Persecution or Play? Law and the Ethical Significance of Sadomasochism
| Published date | 01 March 2015 |
| DOI | 10.1177/0964663914549760 |
| Author | Theodore Bennett |
| Date | 01 March 2015 |
| Subject Matter | Articles |
Article
Persecution or Play? Law
and the Ethical Significance
of Sadomasochism
Theodore Bennett
University of Western Australia, Australia
Abstract
Long-standing debates about the ethical significance of sadomasochism have been
raised by two recent legal cases, Pay v. United Kingdom and Mosley v. News Group News-
papers Limited. The judgements in these cases rely on the unexplained assumption that a
person’s participation in sadomasochistic activities can call into question their suitabil-
ity for certain social or public roles. The article evaluates this assumption by referring
to developments within feminist and general academic thinking about the normative
nature of sadomasochism, focusing in particular on key issues such as whether sado-
masochism is sexist or racist and whether participating in sadomasochistic activities
reflects negatively on a person’s character. After working through the various theore-
tical models of sadomasochism as replication, simulation, game playing and context
dependent, the article contends that this assumption lacks both a compelling theore-
tical basis and a practical rationale. Instead, this article argues that law should more fully
recognize the critical distinctions that exist between the ethic al significance of sado-
masochistic activities and the ethical significance of the frameworks of power inequality
and narratives of oppression that sadomasochistic activities explicitly invoke or impli-
citly negotiate.
Keywords
Ethical significance, masochism, Mosley v. News Group Newspapers,Pay v. United Kingdom,
privacy law, sadism, sadomasochism
Corresponding author:
Theodore Bennett, Faculty of Law, University of Western Australia, 35 Stirling Highway, Crawley, Perth,
Western Australia 6009, Australia.
Email: theodore.bennett@uwa.edu.au
Social & Legal Studies
2015, Vol. 24(1) 89–112
ªThe Author(s) 2014
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DOI: 10.1177/0964663914549760
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Introduction
Sadomasochism
1
has been the subject of a series of ‘struggles over meaning’ that have
played out across a number of fronts (Hoople, 1996: 195). Feminists have debated
whether sadomasochism is compatible or incompatible with feminism (Butler, 1982;
Califia, 1981; Chancer, 2000; Rubin, 1981; Russell, 1982), legal theorists have struggled
with whether sadomasochism should be understood as being ‘sex’ or ‘violence’ (Bam-
forth, 1994; Cowan, 2011; Edwards, 1993; Hanna, 2001; Moran, 1995; Pa, 2001) and
commentators on the ‘psy’ disciplines have questioned whether sadomasochism should
be tolerated as a sexual variation or pathologized as a mental disorder (Kleinplatz and
Moser, 2006; Schaffner, 2012; Stoller, 1991; Weismeijer and van Assen, 2013). These
theoretical debates about sadomasochism take on practical importance because the
meanings attached to sadomasochism calibrate how social institutions respond to sado-
masochism. Forexample, as sadomasochistic activities have traditionally been understood
by the law as being a form of violence, they have been subject to criminal sanctions that
would not have been appropriate if they were understood alternatively as a form of sex
(Edwards, 1993; Hanna, 2001). The meanings attached to sadomasochism are, therefore,
both contested and politically important.
Two recent legal cases raise a number of issues about the meanings that law attaches
to sadomasochistic activities, and these issues move beyond the sex/violence divide that
has strongly characterized legal discourse. Pay v. United Kingdom (2009) (henceforth,
Pay) dealt with whether the termination of the employment of a parole officer who
worked with sex offenders was justified on the basis of public knowledge about the offi-
cer’s involvement in the sadomasochistic subculture. Mosley v. News Group Newspapers
Limited (2008) (henceforth, Mosley) considered whether there was a public interest in
knowing about a prominent figure’s involvement in sadomasochistic activities that
would justify an interference with their privacy. Whilst both cases involve technical
questions about the application of the law that are of interest to a strict legal analysis
of the right to sexual privacy (Bennett, 2013), the assumptions about sadomasochism that
are embedded within these cases intersect with a broader series of debates that have
played out within academia over the preceding decades. Both cases deal with important
ethical questions about the nature of sadomasochism. In particular, is sadomasochism
sexist? Is it racist? Should participation in sadomasochistic activities be taken to reflect
negatively on a person’s suitability for certain social or public roles?
This article focuses on the issues that the Pay and Mosley cases raise about the ethical
significance of sadomasochism. It links the judicial treatment of sadomasochism within
these cases to the development of lines of thought within feminist and general academic
commentary about how to conceptualize sadomasochism. In doing so, this article eval-
uates the assumption within these cases that participating in sadomasochistic activities
reflects negatively on a sadomasochist’s suitability for certain social or public roles. The
article concludes that this assumption lacks both a compelling theoretical basis and a
practical rationale and argues that the law should treat sadomasochists in a way that more
fully recognizes the critical distinctions that exist between the ethical significance of
sadomasochistic activities and the ethical significance of the frameworks of power
inequality and narratives of oppression that sadomasochistic activities explicitly invoke
90 Social & Legal Studies 24(1)
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