions.29  Public Interest:

As stated above, criminal law operates to convict an act only if such conduct is required in the interest of public. However, a main defect in English approach is that, to determine how best to serve the interest of public is a subjective process, is affect by the decision maker’s own value and beliefs. This is particularly on the case which consider in consensual S/M activities where the exercise of discretion will be able to let the moral views regarding the action in question influence the decision to prosecute.30  Required the prosecution to be in line with interest of public is a welcome feature of modern criminal law, it is believed that the concept of ‘interest ‘interest pf public’ public’ is malleable and ambiguous. In these S/M or BDSM cases, it is recommended that British law have intervene too readily under the excuse or camouflage of furthering the public interest, and did not gave an appropriate consideration on whether the prosecution will have any measurable interest in practice. 31Regrettably, the decision to prosecute the consensual violence in depend upon mainly in the context of which the violence have been took place and will show that the presumption which smile upon the prosecution where there is a probability of 28

 Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to Harm: Are the Courts under undue pressure pr essure to overturn R V Brown ? accessed 21 April 2017. 29  Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to Harm: Are the Courts under undue pressure pr essure to overturn R V Brown ? accessed 21 April 2017. 30  Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST: DISTINGUISHING MORALITY AND LEGALITY 31  YING HUI TAN [1993] Consensual sado-masochistic acts unlawful: Regina v Brown and others - House of Lords (Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley) accessed 21 April 2017.

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22167 SEXUALITY, GENDER AND THE LAW

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conviction. This did not take into account about whether the interest of public is best served through abstain from the prosecution, in a strive to respect individual privacy and autonomy. With this in mind, it is vital from the outset to question the proper function of the criminal law and how this influence the problematic notion of interest of public. It can be said, what is and is not required in the interest of public should reflect a balance between respect for personal privacy and autonomy on the one hand, and the avoid of harm to others. Yet, in practice, where S/M is concerned, the factor of ‘public interest’ always  always  operates to conceal a paternalistic and moralistic view of socially acceptable conduct.32  A driving force behind upholding the interest of public is prevent harm to others. When the conduct of interference with the freedoms and liberties of others has been considered, it is absolutely justifiable to hold the individual criminally responsible to their own actions. It was held that, as long as the conduct poses a risk of harm to public, the prosecution is merited for being in the interest of public. Nevertheless, when the harm in question has been consented to, it will generally be accepted that no crimes has taken place.33  This is advocated by John Stuart Mill’s harm principle, which roughly said that the sole rightfully and morally acceptable reason to interfere with a person’s liberty to do what he or she voluntarily chooses to do is to prevent the person from harming those non non-34 consenting others.  Since the objective of this rule is to facilitate autonomy of individual, meaning that it is to maximise a person’s life choices, only a rational free individual is taken to consent to coercion, as it is necessary for he or she to be able to lead an autonomous life which is consistent with the enjoyment of similar rights for other people. Shortly, public p ublic has no business in protecting the people from harms that they do not want or wish to be protected from, so the interference in such cases will not be justified. 35 Thus, it is to be foreseen that, in the view of the role played by the judge as a defender of freedoms, the autonomy-led approach defines much of the judge-made criminal law at the outer boundaries. The focal crimes, for instance, criminal damage, assault, rape and so on are constituted only upon the proof of the consent are absent, since only then will any private interests be wrongfully set back. Correspondent, if there is no consent, then the "victim of wrongdoing" to benefit from the criminal responsibility is not exonerated. 36 

32

 Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST: DISTINGUISHING MORALITY AND LEGALITY accessed 21 April 2017. 33  'So What Distinguishes Brown, Wilson And Lock?' [2011] BLURRED VISION: How Flawed was R v Brown? accessed 23 April 2017. 34  Michael Lacewing, 'The Principle' [2017] Mill’s ‘harm principle’