It’s not the judiciary’s place to stop people having kinky sex

Judges need to stop being so vanilla — and stop meddling in our sex lives

The UK courts have a duty to protect and uphold the values of the United Kingdom — but does this duty encompass the sexual on-goings of consenting adults?

In consensual sex, sexual gratification usually does not leave a permanent (or semi-permanent) mark on the participant. However, in kinkier, consensual sex, sexual gratification is obtained from acts that fall into a grey area of the law — one related to consent to bodily harm.

This grey area of consent is further complicated by the fact that consent to bodily harm is only a defence in certain cases where the act falls into certain categories accepted by the law as in the public’s interest, including sports, tattooing, piercings and surgeries. Although it is in participating parties’ interests, sexual gratification is yet to be considered as being in the public’s interest. Subsequently, any bodily harm resulting from kinkier sex can lead to criminal charges.

Whether this is an acceptable exercise of judicial duty boils down to whether freedom of sexual expression is secondary to morality. Currently this is the accepted norm, but this should change. Sex — kinky or otherwise — is an act between those involved, not a peepshow for the judiciary to comment and critique on the basis of morality and public interest.

Prior to establishing how freedom to sexual expression has been considered second to morality, it is important to define what is meant by kinky sex. Although there are many types, the most common to come under fire is ‘BDSM’, an acronym for various sexual preferences that lie outside of the realm of ‘vanilla’ sex: bondage and discipline, domination and submission, and sadomasochism.

At the heart of every definition related to BDSM is consensual pain as pleasure. For a sexual practice to be considered BDSM, it requires a person to inflict harm or pain through suppression, physical restriction, and role-playing games on another consenting person for sexual and/or psychological satisfaction.

Consent is paramount in these activities, for both the safety and enjoyment of all those involved. According to Barker (2013), BDSM play is “safe, sane, and consensual” and must be “risk aware consensual kink.” In UK law – specifically s74 of the Sexual Offences Act 2003 — a person consents if they “agree by choice and have the freedom and capacity to make that choice.” However, this does not seem to apply to BDSM sexual activities.

As strict as BDSM playrooms may be in terms of consent and safety, as previously mentioned the UK does not recognise consent to bodily harm. As such, all the activities encompassed under the umbrella term of “BDSM” are chargeable offences, as exemplified in R v Brown.

In this case, the House of Lords ruled that consent to an act which causes actual bodily harm does not provide a defence unless the act falls within certain categories accepted by the law. As previously mentioned, any exception must be supported on the basis that the activity was in the public’s interest. The majority held that it could not be said that sadomasochism is positively in the public’s interest and so the acts were deemed criminal.

Here, it can be seen that the defendant’s freedom to sexual expression was not prioritised. When the case was heard at the European Court of Human Rights, Article 8 was closely examined. This article provides a right to respect one’s private and family life, home and correspondence, and says that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Strasbourg court upheld the House of Lords judgment on the basis that, in a democratic society, it is vital to promote health and morality. The intentional infliction of pain for the purpose of causing pain was differentiated from the infliction of pain for an ulterior non-sexual motive, however this was held to oppose the need to promote health and morality. As such, the courts are entitled to interfere in the bedroom affairs of consenting adults, provided that the actions behind closed doors are immoral.

When the courts hold morality as superior over the freedom to sexual expression, they are ruling that a fundamental freedom is less important than a subjective interpretation of actions. Morality is a subjective construct, and while it has a role within the judiciary, this should not extend to judgments on sexuality. Fetishes and fantasies are subjective and when acted out in consensual and safe environments, they should not be subject to public scrutiny.

Perhaps the UK courts should take a leaf out of former Canadian Prime Minister Pierre Elliott Trudeau’s book, when he famously stated:

There is no place for the state in the bedrooms of the nation.

The bedroom affairs of consenting adults are private matters, privy only to those involved in the debauchery.

Zaina Mahmoud is a law student at the University of Exeter.

Sources

Barker, M. (2013). Consent is a grey area? A comparison of understandings of consent in fifty shades of grey and on the BDSM blogosphere. Sexualities, 16, 896-914.