Sex is Not a Sport: Consent and Violence in Criminal Law

Does consent excuse violence against another? Generally, it does not. Recently, however, criminal defendants charged with violence against their sexual partners have asked courts to treat violent sex or sadomasochism (S/M) as a sport, like prize aghting and hockey. While most courts have refused to do so, a recent New York case, People v. Jovanovic, let stand a ruling that effectively permits a defendant to argue consent as a defense. This Article argues that the liberal argument treating S/M as a matter of sexual autonomy fails to account adequately for the history and practical application of the doctrine of violent consent. It concludes that by recognizing consent in the S/M context, the law is evolving in a direction that could lead to the gloriacation of sexual violence, rather than the sexual liberation of consenting adults. We are in bondage to the law so that we may remain free. —Marcus Tullius Cicero Introduction: In Bondage to the Law In sadomasochism,1 sex and violence intersect, becoming intertwined and indistinguishable. Americans are fascinated with S/M, in * Professor of Law, Vermont Law School, Visiting Professor of Law, University of California, Hastings College of the Law, 2000–2001. J.D., Harvard Law School, B.A., Kalamazoo College. I would like to thank Jennifer Burkhardt, Amy Rose, and Tia McClure for their research assistance on this piece. It was a hard and emotional project on which to work, and I deeply appreciate their thoughtfulness and good humor. I would also like to thank David Faigman, Evan Lee, Aaron Rappaport, Reuel Schiller, Rahdika Rao, Joel Paul, Roger Park, and Kate Bloch for their comments, suggestions, and unwavering support. I am grateful to my faculty colleagues at Florida State University, Thomas Jefferson School of Law, and Hastings College of the Law, who were kind enough to listen to me present this work in its early stages. Of course, I take full and complete responsibility for this article. The author can be reached at channa@vermontlaw.edu. 1 The term sadomasochism (S/M) derives from the work of two novelists: Marquis de Sade and Leopold von Sacher-Masoch, both of whom explored in their writings the bonds of violent sexual relationships. Sadomasochism, which is sometimes referred to as bondage and domination, or bondage and discipline (B/D), is a sexual practice whereby a person experiences erotic pleasure though either inoicting pain (sadism) or receiving pain (masochism). Thomas E. Murray & Thomas R. Murrell, The Language of Sadomasochism 20–21 (1989). Copyright © 2001 by Boston College Law School. Reprinted from 42:2 B. C. L. REV. 239 (2001). Reprinted with Permission. 240 Boston College Law Review [Vol. 42:239 part, because we are a culture fascinated with bonds and boundaries of pain and pleasure and with the ambiguity of power and powerlessness in intimate relationships. S/M is at “once pain and the opposite of pain.”2 In S/M, bondage, role-playing, spanking, beatings, physical and verbal torture, and humiliation are the means to a cathartic end—the knowledge and acceptance that one person has total and complete control over the other.3 In the “eroticism of suffering,” pleasure and pain are not mutually exclusive, but rather they are “intimately linked.”4 S/M is, by deanition, consensual activity,5 yet it pushes at the edge of legal consent.6 S/M involves not only the law of sexual consent,7 but also the law of violent consent. Sex and violence are separate and distinct paths within criminal law, however, and at their crossroads, the doctrine of consent becomes confused and confusing. Violence, like sex, is both terrorizing and titillating, depending on the context. Whether S/M is a context in which individual sexual autonomy should overpower the state’s interest in restraining violence is the subject of this Article. Consensual sexual violence8 runs the spectrum from playful pushing and wrestling to erotic asphyxiation. On one end of the spectrum, consensual activities that could result in nothing more than a “transient and trioing injury” are generally no concern of the crimi2 Talal Asad, On Torture, or Cruel, Inhuman, and Degrading Treatment, 63 Soc. Res. 1081 (1996), available at 1996 WL 13224679 (1996). 3 See Marianne Apostolides, The Pleasure of Pain: Why Some People Need S & M, Psychol. Today, Sept. 1, 1999, at 60. 4 Asad, supra note 2. 5 See, e.g., Gloria G. Brame et al., Different Loving: The World of Sexual Dominance and Submission 5 (1993) (“The practices and attitudes of contemporary sexual dominants and submissives . . . largely abide by the credo of ‘Safe, Sane, and Consensual.’”). 6 William N. Eskridge, Jr., The Many Faces of Sexual Consent, 37 Wm. & Mary L. Rev. 47, 48 (1995).