BDSM Torture Porn and the Law

By Laila Mickelwait, M.P.D   Published 18 August, 2017

Luddite

Before following the masses and engaging in BDSM acts, it may be wise to consider the fact that one can be prosecuted and sentenced to prison if someone is injured as a result. Those who promote and profit from torture porn and the BDSM lifestyle, loudly tout consent as their excuse for engaging in all kinds of torturous acts. However, a deeper look into both international and domestic law shows that they are wrong. Consent is not a defense, when assault is the offense.

The explosion of hardcore online pornography over the past few years has brought the sordid “genre” of pornography and sex called Bondage and Discipline Sadomasichism (BDSM) into the homes of mainstream society. In a previous article, titled Fifty Shades of Black and White: Five Alarming Concerns, documentary filmmaker and CEO of Exodus Cry, Benjamin Nolot detailed his objection to the dissemination and widespread acceptance of violent sexual media. He said: “The abuse portrayed is not an imagined scenario that only plays out on the pages of a book or in the frames of a feature film. Instead, it is a real and measurable offense that permeates our world.” This statement could not be more true. It is indeed a measurable offense, as this article will explore.

BDSM torture sex is physically and mentally harmful for those who are victims of this kind of aggressive and abusive sexual torture. What many may not realize is that it can be argued that engaging in BDSM torture sex can be classified as a crime and a violation of human rights.

Universal Declaration of Human Rights Article 5 and the International Covenant on Civil and Political Rights Article 7

Torture sex/BDSM is a human rights violation regardless of the “consent” of those involved. The Universal Declaration of Human Rights Article 5 states that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Furthermore, Article 7 of the International Covenant on Civil and Political Rights provides that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” In its General Comment No 7 of 1982, the Human Rights Committee commented on the prohibition of torture or cruel, inhuman or degrading treatment or punishment. The HRC made it clear that torture, inhuman or degrading punishment need not be executed by a public official in order to constitute a violation of this article.

Specifically, the HRC states:

“It is also the duty of public authorities to ensure protection by the law against such treatment even when committed by persons acting outside or without any official authority. For all persons deprived of their liberty, the prohibition of treatment contrary to article 7 is supplemented by the positive requirement of article 10 (1) of the Covenant that they shall be treated with humanity and with respect for the inherent dignity of the human person”.

Within the international human rights legal framework, there are laws that could be applied to cases of sexual torture. The defense for sexual torture is almost always the concept of consent of the submissive, however, the international laws discussed below regarding torture take no notice of arguments that the victim consented to what was done to him/her. Instead, within this framework the acts committed are off limits regardless of the state of mind of the victim, or his/her consent. Additionally, case law has shown time and time again that consent is not a defense when torture, serious harm, abuse, assault and battery are involved.

International law, consent and BDSM

By invoking international human rights law, prosecutors should be able to try BDSM torture sex acts as crimes of torture. Especially within the European Union (EU), there is no significant impediment to prosecutors from doing so, since in many EU countries, EU law and international treaties enjoy a legal status equal to that of domestic laws.

The criminality of some of the acts seen in BDSM torture sex are undeniable. Specifically with regard to commercial pornography, if the torture sex acts were to happen in any other context than that of someone being paid, and therefore induced by the payment to consent to endure them, those inflicting the torture would be brought to stand trial.

Applying the U.S. distinction, we could identify some BDSM acts as malum in se – evil in themselves-- and not malum prohibitum – evil simply because society says so. Some of the BDSM sex acts that take place both on screen and off screen are inherently harmful and cause serious injury and do constitute a form of torture. Within the scope of international law there are a select group of norms that are called jus cogens, that form the foundation of legal doctrines for acceptable civilized human existence. Torture is one of the actions that violates these sets of norms.

International law advances and progresses in various ways, which includes the decisions of regional and international tribunals and the decisions of certain bodies such as the International Law Commission (ILC), which is a group of legal experts that work to develop the United Nations’ international law. As mentioned above, the UN International Convention on Civil and Political Rights (ICCPR) Article 7 states clearly that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The ICCPR also makes nation states responsible for granting all of the rights detailed in the convention. Unlike the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the ICCPR does not require participation, knowledge, or authorization by a governmental actor, instead it can be applied to individual non-state actors. This is an extremely important concept to note. It means that individuals can be held responsible for crimes of torture and consent is not a defense to such a crime.

Consent is not a defense

The most widely used defense of BDSM torture sex is that of the so-called consent of the victim. Consent of the victim or the “submissive” is touted as a justification for anything and everything. However that defense does not hold up in a court of law.

In 1994, the House of Lords in the United Kingdom made a landmark majority decision in R v Brown that was subsequently reviewed and affirmed by the European Court of Human Rights. In this case, a group of homosexual men were convicted under sections 47 and 20 of the Offences Against the Person Act of 1861 for engaging in sadomasochistic acts, some of which were filmed. None of the participants reported the acts to the police and the acts were conducted with the apparent consent of the participants. In this case, those who acted out violently on the consenting victims were held guilty and consent was not considered a defense. In the decision, Lord Templeman stated:

"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 and result in offences".

The criminalization of sadomasochistic behavior in R v. Brown was affirmed by the European Court of Human Rights when Brown was considered at the supranational level as Laskey, Jaggard and Brown v United Kingdom (1997). In the decision, the European Court of Human Rights held that the state unquestionably was entitled to regulate through criminal law the infliction of physical harm and the Court was not persuaded that the applicants' behavior belonged to the private morality sphere and therefore excluded from State intervention. The Court also held that it was evident from the facts that the activities involved a significant degree of injury and wounding and therefore the authorities were entitled to consider not only the actual but also the potential harm which was inherent in the activities in question. The majority in the House of Lords based their decision on the extreme nature of the practices and accordingly, the Court held that the reasons given by the national authorities for the interference were relevant and sufficient. On that basis the Court decided that the national authorities were entitled to consider the interference to be 'necessary in a democratic society' for the protection of health.

Another international example of torture not being a defense, is the UK case of Rex v. Donovan (1934) 2 K.B. 498 where the appellant beat in private, a girl of seventeen for purposes of sexual gratification, allegedly with her consent. The decision clearly stated that “[i]t is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequences, and when such an act is proved, consent is immaterial.” The court went on to say “These international and European law sources appropriately recognize that, when the crime is torture, the victim's consent is almost completely irrelevant. Thus, the treaties and international customary law are correct not to take consent into account. A victim's consent to be tortured should not -- and does not -- eliminate the torturer's responsibility for his acts.”

Domestic U.S. law regarding consent and BDSM

In addition to having precedent internationally, there is not a single appellate court decision anywhere in the United States of America that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM acts. Any act of harm that is not considered to be “athletic” or “medical” is defined as a criminal act when serious bodily injury occurs, and courts have come to judge “any injury caused during a sadomasochistic encounter as being serious.” (see Bergelson, V. (2008). Consent to Harm, 28 Pace Law Review. 683 (2008) Rutgers University Legal Working Paper Series, 46).

An early example of the “consent is no defense” ruling in the United States is the People v Samuels 1967 decision in California. In this case, Martin Samuels was convicted of assault based on his behavior in a film showing an alleged consensual BDSM scene. The court not only rejected the defense of consent in this case, but also held that any such consent would be “some form of mental aberration.”. The decision clearly stated that:

“Even if it be assumed that the victim in the ‘vertical’ film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violating of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another”.
People v. Samuels was cited as recently as 2006, in People v Febrissy.

In this case, the defendant’s lawyer sought to invoke the doctrine articulated by the Supreme Court in Lawrence v. Texas, which was a sodomy prosecution of two consenting males. The Court held that without a“compelling societal interest” the government cannot make private consensual sexual activity a crime. However it is important to note that Lawrenc v. Texas also established that consent is not a defense to assault. The argument by the defense in Febrissy citing Lawrence, regarding the governments’ limits on intervening in private consensual sexual activity was rejected in People v. Febrissy because injury was involved.

Additionally, an argument based on Lawrence v. Texas was rejected in the 2004 Nebraska case of State v. Van. Van was convicted of first-degree assault on the basis of an extended imprisonment and an extremely intense BDSM/torture of a gay male “submissive”. The submissive initially consented to the acts. On appeal, Van, the defendant, argued that this was a case of “two adults who, with complete and mutual consent, engaged in sexual practices common to their homosexual, BDSM lifestyle” and as such the defense argued that Van was protected as a result of the decision in Lawrence v. Texas. The court rejected the argument based on three principles. First, the court noted that the ruling in Lawrence v. Texas contained a very important limiting phrase, stating that its doctrine only applies “absent injury to a person”. Second, the court emphasized that the evidence on the issue of consent was not clear-cut. Last and most importantly, the court held that consent is not a defense to a charge of assault, additionally citing the cases referenced above. The court said: “Our statutes defining first and second degree assault include no reference to consent… This court has held that “all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault.”

In the majority of BDSM assault cases, the testimony of the victim is central to the case, and often there is a conflict regarding the issue of consent. However, even in cases where both parties agree that the acts in question were consensual, the courts have held that consent cannot be a defense. For example in the Massachusetts case of Commonwealth v. Appleby, the Massachusetts court held that “Grimm’s consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime…” Another example is seen in the case of State v. Collier. In this case there were extremely different accounts given of the incident involving BDSM, however the judge refused to let the jury even consider the question of consent. The Appellate Court upheld the conviction and ruled that consent was not a defense.

Yet another example is the New York case of People v. Jovanovic involving an extremely violent scene between a man and a woman who had previously engaged in extensive discussion of their BDSM interests over the internet. The two engaged in a BDSM scene, and the woman victim subsequently complained to the police. Jovanovic, the defendant, was tried and convicted of assault, sexual assault and kidnapping. The Court of Appeals, although it reversed the convictions on evidentiary grounds, very explicitly stated that “[j]ust as a person cannot consent to his or her own murder as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act".

In the decision, the Jovanovic court cited the Samuels, Appleby and the Collier decisions. The Jovanovic court affirmed the fact that there is an established precedent that has been set by numerous courts across the country that consent is not a defense to a charge of assault arising from BDSM practices.

About the Author
Laila-Mickelwait

Laila Mickelwait is the Director of Abolition for Exodus Cry and the President and Founder of New Reality International. Laila has spent time working with Habitat for Humanity, the United Nations in Geneva, Switzerland, the World Federation of United Nations Associations Millennium Project, and the National Journalism Center in Washington D.C. During her time with the Millennium Project she participated in research and writing for the annual "State of the Future" report addressing the 15 global challenges, which was featured in TIME magazine and endorsed by UN secretary general Ban Ki-Moon. Featured in 98 newspapers across the globe was the section of the report Laila updated to include the issue of human trafficking and modern slavery. Laila received her Master of Public Diplomacy degree from the Annenberg School of Communications and the Dornsife School of International Relations, at the University of Southern California in Los Angeles, in conjunction with the U.S. Department of State.

In 2006 Laila became keenly aware of the need to practically serve those suffering from injustice, and she founded New Reality International (NRI), a non-profit global aid and development organization focused on the plight of orphaned and trafficked children. Laila subsequently joined Exodus Cry, and has been working in the area of the prevention and abolition of sexual slavery. Her work includes research, awareness raising, education and engaging with legislators to encourage law reform concerning the injustice of sex trafficking around the globe. Laila has presented and advocated for legislative reform at anti-trafficking conferences, the United Nations, and to policymakers all over the world, including Australia, Austria, Brazil, Canada, Hong Kong, Italy, Korea, Netherlands, Spain, Switzerland, the United Kingdom and The United States. Laila’s writing and speaking has been published in outlets such as BBC News, The Washington Post, The Guardian, Charisma Magazine and many others.

Article picture: A latex rubber slave. Fotolia.

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