1. Brown, Beverley, “Troubled Vision: Legal Understandings of Obscenity” (1993) 10 New Formations: A Journal of Culture/Theory/Politics 29 at 29.Google Scholar

2. (1993) 2 W.L.R. 557 [hereinafter Brown].

3. (1992) 89 DLR (4th) [hereinafter Butler].

4. In this paper I will use the notation “SM” and the term “sadomasochism” interchangeably, but would propose that they are not entirely commensurable. My primary argument in this paper is that in both popular discourse and in the law, the term “sadomasochism” (“sado-masochism,” “sadomasochist,” etc.) generally refers to a stereotype that is not commensurable with contemporary SM practice (or practitioners). I will use them in order to emphasize this tension.

5. Brown, supra note 2 at 559.

6. Ibid. at 574.

7. Ibid. at 566.

8. However, there is, according to both British and Canadian law, a “public” aspect to the case. As the men were engaged in “homosexual” as well as “sadomasochistic” activities, it was illegal for them to engage in homosexual activities with more than two persons present (under the 1967 Sexual Offenses Act in Britain. However, it would appear that charges under this Act were time-barred). The fact that there were more than two persons present also rendered their activities “indecent,” and thus the men were also charged with either maintaining or aiding and abetting a disorderly house (or common bawdy house in Canada), a disorderly house constituting a “public” place.

9. Brown, supra note 2 at 564.

10. Ibid. at 583.

11. Thompson, Bell, Sadomasochism: Painful Perversion or Pleasurable Play? (London: Cassell, 1994) at 5.Google Scholar The original police investigation was code-named “Operation Spanner,” thus the reference to the “Spanner decision.”

12. Ibid. at 603.

13. Bhabha, Homi, The Location of Culture (New York: Routledge, 1994) at 66.Google Scholar

14. Brown, supra note 2 at 564. The notion that the sexual appetite of persons who engage in what we might call “sadomasochistic activities” can only be satisfied by the infliction/reception of bodily injury (specifically flagellation), can be traced back to the early 17th century. In his treatise on flagellation, De Flagrorum Usu in Re Veneria & Lumborum Renumque Officio (On the Use of Rods in Venereal Matters and in the Office of the Loins and Reins), the German doctor Johann Heinrich Meibom linked the male need to be flagellated in order to achieve erection and orgasm to impotence and therefore “unmanliness” [see below]. See Gibson, Ian, The English Vice (London: Duckworth, 1978) at 1–12.Google Scholar

15. Ibid.

16. Ibid. at 584.

17. Ibid. at 583.

18. Stychin, Carl, “Unmanly Diversions: The Construction of the Homosexual Body (Politic) in English Law” (1995) 32 Osgoode Hall L.J. 503 at 516.Google Scholar Stychin goes on to say: “which becomes synonymous with the homosexual.” Although Stychin's article and mine link up in many ways, his primary focus is the pathologization of the homosexual, while mine is the pathologization of the sadomasochist, homosexual or otherwise. However, I would agree with Stychin that it is difficult, if not impossible, to separate the two in relation to Brown, thus this separation is rhetorical rather than substantive. I do not mean to marginalize the role that the Lords' “revulsion” at homosexuality played in the construction of the stereotype I am articulating here, but would direct the reader to Stychin's article to fill in the gaps left by my focus on sadomasochism.

19. Brown, supra note 2 at 654.

20. See also Stychin, supra note 18 at 526–28.

21. Brown, supra note 2 at 574.

22. Stychin, supra note 18 at 521.

23. Lindon, Robin Ruth et al. , eds., Against Sadomasochism: A Radical Feminist Analysis (San Francisco: Frog in the Well, 1882) at 9.Google Scholar

24. Card, Claudia, Lesbian Choices (New York: Columbia University Press, 1995).Google Scholar See, in particular, “Social Consequences: Catharsis, Addiction or Harmless Compulsion” at 231–35. Card argues that both the addiction and cathartic models (the cathartic model is proposed primarily by supporters of SM, the addiction model by those critical of SM) signal “underlying social distress” (ibid. at 236), implying that SM is merely a symptom and that it is the social itself which is pathological.

25. American Psychiatric Association, Diagnostic and Statistical Manual, 4th ed. (Washington: APA, 1995) at 529–30.Google Scholar

26. Ibid.

27. Ibid. at 566.

28. Thompson, supra note 11 at 2.

29. Brown, supra note 2 at 583 [emphasis added].

30. Butler, supra note 3 at 492.

31. Williams, Linda, “Second Thoughts on Hard Core: American Obscenity Law and the Scapegoating of Deviance” in Gibson, Pamela Church & Gibson, Roma, eds., Dirty Looks: Women, Pornography, Power (London: BFI, 1993) 46 at 50.Google Scholar Williams was commenting on the United States Supreme Court's Miller Test For Obscenity.

32. Butler, supra note 3 at 466.

33. Ibid. at 466–67.

34. Butler, supra note 3 at 490–91.

35. Thompson, supra note 11 at 257. Thompson does not provide any further publishing information.

36. An anonymous reviewer of an earlier draft of this paper commented that “while people may be “liable” to prosecution [as a result of Brown], no one (as far as we know) actually has been prosecuted using the Brown precedent. While this may be true, Thompson cites several cases where the police raided people's homes and confiscated materials, despite being unable to charge them with any crime. He also tells of “a caning devotee [who] lost his teaching post when a video of his bedroom [presumably shot by the police], highlighting a pair of stocks at the end of the bed and his cane collection, was shown to his school governors.” See Ibid. at 256. This type of harassment is no doubt an equally and perhaps even more effective means of regulating SM (by sending SM practitioners underground and thus minimizing the potential for proselytization) as prosecuting practitioners. Also, recently (February 1996), 1 received this message posted to one of the internet discussion lists I subscribe to related to SM: “The police in London have been consistently targeting, using plain-clothes police, and prosecuting sm/fetish venues and publishing houses for the past 3–4 years [i.e. subsequent to Brown]. Several publishing houses have been forced out of business, and a whole heap of magazines have been declared obscene.” The poster (whose anonymity I choose to protect) also points out that most of the harassment has been directed toward heterosexual SM clubs and magazines, though his message was in response to a previous message describing the harassment of a gay club which hosted what we in Canada would call a “Fetish Night” once a week, resulting in the club banning the SM group which hosted the fetish night.

37. Busby, Karen, “LEAF and Pornography: Litigating on Equality and Sexual Representations” (1994) 9:1 Can J. L. & S. 165.CrossRefGoogle Scholar

38. Ibid. at 184.

39. Ibid.

40. Ibid. at 185.

41. Ibid.

42. Ibid. at 184.

43. Ibid. at note 41.

44. See Haraway, Donna, Simians, Cyborgs, and Women: The Reinvention of Nature (New York: Routledge, 1991)Google Scholar, and in particular the chapter entitled “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” at 183.

45. For two examples where such an argument is made, see Karen Sims, Rose Mason & Darlene R. Pagano, “Racism and Sadomasochism: A Conversation with Two Black Lesbians” in Lindon et al., eds., supra note 23, 99; Evans, Jamie Lee, “Rodney King, Racism, and the SM Culture of America” in Reti, Irene, ed., Unleashing Feminism: Critiquing Lesbian Sadomasochism in the Gay Nineties (Santa Cruz: HerBooks, 1993) 74.Google Scholar

46. As I am not convinced by Claudia Card and other feminists' similar argument that the existence of SM is merely a symptom signalling underlying social distress. See supra note 24.

47. Busby, supra note 37 at 181, note 34.

48. Ibid. at 180–81.

49. For the beginnings of this debate, see Samois, , ed., Coming to Power (Boston: Alyson, 1982)Google Scholar; Lindon et al., eds., supra note 23.

50. Bartky, Sandra Lee, Femininity and Domination: Studies in the Phenomenology of Oppression (New York: Routledge, 1990) at 58.Google Scholar

51. Ibid. at 56.

52. Though she does observe: “The idea that sexual desire is a kind of bondage is very ancient; the notion takes on new meaning in the context of a radical feminist critique ormale supremacy.” Ibid. at 50.

53. Califia, Pat, Feminism and Sadomasochism, Public Sex: The Culture of Radical Sex (Pittsburgh: Cleis, 1994) 165 at 166Google Scholar, first printed in (1981) 12 Heresies 30.

54. Busby, supra note 37 at 181.

55. See Lorena Leigh Saxe who, presuming to have demonstrated that sadomasochism is “antifeminist,” argues that although it would be against feminist principles to exclude sadomasochists (insofar as they are women) from women's events, specifically the Michigan Women's Music Festival, it would be in accord with feminist principles to ban sadomasochistic “behavior and dress” (see Saxe, Lorena Leigh, “Sadomasochism and Exclusion” (1992) 7:4 Hypatia 59 at 66).CrossRefGoogle Scholar She writes, in a later footnote, that “Victoria Davion suggested that another reason for banning s/m behavior and dress at festivals is that s/m dress includes weapons that pose a threat to both the safety and the sense of safety of attendees. Indeed, rapes and other attacks do occur at large music festivals, and the presence of weapons facilitates those attacks and also adds to a climate of fear that many women go to festivals to escape” (Ibid. at 72, note 9). Here, lesbian sadomasochists are stereotyped as women who take weapons into women's festivals in order to rape and attack other women, and more generally as women to be feared by other women. However, my point here is that Saxe argues that women be excluded from the festival based on their appearance; that is, sadomasochists can attend the festivals as long as they do not appear to be sadomasochists. Would wearing a black leather jacket be sufficient indication of sadomasochistic tendencies, or would women have to have multiple piercings, be covered in tattoos, wearing leather pants and jackboots, and be carrying a whip, etc., in order to justify exclusion?

56. Busby, supra note 37 at 183.

57. Ibid. at 184.

58. Bartky, supra note 50 at 46.

59. Ibid.

60. I should point out here that the notation “SM” as used in this paper umbrellas several distinguishable types of relations, “sadomasochistic” being but one type. On the internet mailing lists I subscribe to, dedicated to the discussion of SM, the use of the acronym “bdsm” has come into vogue. “Bdsm” both distinguishes and marks an affiliation between four separate types of relations: relations based on bondage and discipline (bd); relations based on dominance and submission (ds); Master/slave relations (ms); and “sadomasochistic” relations (sm). A particular “SM” relationship may be based primarily on only one of these types of relations, or may be a mix or hybrid. Moreover, I do not think that these four categories can adequately encompass the large variety of possible forms of relationships that one might affiliate as “SM relationships.” However, I do not have time here to fully articulate the nature of this affiliation, though I will suggest below that the affiliation is largely structural. I have chosen to use “SM” rather than “bdsm” simply because most readers will be already familiar with it and thus it probably already calls various stereotypes to mind.

61. This is a quotation from a message posted to one of two internet mailing lists dedicated to the discussion of SM I subscribe to, and for a number of reasons I choose to protect the identity of this and other posters I will quote, and the lists. All quotations used in this paper that are taken from the internet will be prefaced by phrases such as “one practitioner says,” etc.

62. This is a gender-neutral pronoun used extensively on the internet. Its genitive correlate is “hir.” I will use these pronouns throughout the remainder of this paper whenever it is appropriate to do so.

63. Incidentally, parental chastisement was cited by the Lords in Brown as one of the forms of assault legitimately excepted from prosecution (and of course parents do not generally seek their child's consent).

64. See supra note 60.

65. Jacques, Trevor, On the Safe Edge: A Manual for SM Play (Toronto: WholeSM, 1993) at 11.Google Scholar

66. Karen MacKendrick, Counterpleasures: All the Joys of Pain [unpublished manuscript].

67. Thompson, supra note 11 at 264.

68. Hopkins, Patrick, “Rethinking Sadomasochism: Feminism, Interpretation, and Simulation” (1994) 9:1 Hypatia 116 at 131.CrossRefGoogle Scholar

69. Both Hopkins and I use the term “radical feminists” to refer primarily to feminists who self-identify as “radical feminists” in their written critiques of SM, and more specifically those who contributed to the anthology Against Sadomasochism: A Radical Feminist Critique, supra note 23. I recognize that some feminists who are not “against sadomasochism” as such may also identify themselves as “radical,” and that perhaps “anti-SM feminists” might be a more appropriate term to use.

70. Bartky, supra note 50 at 50.

71. Hopkins, supra note 68 at 123.

72. Ibid. at 124.

73. Ibid. at 128.

74. Ibid. at 125.

75. A sort of free-for-all “scrap” or wrestling match between partners generally characterized by a great deal of scratching, biting, hair-pulling and slapping. As the term “feral” suggests, there is a sort of “wild abandon” involved, though not abandon to the point where serious injury is incurred.

76. I should point out here that I have anecdotal evidence that Master/slave relations formed according to the model suggested here are much more rare in the SM community than one might expect. A practitioner recently posted a message on the internet complaining about the problems he experienced trying to find gay male M/s couples in the New York area when he was looking for some couples to take part in a seminar on Master/slave dynamics. As he puts it: “If NYC, the cesspool of deviancy and depravity according to such experts as Jesse Helms and Pat Buchanan … can't provide a better stock of gay Masters and slaves than l've found, then this must truly be a very rare trip despite the popularity of the fantasies.”

77. Butler, Judith, Bodies That Maller: On the Discursive Limits of “Sex” (New York: Routledge, 1993).Google Scholar Butler herself cites “Eve Sedgwick's recent reflections on queer performativity” at 224. She is refering to Sedgewick's, article “Queer Performati vity” (1993) 1:1 GLQ.Google Scholar

78. This reappropriation originated in the context of AIDS activism, as indicated in the name of the AIDS activist group “Queer Nation.”

79. Butler, supra note 77 at 12.

80. Ibid. at 228.

81. Ibid. at 226.

82. This distinction is suggested by Foucault in “The Subject and Power,” where he states: “[W]here the determining factors saturate the whole, there is no relationship of power; slavery is not a power relationship when man is in chains.” Foucault, Michel, “The Subject and Power” (1982) 8 Critical Inquiry 777 at 790.CrossRefGoogle Scholar

83. Bat-Ami Bar On, “Feminism and Sadomasochism: Self-Critical Notes” in Lindon et al., eds., supra note 23 at 75.

84. Unfortunately this quotation was taken from the internet and no publishing information was provided, other than that the two authors' surnames are Easton and Lizst.

85. Foucault, Michel, “The Ethics of Care of the Self as a Practice of Freedom” in Bernauer, James & Rasmussen, David, eds., trans. Gaunthier, Joseph, The Final Foucault (Cambridge: MIT, 1988) 1 at 2.Google Scholar I have written previously relating SM practice and asceticism in my M.A. thesis: Hoople, Terry, The SM Ascetic Praxis of Resistance: A Critical Ethnography (The Centre for the Study of Theory and Criticism, University of Western Ontario, 1994) [unpublished].Google Scholar My present thinking in this context has been greatly influence by Karmen MacKendrick (supra note 66), who, to my knowledge, is the only other person to have written extensively on SM as a modern form of asceticism, though neither of us has published this work as of yet.

86. Foucault, supra note 82 at 789–90.

87. As I do not have room to expand on this here, for a comprehensive and, I think, persuasive analysis of the types and aims of the disciplinary techniques characteristic of heteropatriarchal relations of power (though Foucault does not describe them as such), see Foucault, Michel, The History of Sexuality Volume I: An Introduction, trans. Hurley, Robert (New York: Vintage, 1990).Google Scholar

88. Mains, Geoff, Urban Aboriginals: A Celebration of Leathersexuality (San Francisco: Gay Sunshine Press, 1884) at 78.Google Scholar

89. Ibid. at 79. I should point out that Mains is using masculine pronouns because he is writing specifically about gay male SM culture. I would argue, however, that Mains' insights about the characteristics sought in and by tops apply no matter what the sex/gender of the top.

90. Rinella, Jack, The Master's Manual: A Handbook of Erotic Dominance (San Francisco: Daedalus, 1994) at 21–22.Google Scholar

91. Ibid. at 23.

92. Although I do not have the space to expand on this here, one of the things beyond the control of the top and which thus subverts the polarized structure of SM relations is what I will call the “jouissance of the other.” As the root verb “jouir” suggests, jouissance is not so much about “pleasure” as it is about “enjoyment,” including the enjoyment (for various reasons) of pain and suffering. In keeping with the French, jouissance is also linked to orgasm though, within an SM context, jouissance is not necessarily genitally focused, but rather is generally disruptively diffused across and through the entire body (disrupting, primarily, one's sense of “self), and thus is more akin to what the Christian mystics described as “rapture” or what we might paradoxically call an “ecstatic state” rather than what “we” (or men at least) generally refer to when they speak of “orgasm.” However, what 1 want to point out here is that the inability of the top to control the jouissance of the other intimates, a paradox at the core of consensual SM relations for anyone who would desire to be a “true” sadist, as the following problem articulated by one such person indicates: “[I beat my partner] because I am a sadist—my pleasure derives from his suffering. If he is getting to a magical, transcendant place or experiencing a euphoric high [that is experiencing jouissance], he is not really suffering and 1 am not being pleased … If suffering is caused by undesired actions, how can he suffer if he is consenting to this, indeed is desirous of it?”

93. MacKendrick, supra note 66.

94. Jesse Meredith, “A Response to Samois” in Lindon et al., eds., supra note 23, 96 at 96.

95. Catlin, George, Manners, Customs, and Conditions of the North American Indians (1841)Google Scholar, cited in Crapanzano, Vincent, “Hermes' Dilemma: The Masking of Subversion in Ethnographic Description” in Clifford, James & Marcus, George E., eds., Writing Culture: The Poetics and Politics of Ethnography (Berkeley: University of California Press, 1986) 51 at 55.Google Scholar

96. Cheri Lesh, “Hunger and Thirst in the House of Distorted Mirrors” in Lindon et al., eds. supra note 23, 202 at 203.

97. Morris, David, The Culture of Pain (Berkeley: University of California Press, 1991) at 1.Google Scholar

98. Ibid. at 181. Morris is referring specifically to Morinis', Alan “The Ritual Experience: Pain and the Transformation of Consciousness in Ordeals of Initiation” (1985) 13:2 Ethos 150.CrossRefGoogle Scholar

99. Caputo, John, Against Ethics: Contributions to a Poetics of Obligation with Constant Reference to Deconstruction (Bloomington: Indiana University Press, 1993).Google Scholar See, in particular, the chapter entitled “Jewgreek Bodies” at 194–219.

100. Ibid. at 196.

101. Ibid. at 206.

102. Ibid. at 207.

103. Ibid. at 214.

104. Ibid. at 210.

105. This is MacKendrick's reading of the picture, not the student's.