Sex, Power and the King: A Genealogy of the Law of Assault and Consent
Posted: 28 Aug 2018
Date Written: August 19, 1997
Abstract
The issue of assault and consent has had a long and varied history. Can one consent to injuries which occur during a boxing match? What about bodily harm which arises from a consensual fist fight? How about harm caused during the course of consensual 'sado-masochistic' sex? These are some of the issues which the courts have dealt with over the past hundred years, and which form the main focus of this paper. Most analyses of the law in this area have considered the issue in terms of liberalism, paternalism, and legal moralism, asking questions such as 'Is state interference with the lives of these people justified?' 'What is the proper role of the criminal courts?' 'Should the courts be responsible for enforcing moral values?' Rather than analysing the law in terms of these three approaches, this paper questions the power structure within which the law operates. Instead of focussing on the appropriate level of state intervention, the target of inquiry is the type of intervention, and the manner in which power operates. Using the writings of Michel Foucault, it shows that there has been a shift in the dominant regime of power: from a type of power which was centred around the King, to a power concerned with controlling our everyday lives. This has not been a gradual, 'evolutionary' shift, but rather a mutation, a discontinuous alteration of the mechanisms of power. This paper provides evidence of this shift, in both the English and Australian contexts.
Keywords: Criminal Law, Assault, Consent, Sado-Masochism
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