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Essays in Criminal Law in Honour of Sir Gerald Gordon$
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James Chalmers and Fiona Leverick

Print publication date: 2010

Print ISBN-13: 9780748640706

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748640706.001.0001

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The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults”

The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults”

Chapter:
(p.126) 8 The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic “Assaults”
Source:
Essays in Criminal Law in Honour of Sir Gerald Gordon
Author(s):

Sharon Cowan

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748640706.003.0019

This chapter offers an analysis of the criminalisation of certain sexual practices that have been (wrongly) labelled as assaults. It discusses the criminal cases in Scotland and in England and Wales that address the question of whether sado-masochism (SM) counts as sex or violence, and thus whether consent can work its ‘moral magic’ to render SM lawful. It examines the legal approach to SM in both jurisdictions, and the (hetero)normative construction of certain kinds of sexual subjects as perverted and ‘risky’, before moving to inquire as to the possibility of Scots law offering a discursive and legal space for SM sex. In doing so, it argues that while both jurisdictions have criminalised consensual assaults, thus marking out pleasurable pain as both wrong and harmful, there may ultimately be room for the Scottish courts to interpret the existing law in a way that is more open to allowing consensual SM sexual interactions. It is possible, therefore, that those practising SM sex have cause to be optimistic about the role of the Scottish courts in rendering their sexual choices legitimate.

Keywords:   criminalization, sexual practices, sado-masochism, sexual violence, consent, Scots law

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