The report comments
Section 182(4) governs what is commonly known as ‘consensual assault’, which refers to circumstances where an assault has been committed but the victim has consented to the act in question. Due to the wide definition of assault, the situations where questions of consent can arise are quite varied, from mutually agreed brawls and sporting contests to some forms of sexual activity.
Prosecutions of assaults and other serious offences of violence are commonplace in the criminal courts. As a rule, such cases involve a non- consenting victim. However, occasionally, cases involving a consenting ‘victim’ also make it to court. These are cases where the parties involved have willingly exchanged blows or inflicted violence upon each other, for example, where two individuals resort to a fist fight to resolve a disagreement. Section 182(4) of the Criminal Code sets out that where a person consents to an assault, then that assault will not be unlawful, save for certain circumstances where the Code sets out that consent will not be valid.
This section poses difficulties for the criminal justice system and legal scholars alike. The language used is archaic and open to wide interpretation, and case law provides at times contradictory guidance. In the search for a principled distinction between lawful and unlawful consensual assault, courts and legislatures have been obliged to balance public policy justifications for refusing to condone violence regardless of consent against competing claims of personal autonomy. This has proved to be no easy task, particularly in Tasmania.
This Final Report examines the current law on consensual assault in Tasmania which is contained in s 182(4) of the Criminal Code. It traces the history of this provision from its roots in the common law, and explains how successive common law authorities have informed the judicial interpretation of the provision. The Report contends that some aspects of s 182(4) lack clarity and do not reflect current concerns about when the law might appropriately negate consent to assault. It also expresses concern that the provision reflects an outmoded view of when consent should or should not operate as a defence to assault and leaves those who are particularly vulnerable to violence in the home outside the protection of the law. The Report subsequently lays out a number of recommendations, attempting to strike an appropriate balance between respecting the personal liberty and autonomy of citizens and the public interest in preventing and condemning violence.The Institute recommends
R1 s 182(4) of the Tasmanian Criminal Code 1924 should be reformed to modernise its operation and scope and to remove uncertainties as to its application and interpretation.
R2 s 53(c) of the Tasmanian Criminal Code 1924 should be amended to modernise its language by deleting the phrase ‘maim injurious to the public’ and replacing it with ‘grievous bodily harm, disfigurement or a disabling injury’. S 182(4) should be amended to proscribe consent to assaults committed by adults in private in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults.
R3 s 182(4) not be repealed but that instead it be reformed, with s 2A amended to specify that a person does not freely agree to an act if that act occurs in circumstances of family violence within the meaning of the Family Violence Act 2004 (Tas).
R4 s 182(4) should be amended to remove the conditions that currently abrogate consent to assault — that the assault be ‘otherwise unlawful’, ‘injurious to the public’ and ‘a breach of the peace’. Section 182(4) should be amended to provide that consent will not be a defence in respect of assaults committed by adults in private, where they occur in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; in respect of assaults committed in public, where they are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; or where the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted. For the sake of clarity, s 182(4) should also provide that nothing in that section is intended to deprive people of the ability to consent to medical and surgical treatment or of the ability to participate in sporting activities, ordinary rough play and lawful public entertainments.
R5 The Institute does not, at this stage, recommend amending the Family Violence Act 2004 (Tas) to make violent conduct engaged in in the presence of children a family violence offence. Such reform should only occur following a dedicated study that draws on the experience and views of a wide pool of stakeholders, a pool that includes a large number of advocates against, and experts in, family violence.With the 'Spanner' jurisprudence - eg R v Brown [1994] 1 AC 212 - in mind the Institute states
As it currently stands, consensual violence will be unlawful if the Crown proves that the assault is ‘injurious to the public’ (as well as each of the other requirements of s 182(4)). This does not mean that the Crown is required to establish that the activity is positively harmful, merely that it has no social utility. However, this position, that private violence, which risks harm only to the consenting participants, must have positive social consequences if it is to escape penalisation, is by no means compelling. Arguably, the appropriate question for the court is not, ‘has the prosecution proved that the activity serves no beneficial social purpose’ but rather, ‘has the prosecution proved that the activity is positively harmful’.It goes on to comment
It is the Institute’s position that s 182(4) should be amended to incorporate updated language, and to bring it into line with contemporary societal expectations. As discussed earlier in this Report, in addition to archaic wording, judicial construction has resulted in inconsistent interpretations of s 182(4). Proceeding from an understanding that s 182(4) does have a valid role to play in relation to consent to assault, it follows that it should work in all contexts where consent to assault may be a matter of concern, including in both the public and private spheres. At present, it is apparent that s 182(4) has a limited role, if any, to play in the private arena. This discrepancy should be resolved.
The Institute recommends against absolutely disallowing consent in family violence contexts. Such an approach is unjustifiably paternalistic, and would amount to the Code providing as a matter of law that all relationships involving family violence are inherently the same. Given the earlier discussion on the typologies of family violence, such a position is not tenable. Individual family circumstances differ significantly. Consequently, the possibility of consent in family violence scenarios not amounting to free agreement should be dealt with by reference to s 2A.
The Institute is mindful of the need to avoid abrogating consent to assault too broadly and capturing generally acceptable behaviour. For example, while the Institute agrees with submissions that the question of consent to assault between adults in private should largely be governed by s 2A of the Code, where such violence occurs before children, there is merit in abrogating consent under s 182(4) unless the assault is beneficial to the person assaulted in a way that goes beyond mere gratification of that person’s desire to participate in the assault. A reform couched in these terms will target the unacceptable quality of the violence (the fact that it is perpetrated in the presence of children) while avoiding criminalising acceptable conduct, such as sporting events, legitimate entertainment and beneficial personal contacts.
As explained earlier, the ‘otherwise unlawful’ requirement in s 182(4) creates a barrier to its operation in private contexts and is the main impediment to s 182(4) operating consistently in both the public and private spheres.
However, removal of this requirement may result in some conduct being criminalised when, perhaps, it should not be. An example would be consensual sadomasochistic sexual activity. To this end, the Institute suggests that any reform should avoid terms that are vague and open to widely varying interpretations which may enable biased or discriminatory views such as those evident in Brown’s Case to inform decisions about whether consent is lawful. Accordingly, the Institute takes the view that where there is genuine consent, that consent should be abrogated only where there is some aggravating circumstance that justifies the law intruding into the matter. For assaults in private, such a circumstance is supplied where the assault occurs in the presence of children and it is not performed for the benefit of the person assaulted, or otherwise than to gratify the combatants desire to participate in violent behaviour. The latter circumstance also supplies public fighting with an element of wrongfulness that might otherwise not exist where there is consent.
Accordingly, the approach recommended by the TLRI resembles that advocated by the Director of Public Prosecutions. However, the Institute suggests a slightly different reform for s 182(4). Where assaults between adults in private are concerned, the question of consent should be governed almost entirely by s 2A. There should be an exception where the assault occurs in the presence of children and it is of no benefit to the person assaulted beyond mere gratification of that person’s desire to participate in the assault. This approach avoids criminalising conduct of the kind that occurred in Brown’s Case as well as legitimate private sporting or entertainment activities. It also accords with submissions to the Institute that recommended that consent should be immaterial in relation to assaults committed in private in the presence of children. With regard to assaults in public places, the Institute suggests abrogating consent where the assault is of no benefit to the persons assaulted beyond mere gratification of their desire to participate in the assault. Again, this avoids criminalising sporting contacts, acceptable entertainment, and beneficial personal contacts. An example of the last might be where one person thumps another on the back during a coughing fit or performs Heimlich’s manoeuver to prevent someone choking. Additionally, the Institute agrees with the Director of Public Prosecutions that consent should be immaterial in relation to assaults perpetrated in public or private with the intention of causing serious non-beneficial personal injury. That intention also supplies an element of wrongfulness that might otherwise be absent where there is consent. If reformed according to these recommendations, s 182(4) might read:
Except in cases in which it is specially provided that consent cannot be given, or shall not be a defence, an assault is not unlawful if committed with the consent of the person assaulted, unless:
(a) the assault is committed by an adult and occurs on private premises in the presence of a child or children and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or
(b) the assault occurs in a public place and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or
(c) the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted.
The Institute acknowledges that some kinds of rough play between children, and between children and their family members such as a son wrestling with his father, could potentially be criminalised by this reform despite such behaviour being understood to be acceptable and in some cases even beneficial to participants. It is not the Institute’s intention to extend the operation of the law of assault into this kind of play, and instead suggests that the risk of criminalisation is minimised. It may be the case that rough play is already covered by s 182(3) of the Code, in the sense that it constitutes part of normal human interaction. If this is not the case, the benefit element of the recommendation could reasonably preclude the criminalisation of rough play. The recommendation incorporates a test that assesses whether or not the act in question is of some benefit to the alleged victim, a test that could exclude rough play. If there were fears of an unintended operation of the provision, it would be open to have s 182(4) specify that rough but non-hostile play is excluded.
The Institute also recommends that for the sake of clarity, it may be wise to provide that nothing in s 182(4) is intended to deprive people of the ability to consent to medical and surgical treatment or to participate in sporting activity and lawful public entertainment.
The ultimate purpose of this reform is modernisation and consistency. It seeks to eliminate archaic language, but also seeks to eliminate the disparity between public and private assaults in the current consensual assault scheme. By introducing a new test that is common between public and private spheres, the recommendation will essentially close the gap and create more predictable outcomes in cases. Further, the reform is intended to provide a means of addressing children being exposed to unacceptable violence, even where the participants allegedly consent to that violence.'Nonbinding Bondage' in (2014) 128(2) Harvard Law Review 713-734 comments
To the shock of critics, Fifty Shades of Grey has become a cultural phenomenon, sweeping from fan-fiction websites to bestseller lists and garnering a multimillion-dollar movie deal. In the narrative that has spawned over a hundred million copies, a nalve female coed sparks the interest of a handsome magnate who takes the heroine (and ideally the reader) on a journey of sexual awakening. The hero, a self-described "Dominant," introduces the virginal heroine not only to sex but to the practice of BDSM, a compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism. From his "Red Room of Pain," filled with "ropes, chains, and glinting shackles,' the hero shows the heroine how to be a "Submissive," experiencing sexual pleasure by yielding to acts of domination and control within the bounds of a negotiated contract.
More than sex with some handcuffs thrown in, BDSM takes part in a broader project4 that seeks to expose and investigate the ways in which sexual desire and experience reflect and construct systems of power. By performing sexual acts through scripts of subjugation, discipline, and punishment, participants recognize and revel in sex as a practice replete with inequality, ambiguity, and shame, blurring the lines society purports to maintain between pleasure and pain, fulfillment and frustration. BDSM's seeming rejection of equality as a predicate to good sex has made the practice a particularly provocative one, attracting heavy criticism from many who see in BDSM a haven for sexual victimization and exploitation. More famously, the way in which this commitment to exploring power has been effected through physical punishment and nonconsent has historically rendered BDSM an object of controversy and scorn.
The rise of Fifty Shades of Grey, however, points to a sea change in to a sea change in attitudes toward BDSM. The erotic novel has not only exposed vast popular interest in "kinky sex" - so vast the adaptation is expected to become the biggest film of 2015 - but has raised the critical profile of BDSM, bringing commentators to look more closely at the practice and significance of such "transgressive" sex. Yet even as BDSM takes popular culture and criticism by storm, its relationship to the law remains surprisingly obscure. A mere handful of cases and articles address the legal questions posed by BDSM, and these generally confront the practice at its most extreme, asking whether "victims" can consent to violence. Acts, like those in Fifty Shades of Grey, involving sexual domination devoid of or barely tinged with pain seem to exist largely beyond investigation, the legal gaze averted until the locked playroom doors open to reveal an unwilling or oppressed participant. If law has been slow to recognize mainstream BDSM, however, BDSM has not forgotten law.
Far from locking law out of its bedrooms, mainstream BDSM has deliberately imported one unlikely legal form: contract. Lifestyle guides encourage the use of BDSM contracts, which employ contract forms to set limits and rules of play for BDSM sex. These contracts are negotiated, drafted, and framed in much the same manner as conventional contracts and have become an increasingly accepted part of BDSM practice. Indeed, the contract's popularity is evidenced by its very inclusion in Fifty Shades of Grey, as E L James not only references such an agreement but takes pages away from erotic play to depict the couple's negotiations and to reprint in full the draft contract, complete with twenty-one different sets of terms, and the parties' enumerated objections and amendments.
Though popular, these contracts represent functionally extralegal documents, as BDSM contractors have yet to bring a contractual dispute to court and, indeed, often expressly draft the contracts in the belief that they are legally unenforceable. However, this seeming "illegality" stands to make these contracts more, not less, interesting to the legal academic: the very existence of such contracts in the absence of expected enforcement suggests an interaction between law and BDSM that goes beyond the functional, providing unique access to the practice's conceptual foundations.
Turning to these foundations, this Note explores why BDSM contracts persist in the absence of enforcement by investigating theoretical advantages contract offers the practice of BDSM. By raising the spe ter of contract, BDSM participants may be seeking to mitigate the most criticized dynamics of their relationships as they become increasingly mainstream: the injection of contract law, with its emphasis on equality, consent, and consideration, works to quell concerns over BDSM's seeming commitment to inequality and one-sidedness, thereby rendering BDSM fairer, safer, and more understandable. Yet just as BDSM seeks to expose sex's dark depths, so too may it work to expose a dark underbelly to contract: a closer look at these theories and practices suggests their interaction may in fact heighten rather than dilute the aims of BDSM, operating through paradox and contradiction to further complicate our understanding of desire, power, and equality.
This Note proceeds in four parts. First, Part I provides a primer on BDSM and BDSM contracts. Part II considers the extrajudicial use of these contracts, examining areas of conceptual unease in BDSM that contract stands to mitigate: namely, contract law enables assumptions about fairness in exchange and the knowability of interests that BDSM may be seeking to incorporate. Part III then reconsiders this seemingly antagonistic relationship, suggesting ways in which contract principles may correspond to or even elevate those of BDSM, creating a critical dialectic. Part IV concludes by briefly exploring contractual BDSM's implications for regulation of sex and other "private" subjects, pointing to ways in which study of liminal legal spaces can help illuminate and problematize conceptions of sex, power, and law. ...
BDSM stands for a wide range of sexual acts and experiences, incorporating everything from light bondage to "edgeplay" involving fire or cutting. As noted earlier, the extensiveness and diversity of the practice make broad description difficult, but a few themes recur: BDSM relationships operate through constructed scenes, forms of roleplay, and acts of control and discipline. Above all, BDSM acts, scenes, and relationships ask parties to inhabit positions of power imbalance. A "subculture organized primarily around the symbolic exercise of social risk," BDSM has committed itself to the exploration and performance of power. BDSM recognizes that sex cannot be divorced from power or the risks that attend power dynamics; rather, accepting that "[i]t is precisely the proximity to danger, the lure of prohibition, the seamy side of shame that creates the heat" of sexual desire, BDSM seeks to cultivate pleasure by fostering sex overtly based on mastery and punishment. As one scholar has encapsulated, "there's an element of domination or submission or pain involved in almost any sexual interaction. What [BDSM] does is take these elements of eroticism further toward their extreme" by explicitly casting (good) sex as staged scenes of power and control. Devoted to openly acknowledging and appreciating sex as an act of domination and submission, BDSM engages in a radical honesty about sexual power.
This commitment to exposing and enjoying sex-as-power makes BDSM a useful centerpiece for broader debates about sex and sexuality. In legal literature, however, the debate over BDSM has primarily operated through the flashpoint of pain and consent. Reducing BDSM to "sadomasochism," the cases of note analyzing BDSM assume the practice's inherent harmfulness and ask to what extent law should therefore punish it, imposing criminal and civil penalties even in the face of consent. Legal scholarship has generally followed suit, focusing on whether consensual but harm-inflicting sex should be criminal given legal acceptance of consent to harm in sports and body modification. The law's relationship to noncriminal or nonviolent sexual domination remains largely unexplored.
B. BDSM Contracts
This Note examines one particular - and particularly blatant - intersection of BDSM and law: BDSM contracts. These agreements between a "sub" (submissive) and "dom" (dominant) set terms on subjects such as the duration of the relationship or the hygienic or sartorial requirements of the parties. Most importantly, the contracts set "limits" conscribing acceptable types of play and "safe words" to release participants from the sexual scene. In their efforts to foster exploration of pleasure, promote safety, and emphasize the mutual nature of the sex, BDSM contracts form an emblematic part of the BDSM community's central commitment to "safe, sane and consensual" sex - so much so that many lifestyle guides recommend them, even providing mock contracts that can be personalized for easy use. These contracts import not only contract's title but also its legal norms, as they are framed to mirror standard contracts and (at least superficially) conform to basic principles of contract law. For instance, they contain sections for both dom and sub to underscore that, despite the seeming one-sidedness of the relationship, each party receives benefits and suffers restrictions, affording the consideration necessary for legal contract formation. Some contracts discuss dispute resolution, specifying forms of redress in case of breach. And, of course, most contractors use "legalese," some even witnessing and notarizing the documents, to give the contract the full imprimatur of legality. Nevertheless, as many BDSM sites note, these contracts are not expected to be enforced in a court of law. Perhaps absorbing the law's longstanding unwillingness to mix matters of the bedroom with matters of the court and its broad prohibition of contracts involving sex, practitioners seemingly either do not intend or do not ask for contractual enforcement. Notably, one finds no litigation of BDSM contracts, even though breaches with no direct link to sex - such as, say, a vio lated obligation to keep the relationship in a physical location or to provide specified food and clothing - could well warrant legal redress, and, indeed, many contractors expressly declare the contract's unenforceability while drafting or proposing it. Where the contracts do show up in court documents, it is generally not because the state is enforcing their promises but because the state is punishing the promisors under the aegis of criminal or tortious wrongdoing. Thus, practitioners' efforts to create legal terms for their relationships will likely never be judicially sanctioned or assessed.'Sex-Positive Law' by Margo Kaplan in (2014) 89(1) New York University Law Review 89-164 comments
Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite - that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship. This Article exposes and challenges the law's unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for "sex-positive" law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.Kaplan argues
Sexual pleasure is a good thing. It is a valuable source of happiness and personal fulfillment.' Yet several areas of law central to how we experience sex and sexual pleasure assume just the opposite - that sexual pleasure in itself has negligible value and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.
This Article exposes and challenges the law's unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this unfounded assumption requires us to reconceptualize several areas of law. Legal regulation generally sacri- fices our freedom to engage in certain activities because the activities result in harm or regulation generates benefits. The devaluation of sexual pleasure distorts this calculus. It has created First Amendment law founded on a dubious sexual-nonsexual dichotomy; criminal law that inconsistently respects consent and autonomy in a way that marginalizes sexual pleasure; and a constitutional jurisprudence that premises the protection of sexual activity solely on its contribution to other goals deemed more acceptable. A "sex-positive" approach that values sexual pleasure in itself requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for these choices. The assumption that sexual pleasure in itself has negligible or negative value is largely unexamined and unchallenged in legal scholarship. While a few scholars have called for a fuller accounting of sexual pleasure in the law, most scholarship either implicitly or explicitly relies on this assumption or ignores it. Legal scholarship lacks a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. There is no framework for understanding what law that acknowledges the value of sexual pleasure might look like. This failure compromises several areas of law and legal discourse because the assumption that sexual pleasure is of negligible or negative value is, at best, highly questionable.
This Article challenges the sex-negative assumptions that distort legal discourse. It analyzes how the law must change significantly if we accept the common-sense assumption that sexual pleasure is intrinsically valuable. It examines what "sex-positive" law-law that accepts the value of sexual pleasure-would look like and the new questions it would raise. While this analysis has profound implications for several areas of law, this Article focuses on three specific areas: (1) obscenity law; (2) the criminalization of injury inflicted consensually for sexual pleasure; and (3) constitutional law pertaining to sexual freedom. Discounting sexual pleasure is particularly problematic in these areas because they regulate behaviors central to the experience of sexual pleasure. Accepting the premise that sexual pleasure has intrinsic value challenges the organizing principles of these areas of law and requires us to reexamine our approach to them.
Obscenity law relies on the presumption that offensive, sexually arousing materials are of so little value that the state may ban them unless they have serious literary, artistic, political, or scientific value. This framework distinguishes sexually explicit material primarily intended to arouse as uniquely lacking in First Amendment protection. While First Amendment scholarship sometimes acknowledges obscenity law's implicit assumption that sexual arousal is of uniquely negligible value, this unfounded assumption has generally gone unchallenged. Rejecting this assumption encourages a more honest discussion of what the true goals of speech regulation should be and how to further those goals when we regulate sexual, offensive, violent, and other potentially objectionable speech.
Similarly, the criminalization of injury inflicted in the context of consensual sadomasochistic sexual practices (BDSM) stands in stark contrast to criminal law's permissive stance toward risky or injurious activities such as sports. This Article analyzes the law of consent to injury in several contexts and concludes that BDSM is far more like permitted activities, such as sports and cosmetic surgery, than other prohibited activities, such as gang initiation or street fighting. It argues that the most convincing explanation for why BDSM receives no consent defense is that legislatures and courts fail to value its goal of sexual pleasure in the same way they value the pleasure derived from activities such as sports. This failure inappropriately distorts the costs and benefits of allowing consent to injury in the context of BDSM and other pleasurable pursuits. Valuing sexual pleasure improves the discourse on what injury the law should permit individuals to consent to for pleasure, sexual or otherwise.
The third legal realm this Article examines, constitutional law pertaining to sexual freedom, may seem like an odd choice given constitutional law's apparently strong legal protections for sex. A closer analysis of Supreme Court jurisprudence reveals that this case law values sexual pleasure only to the extent that it furthers goals such as marriage, procreation, and intimate relationships." The value of sexual pleasure in itself is strangely absent from this jurisprudence. Even Lawrence v. Texas focuses on how intimate relationships transform mere sexual pleasure into something worthy of constitutional protection, leaving sexual activity that does not occur within these types of relationships vulnerable to regulation. Valuing sexual pleasure for its own sake undermines the morality-based arguments for limiting sexual activity that persist after Lawrence. This Article explores the implications of this in the context of sex toy regulation, an issue that has prompted a circuit split in the wake of Lawrence.
Part I of this Article provides a definitional framework and argues that sexual pleasure has intrinsic value just as other pleasures have intrinsic value. Part II argues that the law counterintuitively fails to value sexual pleasure for its own sake and instead often assumes that sexual pleasure has uniquely negligible or negative value. Rejecting this assumption undermines the foundation of several areas of law and requires that lawmakers, courts, and scholars rethink our approach to them. Part III begins this process by examining what sex- positive law would look like and the new questions it raises for these and other areas of law.
