When "No" Means "Yes" and "Yes" Means Harm: HIV Risk, Consent and Sadomasochism Case Law

Abstract

This Article examines how criminal law treats sadomasochism (s/m) and sexuality with particular reference to the legal construction of consent to violence and HIV risk. It will outline how Other sexual bodies have been criminalised through offences against the person and how the notion of consent has been given different meanings within various cases of s/m. Heterosexual men have ofen been exculpated from violence committed against women during sex. Furthermore, penetrative vaginal intercourse has been legally validated over Other sexualities in several ways. Generally heterosexual males have been afforded protection from criminal punishment because they were engaging in what the common law, rather narrowly, defines as penetrative vaginal heterosex. Yet, same-sex desiring men have been subjected to rather extreme punishment because their sadomasochism desires were placed outside of these definitional boundanes of sex, blending male same-sex sadomasochism with assault. In addition, HIV risks have been used to compound the notion of sexual harm between same-sex desiring bodies, even though the risks of HIV infection were minimal.