Shades of Grey

Though I haven’t read it, I admit to being delighted by the publication of the book, “Fifty Shades of Grey”.

Apparently, in the book, Dominant male gives a gift to Submissive female of a first edition of Thomas Hardy’s “Tess of the d’Urbervilles”, written in 1891, and that simple pretentious reference has led to vastly increased sales of ‘Tess’.

Anyone who buys a copy of “Tess” in hopes of finding more of the same will be disappointed but those who stick with it will discover one of the finest books ever written.

“Fifty Shades” revolves around sadomasochism, a pastime which involves taking pleasure from acts of inflicting or receiving pain or humiliation, usually as a means of experiencing sexual gratification.

The subject is one which can be very stimulating for lawyers, particularly the more academic ones, from a strictly professional point of view of course, raising as it does the all important legal question of consent.

Generally what goes on behind closed doors between consenting adults is their own business, and unless certain boundaries are crossed the law is happy enough to let them get on with it. The question of consent arises in a couple of ways.

In the UK the Courts have found, in a case involving sadomasochism, that even if consent is given, it is not a defence where the activity leads to grievous bodily harm. Then there is the question of what constitutes true consent. Our law in general interprets consent as “informed” consent, meaning that you must understand what it is you are agreeing to before it can be truly regarded as consent and you must always have the right, at any time, to withdraw that consent.

Even in more mainstream relationships the issue of consent is not always as straightforward as might be supposed. The introduction of any element of violence or intimidation can transform what was an occasion of intimacy into an assault, or even rape. It cannot be assumed that an otherwise willing partner is also consenting to the unexpected.

It is a truth universally accepted that one pervasive aspect of human relationships, especially between men and women, is failure to communicate effectively, and misunderstandings between the sexes are commonplace. Men occasionally like to believe that when a woman says “No” she really means “Yes”, and likewise, some women conclude that when a man says “No”, he just got the answer wrong because he doesn’t really understand the question.

There are many shades of grey on what is meant by “consent”. Some years ago, in Israel, a Palestinian Muslim was convicted of rape. The evidence was that he deceived the woman into consensual sex within ten minutes of their first meeting by letting her believe that he was Jewish and unmarried. Her consent was based on that belief, and since her belief was false she had never truly consented.

Moving into the area of sadomasochism the matter grows more complex. Presumably in the heat of the moment in sadomasochistic activity there is abundant scope for misunderstandings, since by it’s very nature there are obvious difficulties in establishing when the boundaries of consent have been breached. By definition one participant is submitting to painful and humiliating punishments inflicted by the other, and if, for the sake of argument, after a particularly hearty lash they start yelping for mercy, is that just part of the fun, or are they really at that point withdrawing their consent?

In ordinary circumstances asking somebody to stop beating you sends out a clear enough message, but here you have a masochist who is supposed to enjoy that sort of thing. On top of that you’re begging for mercy from a sadist. How realistic is that? And people think law is dull!


About richardkennedysolicitors

Solicitor Company based in Birr, County Offaly, Ireland.
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