Κακοποίηση (ακόμη και συναινετική) vs BDSM

Mάλλον λησμονούν, μερικοί εξ' ημών, πως εδώ είναι ΒΑΛΚΑΝΙΑ (Σκοτεινά "Μουσουλμανικά" Βαλκάνια - όπως τα διακωμωδεί ένας φίλος - άσχετος με το χώρο μας).
Αν κάποια θελήσει (εντός τριμήνου από την πιο πρόσφατη επαφή σας) να σε "τρέξει" (για τους δικούς της λόγους - που στα Σκοτεινά "Μουσουλμανικά" Βαλκάνια, εδώ δικοί μας, τα κίνητρα κυμαίνονται από εκβιασμό χρηματικού τύπου, αποκατάσταση οικογενειακού τύπου ή κλασσική περίπτωση ζηλοφθονίας) μπορεί και χωρίς να έχει μώλωπες ή να αρνηθεί την όποια συναίνεση σου είχε δώσει (να μην σου τύχει, διότι θα τρέχεις για κάνα 2-3 χρονάκια να αποδείξεις πως δεν είσαι ελέφας - και δεν μιλώ για τις "κοινότητές" μας).
Τονίζω, για μια ακόμα φορά, πως εδώ δεν έχουμε καλά-καλά (όπως έξω με πολλούς "αγώνες") κατασταλάξει στο ότι το ΒDSM είναι τρόπος ζωής / είδος σεξουαλικότητας με συγκεκριμένα χαρακτηριστικά (πάνω / κάτω) και ότι το πιο δημοφιλές sport δεν είναι ούτε το flogging (και η κουτσή μαρία έχει αγοράσει ένα πλουμιστό flogger να βαρά στο γάμο της τον Καραγκιόζη - ουίτ μαμά μου), ούτε το bondage (οι περισσότεροι βαριούνται και να δέσουν τα γορδόνια τους με σχοινιά θα καταπιάνονταν?), αλλά το κουτσομπολιό επαρχιακής γειτόνισσας (ένα παράδειγμα - μόλις αυτές τις μέρες έχω μάθει πως "σχετίζομαι" με "υ" που ούτε καν τις έχω δει δια ζώσης).

 

Πάνω σε αυτό φιλε μου δεν μπορώ να πω κάτι αν είναι έτσι όπως το περιγράφεις και σου συναιβεί έχεις απόλυτο δίκιο

 

Στο χωριό μου (εδώ στα σκοτεινά μουσουλμανικά Βαλκάνια) αυτά τα λέμε πουστιές λαικά (του σύγχρονου αστικού γίγνεσθαι πρωτίστος)....
Το bullying ναι το συνδέω με ανήλικα σαν όρο, ενώ κρατώ την ελληνική "συκοφαντία" ως όρο για τα παραδείγματα που έφερες στα καθημάς.
Αναφέρω δε παραδείγματα στο νήμα μου "Σε ξέρω? με ξέρεις?"

 

Συμφωνώ με όλα, αλλά για τα υπογραμμισμένα θα έλεγα bingo  

Ο θύτης δεν έχει τύψεις. Ο θύτης είναι, συνήθως, αποκτηνωμένος. Η ψυχολογική κακοποίηση είναι τις περισσότερες φορές περισσότερο επικίνδυνη και βλαπτική από τη σωματική.

Όχι, ο Κυρίαρχος δεν χρειάζεται να αφουγκράζεται τον υποτακτικό, ούτε να τρέφει συναισθήματα, ούτε ως άνθρωπος να έχει ιδιαίτερες ευαισθησίες. Μόνον να επικοινωνήσει μαζί του και να λάβει υπ' όψιν αυτή την επικοινωνία αρκεί. Ο θύτης δεν το κάνει αυτό. Ο θύτης δεν αντιλαμβάνεται τη θέση του υποτακτικού καθόλου (αυτό εννοώ με την ενσυναίσθηση).

Όχι, η συναίνεση δεν είναι προστατευτικό δίχτυ, ούτε για τον έναν ούτε για τον άλλο.

Το ρίσκο είναι πάντα εκεί και για τους δύο, και χρειάζεται γνωριμία και προσοχή ως προς τα άτομα με τα οποία σχετιζόμαστε.

Πώς το είπε ο @MasterJp ; RACK - Risk Aware Consensual Kink

Thank you  

 

Alelouiaaaaaaaaaaaaaaa

 

Στο δικό μου το χωριό, εδώ στα σκοτεινά μουσουλμανικά Βαλκάνια επίσης, αυτές οι συμπεριφορές εντάσσονται σε ένα φαινόμενο, αυτό του εκφοβισμού, που μπορεί πολύ εύκολα να χαρακτηριστεί κι ως "πουστιά", καμία αντίρρηση.

Σε καμία περίπτωση δεν εντάσσεται σ' αυτό μόνον η "συκοφαντία", παρόλο που είναι και αυτή μια μορφή εκφοβισμού με απώτερο στόχο πολλές φορές να εκδιωχθεί ένας επαγγελματίας από το χώρο/τομέα εργασίας του. Δεν είναι όμως όλες οι "συκοφαντίες" εκφοβισμός. Περιέγραψα κάποιες μορφές βίας και τακτικές που εντάσσονται στον εκφοβισμό, αλλά δεν είναι της παρούσης να κάνουμε ανάλυση.

Δεν σας λέω με τι συνδέετε εσείς τον όρο. Σας λέω τι αφορά ο όρος στην πραγματικότητα και σίγουρα δεν αφορά μόνον ανηλίκους  

 

@Janine κάποιος/α μπορεί να είναι θύτης, BDSM, η μη BDSM...
Το BDSM δεν στάζει μέσα σε κανέναν/καμία ούτε μυαλό (δλδ σύνεση και λογική), ούτε ευγένεια (με την ευρύτερη έννοια του όρου)...
Κάποιος/α μπορεί να είναι μαλάκας/ισμενη/ηλίθιος/α και να είναι και BDSMερ, όπως και να μην είναι...

Και το γράφω για τελευταία φορά και όποιος/α θέλει ας μην το λάβει υπ' όψιν του/της...Δικιά του/της η ζωή...
Δικά του/της τα υποθετικά "τρεχάματα"...

Συναίνεση και πέοντες μπλε...
Αυτοέλεγχος και πέοντες ροζ...
Και από τον/την Κ και από τον/την υ

Οι άνθρωποι είμαστε ατελή πλάσματα...
Shit could happen...

Και ο έλεγχος πάνω στην καύλα μπορεί να χαθεί...
Και κάποιος από τους 2, 3, 1000 εμπλεκόμενους να ενδώσει στα πάθη/ελαττώματα του/της...
Λέγε με ζήλια, λέγε με οργή, οτιδήποτε ποταπό θα μπορούσε κάποιος/α να σκεφτεί...
Και μετά να μας "τρέξει"...

Πάτε ν' αποδείξτε την συναίνεση μετά...

Απλή γνώμη, όποιος/α θέλει σκέπτεται...
Ειλικρινά δεν κρίνω κανένα και καμία...
Κι εγώ στο παιχνίδι είμαι...

Αλλά πολλές φορές για τα παθήματα μας, φταίει η κούτρα μας και κάποιες φορές η ατυχία μας...
Τους εαυτούς μας πως λειτουργούν, το ξέρουμε...
Πως λειτουργούν οι άλλοι, πολλές φορές δεν το ξέρουμε ούτε μετά από χρόνια μαζί τους...

Υ.Γ. Η μόνη εγγύηση που έχουμε όλοι, είναι ότι μια μέρα θα ψοφήσουμε...Όλα τ' άλλα είναι μονίμως υπό αμφισβήτηση....

 

Κάτι ήξερε για το ατελές της ανθρώπινης φύσης ο Παππούς Μαρκήσιος με τα γραφόμενά του εκείνη την εποχή (δεν άλλαξαν και πολλά, αν το καλοεξετάσει κανείς, πέρα από την πρόοδο στην τεχνολογία και κάποια ήθη που "χαλάρωσαν")

 

Xα! Το βρήκα...


The Role Of Consent in Sado-masochistic Practices
In 1993 the Law Lords upheld the original conviction of five men under the 1861 Offences Against the Person Act for participating in sado-masochistic practices. The five men were fully consenting adults, who had willingly participated in these practices, which had been carried out in private, and who had not complained to the police or retracted their consent after the event. The prosecution was brought independently by the crown despite the fact that the victims consented to the practices.[1] The Law Lords held that consent did not constitute a defense to acts of violence within a sado-masochistic context. This paper examines the judgements in this case and queries what role consent should play in the legitimization of sado-masochism.


The Importance of Consent
The paper will argue for the importance of consent in general from a familiar liberal standpoint. The liberal standpoint answers the question of what is the function of the law by drawing a distinction between the domain of morality and the domain of the law. This distinction is based on the difference between the private and the public spheres of concern and recognises that some issues are simply not the law’s business. In this paper I intend to accept this liberal standpoint in general and see how this acceptance impacts on how we view sado-masochistic practices. Although there are good general reasons why the liberal standpoint ought to be accepted and a lot can be said to defend such an approach from its critics, it is not the aim of this paper to defend such a position. I want to assume that we ought to accept a liberal account of morality and the law and see how this impacts on sado-masochistic practices.

The roots of the importance of consent can be found in the writings of J.S. Mill and are derived from the importance of autonomy and self-determination. In what follows I will give a brief summary of the justification for respect for autonomy, self-determination and consent.

According to the liberal perspective, the role of the law is to respect and uphold individual liberties in conformity with the principle that each individual should be accorded the greatest possible liberty compatible with respecting the liberty of others. This is based on a fundamental division between the business of the law and the business of morality and this principle has guided, at least in England, the legalisation of homosexuality and abortion. A fundamental principle to be upheld then is that of autonomy and self-determination, so that individuals can act free from the interference of others in self-regarding matters.

The second idea which will become crucial to the discussion of sado-masochism is the claim that the best judge of anyone’s interests is the person himself, so that with respect to what concerns himself, every person is entitled to make his own decisions as he is best qualified to do so:

But neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being…[2]

The basis for this idea is not that individuals are infallible with respect to their interests, but that they would have only themselves to blame in cases where they made a wrong decision. Mill does not claim that the individual is the person who best knows his own interest, but the person who is most interested in it. Of course, others can have a benevolent interest in me, but I have a fundamental connection to my own well-being which no one else, however well-meaning, can replicate. To make decisions on behalf of another person, not only degrades that person by assuming that they are incapable of doing so themselves, but places an enormous burden on the person making the decision to get it right.

The conclusion of these liberal assumptions is that self-regarding actions and by extent actions regarding others where those involved have given their free and voluntary consent should not be regulated by society. I include consensual actions along with self-regarding actions because of what it means to consent to a course of action. To consent to a course of action is to give your permission and approval to that course of action, to solicit that action on your behalf, and therefore responsibility for that action remains with the consenting individual rather than the person actually executing the act. So consensual acts originate with the consenting individual, but are merely carried out by another person.


The nature of consent
For consent to be valid it must satisfy certain requirements. Firstly, young children and the mentally impaired (the mentally disabled and the insane) are deemed to be incapable of consenting because of their diminished mental capacities.[3] This seems to imply that a certain standard of rationality is required for consent. However, at what level this standard stands is not explicitly determined, rather it is defined by the above exceptions. The underlying assumption then seems to be that this rationality is shared by all who do not specifically fall within the above exceptions, i.e. it is shared by all able-minded adults, irrespective of background, education, etc.

Secondly, consent must be given freely. This rules out cases of duress, intimidation, black-mail, exploitation and lack of other options. Thus, consent may be problematic if there is great disparity in power between the two parties, e.g. prisoners consenting to medical experimentation, or great financial disparity, e.g. students consenting to medical experimentation.[4] Or consent may be deemed to have been invalid if the individual had no other option but to consent, or if all other options were such that no reasonable person would choose them, e.g. one cannot be said to have freely consented to a course of action if the alternative is death.[5] This interpretation of the conditions of valid consent may seem excessively strict, as it is claimed that lack of options does not necessarily render consent invalid. Take the case of a patient who is offered the choice between a third course of painful and debilitating chemotherapy or almost certain death, can this patient be said to freely consent to the treatment given the alternative? Of course how we understand this case will depend on individual circumstances as for some patients death is a viable alternative which they can choose or reject, however for many people death is not an option and their only choice is to consent to the treatment. Consent under such circumstances is surely problematic. The reason why is because such cases do not clearly fall either under the category of the voluntary nor under the category of the involuntary. Following an Aristotelian distinction, they can be best described as mixed;

‘in cases like the above the agent acts voluntarily; because the movement of the limbs that are the instruments of action has its origin in the agent himself, and where this is so it is in his power either to act or not. Therefore such actions are voluntary; but considered absolutely they are presumably involuntary, because nobody would choose to do anything of this sort in itself’.[6]

Similarly then, although the agent voluntarily consents to the chemotherapy, this consent cannot be entirely unproblematic as nobody would choose such a painful form of treatment unless forced to do so by the alternative of death.

Thirdly, consent must be given voluntarily and knowingly, so that the choice to consent is under the agent’s control and he understands what he is consenting to. To know what one is consenting to involves being aware of other options, being aware of the implications of one’s consent, etc. For example, a problematic case of consent in this respect is indigenous tribes being asked to consent to their genetic material being analyzed by Western drugs companies, as it is quite doubtful whether these people fully understand what they are consenting to. This element of consent is important as we shall see, as it high-lights the idea that consent is given for particular actions. This means that consent is specific, it relates to a particular action and it should not be assumed that consent can necessarily be extended to other actions or that it holds for actions that normally follow those consented to.[7]


Consent and the law
A person cannot normally be wronged by an act to which he has fully consented to. This is expressed in the legal maxim: “To one who has consented no wrong is done”.[8] The idea behind this maxim is the intuitively plausible one, that if an (adult) person has freely, voluntarily and knowingly consented to a course of action, then that course of action is in accordance with his own wishes as determined by him and therefore any subsequent complaint should not be directed at the executor of the act, but at the consenting individual himself. Since a person cannot complain against himself for his own decisions, wrong cannot be done to those who are consenting. If an agent misidentifies his own wishes he has no one to blame but himself, regardless of whether these wishes were carried out by himself or by another person.

Two possible legal constraints can be placed on the importance of consent: the first is the idea that although most harms can be consented to, some harms are too grave to be rendered permissible even by the giving of consent. This idea is rather complicated as it can arise from a number of different considerations. The first consideration is a practical one. Euthanasia, for example, should be illegal as the harm of death is considered too grave and irreversible to make it possible to police the giving of consent and the potential for abuse is too great. This argument seems to imply that consent in cases of euthanasia is in principle valid, but practically cannot be legislated for with sufficient safety.[9]

The second consideration seems to go something like this: rational adults can make a decision about consenting to harm or the risk of harm, but not to serious and irreversible forms of harm and death. The implication is that adults are simply incapable of consenting to such serious degrees of harm and unlike the first consideration which accepts that consent is valid and overrides it, this consideration challenges the validity of consent altogether. This idea can be rather problematic, especially, for example, in countries where suicide is legal, but euthanasia remains illegal. That is, if a person is deemed legally capable of making decisions pertaining to his committing suicide, it is nor clear why by analogy he is not capable of making decisions about seeking the assistance of others to die. This discrepancy between the laws on suicide and the laws on euthanasia can perhaps be explained by the practical consideration that outlawing suicide has very little effect on the incidences of suicide whereas outlawing euthanasia is more likely to be effective in reducing the number of cases. However, this explanation only makes sense if we assume that there is good reason to prevent both suicide and euthanasia. If on the other hand we want to accept that people have the right to choose to end their lives and we accord consent the importance that it is due, then we should also allow people to seek help in ending their lives. Legalizing suicide, but penalizing euthanasia, without being able to argue for a significant difference between the two practices is problematic.

One way of arguing for deeming consent to be invalid because of the harm caused, is to argue that some acts are so perverse that giving one’s consent to their performance is in itself a mark of insanity, e.g. wanting to have one’s genitals pierced for the purpose of cosmetic appearance is in itself so perverse that anyone who wants this done to them is insane by virtue of wanting it. However, to take the act in question as the sole evidence of insanity while the individual fails to satisfy any other, independent criteria of insanity, is patently circular;

f we say, in these circumstances, that “he must have been mad to agree to such a thing,” we will be inferring the madness of the person from the character of the agreement in order to infer the madness of the agreement from the “established” mad condition of the person.[10]

What is in question is the very character of the act and the mental condition of the agent and to infer the madness of the one from the madness of the other, without any independent arguments, is circular. This argument does not preclude the possibility that some acts are evidence of insanity. Suppose there is a well documented form of mental illness which manifests itself with hallucinations of flying pink elephants. Any patient reporting hallucinations of flying pink elephants can be diagnosed as insane on the basis of this evidence. However, this can only work if the evidence in question has been independently verified as evidence of mental illness. When the character of the act which is taken as evidence of mental illness, e.g. suicide, body-piercing, homosexuality, etc., is itself under dispute it cannot be taken as conclusive evidence of insanity.

The second reason for imposing a legal constraint on consent is that some consensual acts violate standards of social decency. So, for example, some legal systems include a ban on prostitution, seen as a harmful, consensual act which nevertheless harms society as well as the individual. Consent is deemed valid here, but overridden in order to prevent a greater harm, i.e. harm to society.



Consent and sado-masochism
Given this liberal understanding of the importance of consent, it seems that participants in sado-masochistic activities should be free from prosecution. In particular, the men involved in the Brown case were adults, who gave their consent freely, voluntarily and knowingly, and who did not go to the police or seek prosecution after the event. The opinions of the Law Lords however were divided. Two judges conceded that for offences other than grievous bodily harm or death, consent could be a defense regardless of how unappealing or immoral such acts may appear to others. The majority of three judges however, decided that “consent is no defence to the infliction of bodily harm in the cause of lawful activities”.[11] The rest of this paper will consider whether the majority decision, which goes against the liberal understanding of the importance of consent, was justified.


‘Known exceptions’
In his summing up, Lord Jauncey concluded that consent was no defense unless it fell under one of the known exceptions, such as organized sport, parental chastisement or reasonable surgery. The implication is that sado-masochistic activities differ drastically from these known exceptions where consent is a defense to the causing of harm. I will examine whether this is truly the case.

Organized sports such as boxing, martial arts, etc. involve serious risk of causing harm to consenting others. The difference between sports and sado-masochism is claimed to be that the former involves recognized rules and referees who enforce such rules, both of which legitimize the use of violence in sport.[12] However, this is a mistaken interpretation of what it is that legitimizes the use of violence in sport. It is the consent of all participants to the risk of harm that legitimizes the sport; the use of rules and referees merely maps out the extent of the risk and ensures that participants conform to these boundaries. To say to a non-consenting adult “I will now beat you up, but in accordance with these rules which will be enforced by this referee” is clearly no defense to assault. What is important is the consent and the extent of the consent. Thus, consenting to a game of professional football, involves consenting to the risk of broken bones resulting from a legitimate tackle, but not to the risk of brain damage from punching. Football rules are there to ensure that footballers know what they are consenting to and the referee is present to ensure that all players subject each other only to the risks to which they have reasonably consented to. Any players who punch others in an effort to get the ball will be sent off and may be subject to criminal prosecution is the same way as if they had punched someone in the street. As I pointed out above, consent is specific and a defense of consent can only be used with respect to the particular acts that have been consented to. One could claim here that it is the presence of both consent and rules which is important in legitimizing sport and we should not focus too much on the rules in isolation., but the rules are merely an expression of the consent. The rules are a means to clarifying the extent and type of consent and enforcing it. On their own the rules make so sense and fundamentally it is the presence of consent which legitimizes the act.

By extension what should concern us in deciding the legitimacy of sado-masochistic practices is the presence and extent of consent. Sado-masochistic practices are similarly governed by rules and boundaries set up by the masochist and controlled by him by the use of special passwords. The masochist’s consent is specific and mapped out in detail prior to the practices. Admittedly, such sexual practices do not involve ‘referees’ who can ensure that the participants remain within the boundaries they have agreed to, but this in itself is not a problem specific to sado-masochism. Ordinary sexual intercourse involves boundaries set by the participants as to what they consider acceptable on the basis of which consent is given,[13] and if these boundaries are exceeded then there is just cause for complaint, e.g. if a couple consent to kissing but one partner goes further against the will of the other, the result is rape. Thus, what is important in legitimizing both dangerous sports and sado-masochism is the presence of consent. Rules available to clarify the nature and extent of this consent are equally available to sado-masochists as they are to athletes and resolving disputes involving consent can be as complicated in sado-masochistic cases as they are in other acts involving sexual consent.

Sport is also claimed to be a justified instance of consensual violence as the violence is unintentional[14] and/or incidental.[15] This claim, however, also seems problematic. On the one hand, there are certain sports such as boxing, for which the use of violence seems to be intentional and the main purpose of the activity. To claim that when Mike Tyson throws a punch at his opponent he is not intending to cause him harm is peculiar to say the least. On the other hand, if the object of sport is the enjoyment of the activity and violence is only incidental to this, we could equally claim that the object of sado-masochism is sexual gratification, and the use of violence is only a means to this, however I will return to this idea later on.

The other two ‘known exception’ to the idea that consent is no defense to harm are parental chastisement and reasonable surgery. Obviously in cases of parental chastisement the child is neither capable of nor actually explicitly consenting to the correction, but presumably as the parents are acting in the best interests of the child there is some form of assumed consent. The law talks in terms of a parent’s right to control a child by administering punishment,[16] but presumably the child would have consented to this punishment had he been capable of doing so as it is in his best interests.[17] Similarly a surgeon or otherwise qualified practitioner may perform acts to which the unconscious patient has not explicitly consented to for the purpose of saving his life or improving his health. Such acts do not constitute assault because of the presumption that the patient would have consented to such a course of action had he been capable of doing so. Compare this with the problematic case in which a surgeon performs acts other than the ones the patient has explicitly consented to e.g. a woman having consented to an exploratory surgery is subjected to a hysterectomy. The hysterectomy may have been performed with her best interests in mind, but is something she had not consented to and provided there was the option of obtaining consent the surgeon has acted wrongly. Again in this case consent is specific.

The conclusion we should draw from these possibilities is that where the parent or surgeon is said to be acting in the best interests of the child or patient and that child or patient is at present incapable of consenting, it is lawful to inflict harm which would otherwise constitute an assault. This is because it is presumed that the child/patient would have consented had he been able to. How does this compare with sado-masochism? It seems that sado-masochistic cases are more clear cut than parental chastisement and medical intervention, as the masochist is capable of consenting and clearly does so. Not only that, but the sadist is acting in the masochist’s expressed best interests in terms of sexual gratification. However, the difference implicit in Lord Jauncey’s argument is that is reasonable to inflict harm on another consenting (or presumed to be consenting) person in the interest of his health,[18] in the interest of his correction and proper character development, but not in the interest of sexual gratification. The law allows individuals to inflict harm on themselves or suffer the risk of harm in the interests of vanity or one’s career in the case of cosmetic surgery, or even in the interests of others, e.g. we not only allow individuals to put their lives at risk by donating organs such as kidneys for the benefit of others, but we consider this an admirable and praiseworthy risk to take. This seems to be the focal point of arguments against sado-masochistic practices, i.e. that there is something objectionable about consenting to harm for the purposes of sexual gratification. I will now go on to examine whether this intuition is justified.

The use of violence for sexual gratification

To see whether the idea that there is something fundamentally objectionable about the use of violence for sexual gratification is justified, we need to understand how this violence is used. For example, parental chastisement may use violence, but chastisement cannot be administered for the gratification of passion or rage,[19] surgeons may use experimental treatments on patients, but only if there is some possibility that the patients will benefit from the treatment.[20]

The purpose of violence in sado-masochism, however, also differs from common assault. In common assault violence is used maliciously, against the victim’s wishes, with the purpose of causing harm and discomfort. In sado-masochism violence is indeed used to cause pain, but in accordance with the “victim’s” wishes and with the purpose of causing pleasure. Understanding sado-masochism involves making sense of the idea that one can get pleasure from pain.

The connection between pain and dislike is not a logical one.[21] There are cases of patients, e.g. people on morphine or those having had pre-frontal lobotomies, where the pain is present but the patient is not bothered by it. However, more importantly we should recognize that how pain is perceived depends on external factors, e.g. emotional aspects of pain, such as whether it is submitted to voluntarily, or under force, whether one expects it, how other’s react to it, one’s state of mind.[22] In general, we do make sense of the idea of getting some pleasure or relief from some pains, e.g. we say of someone that he was ‘wallowing in his own pain’, or we watch emotionally disturbing films a second time, or we cause ourselves pain in anger. So perhaps it is not that implausible that pain caused for the purpose of sexual gratification is not necessarily unpleasant and may even be pleasant. Most significant of all arguments though, are the masochist’s explicit statements of deriving pleasure from pain and the fact that consent is not withdrawn even after the end of the practices. If the masochist can make sense of deriving pleasure from pain, why cannot we?


Violence and the law

Given the above thoughts, I would like to content that sado-masochism has been mis-classified as a violent offence. We can make sense of why this is so by drawing a parallel with rape cases. A rape should not be understood as a sexual act, but as an act of violence which happens to be expressed through sex. Some legal systems have explicitly endorsed this understanding of rape; for example,

n Canada the offences of rape and indecent assault have been repealed and in their place were substituted the offences of sexual assault, sexual assault with a weapon and aggravated sexual assault. these amendments were enacted to give emphasis to the fact that sexual assaults are crimes of violence and to be treated as such and not as crimes of passion.[23]

This is because rape is essentially a violent act performed without the victim’s consent. Rape happens to be expressed through sex, but other violent attacks are expressed through different means without this being crucial in differentiating between them, e.g. I could cause you harm by different means, such as punching you or burning you, or attempting to drown you, but provided the severity of the attacks is the same there doesn’t seem to be much point in differentiating between the means used in order to label the acts as different crimes. What is important is that rape constitutes assault and the reason why this is so is because it causes bodily harm in the absence of consent.[24]

Similarly, sado-masochism should be understood as a sexual act which happens to be expressed though violence. Sexual acts can take many different forms and be expressed through different means, so why can we not make sense of the idea of sexual gratification through pain. Sado-masochism is a legitimate sexual act because it involves freely given informed consent between adults and the violence is used in the explicit best interests of the masochist. What defines rape is the lack of consent and what should define sado-masochism is the presence of consent. Therefore, sado-masochism should not be dealt with under the Offences Against the Person Act, an act whose main concern is assault, i.e. non-consensual violence.[25]


Conclusion

To conclude, in this paper I have tried to make the following points within a liberal understanding of the importance of consent, derived from the importance of respecting autonomy and the right to self-determination. I have argued that to complain against a consensual act is to complain against one’s self, as the burden of decision-making when consent is given rests with the consenting individual and that consent is specific and cannot be assumed to be automatically extended, while recognizing that consent may also be withdrawn. I have also shown that sado-masochism does not differ significantly from other ‘known exceptions’ to the idea that consent is no defense to harm. Sado-masochism, like sport, also involves consent for specific activities, governed by rules and the use of violence is a means to another end. The sadist acts with the explicit consent of the masochist, whereas parents and surgeons may act with only the implicit consent of their children or patients. It is also possible to make sense of the idea that some people get pleasure from pain, while it is problematic to accept that one can cause harm to oneself in the interest of vanity, career promotion, sporting pleasure, correction of character, one’s own health or the health of others, while denying that one should not cause harm to oneself in the interests of sexual gratification. Finally if we can make sense of rape as a violent, non-consensual act expressed through sex, by analogy we can make sense of sado-masochism as a sexual, consensual act expressed through violence. It seems then that given the importance of consent, the similarities between sado-masochism and other harmful consensual activities and a revised understanding of pain. sado-masochism is not a form of assault and consent is crucial to this understanding.


To conclude I would like to briefly consider some objections which may still remain:

· Masochists are mad, sadists are bad.

Claims that masochists are mad are problematic if the sole evidence for this is their desire to practice sado-masochism. Claims that sadists are violent and potentially dangerous individuals, who may get out of control and express their sadism in a general context, are empirical claims which, to my knowledge, have no foundation.

· Sport is a ‘manly diversion’,[26] sado-masochism is depraved and disgusting.

The recognition that sado-masochistic practices should not be regulated by the law (to the extent that they remain consensual) is not tantamount to the promotion of such practices or a judgement about their morality or desirability. It is simply a recognition that such questions are simply not the law’s business, in the same way that making prostitution, homosexuality, suicide, etc. legal is not an expression of legal approval and recommendation for these practices.

· What if consent is withdrawn during sado-masochistic practices?

Such a case would be similar to consent being withdrawn during sexual intercourse. The law recognizes this possibility and the act following the withdrawal of consent is rape. Similarly the act following the withdrawal of consent during sado-masochism is assault.

· How do we police sado-masochistic practices should they become legal?

Practical problems with policing sado-masochism are similar to problems with policing other practices where consent is specific and may be withdrawn. In practice, courts may find it difficult to decide on the boundaries between consensual sex and rape and the decision may depend on believing one of two conflicting accounts. Similarly, in practice, courts may find it difficult to decide on the boundaries between consensual sado-masochism and assault and the decision may depend on believing one of two conflicting accounts. However, such difficulties are not in themselves an argument for making sado-masochism illegal.

· Should sado-masochism be allowed if it results in extreme harm or death?

The irreversible nature of extreme harm or death are perhaps good grounds for limiting the extent of sado-masochistic activities permitted by the law as if the masochist is dead we cannot establish whether he had truly consented.

· Sado-masochism causes harm to society

Lord Templeman argued that society was entitled and bound to protect itself against a cult of violence, and Lord Lowry concluded that “perverted and depraved sexual desire” was not conducive to the enhancement or enjoyment of family life or conducive to the welfare of society.[27] Claims that sado-masochism threatens the fabric of society are very difficult to assess and are similar to relatively recent claims that homosexuality threatens family and social values. As an empirical claim, it is not clear that there is evidence to justify it, at least none is presented by the Law Lords. As a conceptual claim it is even more problematic. If the result of sado-masochism is sexual gratification, then presumably it leads to happier individuals and greater enjoyment of one’s life and general welfare. If the worry is that the use of violence in one context, that of consensual sexual gratification, may extend to the use of violence in other contexts, non-consensual assaults on the general public, it is not clear why this should follow. If this idea is plausible it is unclear why violence in the boxing ring hasn’t spread outside the boxing ring or why violent sports are not as threatening to society as sado-masochism. The reason why sado-masochism should be legalized, why the use of violence in such a context is innocuous and why there is little threat of this use of violence spilling out into other contexts, is the recognised importance of consent in sado-masochistic practices.[28]



Bibliography

· All England Law Reports, R v Brown, (1993), vol.2

· Aristotle, Nicomachean Ethics, trans. J.A.K. Thomson (1976), Penguin Classics: England

· Dubin C., (1988), “Consent in Criminal Law”, in Bayefsky A., Legal Theory Meets Legal Practice, Academic Printing and Publishing: Canada

· de Castro L., (1998) “Ethical Issues in Human Experimentation”, in Kuhse H. and Singer P., A Companion to Bioethics, Blackwells: G.B.

· Feinberg J., (1984), The Moral Limits of the Criminal Law: Harm to Others, vol.I, Oxford University Press: USA

· Hall R.J., (1988-89), “Are Pains Necessarily Unpleasant?”, Philosophy and Phenomenological Research, vol. 49

· Hare R.M., (1964), “Pain and Evil”, Proceedings of the Aristotelian Society, supp. vol. 38

· Law Commission, Consent in the Criminal Law, Consultation Paper No 139

· Mill J.S., [1859], (1990), “On Liberty”, in Warnock M. (ed.), Utilitarianism, Fontana Press: G.B.

· Smith J.C. and Hogan B., (1992), Criminal Law, Butterworths: London


[1] The prosecution became possible because the men had videotaped the activities, although only for their own private use, and the videotape coincidentally fell into the hands of the police. The case attracted considerable public attention and was reported in the media as “the Spanner Case”, after the chief police officer responsible for the investigation.

[2] Mill J.S., [1859], 1990:206

[3] The mentally disabled may be incapable of consenting with respect to some issues, but capable with respect to others. The mental faculties of children are developing and the line between those children mentally capable of consenting and those that are not may not always be clear. The law sometimes recognises that there is no sharp cut-off point on questions of mental competence regarding children, e.g. the Children’s Act (1983) leaves the judgement about a child’s mental competence to the judge’s discretion. On the other hand, there are other individuals who may experience transient incompetence such as drug users.

[4] Of course this requirement for consent to be free can always be radically challenged by attacking the entire possibility of either free action in general or of free action by this kind of agent with respect to this decision. Consider, for example, the idea that women can never freely consent to participating in pornography, as by doing so they are affirming gender stereotypes that have been socially ingrained in them. However, such radical challenges should be approached with caution. For one thing, they can be applied to any situation, e.g. why not extend this argument to say that women can never freely consent to a relationship with men, and for another, there doesn’t seem to be anything that would count as a good objection against this position, as the objection itself may be the result of gender indoctrination.

[5] In English law, an exception to this defence is causing (or attempting to cause) the death of an innocent, as nothing, not even one’s own death, can be sufficient threat to force one to kill an innocent (the other exception is treason, but it is less relevant nowadays). Duress by threats has long been recognised by the law, and there is now a growing area of work on duress by circumstances developed analogously to duress by explicit threats.

[6] NE 1110a14ff

[7] Examples in support of the idea that consent is specific come from the area of medical ethics. Consent for an operation is consent for a specific procedure and cannot be extended to include other procedures unless there are good independent reasons (the patient’s life is in danger).

[8] Volenti non fit injuria.

[9] These kinds of concerns seem to have played the biggest role in the British Parliament’s recent decision not to legalise euthanasia.

[10] Feinberg J., 1984:116-117

[11] Lord Templeman,, All England Law Reports, 1993:75ff.

[12] Law Commission, No 139

[13] Of course, in ‘ordinary’ intercourse such boundaries are often implicit and assumed which can be the cause of misunderstandings and disputes. Sado-masochistic boundaries are, in general, explicitly laid-out.

[14] Law Commission, No 139

[15]“In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty” Lord Templeman, All England Law Reports, 1993:75ff.

[16] Section 1, Children and Young Persons Act 1933.

[17] or the adult that the child will grow into will agree as to the appropriateness of that punishment at the time, thus retrospectively justifying the action.

[18] Although it must be noted that the definition of health is important. In a recent case concerning body dysmorphic syndrome, a patient requested a healthy limb amputation, but the hospital refused treatment despite the fact that the consent was valid. However, this case never reached the courts.

[19] Smith J.C. and Hogan B., 1992:410

[20] The idea of non-therapeutic experimentation is problematic as the following passage reveals: “Since non-therapeutic experimentation calls for one set of individuals to shoulder risks for the sake of others, the idea that some persons are being ‘used’ arises. If a person is enrolled as a subject in an experiment the results of which are foreseen to be beneficial only to others, the former is, in effect, being used by the latter to attain their ends.” (de Castro L., in Kuhse H. and Singer P., 1998:381). Such cases are problematic because it seems exploitative to harm a patient where the only possible benefit can be to another person who is a complete stranger to him.

[21] For details on this see Hare R.M., 1964

[22] For details on this see Hall R.J., 1988-89

[23] Dubin C., in Bayefsky A., 1988:245

[24] Of course, in practice many courts rely on evidence of violence to prove lack of consent, but this is a practical problem with rape trials. There are two questions here: what makes an act of sexual intercourse an act of rape, to which the answer is the lack of consent; and how do we prove that consent was absent, to which the answer in practice often depends on the evidence of violence.

[25] Lord Mustill also questioned whether the defendants in R v Brown were properly charged under the 1861 Act when accepting the appeal, All England Law Reports, 1993:75ff.


[26] Law Commission, No 139:157. In reference to the death of the boxer James Murray, Iain Sproat MP said that boxing was a terrific sport and that it would be a great shame if this tragic death weighed too heavily in Parliament’s discussion of its legality, Law Commission, No 139:157.

[27] All England Law Reports, 1993:75ff.

[28] I am grateful to the audience of the Edge Hill Conference on the Nature of Sexual Consent, the University of Reading discussion group, Doris Schroeder and an anonymous referee for helpful comments and suggestions on this paper.

 

Xα κι εγώ φίλτατε... 

Έψαξα και βρήκα κι εγώ πάπυρο...στα ελληνικά...
Που αφορά cases σε αγγλικά δικαστήρια...
Και που θ' αφορούσαν υποθέσεις με πυρήνα το BDSM...
Θα το διαβάσω ενδελεχώς, γιατί του έριξα μόνο μια ματιά...
Και θα το βάλω εδώ, με τις κατ' εμέ αναγκαίες υπογραμμίσεις...
Καθώς και τον σύνδεσμο (link) για να βρει όποιος/α θέλει το κείμενο...

Υ.Γ. Με κάποια πράγματα δεν παίζουμε...