Consensual Violence: Sex, Sports, and the Politics of Injury
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Consensual Violence: Sex, Sports, and the Politics of Injury
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Overview
Using interviews and ethnographic observation, Weinberg argues that where law authorizes a person’s consent to an activity, as in MMA, consent is not meaningfully constructed or regulated by the participants themselves. In contrast, where law prohibits a person’s consent to an activity, as in BDSM, participants actively construct and regulate consent.
A synthesis of criminal law and ethnography, Consensual Violence is a fascinating account of how consent is framed among participants engaged in violent acts and lays the groundwork for a sociological understanding of the process of decriminalization.
Product Details
| ISBN-13: | 9780520964723 |
|---|---|
| Publisher: | University of California Press |
| Publication date: | 05/31/2016 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 160 |
| File size: | 1 MB |
About the Author
Read an Excerpt
Consensual Violence
Sex, Sports, and the Politics of Injury
By Jill D. Weinberg
UNIVERSITY OF CALIFORNIA PRESS
Copyright © 2016 The Regents of the University of CaliforniaAll rights reserved.
ISBN: 978-0-520-96472-3
CHAPTER 1
Consensual Violence and the Politics of Injury
I began this book with a chokehold. There was no meaning and significance but instead a physical and physiological description of what happens when a person is being choked. For most readers, however, the initial impression is likely objectionable, presuming the chokehold causes pain and injury and is therefore unwanted.
Yet adding more details imbues more meaning, which I argue becomes colored by our social expectations about the infliction of actual or potential injury upon another. At first blush, the scenarios that open this book seem remarkably different. One choke occurs in a cage; the other transpires in a pansexual dungeon. Mixed martial arts (MMA) fighters impliedly accept choking and the rules of fight the moment they step into the cage and the bout begins. Practitioners of sexual sadism and masochism (BDSM) explicitly agree to the choke before it occurs. MMA fight rules are pre-established, while the sadist and the masochist actively negotiate and construct rules unique to them and their particular encounter.
Indeed, the same choke differs in many ways, but a closer examination reveals that consent to be the common thread. MMA fighters consent not only to the act of being choked, but also the risk of injury that comes from it as well as any other form of physical contact. BDSM practitioners consent to be choked, the nature of that choke, and the extent to which the chokehold will leave a mark or render the masochist unconscious. Even where venue, rules, norms, and relationships differ, these contextual differences highlight that consent has many manifestations.
These varying forms of consent are treated differently, however. Not all consent receives the same legal recognition. For example, a fighter can legally give unqualified consent to be choked during an athletic contest, but in a majority of states a person cannot legally consent to a chokehold during a sexual sadomasochistic encounter if it rises to the level of serious bodily injury. In both cases the participating parties agree upon choking for a specific purpose, yet one is stigmatized and potentially subject to criminal regulation, while the other is more culturally acceptable and almost never punished.
These examples illustrate the critical thesis of this book: not all consent is created equal and not all consent is viewed as equal. Even in circumstances where a particular person or group establishes the meaning of and the rules governing consent, multiple (competing) definitions from various external institutions with different kinds of authority arise. Law perhaps plays the most critical role in regulating consent because it is chiefly responsible for proscribing and permitting participation in activities where bodily injury is a likely result. State criminal cases and legislative histories reveal that the permissibility of consenting to violent acts centers on the activity's social value and whether legally permitting the consensual infliction or receipt of pain undermines the legitimacy of law (State v. Brown 1976). In so doing, the state, as manifested through law, has traditionally used a sexual sadomasochism-sports dichotomy to make the point that these interactions are clearly different and that an adult of sound mind and judgment would consent to contact sports but not sexually transgressive practices (e.g., Commonwealth v. Appleby1980, People v. Samuels 1967, State v. Collier 1985; see also Hanna 2001).
Why does the state starkly distinguish between those activities where a person can and cannot legally consent? State regulation of consent has twin aims: to protect its citizens from harm and to protect them from breaches of the peace. This suggests that social order must be devoid of physical pain except in narrow, highly regulated circumstances. The characterization of violence versus physical aggression reflects broader cultural values about what is acceptable or objectionable behavior. In the present cases, serious bodily injury is endemic to sport, an activity the public celebrates, whereas Americans view violence during sex, even when consensual, as atypical and often stigmatized.
This project's primary inquiry centers on how individuals and groups enact rules and norms in light of and in response to the state's validation or vitiation of consent. Approaching the constitution of consent — rather its disintegration — provides a more nuanced understanding of human relations, their relationship to the state, and the project of consent itself. Individuals and groups devise their own meanings of consent and its role in their activities, but they also take into account state formulations on what forms of consent are permissible. The making of consent is not unfettered, but not vested with one source; it is a dialectic between ordinary people and the law, the social reality that orders relationships within a prescribed legal category.
The study of consent from this perspective reveals an interesting process, which I will call "social decriminalization." Social decriminalization is a process in which groups go about making their activity tolerable to a broader public, paving the way for increased acceptability and legal reform. We often think decriminalization happens by repealing a law, but this book challenges this view, showing that social decriminalization must precede legal change. Social decriminalization requires four conditions: (1) an organized group who participates in a similar activity, (2) a shared legal consciousness, (3) an established set of rules and norms that appeal to a Weberian legal-rational authority, and (4) a social context where the activity is not too morally verboten. This book highlights how participants of BDSM and MMA have had to engage in a form of social decriminalization, leveraging the legal authority imbued in the language of consent as a way to render their activities legally and socially tolerable.
The notable difference between BDSM and MMA is the extent to which legal status constructs the meaning and deployment of consent within these communities. When the state does not authorize an activity, participants actively construct and regulate consent. Even though consent is a cultural product of individuals, without any state regulation save the most necessary constraints, BDSM practitioners consciously invoke legal language to insulate their activities from liability and convey an image of legitimacy to a broader public. By contrast, when the state authorizes an activity like MMA, those engaged in the activity do not construct and regulate consent. Consent becomes an expression of authority where people unknowingly consent to predetermined terms and conditions as a matter of efficiency and formality. Shedding light on this paradox reveals that consent not only operates as a vehicle to remedy an imbalance in the distribution of power, but also can be the manifestation of unequal power.
A SOCIO-LEGAL UNDERSTANDING OF CONSENT
Consent is to "voluntarily agree to or acquiesce in what another proposes or desires" (Oxford English Dictionary 2013). While there is a general consensus about what consent means, many people rarely consider its sociological import. Consent has a boundary-making function that demarcates desired or undesired conduct and, by extension, permissible and impermissible behavior. It bears a "transformative" power to change how individuals interpret the people and the context surrounding an event (Hurd 1996:,136). Consent not only marks the difference between borrowing and stealing or between rape and a welcomed sexual encounter, but it also renders a person deviant if he or she consents to a stigmatized activity (Goffman 1963).
The critical normative, procedural, and cultural roles in social relations play an essential role in the law as well. Specifically, consent's role in American law provides reassurance that individuals enter into predictable, mutually agreed upon transactions. Voluntary consent from all parties is required at the time of contract formation in order to be legally enforceable (see, e.g., Bix 2010). In tort law, assumption of risk is a form of implicit consent that bars or reduces a person's ability to recover damages if it is shown that the victim voluntarily and knowingly assumed the risk inherent to the dangerous activity in which he was participating at the time of his injury (Prosser 1955, 303).
I have chosen the study of consent through the prism of criminal law because of the unique way it treats and regulates willing individuals who choose to give or receive pain and bodily injury. Assault and battery claims recognize consent as an available defense for some but not all acts involving physical pain and injury. Certain other offenses recognize consent in some contexts but not in others. In contrast to tort orcontract law, where consent violations result in monetary damages, criminal law involves possible jail time for acts that result in bodily injury, even if the act is consensual.
Lawfully Consenting to Injury
Generally speaking, U.S. criminal law, which is chiefly responsible for determining the formulations of consent permitted, takes a cue from English common law and does not recognize victim consent. Under the Model Penal Code, Section 2.11 (MPC), a person cannot consent to bodily injury because it is against public policy for an individual to consent to be a victim of an offense that affects larger society. At the same time, however, consent may exculpate a nominally proscribed act under three limited circumstances: (1) when the injury is not serious, (2) when the injury or its risk are "reasonably foreseeable hazards" of participation in a "lawful athletic contest or competitive sport or other concerted activity not forbidden by law," and (3) when the bodily harm was inflicted for the purpose of a "recognized form of treatment" intended to improve the patient's physical or mental health (American Law Institute 1985, §2.11(2)(a)-(c); see also Bergelson 2008). The first and third exceptions make sense as a matter of efficiency and public policy: a person who receives a minor injury or who is injured during medical procedure has other remedies available if the contact is nonconsensual, including a monetary remedy under tort law. My analysis lies in the treatment of the second exception, which highlights the cultural tolerance of extreme injury during sport, but not for the potential injuries inflicted during BDSM scenes.
This limited rule reflects the law in most jurisdictions and receives considerable criticism because this approach recognizes a person's consent in some, but not all, circumstances, even if there is bodily injury. Civil laws and regulations permit individuals to consent to body modification, which can range from piercing to scarification, a process in which a person brands or etches words or designs into the skin. A medical doctor can perform a double mastectomy or sex reassignment surgery without fear of liability, provided the patient undergoes a thorough examination and consents to the procedure. Individuals enjoy immunity for inflicting injury on another, for example religious flagellation of a churchgoer or a school administrator who receives parental permission to spank a child during the school day (Bergelson 2009; Take Part 2013).
Whether consent is legally recognized typically turns on the "general demands of public policy," which are influenced in large part by societal norms. Put simply, the law is not concerned with a person's freely given consent, but with the social and moral value of the activity to which she is consenting. For example, in the case State v. Brown (1976), Reginald Brown claimed he and his wife made an agreement that if she became intoxicated, he had permission to beat her physically. Brown's wife was an alcoholic and the agreement sought to deter his wife from drinking. Brown was arrested for beating her and used consent as a defense, pointing to the agreement they had made. Notwithstanding this arrangement, the court did not recognize Mrs. Brown's consent. This determination was not because of the inadequacy of her provided consent. In fact, her arrangement to maintain sobriety arguably had some public good. Instead, the court held that consensual battery cannot be allowed as a matter of public policy: "to allow an otherwise criminal act to go unpunished because of the victim's consent would not only threaten the security of our society but also might tend to detract from the force of the moral principles underlying the criminal law" (27).
The United States has a history of legally preventing consent via criminal law. The criminalization of consensual conduct has included laws against sodomy, fornication, bigamy, interracial marriage, and prostitution, but courts consistently assign social value to participation in contact sports. The scenarios presented at the beginning of this book not only demonstrate how courts approach questions of consenting to injury, but also how courts have frequently drawn an explicit distinction between BDSM and sports. The Iowa case State v. Collier (1985) involved a man and a woman who engaged in sexual intercourse and sadomasochist activities, including the man whipping the woman with a belt and punching her in the face and legs. While consent was at issue, the trial judge refused to let the jury consider the question of consent as well as the defendant's argument that sadomasochism is a "social or other activity," an exception based largely on the Model Penal Code. The appellate court affirmed the conviction and concluded "the legislature did not intend sadomasochistic activity to be a 'sport, social or other activity' [under the law]. ... Were we to follow the defendant's broad interpretation of 'social activity,' street fighting, barroom brawls and child molestation could be deemed acceptable social behavior, since such conduct is considered acceptable by some segment of society" (307). This passage shows that by comparing it to child molestation and public fighting, courts have categorically discounted consent in the context of BDSM. The comparison also suggests that consent to physical injury is acceptable in certain socially appropriate contexts, such as sports, but not in other contexts, such as intimate relations.
A second example reveals that courts set up a comparison between BDSM and sports to routinely vitiate a person's consent on the basis of incapacity. In People v. Samuels (1967), the defendant filmed and starred in a pornographic movie where he unclothed, gagged, whipped, and lashed another man with a riding crop. During trial, the defendant testified that the man fully consented to starring in and participating in the activities featured on the film. Although the prosecution never located the other man to testify, the court dismissed the possibility that the victim had the capacity to consent to this behavior: "It is a matter of common knowledge that a normal person in full possession of his or her mental faculties does not freely and seriously consent to the use upon his or herself of force likely to produce great bodily harm. Those persons that do freely consent to such force and bodily injury no doubt require the enforcement of the very [criminal] laws that were enacted to protect them and other humans" (513–14). Ultimately, the court concluded that "consent of the victim is not generally a defense to assault or battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing or wrestling" (513). The court consistently reinforces the dichotomy between prohibited and legally consented by imputing an issue of capacity in the BDSM case, assuming no "normal person" would consent to that activity. In so doing, formal law articulates what acts have cultural value, and what acts present a moral or cultural conflict. While the courts do not explicitly mention that sports may not have value to everyone (although it is somewhat presumed), courts adamantly proclaim that BDSM has a negative impact on society as a whole.
CONSENTING TO INJURY: FIELD SITES
I investigated two settings where consenting to injury is central to the activity, but where each is viewed and treated differently under criminal battery law: state-sanctioned mixed martial arts (MMA), and legally questionable sexual sadomasochism. To outsiders, these activities may appear violent, ruthless, and without rules. However, people at the margins of law, or "in the shadow of the law" as it is commonly put by socio-legal scholars (Macaulay 1963; Mnookin and Kornhauser 1979), are important for this study because this is primarily where people construct consent and develop rules and norms to structure and define their internal relationships (Mnookin and Kornhauser 1979, 51; see also Ellickson 1991). In Chapter 2, I detail the social histories of these groups and how both came to develop their own rules and norms, rituals, language, and iconography that are constituted by the formal legal meaning, and did so strategically.
(Continues...)
Excerpted from Consensual Violence by Jill D. Weinberg. Copyright © 2016 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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Table of Contents
Contents
Acknowledgments,Preamble: A Chokehold,
1. Consensual Violence and the Politics of Injury,
2. From Acts to Legitimacy: The Path of Social Decriminalization,
3. Devising Rules and Norms, Creating a Culture of Consent,
4. Enforcing and Rationalizing Rule Violations,
5. Transforming Consensual Violence through a Legal Register,
6. The Social Embeddedness of Consent,
7. Conclusion: Consensual Violence Reimagined,
Notes,
References,
Index,