The Role Of Sadomasochism In Criminal Law

A major challenge facing criminal law in the contemporary era is where the courts will not validate consent regarding sadomasochism, but they will in cases of more serious harm.

In A-G Ref (No 6 1980) Lord Lane CJ held that it is not in the public interest that actual bodily harm should be caused to another for no good reason, regardless to whether it was committed in private or public. Any harm intended or caused cannot be consented to, unless it is satisfied under the specific exemption categories; the case of Brown followed this judgment. Brown was a landmark case which identified controversial issues in regarding sadomasochistic acts and consent. In his judgment, Lord Templeman referred to sadomasochism as being evil and uncivilised,

psychopaths commit criminal acts maliciously and intentionally whereas sadomasochists seek pain and humiliation in the context of love and sex, other situations of abuse and violence are highly disliked by a true sadomasochist. Psychopaths divulge in this abuse and violence and should be prosecuted, sadomasochists should not. The acts of ABH and GBH that are committed through sadomasochism are seen as criminal, but sadomasochists are acting instinctively to be satisfied sexually like other people who experiment during sexual relations. Therefore the courts who intervene in these situations are violating the right to respect one’s private life (Article 8 of the Human Rights Act 1998). Laskey v UK brought this case to the Justices of the European Court of Human Rights. The court found that this convention was violated, yet the interference was necessary for the protection of the health of the individuals. This creates a disadvantage for society since this assumes that their private life can be

It is for Parliament to remedy the gap in the law where they have failed to accommodate contemporary situations since Brown was decided. Providing relevant law which aids judges in deciding on cases involving sadomasochism prevents the judiciary for solely prosecuting for the violence, but it accommodates the accepted acts of a contemporary society. The values and norms in society have changed over the past twenty years where sadomasochistic activity is now accepted as normal practice through opinions and the portrayal in the media. It seems that the challenge is that the law is not keeping up with the attitudes and values of society, and this prevents the potential to find sadomasochistic behaviour acceptable and not incriminating, in circumstances where it does not involve the risk of taking