Fifty Shades of Defending Christian Grey - Is Consent a Legal Defense to Consensual S&M?

Full Disclaimer:  I have not read any of the books in the “Fifty Shades” trilogy, nor have I seen the movie.  Not because I am a prude, but because (1) I’ve heard the books are very poorly written and (2) the plot summary I read on Wikipedia seems unbearably tedious.  (Of course, I suppose I could be wrong on both counts and am missing out on the masterful literary work of a modern-day Jane Austen, but I’ll take my chances…)

Nevertheless, because the much-anticipated “Fifty Shades of Grey” movie has arrived, I thought it made sense to address the issue of whether it is legal to physically strike someone else in the name of sexual pleasure, even if both parties consent to (and even enjoy) the activity.

As a practical matter, this is a bit of an academic exercise, because people who engage in consensual sadomasochistic activity usually do so in private and, therefore, no one else ever knows about it.  In other words, no one knows what goes on behind closed doors, and this is a good thing.  After all, what interest does the government legitimately have in regulating sexual activity between adults who genuinely consent to the activity?

On the other hand, those who play the dominant role in such activity should know the Massachusetts Supreme Judicial Court clearly has stated that, if a dominant person ends up being prosecuted for assault associated with sadomasochistic activity, then the submissive partner’s consent is not a valid defense.  The Court reached this conclusion in a 1980 case captioned Commonwealth v. Appleby, which involved allegations that the dominant partner assaulted the submissive partner with a riding crop for serving him melted ice cream, thereby causing the submissive partner to flee the house in his underwear and run to a nearby monastery. At his criminal trial, the defendant (who was also the dominant partner) argued that he could not be convicted of assault, because he and the submissive partner lived together and were involved in a long-term, consensual sadomasochistic relationship, and that the ice cream whipping was administered within the context of this consensual relationship. 

The defendant was convicted, and the Supreme Judicial Court rejected the defendant’s consent argument on public policy grounds by stating “one may not consent to become a victim of an assault.”  The Court further explained that “[a]ny right to sexual privacy that citizens enjoy … would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations. … The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another, as Appleby testified) does not prevent the State from protecting its citizens against physical harm.”

The Appleby decision remains controlling law in Massachusetts, despite the fact sexual tolerance has increased dramatically since the case was decided in 1980.  Many defense attorneys (as well as various libertarians, libertines, and other interested parties) thought the Appleby decision was ripe to be challenged in July 2000, when Attleboro police raided a private sadomasochistic party and arrested a woman who allegedly was seen spanking another woman with a wooden spoon.  (As an aside, many folks who were aware of the situation began referring to Attleboro as “Paddleboro”, a nickname that still brings a smile to my lips whenever I remember it.)

The alleged spanker (who, by the way, was a high-level marketing executive from Manhattan) was charged with assault, and many thought the issue of her alleged spanking partner’s consent might cause the courts to reconsider Appleby in light of more tolerant sexual attitudes.   As it turns out, the case was dismissed, but not because of the alleged spankee’s consent – rather, the trial judge suppressed all evidence after ruling the police improperly raided the private party in the first place, so the alleged spanker never had to rely upon a defense based on consent.

In closing, sadomasochistic activity – even when conducted in private between consenting adults – is considered criminal assault under Massachusetts law.  Many citizens may protest that this criminalization of private, consensual behavior is an overreach of governmental authority, and that argument certainly does have some merit.  On the other hand, the current law does protect those persons whose “consent” is obtained through emotional and/or psychological manipulation, and therefore serves the legitimate governmental function of protecting people who are vulnerable to such manipulation.