* Professor of Law, Vermont Law School, Visiting Professor of Law, University of California, Hastings College of the Law, 2000–2001. J.D., Harvard Law School, B.A., Kalamazoo College. I would like to thank Jennifer Burkhardt, Amy Rose, and Tia McClure for their research assistance on this piece. It was a hard and emotional project on which to work, and I deeply appreciate their thoughtfulness and good humor. I would also like to thank David Faigman, Evan Lee, Aaron Rappaport, Reuel Schiller, Rahdika Rao, Joel Paul, Roger Park, and Kate Bloch for their comments, suggestions, and unwavering support. I am grateful to my faculty colleagues at Florida State University, Thomas Jefferson School of Law, and Hastings College of the Law, who were kind enough to listen to me present this work in its early stages. Of course, I take full and complete responsibility for this article. The author can be reached at channa@vermontlaw.edu.
1 The term sadomasochism (S/M) derives from the work of two novelists: Marquis de Sade and Leopold von Sacher-Masoch, both of whom explored in their writings the bonds of violent sexual relationships. Sadomasochism, which is sometimes referred to as bondage and domination, or bondage and discipline (B/D), is a sexual practice whereby a person experiences erotic pleasure though either inflicting pain (sadism) or receiving pain (masochism). Thomas E. Murray & Thomas R. Murrell, The Language of Sadomasochism 20–21 (1989).
2 Talal Asad, On Torture, or Cruel, Inhuman, and Degrading Treatment, 63 Soc. Res. 1081 (1996), available at 1996 WL 13224679 (1996).
3 See Marianne Apostolides, The Pleasure of Pain: Why Some People Need S & M, Psychol. Today, Sept. 1, 1999, at 60.
4 Asad, supra note 2.
5 See, e.g., Gloria G. Brame et al., Different Loving: The World of Sexual Dominance and Submission 5 (1993) (“The practices and attitudes of contemporary sexual dominants and submissives . . . largely abide by the credo of ‘Safe, Sane, and Consensual.’”).
6 William N. Eskridge, Jr., The Many Faces of Sexual Consent, 37 Wm. & Mary L. Rev. 47, 48 (1995).
7 Id.
8 There is some debate over the use of the word violence within the S/M context. For example, one author suggests, “Consensual sadomasochism has nothing to do with violence. Consensual sadomasochism is about safely enacting sexual fantasies with a consenting partner. Violence is the epitome of nonconsensuality, an act perpetrated by a predator on a victim.” Carol Truscott, Leatherfolk 15–16 (1992), as cited in William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 260 (1999).
In this piece, I use the word “violence” within its legal definition: “Force, physical force, force unlawfully exercised, the abuse of force, that force which is employed against common right, against the laws, and against public liberty.” Black’s Law Dictionary 1742 (4th ed. 1968). Hence, within its legal definition, violence may be consensual activity but still violate public policy and legal norms.
9 See R. v. Brown, 1 A.C. 212, 230 (Eng. H.L. 1994) (detailing the common law of violent consent and holding that “bodily harm. . .need not be permanent, but must, no doubt, be more than merely transient and trifling”).
10 See generally George E. Buzash, Note, The “Rough Sex” Defense, 80 J. Crim. L. & Criminology 557 (1989) (reviewing the case law on the “rough sex” defense and finding that it often serves to mitigate and in some cases exculpate defendants).
11 See People v. Jovanovic, 95 N.Y.2d 846 (2000) (leave to appeal granted, decision without published opinion) [hereinafter Jovanovic II].
12 People v. Jovanovic, 700 N.Y.S.2d 156 (App. Div. 1999) [hereinafter Jovanovic I].
13 See id. at 164.
14 See id. at 174.
15 Robert Chambers was charged with the murder of Jennifer Levin. Both were affluent youths in New York City. On August 26, 1986, the two met at a local pub, where they argued, and then left for a walk in Central Park. Two hours later, the police found Levin’s body, bruised and strangled. At trial, Mr. Litman, Chambers’s attorney, contended that Levin’s death resulted from a mishap during rough sex. The prosecution eventually plea-bargained from murder to manslaughter. See Buzash, supra note 10, at 558. The “rough sex” defense was not invented by Jack Litman, but was made popular by this case. See Linda A. Fairstein, Sexual Violence 125, 146 (1993).
16 See People v. Jovanovic, 676 N.Y.S.2d 392 (N.Y. Sup. Ct., Trial Division 1997).
17 Jovanovic I, 700 N.Y.S.2d at 156.
18 Id.
19 But see R. v. Christopher, BC9906145 (Supreme Court of Victoria—Criminal) (1999) (reaching contrary conclusion in case where the victim died of erotic asphyxia and bondage). This is the only case of common law tradition to explicitly suggest that S/M may fall within the sports exception to assault and battery. For a description of the case, see, Five Years in Jail for Bondage Sex Death, AAP Newsfeed, Sept. 3, 1999.
20 The other exceptions to the doctrine include surgery, body piercing, and tattooing, which are activities regulated by the states in exercise of its police power. John S. Herbrand, Regulation of the Business of Tattooing, 81 A.L.R. 3d 1212 (1977); see also Keith M. Harrison, Law, Order & the Consent Defense, 12 St. Louis U. Pub. L. Rev. 477, 480, 501 (1993). This Article does not explore the relationship between consensual violence and mercy killings or euthanasia.
21 See, e.g., Barnes v. Glenn Theater, 501 U.S. 560, 574–75 (1991) (Scalia, J., concurring) (“Our society prohibits . . . certain activities not because they harm others but because they are considered . . . immoral. In American society, such prohibitions have included, for example, sadomasochism . . . suicide, drug use, prostitution, and sodomy.).
For articles and books on whether moral outrage alone is a sufficient governmental interest to regulate private activity, see generally William J. Bennett, the Death of Outrage: Bill Clinton and the Assault on American Ideals (1998); Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (1997); S.I. Strong, Romer v. Evans and the Permissibility of Morality Legislation, 39 Ariz. L. Rev. 1259 (1997); Peter M. Cicchino, Reason and the Rule of Law: Should Bare Assertions of “Public Morality” Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review?, 87 Geo. L.J. 139 (1998).
22 See infra notes 80–102 and accompanying text.
23 Lauren Goodlad, You Get Me Closer to God: Advertisers Are Taking S/M Mainstream, but What Exactly Are We Buying? Seattle Weekly, Feb. 12, 1998, at 35.
24 See Apostolides, supra note 3, at 60 (noting that in the 1980s, the American Psychiatric Association removed S/M as a category in its Diagnostic & Statistical Manual of Mental Disorders); see also Jack Novick & Kerry Kelly Novick, Fearful Symmetry: The Development and Treatment of Sadomasochism (1996) (reviewing psychoanalysis literature on S/M); Lynn S. Chancer, Sadomasochism in Everyday Life 69–88 (1992) (describing psychoanalytic view of sadomasochism, particularly Freudian theory); S & M: Studies in Dominance and Submission (Thomas S. Weinberg ed., 1995).
25 See Apostolides, supra note 3, at 60 (quoting Charles Moser).
26 See, e.g., Eskridge, supra note 6, at 60–61 (arguing that while there is no “stereotypical” gay lifestyle, “the lesbian, gay male, and bisexual community is more relentlessly ‘liberal’ about sexuality than is the straight community, including most straight women” and that the gay experience is more sympathetic to S/M).
27 See, e.g., Anne Rice, Exit to Eden (1996).
28 See Black Rose Club Homepage at http://www.br.org (visited Aug. 15, 2000) (homepage for the Black Rose, a nonprofit organization “which provides a forum for the many different expressions of power in love and play”).
29 See Disciplinary Wives Club Homepage at http://jagworld.com/mist/DWC/DWC-main.htm (visited July 10, 1999) (describing itself as “an organization whose purpose is to encourage the application of ‘Good Old Fashioned’ spanking and other traditional methods of discipline by wives and committed partners.”).
30 David Brooks, The New Upper Class: How Conservatives Won the Cultural War and Lost the Peace, Wkly. Standard, May 8, 2000, at 21.
31 For a description of the academic controversy surrounding S/M, see, e.g., Eddie Hargreaves, Professors’ Grant to Study S/M Stirs Controversy, U. Wire, May 14, 1998 (describing controversy stirred when two Pacific University Professors received a $5000 grant to study sadomasochism); see also Candace de Russy, Revolting Behavior: The Irresponsible Exercise of Academic Freedom, Chron. Higher Educ., Mar. 6, 1998, at B9 (ridiculing an academic conference on S/M); Andrea Neal, Promoting Sexual Deviancy on Campus, Indianapolis Star, June 18, 1998, at A16 (criticizing the American Association of University Professors for giving its academic freedom award to a college president for hosting a conference on sexuality that including the topic of sadomasochism).
32 For a description of such a case, see Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 Wm. & Mary L. Rev. 1505, 1555–57 (1998).
33 See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849 (1996) [hereinafter Hanna, No Right to Choose].
34 See infra notes 48–79.
35 See infra notes 80–193.
36 See William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 248–49 (1999).
37 See, e.g., David Hinckley, Laura v. Gays: The Airwar Heats Up, N.Y. Daily News, Mar. 8, 2000, at 42 (discussing controversy over Dr. Laura Schlesinger); Stephen Breen, Bishop Stirs Up A Storm Over Sex, The Scotsman, July 10, 1999; John Boyle, Sadomasochism Troubles Therapists, Spiritual Leaders, Asheville Citizen-Times, Aug. 16, 1998, at C1.
38 See infra notes 154–166.
39 See Eskridge, supra note 36, at 256–57; Gloria G. Brame et al., supra note 5, at 3–4.
40 Paddleboro Information Website at http://www.paddleboro.com (visited Nov. 2, 2000); Cindy Rodriquez, Group Creates Defense Fund to Support S&M Accused, The Boston Globe, July 27, 2000, at B6.
41 J.M. Lawrence, Of Human Bondage: S&M Community Unites to Defend Paddleboro Martyrs; Championing Different Strokes for Different Folks, Boston Herald, Oct. 27, 2000, at 39.
42 Judith Kelleher, S & M:Why Not?, Nat’l L. J., Aug. 21, 2000, at M1.
43 Meredith Goldsmith, Prosecutor Defends Handling of Sadomasochism Party, The Providence Journal, Nov. 2, 2000, at B3.
44 See id.
45 See Margaret J. Radin, The Pragmatist and the Feminist, 63 S. Cal. L. Rev. 1699, 1702 (1990).
46 See Richard Posner, Ask, Tell, The New Republic, Oct. 11, 1999, at 52 (arguing for Millian liberalism in domain of sex and sadomasochism).
47 In On Being American (1922), H.L. Mencken wrote: “To be Happy one must be a) well-fed, unhounded by sordid cares, at ease in Zion, b) full of a comfortable feeling of superiority to the masses of one’s fellow men, and c) delicately and unceasingly amused according to one’s tastes.”
48 Harrison, supra note 20, at 478–79.
49 F.H. Beale, Consent in the Criminal Law, 8 Harv. L. Rev. 317, 325 (1895).
50 For example, one of the earliest statements regarding consensual violence is found in Hawkin’s Pleas to the Crown:
[I]f death ensues from such [sports] as are innocent and allowable, the case will fall within the rule of excusable homicide; but if the sport be unlawful in itself, or productive of danger, riot or disorder, from the occasion, so far as to endanger the peace, and death ensure; the party killing is guilty of manslaughter.
1 Hawkin’s Pleas of the Crown, ch. 15 (8th ed. 1824).
51 See Beale, supra note 49, at 325.
52 See generally James Q. Whitman, Enforcing Civility & Respect: Three Societies, 109 Yale L.J. 1279 (2000).
53 14 Cox C.C. 83, 84 (1878) (Eng.).
54 See id.
55 Id. at 84–85.
56 Id.
57 See id.
58 Ice hockey has presented a host of problems for Canadian courts in particular. See, e.g., Regina v. Ciccarelli, 54 C.C.C. (3d) 121 (Can. 1989). Like football and soccer, professional ice hockey is a contact sport where, while physical contact is what makes the game the game, injury is incidental to the game itself. To intentionally inflict harm is not the purpose, but an anticipated consequence of the activity itself.
59 See, e.g., Nabozny v. Barnhill, 334 N.E.2d 258, n.10 (Ill. 1975) (“This court believes that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth. However, we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization must accompany every athlete on to the playing field.”); Jaworski v. Kiernan, 696 A.2d 332, 337 (Conn. 1997); Dilger v. Moyles, 54 Cal. App. 4th Supp. 1452 (1997). See also Jack Anderson, Citius, Altius, Fortius? A Study of Criminal Violence in Sport, 11 Marq. Sports L. Rev. 87 (2000).
60 See Hawkin’s, supra note 50, at ch. 15.
61 See generally The History of Fencing: Foundations of Modern European Swordplay (William M. Gaugler & Lance C. Lobs eds., 1998).
62 For an excellent history of the law of prize fighting, see R. v. Brown, 1 A.C. 212, 262–65) (Mustill, L., dissenting) (Eng.H.L. 1993).
63 But see People v. Freer, 381 N.Y.2d 976 (1976) (sustaining third degree assault charge in altercation between football players that took place after the players got up from a pile-up).
64 Jody Goldstein, Acts of Violence in the Sporting Arena Increasingly are Finding Their Way Into the Courtroom, Hous. Chron., May 5, 2000, at 1 (noting that Canada has long prosecuted athletes for injuries inflicted on the playing field, especially hockey games); Bonnie DeSimone, Violence Between the Sidelines Seldom Leads to Court, Chi. Trib., Dec. 20, 2000, at 1 (citing Matt Mitten, Director of Marquette University’s National Institute on Sports Law as saying, “It is generally accepted that there is a level of contact and violence that is part of the game, even though it would be considered unacceptable off the field. Courts don’t want to chill vigorous competition.”).
65 See DeSimone, supra note 64, at 1 (noting that there have been at least five arrests in 2000 of players who inflicted injury on another during a sporting event). For a discussion of Canada’s response to sports and violence, see generally, Diane V. White, Sports Violence as Criminal Assault: Development of the Doctrine by Canadian Courts, 1986 Duke L.J. 1030 (1986).
66 See, e.g., Chip Scoggins, High School Hockey: Checks & Balances, Star Trib. (Minneapolis-St. Paul), Jan. 19, 2000, at 1C (discussing case in which a fifteen-year-old boy from suburban Chicago faced criminal charges after he cross-checked from behind an opponent and left him paralyzed).
67 See Dave Luecking, Following McSorley’s Guilty Verdict, Many Players are Concerned that More Cases will End Up in Court, St. Louis Post-Dispatch, Oct. 8, 2000, at D8.
68 See Luecking, supra note 67, at D8.
69 See Steve Ziplay, Questionable Decision; McSorley Ruling Renews Debate on How to Handle Violence in Sports, Newsday, Oct. 8, 2000, at C10.
70 See Luecking, supra note 67, at D8 (discussing the reaction to McSorley verdict).
71 [1991] S.C.R. 714 (Can. 1991).
72 See id. at 725.
73 See id. at 762.
74 Id.
75 See id. at 733–34.
76 See generally Michael Ghigleri, The Dark Side of Man (2000) (tracing the origins of male violence); Frans de Waal, Good Natured (1996); Frans de Waal, Chimpanzee Politics (1990); Owen D. Jones, Evolutionary Analysis in Law: An Introduction and Application to Child Abuse, 75 N.C. L. Rev. 1117 (1997) (reviewing a biological model of human behavior and its applications to the law); Robert Wright, The Biology of Violence, The New Yorker, Mar. 13, 1995, at 68 (examining male competition and violence, especially among male gang members).
77 20 U.S.C. § 1681(a) (1994). For a history of Title IX, see Diane Heckman, Scoreboard: A Concise Chronological Twenty-Five Year History of Title IX Involving Interscholastic and Intercollegiate Athletics, 7 Seton Hall J. Sport L. 391 (1997).
78 See generally Whatever it Takes: Women on Women’s Sports (Joli Sandoz & Joby Winans eds., 1999); Susan K. Cahn, Coming on Strong: Gender and Sexuality in Twentieth Century Women’s Sports (1994); Mariah Burton Nelson, Embracing Victory: Life Lessons in Competition and Compassion—New Choices for Women (1998); Mary Turco, Crashing the Net: The U.S. Women’s Olympic Ice Hockey Team and the Road to Gold (1999); Jean Zimmerman and Gil Reavill, Raising Our Athletic Daughters 165 (1998); Cheryl Hanna, Good Girls and Bad Sports: Violent Female Juvenile Delinquents, Title IX, and the Promise of Girl Power, 27 Hastings Const. L.Q. (forthcoming 2000); Mariah Burton Nelson, Learning What Team Really Means, Newsweek, July 19, 1999, at 55.
79 See Force v. Pierce City R-IV School District, 570 F. Supp. 1020, 1031 (W.D. Mo. 1983). In ruling that the plaintiff should be allowed to try out for the football team, the court held, “Nicole Force obviously has no legal entitlement to a starting position on the Pierce City Junior High School eighth grade football team . . . . But she seeks no such entitlement here. Instead, she seeks simply a chance, like her male counterparts, to display those abilities. She asks, in short, the right to try. But the idea that one should be allowed to try—to succeed or fail as one’s own abilities and fortunes may dictate, but in the process at least to profit by those things which are learned by trying—is a concept deeply engrained in our way of thinking; and it should indeed require a ‘substantial’ justification to deny that privilege to someone simply because she is a female rather than a male.” Id.; see also Cohen v. Brown Univ., 101 F.3d 155, 188 (1st Cir. 1996).
80 See Eskridge, supra note 36, at 259–63; Sangeetha Chandra-Shekran, Critique & Comment: Theorizing the Limits of Sadomasochistic Homosexual Identity in R. v. Brown, 21 Melbourne U. L. Rev. 584 (1997).
81 See 58 Cal. Rptr. 439 (1967).
82 See, e.g., Jovanovic I, 700 N.Y.S.2d 156, 167 (N.Y. App. Div. 1999); State v. Collier, 372 N.W.2d 303, 306 (Iowa 1985).
83 For a brief discussion of the case and the law of consent, see Note, Assault and Battery—Consent of Masochist to Beating by Sadist is No Defense to Prosecution for Aggravated Assault, 81 Harv. L. Rev. 1339 (1968).
84 Samuels, 58 Cal. Rptr. at 442–43.
85 See id. at 441.
86 See id. at 447.
87 See id. at 513.
88 See id.
89 Samuels, 58 Cal. Rptr. at 513–14 (“It is a matter of common knowledge that a person in full possession of his mental faculties does not freely consent to the use, upon himself, of force likely to produce great bodily injury.”).
90 Id. at 513.
91 478 U.S. 186, 195 (1986).
92 See Samuels, 58 Cal. Rptr. at 447.
93 But see People v. Doggett, 83 Cal. App.2d 405 (1948) (holding that photographs or films are admissible as probative evidence where there is unimpeached expert testimony that they were not faked).
94 See, generally, William N. Eskridge, Jr. No Promo Homo The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N. Y. U. L. Rev. 1327 (2000); Odena R. Neil, The Limits of Legal Discourse: Learning From the Civil Rights Movement in the Qust for Gay and Lesbian Civil Rights, 40 N. Y. L. Sch .L. Rev. 679 (1996); Elvia R. Arriola, Faeries, Marimachas, Queens & Lezzies: The Construction of Homosexuality Before the 1969 Stonewall Riots, 5 Colum.J.Gender & Law 33 (1995).
95 402 N.E.2d 1051 (Mass. 1980).
96 See id. at 1053.
97 See id. at 1054.
98 See id. at 1059–60.
99 See id.
100 See, e.g., Natalie Loder Clark, Crime Begins at Home: Let’s Stop Punishing Victims and Perpetuating Violence, 28 Wm. & Mary L. Rev. 263 (1987); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991).
101See also People v. Murphy, 899 P.2d 294 (Colo. Ct. App. 1994) (holding as reversible error a lower court’s refusal to allow the defendant to cross examine the complaining witness about his sexual orientation or to introduce expert testimony about the possible behavior of homosexual men with sexual identity conflicts in order to go to the issue of consent.), rev’d, 919 P.2d 191 (Colo. 1996) (holding that questions about a victim’s sexual orientation are barred under Colorado’s Rape Shield statute and that this case did not fall into a statutory exception.).
102 Peter Kwan, Intersections of Race, Ethnicity, Class, Gender & Sexual Orientation: Jeffrey Dahmer and the Cosynthesis of Categories, 48 Hastings L.J. 1257, 1258 (1997).
103 See id.
104 See Hanna, No Right to Choose, supra note 33, at 1857–65 (describing police responses to domestic violence).
105 1 A.C. 212 (Eng. H.L. 1993). For cases in which S/M activities arguably resulted in death, see, e.g., Minnesota v. Pero, 590 N.W.2d 319 (Minn. 1999); Leitner v. State, 631 So.2d 273 (Ala. 1993); Gilpin v. State, 1991 WL 84067 (Tex. Crim. App. 1991).
106 For a description of the case, see Bill Thompson, Sadomasochism: Painful Perversion or Pleasurable Play? (1994).
107 Brown, 1994 1 A.C. at 236.
108 See Laskey v. United Kingdom, 24 Eur. Ct. H.R. 39, 41 (1997).
109 See Thomas E. Murray & Thomas R. Murrell, The Language of Sadomasochism: A Glossary and Linguistic Analysis 118 (1989) (defining a safe word as “a word which, when uttered by the masochist during a sadomasochistic scenario lets the sadist know that the masochist has reached his or her limits of pain or believes that things are generally getting out of hand and wants to stop”).
110 Brown, 1 A.C. at 236.
111 Sexual Offences Act of 1967, c. 60, § 1 (Eng.) (“a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21.”).
112 Section 20 reads “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily injury on another person, either with or without any weapon or instrument, . . . shall be liable . . . to imprisonment . . . for not more than five years.”
113 See 24 Eur. Ct. H.R. at 42–43.
114 Brown, 1 A.C. at 236–37 (opinion of Lord Templeton).
115 See id; Eskridge, supra note 36, at 236.
116 Brown, 1 A.C. at 245–62 (opinion of Lord Jauncey).
117 See id. (opinion of Lord Jauncey).
118 See Kenneth N. Sandnabba et al., Sexual Behavior and Social Adaption Among Sadomasochistically-Oriented Males, 36 J. of Sex Res. 273 (1999) (finding that in a sample of 164 men who were members of two sadomasochistically-oriented clubs, the participants were socially well-adjusted).
119 See Eskridge, supra note 36, at 261.
120 See Brown, 1 A.C. at 256–75 (opinion of Lord Mustill).
121 Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides: “Everyone shall have the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except in accordance with the law and as necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.”
122 See Laskey, 24 Eur. Ct. H.R. at 56–57 (noting that a considerable number of people were involved in the activities, including the recruitment of new members and the shooting of videotapes, thus leaving open the question as to whether the sexual activities fell entirely within the notion of a private life).
123 Id. at 57–58 (“[S]ome of these acts could well be compared to acts of ‘genital torture’ and a Contracting State could not be said to have an obligation to tolerate acts of torture because they are committed in the context of a consenting sexual relationship.”). For a broader discussion on human rights, see Human Rights, Culture & Context: Anthropological Perspective (Richard A. Wilson ed., 1997).
124 Laskey, 24 Eur. Ct. H.R. at 58.
125 Id. at 59.
126 Id. at 60.
127 See, e.g., John Wadham, Consent to Assault, 146 New L.J., 1812, 1812 (1996) (pointing out that while some argue that consent to assault would most endanger women, the case is an affront to civil liberties).
128 See Eskridge, supra note 36, at 262.
129 See id.
130 See id.
131 See Brown, 1 A.C. at 274 (Opinion of Lord Mustill).
132 See Susan Estrich, Real Rape 60–65, 69 (1987) (discussing the legal standard of force in rape).
133 See Stephen J. Schulhofer, Unwanted Sex 3 (1998).
134 See id.
135 See, e.g., In re M.T.S., 609 A.2d 1266 (N.J. 1992).
136 Donna K. Coker, Heat of Passion Killing: Men Who Batter, Men Who Kill, 2S. Cal. Rev. L. & Women’s Stud. 71 (1992).
137 David M. Buss, The Dangerous Passion 101–30 (2000) (discussing the link between sexual jealousy and intimate violence).
138 See Cheryl Hanna, Can a Biological Inquiry Help Reduce Male Violence Against Females, 22 Vt. L. Rev. 333, 348–49 (1997); Barbara Smuts, Male Aggression Against Women: An Evolutionary Perspective, in Sex, Power, Conflict: Evolutionary & Feminist Perspectives 231 (David M. Buss and Neil M. Malmuth eds., 1996).
139 See, e.g., Chancer, supra note 24.
140 See Apostolides, supra note 3, at 60 (citing Charles Moser of the Institute for Advanced Study of Human Sexuality that S/M is most popular among educated, middle and upper class men and women).
141 See, e.g., Ohio v. Hardy, 1997 Ohio App. LEXIS 4588 (1997). In that case, a husband, disguised as a burglar, attacked his wife, blindfolded her, tied her to a chair, struck her, and forced her to engage in oral and anal intercourse, claiming that it was part of “fantasy role playing.” On another occasion, he raped her at gunpoint, bound her legs, handcuffed her, and attempted to put her in a bathtub with water that had an electrical radio perched on edge, and then tried to suffocate her. He testified at trial that their marital sexual activity was “a little bit different than what most people would consider normal.” See id. In Ohio v. Roquemore, 85 Ohio App. 3d 448 (1993), the defendant admitted to hitting the headboard of the bed with a baseball bat and started wrestling with the victim until she started scratching him and then he laid on top of her, and had intercourse. The victim became unconscious and died of cardiac stoppage, as well as suffering rectal and vaginal trauma. The defendant claimed that this was all part of rough sex that the two had had previously as well. See also People v. Hooker, 244 Cal. Rptr. 337 (1988) (Defendant, “an advocate of bondage and discipline” kidnapped, with his wife, a twenty-year-old girl and held her in a specially constructed “headbox”, tortured her, whipped her, and held her prisoner as his sexual slave for more than seven years.); Horowitz v. State, 1996 WL 112223 (Tex. Crim. App.) (Victim who arguably blacked out after consuming alcohol was allegedly violated by the defendant, an attorney, who caused severe trauma too her vagina, cervix, anus and rectum, but argued that the injuries were sustained during consensual “rough” sex.); Ewing v. Texas, 1997 WL 488614 (Tex. Crim. App.) (At gunpoint, defendant grabbed the victim’s arm, pulled her to the floor and told her he “was going to teach her a lesson wanting to be a slut and work in a bondage and discipline bar,” and then engaged in a series of violent acts which included cutting her with a knife, beating her and inserting objects in her rectum and vagina. Defendant claimed that she asked him to perform these sadomasochistic acts on her.); Mendyk v. Florida, 545 So.2d 846 (Fla. 1989) (defendant grabbed a female convenience store clerk, took her to a secluded area, tied her up and sexually tortured her, and eventually killed her. At the penalty phase of the trial, the state introduced magazines seized by the police from the defendant’s residence which covered themes including sadomasochism, slavery and bondage.); R. v. Welch, 101 C.C.C. (3d) 216 (1995) (defendant tied up his partner with scarves and his tie, poured baby oil on her, beat her with a belt, inserted his finger in her vagina and an object in her rectum. Defendant claimed that the victim agreed tot his kind of sadomasochistic sex and asked for it).
142 See 372 N.W.2d 303 (Iowa Ct. App. 1985) (citing Iowa Code § 708.1 which provides “[t]hat the person doing any of the above acts [defining assault], and such other person, are voluntary participants in a sport, social or other activity, not in itself criminal . . . the act shall not be an assault”).
143 Collier, 372 N.W.2d at 304.
144 See id. at 307.
145 See William Stacey & Anson Shupe, The Family Secret: Domestic Violence in America 196 (1983) (“[W]e think there is good reason to believe that a cult of violence is spreading throughout our society and affecting every sector. [The cult is not an organized group rather it] is an acceptance of violence, learning to expect it, to tolerate it, and to commit it, however much one dreads it. This cult is stimulated by a violent environment that affects each generation of men and women, making them yet more desensitized to the problem.”).
146 See Regina v. Stephen Roy Emmett, [1999] E.W.C.A. 2651 (June 18, 1999), at http://www.bailii.org/ew/cases/EWCA/1999/2651.html.
147 See id. at ¶¶ 5–6.
148 See id. at ¶ 11.
149 Id. at ¶ 23.
150 1997 Q.B. 47 (Eng. C.A.).
151 See id.
152 See Emmett, [1999] E.W.C.A. at ¶ 29.
153 In a recent case in Quincy, Massachusetts, for example, Barbara Asher, a self-identified dominatrix, admitted to police that after her client, Michael Lord, died of a heart attack while in restraints in her dungeon, she and her boyfriend chopped up the body and disposed of the remains in a Dumpster. See David Wedge & J.M. Lawrence, Woman in S&M Case No Longer Working with Cops, Boston Herald, Aug. 18, 2000, at 3. This case reportedly sent women sex workers underground, fearing that they might become the target of a police crackdown. See J.M. Lawrence & David Wedge, S&M Pros Lay Low in the Sex Death Fallout, Boston Herald, Aug. 17, 2000, at 21.
154 Jovanovic I, 700 N.Y.S.2d 156, 164 (N.Y. App. Div. 1999).
155 Id. at n. 4 (“The defense explains that The Vault is a club catering to sadomasochists, and a “pushy bottom” is a submissive partner who pushes the dominant partner to inflict greater pain.”).
156 Id. at 171–72.
157 Id. at 168 n. 5 (internal citations omitted).
158 Id. at 174 (Mazzarelli, J., concurring in part and dissenting in part).
159 See id.
160 Id. at 200–01.
161 Jovanovic II, 95 N.Y.S.2d 846 (2000) (“Motion to dismiss appeal granted and appeal dismissed upon the ground that the reversal of the Appellate Division was not on the law alone or upon the law and such facts which, but for the determination of the law, would not have led to reversal. Although the order states that the reversal is on the law, the opinion reveals that an independent ground for reversal was the applicability of the CLP60.45 (5) ‘interests of justice’ exception to the Rape Shield Law.”).
162 See, e.g., People v. Murphy, 919 P.2d 191 (Colo. 1996) (Colorado Rape Shield Statute barred evidence of victim’s sexual orientation or that the victim had agreed to try some “rough sex”); State v. Stevens, 1995 Del. Super. LEXIS 294 (victim’s preference for “rough sex” inadmissible under Delaware Rape Shield Statute); State v. Miller, 600 N.W.2d 55 (Wisc. 1999) (questioning victim as to whether she ever engaged in rough sex was in error under Wisconsin Rape Shield Statute). See also Roger Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 Fordham Urb. L.J. 271 (1995); Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past Sexual Behavior, 44 Cath. U. L. Rev. 709 (1995); Rosemary C. Hunder, Gender in Evidence: Masculine Norms v. Feminist Reforms, 19 Harv. Women’s L.J. 127 (1996).
163 Kenneth Lovett et al., Cyber Ollie Now Faced with New Trial, N. Y. Post, July 7, 2000, at 2.
164 See, e.g., Robyn E. Blummer, Rape Shield Laws Have Outlived Their Usefulness and Should be Shelved, Salt Lake City Trib., Jan. 7, 2000, at A11.
165 Laura Italiano, Cybersex Suspect Nixes Deal, N.Y. Post, Dec. 14, 2000, at 12.
166 See Schulhofer, supra note 133, at 278.
167 See NOW S/M Policy Reform Project at http://members.aol.com/NOWSM/home. html (visited Feb. 2, 2000) (describing an ad hoc group of members of NOW who support freedom of sexual expression for consenting adults, inspired by caucus discussions held at NOW’s Lesbian Rights Summit).
168 See id.
169 See generally Mary Becker, Women, Morality, & Sexual Orientation, 8 UCLA Women’s L.J. 165 (1998) (arguing that heterosexual relationships are more problematic for women than are lesbian relationships).
170 See, e.g., Chancer, supra note 24; Lynda Hart, Between the Body & the Flesh: Performing Sadomasochism (1998); John Munder Ross, The Sadomasochism of Everyday Life (1997); Studies in Dominance & Submission (Thomas S. Weinberg, ed.) (1995).
171 See, e.g., David Tuller, Probing the Limits of Pain & Pleasure, San Fran. Chron., June 29, 1997, at 3Z1 (quoting Dossie Easton, a therapist, advocate for battered women and aficionado of sadomasochism, “Runner’s high is a good example of something that might be close to what people get out of the S/M stimulus. People’s endorphin systems kick in—endorphins are the opiates that your body naturally produces.”).
172 Goodlad, supra note 23, at 35; see also David Wedge & J.M. Lawrence, Woman in S&M Case No Longer Working with Cops, Boston Herald, Aug. 18, 2000, at 3.
173 See also Harold Levy, Sex Isn’t S/M Goal, Toronto Star, July 28, 1998, at B3. The article describes the trial of “Made de Sade,” a dominatrix who was arrested after police raided her “Chamber of Erotica.” Dr. Roy Baumeister, a psychologist at Case Western Reserve University, testified that it is often older white men who are drawn to sadomasochism, often wanting to be spanked and dominated. “It is separation from real life for them.” Id.
174 See generally Eskridge, supra note 36 at 254–55; Andrea Dworkin, The Root Cause in Our Blood: Prophecies & Discourse on Sexual Politics 96–111 (1976); Catharine MacKinnon, Towards a Feminist Theory of the State 126–54 (1982).
175 Robin L. West, The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 Wis. Women’s L.J. 149, 186 (2000) (discussing MacKinnon and Dworkin).
176 Id. at 184 (discussing differences between radical feminism and radical feminist legal theory).
177 Robin Ruth Linden, Introduction, Against Sadomasochism 9, (Robin Ruth Linden, et al. eds.,1982).
178 See Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993). In that case, a wife sued a husband in divorce for the intentional infliction of emotional distress for pursing sadomasochistic activities with her. See id. In Fielder v. Texas, initially a wife consented to “playful” bondage and discipline games with her husband, but then he forced her to participate in activities such as piercing her genitals and shackling her nude to metal rings in a closet he called “the cave.” The couple separated, and later Ms. Fielder killed her husband in what she argued was a case of self-defense. See 756 S.W.2d 309 (Tex. Crim. App. 1988). See also Marissa Jonel, Letter from a Former Masochist, in Against Sadomasochism, supra note 177, at 16–22 (providing a statement from a lesbian who used to practice S/M describing it as a cover to encourage women to be violent).
179 West, supra note 175, at 149.
180 See generally Becker, supra note 169; Pat Califia & Robin Sweeny, The Second Coming: A Leatherdyke Reader (1996).
181 For example, a recent case in San Diego highlights how far can be too far in the private pursuit of pleasure. John Ronald Brown was convicted of second-degree murder after he amputated the leg of a man to satisfy a sexual fetish. See J. Harry Jones, Unlicensed Doctor Gets 15 Years in the Death of a Man After the Amputation of Leg, San Diego Union-Tribune, Dec. 18, 1999, at B4.
182 Schulhofer, supra note 166, at 279.
183 See, e.g., Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. Davis L. Rev. 1013 (1991).
184 State v. Rusk, 424 A.2d 720 (Md. 1981).
185 Chancer, supra note 24, at 24.
186 See id. at 169–71.
187 For a description of an S/M scene depicting a “slave” being whipped by a “master,” see West, supra note 175, at 188–90 (quoting M. Marcus, A Taste for Pain: On Masochism and Female Sexuality 204–10 (1981) (“[s]ome people . . . are born into inequality and bondage and can only be happy by losing their false freedom and equality and giving themselves over to submissiveness and slavery.”)).
188 William F. McDonald, The Role of the Victim in America, in Assessing the Criminal 295, 295–96 (Randy E. Barney & John Hagel III eds., 1977) (“The criminal justice system is not for [the crime victim’s] benefit, but for the community’s. Its purposes are to deter crime, to rehabilitate criminals, punish criminals, and to do justice . . . .”).
189 See Tim Hrenchir, KBI Tries to Snare Suspects On Web, Topeka Capital-Journal, July 3, 2000, at A1.
190 See id.
191 Justice Department Ponders Net-Based Serial Murders, NewsBytes, June 8, 2000 (quoting Janet Reno as concerned about how to prosecute cyber-sex crimes).
192 See, e.g., Susan Jeanne Toepfer & Bryan Stuart Wells, The Worldwide Market for Sex: A Review of International and Regional Legal Prohibitions Regarding the Trafficking of Women, 2 Mich. J. Gender & L. 83 (1994) (reviewing the International Treaty Law Prohibitions on Trafficking in Women); Nora V. Demleitner, Forced Prostitution: Naming an International Offense, 18 Fordham Int’l L.J. 163 (1994) (reviewing the history of forced prostitution and white slavery).
193 See In re Baby M., 525 A.2d 1128 (N.J. Super. Ch. Div. 1987) (contract for surrogate void for public policy even though no statutory prohibition).
194 Goodlad, supra note 23, at 38.
195 See Mark M. Hager, Sex in the Original Position: A Restatement of Liberal Feminism, 14 Wis. Women’s L.J. 181 (1999); see also Morrison Torrey, Feminist Legal Scholarship on Rape: A Maturing Look at One Form of Violence Against Women, 2 Wm. & Mary J. Women & L. 35 (1995).
196 See generally Katie Rophi, The Morning After (1993).
197 See Commonwealth of Virginia, Dep’t of Crim. Just. Servs., Div. of Forensic Science, Certificate of Analysis, Case No. 970212004 (Aug. 4, 1997) (bite marks on victim’s back matched Albert’s DNA).
198 Steve Ziplay, On the Road Back, Remorseful Marv Getting Counseling, Newsday, Oct. 24, 1997.
199 See Hanna, No Right to Choose, supra note 33, at 1898–1909 (describing the prosecution of domestic violence victims when the witness is unwilling to cooperate.).