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The operation of sexual consent in BDSM is almost like a model of sexual ethics, it emphasises the rights to give and retract consent and also a transparent.
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Abstract How sexual consent is evidence and operationalised in criminal courts affect not only sexual rights but also the implementation of social justice. While sexual consent is regarded as a protocol of agreement in vernacular practices, the legal definition is seemingly more complicated than a mutual agreement. There is very little research looking into the limits of sexual consent imposed by legal authorities, leaving a large gap in the understanding of the politics of consent and the sexual ideologies behind the limitations. To this end, this thesis proposes the theory of cognitive limits on sexual consent to examine how normative cognition of sex shapes the politics and jurisprudence of sexual consent and affects the implementation of social justice. Through a socio-cognitive approach to critical discourse analysis to the verdict R v Brown (1993), the results suggest that sexual consent can be a discursive tool to manipulate sexual ideologies by prohibiting non-normative sexual practices. This study contributes to the legal discussion between “sex” and “violence”, theoretical discussion on consent, and promotes sexual rights by reflecting how a well-negotiated culture on sexual consent can combat rape culture. Key words : politics of sexual consent, sexual culture and norms, sadomasochism, critical discourse analysis, sexual rights and implementation of social justice Words: 19,
Abbreviations and Terminologies Abbreviations BDSM - Bondage, Discipline, and Sado-Masochism UK - United Kingdom Terminologies Legal R v XXX - abbreviation for Rex (king) or Regina (queen) versus XXX Volenti non fit injuria - Latin: “ to a willing person, injury is not done ” In loco parentis - Latin: “ in the place of a parent ” A-priori - Latin: “ from what comes before ” Malum in se - Latin: “ wrong or evil in itself ” Prima facie - Latin: “ on its first encounter or at first sight ” Mutatis mutandis - Latin: “ once the necessary changes have been made ” Cultural Gay leather - Gay men who identify with a community, generally centred on the sexualisation of leather and domination (Getsy, 1998)
Chapter 3: From the Theory of Consent to the Theory of Cognitive Limits on Sexual
Chapter 1: Introduction 1.1 Sexual Consent: The Politics of Sexual Rights Rape refers to a sexual activity that is carried without a protocol of consent. But in criminal courts, evidence of consent can be distilled down to one’s outfit, personal histories, the interactions between the victim(s) and the perpetrator(s), and other contextual elements (Fanghanel, 2020a). Yet, protocols of consent in consensual sadomasochistic conduct can be regarded as null and void by legal authorities. How sexual consent is evidenced and operationalised in criminal courts are seemingly more complicated than a protocol of agreement. What is the politics of sexual consent? This question relates not only to sexual rights but also the implementation of social justice. Sexual consent is not merely a voluntary agreement to participate in a sexual activity, the granting of consent is a kind of revocable contract that distinguishes sexual behaviours from rape or sexual assaults. However, sexual consent is also a product of cultural politics, it is entrenched in cultural cognition of sex. Cultural cognition of sex includes conscious and unconscious processes of what sexual activity ought to be. In parallel with the cognition, sexual consent controls what sexual practices people can give consent to and under what circumstances sexual consent can be legally binding. When the majority conform to a socially shared cognition of sex, the cognition becomes sexual norms and develops criteria for the “normal” spectrum of sexual behaviours. As a result, it appears as a normative sexual culture that distinguishes “normal” sexual activities and sexual perversions (Janssen, 2020). However, if legal authorities attempt to resolve disputes between sexual cultures by imposing normative sexual values, it will inevitably (re-)produce social injustice. Imposing limitations on sexual consent can be their tool to prohibit deviant sexual ideologies. As a result, sexually minoritised practices are subject to cultural persecution. Historically, activists in sexual rights movements have strived for the rights to consent as a way to counter suppressions from normative sexual cultures. For instance, gay liberation movements urge legal recognition of same-sex sexual activity and counter the societal presumptions on appropriate sexual activity (Hoffman, 2007). Similarly, one of the goals of feminist movements is to urge women’s sexual autonomy. For example, activists have advocated for the rights to give and retract sexual consent within married couples in order to
counter the societal presumption that marriage is a non-revocable matrimonial consent to sex. The movement led to revisions on statutory rape laws (Harvard Law Review Association, 1999). These cases show that the legal rights to give and retract sexual consent are a key to the implementation of social justice. Sadomasochism commonly involves a reciprocal relationship in giving and receiving pains to obtain sexual gratification. Sexual consent is a fundamental element in sadomasochistic practices, it distinguishes practitioners’ shared enjoyment in sadomasochistic play from harm and functions as a safety mechanism to prevent predatory behaviours (Taylor & Ussher, 2001; Connolly, 2006; Weinberg, 2006; Moser & Kleinplatz, 2007; Yost, 2010). Negotiation of consent differentiates BDSM from abuse and psychopathological behaviours (Connolly, 2006; Newmahr, 2011; Ortmann & Sprott, 2012), and coercive sex (Cross & Matheson, 2006; Yost, 2010; Martin et al., 2016). Negotiation of consent is a key practice in BDSM, BDSM practitioners have almost made a fetish out of negotiation and culture of revocable consensuality. The operation of sexual consent in BDSM is almost like a model of sexual ethics, it emphasises the rights to give and retract consent and also a transparent process of negotiation. Sexual consent functions to maximise the shared enjoyment and minimise the risk of unpleasant experience. However, normative cognition of sex tend to stigmatise BDSM practices, practitioners are even subject to persecution. Well-negotiated culture of sexual consent seems not as important as the cognitive standard of sex. 1.2 Sexual Consent: Why Legal Authorities Matter? Sexual consent is commonly exclusively connected with sexual assaults both legally and academically (Beres, 2007; Muehlenhard et al., 2016). Sexual consent distinguishes sexual practices from violence. Any conduct without any signs or signals of consent or involve coercive practices are rape and sexual violence. Consent can also be a functional defence to criminal conduct, for example, the “victim’s” consent can potentially invalidate certain allegations like rape. When there are concerns of consent violations, people can also seek legal support to resolve the dispute. Does judicial decision ensure personal sexual interests and look into the context of sexual consent? Seemingly not. Evidence of consent at the legal level can be presented through contextual elements (Fanghanel, 2020a). How sexual consent is evidenced and
gay men with more than a hundred offences. Ranged from assault occasioning actual bodily harm, unlawful wounding, aiding and abetting assaults against themselves. Prosecutions were made without a victim complaint, the Vice Squad upheld the “public morality” and prosecuted these men who showed “ scenes of unimaginable violence and perversion ” (Furlong, 1991: 1). Any acts might corrupt the normative sexual values could face prosecutions by the Vice Squad (Cocks, 2016). In 1990, these gay men pleaded guilty in a trial, the ruling concluded that people cannot consent to bodily harm. They appealed to the House of Lords by asserting their mutually consented private acts should be lawful, especially their activities were discovered by an unrelated police investigation ( R v Brown , 1993). The Lords dismissed the case by the conclusion that consent could not be a defence to bodily harm. These men brought their appeal to the European Court of Human Rights by arguing that the conduct they engaged in was volenti non fit injuria , the decision by the panels of the House of Lords violated their rights in private sex play ( Laskey, Jaggad, and Brown v The United Kingdom , 1997). Yet, the EU court upheld the decision by commenting that sadomasochistic acts involve a significant degree of injury and the UK authorities have the rights to intervene to protect public healths and morals. Sadomasochistic acts were discussed based on the normative cognition of sexual activity. The rulings attempted to impose normative sexual values by setting up cognitive limits on consent. Legal authorities sought convictions to prohibit the “perverted” violent acts (“Midland men,”, 1990; Lyne, 2019). The limits on sexual consent appears as a tool to manipulate sexual ideologies. However, the reasoning of sexual consent in the legal realm is under-explored. How do normative sexual values affect legal reasoning? How does normative cognition of sex shape the politics and jurisprudence of sexual consent? How do cognitive limits on sexual consent affect sexual equality? These are important questions to address. They affect not only the development of sexual rights but also the implementation of social justice. 1.4 Research Aims This thesis provides a new angle to the legal discussion on the relationship between sadomasochism, “sex”, and “violence” in law (e.g. Moran, 1995; Bix, 1997; Hanna, 2001; Pa,
2001; Cowan, 2011), by bringing in the consideration of cultural conflicts between sexual cognitions. Following a sex-positive legal approach (Kaplan, 2014; Williams et al., 2015; Bennett, 2018), this study advocates for minority sexual rights and social justice by challenging the legal assumptions on sexuality influenced by the normative sexual culture. Through a socio-cognitive approach in critical discourse analysis (van Dijk, 2015), this research aims to dissect how does normative cognition of sex affect the politics and jurisprudence of alternative sexuality and shape the implementation of social justice. Moreover, this thesis aims to propose the theory of cognitive limits on consent to investigate sexual inequalities at the legal level. This study explores the relationship between sexual cognition and judicial decision by addressing how do cognitive limits on consent manipulate sexual ideologies and (re-)produce social injustice. 1.5 Research Questions (1) How does normative cognition of sex shape the politics and jurisprudence of sexual consent? (2) How do cognitive limits on sexual consent affect the implementation of social justice? This study aims to explore the extent to which legal institutions stand in loco parentis and impose normative sexual values. This thesis focuses specifically on how does normative cognition of sex affect the representation of BDSM practices and the judicial decision. By a socio-cognitive approach in critical discourse analysis (van Dijk, 2015), this study investigates how normative cognition of sex affect the the politics and jurisprudence of sexual consent. The analysis looks into how do the Lords set out limitations on sexual consent by demonstrating normative sexual values and how do the limits on sexual consent shape the implementation of social justice. 1.6 Thesis Outline This thesis is organised into 7 chapters. This chapter provides a brief introduction to the political significance of sexual consent and the Spanner case ( R v Brow n, 1993). Chapter 2 introduces the critical background of this research by illustrating the connection between culture and law, and also the importance of critical legal studies and sex-positive legal approach. Chapter 3 demonstrates the core of the thesis, it starts with the theory of consent,
Chapter 2: A Critical Approach to Law and Culture Politics 2.1 Introduction This chapter integrates the critical background of this thesis. The first section demonstrates the relationship between culture and law and points out how cultural cognitions can cause biased jurisprudence. The aim of this section is to demonstrate how the realities of sadomasochism practitioners intersect with criminal law and cultural politics. The next part focuses on the critical legal framework of this thesis. By illustrating the aims of critical legal studies, feminist jurisprudence, and sex-positive legal approach, this section explains the importance of critical studies in relation to alternative sexuality. 2.2 Criminal Justice, Law and Cultural Politics Political scientists have a rich tradition in the field of criminal justice by studying the institutions that generate and implement criminal law, policy, and also the relationship between criminal justice systems and the political opinions and also behaviours of the citizens. Those scholars share the same understanding that political institutions, attitudes, and behaviours shape the political outcomes of crime and justice (Miller & Wozniak, 2013). For example, Beckett and Theodore (2004) have illustrated that crime is a political and cultural issue by revising the history of crime, the politics of crime control, the media depictions of crime, mass opinion, and political movements in the United States. Similarly, Marion (2007) has investigated the relationship between legal institutions, crime rates, and public opinion and suggested that culture intersects with criminal laws and justice. Culture also influences the operation of criminal justice systems. Walker (2011) has conducted a systematic overview on how cultural values shape the mechanism of criminal justice systems. Cultural cognitions can affect the perception of crime and generate legal consequences (Tonry, 2011). For instance, if a cultural cognition define some acts as morally unacceptable behaviours, it leads to imprisonment or even death penalty so as to make people away from embarking on a life of crime (Welsh & Farrington, 2012). Cultural cognitions are an inevitable mechanism for people to contract meaning out of reality, it is not something that people can put on or abandon easily (Rosen, 2008; Chase, 2015). Cultural values shape the understanding of law, and jurisprudence (Wiedmer et al., 2012). Hence, culture and law are
interconnected, criminal justice systems can represent the normative culture and carry legal penalties to diminish socially unacceptable conduct. In order to analyse criminal justice and law, it is essential to understand the reasoning behind them since it shows the dynamics of legal institutions and the role of law in society. Legal reasoning refers to the process of devising and justifying certain legal acts and decisions for speculative opinions about the relevance and also the meaning of the law (MacCormick, 1994: 1). On the other hand, legal reasoning can also be regarded as a form of guidance that informs people on what to do or adjudicates some already done actions or a proposed course of action (e.g. Aarnio, 1987; Alexy, 1988; Atienza & Ruiz Manero, 1998). There are presuppositional standards behind laws, legal reasoning can be a tool to impose presumed values (Dworkin, 1977; MacCormick, 1994). The Hartian model of law (Hart, 1961) has provided a mutually interrelated two levels perspective to dissect the operation of standards in a legal system. The primary rule regulates the duties of the individuals in a society, and the secondary one empowers the private or public capacities of the persons to vary the incidence. The whole system unifies by the secondary rule since it develops criteria to identify the rules which settle the duty of officials to remark and give effect to other rules. Functionaries in the legal system regard “shared social standard” as their “internal point of view” to determine legal actions. In Hartian model, laws depend on social attitudes and perceptual duties of individuals (Ramírez Ludeña, 2016). Legal functionaries share the same criteria to identify law and commit to imposing normative social values. Yet, Dworkin (1977) has criticised Hart’s perspective on mutual “internal point of view” by pointing out that there are disagreements between officials. The presence of disagreement indicates that there is no unique answer to a case, the commonly shared criteria is illogical. Dworkin has proposed the non-conclusive concept of “principle” to replace the concept of “rule” in which individuals have the right to win the case by utilising arguments based on principles. These principles do not depend on the legality of previous legal recognitions, the duty of judges is to “guarantee the rights of individuals” (17). Thus, lawyers can disagree about what the law establishes, even if one side is wrong (81). Regardless of the perspectives on mutual acceptance or internal disagreement, social standards play an influential role in legal reasoning and determine the legal consequence of a case.
The case R v Brown (1993) indicates how legal institutions represent the normative sexual culture and oppress non-normative sexual values. Tellis (2020) has suggested that legal institutions tend to represent the hegemonic culture and oppress sexual minorities. Similarly, Chatterjee (2012) has indicated that legal institutions tend to support normative sexual values and persecute consensual BDSM practitioners. Legal prejudice can shape the realities of people in alternative cultures. Plenty of research has pointed out that BDSM practitioners rely heavily on self-policing behaviours and refuse police interference when there are non- consensual abusive behaviours (Holt, 2016; Langdridge & Parchev, 2018; Dunkley & Brotto, 2020; Fanghanel, 2020b). The fear of prosecution hinders victims of abusive behaviours to seek legal support since they might also be prosecuted due to their involvements in illegal sexual activities. Decriminalising sadomasochistic conduct can diminish the stigma of the practices and thus encourage practitioners who have been assaulted to take legal action, report criminal misconduct and seek legal protection without the fear of rebuff or prosecution by legal authorities (Pa, 2001). This study, therefore, follows a critical legal study approach that focuses on the relationship between sexual culture and jurisprudence. To this end, this thesis elucidates how legal authorities disfavour sadomasochism by imposing normative cognition of sex and as a result affect the implementation of social justice. 2.3 From Critical Legal Studies to Feminist Jurisprudence In critical legal studies, laws are ideological, with social biases, and ideological assumptions (Lucarello, 2012). Critical legal theorists aim to demonstrate the ambiguity and biased outcomes of impartial legal doctrines and reframe legal arguments to achieve social justice (Singer, 1984; Segall, 1993). For example, Singer (1974: 5) has suggested that critical legal studies aim not to discover how to apply laws correctly, but what laws ought to be. The basis of this approach is the acceptance of diversity and equality in jurisprudence (9). Critical legal studies can also provide an equal perspective on legal reasoning through subjectivity and indeterminacy (Lucarello, 2012). In Lucarello’s account, if all jurisprudential thought is subjective and indeterminate, then, all jurisprudential thought must also be viewed equally and relevant in critical legal studies. Thus, critical legal studies can investigate the politics of the development and adjudication of laws with an equal subjectivity, but not a fictitious search
of universal truth or objectivity (621). Therefore, legal systems are another construct of various voices that represent the diversity of jurisprudential ideologies. Seeking an objective, neutral, and determinant view towards jurisprudence and laws are a “false consciousness” created by society (Reich, 1995). But Reich has further noted that “false consciousness” is essential since it is a vital means to understand the power of the legal authorities and also the power structure of their belief. This important function lays out the essentialness of critical legal studies, it can critically review that how certain laws are a product of self-delusion and fundamentalism, and unmask the “false consciousness” within laws. Feminist jurisprudence also shares the critical legal framework in questioning the “neutrality” in legal adjudication. Feminist legal scholars focus on the inequality and power that might influence legal reasoning (Lacey, 1998). Lacey has elicited that there are differences between feminist critics on law and feminist jurisprudence, feminist legal theory goes beyond particular laws or sets of laws and focuses on the hierarchically gendered structure of modern law (2). For example, Gilligan (1982) has demonstrated how masculinity appears in constructing moral problems and shapes legal reasoning through two approaches: (1) the ethics of rights, an institution adopts certain values in a hierarchical and legalistic way to formulate rules then frames those rules as the facts; (2) the ethic of care or responsibility, a less conclusive but more complicated approach to moral problems which takes context, relationships, and values into consideration. Despite the ethics of rights model can explain the hierarchical structure of law, Lacey (1998: 6) has criticised that the care or responsibility model tend more to be legally irrelevant or incomplete under the substantive and evidential rules. Also, the conceptualisation of law can be biased. For instance, Fineman (2005) has suggested that the men-written history depicts social arrangements, gender, and human nature with biases which contribute to a patriarchal conceptualisation of law that subordinates women. Feminists in legal sphere are dedicated to advance jurisprudence by challenging the political visions embedded within the doctrines of law and also calling for considerations on the diversity of various voices and the importance of a multicultural society (Minda, 1995). The goal of feminist jurisprudence is to change the status of women by reworking the legal assumptions on gender (Scales, 2006). Feminist legal theorists emphasise on deconstructing the objective and neutral claim of law and advocate to use feminism to replace the patriarchal value in traditional jurisprudence.
practices. Feminist jurisprudence can deconstruct the asymmetrical sexual normative values in law, and capable to call for modification and reinterpretation for prejudiced legal judgement. Thus, this research will combine feminist jurisprudence and a sex-positive legal approach (Kaplan, 2014; Williams et al., 2015; Bennett, 2018) to examine how do normative sexual values lead to biased jurisprudence and affect the implementation of social justice. 2.4 Sex-Positive Legal Approach A sex-positive legal approach recognises the “unique benefits” (Kaplan, 2014: 155) and “inherent strengths” (Williams et al., 2015: 7) of non-normative sexuality. This approach values sexual autonomy and regards sexual gratification can be positively gained through various forms of consensual sexual conduct (Dixon, 2008). Sex-positivism emphasises sexual diversity and rejects heteronormative and other dominant sexual cultures that oppresse alternative sexuality (Kaplan, 2014). A sex-positive legal approach can better reveal the complexities of sexual consent in legal thinking and sexual cultures (Bennett, 2018: 9). The core of sex-positive legal study is to challenge the legal assumptions on the values of sexual activity (Kaplan, 2014: 89). By dissecting and rejecting these assumptions in law, sex-positive legal scholarship can re-examine the justifications on “what we regulate” and “how we regulate” (164). As a result, a sex-positive legal approach can challenge the biased sexual presumptions in law and advocate for sexual diversity by recognising and appreciating alternative sexual practices. This research follows the critical legal studies perspective on law that law is ideological, with social biases and ideological assumptions (Lucarello, 2012). In line with feminist jurisprudence, this study challenges the political visions embedded within legal institutions and advocate for diverse and multicultural society (Minda, 1995). Through a sex-positive legal approach, this research emphasises sexual diversity and challenges dominant normative sexual culture that suppresses sexual freedom. This thesis focuses on how does normative cognition of sex affect the politics and jurisprudence of sexual consent which as a result oppress the existence of sadomasochism. This study utilises the theory of cognitive limits on consent to investigate sexual inequalities at the legal level. By analysing the cognitive limits, this study examines how does sexual cognition shape legal reasoning and affect the
implementation of social justice. The next chapter introduces the theoretical core of this research: theories of consent and theory of cognitive limits on consent.
