Sadomasochism in Strasburg: A Pleasurable Danger?

This paper presents an analysis of sadomasochistic practices from a gender perspective against which it compares and criticizes the European Court of Human Rights’ (ECtHR) case law on sadomasochism. In sadomasochistic practices, domination and subordination are closely interdependent. The interplay of domination-subordination and pleasure-danger entails that these postures may be variously attached to either/both masculine and/or feminine roles and identities without pre-fixed meaning. What is the stance of human rights law on this type of practice? The ECtHR’s case law is the only example of a supranational human rights court dealing with sadomasochism. To date, no cases related to sadomasochism have been brought forth in other regional courts’ case law and in the jurisprudence of UN human rights treaty bodies. The study investigates, therefore, how the ECtHR has interpreted sadomasochism under Article 8 of the European Convention of Human Rights, considering the notions of private life, sexual acts, and violence in order to evaluate the legitimacy of the State’s interference. This paper looks at the way in which the ECtHR interprets the conducts and roles within sadomasochism. The peculiarities of this sexual performance are hardly understood faithfully to their nature and purposes in the ECtHR’s case law. Apart from rare shy exceptions, the mantra of domination=violence, dominator=perpetrator, and dominated=victim monopolizes the ECtHR’s narrative on sadomasochism. From the sadomasochistic perspective, the subject described as a “victim” in the Court’s decisions can well be an individual who has freely consented to receive pain as a source of their pleasure under certain conditions negotiated beforehand with the dominator. Where such conditions are respected, the latter’s position should be considered much closer to a sexual contracting party rather than a perpetrator. The conclusion stresses that the ECtHR’s reasoning does not grasp the sexual realities of gendered subjectivities, being based on oppositional and unnuanced conceptions of violence versus sex, domination versus subordination, and masculinity versus femininity.