BDSM – coercion or consensual? K3 Legal examines the limits of consent
This article was provided by K3 Legal
Can one consent to BDSM sexual acts? Can what happens in Fight Club actually stay in 'fight club' with consent? What about the line between coercion and consent? These are intriguing questions posed by cases dealing with consent in criminal law.
R v Brown is a 1993 United Kingdom case where five men were convicted for participating in consensual BDSM sexual acts with each other over 10 years. This included nailing a sensitive part of the body (read the case) to a board, which amounted to grievous bodily harm. The majority's reasoning harked back to the days of duelling – people could agree to fight, but if the fight resulted in someone being maimed or killed, consent was irrelevant to criminal charges. Similarly, taking drugs was thought to be illegal regardless of consent because of the harm it causes to mind and body. With a smattering of homophobia, the majority ruled that no consent was possible for inflicting actual bodily harm without it being sufficiently in the public interest like surgery or tattooing. Some excerpts from the judgment indicating its tone include:
Lord Templeton: 'The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless.'
Lord Templeton: 'The assertion that the instruments employed by the sadists were clean and sterilised could not have removed the danger of infection, and the assertion that care was taken demonstrates the possibility of infection.'
Lord Templeton: 'I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty.'
Lord Jauncey: 'Furthermore, the possibility of proselytisation and corruption of young men is a real danger...'
Lord Lowry: 'A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve (which can scarcely be regarded as a "manly diversion") by withdrawing the legal penalty and giving the activity a judicial imprimatur.'
Lord Lowry: 'This must include the probability that some sado-masochistic activity, under the powerful influence of the sexual instinct, will get out of hand and result in serious physical damage to the participants and that some activity will involve a danger of infection such as these particular exponents do not contemplate for themselves.'
This judgment was made in 1993 and reflects the attitudes of the House of Lords at that time. 30 years on, societal attitudes have relaxed further. For example, same-sex marriage was only legalised in 2013 in the United Kingdom. In New Zealand, R v Lee [2006] 3 NZLR 42 (CA) followed Lord Mustill’s minority view in R v Brown that consent was available as a defence for actual bodily harm unless there are good public policy grounds to exclude it which outweigh personal autonomy and the activity’s social utility. This meant that New Zealand has a much lighter touch, allowing consent in more situations than the United Kingdom.
However, the question remains where the limits of consent lie, even if they have enlarged over the intervening 30 years. While historically you cannot consent to death, the End of Life Choices Act 2019 now creates exceptions to this once-ironclad rule in New Zealand. Traditionally strict drug controls are loosening. BDSM and similar practices are increasing in awareness. Despite this line blurring, consent still is not an absolute defence, though it is ambiguous exactly when judges will and will not bar it following R v Lee.
As the scope of what we consider to be coercion has expanded in recent years (especially outside of criminal law), the scope for consent has reduced. For example, the age of consent to sex is 16 in New Zealand. However, if a 16-year-old consented to sex with a 50-year-old, serious questions would be asked about whether there was coercion, especially if the 50-year-old was the 16-year-old’s manager at work due to a power imbalance. For example, in National Standards Committee 1 v Gardner Hopkins [2021] NZLCDT 21, it was held that regardless that the young summer clerk in one incident consented and initiated a sexual interaction with a partner, the enormous power imbalance meant that this was ruled to be that partner’s misconduct. While this did not translate into a criminal conviction, it did result in the partner being suspended from practising law for 3 years.
Like R v Brown, changing societal attitudes mean that cases like R v Witika 1993 2 NZLR 424 (CA) which do not recognise the role of coercion in abusive relationships may be reconsidered today. In R v Witika, a mother was in a long-term violent relationship. The baby was abused so severely it died and the mother did not seek help. The mother was liable for manslaughter because she failed to seek help by not accessing a phone when it was available (when her partner was not present) even if she didn’t inflict the injuries herself. Her partner was also liable for inflicting the injuries upon the baby. However, little is said by the court about the degree of fear and control that exists in an abusive relationship which may have limited the mother’s ability to seek help. It was held that the level of control and coercion did not suffice for the defence of duress because the mother had an opportunity to use a telephone when her partner was not at the house. She was expected to take this opportunity and failing to do so was an omission amounting to manslaughter.
Today, there is a lot more emphasis put on victims of abusive relationships to justify why they do not take action in their own and their children’s best interests. While it is unclear whether R v Witika would be decided in the same way, it is likely that a lot more consideration would be given to these factors. Like with consent, it is inherently uncertain at what point a judge would consider that the level of control and coercion within an abusive relationship would prevent liability through a defence of duress.
