The UK House of Lords ruled 25 years ago in the case of Brown that there was no public interest in allowing individuals to consent to injuries during sadomasochistic (S&M) encounters. In Brown, the appellants had engaged in various acts ranging from whipping and branding to beatings.

The Law Lords expressed concerns about the dangers posed by these activities, particularly that they could get out of control and that the resultant harm may be greater than that which was anticipated. In their appeal, the participants, a group of largely professional men who had taken great care to ensure their activities were safe, had argued that they had a right to engage in these private sexual activities. They maintained that no harm had been caused that had not been consented to, and that their use of code words and the sterilisation of their equipment meant that there was little risk of serious injury or the transmission of disease.

These arguments were unsuccessful and where bodily harm is inflicted during consensual S&M – for example, consensual spanking which leaves a bruise – the person who has caused the injury has committed a criminal offence.

Since this ruling, academics, campaigners and even bodies charged with reviewing the law have argued that this principle intrudes too far into the private lives of individuals.

The law has certainly failed to keep apace with social change. In 2011, Fifty Shades of Grey thrust BDSM (bondage, domination, sadism and masochism) into popular culture and started a national conversation about sexual acts that had previously only been whispered about. Since then, BDSM has featured in music videos, popular fiction and cinema. It may then come as a surprise that it remains a criminal offence to inflict even minor harm during consensual S&M activities.

Time for change

Suggestions for changes to the law have included increasing the level of harm that can be consented to – allowing consent to nullify liability where injury is less than serious. It has also been suggested that as S&M may be part of a normal healthy sex life the law should never intervene when consensual injuries are caused.

There are obvious benefits to liberalising the law in this area. Personal autonomy and the right to a private life are key considerations for the law in any progressive democracy. There have, however, been a number of cases that have recently reached the UK courts that illustrate the danger of taking too liberal an approach here.

In August 2018, Jason Gaskell admitted gross negligence manslaughter after stabbing Laura Huteson in the neck during sadomasochistic sex. In December, Dean Wilkins pleaded guilty to actual body harm after engaging in – what he argued – was consensual S&M. And the trial of John Broadhurst for the murder of his partner – who allegedly died during sadomasochistic sex – continues.

If we allow consent to negate liability for injuries inflicted during S&M, it could pose additional difficulties for the criminal justice system in convicting abusers.

Unpicking whether consent has been freely given can be a difficult task in these circumstances. Those who engage in S&M are usually careful to respect personal boundaries, but there is, as the Law Lords have suggested, the potential for matters to get out of hand. S&M also necessarily relies on dominance and submission and any consent that is obtained, for example, under duress is not “real” consent.

Eroticising violence

The popularity of the Fifty Shades of Grey books and films has also prompted commentators to ask whether it is appropriate to:

Talk about ‘good’ or ‘consensual’ BDSM without taking into account the endemic levels of violence against women and the eroticising of that violence in a pornified culture.

Perhaps our greatest concern here should be that consent could be used to mask domestic violence and could provide an additional obstacle to claims of domestic abuse. It is certainly not difficult to imagine abusers arguing that the injuries they have inflicted upon their partner were part of a consensual S&M encounter.

This is the problem with too readily allowing consent to negate liability in S&M encounters. In an environment where we recognise the dangers of coercive control and one in three women experience domestic abuse we do need to think very carefully about loosening the reins here.

There are many good reasons for revisiting the principle in Brown and updating the law. Those who engage in S&M as part of a healthy sex life should be able to inflict consensual harm without being unfairly criminalised. But we also need to ensure that victims of abuse are protected. This is a delicate balancing act and it’s no surprise that successive governments have been unwilling to address the question of consent in this area.