Millions of Americans participate in consensual, mutually agreed-upon activities such as bondage, dominance, and submission—collectively referred to as BDSM or kink—yet the relationship between individual consent to such participation and consent as legally understood and defined is imperfect at best. Because the law has not proven adept at adjudicating disputes that arise in BDSM situations, communities that practice BDSM have adopted self-policing mechanisms (formal and informal) aimed at replicating and even advancing the goals and protections of conventional law enforcement. This self-policing is particularly important because many jurisdictions hold there can be no consent to the kind of experiences often associated with BDSM; this is true in practice irrespective of the existence of statutory language regarding consent. In this Note, I compare legal communities and BDSM communities across three variables: how consent is defined, how violations are comparably adjudicated, and the types of remedies available by domain. In the process, I examine what norm-setting and rule adjudication look like when alternative communities choose to define, and then operate within, norms and controls that must be extra-legal by both necessity and design.
The percentage of people worldwide who are involved with alternative lifestyles that involve consensual physical, sexual, emotional, psychological, or other subservience to another individual or individuals is an open question, with estimates ranging from 1% to 60%. Some people’s forays into alternative lifestyles are not-too-distant from the conventions of “vanilla” — light spanking, say—while other people have entire relationships rooted in the exercise of Bondage/ Discipline/Sadomasochism (“BDSM”) and the power differentials that anchor it. For some in this latter group, BDSM can be an identity, with a staggering number of available titles from which to choose a representation of self. ... For others, BDSM involvement is less tied to an identity and experienced more as an avocation—a pastime or proclivity that no more defines them than does their preferred brand of cereal. For such people, a bit of added sexual spice may be the full extent of their engagement with the “lifestyle.” ...
Scenes are often heavily negotiated; there are multiple instruments available online to increase self-awareness (focusing on how people want to feel or what they are hoping to accomplish within a scene) or to facilitate communication (what kinds of play activities are on the table; acceptable and unacceptable tools and implements; parts of the body on- and off-limits, etc.). The implements used in scenes—floggers, whips, crops, etc.—are typically called “toys.” Rope and other means of bondage are often utilized.
The public spaces in which scenes occur are often called “Dungeons” or “Clubs,” and it is worth clarifying up front that not all of these spaces are sex or swingers clubs. This is important because, as will become clear later in this Note, most consent-based laws and statutes focus on consent to sexual contact; as such, these may be of limited utility in situations where consent is expected for a far greater range of contacts than sexual. At Clubs, “safewords”—words that tell scene partners to keep going, slow down, or stop altogether—are essential. Many Clubs have Dungeon Monitors to supervise play spaces, ensure compliance with Club rules, and see to it that safewords are honored.
While some scenes can be gentle, others can be quite brutal. What distinguishes BDSM and related lifestyles from domestic violence or sexual and other assault is the element of consent—freely, knowingly, and intelligently given by all participants (all of whom must be of majority age). This consent can come in both oral and written forms and may include the use of negotiation instruments and contracts. Both major philosophical models within BDSM—Safe, Sane, and Consensual (“SSC”) and Risk Aware Consensual Kink (“RACK”) —hold as sine qua non the importance of consent, particularly given the physical, mental, and emotional risks associated with the lifestyle.
Part I of this Note examines current issues at the intersections of BDSM and the law, including the fact that consent is not an affirmative defense for much of what occurs in BDSM contexts. This produces two distinct points of dissonance: one, the possibility of unwanted and unwarranted legal intervention in activities between consenting adults (with particular legal consequences for “tops,” or those who tend to produce the action); and two, a failure to truly protect victims (or “bottoms,” those who typically receive the action) for lack of understanding of BDSM culture.
Part II is a comparative analysis of ways in which BDSM and legal communities define acceptable standards of behavior, how each adjudicates deviations from the standard, and how each resolves deviations, such as through remediation or rehabilitation. This examination contrasts the rules and bylaws of BDSM Dungeons and Clubs across the country with state laws around consent, and the attendant comparative adjudications and remedies within each. The goal, as with any qualitative research, is not to produce generalizable findings but rather to give a sense of how the language of consent aligns, or does not align, across these two domains. Part II also includes a brief examination of the complications that ensue when an extra-legal framework is layered on an ever-present legal one.
This Note concludes with an evaluation of what law-and-order principles that are (currently) tone-deaf to BDSM mean for privacy, sexuality, and freedom of kinky expression for those who partake in BDSM activities. It also examines the implications for the further evolution of consent—how it is defined, and how it is implicated as an affirmative defense—both to BDSM and to broader arenas, and in and outside of conventional spaces of law and order.
'The Role of Consent in the Context of BDSM' by Cara R. Dunkley and Lori A. Brotto comments
Consent represents a central focus in the controversial realm of BDSM—an overlapping acronym referring to the practices of Bondage and Discipline, Dominance and Submission, and Sadism and Masochism. Many authors have argued that the hallmark feature that distinguishes BDSM activity from abuse and psychopathology is the presence of mutual informed consent of all those involved. This review examines the relevant literature on consent in BDSM, including discussions on safety precautions, consent violations, North American laws pertaining to BDSM practice, and the role of the BDSM community with respect to education and etiquette surrounding consent. Practical information relevant to professionals who work toward the prevention of sexual exploitation and abuse is provided. The explicit approach to consent practiced by those in the BDSM community is proposed as a model for discussions around consent in clinical and educational contexts. Criteria for distinguishing abuse from BDSM and identifying abuse within BDSM relationships are outlined. It is our hope to demystify the consent process and add to the growing body of literature that destigmatizes consensual BDSM practices.