Violence and the Law: the Case of Sado-Masochism
| Author | Leslie J. Moran |
| Date | 01 June 1995 |
| DOI | 10.1177/096466399500400204 |
| Published date | 01 June 1995 |
| Subject Matter | Articles |
225-
VIOLENCE
AND
THE
LAW:
THE
CASE
OF
SADO-MASOCHISM
LESLIE J.
MORAN
University of Lancaster
n
11
MARCH
1993,
the
Judicial
Committee
of
the
House
of
Lords
~
sitting
as
the
final
court
of
appeal
in
England
and
Wales
published
a
collection
of
opinions
known
as
R
v.
Brown,’
dealing
with
the
legality
of
a
series
of
acts
that
were
described
by
the
court
as
acts
of
homosexual
sado-masochism
(hereinafter
referred
to
as
S/M).
The
acts
had
been
performed
with
full
mutual
consent
in
private
homes.
A
majority
of
the
judges
in
the
House
of
Lords
(3-2)
concluded
that
these
acts
were
unlawful,
being
assaults
occasioning
actual
bodily
harm
or
acts
of
unlawful
wounding.2
The
publication
of
these
judicial
opinions
is
the
most
important
recent
event3
in
a
series
of
encounters
between
various
institutions
and
practices
of
English
law
and
the
bodies
and
desires
of
the
men
who
engaged
in
these
consensual
acts.
Throughout
these
encounters
have
had
an
exorbitant
quality.
They
continued
over
a
considerable
period
of
time,
beginning
in
1987.4
Over £3
million
was
spent
on
the
extensive
police
investigation,
codenamed
’Operation
Spanner’
(Farshae,
1993;
Kershaw,
1992),
that
brought
these
acts
before
the
law.
Over
100
gay
men
were
interviewed.
Over
40
men
were
arrested.
Sixteen
men
were
charged
and
found
guilty.
As
a
result
of
the
criminal
proceedings
14
of
the
16
defendants
lost
their
jobs,
several
lost
their
homes
and
some
lost
their
good
health
(Kershaw,1992; R
v
Brown,’
CAR:
310).
The
original
sentences
imposed
upon
the
individuals
who
performed
these
consensual
acts
included
terms
of
imprisonment
of
over
four
years.
The
general
focus
of
this
analysis
is
upon
the
juridification
of
the
male
body
and
its
desires
that
has
taken
place
during
these
encounters.
In
particular,
the
analysis
will
proceed
by
way
of
a
consideration
of
the
judicial
opinions
that
are
to
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks,
CA
and
New
Delhi),
Vol.
4
(1995), 225-251
226
be
found
in
the
judgment
of
the
English
Court
of
Appeal’
and
in
the
majority
and
minority
opinions
in
the
final
appeal
court,
the
House
of
Lords.
The
judicial
opinions
presented
in
these
judgments
are
of
particular
significance.
First,
they
provide
evidence
of
the
legal
practices
through
which
the
performances
undertaken
by
the
defendants
are
made
legible
within
the
law
and
thereby
subject
to
the
law.
Second,
they
provide
an
opportunity
to
explore
the
particular
intelligibility
by
which
the
sense
and
non-sense
of
these
bodies
and
desires
is
made
in
the
law.
Third,
they
provide
an
opportunity
to
study
a
theme
that
dominates
the
judicial
attempts
to
make
sense
and
non-sense
of
these
bodies
and
desires;
the
relationship
between
law
and
violence.
Fourth,
they
provide
a
demonstration
of
the
way
the
law/violence
distinction
is
used
within
legal
practice
in
order
to
represent
the
practice
of
law
itself.
Finally,
the
essay
will
use
the
analysis
of
this
juridification
of
the
male
body
and
its
desires
to
develop
a
critique
of
the
law.
VIOLENCE
The
Court
of
Appeal
decision
and
the
judgments
of
majority
in
the
House
of
Lords
provide
elaborate
expositions
of
the
S/M
practices.
Not
only
does
violence
have
a
particular
importance
in
these
attempts
to
make
sense
and
non-sense
of
the
male
bodies
and
their
desires
that
are
the
object
of
attention
but
the
judges
proceed
according
to
the
requirements
of
a
specific
logic
of
violence.
Thus
we
are
told
that
S/M
is
a
violence
that
is
unpredictably
dangerous.
These
acts
are
not
to
be
thought
of
as
isolated
transactions
but
as
performances
that
have
a
certain
contagious
quality;
they
will
breed
cruelty
(HL:
236H).
They
are
ascribed
with
the
ability
to
generate
’increasing
barbarity’
(HL:
235F).
They
are
invariably
described
as
activities
that
will
’get
out
of
hand’
(HL:
255H).
They
are
exhibitions
where
there
is
an
absence
of
control
(HL:
236B);
’no
referee
is
present’
(HL:
238F).
According
to
the
requirements
of
this
particular
intelligibi-
lity,
S/M
as
violence
is
that
which
will
escalate,
escape,
overstep
boundaries.
These
S/M
bodies,
desires
and
practices
are
produced
in
law
according
to
a
logic
of
loss
of
control,
loss
or
absence
of
the
authority
figure,
the
controller.
In
general
these
S/M
bodies
are
made
legible
according
to
a
logic
of
violence
as
unruly
escalation.’
This
particular
logic
of
violence
is
also
represented
through
metaphors
of
blood,
wounds
and
disease.
We are
told
that
in
S/M
practice ’blood
will
flow
free’
(HL:
246A); ’[w]ounds
...
easily
become
septic’
(HL:
246A);
one
person
may
infect
another
(HL:
246A).
Each
symbolizes
a
violence
having
particular
qualities:
communicability,
incrementality
and
uncontrollability.
These
themes
also
operate
through
metaphors
of
sex,
drink
and
drugs.
Thus
we
are
told
that ’an
inflicter
who
is
carried
away
by
sexual
excitement
or
by
drink
or
drugs
could
easily
inflict
pain
and
injury
beyond
the
level
to
which
the
receiver
consented’
(HL:
246B);
’[S]ado-masochistic
activity
under
the
powerful
influence
of
sexual
instinct
will
get
out
of
hand ...
will
involve
a
danger
of
infection’
(HL:
255G-H).
In
turn,
the
themes
of
communicability
and
incrementality
are
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