The Pain of Pleasure: Consent and the Criminalisation of Sado Masochistic 'Assaults'

15 Pages Posted: 19 Feb 2013

See all articles by Sharon Cowan

Sharon Cowan

University of Edinburgh - School of Law

Date Written: February 18, 2013

Abstract

This essay offers an analysis of the criminalisation of certain sexual practices that have been (wrongly) labelled as assaults. It discusses the criminal cases in Scotland and in England and Wales that address the question of whether sado-masochism (SM) counts as sex or violence, and thus whether consent can work its “moral magic” to render SM lawful. The essay examines the legal approach to SM in both jurisdictions, and the (hetero)normative construction of certain kinds of sexual subjects as perverted and “risky”, before moving to inquire as to the possibility of Scots law offering a discursive and legal space for SM sex. In doing so, it will be argued that while both jurisdictions have criminalised consensual assaults, thus marking out pleasurable pain as both wrong and harmful, there may ultimately be room for the Scottish courts to interpret the existing law in a way that is more open to allowing consensual SM sexual interactions.

Keywords: SM, consent, criminalisation, heteronormativity

Suggested Citation

Cowan, Sharon, The Pain of Pleasure: Consent and the Criminalisation of Sado Masochistic 'Assaults' (February 18, 2013). Edinburgh School of Law Research Paper No. 2013/04. Available at SSRN: https://ssrn.com/abstract=2220526 or http://dx.doi.org/10.2139/ssrn.2220526

Sharon Cowan (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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