In preparation for his recent exhibition; Seduced; Art and Sex from Antiquity to Now’, Martin Kemp assuredly stated that ‘consent is an important watchword for the show’.(1) He defines consent in relation to the act of sex as mutual action and reaction between two people.(*1) This statement is too general, it does not account for the possible contradiction between sex and consent. The idea of truly consensual sex is always negated by the act itself. It relies on a balance of power between a dominant person and a submissive person. The balance can be very complex; power can shift between the people involved. The balance of power can vary greatly, it can be very cordial, or can become one sided, even violent. The dominant person can assume all the power, turning the submissive person into a victim,(*2) at this point the notion of consent collapses; the act of sex becomes rape or sexual assault. Kemp chose a broad definition of consent to avoid this ugly and traumatising side of sex. Conversely, in displaying Robert Mapplethorpe’s X Portfolio; a depiction of sadomasochism through a collection of black and white photographs, Kemp has tested if not contradicted his definition of consent.(2)
To explain how, the legal definition of ‘Sadomasochism’ needs to be summarised. It is a relationship between a ‘Sadist’; one who gains pleasure from inflicting pain and violence on others and a ‘Masochist’; one who personally enjoys receiving pain and the infliction of violence. Sadomasochism that results in hurt and injury and interferes with the health and comfort of another is illegal.(3) One cannot consent to a sexual act which results in ‘actual bodily harm’. Documentation of such acts is also illegal. Although, Sadomasochism fits with the idea of mutual action and reaction between two people, the imbalance of power and violent nature of the act means one can not legally consent to it.(4)(*3) This causes one to question whether Kemp’s definition of consent accounts for the legal definition. Can X Portfolio be seen as documentation of ‘actual bodily harm’ through Sadomasochism?
Even though images that document ‘actual bodily harm’ through Sadomasochism are illegal it can be referenced or implied. X Portfolio definitely references homosexual sadomasochism, it is questionable whether it documents it. Most of the photographs show one person having pain inflicted on them in some way. The inflicter is not shown, only masochism is documented. However, there is one photograph that could be seen as documenting an illegal Sadomasochistic act. It shows two men, all that can be seen are the spread buttocks of the first man and the elbow and upper arm of the other man, his hand and forearm have been inserted into the first mans anus; the photograph depicts what is commonly known as ‘fisting’.
The question is; does ‘fisting’ constitute ‘actual bodily harm’?(*4) There is no doubt that it has potential to create long term disabling effects, or if performed vigorously will cause ‘actual bodily harm’. In the Case of Mapplethorpe’s ‘fisting’ photograph there is no concrete evidence of ‘actual bodily harm’ but it references an imbalance of power, submission and the potential of injury.(5) In displaying the act of ‘fisting’ Kemp has strained his notion of consent. He has generalised the term ignoring its complexity; undermining the legal definition of consent in relation to Sadomasochism.
1 ‘Seduced; Art and Sex from Antiquity to Now’, (2007-08) Barbican Art Gallery, Curated by Prof Kemp and Prof Wallace.
2Here, I use sadomasochism as a verb, in the case of Legal definition I use it as a noun, hence the change, ‘Sadomasochism’.
3 ‘…such an injury need not be permanent, but must, no doubt, be more than transient or trifling’. Lord Templeman, See R Vs Brown, 1993.
4 It is also because the masochist can only consent to the ‘nature’ and not the ‘quality’ of the act. He or she can agree to the idea of the act but can not predict the consequences of such an action. Since a masochist is often physically restrained; in the position of total submission, he or she may suffer pain and humiliation they did not expect. Code words are often used by the masochist to inform the sadist to stop the act, this can be argued to solve the problem, however if ‘actual bodily harm’ is created the act is still illegal.
5 The exhibition was police checked to make sure the exhibition did not include any illegal material
Comments by my Lawyer/Mother; L A Rich
*1 This very general definition is out of line with the legal definitions. It does not take into account a scenario where one party goes beyond the scope of the consent give,(the nature of the act) or misrepresents the purpose of the act (quality of the act) what would the position be for example, if the dominant party had an infectious disease that he knew about but concealed from the passive party? Would contraction of that disease have been consented to even if the act of intercourse or fisting was?
*2 It might well be, but consider the case that the passive party wants to be totally passive and allow the dominant party full reign. However, if the acts go beyond that consent that the passive party has given, then your assessment of the situation is correct. There was a case in which the passive (girl) consented to a mild spanking, but the dominant (male) gave her a severe beating.thus going beyond the ambit of the consent. See also http://www.rjerrard.co.uk/law/cases/tabassum.htm
*3 If done for the purpose of sexual gratification (R Vs Brown; A group of men performed sadomasochistic acts on each other resulting in actual bodily harm, It was agreed that an individual could not consent to actual bodily harm) but not if it was for body art, in this case consent maybe given (R Vs Wilson; with his wife's consent a man branded his initials in his wife's buttocks the act was compared to tattooing thus consent could be given)
*4 I think you need a legal definition for this which you will find in the case of Brown and also in Wilson. It is Section 20 of the Offences Against the Person Act 1892. if it does fit within the definition then it cannot be consented to ,according to the ruling in brown. However, if it has been done for the purpose of Art (does the photo turn the act into art?) then it could be that Wilson is the better case to follow. I think it is a dubious distinction and am a bit surprised that the police did not consider this porn.