The Law and BDSM

BDSM is a choreography of dominance and submission, where trust is the tempo, and consent is the rhythm, which, by its nature, involves activities where one partner controls another, and can include confinement, social or conduct restrictions, the interchange of pain for pleasure as well as sexual activities.

Evolution of BDSM

BDSM in modern times dates back to the leather subculture of the 1930s. The Internet of the late 1980s provided a platform for individuals to share interests and discuss activities freely. BDSM coalesced as an alternate lifestyle among many others. BDSM, like the gay, lesbian and transgender communities, have all suffered under restrictions and draconian laws that only in the last twenty years have seen these reversed in many jurisdictions. However, in many religious fundamentalist or authoritarian societies, these persist as a mechanism to control the masses.

Jurisdictional Variance

According to most jurisdictions, these activities are legal only when they involve fully informed and voluntary consent between adults. This consent is typically defined and governed by a written agreement, which outlines the limits and restrictions on the transfer of authority between individuals. Even so, in some jurisdictions, BDSM activities are scrutinized and, due to various factors, may be considered criminal activities. In these jurisdictions, participation in BDSM (and other non-binary relationships) is viewed as deviant or threatening to the control imposed by the supporting society.

Specifics to Consider

The question is where the courts view the dividing line between consensual and criminal activities. There is a common misconception about these niceties, largely due to the complex nature of cross-jurisdictional laws and interpretations. This has resulted in further marginalization and doubt in society regarding BDSM. Case law demands that individuals caught up in such proceedings owe it to themselves and the community to educate themselves on the practices and governance within the BDSM culture. This is particularly true when all parties involved agree that the acts were consensual. This helps the courts define for law enforcement how to distinguish between genuine BDSM and those involving non-consensual activities disguised as BDSM.

Technically, most “impact play” is subject to rules governing assault, although in many cases, this is a gray area. In a BDSM case, however, causing bodily harm is a crime in and of itself. These jurisdictions will view some activities as assault, aggravated assault, sexual assault, or sexual abuse. This is particularly the case when grievous bodily harm occurs. Permanent physical injury to any individual would be viewed harshly in most criminal courts. Even with explicit consent, certain BDSM activities are criminal under some jurisdictions. There are no exceptions for consent that is socially valued.

Bondages and confinement are also areas where intent and consent largely define the legality of these activities. Without a codified agreement signed in free will, such acts are looked on legally as anything from illegal confinement to kidnapping, which in many jurisdictions attaches the death penalty to a conviction.

The invasion of privacy, to a lesser degree, is also a gray area. Clearly, if defined in a contract, then the legal implications are either nullified or substantiated.

There is a vast difference though between BDSM and RAPE. With BDSM, the definition of allowable acts under a preset contract is considered informed consent. Whereas RAPE considers the absence on continual consent between various acts as ground for assuming an act criminal. In a BDSM case, however, causing physical harm is a crime in and of itself.

Legal Qualifiers

Consent

However, in most jurisdictions, a contract is viewed in the same light as a Prenuptial Agreement (albeit on steroids). Agreements made with informed and duress-free consent are legally considered, according to most contract law. Hence, participation in BDSM requires consent. The consensual agreement to punishment, confinement, restraints, and sexual activities protects both parties and provides a strong legal basis for a defence. BDSM acts are legal in countries such as Japan, the Netherlands, Canada, and Germany, as they are viewed as a private matter between informed, consenting adults. The key terms here are "Adult" and "Informed Consent." Individuals underage or of diminished capacity can not provide informed consent. Courts are reluctant to interfere in the acts conducted in a private setting under these conditions.

Prostitution

When the engagement of activities involves the exchange of services for a monetary reward, it is broadly considered solicitation. When consulted, it becomes prostitution. Liberal jurisdictions frequently allow prostitution in confined situations; however, the general solicitation of funds for services or the offering to purchase services for funds is still deemed in most jurisdictions as solicitation.

Scamming

Regardless of the above situation, soliciting funds under pretenses is always considered theft or fraud under most legal systems. Whether it is a Financial Dominant (FinDomme, FinDom) or a lifestyle supplicant (slave, thrall, etc.), the demand and offer of services for monetary reward is regarded as a criminal act in almost all jurisdictions.

Dispute

Disputes are difficult to resolve as no formal structure is in place to adjudicate them. No adequate regulations or case law exist which regulate the degree of pain or punishment allowed in any given BDSM activity. The breach of predefined limits, however, defines the basis for a dispute and can, at the very least, allow the offending party to terminate any agreement into which they entered. The lack of "safe words" or ignoring them during activities is another factor that undermines agreements.

Conclusion

Ultimately, there are no universal laws governing BDSM. Although case law around contracts is growing in specific jurisdictions, it at least defines what is consented to and permitted. Ultimately, to minimize the effects of any legal proceeding, agreements must be clear, complete, and in place, having been mutually reviewed and agreed upon. Even if legal proceedings fail, both parties will be subject to public scrutiny and possible embarrassment or disgrace.

by Aramock Nanuck June 2024