The Sadomasochist – Too “abnormal” to be free from the bonds of law?

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Sam Ko
Sa Ko is a law student enrolled in the BBA (Law) & LLB programme.

 
BDSM is an important yet often overlooked dimension of sexuality, be it in the old times or at present days. While the emotional (or maybe metaphysical) aspect of BDSM could be and should be elaborated on, a notable feature that distinguish these so-called kinks from the “vanilla” or “normal” sex is the use of force which may or may not cause injury. It is such “violence” that has attracted the attention of the criminal law.
 
The Crime
 
BDSM behaviours often risk falling within the remit of the law regulating non-fatal offences against a person, such as battery. Battery is one of the offences captured by the more commonly known term “common assault”1 and is committed when one intentionally or recklessly inflicts unlawful personal violence upon another person [1]. Assault or battery causing/inflicting actual harm may, depends on the seriousness of such harm and the circumstances, be punishable by aggravated offences such as “assault occasioning actual bodily harm” (“AOABH”) [2] and “inflicting grievous bodily harm” (“GBH”) [3] .
 
Consent as defence?
 
Instinctively, it would seem logical that a mere contact which results in no discomfort or injury should     not attract criminal liability if committed with the consent of the person being touched. The law in this respect echoes such a view in that the element of unlawfulness in battery may be negated if there was express or implied consent of the victim.  Yet, consent does not always operate as a defence to negate unlawfulness when the underlying act amounts to AOABH or GBH.

In case of AOABH, the law still adopts a more relaxed approach regarding AOABH. In defined circumstances such as properly conducted games and sports, lawful chastisement, reasonable surgical interference etc., consent is a valid defence despite actual bodily harm is intentionally inflicted on a person [4]. For GBH, however, consent is unavailable as a defence.

For the present discussion, the crucial question remains: Is consent a valid defence for BDSM plays involving discomfort, pain and/or injury if one were facing a charge of AOABH as a result? The English House of Lords in the case of R v. Brown (“Brown”)[5], by a majority of 3-2, said NO.
 
The Brown precedent
 
In Brown, five male sadists were charged with the English equivalent of AOABH on account of their engagement in sadomasochistic homosexual acts which involved branding on human bodies, nipple and genital torture, beating various parts of the body with various tools etc. [6].

The three majority judges considered it inappropriate to extend consent as a defence to AOABH occurred during consensual BDSM interactions, with the major reasons being:

1. Meaningless and cruel nature of BDSM: The infliction of discomfort, pain and harm in BDSM engagements are “for no good reason” unlike the sports activities, religious rituals, and the like. Instead, such BDSM encounters are “degrading to body and mind” and they “breed and glorify cruelty”.

 

1. Public policy: Public policy is in favour of a stricter restriction on BDSM engagements which, in the three judges’ opinion, are “unpredictably dangerous”, carry with it “inevitable threat of AIDS” and entail “proselytisation and corruption of young men”.

The two dissenting judges however approached the case quite differently. They considered the issue presented before the court not whether consent as a defence should be extended to cover private BDSM behaviours but whether any “paternalistic” restriction should be imposed thereon. While acknowledging the public policy concerns raised by the majority judges, the dissenting judges regarded them as insufficient to justify the prohibition of the exercise of “individual freedom” by forfeiting a defence of consent. They would instead disallow consent to be a defence only in cases involving grievous bodily harm.  
 
Position in Hong Kong
 
In Hong Kong, it seems investigations and charges are only pursued where BDSM activities were engaged in an arguably less private context (e.g. when more individuals were involved) and the prosecution would target at the organisers rather than individuals involved in the BDSM activities [7].

Hong Kong has yet to encounter a court case that directly deals with BDSM activities in the context of offences against a person (probably due to the generally private or underground nature of BDSM activities). However, if such a case ever arises and therefore Hong Kong courts must decide whether (and to what extent) consent is a valid defence to BDSM activities which involve bodily harm, Hong Kong courts should be prepared to give tremendous regard to the sadomasochists’ individual freedom. 

It is argued that the reasoning provided by the majority judges in Brown is no more than overstating stereotypes against homosexuals and sadomasochists such that in claiming BDSM behaviours would bring “inevitable threats” of transmitting AIDS, they lack scientific or statistical support. They also neglected the control mechanisms adopted widely in consensual BDSM activities to control risks, such as the use of a safe word which allows the masochists to express their wish to discontinue the acts [8] and sophisticatedly drafted BDSM contracts between participating parties which draw clear boundaries [9] .

Outside the courtroom, society should also be prepared to embrace, or at the very least, respect different forms of consensual sexual behaviours, including consensual BDSM acts. After all, these individuals, however peculiar their sexual interests might sound to some, are merely pursuing sexual excitement and expressing themselves sexually with persons who have similar interests in a completely consensual and largely private manner.
 
Reference
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[1] Offences Against the Person Ordinance, Cap. 212 (“OAPO”) s. 40.
[2] OAPO s. 39; R v. Miller [1954] 2 Q.B. 282 (Actual bodily harm means any injury which interferes with the health or comfort of the victim).
[3] OAPO ss. 17 (where such assault is committed with the intention to cause grievous bodily harm) and 19 (where no such intention is present); Definition of “grievous bodily harm” see Director of Public Prosecutions v. Smith [1961] AC 290.
[4] A-G’s Reference (No. 6 of 1980) [1981] 1 Q.B. 715; adopted by Hong Kong Courts in R v. Erisman [1988] 1 H.K.L.R. 370 (HC).
[5] [1994] 1 A.C. 212.
[6] For the detailed account of what exactly was done, see the Court of Appeal judgment of Brown at citations (1992) 94 Cr. App. R. 302, at pp. 305-307; [1992] 2 W.L.R. 441, at pp. 445-446.
[7] See a 2002 instance where a privately held “SM party” was cracked down by the police and charges later pursued against the operator. The operator was ultimately acquitted.  See news reports (only in Chinese) from Oriental Daily http://orientaldaily.on.cc/archive/20020615/new/new_a00cnt.html and The Sun http://the-sun.on.cc/channels/news/20020820/20020820015834_0001.html
[8] The content of the safe word is malleable so that parties are comfortable and capable of communicating it during BDSM activities. It could be some random brand of beverages, name of places or even a children’s song (especially in scenes where a party or certain parties are gagged).
[9] See e.g., contracts template on https://bdsmcontracts.org/ ; As a side note, such contracts are primarily entered into by BDSM practitioners for a clear and detailed communication of expectations, desires and limits. These contracts might also be useful for proving parties’ state of mind or consent in criminal cases or tortious claims if any party to a BDSM scene is later accused of overstepping boundaries.