Case Law
People v. Samuels
People v. Samuels was the first American case in which a court refused to extend the doctrine of violent consent to an assault and battery within an S/M context. American courts often cite this case positively for its holding. Yet, although the jurisprudence in this area has developed in large part from Samuels, a detailed discussion of it is surprisingly absent in the literature. It is a complicated case and one in which a more nuanced discussion of both the facts and the holding sheds some light as to why the court did both the right thing and the wrong thing in upholding Samuels' conviction.
A California court convicted Marvin Samuels, an ophthalmologist, of aggravated assault, as well as conspiracy and sodomy, after a photo processing company turned over to the police a film that Samuels had developed. The film showed "a gagged and naked man strung up in an unfinished room, receiving a beating with whips and lashes administered by . . . [the defendant]." There were marks on the victim's buttocks, his back, and up his body, although there was considerable debate over whether the injuries were real or staged. The victim was never affirmatively identified, nor did he appear at trial. Samuels admitted that he was a sadist, and that he made the film in order to control and release his sadomasochistic urges in ways that were harmless. He further testified that the man in the film had heard of him through the San Francisco "underground" and that he had fully consented to being beaten on the film. While he did string up the man and strike him lightly with a riding crop, the injuries were cosmetically applied and the victim was merely acting. The court noted that an aggravated assault could occur without the infliction of any physical injury, and therefore found it irrelevant as to whether the victim was actually physically injured. The state also presented unimpeached expert testimony that the films were not altered or faked, suggesting that the injuries were, in fact, real.
On appeal, Samuels argued that the jury should have been instructed that the consent of the victim is an absolute defense to the charge of aggravated assault. The California Court of Appeal rejected his argument, holding that consent of the victim is generally not a defense to assault and battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing, or wrestling. The court not only suggested that both the defendant and his alleged victim may have been suffering some mental illness, but it also explicitly refused to analogize S/M to sports. Thus, like Justice Bramwell in Bradshaw, the court drew a distinction between "manly activity" and criminal activity, even though there is arguably no difference between the level of injury that the victim can sustain during an S/M encounter and a football match. Furthermore, unlike in Bradshaw, where the victim actually died, here the victim was not even aware that the case was being prosecuted.
This case is troubling for many reasons, not the least of which is that it appears that the prosecution may have been motivated by factors other than public safety or bodily integrity. Rather, as in Bowers v. Hardwick, the United States Supreme Court case that upheld Georgia's sodomy statute, at least as applied to homosexual sodomy, law enforcement appeared to be more concerned with persecuting a gay man. The California court was clearly morally outraged that a "good doctor" would engage in such "bad" acts, judging Samuels both legally and morally.
But Samuels is distinguishable from Bowers in one very important respect. In the case of homosexual sodomy, arguments as to the "social harm" are merely rhetorical. There is no empirical data that homosexual sodomy causes any measurable social harm. In contrast, there was evidence in Samuels that the "victim" sustained actual physical injury. Furthermore, it is troubling that the "victim" was not identified. There was no way to know if the filmmaking was consensual. The case can certainly, and rightfully, be criticized in that the state may have targeted Samuels because of his sexual orientation. And it is questionable whether the state could even have met its burden of proof absent the defendant's testimony; even with it, the sufficiency of the evidence seems lacking.
Yet, if the jury believed that the man on the film had been beaten, then it arguably had a moral and legal duty to hold Samuels criminally culpable, at least if one accepts the premise that the law should limit consensual violence to highly regulated activities. Furthermore, without any witnesses there was no way to prove that the acts were consensual. Even assuming that the doctor was truthful in his statements that the injuries were staged, it should indeed give us pause for concern as to what actually happened to the "victim." Had the person on the film been a woman, would we not be concerned that she was beaten? Would we not wonder why the doctor did not know her name or her whereabouts?
Granted, this is a hard case to discuss within a contemporary context. In the late 1960's, the public was far more hostile to homosexuality than it is now, and the medical community still looked upon both homosexuality and sadomasochism as mental abnormalities. Thus, we can be sympathetic to the fact that Samuels had to conduct his sexual life underground, and may have in fact been protecting the man on the film by not releasing his name. Nevertheless, had the case somehow arisen today, we would no doubt feel a sense of ambivalence. On one hand, we want to protect Samuels and his civil right not to be singled out by bigoted law enforcement; on the other hand, we must be concerned for the safety and dignity of the unknown man on the film. Thus, in order to understand the cases that follow Samuels, it is imperative to appreciate the complexity and ambiguity of the origins of the S/M case law. In many of the cases that follow, the court both protects and prosecutes gay men, raising questions as to the relationship between violence, manliness, and sexual expression.
Commonwealth v. Appleby
The next reported case involving S/M is the 1980 case of Commonwealth v. Appleby. The facts of Appleby illustrate that the doctrine of consensual violence can protect gay men from sexual abuse just as it can persecute them based on their sexual status. Indeed, Appleby is far more analogous to cases involving battered women than it is to cases in which courts are morally outraged by homosexuality, and illustrates the difficulty in arguing that the legal treatment of S/M serves only to disguise sexual orientation discrimination.
The defendant, Kenneth Appleby, and the victim, Steven Cromer, lived together for two years in what the court characterized as a "homosexual, sadomasochistic" relationship. During that time, Cromer allegedly lived as Appleby's "servant," which meant that not only did he perform household duties, but also was subjected to beatings when Appleby was dissatisfied. The court noted that the residence looked like a military camp; Appleby owned a number of weapons and had designed a torture chamber.
Over the course of the relationship, Appleby badly beat Cromer numerous times with a bullwhip: fracturing his kneecap, once sending him to the hospital, and even beating him so severely that Cromer ran from the house in his underwear to a monastery. Cromer claimed at trial that Appleby was indeed a sadist, but denied being a homosexual himself or that he consented to the beatings. Indeed, Cromer's testimony was not dissimilar to the testimony that many abused women give as to why they stay with abusive partners. Cromer said that he suffered low self-esteem, was afraid of Appleby, and acted under duress, fearing that Appleby would harm him or his family if he did not continue the relationship.
The Massachusetts Supreme Judicial Court reiterated that consent is no defense to sadomasochistic activities, even when engaged in for the explicit purpose of sexual gratification. The court was careful to note that Appleby was in no way charged with a crime for committing homosexual acts. Rather, he was tried and convicted under a statute that implied, as a matter of public policy, that one could not consent to be the victim of an assault and battery within a sexual context.
The outcome of this case is not nearly as troubling as Samuels. In contrast to Samuels, in Appleby there was a complaining witness, as well as a great deal of evidence that Cromer was injured. In upholding Appleby's conviction, the court was protecting Cromer, despite his sexual orientation, as much as holding Appleby accountable for his violence, regardless of his sexual orientation. Furthermore, the court in Appleby goes out of its way to suggest that this is not a case directed against homosexuals, but rather focuses on the nature of the violence itself, suggesting that one cannot invoke the S/M defense in a case of assault with a deadly weapon, regardless of the victim's identity.
Had the court come to the opposite result, defendants in every case of intimate abuse, be it in same-sex or heterosexual relationships, could argue that they too had an explicit contract with their partner that included physical punishment. The progress that has been made in prosecuting domestic violence cases and holding batterers criminally liable would have been almost impossible under such circumstances. There is a common stereotype that women who stay in abusive relationships not only deserve it, but like it. Sadism would thus become a natural state for men, while masochism would become a natural state for women-arguably a relationship with which the law should not interfere.
Similarly, in cases involving homosexual men, the fear is that juries will nullify the law, finding the victims "sick" or "sexually deviant." Like battered women, abused men not only like being beat, but get what they deserve as well, albeit for different reasons. By refusing to extend acceptance of consensual violence when a defendant claims consensual S/M, the law ensures that neither gay men nor abused women are stereotyped as pathological.
Suggesting that consensual violence is a normal part of a gay lifestyle could arguably be the cause of more, not less, sexual orientation discrimination. The public perception of what is "normal" behavior in a homosexual relationship is often based on crude stereotypes of the sexual deviant. This perception is illustrated by the reaction of police officers in the case of Konerak Sinthasomphone, Jeffrey Dahmer's fourteen-year-old victim. Before Dahmer's killing spree was finally ended, the police had the opportunity to stop him and thereby save the lives of five young men. However, because the officers involved believed that violence was the norm in a male homosexual relationship, they failed to intervene, and Dahmer was free to kill again and again.
The chance to prevent Dahmer from committing further atrocities came on May 27, 1991, when two teenage cousins saw a young boy, whom they described as "butt naked," bleeding, and having difficulty speaking. The young women immediately called 911, and attempted to explain the situation to the police when they arrived. However, by this time Dahmer had arrived on the scene and the officers simply took him at his word that the fourteen-year-old Konerak was his nineteen-year-old lover.
Speaking only to Dahmer and ignoring the attempts by Konerak to speak in Laotian, the police believed Dahmer when he said that Konerak had too much to drink and wandered naked into the street while Dahmer was out getting more beer. The cousins tried to explain to the police that Dahmer was lying and that he was using physical force against Konerak before the officers' arrival, but they were ignored. According to the police, Dahmer's behavior suggested embarrassment. He told them that "everybody has to be into something." One officer later testified that Dahmer "appeared to be a normal individual" and that they were "convinced that all was well." Therefore, without running Dahmer's name for warrants or arrests, the officers helped to return Konerak to Dahmer's apartment. Shortly after the police left, Dahmer proceeded to finish what he had started and murdered Konerak.
Thus, we must be careful before suggesting that all law enforcement officers are out to criminalize male sexual deviants. As the Dahmer case shows, in many cases law enforcement expects, possibly even tacitly condones, homosexual male violence. Were the law enforcement officers enforcing the law, they would not have simply presumed that what was happening to Dahmer's victim was consensual, nor would they have presumed it to be acceptable. This case, in many respects, is similar to police responses when they arrived at a domestic violence scene. A little battering was often considered "necessary," and women often left without any protection. The holding in Appleby signals the law's willingness to provide protection to those often considered unworthy of it, again illustrating the positive effects of the doctrine.
Regina v. Brown
Just as hard cases make bad law, bad cases show us why the law is hard. Regina v. Brown is the most famous case involving gay men and sadomasochism that did not result in death. Admittedly, it highlights both the practical use and potential misuse of state power in this context. In 1993, the British House of Lords decided this case, otherwise known as the "Spanner case"-Scotland Yard's code name for the investigation. The case was highly controversial and received a great deal of press coverage and academic commentary, and is considered to be the biggest "bust" of a gay male sex club in history. Scotland Yard investigated a "ring" of sadomasochistic men who practiced at an S/M sex club, and eventually confiscated some videotapes. On the videotapes, the appellants, three middle-aged white men, along with several other men, are shown engaged in a number of sadomasochistic acts. The "victims" were younger men, one not yet twenty-one, which was the legal age of consent for homosexual activity. There was much discussion in the case as to whether the "victims" were recruited or corrupted by the defendants. The extent to which the "victims" willingly submitted to the encounters remained unclear. The state had no evidence suggesting that they were coerced or forced against their will, although drinks and drugs were involved.
The defendants engaged in a range of behaviors including maltreatment of genitalia (with, for example, hot wax, sandpaper, fish hooks, and needles) and ritualistic beatings either with the assailants' bare hands or a variety of implements, including stinging nettles, spiked belts and a cat-o'-nine-tails. There were instances of branding and infliction of injuries which caused bleeding and left scarring. The infliction of pain was subject to certain rules including "code words" that would communicate to the sadist to stop as the pain become unbearable. The activities took place in a highly controlled and private setting, instruments were sterilized, and none of the participants sought medical attention.
While homosexual activities conducted in private are legal in England, the defendants were charged under the Offences Against Person Act of 1861. The defendants pled guilty and were sentenced to a period of incarceration ranging from three to eighteen months. They appealed, arguing that the prosecution must prove lack of consent as an element of the crime.
Three of the five Lords upheld the conviction in an opinion that outlines in elaborate detail the doctrine of violent consent. Their decision is representative of the different strands of argument against S/M. Writing for the majority, Lord Templeton noted:
In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defense of consent for sadomasochistic encounters which breed and glorify cruelty . . . . Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized.
Lord Templeton clearly invoked the moral outrage argument, which could lead one to interpret the case as being anti-homosexual, if not sexually repressive.
The other Lords were more pragmatic in their reasoning, however. For example, Lord Jauncey's opinion drew heavily on the social utility of the activity itself, avoiding the moral outrage argument and focusing on the real risk of serious injury. He stated:
This House must therefore consider the possibility that these activities are practiced by others and by others who are not so controlled or responsible as the appellants are claimed to be. Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented serious injury from occurring. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is H.I.V. positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could easily inflict pain beyond the level to which the receiver has consented . . . . When considering the public interest, potential for harm is just as relevant as actual harm.
Although there was no empirical evidence introduced that S/M activities do in fact result in these harms, Lord Jauncey found the state's argument persuasive that criminalizing S/M regardless of consent was necessary to ensure the health and safety of the citizenry.
There have been few systematic studies of the effect of S/M on its practitioners. However, as William Eskridge notes, nobody who participated in the S/M club in the Spanner case claimed to be abused, and there was no evidence that any member of the club was a sociopath or had ever been violent outside of the controlled club setting. Although in the absence of proof, arguments about social harm are merely rhetorical, both the tone and substance of Lord Jauncey's opinion suggests that the court is concerned with social outcomes that transcend the particular facts of the case. The court was worried about the slippery slope of allowing consensual violence outside of a highly regulated sphere.
Both dissenting Lords argued that the case should be decided not within the law of criminal violence, but within the law of private sexual relations. Unconvinced by speculation about the potential health risks of S/M or the remote possibility that youth could be corrupted by such activity, the dissent found the majority's holding both paternalistic and exceeding judicial power. Rather, Lord Mustill's dissent argued that consent should be a presumptive defense to assault, and that the state had not produced enough evidence to overcome that presumption.
The case took on international dimensions when the defendants appealed to the European Court of Human Rights ("ECHR"). The defendants argued that their conviction constituted an "interference by a public authority" with the right to respect for their private life, and asked the court to overturn their conviction under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR unanimously upheld the conviction. First, it suggested that while the videotapes were not sold for commercial use, they were used to recruit new members, and questioned whether this involved a case of privacy at all. Yet, even assuming that the acts were private, the court likened the activities of the defendants to acts of torture, and found that the state was entitled to regulate activities involving the infliction of physical harm, whether they occurred in the course of sexual conduct or otherwise. These were not trifling or transient injuries, the court maintained. Rather, it found that the state had prosecuted not based on the defendant's sexual orientation or proclivities, but on the extreme nature of the practices themselves. The court was clear to point out that it did not need to reach the issue as to whether the state could regulate the activity based on moral grounds; it found sufficient social utility reasons to let the decision stand.
Admittedly, the Spanner case is sensational and rare. Good people can and do disagree with both the House of Lords and the ECHR, at least as applied to the particular facts of the case. The defendants did spend time in jail, and Eskridge has made a cogent argument that the court was bound to invoke the rule of lenity rather than send people to jail for private behavior that is not expressly prohibited by statute. Further, he argues that the prosecution was a misapplication of scarce prosecutorial resources.
Eskridge is correct that the facts of the case call into question the motives behind the prosecution. Furthermore, S/M sex clubs can be safe and highly regulated establishments. A strong argument can be made that S/M confined to a club setting, according to clearly defined rules and regulations, is analogous to prize fighting. Indeed, Lord Mustill argued in the dissent that Parliament ought to decide when an activity is dangerous, not the courts. Thus, legislators could license S/M clubs, like the one in the Spanner case. This would not at all be inconsistent with the sports exception.
The Spanner holding was legally sound, however. First, the Anglo-American law as to consensual violence is quite clear that consent is the exception and not the rule when one engages in activity that could cause serious bodily injury or death. The exceptions to that rule have been clearly defined, and S/M has never fallen within those exceptions. Second, the government does indeed have a legitimate interest in confining violence. True, the Lords were puritanical in their fear of people engaging in the unconstrained pursuit of their sexual pleasure. But they were also concerned as to what would happen if people were allowed to engage in unconstrained violent aggression. What is troubling about this case is the age of the alleged victims, and what appears to be a power imbalance between the parties, calling into question whether there was consent at all.
The outcome of the case may have served no social utility, in the end, but the long-term effects of allowing people to inflict serious injury on others-at least outside of a highly regulated club environment-to be a defense to sexual assault may have been even worse. Thus, the question is not what are the dangers of the law as it currently stands, but what would happen if the doctrine were reversed and consent to assault and battery was allowed as a defense in cases involving sexual as well as physical relationships. An analysis of these cases suggests that there may be more, not less, backlash and discrimination against people based on sexual orientation were the doctrine of consent extended to S/M.
State v. Collier
Take, for example, the 1985 case of State v. Collier in which the Iowa Court of Appeals was asked to decide whether sadomasochism was a "social activity" pursuant to the Iowa Code and thus exempt from an assault prosecution. In this case, the defendant, Edward "Tree" Collier, ran an outcall model business (i.e., he was a pimp). The victim, Leann Steele, worked for him as a model (i.e., she was a prostitute). According to Steele, when she returned one day without any money after an all-day encounter with a customer with whom she "did drugs," Collier got angry, locked the doors, and promised her a birthday that she would never forget. Collier forced Steele to remove her clothing and tied her spread-eagle face-up on the bed. He then blindfolded her and proceeded to whip her with a belt. Steele testified that she was struck on the thighs, legs and chest. When she began crying and asked him to stop, he slapped her across the face and gagged her. Defendant then performed sexual acts using various types of paraphernalia. He eventually untied her, beat her on the backside and proceeded to have anal intercourse with her. As a result of the beating and the sexual acts, Steele suffered a swollen lip, large welts on her ankles, wrists, hips, and buttocks, and severe bruising on her thighs.
In contrast, Collier testified that Steele asked him to tie her up and beat her in order to celebrate her birthday, as it was one of her sexual fantasies. He further testified that she had read books concerning bondage and instructed him on what to do. The court cited both Samuels and Appleby in holding that the legislature never intended sadomasochism to be a "sport, social, or other activity." However, it did not define the precise definition of this term, opting for a case-by-case approach. What is striking about Collier is that, again, the victim in this case was someone whom a jury could have found deserving of a beating, or at least not worthy of the protection of the law. She was a prostitute and a drug addict, and arguably sexually deviant by the nature of her profession. If the issue of consent was allowed to go to the jury, it may have found that she did so, given her status. Here, the practical effect of the doctrine is to check the passions and prejudices of the jury, who may in fact believe that prostitutes, like gay men, are sexual deviants, undeserving of the law's protection. Were the court to have come to the opposite conclusion, it would have given license to pimps and johns to beat and rape prostitutes, and then claim S/M. Even worse, had it allowed consent to be a defense, the court would have implied that there are "good girls" and "bad girls" and that "bad girls" get what they deserve, just as when, as a legal matter, prostitutes could not be raped.
Hence, both the ECHR and Lord Jauncey are correct that it is not enough to engage in a case-by-case analysis as to consent because there are social consequences to carving out an "S/M exception" beyond the parties in any one case. There are social messages implicit in any legal rule, and long-term consequences that far outlive the particulars of any case. By refusing to define S/M as a "social activity," the Iowa court in effect protects those who could otherwise be defined as sexually deviant and protects against what some have called a "cult of violence." The court exercises it paternalistic function to protect against violent anarchy, and, in the process, sets forth a code of conduct that protects those once deemed unworthy of protection, again reinforcing a norm of civilized masculinity.
Regina v. Emmett
People often experiment with dangerous activities without knowing what they are doing, making the risk of injury highly probable. This was precisely the problem in Regina v. Emmett, another British case decided after Regina v. Brown. The case involved a heterosexual couple who were living together and subsequently married by the time of trial so that the wife was able to invoke spousal privilege and refuse to testify. The defendant was charged under the Offenses Against Person Act of 1861, the same statute under which the defendants in Brown were charged. The case came to the attention of the police after the "victim's" doctor reported that one of his patients had suffered injuries that gave him cause for concern.
There were two instances that gave rise to the allegations. In the first instance, the defendant placed a plastic bag over his partner's head, tied it at the neck with a ligature, and tightened it to the point where she could no longer endure the pain. This is a practice known as erotic-asphyxiation, which is intended to heighten the sexual pleasure for both parties. He engaged in oral sex with her, and at some point became so lost in his own excitement that he lost track of what was happening to her. He eventually became aware that she was unable to speak, having lost oxygen. He removed the bag, and although she lost consciousness, she remained alive. The following day she went to see her doctor. She suffered from a subconjunctival hemorrhage in both eyes and had bruising around her neck-both caused by lack of blood flow to the head. It was clear that if the episode had continued, she could have suffered brain damage and eventually death. A few weeks later she returned to the doctor's office. On this occasion, the defendant had poured lighter fluid on her and lit it-again to heighten sexual pleasure. She suffered a burn on her breast that became infected, although because she sought immediate medical help, she had no permanent scarring.
Her doctor notified the police and the state arrested the defendant. He admitted to these acts, claiming that they were consensual sexual activities, although he did say that he was the one who initiated the idea to engage in S/M. He was convicted based on his own statements and the testimony of the doctor and sent given a suspended sentence. He appealed. The appellate court rejected his argument that this case was different from Brown in that it involved a heterosexual couple. The defendant further argued that his case was analogous to Regina v. Wilson, in which a husband had branded his wife's buttock with his initials, at her request. In that case, the court dismissed his conviction, suggesting that Brown did not apply to consensual activity between husband and wife where there was no injury greater than that of a tattoo. In distinguishing Emmett from Wilson, the appellate division of the criminal court of England held that here the injuries were qualitatively different and noted that a number of people had died in the last few years of erotic-asphyxiation. Emmett's activities objectively revealed a realistic risk of more than just a transient or trivial injury. This was not merely rough and undisciplined love play, but involved dangerous undertakings that carried a high likelihood of harm.
Was the court correct in disallowing consent as a defense here? Even assuming the "victim" enthusiastically and willingly consented, the court here did the right thing. Activities such as erotic-asphyxiation and burning are very high-risk endeavors, and in the course of sexual excitement, it is quite easy to be overcome by passion. By disallowing consent, the court facilitates two important policy goals. First, it protects the victim if she did not consent. We have no way of knowing if the victim, like many abused women, was afraid to testify, or if she was a loyal sex partner standing by her man. But more importantly, it serves as a deterrent to those people who "play" but do not know the rules. Mr. Emmett would not have been prosecuted if he did not cause injury, as there would have been no evidence upon which to base his conviction. Thus, the law sends a symbolic message to proceed cautiously and carefully-do not play with fire-for if you do, and someone is injured, you will be criminally culpable. Even if the defendant intended no harm, even if he knew the rules, he was no doubt grossly reckless in his conduct. Some people do accidentally die from S/M encounters that go too far, and hence, there is a clear public safety argument to be made in cases that involve asphyxiation, burning, and bondage, which, in rare cases, can also lead to death.
People v. Jovanovic
Before engaging in any sexual intimacy, both parties should consent. Yet, discerning when consent is withdrawn poses particular problems for the law in S/M. In S/M, force and resistance is part and parcel of the encounter. "No" actually means "yes." Pain and pleasure become indistinguishable. Being bad is being good. People v. Jovanovic, initially discussed in the Introduction, pushes at the edge of consent. It is a hard case, and hence a bad case for either side of this debate to hold up as an example of what is right or wrong with the current doctrine of violent consent. In most S/M cases involving heterosexual couples the question of consent becomes a "he said-she said" inquiry. In Jovanovic, however, there was independent evidence of consent beyond the defendant's testimony. The victim, a Barnard College undergraduate, was not a novice to the world of S/M. Rather, through her e-mail exchanges with Jovanovic, it is clear that she at least knew the language of S/M. Second, by her own testimony, she consented to some activity with Jovanovic-but as her e-mail fantasies became reality, she found herself at first ambivalent and then afraid. Furthermore, Jovanovic is not a pimp or a careless lover or a homosexual man involved in an underground S/M sex scene-he is an Ivy-educated graduate student.
Jovanovic illustrates the extreme difficulty in S/M cases of discerning what consent even means. Even those who initially consent to S/M encounters, as did the complainant in this case, can change their minds, unaware of what exactly it is that they are getting into, particularly with a first time partner. Furthermore, although proponents of S/M stress the role of negotiation and communication, the facts of Jovanovic indicate that the meaning of consent was, at best, ambiguous. What started as consensual S/M arguably became sexual violence.
A detailed analysis of the facts shows why this is such a bad case. According to the victim, after arriving at Jovanovic's apartment, he gave her some tea, which she found to have a chemical taste. They then looked at a book and watched a movie, both of which depicted violent sex scenes. They talked. He asked her to take off her sweater and her pants and she complied. She did not protest when he tied her arms and legs spread-eagle on a futon frame. Jovanovic went to the kitchen and came back with some candles, including a white candle in a glass. The complainant protested, asking him not to burn her and to be untied. When the glass was full of molten wax, he poured it on her stomach, then pulled down her panties and dripped wax around her vaginal area, and then onto her nipples. He then placed ice cubes where he had poured the wax. She screamed and asked him to stop. She was then blindfolded.
After about an hour of this, he untied her and carried her to his bed. She asked him not to rape, dismember or kill her. When he asked, "Is there anything else that you don't want me to do, she answered, "Yes, don't do anything that you can get arrested for." When he responded, "Do you think that I am going to get arrested for this?" the complainant replied that he would have to kill her if he did not want to get arrested. At this point, he said, "That's easily enough done," and pinched her nose shut and put his hand over her mouth for a minute until she felt dizzy.
He told her that she needed to learn self-defense and that the only victim who had escaped Jeffrey Dahmer was proficient in martial arts. He hog-tied her so that she was on her stomach. He next retrieved two batons from the closet, and penetrated her rectum with either a baton or his penis, causing her intense pain. She next remembered waking up sometime the following morning. He untied her and tried to give her self-defense lessons, and when she tried to run away, he tied her up again. Eventually she freed herself, fought him off, got her clothes and left.
The day after the encounter, Jovanovic e-mailed her again, saying that she had left her gold chain in his apartment. He also said, "I have the feeling the experience may not have done as much good as I'd hoped, because you weren't acting much smarter at the end than you were at the beginning." She replied that she was "purged by emotions, and pain," and that while she was "quite bruised mentally and physically" she was "never so happy to be alive."
After the victim reported him to the police, Jovanovic was charged and convicted of kidnapping, sexual abuse and assault, which created some doctrinal difficulty for the court. The New York Supreme Court, Appellate Division opinion makes clear that consent is a defense to kidnapping and sexual abuse and thus the e-mails are relevant to Jovanovic's state of mind as to the reasonableness of his own belief that the victim was consenting. They also show the victim's state of mind as to whether she did consent, calling into question her credibility. The victim apparently admitted in the e-mails that she was involved in another relationship with someone. She wrote, "[H]e was a sadomasochist and now I'm his slave and its (sic) painful, but the fun of telling my friends 'hey I'm a sadomasochist' more than outweighs the torment." She later wrote in response to Jovanovic's question as to whether she was submissive sometimes, "I am what those happy pain fiends at the vault call a 'pushy bottom.'" Thus, the court is correct that these e-mails are relevant to the issue of consent and suggest why the complainant may have motive to fabricate non-consent as to the sexual assault and kidnapping charges.
But what about the assault and battery charge? Jovanovic never took the stand, and thus his attorney did not suggest that Jovanovic admitted to the encounter, but that, if he did, he should still be able to show that the victim consented as to all charges, including the assault and battery charge. The court agreed and held that "upholding the conviction on the assault charges, as the dissent suggests, would ignore the prejudice resulting from Jovanovic's inability to adequately challenge the complainant's credibility and reliability."
In a footnote, the court rejected the defendant's argument that there is a constitutional right to engage in S/M and qualified this holding stating:
There is no available defense of consent on the charge of assault. . . . Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, . . . a person cannot avoid criminal liability for an assault that causes injury or carries with it a risk of serious harm, even if the victim asked for or consented to the act. . . . And, although it may be possible to engage in criminal assaultive behavior that does not result in physical injury, we need not address whether consent to such conduct may constitute a defense, since the jury clearly found here that the complainant was physically injured.
There is a complete logical disconnect between this statement and the court's holding. Jovanovic never claimed that the injuries the victim sustained were inflicted by someone other than himself, and there was corroborating testimony from a neighbor who heard sounds as if "someone was undergoing a root canal." Furthermore, the complaining witness promptly told five people about the encounters, and some observed her injuries. In addition, the complainant went to a hospital. Lab results on her clothing corroborated injury. She was bruised and suffered burns from candle wax, and was physically restrained for an extended period of time. These injuries go far beyond a little love play that just got out of hand.
If consent is not a defense to assault, what legal relevance do the e-mails have to the assault and battery charge? Arguably none. The e-mails in no way disprove that she was either not injured, or that someone other than Jovanovic caused the injuries. The dissent correctly points out that her corroborated testimony was sufficient as a matter of law to uphold the assault charges and that the trial court's instruction that consent was not a valid defense to that charge was proper. By not separating out the sexual abuse and kidnapping charges from the assault charge, and thus reversing the entire conviction, the Appellate Division implicitly suggests that the jury could have found that she consented to the violence that was part of a sexual encounter.
The majority is doctrinally sloppy in its analysis and too quick to reverse the entire conviction. What is striking is that, unlike in Collier, where the court passed no moral judgment on the prostitute, here the court is skeptical and judgmental of a young college woman who might be curious about S/M. In taking issue with the fact that Jovanovic was portrayed as a monstrous sadist, while the complainant was portrayed as a naïve and innocent girl, the court stated:
The excluded e-mails stating that the complainant and Luke [another man] had a master-slave relationship that included the infliction of pain, and that the e-mail in which the complainant referred to "the pain fiends at the vault" and herself as a "pushy bottom," i.e. a masochist who pushes the dominant partner to inflict more pain than intended, would have enabled Jovanovic to provide a counterpoint to the People's portrayal of the complainant and avoid the prejudice potentially created by the unbalanced portrayal. It would also have permitted Jovanovic to effectively place the complainant in a somewhat less innocent, and possibly more realistic, light. For instance, the complainant made certain remarks in her e-mails, such as "rough is good," and "dirt I find quite erotic," for which she provided the jury with completely innocent explanations. Defendant was unable to plausibly offer alternative, more suggestive readings of such e-mail remarks, as long as the jury was unaware of the extent of the complainant's interest in sadomasochism.
Here the court suggests that "she asked for it, she got it," or that she at least should have known better. It is a classic "blame the victim" decision. The court is clearly repulsed by her interest in S/M, and is far more sympathetic to a "good young man" than to a "bad college girl."
The New York Court of Appeals was intellectually lazy in upholding the Appellate Division's opinion. In two short sentences, they held that because the e-mails are admissible under the "interests of justice" exception to the Rape Shield Law, they had no authority to overturn. Yet, the court failed to explain how the e-mails would be relevant to the assault charge, and, as such, now opens the door for other defendants charged with both sexual abuse and physical assault to introduce evidence of consent as to both charges by invoking the S/M defense.
In the vast majority of cases where defendants have invoked consensual S/M as defense to a sexual assault charge, other courts have consistently held that evidence that the victim may have been interested in or engaged in S/M in the past is barred under Rape Shield Laws. The Appellate Division breaks with precedent not only on questions of substantive criminal law, but on the applicability of evidentiary issues as well. Even more appalling is that both the Supreme Court and the Court of Appeals failed to engage in any historical or doctrinal analysis of consensual violence itself and the relationship between sexual and nonsexual violence. They would have been well advised to consult both Brown and Jobidon before rendering an opinion.
The New York County District Attorney's Office has said that it will retry the case, a decision that has incited public controversy. Many believe that it was Jovanovic, and not the complainant, who was the victim, and that the District Attorney is being over-zealous, anti-male, and sexually puritanical. After the decision, the District Attorney's office offered Jovanovic a no-jail sentence if he plead guilty. Already having spent more than twenty months in jail, Jovanovic refused, claiming that the sex was consensual. This decision, and the public reaction to it, ought to give pause to those who understand that the costs of a system of unrestricted freedom fall most directly on women, who are at most risk for abuse and exploitation.
In a Bind
Yet, S/M, in theory, need not offend feminist sensibilities when one begins with the premise that it is an activity rooted in sexual autonomy. Thus, for example, the National Organization of Women ("NOW") has started an S/M policy reform project to reverse the organization's stance against the practice as dehumanizing to women, instead arguing that it promotes physical and sexual expression. Sex and erotic desire can be positive and liberating for women, and some have argued that the question of S/M is intricately related to issues such as abortion and access to birth control, fundamentally being a question of sexual autonomy, not sexual violence.
Furthermore, many women in same-sex relationships embrace the practice of S/M, and thus the demarcation between man as sadist and woman as masochist is blurred. From this liberal, autonomous feminist perspective, women, like men, can freely make decisions. Indeed, there are both social and biological reasons as to why both receiving and inflicting pain on another is pleasurable and desirable for both women and men. By stigmatizing S/M, the law implicitly pathologizes women and denies them the same sexual agency that men have. Just as in the Spanner case, the Paddleboro case, discussed in the Introduction, raises the issue as to whether the law of S/M will now be used to persecute women who are involved in same sex relations. It remains to be seen whether this is an isolated incident or an emerging pattern but the fear remains that women may be once again denied sexual agency through selective prosecution or restraints on sexual agency.
In addition, the case law represents only a tiny portion of the range of S/M experiences. While traditionally we think of males as sadists and women as masochists, the world of S/M twists and plays with power relationships. Consider the following interview by Lauren Goodlad with two women who each work as a dominatrix:
Lady Alfonsa describes herself as a therapist, not a sex worker. Since 1991 she and her partner, Mistress Midori, have built up a cottage industry in domination-for-hire. Their "toys"-the men and women who employ their services-are bound, disciplined, and punished. Most are successful professionals in positions of authority.
"If it is not sex that you are providing," I ask, "why do they come to you?"
"They want to be controlled," Alfonsa replies.
"They want," Midori says, "to be brought to the breaking point-especially the men."
"And what is that breaking point?" I ask.
Midori reflects for a moment.
"Usually when they cry."
This interview illustrates that power and powerlessness are mutable; they are not gender specific or role specific. The argument that S/M is a male construct does not fully account for the many roles that people play. Males may indeed crave a sense of powerlessness, just as women can crave power. From this perspective, then, S/M promotes, not inhibits, women's sexual agency.
In contrast, some "regulatory" feminists, such as Andrea Dworkin and Catharine MacKinnon, argue that consent is illusory within a male dominated context as the social system serves to make women subordinate. Within the context of S/M, there could be no consent, even if a woman says yes, given the misogynistic and violent patriarchal culture in which we live. Consent is merely an expression of the "false consciousness of the oppressed." Thus, "that women on occasion take pleasure in their own submissiveness, is simply a manifestation of their disempowered state."
Others reject the idea that sadomasochistic encounters are informed by open negotiations. "It is rather more likely that the participation in sadomasochism is predetermined to varying degrees so that the ritual of consent is empirically irrelevant." And there is at least anecdotal evidence to suggest that some people often agree to engage in some form of S/M, only to regret it later. For many, there is a clear gender distinction between men's and women's experience with pleasure and pain. As Robin West has argued, "Women's subjective, hedonic lives are different from men's. The quality of our suffering is different from that of men's, as is the nature of our joys. . . . Women suffer more than do men."
The problem, then, from a feminist perspective, is that there is no one perspective on S/M. Both liberal and regulatory feminists point to both the good and the bad of S/M for women. S/M is hard for feminists, as it is unclear whether it promotes sexual agency or promotes sexual exploitation or both. In practice, whether S/M is an exercise of individual autonomy or social coercion is far more dependent on the particulars of the situation. It may very well be that within same-sex female relationships, the concerns over power and exploitation are less salient. Furthermore, even the context of Jovanovic, the complainant felt, in her own words, simultaneously liberated and oppressed. What makes Jovanovic such a bad case for feminists is that we want her to be both free from social restraints to explore her sexuality, and we want the law to set boundaries for her sexual partner and, to some extent, herself. Yet, it becomes impossible to have it both ways-tied up and tied down.
Even if one is theoretically persuaded by liberal feminist arguments that consent can be real and that, for many women, S/M actually promotes, not punishes, women's sexual pleasure, at some point the law must draw lines. Not even liberal feminists would suggest that it would be acceptable to inflict death or to maim someone for some sort of sexual gratification. Thus, the question is not whether the broad concept of S/M is good/bad for women, but rather, how far is too far?
Professor Stephen Shulhofer has argued in Unwanted Sex:
The effort to distinguish permitted from prohibited force pulls the law into a hopeless quagmire, with under-enforcement the inevitable result. But this problem can't be solved by moving the line between the two kinds of force to a slightly different place. What is perhaps more surprising, and certainly more frustrating, this problem can't be solved by prohibiting all uses of force. That approach won't avoid the vagaries of distinguishing permitted from impermissible force, because physical activity, some of it forcible, is inherent in intercourse. And many of the other physical aspects of sexuality, though not inherent in intercourse, are expected and pleasurable, provided that there is consent.
True, to prohibit all force would be ridiculous. But giving consent a legal definition that embodies the notion of negotiation, qualitative and informed decision-making will not necessarily make for a better legal regime of sexual autonomy either. Inevitably, the law will find itself in somewhat of a quagmire within the S/M context, deciding on a case-by-case basis how far is too far and when the risk of serious injury and death is too great. In this context, the law must not only balance sexual agency with concern for coerced choices, but it must factor in the level of violent aggression, even if consensual, that the state will tolerate. As soon as women, in particular, start to embrace violence that is outside of a competitive, regulated sphere, they will no doubt find that they once again will become the victim, and not the victors, in the struggle for sexual autonomy and equality.
If S/M that resulted in actual serious physical injury were to be decriminalized, there would no doubt be a series of consequences, intended and unintended. For example, if the law of consensual violence mirrored the law of consensual sex, a defendant could not be held criminally culpable if his belief that the victim consented was both honest and reasonable. Many commentators have argued that reasonableness has a social meaning, or as one court stated, "It is time to put to rest the societal myth that when a man is about to engage in sexual intercourse with a 'nice' woman, a little force is always necessary." Force and resistance are often evidentiary as well as legal standards by which the reasonableness is measured. Thus, if a victim is physically injured in the course of a sexual encounter, the force applied by the defendant often negates the reasonableness of his belief in consent, as we assume that reasonable people cannot and do not consent to being beaten. Physical injury is often the only evidence, beyond the victim's testimony, that proves the element of non-consent. It is far easier to prosecute a rape case when the victim is injured than it is if she has sustained no bodily injury at all.
In contrast, in the S/M context, force and resistance are actually consented to by the parties. And thus, in almost every sexual encounter the defendant could argue that he was reasonable in believing that the other person consented to injury. Even if the victim withdraws consent by shouting no, no means yes. Even if she struggles and is injured, pain is the ultimate cathartic experience. If consent were allowed as a defense in the S/M context, defense attorneys would have carte blanche to raise it in every sexual assault case where the victim is injured. This would essentially gut rape law jurisprudence as it now stands. So too could defense attorneys raise the S/M defense in many cases of domestic violence, undermining the slow and steady strides the law has made in sanctioning male violence.
If courts extended the consent doctrine to S/M, not only could this in practice be used to justify violence against women, but it could also, at a more theoretical and abstract level, reinforce oppressive cultural norms. It is notable that the literature on S/M rarely makes any reference to race. Indeed, the mainstreaming of S/M seems to be taking place among the upper middle class, which is predominately white. The language of S/M-slave, master, bondage, domination-may have a particular meaning within consensual sexual activities, but it derives from a history of legal racism and slavery. It is important to understand the multiple and complex meaning of these concepts and why, for some at least, the whole notion of S/M could be considered dehumanizing when examined within a larger cultural context.
For centuries, racial sadists abused their powers to inflict pain on slaves. Many arguments about maintaining slavery were premised on the assumption that slaves preferred it that way. The dynamic of slavery is the same dynamic of power and powerlessness in sadomasochistic relationships, in many respects, even though in the latter we presume consent. Within this historical context, we must ask ourselves if (white) America's fascination with S/M is not more deeply rooted in a collective cultural consciousness that still assumes women and racial minorities should be subservient to white men. Consider that S/M fantasies often involve the binding and whipping of the "slave" by the "master," evoking the image of white slave owners disciplining slaves in Antebellum America. There are implications to opening up the Pandora's Box of consensual violence, not the least of which is that it sends a symbolic message that some forms of sexual oppression are acceptable so long as the oppressed party says yes.
Perversions of S/M, or not by-the-book S/M, can have horrible dehumanizing results, affronting concepts of human respect and dignity. Take, for example, the case of John Edward Robinson. Going by the name of "Slavemaster," Robinson would strike up Internet relationships with women interested in sadomasochism. When two women traveled to meet him face-to-face, both claimed that he brutalized them far beyond what they had intended. Upon his arrest, a search of his property turned up two dead women. Later, three more bodies were found in his storage locker. Robinson had also been in another relationship with a woman who had allegedly signed a "slave contract," for which she paid him $17,000. True, Robinson is nothing more than a serial killer who used the Internet as a way to find victims. He represents a new kind of cyber-sex criminal, something which has given the Justice Department great pause for concern. But apart from his ability to lure women to him under the guise of S/M, what about the "sex slave" contract he had with another woman? Enforceable? Sexual slavery violates human rights and sexual slavery contracts are arguably void on public policy grounds.
Return to Menu