Studies in Law, Politics and Society, Vol 32, 2004, pp 3-38.
This essay considers the Anglo-American legal treatment of sadomasochistic sexual practices, under which the consent of the masochist furnishes no defense to a charge of assault against the sadist. The law's unwillingness to recognize the masochist's consent in this context, I argue, suggests unease with the ways in which S/M reflects and exposes the operations of law. The essay begins with Robert Cover's work on law's potential to domesticate violence, locating an aporia around sadomasochistic sexuality and the putative irrationality it represents at the heart of Cover's account. It then discusses the legal regulation of homosexuality as a backdrop against which to situate the legal treatment of S/M within discussions of privacy and consent.
Under Bowers v. Hardwick, sodomy as a "victimless crime" nevertheless wrought its injury on the polity; the majority in that case effected an erosion of the boundaries separating private and public, individual bodies and the social body. Lawrence v. Texas has reinscribed these boundaries in the name of choice and personal autonomy. Cases addressing sadomasochistic sexual practices, however, reason in the reverse direction: identifying a public injury in violence unchecked and then locating it on the body of the masochist, regardless of the nature of his participation. With his apparent passivity or even active receptivity in the face of violence, the masochist putatively lacks the kind of rationality that would render him capable and deserving of autonomy and respect.
Theorists of consent, however, demonstrate that consent frequently mystifies the relationship between active and passive. The essay considers Elaine Scarry's work on consent before contemplating the doctrine that deems consent to sadomasochism legally unintelligible. Courts and commentators alike seem nonplussed by a practice that apparently merges sex and violence, pain and pleasure. Their anxiety about sadistic aggression unchecked inspires them largely to neglect the masochist's complex role.
Moreover, while courts and others have denounced these practices - and implicitly the ways in which they play out fundamental legal and political narratives of consent and subjection - as outside the bounds of cognizable human behavior, many theorists of S/M have celebrated its reflective function, seeing it as an expose of power relations. Proponents and detractors alike of sadomasochism generally disregard the gender of the participants, although gender has clearly shaped the legal doctrine. The male masochists involved in the major cases have rendered recognition of consent in that context even more fraught. The essay notes certain ideals of masculinity at work in the construction of the ideal legal subject, ideals to which male masochism poses a radical challenge.
Finally, the essay draws an analogy between the suspicion of sadomasochistic consent and that of consent to psychoanalytic treatment. In both of these contexts, what begins as a quintessentially volitional act, indeed one that often takes the form of a contract, appears to get subsumed immediately into compulsion. The essay concludes by suggesting that consent in these contexts highlights the extent to which categories of compulsion and volition, emphatically distinguished in our culture, come to haunt one another.
Date of Authorship for this Version
Schmeiser, Susan R., "Forces of Consent" (2004). University of Connecticut School of Law Articles and Working Papers. 67.