The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults”

Sharon Cowan

in Essays in Criminal Law in Honour of Sir Gerald Gordon

Published by Edinburgh University Press

Published in print October 2010 | ISBN: 9780748640706
Published online March 2012 | e-ISBN: 9780748651450 | DOI:
The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults”

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This chapter 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. It 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 argues 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. It is possible, therefore, that those practising SM sex have cause to be optimistic about the role of the Scottish courts in rendering their sexual choices legitimate.

Keywords: criminalization; sexual practices; sado-masochism; sexual violence; consent; Scots law

Chapter.  6691 words. 

Subjects: Criminal Law

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