50 Shades of Gray – The Limits of the Law

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by Hannah Loosley

The sequel to the 50 Shades of Gray film, 50 Shades Darker, came out last Friday, 10th February.  The franchise has encouraged people to be more experimental in the bedroom (fire services experienced  an increase in calls to release people from handcuffs) making S&M no longer a ‘dirty secret’. In this context, it is interesting to see how the law will respond to these changes in ‘costume’ – will it accept new definitions of acceptable sexual practice or stick to rigid rules formed in the past? The law relating to S&M has not been legislated on in Parliament (amusing though that would be to watch), so it is left to the judiciary as and when cases come up. As a result, for now, legally speaking S&M is a gray area.

The law relating to S&M is that of Actual Bodily Harm (ABH), an ‘offence against the person’. The ‘general rule’ regarding ABH is that a person’s consent is invalid unless it falls under set categories such as sport, tattoos and ‘rough horseplay’. Lord Templeman, a majority judge, said that S&M could not be an exception to the ‘general rule’ of consent to ABH because S&M is “unpredictably dangerous”. However, this is not valid for all S&M situations. It follows that S&M cases pose questions regarding the validity and the meaning of consent.

The issue with the law that relates to S&M arises from the fact that there are very few cases and the cases that exist are very extreme. This means that those who participate in more mainstream or 50 shades-esque play are not advised on what the legal limits are. This lack of ‘guidance’ not only poses safety issues, but means that the line between coercive or abusive sexual relationships and mutually respectful sexual play is not clear under the law.

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Two Cases: Brown and Emmet

The most famous S&M case is that of R v Brown (1993). A group of gay men engaged in quite extreme S&M including being chained up, branded, and their foreskins pierced. None of the ‘victims’ alerted the police about what had happened but the case came to trial because the police found video tapes of the session. However, the tapes showed in court were incomplete, as they omitted group discussions beforehand of what was and was not permitted, as well as the gradual build up to the extreme levels of pain. The feminist academic McKenzie argued that even once it was evident that the defendants were engaging in sadomasochistic sex (and not in a murder), a prosecution for ABH was nonetheless pursued to justify this expenditure of police resources.

The most recent case of S&M in the UK is R v Emmett (1999). The female victim consented to erotic-asphyxiation, while she gave the defendant oral sex. Part of the ‘consensual’ element to the ‘safe, sane and consensual’ mantra in the S&M community involves discussions beforehand of acceptable limits and safe words or signals. It emerged that such discussions did not occur in the Emmett case, and the victim claimed that during the oral sex the defendant focused on his own gratification. As a result, the victim lost consciousness and reportedly suffered a “subconjunctival haemorrhage in both eyes and had bruising around her neck”. Though at first this was consensual, this level of harm was not consented to and it was neither ‘safe’ nor ‘sane’.

In failing to recognise the validity of S&M as a practice, the law does not indicate what the acceptable boundaries are. If the law were to make the S&M best practice and the criminal repercussions clearer, the safety of those engaged in S&M would be improved. Adding on to this, Mackenzie argues that “[c]ontrolled, consensual role play based upon sexual pleasure gained from negotiated actions should not be equated with the violence and cruelty of physical abuse inflicted on another without consent” (W.L.R. 125, 1996).
It seems that the understanding of S&M upon which the current law was created is limited. In the two cases, had the judges acquired proper knowledge of S&M before adjudicating on it, they would have discovered the “safe, sane and consensual” mantra. The categorisation of S&M appears to be in definite need of review.

S&M, deviance and domestic violence

The case of R v Wilson is particularly interesting to contrast with Brown. Though both cases involved the victim being branded, the conviction in Wilson was quashed while the legitimacy of the Brown decision was upheld. This arguably had a lot to do with the fact that the branding in Wilson occurred between husband and wife in the “privacy” of the matrimonial home. This was a case in which a man branded his wife on the buttock with a heated butter knife. The wife consented to this act, indeed she asked that it be done. The court decided that this was acceptable behaviour, and thus placed it into the category of a tattoo (one of the exceptions to the ‘general rule’ in Brown). As a result, the incident was placed outside the ambit of the criminal law.

Consent, in the Wilson case, was only listened to because the judges had designated this act as in the zone of acceptable behaviour. It is arguable that in Brown the victims’ voices of consent were silenced because the behaviour was deemed deviant. So, where in Wilson it was “not in the public interest that activities such as the appellant’s… should amount to criminal behaviour,”(W.L.R. 125, 1996) in Brown, it was deemed in the public interest to criminalise this deviant behaviour.

This leaves the nature and circumstances of consent completely unquestioned, as there is no vocabulary of the violence in question being deviant. Indeed, in Wilson, the systematic issue of violence between a male-female romantic couple was not problematized. The judges in Brown had no trouble with condemning S&M as a practice – seeing the current case in relation to the broader issue. Why did their lordships in Wilson not take issue with domestic violence? The activities in Wilson (married couple) were apparently less repugnant to the judges than those in Brown (gay men), as indicated by the language used in court, describing events in Brown as ‘cruel’, ‘evil’ and ‘uncivilised’. This is perhaps because the defendant and victim were in the matrimonial home: the site of romantic relations, and one familiar to their lordships. Perhaps, as Weait and Hunter argue in their commentary on Brown, the judges were therefore more able to put themselves in the shoes of the defendant here than in Brown, and therefore more likely to acknowledge the validity this act. Their lordships in the Court of Appeal stated that “[c]onsensual activity between husband and wife, in the privacy of the matrimonial home, is not in our judgment, normally a matter for criminal investigation, let alone criminal prosecution.”

The unwillingness of the judges to discuss the systematic nature of violence against women implies, in my opinion, that they did not see it as dangerous to public morality – a contagion that must be stopped – as they did regarding the actions of the defendants in Brown.

Ana and Christian

In 50 Shades of Gray, it is arguable that Ana and Christian’s relationship is very controlling – for example, he buys the company she works for so he can keep an eye on her at work. If a court were to judge whether or not Ana’s consent to their S&M sessions was valid, this cannot be seen as separate to their sex life. Indeed, many members of the BDSM community take issue with the 50 Shades franchise precisely because it does not reflect what they consider to be a healthy and respectful S&M relationship. This is in part because people who practise S&M deem it a necessary to be able to switch ‘on’ and ‘off’ their dominant and submissive roles: they are only dominant and submissive when they are having a play session, and ‘switch off’ these roles when the session is over. However, in 50 Shades, Gray’s controlling nature does not switch off.

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The ABH is also being enacted by a man upon a woman. It would be easy for the law to say that everyone’s equal and therefore what they get up to in the bedroom is their own business, but this would deny the reality that male violence against women in the UK is prevalent. Therefore, as we learned from Wilson, it is necessary not just to look at the particular incident or session in question, but at the broader relationship between the parties in order to understand if S&M is occurring within the context of a coercive relationship.

Conclusions

Hopefully, if another S&M case were to come to court, the Lordships would accept the plurality of valid sexual practices and better clarify the limits of the law. Preferably, they would encourage ‘safe, sane and consensual’ sadomasochistic sex and adopt a contextual approach which would mean that people in coercive and abusive relationships are adequately protected by the law.

 

Hannah Loosley is studying MA Social Anthropology of the Global Economy at the University of Sussex.

 

 

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