The Law Commission



If the primary motivation for inflicting pain, by consent, is not religious but sexual, English law treats the person who inflicts that pain as a criminal if any resulting injury is more than “transient or trifling”. The majority of the House of Lords in “Brown” held that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason, that in the absence of such a reason, the victim’s consent afforded no defence to a charge under sections 20 or 47 of the Offences Against the Person Act 1861, and that the satisfaction of sadomasochistic desires did not constitute such a good reason . Lord Templeman said in his speech in “Brown” that the question whether the defence of consent should be extended to the consequences of sadomasochistic encounters could only be decided by consideration of policy and public interest. He contrasted the position of Parliament, which could call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts, and also take into account public opinion, with the position of the House of Lords in its judicial capacity which was being called upon to decide a point of law without recourse to such materials.”

We received a wealth of evidence on consultation from people of both sexes who indulged in sadomasochistic activities to enhance sexual pleasure.

We were told that “consensual sadomasochistic sex is not a recent phenomenon: throughout history a percentage of the population has made love in this manner“; “it is not everywhere appreciated that sadomasochistic sexual acts are engaged in by large numbers of people, many of whom are utterly respectable”; “sadomasochistic acts are practised by not just the small minority of visible sadomasochists but by many people in the privacy of their bedrooms”; and “there are many more heterosexual people quietly having SM sex in the suburbs than there are gay leather men in London clubs”. Some of the evidence of the activities of the defendants in the leading case of “Brown” clearly shocked some respondents, but they were equally shocked to learn that the sexual activities in which they had participated voluntarily for years without, as they thought, harming anybody, were regarded by the law as criminal.

We were told that sadomasochistic sex is practised by many people of all sexualities. The number of those who engage in varying forms of sadomasochism is unknown.
(See editor’s comment>>>). One respondent suggested that the popularity of sadomasochistic pornography, both “soft” and “hard”, in books and magazines read by men and women alike, the results of certain sex surveys, the popularity of the Skin 2 magazine and the various sadomasochist and fetish clubs throughout the country, and the extensive supplying of such services by prostitutes, would indicate that the number is very large.

This respondent asserted that many celebrities, writers, film stars, artists, entrepreneurs – and even a considerable number of politicians, lawyers and judges were known to participate in sadomasochism.

Another respondent said that more extreme practices are naturally rarer than milder games, but a look at the hundreds of businesses providing bondage and sadomasochistic equipment and the enormous number of professional dominatrices offering their services is sufficient to show that there are many thousands of practising sadomasochists in Britain, and that this is not a tiny minority interest.

We were told by one respondent that despite misperceptions and fears the sadomasochistic community, both in Britain and in the world generally, has grown very rapidly over the last 10-15 years, although this is not to say that the total incidence of sadomasochistic sex has grown. The way that those who are interested in sadomasochism now communicate with each other was reflected in the evidence given by three different representative groups.

The first of these groups (“The Lives of the Secular Saints“) represented the collective views and experience of a selection of predominantly heterosexual practising sadomasochists. They said that all sadomasochists would accept their contention that their sexual practices did not involve violence: the apparently contradictory nature of their activities can be resolved when it is recognised that it derives from the fact that they like certain forms of pain.

They said that the acts that make sexual behaviour specifically sadomasochistic may include beating the body, the use of constraints, endurance tests, role play, verbal abuse, micturition, the application of extreme heat or cold, scarification and piercing. They said that this list does not pretend to be exhaustive, and many of these activities are also engaged in by people who do not consider themselves to be sadomasochists. The parts of the body most involved in the physical aspects of sadomasochistic sex are the buttocks, breasts or nipples, thighs, back, feet and genitals. Many sadomasochists may swap the active or passive roles within a single encounter, and encounters may frequently be initiated by the passive partner. The group stressed that a person would consent only to the particular forms of touch which give rise to a pain which he or she enjoys. They felt that their activity was no more intrinsically psychologically harmful to a participant than other forms of sexual behaviour: indeed, they considered that because they felt more sexually fulfilled this activity was beneficial to the people who wished to enjoy it.

The instruments used for beating might be various types of whip, crop, cane, tawse, belt or leather paddle, or even bare hands. Because participants are doing it for pleasure, a self-limiting factor is introduced, and this calls a halt to the activity long before serious injury is likely to arise.

The subjective effects of beating the body might differ greatly between different individuals, and the group felt that there was likely to be a considerable overlap with the subjective responses to religious mortification (Cf paras 10.9 and 10.11-10.15 above). For the passive party, beating on the buttocks is likely to be sexually stimulating and associated with heightened arousal and responsiveness. Beating on the back, on the other hand, perhaps involving a whip on the shoulders, has commonly been described as giving rise to feelings of exaltation, rapture, spiritual release or profound gratitude. After the body has been beaten, a state of emotional well-being and uplift may persist for several days. Very commonly the passive party will feel a strong bond with the person giving the beating, and also a great sense of having been given both care and attention. The physiological basis for such subjective responses has frequently been referred to as an “endorphin high”: it has been suggested that it may have parallels with other physically stressful activities, such as long distance running and sky-diving, where similar elation is reportedly expressed.

The group also gave evidence about other forms of sadomasochistic activity which only become unlawful, as the law now stands, if they lead to bruises, welts or breaks in the skin. Older sadomasochists practise a long-established endurance test whereby the passive partner is required to kneel on dried peas, without movement, for half an hour or longer: the pain is described as excruciating after as little as 20 minutes. In other types of voluntary degradation the passive partners may be restrained, verbally abused, admonished or required to act out a humiliating fantasy (such as being petticoated, if male), lap up their own urine, or experience pain which may take them to the limit of their endurance.

The restraints most frequently used are ropes, hand-cuffs, leather or rubber cuffs, blindfolds, gags or suspension apparatus. Members of the group reported that the use of restraints enhanced their sexual experience because they found it aesthetically pleasing to see their bodies in bonds, and becausebeing bound made them feel highly introspective and capable of concentrating on their own pleasure without the distraction of responding to their active partner. They pointed out that the practice of bondage does not offend against the criminal law if it does not lead to bruising etc. On the other hand, it is potentially more dangerous than any form of beating, particularly if it involves airway restriction, and there has been a steady number of deaths involving people practising auto-erotic asphyxiation on their own without any form of supervision. (The recent death of Mr Stephen Milligan MP was mentioned in this context). They said that it is essential that the use of restraints takes place safely and is carried out responsibly. There are considerable efforts made by the sadomasochistic community to provide education regarding safe sadomasochistic sex, but these efforts are hampered by criminalisation. (See also on this topic para 10.38 below).

For those who enjoy extremes of heat and cold, the group said that the first choice of many of those who contributed to their evidence was ice, not candle-wax. The use of naked flame was very rarely reported. The effect of hot wax is intense, but short-lived, and nobody reported unwanted scarring, or any other significant injury, as a result.


They said that, paradoxically, sadomasochism has enjoyed something of a boom in interest precisely because it can offer an exciting expansion of sexual horizons that do not run the dangers associated with some forms of penetrative sex. They maintained that sadomasochism is not a significant factor in transmission of HIV, and they were aware of no medical literature which suggested that a single cause of death had been recorded as being a result of sadomasochistic sex.

Finally, they submitted that sadomasochism was part of the spectrum of human sexual response, and that it should not be treated as analogous to activities like killing or mutilation. Like many other respondents, they took strong issue with the views of Professor Fletcher which were quoted in the last Consultation Paper. (Consultation Paper No 134, para 12.2. citing G P Fletcher, “Rethinking Criminal Law” 1978, p 770). The subjective experience of the active party who is engaged, for example, in flagellation, can, they said, combine pride in the exercise of skill, a sense of care and service towards the passive partner, and sexual excitement at the exercise of power over that person. Active and passive roles are commonly exchanged, and many contributors in their evidence made it clear that the power they enjoy exercising is the power to give the submissive what they want and so excite them that they achieve the maximum pleasure of which they are capable.

The evidence of this particular group has been quoted at some length because it gives a valuable factual explanation of many of the practices mentioned in other evidence and expresses views which were regularly repeated by others who participated in the consultation.

Of the two other groups who gave evidence to us, “Countdown on Spanner” (The police operation which led to the conviction of the defendants in “Brown” was known as Operation Spanner) is a mixed sexuality campaign group which was formed in September 1992 at a meeting in Conway Hall attended by about 200 people determined to support the defendants in the case of “Brown” in their appeal to the House of Lords. (In a few month the group organised a 1,000 signature petition, organised a demonstration of over 700 men, women and children, and gained international support and funding from civil liberties groups, gay, lesbian, bisexual and heterosexual clubs, trade unions, many parts of the Press and many individuals.)

“Countdown on Spanner” told us that their campaign had produced the following working definition of sadomasochistic sex:

SM sex is obtaining pleasure from an exchange of power and/or pain in consensual sex play or sexual fantasy.

SM sex is, by definition, consensual. Non-consensual sex is an abuse of power and is therefore sexual violence, not SM sex.

There are no predetermined roles in SM sex. Power relations are determined by choice.

These three points figured frequently in the evidence received from individual respondents. An academic respondent who has made a study of the subject (Professor Christie Davies) said that SM sex is essentially a theatrical activity in which the sadists and masochists act out roles of symbolic dominance and submission, of shaming and being shamed. Their aim is not pain per se, which they fear as much as anyone else, but pleasurable excitation which is linked, or becomes switched to, sexual pleasure. They may suffer some degree of injury, but they view this much as a sports player views the risk of injury which is inevitably found in most games. Another respondent said that SM sex is essentially a matter of role-playing. One person is the giver of “punishment”, and the other is the receiver. They may frequently reverse roles. They may be both of the same sex or of different sexes. It greatly enhances the enjoyment for the receiver if he or she feels completely under the domination of the giver. Hence, temporarily, the giver is granted complete control. A third respondent said that SM games often involve fantasies of domination and submission, and that the different roles are freely entered into and do not necessarily reflect the participants’ roles in real life. (Dominance and submission (D&S) is an alternative form of description of these activities.)

These second and third factors, that SM sex is consensual and that roles may readily be reversed, were repeatedly stressed by respondents who had personal experience of the practice. There follows a number of typical extracts from the evidence we received:

In SM sex there is no such thing as a victim and consent is everything. Just as in straight sex, the only difference between a loving act and a violent act is consent, and to ignore consent is completely ridiculous. All sexual acts of every sexuality are acts of violence if undertaken without consent, and not violent if consent is given. Consenting sexual acts have absolutely nothing to do with violence.

In my own experience as a gay man who prefers SM relationships (and in the experience of others to whom I have talked) SM encounters between consenting adults involve a process ofnegotiation within the context of sexual pleasure. These negotiations, which are expressed as a mixture of prior agreement and the more spontaneous/improvised situations that arise during a sexual encounter, are the means by which the participating individuals attempt to arrive at a correct “balance” in their relationships.

SM activity is typically an activity which requires extensive negotiation and planning. When negotiation and planning are absent, then the activity becomes rape or abuse and there are already laws against such acts. Sadomasochism is only violence by metaphor: a closer metaphor would be to view sadomasochism as theatre.

[We] use terms such as “top and bottom” or “D & S”, not “victim and assailant”, which emphasises the fact that both partners are active in the encounter, albeit in different roles. Indeed many people “switch”, that is take different roles at different times. One of the most important rules … is that the bottom sets the limits to the encounter.

In all the years I have been a modest SM practitioner, I have never seen unacceptable individual risk. The contrary is invariably the case. Sadomasochism is essentially a ritual, there are ritualised stop words, even the most tyro practitioner knows where not to hit hard and knows more about anatomy in general than the average Joe. The bottoms outnumber the tops at least 10 to 1, and the bottoms in reality dominate the ritual. It is in reality the top’s duty to serve the bottom by giving just enough of what the bottom wants. An overly aggressive top does not get to top, because word gets around.

A strong relationship of trust and understanding develops and exists between sadomasochists. It was acknowledged in Spanner that the participants had known one another for years, and strong friendships had built up established by mutual trust and understanding. It is the victim who dictates what he wants and how much of it he is prepared to submit to. Rules definitely exist in SM activities.

A SM scene is normally preceded by a period of negotiation. Consent has to be explicit in SM sex because there are no fixed conventions.

SM sex is extremely varied. It should be fully consensual in much the same way as legal non-SM sex is, and for this consent to be present prior negotiation is essential to ensure that all the acts which a lover instigates are genuinely consented to.

I do not believe you can make any sense of SM sex unless you consider the sexual motives of the participants. In a typical SM encounter top = dominant and bottom = submissive. It will be agreed that Top is in charge. The feeling of power met with obedience adds to the sexual excitement of both partners. The common use of bondage often serves to amplify the sense of domination and subservience. In a physical sense it appears that the Top is in control. But in practice the Top has to stay within the limit set by the desires of the Bottom. It is a very common saying by those involved with SM sex that the Bottom is the one who is actually in charge.

Countdown on Spanner said that SM sex should be legally recognised as an expression of sexuality and not as an assault. They maintained that it is integral to many people’s sexuality, being vital and fulfilling for them; that there are no victims in SM sex because Just as in all sexualities, when consent is given, a sexual act is a thing of love, and not of violence; and that practitioners of SM sex are as likely to be as responsible and careful as those in the other categories recognised by the law as exceptions to the general rule relating to offences in which injury is inflicted. (For an alternative view, cf Ros Coward, “Liberty, Perversity and Freedom for All”, The Guardian 16 October 1995.)

This contention, too, was supported by the evidence of many individual respondents. There follows a sample of this evidence:

The violence that is involved in SM activity, and specifically, in my case, in corporal punishment activity, is not violence as such, but essentially is sexual in nature, and sexuality of great subtlety and complexity in which the superficial bifurcation between the dominant and submissive partners is often much less easily disentangled than may appear to the lay person at first sight. It is most certainly not a case of the exploitation of one party by another.

It is probably impossible to describe the beauty of sadomasochism to those who do not share these desires. To me sadomasochism is about power far more than it is about pain. Pain is just one tool in the exercise of power. But power has to be freely given with informed consent or I could not enjoy exercising it. Real coercion would turn beauty to ugliness – not only morally wrong and illegal, but for me not erotic.

I am a very active and independent woman. But I have also enjoyed taking a very submissive role during sex. To me an essential part of taking a submissive role is that my partner punishes me. This punishment would typically involve him spanking me very hard or using a cane or a whip on my behind. It is often likely that this punishment would leave more than transient and trifling marks. This is an activity from which I derive immense sexual satisfaction. Not only that, I also find the effect of giving up control and taking a submissive role to be a very relaxing experience. It has always been very clear in my mind that I have willingly sought these punishments for my own sexual and emotional satisfaction.

Dominants do not necessarily hurt anyone. A sensation is caused which in another context could be classified as painful. It is not something I would consider violent, as it damages no one emotionally or physically. I can only describe the attraction of such sex play as constituting an aesthetic awareness and intensity as well as providing variety, intellectual stimulation and an element of humour. There is a spectrum in the SM world, and what many enjoy constitutes far more a philosophical and psychological activity. The more common, paradoxical truth is that it is frequently the submissive party who controls what is done to them, and much of what appears to be pressure by the top is for the submissive’s benefit.

Sadomasochism provides myself and my friends with an intense form of erotic gratification which by its very nature involves levels of trust and compassion rarely found in other walks of life. In addition, my personal experiences in coming to terms with my own sexuality have, I believe, led me to a deeper understanding of the complexities of human nature. We are not violent monsters.

SM sex should be legally recognised as an expression of sexuality and not as an assault. SM sex is integral to many people’s sexuality. It is vital and fulfilling for many people. There are no victims in SM sex because, just as in all sexualities, when consent is given, a sexual act is a thing of love and not violence.

SM experiences can, like vanilla (non-SM) sex mean a lot of things. It can be light hearted but exhilarating fun between two people who barely know each other. But it can be far more than that. The giving and sharing of pain between two people who know the pleasure it can bring is as deeply moving as is any act between those bound by love.