I am pleased to host this guest post by Jamie Fletcher and Dr Samuel Walker, who are Lecturers in Law at Bournemouth University.
The aim of this post is to discuss the increasing prevalence of consensual sexual violence and its relationship with criminal law. It will be shown that acceptance, engagement and growing tolerance of consensual sexual violence is at its highest because BDSM has seeped into popular culture and modified people’s acceptance and use of its practices.[i] This blog will deploy the political science concept of the Overton Window[ii] to explain how this process has occurred. The Overton Window describes how a once socially unacceptable behaviour can over a period of advocacy be moved into plausibility.
The problem that this blog would like to impress upon readers is that whilst the Overton Window has moved, and sexual violence might be conceived as an acceptable part of popular culture, the law and has not followed suit. Rather, the law is governed by a precedent from the early 1990s criminal case R v Brown.[iii] Unlike the new position of the Overton Window, Brown is kink negative[iv] and its ruling means that a large proportion of sexual violence is in fact criminal behaviour. Note this blog post is not making a normative case for or against Brown, rather it aims to highlight to participants in BDSM sexual activity that whilst their behaviour might now be considered socially acceptable, due to the shift in the Overton Window, the law may not agree. Equally, it will show those who support the ruling in Brown that their efforts need to go beyond reforming the law to change public opinion.
Recent public debate has suggested that putting Brown on a statutory footing is needed to address the use of consenting to BDSM activities as a defence in murder cases.[v] This would affirm and entrench the criminalisation of BDSM in legislation exacerbating the divide between the law and public attitudes toward BDSM.[vi] Any reforms to Brown, therefore, need to be debated and resolved in the immediate future. Once statutory entrenchment of Brown occurs English law could be trapped with its consequences for another generation.
It is also important to educate new individuals participating in consensual sex of issues surrounding BDSM and sexual violence and the law. Without this education, there is a risk that either (a) the sex or (b) the violence or (c) both aspects of the sexual activity will lack consent. Consequentially, it is hoped that this blog will also serve as an introduction to some of the legal limits that new practitioners of BDSM and sexual violence must pay attention to.
To support its objectives, this blog will be split into six sections. This section has served to introduce the issues. Section two considers the type of sexual activity this blog is limited to. It is vital to understand that we are only concerned with incidents in which both the sexual activity and BDSM are consented to. Moreover, it is important to understand that this blog is focused on individuals who might be perceived as being outside the traditional BDSM community and have had their sexual palate opened by the increased presence of BDSM and sexual violence in mainstream sexual culture. In section three, the Overton Window will be explained. Building on this, section four will demonstrate how this applies to changing public perception of BDSM and sexual violence. Contrasting this new public perception, section five will explain how the law remains the same as it did in the 1990s. Finally, in section six, potential future issues this may cause will be considered. This paper will not offer many solutions to these issues – that is beyond the scope of this blog. Our aim is to promote discussion of these issues. Additionally, we invite any comments, suggestions, or potential for future collaboration or projects on these issues.
- Understanding the type of case this blog is considering
Most blog entries this week have addressed issues juries should consider when hearing cases in which consent has been withheld.[vii] These types of cases can loosely be split into two categories. Firstly, cases in which one person performs a sexual act on another person without the consent of that person. In these cases, an act is deemed criminal since an individual has disregarded the autonomy of another human’s body through an unwanted sexual intrusion.[viii] Quite often with these non-consensual sex acts, violence is used as a means of securing an intrusion. Secondly, there are cases in which two or more people might be engaged in consensual sexual activity, but during, one party, without agreement of all parties, engages in unwanted violence, which then renders the sexual activity non-consensual.[ix] In some circumstances, the use of violence might result in the assaulted party also withdrawing sexual consent.
There exists, however, a third type of case in which the issues of consent, violence and sex mix. These cases are not considered under sexual offences law as consent is always present. In fact, the violence is not only consented to, it actually heightens the enjoyment and pleasure of both parties involved in the sexual activity. Most commonly, this issue arises in sexual activity commonly referred to as bondage, BDSM, or S&M. In these cases, the sexual violence is normally (a) consensual and (b) used to improve the sexual excitement that both parties experience from the sexual behaviour.
At first glance, an individual might question why this might ever be a criminal law issue.[x] People might look at the situation and ask, what business does the law have in what occurs between two consenting adults in the privacy of the bedroom.[xi] Nevertheless, the law does not permit one to consent to certain actions regardless of whether one actually has the mental capacity to do so.[xii] With this in mind, the law chooses where it wishes to set the bar for the level a consenting adult can receive. Exceeding that level of harm will be deemed criminal.
One of the most significant elements of this issue concerns the wider social context in which the law operates – in particular the place of women within a gendered patriarchal society. One of the concerns of those advocating for legislation prohibiting BDSM as a defence in murder cases is the historic denigration of female victims in court. For example, the use of sexual history to draw in notions of loose women, the ‘she asked for it’ narrative and the idea that once women consent to sex they consent to whatever happens during sex. The social attitudes affect how public bodies operate, how women are viewed in court and how they can be portrayed by defence lawyers. In cases where the woman is deceased this can be even more problematic as they cannot speak for themselves. It is this wider context of misogyny that use of BDSM as a defence may be problematic. On the other hand, it would be a denial of individual autonomy to say that individuals cannot or do not consent to BDSM activity. The issue is how to protect those who consent and those who do not – and in the worse case scenario, how to punish those who murder their partners and use sexual autonomy as a defence.
Another issue, which this blog is going to explore is how the popularity of this form of sexual activity has increased, with more and more people incorporating aspects of sexual violence into their sexual activity. Within the traditional kink community and its activists, the topic of consent is widely discussed, educated upon, and respected.[xiii] However, the influx of new participants to sexual violence, through the growth of mainstream tolerance of its practices, means there exists a portion of people who are practicing BDSM and/or sexual violence who have been educated primarily through the popular culture they have consumed.[xiv] And primarily, this comes in the form of American media. In the next three sections, this will be explored in more detail.
- What is the Overton Window?
The Overton Window, named after political scientist Joseph P. Overton, explains that whether a policy or law is accepted by the public as adoptable is dependent on public discourse and is not fixed.[xv] When the public is exposed to a new potential policy, law, or certain social behaviours, however extreme they might once seem, through habituation in discussion potential adoption will eventually become viewed as acceptable. This is because such discourse naturally widens debate to include all potential policy outcomes that lay between the current mainstream position and the most extreme version of what is being debated.[xvi] The consequence of this is that a policy, law or social behaviour once seemed ‘radical’ or ‘unthinkable’ becomes thinkable, and eventually, acceptable or popular. It has been argued that politicians use the Overton Window as a tactic to achieve their preferred political outcome.
The window moves when those on the fringes of the political spectrum, policy groups, pressure groups and radicals propose policies far outside the Overton Window. As Maza notes:
“the easiest way to move that window was to force people to consider ideas at the extremes, as far away from the window as possible. Because forcing people to consider an unthinkable idea, even if they rejected it, would make all less extreme ideas seem acceptable by comparison — it would move the “window” slowly in that direction.”[xvii]
To visualise this window, Overton proposed that all policy outcomes can be placed on a scale from “more freedom” to “less freedom”. Overton picked these terms to avoid traditional political tags such as “conservative” and “liberal” or “socialist”. Somewhere on this scale rests the ‘Overton Window’, a space occupied by the range of policies and laws that the general public would accept as popular or sensible. Outside the window, however, are “radical” and “unthinkable” policies.
A perfect example of how this works was the 2010-2015 coalition government austerity programme. The government would always announce that ‘unthinkable’ or ‘radical’ cuts to public services were necessary to balance the budget. Shortly after the announcement of these ‘unthinkable’ cuts to public expenditure, the government would swiftly announce that the required level of cuts had been overestimated. These cuts were still damaging and resulted in large scale reform to public expenditure, however, when placed against the previously mooted cuts seemed ‘sensible’.[xviii] Nonetheless, had the figures been released without the original red herring figure, these cuts would have themselves been perceived as ‘radical’or ‘unthinkable’. The red herring cuts, however, moved public discourse and the Overton Window. Another example, the rise of Jeremy Corbyn has moved British politics to the left so that the Conservative party can adopt domestic policies that would, not so long ago, have been the province of the Labour party.[xix]
Applying the Overton Window to the problem of BDSM, it is contended that as the more radical activities that might have been deemed as ‘unthinkable’ or ‘radical’ forms of sexual violence are introduced into public discourse, other less extreme forms of sexual violence become seen as ‘acceptable’ or ‘sensible’ because they are less extreme than the ‘unthinkable’ BDSM relationship. This leads to the normalisation of certain previously condemned activities. Once these less extreme forms of sexual violence embed themselves into our culture, the original extreme BDSM relationship is no longer viewed as ‘radical’ or ‘unthinkable’ and becomes acceptable as a logical conclusion of the now ‘popular’ and ‘policy’ of accepted sexual behaviour. Thus, while BDSM and bondage has been prominent as a gay sub-culture for a longer period of time, and an underground niche within heterosexual culture, it has now entered the heterosexual mainstream.[xx] It is through this process that BDSM has over the past decade become central to our sexual culture and led to inclusion of sexual violence as a normal part of mainstream sexual intercourse.[xxi]
It is extremely important to again emphasis that this blog post is not arguing for or against the inclusion of either BDSM and/or isolated sexual violence in mainstream sexual culture. Rather, this blog post is arguing that BDSM and sexual violence are more central to mainstream sexual culture than they once were, and that, the law does not reflect the fact that BDSM and sexual violence are now current within mainstream sexual culture. In addition to this, the criminal law surrounding this issue is not widely known by these new participants. Participants need to be better informed on how to ensure they are properly gaining consent and what limits the law imposes upon their activities.
- How does the Overton Window apply to BDSM and sexual violence?
Published in 2011, Fifty Shades of Grey,[xxii] an erotic romance novel, which spawned a series of sequel books, and a highly successful movie franchise, has led to changes in the public perception of BDSM relationships. According to a YouGov poll, 94% of British people have heard of the books.[xxiii] In fact, Fifty Shades of Grey dominates the bestselling books list of the 2010s. The first instalment of the trilogy has to date sold over 15.2 million copies worldwide. The book in fourth, the first non-Fifty Shades of Grey book, The Hunger Games[xxiv], sold only 8.7 million books, nearly half the quantity of Fifty Shades of Grey. Drdova and Saxonberg have noted that this has undoubtedly “had a significant influence on the mainstream view of BDSM subculture.” [xxv]
Drdova and Saxonberg highlight how the book has led, at least in part, to BDSM moving from an activity that “has been historically labelled as being deviant” to one that is “on the border of mainstream society”.[xxvi] And they are right to suggest that this transformation goes beyond Fifty Shades of Grey and into many aspects of our culture stating, “the commodified picture of BDSM is omnipresent in today’s western mainstream culture.”[xxvii] One example is the way in which BDSM style sexual relationships are imposed upon male-female sexual relationships in an array of period dramas and fantasy. Most significantly in Game of Thrones, a television adaptation of the books, A Song of Ice and Fire.[xxviii]Whilst these books included sexuality and a mostly traditional patriarchy, it is through the use of BDSM and sexual violence that the television adaptation drives home visually the gender hierarchy. Most evidently we see this in the BDSM style sex games sadistic King Joffrey plays with the prostitutes bought for him as a birthday present.
Proof of BDSM still remaining only “on the border of mainstream culture” is the fact that a YouGov Poll conducted in 2015 shows that only 12% of respondents had in fact participated in BDSM.[xxix] Nonetheless, whilst only this small had participated in BDSM, 71% people did not believe that people should be discouraged from BDSM. If people consented to the BDSM, these people believed it was the choice of the participating individuals to decide whether they should be allowed to participate. The movement of the Overton Window can also be seen when breaking down the responses to this YouGov Poll by age. On all three questions the younger the respondent the more likely they are to view BDSM as acceptable. Conversely, the older the respondent the more likely they are to view BDSM as unthinkable or radical.
The shift of the Overton Window on BDSM and sexual violence, however, is most evident not from how society now views the previously ‘unthinkable’ or ‘radical’ forms of sexual violence such as BDSM, but rather, its increased acceptance of the incorporation of specific acts of sexual violence and how these acts which would have previously been on the borderline of our sexual culture are now considered popular and sensible parts of sexual activity. Evidence of this shift comes in a Savanta:ComRes poll conducted of 18-39 year old women.[xxx] The poll investigated the frequency with which women experienced sexual violence. In line with the YouGov poll in the previous paragraph, the ComRes poll displayed a clear correlation between age and sexual violence.
The younger the respondent, the more likely they were to have encountered sexual violence. The correlation is present in responses to the following sexual acts; slapping, choking, gagging, spitting, hair-pulling, and biting. Most clear is the changing social attitude to choking, which is arguably the most dangerous in this list. Of those polled aged between 35 and 39, only 23% of women have experienced choking during sexual activity. This increases in the younger age ranges; 32% for 30-34, 41% for 25-29 and 54% for 18-24. Interest in choking as an act of sexual gratification peaked in early 2017, when Daddy Choke Me achieved a 100 score on the google trends search facility, and in fact, has remained above the 25 score since April 2016, having previously peaked at a 7 score in September 2007.[xxxi] A similar story can be seen when searching google trends for Choke Me memes. A meme is normally an image shared on social media to convey a particular message. Included below are several choking memes.
All of these memes normalise choking amongst 18-24 years old and more alarmingly, those who are younger. Similar memes can be located on the internet for other acts of sexual violence, for example, spanking. The fifth meme, in which choking is included on a list of positive relationship attributes is interesting for the way in which it might be perceived to subliminally cause people to consume the notion of choking being a positive sexual act. In fact, it is a fair prediction based on the ComRes data to suggest that the figure of those who have experienced sexual violence like choking will continue to rise.
- The current law R v Brown
The law regulating when an individual can consent to harm is outlined in R v Brown[xxxii] and does not reflect the rising tolerant attitudes demonstrated in Section 3. Brown concerned five homosexual men who took part in voluntarily agreed BDSM. It is important to note that the levels of harm caused as a result of these activities ranged from the most minor, battery, to the most severe level of harm, grievous bodily harm. Battery is legally defined as any non-consensual application of harm that does not amount to a level of harm deemed more than transient or trifling. The Crown Prosecution Services, in their charging guidelines state, battery would normally be the charge when injuries consist of scratches, abrasions, minor bruising. Injuries that will be considered more than transient and trifling, and thus amount to actual bodily harm include broken noses, minor fractures while grievous bodily harm covers permanent disability and a fractured skull among other things.
In Brown the House of Lords (now the Supreme Court of the United Kingdom) held that an individual could only consent to battery. In normal circumstances, individuals cannot consent to any harm greater than this. It did, however, establish that if there was a ‘good reason’ for allowing them to, the court could find exceptions to this rule.
In Brown the court declared that BDSM did not constitute a ‘good reason’ and thus was not an exception to the general rule. In his judgment, Lord Templemen explained the reasoning behind this:
“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”[xxxiii]
In the eyes of the law, therefore, BDSM is a cult of violence. A cult of violence in which legal protection will not be offered to those who willingly engage in violent conduct that amounts to either actual or grievous bodily harm, regardless of the presence of consent. BDSM can be distinguished from a long list of exceptions that the court has found to constitute a good reason; properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, and dangerous exhibitions. On this reading, tying someone up and spanking them would be something someone can consent to provided the level of harm caused fits within the definition of a battery. Choking is more ambiguous. Light choking may fall within the concept of battery but severe choking may be classed as actual or grievous bodily harm.
In R v Wilson[xxxiv] the Court of Appeal applied the ‘good reason’ test to a newly married couple. Mr Wilson had used a knife to brand his initials into his wife’s buttocks and the question was whether a ‘good reason’ per the Brown judgment existed for allowing this behaviour. Russell L.J. decided that a good reason did exist because unlike Brown there was “no aggressive intent… far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment.”[xxxv] The different language used to characterise this conduct can be seen in the following:
[T]he appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.[xxxvi]
The Court of Appeal in Wilson allowed the appeal and quashed his conviction even though this case came about as the result of the wife seeking medical treatment for her burns, while none of the participants in Brown required medical attention. Thus, we have a case necessitating medical action and another where medical attention was never needed yet the judicial system upheld the conviction of those who had caused less harm and quashed the conviction in an incident involving greater harm. The only reason apparent for the decision in Wilson was the marital status of the couple and the fact that branding was readily equated to tattooing. As Russell LJ put it when delivering the Court of Appeals judgement, ‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution’.[xxxvii] He even went so far as to say ‘The so-called victim was the wife of the appellant’ indicating that their Lordships did not consider the wife the subject of an offence at all.[xxxviii]
Here their Lordships used different language to frame the activity as positive – the nature of the relationship between the individuals, the location in which it happened and the motivations of the people involved were all reaffirmed in a loving, affectionate and enduring romantic relationship. Their Lordships could have just as easily used a physical description to frame this event, focusing on burns suffered, the blistering of the skin, the risk of infection and the need for medical treatment. Essentially, the language used could have mirrored that of Brown emphasising the physical risks and suppressing the consensual element of the activity. Even so, based upon the social acceptable of BDSM identified in Part 3, the negative narrative presented in Brown would not evoke negative reactions from people. If this blog is correct, and the Overton Window has shifted, people would view the behaviour in Brown as part of mainstream sexual culture. And even if they do not themselves support or participate in such behaviour, it is within mainstream discourse enough that they do not believe it deserves criminalisation.
In conclusion, whilst bondage or violent acts are not expressly criminal whenever they are part of sexual activity, if they amount to the more than a battery, the law does not allow an individual to consent to such harm being inflicted upon their own body, and consequentially, the inflictor could face criminal prosecution.
- The problems and challenges of this gap between social understanding and the law
This disparity between public opinion and the law raises many issues for debate. Detailed debate of these issues, however, is beyond the scope of this blog. Nevertheless, it is important for us to at least highlight and provide some commentary on these issues to flag them for future discussion.
A major problem with this gap between public perception of BDSM and sexual violence and the law is the role the jury plays within the criminal law process. It is contended that the law is very clear, an individual cannot consent to harm above a battery (unless covered by an exception) but that does not prevent a jury from finding a defendant not guilty. No matter how clearly the law points towards a particular outcome, if the jury disagrees with that outcome they can find in the opposing direction. This type of jury decision is known as a perverse jury. These juries are perverse in the sense they ignore the law and decide based on their own perceptions of justice. It is contended that the reason the defence of consent to BDSM has become more prevalent and successful is not because the law is inadequate, or fails to protect victims of sexual violence, but that jury members view such behaviour as sufficiently normalised to view criminalisation as inappropriate. An example of this was in the case of Stephen Lock.[xxxix] In this case, the law is very clear, the complainant was unable under Brown to offer Stephen Lock her consent to the level of harm he caused, nonetheless, the jury decided Stephen Lock was not guilty. Reinforcing the idea that the Overton Window of acceptable sexual behaviour Herring noted that Lock claimed in his trial to be “inspired” by Fifty Shades of Grey. It is submitted, therefore, that rather than trying to change the law, which is already restrictive enough to find people like Stephen Lock criminal for their behaviour, campaigners need to turn their attention to re-educating the general public about the issue of consent to impact upon how juries approach cases involving BDSM and sexual violence. Without this public education campaign, no substantive changes to Brown will have any impact because juries may simply ignore the law.
There needs to be a public education campaign that engages with those who are experienced members of the kink community and those individuals who have had their sexual palate expanded by the movement of the Overton Window. These people need to be made aware of the fact that law is not as tolerant as public opinion. They need to understand that involvement in BDSM or sexual violence, which amounts to more than a battery, might result in criminal prosecution. People involved in the BDSM community and who enjoy sexual violence will need to know this to (a) ensure consent is properly granted, (b) protect themselves from potential criminal liability, (c) consider whether their desired BDSM or sexual violence fits within the current legal framework and (d) know the current criminal law baselines to more effectively advocate for reform.
Additionally, there has been a lot of public debate around individuals claiming the defence of consent where the submissive partner has died as a result of BDSM or sexual violence. These cases have been labelled ‘consent gone wrong’ cases. The recent death of British Backpacker Grace Millane has led to increased public prominence of this issue. In these cases, debate needs to occur about whether death of a victim during BDSM or sexual violence needs to be treated different than other forms of harm.
While we hold the law allows individuals to consent to some forms of BDSM, a BBC 5 Live poll suggests that just over 50% of women never want sexual violence.[xl] Although this would need to be confirmed through larger more comprehensive studies, it does indicate that only approximately half of women would engage in some form of kink during sex – and then not all the time. The challenge for the law is how to protect both those who genuinely consent to kink and those who do not. This problem is particularly acute in murder cases as the woman cannot speak for herself.
Consent to BDSM is possible but the use of it as a defence in court risks feeding into the ‘she asked for it’ narrative and doubly punishes victims. This is the source of the problem, the social prejudices that affect the interpretation of consent involving female victims. The law could protect the genuine choice to engage in kink but may fail to protect those who are victims of non-consensual BDSM. Unless the law acknowledges this complexity it will both fail to protect the sexual autonomy of genuinely consenting adults and those who refuse consent. This is particularly acute if the law continues to ignore the social context and prejudices that affect how women are or can be portrayed during the legal process.
Through the shifting of the Overton Window, BDSM and sexual violence has become part of mainstream sexual culture. Whilst some might advocate for or against the mainstreaming of BDSM and sexual violence, under our current law, a certain level of BDSM and sexual violence is permissible. Whilst those involved in BDSM through the traditional kink community might be aware of these legal limits, new participants, who gained interest though this shifting of the Overton Window, and who learned BDSM and sexual violence through media such as Fifty Shades of Grey need to be educated on safety, risk and the law, which might effect their new found sexual practices.
[i] D Langdridge and T Butt, A hermeneutic phenomenological investigation of the construction of sadomasochistic identities (2004) 7(1) Sexualities 31-53.
[ii] Joseph Overton, ‘The Overton Window’ (Mackinac Center) <https://www.mackinac.org/OvertonWindow> accessed 6 February 2020.
[iii] R v Brown  UKHL 19,  1 AC 212.
[iv] P. Murphy, “Flogging live complainants and dead horses: we may no longer need to be in bondage to Brown”  Crim. L.R. 758.
[v] Caroline Lowbridge, ‘Rough sex murder defence: Why campaigners want it banned’ (BBC, 22 January 2020) <https://www.bbc.co.uk/news/uk-england-51151182> accessed 5 February 2020.
[vi] Ibid, Samantha Pegg, “It might just be that shift in culture and they think a jury might believe them, or in fact it might be true. But we can’t stop them doing that.”
[vii] Various Authors, ‘Blogs’ <https://www.starsdorset.org/Blogs/sexual-abuse-and-sexual-violence-awareness-week> accessed 5th February 2020.
[viii] Most of these crimes are contained within the Sexual Offences Act 2003.
[ix] Most of these are either (a) domestic abuse crimes or (b) Non-fatal offences against the person crimes.
[x] There is a philosophical debate around this issue See… William Wilson, Criminal Law (Longman Law Series 6dn 2017) Chapter 2.
[xi] John Stuart Mill, On Liberty, Utilitarianism and Other Essays (Oxford Worlds Classic, 2nd Edn 2015)
[xii] R v BM  EWCA Crim 560
[xiii] L. Drdova and S. Saxonberg, Dilemmas of a subculture: An analysis of BDSM blogs about Fifty Shades of Grey (2019) Sexualities, October 2019, 5-6.
[xv] See Note 1.
[xvi] Ibid, “the Overton Window can both shift and expand, either increasing or shrinking the number of ideas politicians can support without unduly risking their electoral support.”
[xvii] Carlos Maza ‘How Trump makes extreme things look normal’ (Vox, 21 December 2017) <https://www.vox.com/2017/12/21/16806676/strikethrough-how-trump-overton-window-extreme-normal> accessed 4 February 2020
[xviii] Similar analysis has been done with regards to Brexit- John Lanchester, ‘Brexit Blues’ (2016) 38 London Review of Books.
[xix] George Eaton ‘How Jeremy Corbyn – and Brexit – have moved British politics to the Left’ (Newstatesmen, June 2018) <https://www.newstatesman.com/politics/uk/2018/06/how-jeremy-corbyn-and-brexit-have-moved-british-politics-left> accessed on February 4 2020.
[xx] Margot Weiss, Mainstreaming Kink: The Politics of BDSM Representation in U.S. Popular Media (2006) 50 Journal of Homosexuality, 103-132.
[xxii] E.L. James, Fifty Shades of Grey (Vintage Books 2011).
[xxiii] YouGov, ‘Popularity/Fame’ < https://yougov.co.uk/topics/media/explore/movie/Fifty_Shades_of_Grey-Movie> accessed February 3 2020.
[xxiv] Emily Temple, ‘Best Selling Books’ (Lithub, December 2019) < https://lithub.com/these-are-the-10-best-selling-books-of-the-decade/> accessed February 2 2020.
[xxv] L. Drdova and S. Saxonberg ‘Dilemmas of a subculture: An analysis of BDSM blogs about Fifty Shades of Grey’ Sexualities (2019)
[xxviii] George R R. Martin, A Game of Thrones (Bantam Spectra 1996)
[xxix] YouGov Poll, ‘BDSM’ <http://cdn.yougov.com/cumulus_uploads/document/h38baes6ei/InternalResults_150209_BDSM_Website.pdf>
[xxx] Savanta:ComRes ‘BBC 5 Live, Women’s Poll – 21st November 2019’ http://www.comresglobal.com
[xxxi] Google Trends.< https://trends.google.com/trends/>
[xxxii]  1 AC 212
[xxxiii] Ibid, 237
[xxxiv]  QB 47
[xxxv] Ibid 50
[xxxvi] Ibid 50
[xxxvii] Ibid 50
[xxxviii] Ibid 48
[xl] Savanta:ComRes ‘BBC 5 Live, Women’s Poll – 21st November 2019’ http://www.comresglobal.com
What absolute intellectually vacant tosh. To start analyse the absurdity of Templeman in Brown: See how he explains (fails to explain) how a boxer can inflict GBH on his opponent and how the latter’s consent to that is a defence. Sod the “Overton Window”. The reading of rubbish books like “Fifty Shades” may simply allow the reader to accept that their desires are shared by many. This does not mean that their approach to sex has shifted. What is never asked is what if a woman asphyxiated her partner in the course of mutually engaged S and M? Should she be permitted to advance “accident” as a defence?
It has been argued that the distinction between BROWN and WILSON is the fact that in BROWN the defendants were homosexual, whereas in WILSON they were heterosexual (and married, to boot). The injuries in BROWN were trivial as compared with those in WILSON. I put it to you that the judges in BROWN displayed homophobic prejudice. How would you conclusively disprove this interpretation? Were it not disproven, would not right-minded people be justified in seeing BROWN as bad and indefensible law, and seeking a remedy, including censure of the judges? Do we revere or even accept the findings of Judge Jeffreys?
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