'To Buy or Not to Buy? Vulnerability and the Criminalisation of Commercial BDSM' (Edinburgh School of Law Research Paper No. 2013/37) by Sharon Cowan
examines
the interaction of law and policy making on prostitution, with that of BDSM (bondage and discipline, sadism and masochism). Recent policy and legal shifts in the UK mark out prostitutes as vulnerable and in need of ‘rescue’. BDSM that amounts to actual bodily harm is unlawful in the UK, and calls to decriminalise it are often met with fears that participants will be left vulnerable to abuse. Where women sell BDSM sex, even more complex questions of choice, exploitation, vulnerability, power and agency might be thought to arise. Does the combination of activities take two singular behaviours into the realm of compound harm? Are those who sell BDSM doubly vulnerable in a way that would justify criminal intervention? This paper argues that in imposing categories of vulnerability, the state engages in the heteronormative construction of risky sexual subjects who must be rehabilitated, responsiblised or punished. Through an examination of existing empirical studies on BDSM, the paper offers a feminist critique of the potential criminalisation of commercial BDSM and calls for more research on the lived experiences of those who buy and sell BDSM.
In discussing the Max Mosley 2008 litigation against
News of the World Cowan comments -
Justice Eady ruled that with respect to his acts of commercial (heterosexual) sadomasochism with prostitutes, Mr Mosley was entitled to privacy, no matter how unconventional his sex life. It may well be that this is not contradictory to the finding in R v Brown - although Mosley was paying for BDSM sex, perhaps neither he nor the sex workers was criminally charged because the level of ‘harm’ inflicted was so minor. However, as I have argued elsewhere, the level of harm is never the sole driver of criminalisation; even where injuries are extreme, criminal punishment is not inevitable, as in the case of R v Slingsby, where a man, having inserted his fist into his female partner’s vagina whilst wearing a signet ring, was later acquitted of manslaughter when she died of septicaemia. In other words, although it might seem to be Max Mosley’s, or indeed his sex workers’, perceived lack of physical or psychic vulnerability or injury that makes this encounter non-criminal, it may in fact have more to do with our social expectations and norms around ‘good’ (kinky) versus ‘risky’ (sado-masochistic) sex.
This is not to say that Mosley’s sexual encounters fully accord with hegemonic hetero-monogamous norms; rather that he does not altogether challenge those norms. Although Mosley was engaging in multiple partner, commercial BDSM sexual power-play (including switching between dom/sub roles), the framework remained one of heterosexuality, and the court and press emphasised the ‘kinky’, low-end nature of his activities. Indeed the most problematic question that seemed to capture the attention of the public (and formed the basis of his suit against the News of the World) was whether or not Mosley had engaged in offensive behaviour by re-enacting Nazi scenes.
Popular culture has played a significant role here. Films such as Secretary, the press coverage of Max Mosley’s libel suit, music, literature and adverts have all brought SM into the public imagination, and been vehicles for the portrayal of ‘low-end’ SM as sexy and titillating (rather than disgusting, risky and criminal) (Wilkinson 2009; Langdridge and Butt, 2004; Pa, 2001). Khan points to this popular culture embrace of kinky SM sex as having occurred only within “particular heteronormative strictures” (2009a: 117), or where, as Wilkinson (2009) warns, a ‘heteropatriarchal’ version of SM becomes the norm, thereby resulting in ‘SM-normativity’. Here, it seems as though concerns about the potential vulnerability of those engaging in SM (whether commercial or not) can be assuaged where SM is cast, heteronormatively, as kink rather than as the extreme behaviours of sexual deviants; the question of vulnerability collapses on to the question of what kinds of SM are engaged in by whom. Likewise, as Khan (2009b) has argued, although law and other discourses, such as film, sometimes allow space for women to take on a dominant BDSM role (commercial or otherwise), this is often countered by a disciplinary move that attempts to contain the woman within a more traditionally heteronormative and submissive role.
In contrast to this rose-tinted depiction of kink, those who transcend the norm struggle to represent themselves in a ‘sympathetic’ way, or as meriting privacy. Deckha argues that where SM has “glamorous” – e.g. Hollywood - connotations, it is more likely to be publicly acceptable and idealised, but if it is perceived as the practice of a sexual ‘underclass’ then it can provoke anxiety about its sordid and deviant nature, thus revealing an ‘othering’ process “enabled by oppressive class and racial knowledges” (2011, 140). This presumably will be doubly so where BDSM occurs in the context of prostitution, which is an activity marked also by stigmatising ‘othering’ discourses (Scoular and O’Neill 2008). However, as Hoople notes, even where SM practitioners do get to represent themselves in popular culture, they may yet be read as (classed, racialised and gendered) caricatures, because they are “inserted into the dominant cultural codes that regulate the production of meaning within that field and which produce SM as kinky sex (eroticized misogyny, a cult of violence etc) in the first place” (1996, 197).
