BDSM and the Legal Imaginary

Abstract

Using original transcripts of cases in which ‘sex games’ have ‘gone wrong’, this chapter examines how the practice of bondage and sado-masochism (BDSM) is figured in legal discourses and the implications this understanding of it has for debates about consent and sexual violence. The premise that consent to sexual violence might act as a defence or mitigating factor in cases which go to trial suggests that something understood as BDSM is recognized as a legitimate sexual practice by the courts. Recognizing the legitimacy of marginalized sexual practices can be understood as a progressive way to recognize individuals’ autonomy and freedom, within the contemporary neoliberal framework in which these cases play out. Campaigners against the judgement of the foundational Brown case make this clear (The Spanner Trust, n.d.). Yet, BDSM practice has also been mobilized to justify or diminish the significance of sexualized violence against women (Harman & Garnier, 2019, July 19).

This chapter navigates the line between these two priorities to interrogate the ways in which courts themselves interpret and understand BDSM. Gaining insight into how courts might be said to ‘operationalise’ BDSM, we can gain some insight into the role that consent plays in understanding sexual violence, including the work that consent has to do to turn an act of sexual violence into one of BDSM.

In order to do this work, I have acquired nine transcripts of crown court cases from 2010 to 2020 in which a ‘rough sex’ defence was used. Conducting a discourse analysis of how BDSM is imagined in these cases, in dialogue with previous I have conducted on consent and BDSM communities (Fanghanel, 2019, 2020), this chapter traces how knowledge about BDSM in created, and how this becomes used to affect justice outcomes.

Citation

Fanghanel, A. (2022), "BDSM and the Legal Imaginary", Bows, H. and Herring, J. (Ed.) ‘Rough Sex’ and the Criminal Law: Global Perspectives (Feminist Developments in Violence and Abuse), Emerald Publishing Limited, Leeds, pp. 69-84. https://doi.org/10.1108/978-1-80117-928-720221005