Sex is Not a Sport: Consent and Violence in Criminal Law

Abstract

Does consent excuse violence against another? Generally, it does not. Recently, however, criminal defendants charged with violence against their sexual partners have asked courts to treat violent sex or sadomasochism (S/M) as a sport, like prize fighting and hockey. While Most courts have refused to do so, a recent New York case, People v. jovanovic, let stand a ruling that effectively permits a defendant to argue consent as a defense. This Article argues that the liberal argument treating S/M as a matter of sexual autonomy fails to account adequately for the history and practical application of the doctrine of violent consent. It concludes that by recognizing consent in the S/M context, the law is evolving in a direction that could lead to the glorification of sexual violence, rather than the sexual liberation of consenting adults.