SADO‐MASOCHISM, CONSENT, AND THE REFORM OF THE CRIMINAL LAW
| Published date | 01 March 1976 |
| Author | L. H. Leigh |
| Date | 01 March 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01449.x |
SADO-MASOCHISM, CONSENT, AND THE
REFORM OF THE CRIMINAL LAW
I
LI~E
has been written outside the United States concerning legal
problems associated with sadistic and masochistic behaviour. In the
United States, such behaviour is mentioned in connection with
criminal sexual psychopath 1egislation.l In England and the Common-
wealth it is mentioned, but not dealt with extensively as yet, in
connection with the defence of consent.* In this article,
I
have
sought to discuss both medical and legal aspects of the topic, from
a
standpoint of, for want of
a
better term, social defence. Thus, in
discussing the medical literature
I
have given prominence to the
physical manifestations of such behaviour rather than to the
psychiatric explanations of its aetiology. The plan of the article is
therefore first to discuss the medical aspects of the problem, secondly
to discuss the existing law, and finally to assess what provisions
concerning sado-masochism might appear ultimately in the proposed
Criminal Code.
It is appropriate at the outset to indicate the vantage point from
which this article is written.
I
accept as
a
basis for the proposals
herein the statement of principle contained in the Wolfenden Report:
that is, that legislation is justified when it
is
directed towards the
prohibition of acts which tend toward breaches of the peace,
violence, or psychological damage. Any theory must,
I
think, accept
a
certain amount
of
paternalism. Thus it seems appropriate to safe-
guard the young and persons of subnormal intellect. It further
seems appropriate to safeguard the basic integrity of the person
against physical and severe psychological harm.3
I
would not suggest
venturing further into paternalism. In adopting this view,
I
take
a
position consistent with the thrust of much modern legislation in
Britain, for example the Sexual Offences Act
1967
which, subject to
certain limitations, legalised homosexual practices between con-
senting adults in private. The position is of course contentious. In
some jurisdictions and in some modern European proposals moralistic
attitudes are given considerable ex~ression.~
In Missouri for example
“
deviant
”
sexual activities are now to
be permitted between married partners but not otherwise because
1
See,
for cxamplc, M. Guttmachcr and H. Wcihofcn,
“SCX
ORcnccs.” 43
J.Cr.L., Crim.
&
P.S. 153 (1952); B. Karpman,
“The
Sexual Psychopath.” 42
J.Cr.L., Crim.
&
P.S. (1951);
The
Sexual Oflender and
His
Oflences
(Julian Prcss.
N.Y.,
1954); R. Slovcnko and
C.
Phillips,
“
Psychosexuality and the Criminal Law.”
1s
Vandcrbilt L.Rev. 797 (1961-62).
. 2
e.8.
G.
Hughcs. “Consent in Sexual ORenccs” (1962)
25
M.L.R. 672;
G.
L.
Williams,
‘‘
Consent and Public Policy
”
119621 Crim.L.R. 74.
J
SCC
E.P.
J. Rawls.
A
Theory
of
Justice
(Harvard U.P., 1972). p. 248
el
seq.
4
M.
Pibscowc. “Report
TO
Tho Hague: Suggested Revision of Penal Law
Relating
To
Sex
Crimcs and Crimcs Against tbo Family,” SO Cornell L.Q. 425 (1965).
130
Mar.
19761
SAW-MASOCHISM,
CONSENT:
LAW
REFORM
131
the public morality of the state would not, it is said, countenance
the legalisation
of
homosexual intercourse.5 This view, which derives
in part from Lord Devlin’s argument that a common morality is a
necessary bond holding society together, and that mankind must pay
the price for social cohesion by accepting some sacrifice
of
the right
to freedom, argues that
if
the law fails to support the common
morality
of
Missouri,
“
disrespect for law and
a
general loosening
of the bonds of society must follow.”6
No
doubt this view will
receive the attention which is its due.
I
do not, however, desire to
base proposals simply on the footing that practices are perverse or
deviant or even sinful.
A
further point requires mention. The perversions have been
relatively neglected in the psychiatric literature and it is often not
possible to describe processes with as much particularity as one might
wish or to advance conclusions with perfect certainty.
Definitions
of
sado-masochism tend to be rather loose. It is, indeed,
not universally conceded that sadism and masochism are closely
related. Most modern writers contend that sadism and masochism
are not different instincts but are bipolar manifestations of the
same drive.’ Others insist that the manner in which masochism and
sadism are interrelated has to do
“
not
so
much with
‘
reversal into
its opposite,’ as with interacting reciprocities wherein the underlying
motivation differs for each partner.” Fortunately this is not
a
debate which it is necessary to attempt to resolve here. We can
content ourselves for the most part with descriptions of the objective
characteristics
of
the phenomena under discussion. Dr. Hartwich in
his adaptation of Kraff t-Ebing’s
Psychopathia
Sexualis
describes
sadism as
O:
“.
. .
the experiencing of sexual desire
up
to the pitch of
orgasm, when accompanied by humiliations, chastisement and
all manner of cruelties inflicted upon a human being or an
animal, as also the impulse to evoke such feelings of desire
by means of the appropriate treatment.”
Sadism as involving sexual stimulus via cruelty appears in other defini-
tions as well.’O It is said, however, that not all violent sexual crimes
are sadistic in origin. Some rapists for example are aggressive
38 Mo.L.Rev. 371 (1973).
5
0.
Richardson.
“
Sexual OBences Under The Proposed Missouri Criminal Code,’”
6
Ibid.
at p. 387.
7
G.
Rothman, M.D..
The Riddle
of
Cruelfy
(Philosophical Library,
N.Y..
1968).
pp. 14 and 27;
H.
Klein, “Masochism.”
Medical Aspecfs
of
Human Sexuality,
6:
32-53, November (1972); B. Karpman,
The Sexual Oflender and
His
Oflences
(Julian
Press
Inc.,
N.Y.,
1954); R. Britain,
“
The Sadistic Murderer
”
(1970)
10
M.S.
8c
L.,
p. 198;
L.
S.
London and D.
F.
S.
Caprio,
Sexual Deviafions
(Linacrc Press,
Wash.,
1950). p. 419
et seq.
8
S.
Panken,
’‘
On
Masochism: A Re-evaluation,” Psychoanal.Rev. 54; 527-54t
(1967).
9
A. Hartwich, M.D.,
Aberrafions
of
Sexual Life
(1962). p. 204. See
also
H.
Klein at note 7 above.
10
East,
Sexual Offenders
(Delisle, London, 1955); Cavanagh,
“
Sexual Anomalies,”
9
The Catholic Lawyer
4 (1963),
at
p. 17.
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