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PAIN, PLEASURE, AND CONSENTING WOMEN:

EXPLORING FEMINIST RESPONSES TO S/M AND
ITS LEGAL REGULATION IN CANADA
THROUGH JELINEK’S THE
PIANO TEACHER

MANEESHA DECKHA*

I. INTRODUCTION

Consent is a critical analytical tool in western liberal legal traditions. It

is the basis, in its form of the social contract, for foundational theories of
justice and underpins a hallmark of the core liberal precondition for human
flourishing: autonomy.1 Under liberal legalism, choosing to do something
typically legitimates that activity as long as it does not harm others.2 Con-
versely, being forced to do something is typically perceived as an infringe-
ment of personhood. For feminists, an example that comes easily to mind to
demonstrate the significance of consent, and the principle of autonomy that
underlies it, is the difference between sex and rape, a distinction that turns
on consent. The absence of consent turns a socially approved and even cele-
brated act of love and expression into an act of violence. It is no wonder,
then, that feminist writing on consent in this particular area has often been
concerned with ensuring the presence of “real” consent, impugning the idea
of constructive or implied consent to sex, and emphasizing instead that “no
means no,” to expunge long-standing rape myths and norms about female
sexuality that have made women’s bodies vulnerable to violation.3
Feminists have been worried that sexual assault laws will look errone-
ously to context to construe consent from conduct where none existed ver-
bally. At the same time, feminists have also challenged liberal legalism’s

* Assistant Professor, Faculty of Law, University of Victoria. I would like to thank all
of the participants at the panel at the Seventh Annual Conference for the Association of
the Study of Law, Culture, and the Humanities at the University of Connecticut School of
Law, where this argument was first presented, Susan Heinzelman who heard the presenta-
tion and encouraged the writing of this Article, and Rebecca Johnson for reading an
earlier draft. I am grateful to the Editors of the Harvard Journal of Law & Gender for
their care in the editing process and to Layli Antinuk, Alison Cowan, and Eli Walker for
excellent research and editing assistance. I thank the University of Victoria Faculty of
Law for research assistance support.
1
See MARTHA NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES
MEMBERSHIP 2–4 (2006); Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts,
and Possibilities, 1 YALE J.L. & FEMINISM 7, 7 (1989).
2
See Robin West, Desperately Seeking A Moralist, 29 HARV. J.L. & GENDER 1, 20
(2006).
3
See Kevin Bonnycastle, Rape Uncodified: Reconsidering Bill C-49 Amendments to
Canadian Sexual Assault Laws, in LAW AS A GENDERING PRACTICE 60 (Dorothy E. Chunn
& Dany Lacombe eds., 2000).
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426 Harvard Journal of Law & Gender [Vol. 30

presuppositions and encouraged adverting to context to caution against

presuming that even explicit consent has been given freely. The concern in
both situations is the same: that the law will assume consent where none
existed. But whereas in the former situation, the concern predicts that the
law will look to context too much, in the latter situation the concern for
many feminists is that the law will ignore the social, cultural, and economic
context limiting women’s options. Feminists have provided critical readings
of women’s apparent consent to practices (e.g., child care, domestic labor,
modified career patterns, etc.) that conform to naturalized and traditional
gender roles, taking care to explain the context surrounding women’s
choices. They question whether decisions made in non-ideal conditions can
ever count as real exercises of choice4 and are concerned that the law will
too easily presume or recognize women’s consent for decisions that are ad-
verse to their interests and/or otherwise leave existing power structures in-
tact.5 Since consent is intimately tied with responsibility in this binary, such
that one is generally held responsible for something if one consents to it
while one is absolved if one is coerced, feminists worry that women will be
held responsible for their decisions while the hegemonic social structures
that shape those decisions remain intact. In short, feminists “have been
quick to locate the structural determinants of consent.”6
These concerns generate the intricate question of agency and how to
best promote it for women. Does justice demand that the law should limit
the types of permissible choices women may make precisely because such
choices are shaped by hegemonic structures and are thereby “deformed” and
a variation of false consciousness?7 Does the personhood of women (and
men) require the legal non-recognition of certain types of behavior irrespec-
tive of the consent or autonomy that underlies it? Or does respect for per-
sonhood, especially of women, require the direct opposite: a respect for
agency regardless of the self-harm and violence sought?
In this Article, I explore the general theoretical question of whether a
feminist legal vision striving for women’s personhood should recognize and
respect women’s desired consent to violence.8 I will discuss this question by

4
See JOAN WILLIAMS, UNBENDING GENDER 260–70 (2000); see also REBECCA JOHN-
SON, TAXING CHOICES: THE INTERSECTION OF CLASS, GENDER, PARENTHOOD, AND THE LAW
125–41 (2002).
5
For an excellent discussion of this problem, see generally JOHNSON, supra note 4. R
6
KATHLEEN B. JONES, COMPASSIONATE AUTHORITY: DEMOCRACY AND THE REPRESEN-
TATION OF WOMEN 59 (1993).
7
Anita Superson, Deformed Desires and Informed Desire Tests, 20 HYPATIA 109
(2005).
8
By “consensual violence,” I am referring to situations where women actively desire
and pursue activities and practices that inflict pain, injury, and harm as opposed to harm-
ful activities or arrangements to which they may consent due to their current life circum-
stances and options that involve harm that women would rather do without. My example
of “consensual violence” is the desired practice of S/M. An example of unwanted con-
sensual violence is the example of consenting to sex because the financial and emotional
overall well-being of oneself and one’s children depend on it. See West, supra note 2, at R
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2007] Feminist Responses to S/M and The Piano Teacher 427

examining the particular concrete example of heterosexual S/M.9 The novel

The Piano Teacher10 by Nobel Laureate Elfriede Jelinek illuminates the fem-
inist tensions underlying this agency issue and assists in answering the ques-
tion of whether consensual violence is properly part of a feminist project and
how the law should therefore treat S/M.11 The novel illustrates both sides of
a feminist debate that revolves around the issue of whether S/M should be
denied or affirmed as a feminist practice.12 It also illustrates why a feminist
legal vision should ultimately be cautious of recognizing consent to violence
in this instance. Part II of this Article provides a plot summary of Jelinek’s
novel, which serves as a point of departure for what follows. Part III then
sets out the contours of feminists’ S/M analyses, focusing on the binary es-
tablished between “dominance” and “sex radical” interpretations and how
the subjectivity of the female masochist in The Piano Teacher supports each.
This Part canvasses the multiple interpretations feminists have ascribed to
the female desire for S/M and their disparate assessments of S/M as a sub-
versive practice for women. Part IV then moves this inquiry regarding pos-
sible feminist readings of S/M into the legal arena by exploring feminist

19–20, 25–26. I realize that if we were to define “violence” as always already non-
consensual the idea of desired or consensual violence is oxymoronic. I leave aside this
discussion of the precise meaning of “violence” to allow for the idea of consenting to
violence.
9
I have chosen to discuss heterosexual S/M in particular because of the unique sym-
bolic meaning of heterosexual S/M for feminists seeking to resist male dominance and
exploitation. This is not to say that power issues do not arise for feminists from lesbian
S/M, just that the contours of the debate are altered when gender roles are perceived to be
mimicked by two women rather than enacted by a dominant male on a submissive fe-
male. In focusing on heterosexual S/M, I do not wish to discount the importance or
validity of lesbian S/M feminist discourse, but simply to hone in on an area that is an
arguably riper breeding ground of exploitation for women. For a feminist analysis critical
of lesbian S/M, see Reina Lewis & Karen Adler, Come to Me Baby or What’s Wrong with
Lesbian SM, 17 WOMEN’S STUD. INT’L F. 433 (1994). For reasons why lesbian S/M may
be seen as a more serious affront to feminism than heterosexual S/M, see Patrick D.
Hopkins, Rethinking Sadomasochism: Feminism, Interpretation, and Simulation, 9 HYPA-
TIA 116 (1994). For a discussion of differences in heterosexual versus gay male practice
of S/M, see Niklas Nordling et al., Differences and Similarities Between Gay and Straight
Individuals Involved in the Sadomasochistic Subculture, 50 J. HOMOSEXUALITY 41 (2006).
10
THE PIANO TEACHER was originally written in German and entitled DIE
KLAVIERSPIELERIN.
11
ELFRIEDE JELINEK, THE PIANO TEACHER (Joachim Neugroschel trans., Serpent’s Tail
1992); see also Matt Moore, Austrian Wins Nobel Prize for Literature, THE GLOBE &
MAIL, Oct. 8, 2004, at A15.
12
See AGAINST SADOMASOCHISM: A RADICAL FEMINIST ANALYSIS (Robin Ruth Linden
et al. eds., 1982); Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics
of Sexuality, in PLEASURE AND DANGER 267 (Carole Vance ed., 1984); POWERS OF DESIRE:
THE POLITICS OF SEXUALITY (Ann Snitow, Christine Stansell & Sharon Thompson eds.,
1983). The term “sadomasochism” at the center of these debates stems from the works
of Marquis de Sade and Leopold Von Sacher-Masoch and the complex constellations of
sex, pain, pleasure, and domination on which they wrote. See Gary W. Taylor & Jane M.
Ussher, Making Sense of S&M: A Discourse Analytic Account, 4:3 SEXUALITIES 293
(2001). This is not to say, however, that sadism and masochism are complementary. See
GILLES DELEUZE, MASOCHISM: AN INTERPRETATION OF COLDNESS AND CRUELTY 13, 33–41
(Jean McNeil trans., George Braziller, Inc. 1971).
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428 Harvard Journal of Law & Gender [Vol. 30

legal analyses of how Canadian criminal law should treat S/M. This Part
identifies an emerging shift in the S/M sex wars and explains the focus of
current feminist theory and legal doctrine on the subject. Here, the issue of
how the law defines S/M—as sex or violence—becomes critical due to the
different opportunities for an S/M practitioner’s consent to be legally rele-
vant depending on this characterization. Here, also, I demonstrate how The
Piano Teacher illustrates the strengths of both sides of the debate, but ulti-
mately favors a legal treatment of S/M as violence rather than sex. The
conclusions reached on S/M in Part V are not meant to apply to all instances
of consensual violence, but simply to offer one concrete example of how
feminists can continue to explore urgent questions about women’s agency.

II. THE PIANO TEACHER

In The Piano Teacher, Jelinek tells the story of the late sexual blossom-
ing of a female music professor by way of an intimate consensual relation-
ship with her besotted young male student.13 But perhaps “blossoming” is
too romantic a term since the sexual encounters the professor seeks are in-
tensely sadistic. When she communicates her sexual desires to her student
by describing how she would like their sexual encounters to unfold, his ad-
miration of and attraction to her turn quickly to disgust. Her fantasy would
require the student to inflict a severe amount of pain on the professor and to
continue doing so despite anything she may say during the actual act implor-
ing him to stop. The student leaves, repulsed, and the teacher unsuccessfully
continues to pursue him. Toward the end of the narrative, the student more
or less enacts the sexual encounter the professor had earlier described, in-
cluding the violent entry into her apartment, the locking up of her mother
with whom she lives, and the shoving, punching, and beating that she had
detailed. Throughout, he asks her menacingly if this is not, in fact, what she
wanted, what she had instructed him to do. She has no response to this.
Instead, she cries and repeatedly begs him to stop. He then begins to have
sex with/rape her. He proceeds without hitting at first, but then receiving no
indicators of desire from her, the student resumes the beatings while she
begs him to stop. Once the sex/rape is complete, he leaves her battered and
bloodied. In the final few pages, the novel describes what happens the next
day. The professor, dressed in her bandages, takes a knife from the kitchen
and goes to meet her student at his school. She sees him from a distance in a
group of his peers, flirting with a girl. Once the students enter the school,
she takes out her knife and without emotion stabs herself in the shoulder and
walks back home.
The professor is Erika Kohut, a mid-thirties concert pianist-hopeful
turned music professor. The student is ladies’ man Walter Klemmer, a new

13
The following narrative summarizes JELINEK, supra note 11. R
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2007] Feminist Responses to S/M and The Piano Teacher 429

and promising piano student. Klemmer wants a conventional romantic het-

erosexual liaison with Erika with its attendant albeit culturally unacknowl-
edged moments of aggression and violence.14 Despite the efforts of her
mother to eliminate men from Erika’s life and to tell her that men will bring
her sheer misery, Erika eventually accepts Klemmer’s advances. She wants
a relationship, too, but one marked by S/M as well as, and perhaps as the
route to, love. She has harbored S/M fantasies for a long time, which thus
far have found only limited expression in a collection of bondage parapher-
nalia kept hidden in a box in her room. She has finally found a possible
candidate to share that experience in Klemmer. Erika is unable to tell him
what she desires, though, so she writes a letter, which Klemmer reads in
front of her. He is initially disgusted and tries to cajole her into having a
“normal” love affair, i.e., one marked by tenderness, amorous attentions,15
and conventional gender roles and performances, including the occasional
display of male violence.16 She resists this traditional paradigm and he
leaves upset. Erika and Klemmer later attempt reconciliation, but it is un-
successful. Erika tries to perform fellatio on him, but ends up vomiting in
the midst of the attempt instead. Humiliated, Klemmer tells the apologetic
Erika that she stinks and that she repulses him. They part. A few days later,
Klemmer terrorizes the nocturnal residents of a downtown park on his way
to barging into Erika’s apartment to assault her as described above, wanting
to punish her for her perceived sexual transgressions of idealized femininity.
With this truncated version of the novel in hand, I now turn to an analy-
sis of how the main arguments of both sides of the historic and current sex
wars on S/M find fortification in this narrative.

III. OPPRESSION VERSUS REPRESSION

A. S/M as Part of the “Sex Wars” In Feminism

While S/M has varied meanings to its practitioners and eludes precise
definition,17 it is generally associated with the giving and receiving of pain to

14
For recent statistics about the prevalence of male violence against women in heter-
osexual “romantic” couplings in Canada and elsewhere, see STATISTICS CANADA, MEA-
SURING VIOLENCE AGAINST WOMEN: STATISTICAL TRENDS 2006, Cat. No. 85-570-XIE
(2006); Craig Brown & Melanie Randall, Compensating the Harms of Sexual and Do-
mestic Violence: Tort Law, Insurance, and the Role of the Estate, 30 QUEEN’S L.J. 311,
312 (2004); and also see Rosemary Hunter, Narratives of Domestic Violence, 28 SYDNEY
L. REV. 733, 736 (2006).
15
JELINEK, supra note 11, at 224. R
16
Id.
17
Taylor & Ussher, supra note 12, at 297–302; Robert B. Ridinger, Negotiating Lim- R
its: The Legal Status of SM in the United States, 50 J. HOMOSEXUALITY 189 (2006) (dis-
cussing the origin of sadomasochism in the United States and the evolution of its
treatment by the American legal system).
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430 Harvard Journal of Law & Gender [Vol. 30

incite sexual pleasure in a role-play/relationship mediated by power.18 The

feminist analysis of S/M maps onto larger debates surrounding sex-related
issues in general. These debates have been dubbed the “sex wars” within
feminist circles. Drawing upon the work of Kathryn Abrams,19 Lynn
Chancer describes the “sex wars” as a situation within second-wave femi-
nist theorizing where sex issues are the object of sharp divisions character-
ized by either/or paradigms.20 Though neither side in these debates
absolutely rejects the position of the other, each stresses its own understand-
ing of the sex-related practice as the better, true, or right interpretation.21
On one side are the “pro-sex feminists” or “sex radicals” who cham-
pion sexual practices such as pornography, sex work/prostitution, and sado-
masochism as empowering practices for women and correspondingly
characterize attempts to regulate sex as repressive.22 Pro-sex feminists view
sexual repression as a main impediment to flourishing in women’s lives and
view attempts to stifle sex-related expression as perpetuating women’s sub-
ordination rather than subverting it. While pro-sex feminists do not share
liberal legalism’s doubt regarding the ubiquity of women’s oppression, they
are not prepared to accept the view of feminists who always regard women’s
sexual agency as already a fiction given a culture of male sexual aggression
and dominance.23
On the other side are theorists who are known both in the legal litera-
ture and popular culture as “radical feminis[ts].”24 They have argued that
S/M, prostitution, and pornography, far from being liberating for women, are

18
Taylor & Ussher, supra note 12, at 294. The authors more fully state that “SM is R
best understood as comprising those behaviors which are characterized by a contrived,
often symbolic, unequal distribution of power involving the giving and/or receiving of
physical and/or psychological stimulation. It often involves acts which would generally
be considered ‘painful’ and/or humiliating or subjugating, but which are consensual and
for the purpose of sexual arousal, and are understood by the participant to be SM.” Id. at
301. Some scholars have contested traditional definitions emphasizing pain, highlighting
instead the experience of the power differential as erotic as the primary reason people
engage in S/M. See, e.g., Patricia A. Cross & Kim Matheson, Understanding Sadomas-
ochism: An Empirical Examination of Four Perspectives, 50 J. HOMOSEXUALITY 133
(2006); Darren Langdridge & Trevor Butt, The Erotic Construction of Power Exchange,
18 J. CONSTRUCTIVIST PSYCHOL. 65, 68–69 (2005).
19
See Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal
Theory, 95 COLUM. L. REV. 304 (1995).
20
See Lynn Chancer, From Pornography to Sadomasochism: Reconciling Feminist
Differences, 571 ANNALS AM. ACAD. POL. & SOC. SCI. 77, 79 (2000).
21
Id.
22
See Brenda Cossman, Sexuality, Queer Theory, and “Feminism After”: Reading
and Rereading the Sexual Subject, 49 MCGILL L.J. 847, 850 (2004).
23
Id. at 860–61 (“. . .sex radical feminism rejects the very premises of dominance
feminism that sexuality constitutes the primary site of women’s subordination, insisting
that sex and sexuality are a far more ambivalent site, producing multiplicities of pleasures
and dangers”); see also Matthias Kuzina, The Social Issue Courtroom Drama as an Ex-
pression of American Popular Culture, 28 J.L. & SOC’Y 79, 86, 89 (2001) (“[T]he very
epitome of liberal legalism. . . . disregards [the] violence against women which finally
leads to the ‘institutional oppression of the rape victim.’ ”).
24
Cossman, supra note 22. R
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2007] Feminist Responses to S/M and The Piano Teacher 431

among the most acute instances of institutional sexism and modern day pa-
triarchy (and, to a lesser extent, classism and racism). This feminist position
has been branded “‘dominance’ feminism.”25 It characterizes private sexual
practices and transactions as primary spaces where sexist power dynamics
operate such that feminists need to target them just as (if not more) vigilantly
than they do more public displays and examples of structural sexual subordi-
nation.26 Dominance feminism impugns the eroticization of relationships of
dominance and submission and contends that women’s sexual agency and
consent to sex is meaningless in a sexual regime fundamentally marked by
male sexual coercion. To the extent that women “want” pain inflicted on
their bodies or harm done to them, they have been duped by patriarchy’s
unjust social conditions into forming these “deformed” desires.27 Thus,
while not necessarily “anti-sex,” dominance feminists are skeptical of the
feminist status of sexualities that acquiesce to male sexual dominance (heter-
osexuality) or rely, mimic, and celebrate these and other related oppressive
power dynamics (sadomasochism, pedophilia, master/slave relationships,
etc.).28
With this sense of why S/M is a divisive topic for feminists, the next
section illustrates how The Piano Teacher confirms the complexity of any
possible answer to the question “Is S/M feminist?”

B. Subversion of Gender Roles?

The fact that there must be limits on certain forms of S/M forms a point
of agreement in the historic sex wars and the latest incarnation of the de-
bate.29 There is less agreement though, despite the retreat from dominance
feminism, as to whether S/M simply reinforces oppressive gender codes or
subverts them. The Piano Teacher elicits the tensions in feminist theorizing
of S/M, but also illustrates the plausibility of multiple interpretations of the
meanings of practices associated with S/M. It thus encourages feminists not
to dismiss such practices out-of-hand or to celebrate them uncritically.
A commonly articulated argument against the legitimization of S/M as
a feminist practice is that it perpetuates sexual subordination of women to

25
Kathryn Abrams, Songs of Innocence and Experience: Dominance Feminism in the
University, 102 YALE L.J. 1533, 1549 (1994).
26
See Abrams, supra note 19. R
27
See generally Superson, supra note 7. R
28
Susan Ardill & Sue O’Sullivan, Upsetting an Applecart: Difference, Desire and
Lesbian Sadomasochism, 80 FEMINIST REV. 98, 118–19 (2005); Hopkins, supra note 9. R
29
Witness Monica Pa’s proposal: “I propose the legislature legalize private, consen-
sual S/M sex that does not cause grievous bodily injury or death. I suggest adoption of
the British Law Commission Report, which holds that it is not a criminal offense to injure
a person who: (1) is a capable adult; (2) has given full and informed consent; and (3)
suffers no permanent or serious bodily injury.” Monica Pa, Beyond the Pleasure Princi-
ple: The Criminalization of Consensual Sadomasochist Sex, 11 TEX. J. WOMEN & L. 51,
81 (2001) (citing British Law Commission Report 134 at 656–57, § 10.52–55).
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432 Harvard Journal of Law & Gender [Vol. 30

men.30 And the fact that it is often women, like Erika Kohut, who choose
this type of sexual play and wish to perform the submissive role, does not
rescue the practice from being mired in patriarchal power relations.31
Rather, it serves as a confirmation that women learn detrimental gender roles
exceedingly well.32 Because of their enculturation into a general overarch-
ing sadomasochistic patriarchal culture, women are unable to conceptualize
their femininity, sexuality, and desirability to a man in a relationship of
equals.33 Instead, they rely on a relationship of dominance and subservience
both to be aroused and make themselves desirable to men.34 The contention
is not that women who prefer the masochist role sublimate their sexual
desires to those of their male partners, but rather that practices and dis-
courses of gendering have socialized them to eroticize violence and have
constrained their ability to formulate sexual desire outside of traditional pat-
terns of male dominance.35 As such, their desires are deformed.36
We see this in The Piano Teacher. Erika is unable to actualize sexual
fulfillment except through representations or enactments of male sexual
domination over females. She visits peep shows where she witnesses
images of traditional heterosexual pornography with men controlling, in
rough and violent ways, sex acts (typically penetration) with women.37 We
learn that Erika views all sexual interaction as women screaming while men
bang into them, and that this is the only way that women can communicate
their sexual pleasure.38 For Erika, “pain is a variety of pleasure,” making
her only too willing to “cross the border to her own murder” because she
has learned that female sexual pleasure is realized through submission to
male control and the infliction of pain.39
In her letter to Klemmer, Erika details the submission she would like to
experience:
Her most haunting wish—the adored Herr Klemmer reads—is for
you to punish me. She would like Klemmer as a punishment. And
in such a way that he ties her up with the ropes I’ve collected, and
also the leather straps and even the chains! Hogtie her, bind her
up as thoroughly as he can—solidly, intensely, artfully, cruelly,

30
See, e.g., Cossman, supra note 22, at 868. R
31
See generally AGAINST SADOMASOCHISM, supra note 12. R
32
Hopkins, supra note 9, at 119. R
33
Cossman, supra note 22, at 868. R
34
J. Nichols et al., Is Sadomasochism Feminist?: A Critique of the Samois Position,
in Linden et al., supra note 12, at 139. R
35
Id. at 139–41.
36
Erika prefers hardcore porn houses to soft core ones because she finds it more
authentic, where the “shabby, frazzled amateur actors work a lot harder” and she feels
that “a slum contains more hope for shaping pain, decorating pain.” JELINEK, supra note
11, at 107. R
37
Id. at 106–07.
38
Id. at 107.
39
Id.
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2007] Feminist Responses to S/M and The Piano Teacher 433

tormentingly, cunningly. He should bore his knees into her abdo-

men, if you’ll be so kind.40
A little later in the letter, Erika tells Klemmer what she wants done if she
disobeys him:
In case you witness a transgression on my part (she advises Walter
Klemmer), please hit me, with the back of your hand too, slap my
face when we’re alone. Ask me why I don’t complain to my
mother or hit you back. In any case, tell me these things so I can
feel my helplessness properly. Treat me just as I’ve told you to in
writing. . . . Please sit down on my face with all your weight and
crush my head between your thighs so solidly that I can’t
move. . . . Threaten to leave me in that position for hours and
hours if I don’t carry out your assignments properly. You can let
me pine away for hours with my face under you . . . . You can
easily guess the greater delights that I wish for. . . . Slap me hard,
over and over. Ignore my protests. Ignore my cries. Ignore my
begging.41
Klemmer is incredulous at first of what he is reading.
Does she really mean what it says here: that she’s supposed to stick
her tongue in his behind when he mounts her? Klemmer is skepti-
cal about what he reads, he blames it on the poor lighting. A wo-
man who plays Chopin so marvelously can’t possibly mean that.
Yet that is precisely what the woman desires, because she has
never done anything but play Chopin and Brahms. Now she
pleads for rape, which she pictures more as a steady announcement
of rape. When I can’t stir or budge, please talk to me about rape,
nothing could save me from it.42
That the height of Erika’s sexual desire is to be gagged, bound, slapped, and
raped is, the argument goes, emblematic of the mythical social expectation
that women are always already available and desirous of objectification, sub-
mission, and male sexual aggression and actually enjoy being dominated and
brutalized.43 Thus, S/M becomes no more a mark of women’s liberation than
the latest domestic violence statistic. The fact that women are sometimes
sadists as the aggressors in the relationship does not erase the fact that they
are most frequently victimized by physical and psychological torture at the

40
Id. at 215.
41
Id. at 224–25.
42
Id. at 226.
43
Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda
for Theory, in THE SIGNS READER: WOMEN, GENDER & SCHOLARSHIP 227, 251–53 (Eliza-
beth Abel & Emily K. Abel eds., 1983); PAULA J. CAPLAN, THE MYTH OF WOMEN’S MAS-
OCHISM 1 (Univ. of Toronto Press 1993).
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434 Harvard Journal of Law & Gender [Vol. 30

hands of men.44 Far from subverting systemic sexism, S/M leaves it neatly
intact,45 as Erika’s adoption of eroticized violence attests.
That Erika at times evinces a desire not to be hurt, and harbors hopes
that despite her sexual fantasies and violent requests Klemmer will refuse to
physically hurt her, does not negate the dominance feminist theory. In one
passage, Jelinek writes: “Please don’t hurt me; that’s what’s written illegibly
between the lines . . . The letter is the fruit of Erika’s years of silent reflec-
tion. She now hopes that love will prevent anything from occurring. She
will insist on it, but an amorous reply will make up for his refusal. Love
excuses and forgives, that’s what Erika thinks.”46 Erika has adopted the
gendered ideal of romantic love along with the sexual objectification of wo-
men, twin concepts in highly gendered patterns of sexual objectification.47
That she selects a path of pain and humiliation to obtain what she really
covets—love—is indicative, the argument proceeds, that a masochistic iden-
tity is not truly what she desires for herself, but is compelled to adopt ac-
cording to dominant cultural narratives linking female desirability to
submission and violence. The giving of herself in a submissive form to
Klemmer is an attempt to recuperate the mark of desirability that society
takes away from professionally successful women.48
Proponents of S/M contest this reading of the practice. Instead, they
offer interpretations of S/M that stress its empowering potential for wo-
men.49 A primary objective is that the singular reading of The Piano Teacher
eclipses the agency Erika is able to express. Consider that Erika largely
lives a life devoted to music, but tightly confined by the desires of her
mother. In many areas of the text, we are reminded of the mother’s sense of

44
See Cynthia Chewter, Violence Against Women and Children: Some Legal Issues,
20 CAN. J. FAM. L. 99, 99–102 (providing statistics about the prevalence of violence
against women by their spouses in Canada, illustrating, for example, that women are
eight times more likely to be victimized by a spouse than men).
45
Hopkins, supra note 9, at 120. R
46
JELINEK, supra note 11, at 226. R
47
See Louise Vincent & Caryn McEwen, Sleeping with Beauty: Romantic Love, Sex,
Power and the Construction of Femininity in Heterosexual Young Adult Relationships, 20
ASIAN WOMEN 1–26 (2005) (providing a discussion of Romantic Love as deeply informed
by traditional gender roles oppressive to women).
48
Indeed, Jelinek makes the same point about her own life in an interview she gave
after she won the Nobel Prize for Literature. She states: “A woman who becomes fa-
mous through her work reduces her erotic value. A woman is permitted to chat or babble,
but speaking in public with authority is still the greatest transgression.” The interviewer
then states, “You’re suggesting that your achievements, like winning the Nobel Prize in
Literature, detract from your overall appeal.” Jelinek gives the following reply: “Cer-
tainly! A woman’s artistic output makes her monstrous to men if she does not know to
make herself small at the same time and present herself as a commodity. At best people
are afraid of her.” Deborah Solomon, A Gloom of Her Own, N.Y. TIMES, Nov. 21, 2004,
§ 6, at 31.
49
Kelly McDowell, Unleashing the Feminine Unconscious: Female Oedipal Desires
and Lesbian Sadomasochism in Mulholland Dr., 38:6 J. POPULAR CULTURE 1037,
1038–39 (2005) (reading the lesbian S/M in the film Mullholland Dr. as a new way to
consider female psychosexual relations).
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2007] Feminist Responses to S/M and The Piano Teacher 435

entitlement to Erika. For example, when the mother is first awakened to the
sounds of Klemmer thrashing about her apartment and the realization that he
is also perhaps thrashing around her daughter, her response is indignation:
“If anyone is going to slap Erika, it’ll be Mother.”50 After the second slap
on Erika’s cheek, Mother “is forced to realize that her daughter is being
degraded into something like a piece of athletic gear. Mother indignantly
points out that he is damaging someone else’s property, namely hers!”51
Moments later as she listens to the beating behind the door, she thinks that
“[s]he finally twisted the child into shape, and now someone else is twisting
her again. Mother is raging.”52 Indeed, Erika’s mother is never given a
name in the novel; she is simply referred to as Mother, a status symbol of the
matriarchal position of authority she has over Erika.53
Liberation from her mother’s constant scrutiny, interrogation, expecta-
tion, and repression is thus no small feat for Erika. By curbing the relation-
ship with her mother through her own lover, Erika finds a partial route out of
the contained existence she has led thus far. Instead of sneaking off to peep
shows in obscure parts of town,54 or spying on copulating couples under the
brush in public recreation areas at night as she did in the past,55 the S/M
relationship for Erika is a vehicle to express the sexuality that she has until
now kept constrained to her growing yet unused box of bondage equipment,
never knowing sexual pleasure.56 That this box is also classifiable as a tor-
ture tool should not lead the reader to dismiss the possibility that Erika’s
relationship with Klemmer is empowering.57 It cannot only be an idealized
version of egalitarian sexual unions that meets feminist standards for sexual
activity. As Jane Gallop has noted, “[t]he norm for feminist sexuality is an
egalitarian relation of tenderness and caring where each partner is consid-
ered as a ‘whole person’ rather than as an object of sexual fantasy.”58 This
norm, constructed as a response to oppressive heterosexist relationships, has
its own oppressive moralizing force that “condemns pleasure that is not
subordinate to it.”59 Erika’s complicated existence indicates that it would be
too dismissive to immediately regard consensual rough or painful sex as
unfeminist. Through Erika, Jelinek’s novel demonstrates that it is critical
that the law redress its liberal moorings and be alert to the fraught conditions
informing women’s choices and consent and when such conditions amount
to coercion, duress, or unconscionable exploitation. Beyond that, Erika’s

50
JELINEK, supra note 11, at 264. R
51
Id.
52
Id. at 267.
53
Similarly, in the film by Michael Haneke based upon Jelinek’s novel, Mother has
no other name. LA PIANISTE (Kino Int’l 2001).
54
JELINEK, supra note 11, at 106–07. R
55
Id. at 141–49.
56
Id. at 249–50.
57
Id. at 222.
58
JANE GALLOP, THINKING THROUGH THE BODY 107 (1988).
59
Id. at 108.
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436 Harvard Journal of Law & Gender [Vol. 30

story shows how it is also important to recognize women as agents bargain-

ing with or otherwise navigating oppressive structures.60
An analytical departure point that stigmatizes S/M is further troubling
for some feminists because it reinforces the feminist concentration on the
negative aspects of women’s sexual lives instead of emphasizing the posi-
tive.61 Katherine Franke has argued that “legal feminists,” more so than
feminist thought in general, have ascribed negative, even dangerous, as-
sociations to sex.62 According to Franke, this is the cumulative effect of
feminist legal reform that has focused largely on the dangers and criminal-
ization of sexual violence against women without an attendant affirmation of
the pleasures of sex and the desirability of sexual subcultures.63 This imbal-
ance is detrimental to the interests of women because it is paternalistic, remi-
niscent of Victorian anti-sex attitudes denying female sexuality, and
reinforces social sexual surveillance.64 Moreover, Franke argues, conceptu-
alizing sex singularly as a site of peril that requires constant control funda-
mentally misses the intimate relation between danger and desire:
Desire is not subject to cleaning up, to being purged of its nasty,
messy, perilous dimensions, full of contradictions and the com-
plexities of simultaneous longing and denial. It is precisely the
proximity to danger, the lure of prohibition, the seamy side of
shame that creates the heat that draws us toward our desires, and
that makes desire and pleasure, not a contradiction of or haven
from danger, but rather a close relation. These aspects of desire
have been marginalized, if not vanquished, from feminist legal
theorizing about women’s sexuality.65

60
Uma Narayan, Minds of Their Own: Choices, Autonomy, Cultural Practices, and
Other Women, in A MIND OF ONE’S OWN: FEMINIST ESSAYS ON REASON AND OBJECTIVITY
418, 418–32 (Louise M. Antony & Charlotte E. Witt eds., 2002) (discussing how women
retain active agency as they negotiate with patriarchal structures).
61
For a sex radical feminist reading of the film The Secretary, see Cossman, supra
note 22, at 868–69. R
62
Katherine Franke, Theorizing Yes: An Essay on Feminism, Law and Desire, 101
COLUM. L. REV. 181, 200 (2001).
63
Franke argues that feminist legal theorists have focused on harnessing law to
“tame” sexuality and sex instead of using law to support the positive aspects of sex. She
provides examples of how law could be used to support positive sexuality, including the
establishment of a “right to sex.” Franke also suggests that tort law could recognize the
value of female sexual pleasure by allowing courts to view female sexual dysfunction
resulting from another’s tortious act as a real and tangible loss. Id. at 200–01, 206, 208.
Franke is not alone in her concerns about the sexualized impact of legal feminism. Janet
Halley extends the critique further to argue that critical theory, especially queer theory,
should “take a break” from feminism “as it is practiced and performed in the United
States today.” Brenda Cossman et al., Gender, Sexuality, and Power: Is Feminist Theory
Enough?, 12 COLUM. J. GENDER & L. 601, 604, 610 (2003).
64
Franke, supra note 62, at 206. R
65
Id. at 207.
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2007] Feminist Responses to S/M and The Piano Teacher 437

To dismiss Erika’s fascination with the connections between domination,

power, and sexual pleasure would be to deny her efforts at constituting her-
self as a sexual subject, however fraught her conditions of agency may be in
terms of wanting to escape her mother. It would also, according to Franke,
eclipse the very elements that give sexual energy its purchase.
The value Franke ascribes to female sexual desire associated with
power and danger and not just reproduction or motherhood also points to a
third redeeming feminist feature of S/M: S/M’s potential to subvert tradi-
tional gender roles.66 When women play the dominating sadists, in control
of the sensations experienced by a male masochist, the cultural norm of the
male as the sexual aggressor is contested. But S/M is able to retain a subver-
sive dimension even where women are masochists.67 This is so for two rea-
sons. First, even where women are masochists, S/M dramatically opposes
the ideal of romantic love and norm of white female heterosexual innocence
and white heterosexuality grounding masculine and feminine identities
alike.68 Related to this point is the proclivity among masochists, such as
Erika, to design and thus control S/M encounters through a written contract
(here, her letter).69 Second, S/M proponents argue that it is the masochists
who are really in control of an S/M situation since they are able to delineate
the precise acts they wish to experience, no more and no less.70 Implicit in
this interpretation is distinguishing between surrender and submission.71 If
masochists were really so subordinated, the argument concludes, the dy-

66
Judith Butler, Gender as Performance: An Interview with Judith Butler, 67 RADI-
CAL PHIL. 32 (1994). Drawing from postmodernist and especially Foucauldian insights,
Butler encourages us to pursue opportunities to reinvent our gender and disrupt the pre-
sumption or truth of its fixed essence. Id.
67
See, e.g., JESSICA BENJAMIN, THE BONDS OF LOVE: PSYCHOANALYSIS, FEMINISM, AND
THE PROBLEM OF DOMINATION 55–61 (1988) (analyzing Pauline Réage’s Story of O to
explore the concept that a woman may submit as a masochist not solely out of fear, but
also because of her own desires).
68
Terry Hoople, Conflicting Visions: SM, Feminism, and the Law—A Problem of
Representation, 11 CAN J.L. & SOC. 177, 194 (1996); Selena Whang, The White Hetero-
sexual Couple: On Masculinity, Sadism and Racialized Lesbian Desire, 24 C. LITERA-
TURE 116, 117–18 (1997). Despite the historically tight associations of sex with race in
economics of Empire that violently made racialized female bodies available to white men
and anxiously and violently kept racialized male bodies away from “innocent” white
female ones, analyses of racial economies of desire with respect to sadomasochism are
infrequent. Cheryl Hanna, Sex is Not a Sport: Consent and Violence in Criminal Law, 42
B.C. L. REV. 239, 286 (2001). I do not wish to add to this erasure here or suggest that the
power dynamics are stable or uniform across all possible heterosexual couplings or that
these are merely simply reversed when sexual positions change. The inflections of race,
as well as other force fields of difference, are important to understanding the full mean-
ings of any S/M encounter. On the connections generally between sexuality and race in
empire-building, see ANNE MCCLINTOCK, IMPERIAL LEATHER: RACE, GENDER, AND SEXU-
ALITY IN THE COLONIAL CONTEST (1996), and in contemporary dating logics, see B.
HOOKS, BLACK LOOKS: RACE AND REPRESENTATION 21–27 (1992). On the construction of
innocence with respect to white women, see E. SPELMAN, INESSENTIAL WOMEN: PROBLEMS
OF EXCLUSION IN FEMINIST THOUGHT (1989).
69
David Kirby, Mr. Post-Everything, 66 VA. Q. REV. 759, 761 (1990).
70
Pa, supra note 29; Hoople, supra note 68, at 208–15. R
71
Caplan, supra note 43, at 159. R
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438 Harvard Journal of Law & Gender [Vol. 30

namic phenomenon of “switching” (a masochist becoming a sadist) or ex-

tensive consultation and contracting beforehand and respect of boundaries
during the power play would not mark S/M exchanges.72 Rather, the maso-
chist’s intentions may be understood as a complete and active surrender to
the activity and the sensations and effects it produces for the surrendered
(rather than submissive or pornographic) subject.73 Gilles Deleuze extends
this insight by querying whether a sadist and a masochist are truly comple-
mentary, highlighting the control the masochist wishes to exact over the sad-
ist as case for conflict rather than harmony between two subjects each
desiring control and domination.74
These last two arguments regarding S/M’s empowerment potential to
contradict typical heterosexual gendered scripts are also borne out in The
Piano Teacher. The inability of Erika to perform the traditional demure and
gently affectionate sexual role expected of women of her background is what
puzzles and enrages Klemmer. As he begins beating Erika, he tells her that
“[t]here’s nothing worse than a woman who wants to rewrite Creation.”75
His disdain for Erika’s vision for their relationship leads to the realization
that not only is she rewriting the romantic love narrative, but that she is also
trying to usurp his position as the man, a position for Klemmer inherently
tied to the role of the sexual aggressor.76 Erika has denied him his manly
prerogative, even when bound, gagged, and raped, because she has asked for
it all (in her letter). Erika’s desire to set out the boundaries and details of
their sexual encounters infuriates Klemmer because she is giving the or-
ders.77 This rewriting of gender roles is the justification Klemmer seizes to
inflict the beating. Jelinek writes:
Walter Klemmer whimsically kicks her in the ribs as she lies on
the floor. He doses the violence out so carefully that nothing
breaks. He has always controlled his own body, at least. Walter
Klemmer steps across Erika, a threshold, out into freedom. She
brought this on by trying to control him and his desires. This is
what she gets.78

72
Langdridge & Butt, supra note 18, at 65. R
73
Caplan, supra note 43, at 159, 161; Kirby, supra note 69, at 760 (discussing R
Deleuze’s work in MASOCHISM, supra note 12, and noting that the “masochist’s activity is R
concealed” rather than passive and emphasizes the “distinction between pornography,
which is descriptive (literally ‘graphic’), and pornology, or discourse that is logocentric
rather than pictorial” like S/M and the written contracts which masochists craft).
74
DELEUZE, supra note 12, at 36–37. R
75
JELINEK, supra note 11, at 263. R
76
Klemmer’s vision of love includes violence against women. We see this, for exam-
ple, when he “quips that my hand might take a swipe at you now and then, I won’t
dispute it, but too much never does much good.” Id. at 219.
77
“Klemmer finds it all so funny that he slaps his thighs: She wants to give him
orders!” Id. at 216–17.
78
Id. at 269.
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2007] Feminist Responses to S/M and The Piano Teacher 439

Klemmer’s response complicates the meaning of power and autonomy in S/

M, with respect to who wields it and who does not. As long as the trajectory
of their courtship resembled all of his previous sexual conquests, Klemmer
was pleased. At the reading of the letter, instead of seeing his masculinity
fortified as the hyper-sexual aggressor, Klemmer perceives Erika’s maso-
chistic request as undermining his power to define the parameters of their
sexual encounters. Indeed, in an interview on her novel, Jelinek states that
“[t]he right to choose a man and also to dictate how he tortures her—that is,
domination in submission—this she is not permitted. Indeed for a woman
almost everything beyond the bearing and raising of children is a
presumption.”79
For Klemmer, then, the letter represents an inexcusable encroachment
on his idealized masculinity. Once aware that she has transgressed some
unspeakable norm, Erika tries to placate Klemmer by demonstrating her
ability to perform the femininity expected of her. After he has threatened his
way in, Erika tries to retract the letter:
She swears she would rather forget all about my stupid letter, but
what’s done is done. She had a mishap, but she’ll make up for it,
dearest. Why do we need letters? After all, we know everything
there is to know about each other. We reside in each other’s most
intimate thoughts! And our thoughts nourish us constantly with
their honey.80
When her words fail to keep Klemmer from beating her, she tries to cajole
him again. But her efforts are too little too late.
But that’s enough, darling! Let’s start with something better! She
would like to see pain eliminated from the repertoire of love ges-
tures. Now she’s feeling it personally, physically, and she begs to
return to the normal version of love. Let us approach the other
with understanding. Walter Klemmer overcomes the woman vio-
lently, even though she says she’s changed her mind. Please don’t
hit me. My ideal is shared feelings again. Erika revises her opin-
ions too late. She expresses the opinion that she, as a woman,
needs lots of warmth and affection.81
I am not suggesting that Erika’s attempts to “go against Creation” and actu-
ally “trouble” gender in Butlerian terms are actually benefiting her in this
instance! But the subversive nature of the script Erika asked for, “on her
own terms,” is precisely what irks, confounds, and then enrages Klemmer
who then beats Erika. Had Erika’s desires followed the normalized hetero-

79
Interview by Marie Rivière with Elfriede Jelinek (trans. Robert Gray), The Piano
Teacher Interviews, http://www.kino.com/pianoteacher/piano_intfr.html (last visited
April 26, 2007) [hereinafter Jelinek Interview].
80
JELINEK, supra note 11, at 262. R
81
Id. at 266.
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440 Harvard Journal of Law & Gender [Vol. 30

sexual romantic script, with her offering tender emotions and embraces,82
instead of viewing Erika as a monstrous entity,83 then Klemmer would have
reciprocated the love Erika tried to express, albeit on his terms of heterosex-
ual interactions and acceptable levels of male violence. Instead, her gender
transgressions result in Erika’s rape and eventually her death. As Jelinek
herself comments in an interview about the novel and the film based on it,
“we are dealing here with a phallic woman who appropriates the male right
to watch, and who therefore pays for it with her life. . . .”84 That the ability
of S/M to subvert gender hierarchies through (gender) role-play, even with
the female as the masochist,85 resulted in such violence does not detract from
its transgressive status but confirms it. The gender transgression produced
by S/M has “empowered” Erika, but it is the response to the transgression
rather than the transgression itself that has resulted in Erika’s rape and death.
That Erika’s choice in leading her life, similar to many women who step
outside of tightly policed gender roles, led to her death does not make ex-
pression of agency any less feminist.
In short, delving into the narrative of The Piano Teacher offers a ripe
opportunity to concretize the ambivalence in feminist theorizing around S/
M. Both oppressive and empowering dimensions to Erika’s subjective expe-
rience are discernible. The next Part explores how the novel reveals the
similar feminist tension in how to conceptualize S/M. Yet, here, as we shall
see, the novel provides proof of the sagacity of treating S/M as violence
rather than sex.

IV. SEX VERSUS VIOLENCE

Sexual debates have been characterized by anti-repression (i.e., pro-sex

or “sex radical” feminist) arguments on the one hand and anti-oppression
(anti-sex or “dominance” feminist) arguments on the other,86 although we
have begun to see less dichotomous and more complicated readings.87
Nonetheless, as this Part reveals, a binary still inheres in the debate sur-
rounding the proper conceptualization of sex and consent to legitimate S/M;
a primary disagreement surrounding the essence of S/M remains. Is S/M sex
or is it violence?88

82
Id. at 224.
83
Id.
84
Jelinek Interview, supra note 79. R
85
See generally CARL HOLMBERG, SEXUALITIES AND POPULAR CULTURE (1998) (ex-
ploring how popular culture influences our perception and communication of sexuality in
everyday life).
86
See Abrams, supra note 19, at 308–14. R
87
See Hanna, supra note 68; Pa, supra note 29. R
88
See discussion infra Part IV.3.
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2007] Feminist Responses to S/M and The Piano Teacher 441

A. A Shift in the S/M Sex Wars?

With respect to S/M, the manifestation of the sex wars in the United
States reached a notorious moment at the Barnard Conference on Sexuality,
held in 1982, when some dominance feminists opposed the panel participa-
tion of women from SAMOIS, a group in favor of S/M.89 Since that event,
feminist theorizing, including activism, on the meaning of S/M has largely
followed a dichotomous approach to the issue and thus the typical trajectory
of the sex wars that Chancer and Abrams describe.90 Two recent law review
articles on S/M are the latest example of this pattern, but what is interesting
about this latest exchange in the legal literature is the linchpin of the dichot-
omy.91 In earlier S/M debates, labeling one side as “pro-sex” made sense
since the other side—the “dominance” feminists—concentrated on the dan-
gers of either heterosexual or lesbian sexual expression that appeared to
model male power (such as sadomasochism).92 However, the accuracy of
this polarized nomenclature may now be declining.93
A recent academic feminist legal articulation as exemplified through
the works of Cheryl Hanna and Monica Pa, suggests that the debate over S/
M contains more points of agreement than disagreement. Hanna argues in
favor of an active approach to the regulation of sadomasochism.94 Yet, it
would be unfair to classify her as an “anti-sex” or a “dominance” feminist.
Indeed, Hanna explicitly affirms the pleasure of sexual experiences, includ-
ing the pleasure derived from S/M by its practitioners, and she recognizes
the moral agency of women even within a world heavily affected by gender
traditions and other social forces. She is not, as sex radicals have argued of
their opponents in the past, intolerant of “minority” sexual practices or una-
ware of the need to theorize possibilities for female pleasure instead of just

89
Chancer, supra note 20, at 83. Rifts in feminist organizations, including even les- R
bian-only organizations, are not exclusive to the United States. For an account of the
tensions around S/M and feminist organizing in England, see generally Ardill &
O’Sullivan, supra note 28. R
90
Lewis & Adler, supra note 9; Hopkins, supra note 9; Hoople, supra note 68. With R
respect to activism, the National Organization for Women (“NOW”) passed a resolution
in 1971 that denounced S/M as a feminist practice, which stayed in place until 1999.
Susan Wright, Discrimination of SM-Identified Individuals, 50 J. HOMOSEXUALITY 217,
219, 220, 223 (2006).
91
Hanna, supra note 68; Pa, supra note 29. R
92
Ardill & O’Sullivan, supra note 28, at 110. R
93
This is not to suggest that the polarized portrayal of feminism as dominance femi-
nism and queer studies as sex radical was ever accurate. Brenda Cossman notes how the
representation of the sex wars eclipsed the diversity within feminism and the multiple
interpretations of sex and sexuality that feminists had generated. She also explains how
this polar view of feminism eventually displaced the sex wars from occurring within
feminism to occurring between feminism and queer theory. Feminism was cast as en-
tirely in favor of sexual legal regulation while queer studies was privileged as the reposi-
tory of liberatory theorizing on sexual pluralism and sexual pleasure. Cossman, supra
note 22, at 851–52. R
94
Hanna, supra note 68, at 246. R
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442 Harvard Journal of Law & Gender [Vol. 30

focusing on the dangers of sex.95 Similarly, unlike her sex radical predeces-
sors from the 1980s, Pa does not prioritize the pursuit of sexual pleasure
over all other considerations nor does she constrict her thesis to attestations
of the complexities and contradictions of women’s sexual subjectivities.96 Pa
recognizes the need for some legal limits on the pursuit of pleasure through
pain, and she does not advocate for decriminalizing consensual S/M that
results in grievous bodily injury or death.97
A comparison of the works of Hanna and Pa suggests that the debate
over S/M may now contain more agreement than disagreement. Notably,
Hanna’s pro-S/M regulation argument explicitly rejects denunciation of S/M
sexual experiences on a moral ground.98 Rather than disputing whether cer-
tain forms of sex are more about pleasure or danger in order to answer the
dilemma of whether to participate in the contested practice, the primary disa-
greement in this legal exchange turns on defining “sex” and defining sexual
sadomasochism.99 It may be premature to view this recent exchange be-
tween Hanna and Pa as a movement toward agreement in the feminist legal
debate given that legal literature in general on S/M is scant and a wider
sample of feminist legal writing on this topic is not available.100 Yet, the
Hanna-Pa exchange is illustrative of a current moment of this debate and for
the purposes of determining how the law should respond to S/M, the shift
toward agreement is important to note.
Comparing this current exchange with the second wave “sex wars” de-
scribed by Abrams and Chancer suggests that the focus of the feminist legal
S/M debate has shifted.101 Currently, both sides affirm the pleasures of sex-
ual experiences, the nuances of sexuality, and the problematic totalizing ten-
dencies of dominance feminism as well as the naı̈vet é in celebrating all
forms of S/M as resistance or empowerment. However, deep-seated disa-
greement remains. The fundamental point of incongruence arises from the
conceptualization of sexual S/M: Pa conceptualizes S/M as sex while Hanna
maintains that it is violence.102
The characterization is significant because Canadian law treats sexual
(and other) assaults differently when there is no additional violence, i.e.,
bodily harm, involved. When the actus reus at issue is, for example, the

95
Id. at 246, 281.
96
Pa, supra note 29. R
97
Id. at 81.
98
See Hanna, supra note 68, at 246–47, 281, 287. R
99
Hanna, supra note 68; Pa, supra note 29. R
100
I would also be careful to qualify the scope of this potential shift toward agree-
ment—to value S/M as a source of pleasure but nonetheless treat it legally as violence—
since it is still not representative of the entirety of the feminist literature (legal and non-
legal) on S/M where S/M is not universally affirmed. For a recent article that makes a
compelling argument for why S/M is not a desirable feminist practice, irrespective of
how the law may treat it, see Susan Hawthorne, Ancient Hatred and Its Contemporary
Manifestation: The Torture of Lesbians, 4 J. HATE STUD. 33 (2005–06).
101
Abrams, supra note 19, at 307–14; Chancer, supra note 20, at 78–79. R
102
Pa, supra note 29, at 77–79; Hanna, supra note 68, at 240, 290. R
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sexual penetration by a man of a woman, assuming the requisite mens rea, it

is the lack of consent from the woman that converts a non-criminal act into a
criminal legal action.103 The same goes for non-sexual touching: consent
operates as a defense to what would otherwise be an assault.104 Where the
person acted upon consents to these acts, no illegality occurs. The situation
changes once the level of harm escalates and the law’s categorization shifts
from sex to violence. Where the same acts involve bodily harm, defined as
“a hurt or injury” to the person acted upon “that interferes with her health or
comfort and is more than transient or trifling in nature,”105 the consent of
that person is immaterial. This is so even though section 265 of the Cana-
dian Criminal Code, which establishes and defines the offense of assault,
including sexual assaults and assaults causing bodily harm and aggravated
sexual assault, states that “[a] person commits an assault when (a) without
the consent of another person, he applies force intentionally to that other
person, directly or indirectly.”106 The Supreme Court of Canada affirmed
this arguably counterintuitive reading of the provision with respect to the
relevance of consent to an assault causing bodily harm in the leading deci-
sion of R. v. Jobidon.107 In deciding whether to vitiate the consent of the
victim who agrees to a fist fight, the Court held that intending and causing
bodily harm is illegal and the victim’s consent to the bodily harm is irrele-
vant.108 Therefore, once intended bodily harm occurs, any factual consent
that exists is immaterial at law.109

103
Technically, consent is part of the actus reus of the offense, but jurists commonly
refer to it as a defense. For example, as Gonthier J., writing for the majority of the
Supreme Court of Canada in R. v. Jobidon, [1991] 2 S.C.R. 714 notes:
Whether consent is formally categorized as part of the actus reus of the offence,
or as a defence, its essential function remains unaltered—if consent is proved, or
if absence of consent is not proved, an individual accused of assault will generally
be able to rely on the consent of the complainant to bar a conviction. He will be
able to lean on the consent as a defence to liability. This basic reality has been
widely recognized. English and Canadian courts widely refer to consent as being
in the nature of a defence. Leading treatises on criminal law conceive it this way.
Id. at 743 (emphasis added). This suggests that judges, academics, lawyers, and lay peo-
ple tend to conceptualize consent as particularly relevant to the defenses rather than the
technical aspects of the actus reus in cases dealing with both sexual or non-sexual as-
sault. However, whether we turn our minds to the issue of consent while considering the
actus reus of the offense or any potential applicable defenses is analytically immaterial to
this discussion. The focal point in my analysis of S/M turns on the question of whether
we can (or should) view consent as material to a conviction when bodily harm has been
suffered (or enjoyed).
104
Id.
105
Canada Criminal Code, R.S.C., ch. C 46 § 267(2) (1985).
106
Canada Criminal Code, R.S.C., ch. C 46 § 265(1)(a) (1985) (emphasis added).
Subsection 265(2) specifies that section 265 “applies to all forms of assault, including
sexual assault, sexual assault with a weapon, threats to a third party or causing bodily
harm and aggravated sexual assault.” Id. at s. 265(2).
107
R. v. Jobidon, [1991] 2 S.C.R. 714.
108
Id.
109
Id. While not central to this discussion, it is useful to note that both elements—
intent and actual bodily harm—must exist for consent to be vitiated. This is different
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444 Harvard Journal of Law & Gender [Vol. 30

In the United States, courts have come to similar conclusions. The first
reported instance dealing with S/M and the defense of consent arose in Peo-
ple v. Samuels.110 In this case, a California Court of Appeal rejected the
defendant’s claim that consent vitiated the offense of aggravated assault. In
coming to this conclusion, the court held that “[i]t is a matter of common
knowledge that a normal person in full possession of his mental faculties
does not freely consent to the use, upon himself, of force likely to produce
great bodily injury.”111 The Supreme Judicial Court of Massachusetts reiter-
ated the Samuels rationale more recently, holding that consensual S/M does
not provide a defense to the crime of assault with a weapon.112 In clarifying
the relationship between sex, violence, and consent in the S/M context, the
court stated:
The fact that violence may be related to sexual activity . . . does
not prevent the State from protecting its citizens against physical
harm. The invalidity of the victim’s consent to a battery by means
of a dangerous weapon would be the same, however, whether or
not the battery was related to sexual activity.113
However, not all courts have followed this reasoning on consent.114
Exceptions to this principle of invalidating victim’s consent to battery
may arise where the harmful activity serves some socially useful purpose.
English and Canadian common law have recognized sporting activities,
body piercings, the administration of tattoos, surgical interventions, and the
performance of stunts as socially useful activities.115 Fistfights or brawls
serve as an example of a socially useless activity in Canada.116 But even
where the law permits individuals to consent to bodily harm because of its
positive appraisal of the activity engaged in, the law will construe the scope
of the consent as encompassing only that bodily injury which it regards as
normally incidental to the overall socially useful activity. This explains, to
take one recent example, why Vancouver Canuck player Todd Bertuzzi
could not “sucker-punch” Steve Moore as he did in early March 2004 with

than the situation where bodily harm is intended, but none actually results. The Court
recently clarified the application of Jobidon’s holding to this latter situation in R. v. Paice,
[2005] 1 S.C.R. 339. The majority in Paice held that consent would be vitiated only
where bodily harm was intended and actually resulted, but would stand to bar a convic-
tion where no actual harm resulted although it was intended. Id. For a fuller discussion,
see GERRY FERGUSON & STEVE COUGHLAN, ANNUAL REVIEW OF CRIMINAL LAW 2005
25–27 (2006). I am grateful to my colleague Gerry Ferguson for drawing my attention to
this case and for discussions on attendant doctrinal issues relating to consent.
110
People v. Samuels, 58 Cal. Rptr. 439 (Cal. Ct. App. 1967). For a case comment,
see Assault and Battery, 81 HARV. L. REV. 1339, 1339–42 (1968).
111
Samuels, 58 Cal. Rptr. at 513–14.
112
Commonwealth v. Appleby, 402 N.E.2d 1051 (Mass. 1980).
113
Id. at 1060.
114
See, for example, the discussion of People v. Jovanovic, 700 N.Y.S.2d 156,
168–69 (N.Y. App. Div. 1999), infra note 139 and accompanying text. R
115
R. v. Welch, [1995] 101 C.C.C. (3d) 216, 235, 238.
116
Id. at 227.
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2007] Feminist Responses to S/M and The Piano Teacher 445

impunity.117 Even though hockey is recognized as a socially useful activity,

and so an exceptional realm where the law will recognize an individual’s
consent to bodily harm as relevant to the offense, the law does not sanction
harm inflicted beyond the bounds of what is reasonable to expect in partici-
pating in the activity. Being punched in the face against the boards is a
common type of bodily harm that all consenting National Hockey League
players should expect as part of the game. Being blindsided or gouged in the
eye with a hockey stick are not.
The Canadian Court has declined to include S/M in its list of socially
useful activities where consent to bodily harm will be recognized.118 R v.
Welch is the most authoritative decision with respect to S/M.119 In Welch, the
Ontario Court of Appeal considered whether the accused could be exoner-
ated from the charge of sexual assault causing bodily harm because the vic-
tim, a woman, had consented to it.120 Welch was accused of tying up the
victim on a bed, beating her breasts with a belt, beating her buttocks with a
spatula, penetrating her with his penis, and pressing a pillow to muffle her
screams.121 The court found that the complainant suffered “bruising to the
right breast, abdomen, left calf, right bicep and buttocks,” vaginal and rectal
bleeding, and welts.122 The court held that the injuries met the definition of
bodily harm in section 272 of the Criminal Code and that there was no evi-
dence to show that the victim did in fact consent to acts against her; in fact,
she denied consent.123 The court proceeded to deal with the facts even as-
suming consent to bodily harm existed to answer the accused’s submission
that the law should tolerate some harm over and above a non-trifling nature,
as long as serious harm did not result.124

117
Bertuzzi assaulted Moore through a blindsiding punch from behind on March 8,
2004 and was suspended from playing until August 8, 2005. Moore suffered broken
vertebrae in his neck, a concussion, and other injuries. See A Star Player Goes Offside,
CBC SPORTS ONLINE, Feb. 15, 2005, http://www.cbc.ca/sports/indepth/bertuzzi. The
combined effects of these injuries drove Moore’s lawyer to state that the future of
Moore’s hockey career was uncertain and, as of December 2005, Moore still could not
play hockey. See Hugh Adami, Maligned Bertuzzi Has ‘Paid the Price’: Bruising For-
ward Will Get His Shot at Redemption, NAT’L POST, Dec. 23, 2005, at B9.
118
R. v. Jobidon, [1991] 2 S.C.R. 714. Similarly, American courts have chosen not
to categorize S/M activities as socially desirable or “ordinary” behaviors. In People v.
Samuels, the court stated: “consent of the victim is not generally a defense to assault or
battery, except in a situation involving ordinary physical contact or blows incident to
sports such as football, boxing or wrestling.” People v. Samuels, 53 Cal. Rptr. 439, 447
(Cal. Ct. App. 1967).
119
Welch, [1995] 101 C.C.C. (3d) at 216.
120
Id.
121
Id. at 218–19.
122
Id. at 220.
123
Id. at 228.
124
Id. The appellant also advanced two other submissions, which the court dealt with
more summarily. The appellant contended “that consent should be a defense to any de-
gree of violence in a sexual context that is performed in private” and that “the extent of
the violence should not be an issue but rather the trier of facts should be required to
determine whether the degree of violence inflicted upon the recipient exceeded that to
which consent had been given.” Id. at 225. The court dispensed with both of these
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446 Harvard Journal of Law & Gender [Vol. 30

The Welch court then turned to deciding whether, for public policy rea-
sons, sexual S/M should qualify as the type of activity in which the com-
plainant’s consent matters if any bodily harm occurs.125 Canvassing the
principles from Jobidon, as well as English and American authorities, the
court concluded that it should not.126 The Welch court followed Jobidon to
the extent that it focused on the social utility of the activity (there, fisticuffs)
to determine whether S/M properly qualifies as an exception to the general
negation of consent in the presence of bodily harm.127 The court upheld the
distinction between socially useful violent activities, such as a boxing match,
and S/M, by first noting that “acts of sexual violence . . . were conspicu-
ously not included among (the) exceptions” noted in Jobidon.128 Thus, the
Welch court construed the majority in Jobidon as creating an exhaustive
rather than open list, even though the majority in Jobidon specifically stated
that its decision was relegated to the issue of fisticuffs and that no “sweep-
ing conclusion” resulted with respect to “all situations or activities in which
people willingly expose themselves to intentionally applied force.”129
The court’s rationale in Welch, however, moved beyond statutory inter-
pretation. Drawing from the majority decision in R v. Brown,130 an English
case concerning gay male S/M, the court accepted the distinction between
violent activities that have a larger cultural purpose and violent activities that
are pursued solely for the gratification of cruel and sadistic desires, whether
sexual or not.131 The court did not reach this decision lightly, indicating its
respect for the alternative conclusions reached by both the Canadian and
English Law Reform Commissions stating that consent should be relevant to
a conviction even in S/M assaults where serious and long-term injuries re-

submissions quickly. With respect to the first submission, the court held that “[p]ublic
policy should not sanction as a defense the consent to any degree of violence even though
committed in private, where such violence is likely to result in serious and permanent
bodily harm.” Id. In response to the second submission, the court classified it as reflec-
tive of the minority position articulated by Sopinka J. in Jobidon, and thus “obviously not
the law in Canada.” Id.
125
Id. at 238–39.
126
Id.
127
Id. at 237.
128
The full passage of Griffiths, J.A. states:
In my view . . . the message delivered by the majority in Jobidon is that the victim
cannot consent to the infliction of bodily harm upon himself or herself, as defined
by s. 267(2) of the Code, unless the accused is acting in the course of a generally
approved social purpose when inflicting the harm. Specifically, the majority in
Jobidon recognized that consent may be material to certain activities such as
rough sporting activities, medical treatment, social interventions, and ”daredevil
activities” performed by stuntmen, “in the creation of a socially liable cultural
product.” Acts of sexual violence, however, were conspicuously not included
among these exceptions.
Id. at 238.
129
R. v. Jobidon, [1991] 2 S.C.R. 714, 766.
130
R. v. Brown, [1994] A.C. 212, aff’g [1992] Q.B. 491 (Eng.).
131
Welch, 101 C.C.C. (3d) at 238, 239.
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2007] Feminist Responses to S/M and The Piano Teacher 447

sult.132 Nevertheless, Griffiths, J.A. in Welch was unable to endorse the Law
Reform recommendations:
While the circumstances of this case are not as distasteful as the
facts in the House of Lords decision of Brown, they are neverthe-
less disturbing. The sadistic sexual activity here involved bondage
(the tying of the victim’s hands and feet) and the intentional inflic-
tion of injury to the body and rectum of the complainant. The
consent of the complainant, assuming it was given, cannot detract
from the inherently degrading and dehumanizing nature of the
conduct. Although the law must recognize individual freedom and
autonomy, when the activity in question involves pursuing sexual
gratification by deliberately inflicting pain upon another that gives
rise to bodily harm, then the personal interest of the individuals
involved must yield to the more compelling societal interests that
are challenged by such behaviour.133
The court found S/M to be “inherently degrading and dehumanizing” be-
cause violence is the main pursuit rather than incidental in the performance
of S/M.134 This is the contrast the court draws with the socially useful identi-
fied activities in Jobidon (sporting activities and games).135
Carl Stychin has criticized this traditional common law distinction be-
tween violent activities (legal sports, tattooing, etc.), where the law will rec-
ognize consent when determining whether the actus reus is made out, and
violent activities for which it will not (S/M) because the law is reliant on
hegemonic norms of masculinity.136 He argues that the law supports and
enables activities (sports) regarded as proper “manly diversions” for the ex-
pression of aggression, while impugning those activities associated with ho-
mosexuality and regarded as threats to “normal” heterosexuality (S/M, and
in particular, gay S/M).137 To its credit, the court in Welch explicitly stated
that the exclusion of S/M from the protected group is not because S/M is the
pursuit of sexual desire whereas the other activities involve the satisfaction
of other human preferences.138 Instead, in worrying about the dehumanizing

132
Id. at 216, 238. The court noted that the UK Law Commission conducted a re-
view of Brown after extensive consultation to recommend “that the law be changed to
allow consent to be given to the intentional infliction and to the risk of injury, where the
injury sustained is not serious.” Id. at 235. This would only apply if the consenting
person is over the age of eighteen. For a detailed discussion of Brown, see Chris White,
The Spanner Trials and the Changing Law on Sadomasochism in the UK, 50 J. HOMOSEX-
UALITY 167 (2006).
133
Welch, 101 C.C.C. (3d) at 231.
134
Id. at 231.
135
R. v. Jobidon, [1991] 2 S.C.R. 714, 768.
136
Carl F. Stychin, Un(manly) Diversions: The Construction of the Homosexual Body
(Politic) in English Law, 32 OSGOODE HALL L.J. 503, 510, 515–16 (1994).
137
Id.
138
After quoting from Williams Wilson, Is Hurting People Wrong?, 5 J. SOC. WEL-
FARE & FAM. L. 388 (1992), Griffiths, J.A. summarizes its gist: “Quite simply, it is sug-
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448 Harvard Journal of Law & Gender [Vol. 30

message that a particular activity conveys, the decision invoked the final
reason mentioned in Jobidon—the sanctity of human life—as to why fisti-
cuffs was not an appropriate sphere into which to extend the legal impor-
tance of consent, and applied that to S/M.

B. Why S/M is “Violence”

It is clear that the court in Welch viewed S/M as violence first and
foremost. It is thus in agreement with Hanna’s position as to how to legally
categorize S/M. Both the court and Hanna would not introduce the rele-
vance of consent to S/M, defined as assaults involving bodily harm.139
Hanna is even more sensitive to critiques of Brown than the Welch court.140
She is responsive to Stychin’s concern of how the “social utility” category
has reproduced a normalizing discourse with respect to masculinity, but is
nevertheless wary of treating S/M sex like a sport.141 Hanna does not base
her objection to treating S/M like we treat hockey or football on a rigidly
defined morality or conservative ideas about sexual normalcy. She is not
interested in discouraging the overall pursuit of sexual pleasure through
pain. Rather, Hanna’s concern regarding the legal characterization of S/M—
as violence or sex—surfaces from a desire to protect the female individuals
who endure the physical pain, the masochists, from exploitation.142
This is a concern that the court in Welch shares, but Hanna elucidates
the point at greater length and with greater force. In her view, the irrele-
vance of consent to S/M protects the masochists by preventing legal actors,
as well as possibly coercive sadists, from dismissing assaults against stigma-
tized individuals (practitioners of S/M) as something that “they asked
for.”143 What is the likelihood, Hanna queries, that abused masochists will
report abusive treatment if they know that their partners can claim they con-
sented to the activity and drag their sexual history through a judgmental and

gested that hurting people is wrong and this is so whether the victim consents or not, or
whether the purpose is to fulfill a sexual need or to satisfy some other desire.” Welch, 101
C.C.C. (3d) at 239.
139
Hanna, supra note 68, at 241–44, writes from the American context and focuses R
on the recent American case of People v. Jovanovic, 700 N.Y.S.2d 156 (N.Y. App. Div.
1999). The case involved a male Columbia University student and a female Barnard
College student. The case went against precedents that treated S/M as an assault causing
bodily harm rather than a sexual assault and therefore would have barred the accused
from invoking the victim’s consent as a response to the charge. The case instead treated
this type of consensual violence like a sport where consent is typically accepted as a reply
to an injury sustained through the normal parameters of the statute.
140
Hanna, supra note 68, at 241. R
141
Id. at 249–56.
142
Id. at 280, 285.
143
Id. Hanna draws a parallel to rape, highlighting the long-standing response of law
enforcement officials, judges, and the public at large to women who “cried” rape, saying
these women were getting what they deserved for their aberrant social behavior. This
aberrant behavior is typically understood as anything in violation of prevailing gender,
racial, and class norms (wearing revealing clothing, having extramarital relationships,
being of the wrong race, etc.). Id.
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2007] Feminist Responses to S/M and The Piano Teacher 449

disapproving court system and media?144 Hanna recognizes the cogent femi-
nist type of arguments that can be made in favor of S/M.145 Yet she is un-
willing to assign importance to consent in a case such as Welch for fear that,
because S/M is still a relatively marginalized and stigmatized practice, juries
and judges will treat victims, who are protesting the extent of treatment they
may have received, even worse than they do women in most rape cases.146
Similar to the situation faced by women who for one reason or another ap-
pear to violate the norm of ideal femininity, her concern is that the evidence
and testimony of victims of non-consensual S/M will be filtered through
unfair and demeaning stereotypes such that they will be seen to have re-
ceived what they deserved for their perverse behavior.147 Hanna sees the
issue of the legal characterization of S/M as a contest between protecting the
male sadist or the female masochist and opts for the latter—the woman who
actually experiences the physical pain. Thus, she advocates for the tradi-
tional legal doctrine concerning “rough sex,” which treats such sex as vio-
lence for which consent is legally immaterial.148 Hanna is aware of the
dangers of her position. It exposes responsible sadists to possible vindictive-
ness of their masochistic partners if a relationship sours. Hanna, however,
sees this problem of over-inclusiveness as inevitable, and she prefers to err
on the side of caution rather than give untrustworthy sadists carte blanche
over unwitting and too-trusting masochists.149

C. Why S/M is “Sex”

It is Monica Pa who argues the “other side” in her recent law review
article, Beyond the Pleasure Principle.150 She fundamentally disagrees with
Hanna’s characterization of S/M as violence rather than sex.151 She argues
that the physical pain (beatings, burnings, cuttings, etc.) involved in S/M
misleads people to see it as violence, and she queries why we choose to view
S/M as violence when, in her view, a central component of violence is the
absence of consent.152
For Pa, S/M is just another form of sex. The painful aspects are not
“violent” but pleasurable as sex is widely perceived to be.153 As such, S/M
is entitled to attach the same legal importance to consent in establishing the
actus reus of the offense. Pa recognizes Hanna’s concerns regarding authori-
ties dismissing or diminishing the complaints of masochists against their

144
Id. at 285–86.
145
Id. at 281–83.
146
Id. at 261–62, 270.
147
Id. at 279.
148
Id. at 263–64.
149
Id. at 270–71.
150
Pa, supra note 29. R
151
Id. at 77.
152
Id. at 77–80.
153
Id. at 76.
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450 Harvard Journal of Law & Gender [Vol. 30

partners. Still, she believes that Hanna misses the cultural meaning of S/M
as just another sexual activity when she sees the violence, rather than the
sex, as more constitutive of the practice. In Pa’s view, the violence is sexual
and inextricable from the sexualization of the encounter.154 Pa, then, would
treat S/M as sex and thus analyze an S/M encounter gone beyond the trifling
(but short of “grievous” or “permanent” and “serious” bodily harm) as a
possible offense of sexual assault involving no bodily harm rather than con-
sensual violence involving bodily harm.155

D. The Relevance of Consent

The central issue in the current feminist theorizing regarding the ideal
legal doctrine of S/M is the relevance of the masochist’s consent. Before
discussing how The Piano Teacher illustrates the nuances of the significance
of consent, it is important to recognize that considerable agreement exists
among feminists regarding the level of harm that may be inflicted, regardless
of whether consent should later negate the existence of a potential offense.
This section briefly lays out this overlap in the sex wars before moving on to
discuss the disagreement that materializes over the relevance of consent.

1. Consensus on the Degree of Harm

In her article, Hanna emphasizes the likelihood that S/M, unchecked,

could easily lead to serious bodily injury or even death.156 Pa agrees with the
assessment, which leads her to qualify her support for the type of S/M she
asks feminists to place on their agenda.157 The reason for the confluence of
views regarding the level of harm that should be lawful in an S/M relation-
ship is plain: most societies constrain the freedom of individuals to do cer-
tain things to their bodies where those activities would imperil the
individuals’ lives or cause them grave and irreparable injury. Most notably,
it is illegal to contract for slavery.158 Most jurisdictions continue to criminal-
ize the choice to have someone else help us in killing ourselves (whether
assisted suicide or euthanasia),159 or even to contract our wombs to the high-

154
Id.
155
Id. at 81.
156
Hanna, supra note 68, at 256, 274–75, 286–87. R
157
Pa, supra note 29, at 81. R
158
This is not to say that people have not tried to do so in the context of sadomasoch-
ism. Hanna speculates on the unenforceability of a “sex slave” contract between sadist
and masochist, citing the case of John Edward Robinson, a sadist who used the internet,
logging on as “Slavemaster,” to find masochist women, one of whom paid him $17,000
to be his “sex slave.” See Hanna, supra note 68, at 286–87. R
159
Black’s Law Dictionary defines assisted suicide as “the intentional act of provid-
ing a person with the medical means or the medical knowledge to commit suicide.”
BLACK’S LAW DICTIONARY 1475 (8th ed. 2004). Euthanasia is defined as “the act or
practice of killing or bringing about the death of a person who suffers from an incurable
disease or conditions, especially a painful one, for reasons of mercy.” Id. at 594.
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2007] Feminist Responses to S/M and The Piano Teacher 451

est bidder.160 The rationale of these prohibitions relates to the concept of

personhood. Enabling a person to partly or completely commodify her body
and labor, or acceding to her request to be killed, are seen as impugning
personhood rather than facilitating it.161 Critics who support these positions
against slavery, commercial surrogacy, and assisted suicide or euthanasia
underscore the propertied status, and thus antithesis of personhood, that
would result from the recognition of a contract for indentured servitude and
the potential for abuses of vulnerable individuals from a permissive death
regime.162
The argument for a qualified acceptance of S/M is analogous to these
arguments for personhood protection. S/M conduct that deliberately pursues
death, brain damage, paralysis, or amputation, for example, finds little femi-
nist support regardless of one’s position on the sex wars spectrum.163 This is
because of the severe nature of harm involved. Hence, S/M advocates such
as Pa support limitations on the level of harm that a person may legally
inflict. It is simple to appreciate the sensibility of limiting the harm a person
may inflict when we consider the life-threatening and life-ending injuries
Erika would sustain if her instructions were followed literally to the letter in
The Piano Teacher.164 Erika asks Klemmer to gag her up to keep her from
whimpering, to let her “writhe like a worm in . . . cruel bonds,” to leave her
in that position for hours, and then to place her “in all sorts of different
positions, hitting or kicking [her], even whipping [her],” and then finally to
leave her in a locked room hogtied, with nylons stuffed down her throat, for
hours.165 Klemmer responds that such treatment would kill her, noting that,
“No one could endure the things she desires, without dying sooner or
later.”166 This level of injury is too much for most feminists, regardless of
the justifications for S/M. We can surmise that the adage of “everything in
moderation,” including sexually satisfying sadomasochism guides the con-
vergent theorizations here.

160
Assisted Human Reproduction Act, S.C. ch. 2 (2004) (Can.). Note though that
surrogacy is permitted when altruistic. For an exploration of the commodification of
human bodies debate from feminist perspectives, see generally RETHINKING COMMODIFI-
CATION: CASES AND READING IN LAW AND CULTURE (MARTHA ERTMANN & JOAN WILLIAMS
eds., 2005).
161
See generally MARGARET JANE RADIN, CONTESTED COMMODITIES 154–63 (1996);
Margaret Jane Radin & Madhavi Sunder, Introduction: The Subject and Object of Com-
modification, in RETHINKING COMMODIFICATION, supra note 160, at 8–24. R
162
For feminist discussions against the commodification of the human body, see gen-
erally Jennifer Nedelsky, Property in Potential Life? A Relational Approach to Choosing
Legal Categories, 6 CAN. J.L. & JURISPRUDENCE 343 (1993); see also Margaret Jane Ra-
din, Market Inalienability, 100 HARV. L. REV. 1849 (1987). For a feminist discussion
against assisted suicide, see generally Jocelyn Downie & Susan Sherwin, A Feminist
Analysis of Issues Around Assisted Death, 15 ST. LOUIS U. PUB. L. REV. 303 (1996).
163
Hanna, supra note 68, at 284. R
164
See JELINEK, supra note 11, at 215, 224–25. R
165
Id. at 215–16, 223–24.
166
Id. at 217.
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452 Harvard Journal of Law & Gender [Vol. 30

2. Dissension on the Meaning of S/M

The feminist consensus on the undesirability of “extreme S/M” only

addresses a sliver of the S/M conduct that people are increasingly practic-
ing.167 Views continue to diverge, sometimes sharply, as to the legality of S/
M in the grayer, moderate S/M zone.168 In the same way that The Piano
Teacher complicates the question of whether S/M is a friend or foe of femi-
nism, it also illustrates the tensions regarding the latest focus in the debate:
whether consent should be relevant to S/M acts/assaults when things go
awry. Recall that Pa advances a characterization of S/M as sex and not
violence,169 a characterization that Hanna does not address. This move
seems legitimate given the sexual meaning that Erika ascribes to her S/M
fantasies. Violence and pain are inextricably entwined with her understand-
ing of female sexuality. She is interested in pain for reasons of sexual
arousal and romantic love. Since she desires this pain from a particular
lover, it is difficult to characterize it as violence against her, because she
seeks it out through her letter, expecting pleasure from it, even bliss.
Yet, the dangers that Hanna predicts were the law to treat S/M as sex
rather than violence trouble Pa’s conceptualization. Consider again the
scene where Klemmer assaults and rapes Erika in her apartment.170 Without
regulation, the potential for abuse of trust between two S/M practitioners
arises. Proponents of a laissez-faire approach to S/M have argued that S/M
is not dangerous when it is practiced in a responsible way.171 A critical in-
gredient of responsible S/M is said to be the selection of a “safe” word,
which, when spoken during S/M activity, tells the sadist to stop whatever he
or she is doing to the masochist despite prior consent to the activity.172 As
with any “safe sex” or other guideline, it is just that: a guideline rather than
a binding, enforceable regulation. As Hanna argues, some S/M participants
do not practice safe S/M sex.173 Litigation arises from S/M participants
when masochists claim that the activity went beyond what they consented
to.174
As Hanna notes, although it may be readily conceded that many other
types of activities (examples such as hockey, bungee-jumping, electrolysis,
and plastic surgery come to mind) are all potentially dangerous and even
fatal, they are also typically regulated activities.175 As a society we usually

167
See Pa, supra note 29, at 59–60; see also Wright, supra note 90, at 222 (abusive R
individuals can be found in all groups, but S/M itself is not inherently abusive).
168
Hoople, supra note 68, at 190–98 and 208–19. R
169
Pa, supra note 29, at 77–80. R
170
JELINEK, supra note 11, at 266–69. R
171
See, e.g., Pa, supra note 29, at 61. R
172
Id.
173
Hanna, supra note 68, at 288. R
174
Id. at 275–80 (discussing People v. Jovanovic, 700 N.Y.S.2d 156 (N.Y. App. Div.
1999)).
175
Hanna, supra note 68, at 290. R
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2007] Feminist Responses to S/M and The Piano Teacher 453

do not permit persons, even the privileged “paradigmatic” person (i.e., a

mentally and physically capable human adult male),176 to engage in activities
involving a high degree of risk to his person without some aspect of regula-
tion. As a private, behind closed doors practice, S/M is not an activity that
the state regulates through a commission, board, agency, or other administra-
tive decision maker. S/M’s non-regulated status is a critical point that Hanna
adduces in justifying the current legal doctrine dismissing consent where
serious physical injury is involved.177 In this unregulated realm, Hanna ar-
gues, the potential for accidents, mistakes about the scope of consent, or
deliberate abuse is high and pressing enough to warrant state-imposed limits
on sadomasochistic conduct.178
Hanna’s argument is convincing when we recall what unfolds in The
Piano Teacher.179 Both Erika and Klemmer are neophytes as S/M practition-
ers. Erika knows her fantasies and tells Klemmer of them through the letter,
but appears unaware that what she asks, even if carried out halfway, could
kill her. In trying to convey his sense of frustration and incredulity at what
she wants, Klemmer asks her what she knows of his strength, assuring her
that she underestimates its limits when she asks him to tie things as tightly as
he can, to sit on her, to whip her, etc.180 In this way, The Piano Teacher
illustrates the reasonableness of Hanna’s concern regarding the significance
of consent as the narrative imparts the sense that Erika is heavily uneducated
in safe S/M sex. One anticipates that an encounter with another uneducated
partner would result in misunderstandings as to what is to consensually tran-
spire and mistakes in the application of force.
Moreover, the letter has not discussed a “safe word,” a staple in com-
munication during S/M conduct.181 To the contrary, Erika asks Klemmer to
come up with punishments as he sees fit if she disobeys him or asks him to
stop.182 It is arguable, however, whether a safe word would even have been
sufficient to guard against ambiguities regarding whether Erika had given
consent to a particular act. Recall that in a state of frenzy, and after terror-
izing animals and a young couple having sex in a nearby park at midnight,
Klemmer comes to Erika’s home and orders her to let him inside. She does,
fearful that he will wake up the neighbors and her mother, but also hopeful
that he has come to apologize for his cruel words in their last meeting and

176
Christopher Stone, Should Trees Have Standing? Revisited: How Far Will Law
and Morals Reach? A Pluralist Perspective, 59 S. CAL. L. REV. 1, 9–10 (1985). Stone’s
actual term for these humans is “Contemporary Normal Proximate Persons.” Id.
177
Hanna, supra note 68, at 268. R
178
Id. at 248.
179
JELINEK, supra note 11. R
180
Id. at 222.
181
Pa, supra note 29, at 61 (citing CHARLES MOSER & J.J. MADESON, BOUND TO BE R
FREE 118 (1996)).
182
JELINEK, supra note 11, at 224. Erika writes to Klemmer: “In case you witness a R
transgression on my part . . . please hit me, with the back of your hand too, slap my face
when we’re alone. Ask me why I don’t complain to my mother or hit you back. In any
case, tell me these things so I can feel my helplessness properly.” Id. at 224.
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454 Harvard Journal of Law & Gender [Vol. 30

declare his love for her once again.183 When Erika opens up her apartment
door in response to his banging, he forces his way inside and starts slapping
her about amidst her protestations. When Erika’s mother, awakened by the
disturbance, hears her daughter’s cries, she orders Klemmer to leave. Klem-
mer then slaps Erika and pushes her mother back inside the bedroom, lock-
ing her in and forcing her to listen to what happens next.184 Jelinek writes:
Walter Klemmer smashes his right fist, not too hard and not too
soft, into Erika’s belly. She tumbles back again after standing up-
right. Erika huddles over, pressing her hands into her abdomen . . .
He jeers at her: Where are her cords and ropes? And where are her
chains? I’m only executing your orders, madame. Now gags and
straps can’t help you, mocks Klemmer, who produces the effects of
gags and straps without using such aids.185
A few moments later: “Erika, bleeding slightly, curls up like an embryo, and
the work of destruction progresses. In Erika, the man sees many other wo-
men he wanted to get rid of.”186
After Klemmer leaves, Erika refuses to contact the police, despite her
mother’s urging.187 Instead, she tries to meet Klemmer the following day,
packing a kitchen knife in her purse. It is unclear what Erika’s intentions are
as she sets out, hoping to meet Klemmer; she does not know whether she
will use the knife to harm him or herself. It is possible that she still wishes
to revert to a romantic dynamic between Klemmer and herself, one which he
will covet, as he used to covet her.188 Instead, she feels rejected. She goes to
his engineering school to try to meet him. Klemmer does not see Erika, but
she sees him, flirting on the steps of the conservatory with a female class-
mate and surrounded by his admiring collection of friends before they go
inside the building. As Klemmer disappears, seeming to fade from Erika’s
life, Erika takes the knife and stabs it efficiently into her shoulder.189
Erika’s situation provides an illustration of why Hanna argues against
viewing S/M as sex rather than violence.190 She expressed words conveying
her opposition to the physical beating and rape that transpired in her home
once Klemmer arrived. Yet, we have to ask whether the consent, written in
the letter that Erika gave to Klemmer, to perpetrate very similar acts against
her, matters. Had Erika called the police, and the novel continued into a

183
Id. at 261–62.
184
Id. at 264–65.
185
Id. at 266–67.
186
Id. at 268.
187
Id. at 275.
188
Id. at 278.
189
Though a reader may question the state of Erika’s mental health, wondering what
type of sane person would do this to herself, this query misses the point of the feminist
dilemma of how to regard S/M since we may presume that most S/M practitioners are
mentally capable individuals.
190
Hanna, supra note 68. R
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2007] Feminist Responses to S/M and The Piano Teacher 455

legal trial where Klemmer was prosecuted for assault causing bodily harm
and rape, should the defense be able to introduce that letter as evidence of
consent for the acts about which Erika now complains? Hanna fears that
women with life experiences and characteristics like Erika—namely, an un-
familiarity with safe S/M practice and/or poor judgment in requesting S/M
encounters that would kill if carried out faithfully—will sanction Klemmer’s
brutality and immunize him from legal punishment. Hanna would rather
protect someone in Erika’s (heterosexual) position, typically the female, than
someone in Klemmer’s position, typically the male.191 According to Hanna,
the risk has to fall somewhere.192 Applying Hanna’s logic, were Erika to
bring suit against Klemmer, it is Klemmer, as the one who chose to inflict
the injuries, who should bear the risk because Erika did not consent to the
injuries inflicted upon her. To Hanna, it would be immaterial that Klemmer
thought he was adopting a role in Erika’s S/M fantasy.
Hanna’s assessment of who should bear the risk is difficult to determine
given Klemmer’s behavior. Jelinek writes:
Erika lies on the floor, the hallway runner sliding out beneath her.
She says please don’t. Her letter doesn’t deserve such punishment.
Klemmer is unleashed, but Erika is not leashed. The man casually
hits her and mordantly asks: Well, where’s your letter now? This is
all you get. He boasts that he doesn’t have to tie her up, as she can
see for herself. He asks her whether the letter can help her now.
While hitting her lightly, Klemmer tells the woman that this is
exactly what she wanted. Erika tearfully protests that this isn’t
what she wanted, she wanted something different. Well then you’ll
have to express yourself more carefully next time, the man
replies.193
In this scene, even the optimistic reader is finally convinced of the dishar-
mony between the two characters. Whereas it is possible to interpret Klem-
mer’s actions up to this point as possibly staging the scene that Erika
describes in her letter, Klemmer’s mocking reference to the letter strongly
suggests that he does not act out of a desire to fulfill her sexual fantasies, but
to hurt and humiliate her and avenge himself for his own humiliation and
emasculation, for which he blames her. If this interpretation is correct, it is
disquieting to realize that if Erika attempted to lay charges, Klemmer could
use the letter and profess, through standard honest belief in consent doc-

191
See id. at 269–70; see also Pa, supra note 29, at 90 (citing SUSAN WRIGHT, WHAT R
IS SM? LAW ENFORCEMENT OUTREACH PROGRAM, available at http://www.ncsfreedom.
org/eop/files/WhatIsSM.pdf (last visited May 28, 2007)) But see Pa, supra note 29, at 90 R
(stating “no studies have conclusively indicated that women are more sexually respon-
sive to playing the [masochist] or sexual submissions. Indeed several studies indicate
that men are more drawn to playing submissive roles.”).
192
Hanna, supra note 68, at 248. R
193
JELINEK, supra note 11, at 270 (emphasis added). R
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456 Harvard Journal of Law & Gender [Vol. 30

trine,194 to have genuinely interpreted the letter as authorizing the acts that he
commits against Erika.
The last line is chilling in this regard. Well then you’ll have to express
yourself more carefully next time. Erika is not a lawyer; her letter is not a
contract.195 Indeed, most S/M practitioners will not express themselves with
the precision required to eliminate all ambiguities regarding the hitting,
burning, slapping, etc. the masochist may desire. The possibility for conflict
and muddled expectations persisting long after a contract is drawn seems
especially high in light of Deleuze’s point that both subjects covet control
and thus are working at cross-purposes.196 This concern over the instability
and intersubjectivity of the meaning of words, including contractual terms,
becomes especially acute if we accept that “[t]he masochist seeks a com-
promise so subtle that it must be constantly reexamined by both par-
ties. . . .”197 While a safe word might be useful to stop a permitted activity
from going too far, it would be useless to undo an originally unpermitted
activity that resulted from the masochist’s different interpretation of what
exactly had been authorized. It is the latter situation that cautions against
relying on consent in S/M, and that is dramatized in The Piano Teacher.
Klemmer challenges Erika’s version of events, claiming that what he has
done is exactly what was requested. Whether he is genuine in this belief is
beside Hanna’s point.198 The opportunity for a sadist to get away with such
grievous injuries when the masochist claims that they were never authorized
is unpalatable to her, and although Erika has her class and race to protect her
from immediate skepticism of her claims to assault,199 Hanna’s point is com-
pelling: police officials, jurors, and judges will have a difficult time believ-
ing that Erika was really harmed given her penchant for pain, as evidenced
in her letter.200
Pa has a response to this concern. She argues that the belief that
criminalization will protect masochists is ill-informed, and she agrees with
Hanna that education about how to practice safe S/M is vital to the well-

194
Canada Criminal Code, R.S.C. ch. 46 s. 265(3) (1985).
195
The question of whether or not Erika made an offer in the contractual sense re-
mains an open one: Would a reasonable person think that her letter evinces a clear inten-
tion to be bound? Similarly, would Klemmer’s behavior qualify as acceptance measured
by an objective test? Beyond offer and acceptance, the contractual concept of considera-
tion is troubling in Erika’s context: Who has conferred a benefit and who has suffered a
detriment in the encounter?
196
See generally DELEUZE, supra note 12. R
197
Kirby, supra note 69, at 768. R
198
JELINEK, supra note 11, at 270. R
199
Studies have shown that law enforcement officials are more likely to question the
veracity of assault complaints made by women of color as opposed to their white, middle
class counterparts. See, e.g., Kimberle Williams Crenshaw, Mapping the Margins: Inter-
sectionality, Identity Politics, and Violence Against Women, 43 STAN. L. REV. 1241,
1269–71 (1991) (arguing that Black women marginalized by their racial status must con-
front different challenges to realize respect for their bodies against male violence because
they face subordination based on both race and gender).
200
Hanna, supra note 68, at 215, 224–25. R
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2007] Feminist Responses to S/M and The Piano Teacher 457

being of its practitioners.201 Yet she questions the willingness of masochists

to attend public education sessions if they believe their partners are at risk of
harassment or prosecution for assault causing bodily harm.202 Moreover, she
worries that masochists may be less willing to seek out medical assistance if
the medical staff that treat them are under professional obligations to report
injuries to the authorities.203 This is an important point, but does not resolve
the problem of over-inclusivity: either innocent sadists are still prosecuted or
innocent masochists are still vilified. The Piano Teacher, for the reasons
canvassed above, graphically illustrates the reasonableness of Hanna’s selec-
tion in favor of protecting masochists.

V. CONCLUSION

Feminist readings have exposed the fraught and contested nature of dis-
courses of consent and choice. The manner in which choice and consent
enter into legal and political debates either to gloss over or to legitimate
women’s inequality has become a focal point in feminist inquiry. Amidst
this interrogation lies the question of whether society should criminalize or
otherwise denounce certain practices even when women actively pursue
them. Should the primacy of individual autonomy and choice triumph over
concerns regarding the underlying causes driving such decisions—causes
which may trouble the preconditions for meaningful choice? In the S/M
context, the question becomes: should women’s preferences for sexual en-
counters typically marked by dominance and submission as well as bodily
pain be respected, even celebrated, as exercises in human flourishing? Or
should we instead approach such decisions with skepticism, aware of the
coercive hegemonic gender and cultural codes which surround women from
birth and make dubious their consent to violence at the hands of men? For
the most part, answers to this labyrinthine question have come from two
poles within feminist theory, adding fuel to the sex wars that have animated
feminists for decades. The work of Hanna and Pa has recently brought op-
posing camps closer together among legal feminists with respect to the affir-
mation of S/M as sex, yet full conciliation remains impaired by definitional
disputes as to what S/M means and its connection to choice and consent.
Jelinek illustrates these tensions with eloquence and depth in The Piano
Teacher. Filtering the law through the literary lens of The Piano Teacher
illuminates the contested question of the legality of S/M interactions and
how such interactions should be treated in light of the consent principle. The
literary iteration of this question also portrays the complexity of feminist
concerns and analyses regarding S/M. Although Erika’s story can be used,
on the one hand, to affirm the argument that S/M supports feminist projects,

201
Pa, supra note 29, at 83–84. R
202
Id.
203
Id. at 83.
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458 Harvard Journal of Law & Gender [Vol. 30

it also confirms the need for law to protect those who willingly subject them-
selves to pain in the name of pleasure. The Piano Teacher illustrates the
ways in which S/M may potentially assist some women to have greater per-
sonal agency, while cautioning against a situation that would have the law
remove itself entirely from the intimate exchanges between partners in S/M
encounters/relationships. As a particular cultural narrative on sex, gender,
and power, it prompts a possible feminist legal vision and intervention in
this area of sharply divergent interpretations.
In doing so, The Piano Teacher responds to Lynn Chancer’s suggestions
that a dualistic paradigm does little to advance the common goal of women’s
empowerment shared by all feminists while doing much to weaken the
workings of feminist movements on these issues.204 For Chancer, the dis-
putes among feminists about the emancipating potential of certain sexual
practices are unfruitful. She argues that feminists need a way to move be-
yond the impasse of viewing a practice like sadomasochism as only about
male dominance or as only about female sexual liberation.205 Similarly, we
need to bypass the debate about what S/M is (consensual sex or consensual
violence) and concentrate on, as Chancer suggests, eliminating sexist (and, I
would add, other discriminatory) practices that are imposed, as well as hege-
monic gender roles and identities. She writes:
[W]hat individuals like or do not like sexually about pornography,
for instance, need not deflect attention from targeting sexism in the
pornography industry overall. Collective demands can be made,
challenging institutionally based power and raising questions of
political economy . . . . Analogously, individuals’ attitudes and
actions regarding cosmetic surgery need not obscure another col-
lective concern: transforming a media industry that still overvalues
young, thin, and often white women’s bodies. Nor do disagree-
ments about an individual woman’s engagement with sex work
need to deflect feminist attentions away from the larger social con-
text in which that woman often does not experience genuine eco-
nomic choice. Finally, a two-pronged feminist strategy toward a
third wave might be able to protest the sadomasochistic character
of a given culture, at the same time recognizing that sadomasoch-
istic desires are likely to characterize many individuals’ exper-
iences of desire.206
Chancer’s perspective reflects the sensible conclusion that it is unlikely that
a universal answer or solution to the sex wars will ever materialize. Indeed,
it is unlikely that feminists will ever agree on a single answer to this or any
controversial issue. But where does this leave feminist theoretical inquiry

204
Chancer, supra note 20, at 86. R
205
Id.
206
Id. at 86–87.
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2007] Feminist Responses to S/M and The Piano Teacher 459

and feminist praxis? To heed Chancer’s call that “valid differences between
women are left to stand”207 or to say that we can never agree does not mean
that we can never favor a particular position or even campaign for a particu-
lar legal reform. It is not a call for relativism or apolitical pluralism. Given
the richness and heterogeneity of feminist analyses, feminism has never been
about promoting policies which all women support. The sheer impossibility
indicates the absurdity of such an ambition. Yet, the unavailability of con-
sensus should not extinguish attempts to articulate what types of practices
feminists might want to support and which practices they might wish to dis-
card in an ideal social order.
The Piano Teacher assists all feminists, regardless of which position
they take, in this project to gain a more tangible appreciation for the argu-
ments on both sides of the S/M debate. By illuminating the merits of com-
peting interpretations in the debate, both in their traditional and more recent
articulations, The Piano Teacher helps portray that, despite the forceful con-
cerns of feminists worried about the eroticisation of violence against women,
we should be respectful of women’s agency and choices to engage in consen-
sual violence like S/M, even as masochists. It also serves as a reminder not
to simply or immediately reject the possibility that S/M has feminist poten-
tial. This appreciation may then help navigate future feminist conversations
about precisely how the law should influence heterosexual S/M relationships
and encounters and, more generally, approach instances of consensual
violence.

207
Id. at 86.
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