Bondage, sadomasochism and crimINAL LAW australia

The existence of sadomasochistic sexual practices has puzzled, shocked and fascinated legal and forensic scholars for decades.

Ever since the German psychiatrist Richard von Krafft-Ebing introduced the terms “Sadism” and “Masochism”‘ into medical terminology in the late 19th century, this ‘deviant’ sexual interest has led to a flurry of critical discourse.

For some, sadomasochist desire and practice, and the related ‘kinks’ of bondage and dominant/submissive play, reflect the underlying psychology of gendered violence. For others, they are merely a harmless part of sexual diversity.

The following outlines the psychiatric categorisation of BDSM, its forensic relevance and how the courts have tried contain the boundaries of deviant desire.

BDSM: Illness or Kink?

The categorisation of harmful sexual desires within psychiatric literature is a contentious issue.

Some argue that the categorisation of ‘abnormal’ sexual desire – known as a ‘paraphilia’ – is an inherently moralistic practice. Whilst others argue paraphilias are helpful constructs in order to distinguish harmful and healthy sexual desires and practices.

The DSM-V contains diagnoses for ‘sexual sadism disorder’ as well as ‘sexual masochism disorder’. To diagnose a paraphilic disorder there must both be the paraphilia and some distress or impairment to the individual or harm to others.

The paraphilia of sexual sadism is defined as intense feelings of sexual excitement when fantasising about or witnessing another individual undergoing physical or psychological pain.

The paraphilia of sexual masochism is defined as recurrent intense fantasies, urges, or behaviours involving real acts of receiving extreme physical pain, torture, or humiliation for sexual arousal.

Neither diagnosis makes a distinction between consenting or non-consenting partners as the object of desire. The forensic literature is more robust in this sense, in that the interest in a non-consenting victim usually forms part of the conceptualisation of ‘sexual sadism’.

The DSM-V diagnosis does note that the existence of an ‘abnormal desire’ like sexual sadism or sexual masochism does not in itself constitute a disorder.

Nevertheless, many have argued that the DSM-V pathologises normal sexual desire. For example, the DSM-V defines a paraphilia generally as:

[I]ntense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners

As critics such as sexologist Dr Ray Blanchard have pointed out “at first glance, this definition seems to label everything outside a very narrow range of sexual behaviors as paraphilic”.

Indeed, many have pointed out that sadomasochistic desire is far from ‘abnormal’ within the population.

A recent study of the general Belgian population found that 46.8% of the general population had engaged in BDSM-themed activities at least once, with 12.5% doing so on a regular basis.

One Australian study found that 1.8% of sexually active people (2.2% men and 1.3% women) had engaged in BDSM activity in the previous year. This study didn’t find any significant differences between people who undertook BDSM and the general population.

Fantasies about sadomasochism are even higher. One study of Canadian students found that:

  • 72% of the men and 59% of the women had had fantasies of being tied up.
  • 65% of the men and 58% of the women had fantasies of tying up a partner.
  • 60% of the men and 31% of the women indicated positive thoughts of whipping or spanking someone.

One online study found about half of participants preferred unequal power dynamics in their sexual relationship. Of these:

  • 13.8% men and 20.5% women preferred a dominant partner; whilst
  • 36.6% men and 19.8% women preferred a submissive partner.

Complicating this area is the prevalence of literature documenting “rape fantasies” amongst men and women.

The existence of a “rape fantasy” could include a desire for power imbalance, bondage or other form of consensual BDSM play, or it could be a fantasy of forcible sexual violence without consent.

Early research into the US general male population found that 39% of men have had fantasies of “tying up” and 30% of “raping a woman.” Moreover, a 2009 study of female undergraduate students found that 62% of women have had a rape fantasy.

Overall, the literature doesn’t support treating BDSM practitioners as ‘abnormal’ members of the community.

Sexual Sadism and Offending

Naturally, having a notable proportion of the general population sexually aroused by inflicting pain or being in a dominant position raises concerns of sexual violence.

On this, the literature is far from straightforward.

Although sexual sadism is a commonly cited factor in the psychopathology literature on rape and sexual murder, the rates of sexual sadism diagnosis amongst sexual aggressors and murderers is lower than expected.

In one study of Canadian offenders only 7.9% of sexual aggressors and 16.7% of sexual murderers met the criteria for sexual sadism.

Sexual sadism is certainly a dispositional factor in some offending, but there appears to be more than mere sexual arousal motivating sexual aggressors.

Most sex offenders are motivated by immediate sexual gratification, without consideration of, or a callousness towards, consent. Only rarely does this incorporate a sadistic motivation.

Sadistic sexual offenders are more likely to prefer pornography deemed ‘violent’ which could include sadomasochist pornography.  However, attempts to tie sadomasochistic pornography use to future offending are questionable. A number of reviews have found that sex offenders consume less pornography than the general population.

Most research points to factors beyond mere fantasy as motivating offending.

Sadistic sexual offenders are more likely to have been exposed to physical and psychological violence as well as alcohol abuse during childhood and adolescence. They also tend to be motivated by a fear of being humiliated, criticised, or rejected by others.

Furthermore, sadistic sexual offenders have high rates of diagnoses of anti-social and borderline personality disorders.

Most studies find comparable rates of psychopathology amongst BDSM practitioners to the general population, making them unlikely to be a group at high risk of offending.

There are also many factors within the formalised BDSM scene which mean practitioners are less likely to become offenders.

BDSM activities carry an increased risk of injury, sexual assault and death than other sexual activities. Because of this, sadomasochistic communities implement a number of safe practices which limit harm and ensure affirmative consent.

This formalised education on consent has flow on effects on the attitudes of practitioners. For example, participants in formalised BDSM communities have lower rates of sexism and rape myth acceptance than the general population.

It should noted that formal engagement in the BDSM ‘scene’ exists on a spectrum. This means that we shouldn’t assume positive results of BDSM ‘enthusiasts’ involved in the scene reflects all those who practice BDSM.

Nevertheless, there is very little evidence to support a direct line of causation between participation in BDSM activities and sexual offending.

You Can’t Consent To This

The criminal law generally looks poorly upon the infliction of injury for sexual purposes even if it is consensual.

In the infamous case of R v Brown [1993] UKHL 19, genital torture, branding and bloodletting by a group of men was found to constitute the charges of malicious wounding and actual bodily harm, despite consent by all those involved.

Although a UK case, this remains very influential on Australia law in cases occasioning death and actual bodily harm. A few examples of people convicted for consensual BDSM:

  • In R v Stein placing a handkerchief in a man’s mouth which resulted in his death by suffocation still constituted manslaughter even though the man consented.
  • In R v McIntosh, pulling too hard and for too long on a rope as part of consensual breath play was enough for a manslaughter charge.
  • In Q v Jean Margaret Meiers, a woman was convicted of manslaughter for binding her husband to veranda pole and gagging him on his insistence, which resulted in his death by suffocation.

The Brown reasoning has been stronger in non-code Australian jurisdictions such as New South Wales and Victoria which haven’t developed comprehensive offence definitions dealing with consent to harm.

For example, Queensland recently implemented a stand alone strangulation offence, which provides the ability to consent to strangulation.

However, all jurisdictions leave open the possibility that death from a consensual BDSM act could constitute manslaughter.

The topic of consensual BDSM causing death has recently provoked controversy in the UK.

There is a belief amongst some advocates that “rough sex gone wrong” arguments are frequently being used in UK criminal courts as a “defence” to homicide in circumstances of domestic violence.

The Domestic Abuse Bill currently before UK parliament wishes to explicitly remove the ability to argue consent to serious harm for sexual gratification in cases of serious harm. This appears to reflect the common law in the UK.

Upon a quick survey of Australian cases, claims that the victim consented to the assault or injury as part of sadomasochistic act aren’t common. In situations they have been raised, they have been readily dismissed (see McGrory v R [2018] NSWCCA 226).

One area that the law has yet to tackle are claims of domestic violence within ‘full time’ dom/sub relationships.

Going ‘full time’ in the BDSM community means moving beyond session based role play of dominant and submissive roles, to incorporating such roles in everyday life.

Examples of ‘full time’ dom/sub interactions could include acting as a domestic servant for a dominant, as well as following the dominant’s various commands throughout the day.

Many of these actions would appear at first glance to constitute what domestic violence theorists call ‘coercive control’ – where actions are taken by one partner to strip the other of their autonomy.

There are strong calls to implement specific criminal laws to deal with coercive control in Australia. It is currently unclear whether this will inadvertently cover consensual dom/sub relationships.

Conclusion

Overall, BDSM is a common fantasy and sexual practice undertaken by many people.

Although there are some indictions that for certain individuals fantasies of sexual sadism increase the risk of offending, for most sexual sadists their desires are fulfilled through consensual sex acts.

The law generally takes a negative view of BDSM sexual acts, criminalising many forms of consensual BDSM activity.

With increasing concern towards domestic and intimate-partner violence it appears likely that consensual BDSM will be further criminalised.

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