CHAPTER 6: AMALGAMATION OF THE ARGUMENTS, RECOMMENDATIONS AND
6.3 Final Remarks
181 State. Ultimately, the positive action on part of the State is likely to be a criminal prosecution where said harm arises. Without a specific statutory definition of consensual sadomasochism bringing serious, or grievous, bodily harm, perhaps the State may attain the greatest guidance under the eventual direction of the South African Law Reform Commission. It is recommended that if a matter of consensual sadomasochism finds itself before a South African court, an investigation by the South African Law Reform Commission would be most beneficial for the development of, inter alia, the criminal law’s position relating to such a consensual practice.
The reach of the Law Reform Commission’s investigation and research will undoubtedly spur valid legal recommendations as to the permissible degrees of bodily harm that may be inflicted within such practices. The possible findings, suggestions, and recommendations of the South African Law Reform Commission may ease the validity of the practice’s transition into broader legal acceptance, whilst also outlining prohibited forms of physical harm. In turn, these submissions will be proposed to Parliament and the relevant provincial legislatures, giving rise to potential future legislation dealing specifically with consensual sexual violence and its variant internal practices.
182 consenting partners and their possible limitations by application of the Constitution, the doctrine of public policy and the current criminal law.
The issue of consensual sadomasochism is one that is unique within South African jurisprudence. The reach of informed consent to physical injury, tied to the values of personal autonomy of the consensual practice, is entwined within the viewpoints of the current policy considerations of South Africa. This issue will inevitably simmer in the boiling pot that would be the eventual judicial review of the consensual practice that brings serious bodily harm.
Reflectively viewed, the stance of the South African law to consensual sadomasochism, bringing varying degrees of bodily harm, is a pressing incentive for exploration, as shown by the growing sexual content and influences within the contemporary society.
The English case of R v Brown notably established the position of the relevant international jurisdictions where matters arising in consensual sadomasochism were brought into legal scrutiny. However, the antediluvian methods and approaches of R v Brown, which proposed, inter alia, State-control over private and autonomous adult interactions, prove unfounded within the current South African legal system. It is probable that if a South African court hears a matter of consensual sadomasochism, it would likely follow the contemporary guise set out in R v Lock by interpreting the facts of each case on their own merits regarding the practiced consensual harm. This approach, inter alia, will give credence to the personal autonomy of the participants, the safeguarding of relevant personality rights of the participants and the current policy considerations related to the matter itself.
It would have been impractical for the research to delve into consensual sadomasochism practised within the public sphere, for the exposure of the harm and the risk of injury are no longer restricted to the private realm. Perhaps the impact of widespread exposure to consensual sadomasochism within the public sphere is a debate for another academic piece. Ultimately, if this research were to be conducted, such may draw significantly on the preventative controls of the criminal law and the greater criminalisation of the practice itself.
The Constitutional rights of the participants served as the dissertation’s contrasting argument for the protection of their specific personality rights; namely human dignity, privacy and freedom of expression. The probability of consensual sadomasochism falling within the bracket of a victimless crime rests upon the duality of the nature of the specific practice and the manner in which it occurs. Ultimately, the revelation of the research dissertation showed that where
183 serious, or grievous, bodily harm is inflicted in private settings, a prosecution of the consensual practice must be effected.
It is submitted that a core moralistic creed regarding the legal validity of the practice may only be derived from the Constitutional prerogatives and not the viewpoints of the broader public morality, nor the internal opinions of the minority groups that practice sadomasochism. When interpreting private consensual sadomasochism bringing serious, or grievous bodily harm, the relevant South African court may rightly limit the rights to freedom of expression and privacy.
However, in consideration of these final thoughts for the dissertation, the subjective value of human dignity, which may be associated in the effecting of the consensual practice, must be acknowledged and protected within the State’s potential inquisition. The positive duty of care owed by the South African law in propelling human rights, public health, and societal safety is etched across the broad canvases of numerous pieces of legal literature. It should be the consideration of a South African court to observe the aforementioned safeguards, especially in the protection of minority sexual groups and their individual autonomy in the enjoyment of their Constitutional rights.
The possible textual aids for a court’s interpretation of consensual sadomasochism may be borne from the development of the specific crime of assault, along with any supporting legislative guides of applicability regarding the issue.1046 However, a potential proposal from the South African Law Reform Commission shall provide the necessary research, interpretation, and definition of the Constitutional validity of consensual sexual violence in a holistic sense. This shall be beneficial for the overall balancing of the interests of the South African State, its public policy considerations and its criminal laws, as weighted against the autonomous interests of the participants to the consensual practices. The South African legal system should not shy away from such future developments and legal intrigue, as it is within the core of the country’s democracy to be ‘strong in will; to strive, to seek to find and not to yield’ in the presence of any legal anomalies. 1047
1046 Section 173 of the Constitution of the Republic of South Africa.
1047 K.F. Shoily "Myth and Meaning in Ulysses: Homer, Tennyson and Joyce" (Masters thesis, Brac University, 2013) 19.
184