The Sadomasochistic Cenote and Its Legal Upwellings

“The chronotope is the place where the knots of narrative are tied and untied. It can be said without qualification that to them belongs the meaning that shapes narrative.” – Mikhail Bakhtin, Forms of Time and Chronotope in the Novel

The Dominatrix of Death

Once upon a time in the suburbs of Boston, Massachusetts, an enterprising dominatrix found herself suddenly in a pickle: a client had suffered a heart attack and died on the rack in her modified condo-dungeon. Panicking, she alerted a business associate, who (as urban myth and possibly reality would have it) took it upon himself to dismember and dispose of the defunct sexual reveler. Five years later, the two would be indicted for the ghastliest of charges: homicide, dismemberment. He fled to South America, while she remained stateside to stand trial. At this proceeding, the prosecutor for the Commonwealth of Massachusetts picked up the performative thread of her engagement with her expired customer, donning the leather regalia of the deceased man in a sadomasochistic (“SM”) pantomime that would leave the court stunned.

All of this took place years ago. The story has fallen out of the public eye. Dismissed for lack of evidence, it seems to lack ostensible legal significance. So why do I bring it up now? Why should any of this matter to legal analysts, lawyers, or philosophers of the law? And above all, why should the world of Contract Theory take any interest in it when at most it represents a criminal case, and a failed one at that?

I am drawn to this case because it dramatizes my recurrent and evolving thesis that “legal role play” is not confined to the sadomasochistic realm. Rather, unenforceable contractual simulacra like the sadomasochistic sex contract (a document enforcing distributions of power and responsibilities between dom and sub, like the email exchange that preceded the events described above) reveal an unspoken pleasurable kernel to the act of contracting itself.¹ Courtroom proceedings, too, partake in sadomasochistic power play—occasionally in embarrassingly palpable ways. They are the arenas where sexual contracting unfolds under the guise of punishment and social hygiene, but they are certainly not immune to the contagion of sadomasochistic performativity, which seems to survive the sexual tableau to create new power constellations within the theater of prosecution.

None of this should be surprising. If sadomasochism can borrow from the legal sphere, why not the other way around? These exchanges are multidirectional and might even be said to possess their own osmosis. Though little notice has been paid to what the law takes from sadomasochism, the surprising case of Mistress Lauren (our aforementioned dominatrix) retrains attention on the counterflow represented by the law’s appropriation of sadomasochistic roles and behavior.

Sex Contracts

Structurally, sex contracts follow the same course as regular old contracts from the aboveground: offer, acceptance, and consideration are present, and there is a meeting of the minds not blighted by incapacity, duress, or some other fatal contractual flaw. They are typically unenforceable because they are meretricious, meaning that there has been an illicit physical exchange (usually sex for money). Meretriciousness was made famous within legal culture by the California common law divorce case Marvin v. Marvin. In Marvin, one divorcing party unsuccessfully accused the other of seeking to enforce a meretricious contract when she requested reimbursement for the services she had provided throughout their quasi-marital arrangement. Such a meretricious contract would be illegal in the U.S., sitting beside other illegal arrangements such as Mafia agreements, gambling, or drug deals. Unenforceable contracts like these seem to possess an allure that results in their continued creation. Take Chapman v. Hafertepen, a recent Washington probate case in which an Australian Pup (Tank Chapman) agreed to pump his testicles full of silicone to please his master (Noodles & Beef) via an implied contractual provision posted to Twitter, then subsequently died from a respiratory embolism. This case demonstrates rather boldly my premise that the act of contracting is built around a core of pleasure: for in Chapman, the contract itself takes on a fetishistic value for both dom and sub, leaving me to wonder whether the contract has been a fetish in non-sexual cases as well.

In examining the pleasure of the contract,² this essay is something of a transcendental coda to the indispensable work by Leopold von Sacher-Masoch, the Marquis de Sade, and Gilles Deleuze. Masoch, after whom the Victorian sexologist Richard von Krafft-Ebing first named the term “masochism,” enshrined the sex contract within the discourse of pleasure and pain in his novel Venus in Furs. In this novel, a male aristocrat in Austria-Hungary coerces an unwilling female aristocrat to enter into a contract that would make him her slave in as literal a sense as possible. The Marquis de Sade, after whom Krafft-Ebing similarly named the term “sadism,” dramatizes the sadist’s disdain for contracts via their rupture through sexual violence in his The 120 Days of Sodom, Juliette, and Philosophy in the Bedroom, among other novels. As in Masoch, this sexual type is also an aristocrat, his (or sometimes her) pleasures tied to the extreme power imbalance of the ancien régime. While both authors offer a critical lexicon that has steered my analysis of contractual pleasure, they also afford a peek into concrete power structures that are at times masked behind the trappings of contractual legitimacy. Finally, Deleuze’s Coldness and Cruelty provides a rich analysis of the way masochists embrace the contractual form while sadists reject it utterly. His approach is psychoanalytic and targets the desires that undergird responses to the contractual form in its sexual variant. Taking Deleuze’s analysis one step further, I argue that the centrality of the contract to sadomasochism calls even the most benevolent contracts into question.

Unenforceable sex contracts hearken back to a core of sensual and intellectual pleasure that might even power enforceable, non-meretricious contracts, like the standard form contract at AT&T or Verizon. Such a modern “form contract” eschews negotiation and “dickering” altogether, requiring total submission to predetermined terms: they certainly feel sadistic. Contracts theorists Tess Wilkinson-Ryan and David A. Hoffman write about what breach “feels” like in their essay “Breach Is for Suckers,” an innovative study that examines the emotions inspired by how contracts are executed post-creation. In keeping with their theme, I would add that we need to pay further attention to the affective dimension of contracts, which roles they create in their symbiosis with SM tropes, and the psychological toll they ultimately take.

It’s not hard to find other examples of contracts that recall the sadomasochistic paradigm. Think of nondisclosure agreements (“NDAs”), which often use knowledge disparities to hoodwink individuals into thinking they’re entering into a fair deal when in fact they’re the object of sadistic manipulation. The recent Hulu show The Dropout is brimming with representations of similarly abusive NDAs. This program dramatizes the situation at real-world medical start-up Theranos, where employees were coerced into signing shockingly unfair “gag orders” under intense pressure from company CEO Elizabeth Holmes. As Holmes’s trade secret (the use of state-of-the-art technology to diagnose disease using a single drop of blood) was proven to be unworkable, her legal team crafted these agreements with overtly fraudulent intentions in mind, using them to bully lab technicians and other employees who might reveal that there was no trade secret after all. Think also of contracts that fail for unconscionability, which often involves huge power disparities and unequal bargaining capacities. In Williams v. Walker-Thomas Furniture Co., even picayune items like shower curtains and bath mats were getting repossessed when clients missed monthly payments on furniture and home accessories.³

While excavating pleasure within a standard form contract is an act of reading against the grain uncommon to the legal method, doing so is necessary if we are to provide a psychoanalysis of the law and untangle its subterranean motives. For if the pleasure of a sex contract is its reification of roles and the creation of a power gradient that colors how we undertake role play, as I have argued, then perhaps that parasitic joy refers to a primal pleasure already present in the contract itself. I use “parasitic” in the Deconstructive sense, by which a supplément or simulacrum feeds upon the original it mimes. Beyond the troublesome work of mimesis, this adjective might also refer to how a sadistic contract could make one feel: as the host of a parasite hellbent on consuming one’s resources.

The law addresses the second sense of parasitism via procedural and substantive unconscionability, yet never the first. The reason might just be that law has an impoverished sense of desire. Richard Posner, former Seventh Circuit Justice, writer and leading figure of the Law and Economics movement, illustrates as much in Law and Literature, which urges law to reject psychoanalysis and Deconstruction, giving itself an immunity from the vicissitudes of desire, which are manifold and rooted in ambivalence. It is only by simplifying desire and making it unitary that the law is able to process it.

Cenotes

The sadomasochistic legal case referred to as if it were a fairy tale in the opening paragraph of this essay stars a colorful cast of characters worthy of the best picaresque novel. The case involves a dominatrix (Mistress Lauren), her client (Michael Lord), and an associate (Miguel Ferrer, known popularly as Mr. Versace). There is also a prosecutor, Robert Nelson, whose courtroom behavior is especially telling, as it reveals a particular SM trope that cuts across cases: the idea that legal role-play is itself catchy and can spread beyond the contractual arrangement connecting dom and sub.

Two pressing reasons culled from literary theory provide a rationale for re-examining sadomasochistic cases and themes within legal textuality: (1) because literature and the law exist in tension as competing writerly discourses; (2) because it is an act of legal enrichment to drag back into the historical record submerged narratives that have slipped away through fissures in the law. The first rationale is perhaps best demonstrated by the tension between the Law and Economics and Law and Literature movements in America, something Posner attempts to address by keeping the two discourses largely separate with few exceptions (for example, he suggests we might rightly consult Jane Austen to understand what a fee tail is in Property Law). Reading the law as if it were literature would open the door to textual play and other putative frivolities that deviate from law’s self-identity as logical, even mathematical (“economical”). Psychoanalytic desire involves a different economy, one built upon excess and waste. In its “aneconomy,” it dissolves legal simplifications to arrive at richer perspectives that can incorporate phenomena like contractual fetishism. The second rationale thus speaks to the rehabilitation of lost stories that succeed for some other reason than their legal merits. Together, these two principles provide a logic for the legal excavation of cases and case typologies that disappear from the legal narrative like so much underground limestone. By showcasing “legal nonentities” or the litigants whose stories fall out of the public eye, this method restores legal and historical protagonists by re-situating them within their spatiotemporal contexts.

These players appear in what I have called a “cenote,” one of the stunning blue, water-filled sinkholes that dot the jungles of the former Mayan empire on the Yucatán Peninsula. I arrived at this metaphor after considering an extensive list of types of holes; Mistress Lauren wasn’t a wormhole, and she wasn’t the hole at the center of a donut either, but she was some kind of productive lacuna. Maybe she represented a cenote, that unique topographic entity at the juncture of collapse and replenishment, emptiness and plenitude, disaster and beauty?

Cenotes fill with groundwater, rainwater, and sometimes sea water, if they come close enough to the coast. There may even be a murky zone called a halocline if fresh and saltwater meet. Stories like Mistress Lauren’s rush in to fill the collapsed spaces left by those individuals who don’t make it into legal casebooks, or perhaps sneak in via footnote or case note only. Mistress Lauren was only a case note in mine and I am fortunate my professor devoted class time to it. Her SM cenote fills with stories of sadomasochism and its many contracts, documents that certainly escape incorporation into the law’s identity, but which have much to say about contractual realities far removed from the boudoir. These waters are blue because they provide hope and inspiration: namely, the uplifting thought that the law’s identity may be deconstructed enough to expose clusters of protagonists who have been barred representation.⁴ The thrust of the cenote metaphor is that it presents a scenario in which collapse leads to surprising beauty as solids give way to liquids in the dramaturgy of great diurnal phase changes.

Mistress Lauren’s story will help reveal a larger cluster of sadomasochistic themes that do not make it into law’s identity, but which bubble up into something like the cenote I have poetically postulated. For only metaphor can work at these moments, as literal language loses its ability to point to referents.⁵ And yes, law is poetry.

Chronotopes

Before the story of Mistress Lauren can be told with consequence, though, this essay must first arrive at a place where her tale carries meaning within the cramped quarters of American law and legal discourse.

In his essay Forms of Time and of the Chronotope in the Novel: Notes Toward a Historical Poetics, Mikhail Bakhtin famously theorizes that narrative is built upon the chronotope, or the particular spacetime orientation shared by works of a specific genre within the controlled world of the literary. This spatiotemporal relationship marks various genres, which stylize this relationship via the production of texts that partake in the genre. For Bakhtin, the chronotope represents “the intrinsic connectedness of temporal and spatial relationships that are artistically expressed in literature.” As such, it is a “formally constitutive category of literature” that expresses the same “inseparability of space and time” seen in Albert Einstein’s theory of relativity.⁶ Although the four dimensions of time and space are difficult to separate out as they are lived, “isolated aspects of space and time” come to the fore through literature and the many chronotopes it foregrounds through progressive literary history.⁷

Bakhtin examines the chronotope from the “Greek romance” through the Renaissance Rabelaisian novel, tracing the way it morphs into other genres, such as the 18th-century adventure novel (Robinson Crusoe). For example, the “adventure novel of ordeal” from the 2nd through 6th centuries is built upon what Bakhtin calls “adventure-time.” As with all temporal dimensions of the chronotope, adventure-time is marked by various motifs that fill it thematically, taking shape through plot and character; in fact, it is only in the combination of motifs that literary works of this chronotope differ from one another, much as genera fluctuate within species. For example, adventure-time requires various elements that can be combined at will:

There is a boy and girl of marriageable age. Their lineage is unknown, mysterious…They are remarkable for their exceptional beauty. They are also exceptionally chaste. They meet each other unexpectedly, usually during some festive holiday. A sudden and instantaneous passion flares up between them that is as irresistible as fate, like an incurable disease.

Separation, piracy, and battles ensue, with the plot typically culminating in the lovers making their way back to one another and marrying. As such, the chronotope of the adventure novel demonstrates the specific spatiotemporal structure of the beleaguered couple suffering various betrayals and surprising moments of luck and good fortune, motifs that help mark the particular relation of this genre to space and time both inside the novel (the narrative arc) and also outside it (where it fits within literary history).

I would argue that the sadomasochistic narrative has its own chronotope, something internal to the literary works of Masoch and de Sade but also present within the various legal narratives of case law. In keeping with Bakhtin, I call it SM-time. It demands that both law and literature be taken into account, as we bring Masoch and de Sade into conversation with Mistress Lauren.

SM-time (At Home with Mistress Lauren)⁸

Mistress Lauren, whose “real” name is Barbara McLaughlin-Asher, entered legal discourse in 2006 in Dedham, Massachusetts, where she was on trial for involuntary manslaughter and dismemberment. One of her clients had experienced a heart attack during what would otherwise have passed as a consensual session of sadomasochistic play. She held a Masters degree from nearby Boston University while he was a retired telephone company lineman from North Hampton. In July 2000, she strapped her client Michael Lord to a “replica of a medieval torture device” in her Quincy, Massachusetts, condominium. The bondage session cost $300. Asher did nothing during the heart attack, allegedly allowing him to perish without intervention. In opening statements, prosecutor Robert Nelson alleged that she was just “getting into her dominatrix outfit when she heard a commotion coming from the ‘dungeon’ where Lord was waiting, naked, tied by his wrists to the rack.” This denouement might have been the end of the story, as it is unclear whether she either understood that he was in trouble or even had any obligation to help. Things escalated when her associate Miguel Ferrer, “Mr. Versace,” purportedly dismembered the 280-pound corpse, which had been dumped in the bathtub overnight, and disposed of it in Augusta, Maine, as Asher later confessed. By then, Lord had been missing for five years, and his family had finally grown suspicious of foul play.

Inside Lord’s home, his children had found ample evidence of his sexual proclivities, discovering bondage paraphernalia, the phone numbers of various dominatrixes he potentially might have contractually hired, and email evidence that he had also attempted to employ the services of someone named “Lady Kendra” in a sexual transaction. They also discovered that he operated a sexual business of his own in which he peddled wooden paddles “in bulk” to those interested in beating or being beaten. While an email between the client and Mistress Lauren could have established the contractuality of their exchange, it did not prevent a criminal case against both Mistress Lauren and Mr. Versace from proceeding. However, by the time the two were indicted, Mr. Versace had gone on the lam and has never been found since; the assumption is that he returned to his native Argentina.

When sexual contracts do sometimes wind their way into court proceedings, it is typically in criminal cases such as this one. The cases do not appear because of breach or some other contractual flaw. As the 2014 Note in Harvard Law Review “Nonbinding Bondage: Exploring the (Extra)legal Complexity of BDSM Contracts” underscores, “[w]here the contracts do show up in court documents, it is generally not because the state is enforcing their promises but because the state is punishing the promisors under the aegis of criminal tortious or criminal wrongdoing.” Yet although there is no recourse when a lover breaches a sex contract, the document still retains its contractual allure, a point that inserts a queerness into the process of drafting and entering into contracts in general. Power matters here because it creates and threatens to enforce roles within the theater of contractual performance. Back within enforceable law, Contract Theory gives way to Criminal Law, which can enforce contractual issues in a different way: that is, through the application of code to behavior. But imagine a mondo alla riverso in which we also examine the social and sexual positioning of roles as laid out via contractual terms.

The story of Mistress Lauren speaks to the pleasurable core of legal contracting and to the contagiousness of SM performativity, which tends to spread both within and outside the sexual tableau, something seen in Masoch, too: for in the end, Wanda breaches her agreement with Severin, exceeding the bounds of her delineated role. This point is most brilliantly illustrated by Robert Nelson, whose prosecutorial performance comes too close to reality. To hammer home his point, he made a dramatic show of the sexual accoutrements and equipment Mistress Lauren used in her condo-dungeon. During closing arguments, he “dumped a box of hoods, collars and paddles” onto a table for the jury to see. As if that was not theatrical enough, he then lapsed into a shocking performativity that in its unseemliness appears to have tilted the scales of justice in Asher’s favor, contributing to her looming acquittal.

Caught up in the performativity of the tableau, Nelson made the daring move of slipping into Michael Lord’s black leather zippered mask in court, which after all is only a specialized performance space, as legal analysts of court performances have argued. The evidence tag was even still hanging from the mask, as if a sick Minnie Pearl version of Shakespeare’s Hamlet were unfolding. Nelson’s intention was to “reenact” the very bondage scenario which had triggered Lord’s fatal ischemic event. For added flair, Nelson “with both hands, reached back and clutched the top of a blackboard to simulate how Lord was strapped.” Throughout this bizarre and grotesque display, Nelson continued to speak through the mask, although his words were muffled. This performance went way out of bounds, prompting the Defense to object and the Judge to concur. Judge Charles Grabau’s laconic reply shut the show down: “That’s enough, Mr. Nelson… Thank you for your demonstration.”

In the end, the prosecutor was unable to prove his case due to two reasons: lack of evidence, and the coerciveness of Mistress Lauren’s confession. The Quincy police had never examined critical evidence from Lord’s home computer, such as his email address book, sites he frequented, his AOL account or the computer’s trash folder. They had ignored potential leads, such as the husband of a married woman with whom he had conducted an affair for two decades. There was also a total lack of DNA and blood evidence. Further, Asher’s interview had never been taped, and the court agreed with her attorney’s claim that “investigators had bullied her into saying things that conformed to their theory of what happened.” Above and beyond these flaws, though, there is a third misstep: Nelson’s over-the-top performance, a product of sadomasochistic contagion, and something that rubbed Judge and presumably jury the wrong way. It is not clear what this spectacle added to the evidentiary and confessional flaws, but I doubt that it did not offend the jury’s sense of pathos.

Justice and equity (fairness, but also the court of extraordinary remedies that transcend the utility of cash) are spectacles profoundly impacted by appearances. The sensual surface of Mistress Lauren’s trial creates a texture that I wish to preserve because, outside court, all narratives have a legal dimension, if only because each person subject to the social contract is first and foremost a regulated body.⁹ Law and narratology intersect at more than one point in this post-Euclidean geometry in which we are beyond the point of linear thinking and in a place where story-telling is the law’s substratum.

The SM story is one that must be told, especially as it involves perhaps the ultimate legal fetish within the Law, contractuality. Even the book of Genesis is built around contract and breach. Further, legal pedagogy enshrines the contract within the L1 course of study: it is literally where legal education begins. The SM tale is best told through the chronotope of Mistress Lauren—her condo that is also a dungeon, her MA from Boston University, her fatal association with a paddle salesman with legal contracts of his own to manage. It may also be manifested through her chronotrope (see my next section), performative contagion so powerful it can even exit the sexual tableau to infect the prosecutor. The sadomasochistic cenote osmotically receives the waters of this story and its thematic tropism, welling up with a bright cerulean reminding those who gaze upon the law that its surface is not stable.

Sex Contract Narrativity

What emerges when sex contracts are interrogated in terms of their systematic relationship to legal language in general is a thematic cluster of recurrent tropes. Tropes are defined by the literary theory of Paul de Man in Allegories of Reading: Figural Language in Rousseau, Nietzsche, Rilke, and Proust and Aesthetic Ideology as various figures of speech that battle literal language for semantic control of the discursive field. Bakhtin calls them motifs, but they also fit de Man’s definition of a trope, which inhabits the middle ground between a figure of speech and a theme: essentially a textual tropism, or orientation. As the sunflower’s heliotropism orients it toward the sun, textual tropisms orient language to centers of light and gravity. Within the field of sex contracts, these tropes involve performative power arrangements that knit together various SM narratives to reveal thematic connections among them. The chronotope is thus also a chronotrope, or treasure trove of tropes whose motifs allow variety to enter the generic within its semi-elastic limits.

When one examines such contractual arrangements, three primary themes, or root narratives, emerge:

(1) The faux-legal stimulation of sexual contracting as an end in itself. This is illustrated in Sacher-Masoch’s Venus in Furs, which involves the extraordinary steps one takes to make a contract feel enforceable, although technically it is not.

(2) The behavioral contagion inspired by the sexual contract’s license to be performative. This is best exemplified by the story of Mistress Lauren. It involves the use of a sexual contract to establish transactional innocence, but more importantly underscores how easy it is to get carried away once the sexual contract unleashes its contagious aesthetics, as shown by the unorthodox courtroom behavior of the prosecutor.¹⁰ Within this context, the roles delineated by the contractual transaction—“I dominate, you submit”—overflow their boundaries both within the sexual tableau and outside it.

(3) Abusive uses of agreements that attempt to manage the sex in question when it leaves the sanctity of the bedroom (or dungeon) and turns into information.¹¹ These are exemplified by the tale of porn star Stormy Daniels, whose non-disclosure agreement with ex-President Donald Trump was arguably unconscionable and used purely to bully her into silence, as she alleged in court documents.

While (1) and (2) are primarily aesthetic stories, (3) is autopoietic, speaking to the special status of legal language within Western culture and the significance of using its lexicon to evoke a menacing monolithic structure (“The Law”). (1) and (2) speak to the surface of the contract (aesthetics), which winds its way into the sexual tableau as a fetish in itself. (3) speaks to the self-organization (autopoiesis) of legal structures, looking at what happens when a protagonist employs legal language to dominate other language-games, like poetry or friendship. Autopoiesis relies heavily on “ordinary language philosophy” and Systems Theory, which combine to demonstrate the uniqueness of the legal language-game.¹² In the sadomasochistic cenote, aesthetics and autopoiesis thus dominate communication as lenses through which contractuality passes in the social optics of offer, acceptance, consideration, and of course everyone’s favorite bugbear, breach.

The one who benefits is more often than not the one who either creates or manages the contract, once again speaking to the unevenness of the playing field. In the case of Stormy Daniels, many attorneys involved had roles in repressing her, working together to perpetuate their abuse. On behalf of Trump, Michael Cohen asked for $1M in liquidated damages each time she revealed something private, and her original attorney Keith Davidson allowed her to sign what sounds an awful lot like an unconscionable contract (she sued him as well, alleging collusion). Later, after the dust had settled, her attorney Michael Avenatti admitted to stealing a nearly $300K book advance from her. Once again, we have contagion, this time among male sadists who don’t necessarily work in concert but whose actions maintain a system of gendered power relations not unlike the aristocratic system in place for Masoch and de Sade.

Together, these stories comprise the SM chronotope with its particular generic spacetime. They span literature and the law and in doing so destabilize the discursive horizon of each discipline. It’s as if we inhabit a planet with two suns.

Conclusion: The Irresistible Force of the Absurd

Sex contracts are mimetic and parodic (another subspecies of the aesthetic). Performativity issues abound as one is caught up in a network of “pretendings” that simultaneously represents a power dynamic and deconstructs it. To echo “Nonbinding Bondage,” SM “applies the temporal dimension of contract law’s concern for equality to its own temporally tinged vision of performance: it injects contract’s vision of equality at time of contracting to separate the sexual scene from the outside world, rendering the scene’s inequality more purely performative and thus less problematic.” Notice how quickly this performativity spreads to contaminate the law. Though it arrives to quarantine the shifts in role that threaten legal order, the constitutive separation between the spheres of personal play and external order has already dissolved. Even the law is not safe from this corrosive force.

As any student of aesthetics knows, parody and play necessarily accompany performativity, creating the dual effect of complicity and rebellion: “In essence, BDSM acts as a theater of conversion, ostentatiously reenacting roles from the everyday culture of power in order to expose, parody and challenge the seemingly ‘natural’ hierarchies represented” (“Nonbinding Bondage”). Because of the dual role that accompanies mimesis and parody, the sexual contract is necessarily a conduit for one final aesthetic category that has been with us all along: the absurd. This aesthetic pulsation lies at the heart of law itself, far afield of these salacious agreements, yet of a piece with them: something psychoanalysis recognizes about the law yet which the law ejects from its self-image. Even Richard Posner, the patriarch of Law and Economics, comprehends the legal relevance of absurdity in his analysis of Franz Kafka in Law and Literature.¹³ Posner emphasizes the fact that Kafka was first trained as a lawyer who specialized briefly in industrial torts, a fact of epistemology and labor that informed the cloying atmosphere of his legal masterpiece, The Trial, among other texts. Sex contracts are in conversation with this Kafka: for what could reveal more about an absurdity coiled at the heart of law than the sex contract, which appears to taunt law and also to elicit laughter? Even someone as sober as a prosecutor could lose control in this environment.

In Coldness and Cruelty, Deleuze reports an audience response to Kafka’s work that could apply to this unlucky prosecutor: “[W]hen Kafka gave a reading of The Trial, everyone present, including Kafka himself, was overcome by laughter—as mysterious a phenomenon as the laughter that greeted the death of Socrates.” The dark hilarity of The Trial stems from its pernicious nebulousness: in it, the law mercilessly prosecutes an individual who is never quite sure which crime he has even committed in the first place (financial? sexual?). He is not charged with anything specific, and psychologically collapses under the yoke of the law’s crushing weight. Eventually, he is executed for this nameless crime.¹⁴ For Kafka’s audience, the absurdity that underwrites the legal system in force throughout the text was comical in that it was uncanny: unspeakable, incomprehensible, excessive. Back in Massachusetts, no one drank hemlock, but Mistress Lauren was acquitted due to evidentiary and Miranda failures, and the poor prosecutor donning the leather mask of a dead paraphile earned the ire of a Judge who did not find his absorption by the aesthetics of the situation amusing at all. It’s almost as funny as the Phaedo.

Robert Nelson’s ability to get carried away by the mise-en-scène of the death tableau speaks less to his moral sobriety and more to the power of aesthetics, the absurd engine of so much contracting, sexual and otherwise. His story touches upon the narratology of Bakhtin, revealing a deeper narrative structure: a well of infectious performative excess within the chronotope of SM-time. This chronotope is powered by the absurd, which generates legal role-play in the game of surrender, disempowerment and sovereignty. For if pleasure-seeking revelers themselves can submit to the force of parody and performance in both simulated and real worlds, then so, too, can the individual charged with restoring order after all the bodies have been counted: the bounds of the performance are that fuzzy.

Nelson clearly relished his performance in a way that was unseemly for a legal professional charged with maintaining social and judicial equilibrium. The core issue here is that legal role-play is innately satisfying in and out of the condo-dungeon. It thus behooves the legal profession and those with the power to oversee the development and enforcement of contracts to take heed from this strange lesson brought to us via Criminal Law. Absurd all the way through, the performativity of SM-time has the power to infect multiple branches of the law: Contract and Criminal. Its implications may even stretch further. At minimum, these two legal fiefdoms are vulnerable to the destabilizing force of the aesthetic. Here, the adage “knowledge is power” takes on new meaning. Better to dive into this refreshing sinkhole than attempt to leap over it or skirt the circumference.

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¹ In making this claim, I am applying Jacques Derrida’s notion in Of Grammatology that “le supplément” is dangerous because it is a parasite. Derrida is talking about masturbation in Rousseau’s Confessions, what Rousseau refers to as the “dangerous supplement” that threatens to colonize sexual desire. Rousseau admits that the danger of masturbation is that it might satisfy the onanist too much, therein bypassing procreative sex altogether, which becomes no longer necessary. Within this logic, a sex contract would be supplemental because it mimics actual contracts through what I have termed legal mimesis (an aesthetic relationship). As an aesthetic supplement, its presence destabilizes that which it mimes, reversing polarities and unearthing secret chasms of desire. Such is the handiwork of mimesis in general.

² “The pleasure of the contract” is another way of articulating Roland Barthes’ sensual concept, “le plaisir du texte,” a staple in poststructural thought. This essay extends Roland Barthes’ concept of textual pleasure in his The Pleasure of the Text from the realm of poetry and prose (textuality) to that of legal writing. And why not? For Barthes and his fellow poststructuralists, writing is writing and should be interpreted as such, regardless of how it is used. While most law professors would scoff at this application, it is a necessary one if we are ever to arrive at a proper psychoanalysis of the law: that is, to unearth the urges, desires and motives that fuel the construction of rule-bound legal discourse in the first place, and of course its reliance on story-telling.

³ It might actually be that contracts have a masochistic value in the sexual scenario and a sadistic one in polite society, for while the sexual masochist demands such a document, the consumer or citizen is more often merely left without an alternative, something of a “captive” masochist. All of these themes warrant future discussion. Here, what matters is the idea that sex contracts might mimic a sadomasochistic structure hidden within “regular” contracts. Regarding the contested consumer items in Walker-Thomas, see Anne Fleming’s “The Rise and Fall of Unconscionability as the ‘Law of the Poor.’”

⁴ Michel Foucault’s I, Pierre Rivière, Having Slaughtered My Mother, My Sister and My Brother saves an early 19th-century parricide from oblivion, while his and Arnette Farge’s Disorderly Families compiles and examines various forgotten lettres de cachet penned in pre-revolutionary France by ordinary folk looking for regal intervention in extraordinary family dramas. In the same vein, Farge’s Fragile Lives brings together lost stories from working-class residents of Paris in the 18th Century discovered via the judicial archive. Together, Foucault and Farge rehabilitate erased and evaporated narratives in the archive of public consciousness, beckoning to Bakhtin.

⁵ The inevitable collapse of literal language is something Paul de Man demonstrates in his critique of Blaise Pascal’s geometry treatise De l’Esprit Géométrique in “Pascal’s Allegory of Persuasion” (Aesthetic Ideology). De Man dissects Pascal’s geometry to find metaphor: a surprising discovery for mathematics, which is typically the most literal of literal languages. If metaphor can live here, then it should be able to survive anywhere, even the law, a parallel discourse to mathematics: what I have called a “ submerged metaphoricality.”

⁶ Bakhtin does not differentiate general from special relativity. He seems to refer to general relativity, which lays out the four dimensions of spacetime.

⁷ “Foregrounding” was a central method of Russian Formalism, a school with which Bakhtin was loosely affiliated. In essence, one role of the critic is to separate foreground from background, therein allowing themes and concepts to manifest themselves within the strict confines of the writing itself. Bakhtin moves away from strict Formalism with his concept of heteroglossia, which views language as slippage between discourses and hence tied to extra-textual play. See specifically his “Discourse in the Novel” in The Dialogic Imagination: Four Essays.

⁸ The title from this section is based upon a fantasy chronotope I am yet to write about: the chronotope of the “psychological novel” (Marcel Proust, Virginia Woolf). The star of this chronotope could only be Odette Swann from Marcel Proust’s Remembrance of Things Past (specifically, Madame Swann at Home, part of the larger book Within a Budding Grove). Madame Swann at Home presents a modern version of the “marriage plot novel” (Jane Austen) filtered through the lens of a narrator whose relation to time comprises the substance of the novel throughout. Though the interior life of Odette is never of much interest to the narrator, her role as mistress of aesthetic pleasure is relevant to the budding chronotope I propose in and of its domination of the narrator’s spatioemporal consciousness.

⁹ Or even a constellation of regulated organs, if we believe filmmaker David Cronenberg. His sensational Crimes of the Future (2022) involves one such fictional government agency that forces citizens to register novel organs growing inside them and another that targets practitioners of “insurrectionist evolution.” His original 1970 film by the same title presents the theme as a subplot in a society where evolution has been hijacked by atavism and teratology: some individuals are developing webbed toes while one strange man constantly gives birth to novel organs for which there is no known function. A clinic extracts and catalogs them. The theme of regulated organs matters in the Foucauldian context. Foucault constantly emphasizes social technologies of surveillance and regulation: the madhouse, the prison, even the Catholic institution of Confession promulgated by the Fourth Lateran Council in 1215.

¹⁰ Venus in Furs also involves performative contagion, as the novel ends with its sadistic heroine, Wanda von Dunajew, getting carried away and transcending the bounds of her contract with her slave, Severin. The tropes identified thus overlap even within the same narrative.

¹¹ In “Descent into Darkness, Annotated Accounts of Cases, 1996-2014,” President Emeritus of Morality in Media Robert Peters provides a rich collection of SM headlines that may be further mined for both chronotopes and chronotropes. The high moral tones of the writing adds an almost camp quality to the act of reading against the grain, unearthing sadomasochistic tropes. For Peters, the story of Barbara Asher falls under the category “‘Consensual’ Sadomasochism Gone Awry: Adult Victims.”

¹² (3) is the subject of my future work exploring the legal situation of Stormy Daniels.

¹³ Unlike poor Jacques Derrida, who has no role in Law and Literature for Posner, Kafka is one of the few authors Posner encourages lawyers to read.

¹⁴ In The Trial, the truth of the Law is actually a parable, Kafka’s “Before the Law.”

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