In late 2004 I penned a column discussing what I perceived to be the rather ham-handed approach of some courts to the use of consent as a defense to criminal assault. The troubling implication of this is the possibility that people could be prosecuted for harmless, private and fully consensual sadomasochistic activities. However, the out-of-hand treatment of the consent issue in these cases could be explained by the troubling particulars of each case, and one could reasonably hope that future decisions would consider the issue more deeply.
Rugters professor Vera Bergelson's new article, "The Right to be Hurt: Testing the Boundaries of Consent," presents just the sort of thorough consideration of the issue I'd been hoping to see. Alas, along the way she points to larger collection of English and American cases -- stretching from 1934 to 2004 -- consistently rejecting any consent defense for purported sadomasochistic activities. The reported facts of these cases underscore that the factual problem of consent here is similar to that in rape cases, to wit, there exists the possibility both of false accusation by a willing "victim" and (perhaps more likely) false assertions of consent by the accused. Courts dodge these difficult determinations by rejecting the consent defense wholesale.
Bergelson's own analysis begins from the premise that issue of consensual "harms" must be treated comprehensively, considering a range of truly disparate phenomena ranging from sadomasochism, to elective amputation, to various kinds of consensual killing. (Doubtless, various readers are going to feel offended at the very idea of comparing x with y.) Examining the way these diverse issues have been previously dealt with in case law and commentary, Bergelson attempts to systematically demonstrate the inadequacy of various principles relied upon in resolving them.
Ultimately Bergelson proposes a "balance of evils" approach to consent defenses, quite similar to other justifications in criminal law. With the respect to the issue I originally was interested in -- consensual sadomasochism -- this approach has the virtue of providing an alternative result to the case law to date without the specter of a slippery slope. While courts have strained to bring sadomasochism within the ambit of "serious injury," it's clear that typically the physical harms involved will be so trivial (or nonexistent) as to "be justified by the mere fact that its participants desired it." The more troubling cases, involving lasting bodily harm or loss or death, will require much greater justification, and some will never be justifiable.
I suspect that Professor Bergelson's approach will not soon be wholeheartedly embraced by judges, particularly in cases where consent itself is disputed. But her thoughtful discussion of the issue is valuable indeed.