Jacqueline Horn


Can sadomasochism (S/M) be reconciled with feminism? When pain is pleasure and humiliation is empowerment, how should the law respond? This article investigates S/M under the legal gaze, particularly the manner in which legal theory and legal practice have constructed female masochism. This article argues that the jurisprudence of S/M is formed by the perception of the “sexual other” as a threat to the normative sexual behavior the law has worked tirelessly to maintain. Historically, society – and by extension the law – has been intolerant of behavior that transgresses sexual norms. As Laura A. Rosenbury and Jennifer E. Rothman point out, the law “has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy.” 2 Thus, the legal response has been to categorize masochists as “victims” and sadists as “criminals.” This approach is misguided because it fails to account for the possibility of a pleasurable, healthy sexual experience through S/M.

The law has a role to protect women from violence. However, consensual and mutually pleasurable sexual practices should not be subject to arbitrary and oppressive value judgments. By denying the opportunity of empowerment through S/M, what does the law “say” about acceptable female sexuality? This article suggests that the current legal regulation of S/M perpetuates an idealized female sexuality, which does little to improve the female condition. The law cannot, and should not, determine what sex is acceptable. Ultimately, the law should endeavor to promote healthy, consensual, pleasurable sexual practices, or at the very least should not inhibit them. As it currently stands, the jurisprudence of S/M amounts to nothing more than oppressive and patriarchal gender regulation.

In Part I, this article analyzes common definitions of S/M, comparing practitioners’ definitions with psychological ones. Readers must consider the definition that the law has accepted, and the reason that this definition may be detrimental for women. In Part II, the article discusses societal acceptance of S/M through an analysis of prominent sexual theorists and pop culture, wherein the article will reveal that society has been unwilling to welcome S/M as a viable sexual practice. This article argues that because S/M threatens the puritanical sexual hierarchy that directly oppresses women, society has worked to tame it. When S/M has been accepted, it has been in limited circumstances: heterosexual, monogamous, marital, and male-dominant/female- submissive. This restricted acceptance of S/M supports and furthers an unrealistic and normative female sexuality.

In Part III, this article investigates female sexual submission through the lens of important feminist legal theorists: Catherine MacKinnon, Katherine Franke, and Robin West. Here, the article intends to reach a meaningful conclusion as to the proper role of feminist legal theory concerning S/M. What values should feminist legal theorists promote? This article argues that while female masochism may have undesirable roots and influences, it must be embraced. Feminist legal theory must work to provide grounds for a woman to be simultaneously sexual and empowered. In Part IV, this article analyzes and critique Cheryl Hanna’s assertion that “sex is not a sport.” Hanna maintains that the law should not permit consent as a defense in criminal cases where S/M is concerned. However, this author disagrees, and will provide an alternative approach in Part V. This article intends to provide a solution that protects women from violence, while promoting alternative sexual behaviors that are healthy and pleasurable.