Published January, 2011

When "No" Means "Yes" and "Yes" Means Harm: HIV Risk, Consent and Sadomasochism Case Law, Annette Houlihan, Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues (2011)

This article discusses the criminalization in England of same-sex, sadomasochistic (s and m) behavior. The author also explores how violence and HIV are readily associated with homosexual, but not heterosexual, s and m behavior, as well as the court's tendency to label same-sex male relationships as 'abnormal,' and male-female sexual relationships as 'normal.'

The author, in examining criminal prosecutions in the same-sex, s and m arena, specifically looks at the case of R. v. Brown. This case involved the prosecution and punishment of a group of men who have sex with men, some of whom were HIV-positive, who engaged in various sadomasochistic activities. The court emphasized the HIV statuses of the men and applied the legal rules of assault to their acts, making an "explicit link between AIDS, anal sex, deviance, and social disorder." Thus, the court failed to focus on the acts themselves, which for the men were "consensual, pleasurable, and private," and instead made this consensual sexuality a crime. As the article notes, same-sex s and m became a metaphor for danger and HIV following the outcome of this notorious case. Additionally, the author compares Brown to many cases that followed, where the participants in the s and m were male-female, and thus their acts were viewed as normal and safe.

While this article discusses the treatment of same-sex, sadomasochistic behavior in the England, the case law may still prove useful for attorneys and advocates in the U.S. The handling of the subject matter in the cases – including sexuality, violence, and consent – can provide guidance regarding the response to societal tension and public opinion in similar cases.