Is BDSM Legal?
Seeing how controversial BDSM and kinks around it can get, it’s not uncommon for people to ask about its legality. Sure enough, we can understand that. It’s not often that you see sadism and masochism as something positive in film, TV, or pop culture in general. Moreover, it’s almost always some crazy people looking to hurt the movie’s lead character.
But BDSM isn’t something that functions without consent. Come to think of it, approval and permission are the pillars of the culture. However, the United States and other Western countries’ laws don’t see bondage and its relatives as simple black and white. That is why our article aims to debunk whether it’s actually legal to participate in such sexual relationships.
The Legal Status of BDSM
Throughout the years, the legal status of BDSM activities was a topic of discussion and debate between lawyers and lawmakers. It’s a pretty gray area since it’s all about consent and potentially harmful contact. But even in that case, physical abuse is illegal. Assault and torture are criminal offenses, no matter how you’d like to present them. But, hey, let’s slow it down a bit, shall we?
Firstly, not everything around BDSM includes physical abuse. Moreover, you can argue most of it is mind games that revolve around dominance and submission. Lots of people in the community don’t care for sadism and masochism. The way they go about discipline is more than spanking, whipping, or any other physical contact. Yet, people still have this image of BDSM as something evil and painful (thanks, mainstream media).
Either way, to make a long story short, BDSM sexual activity is legal as long as no one gets hurt and wants to sue. What some deem offensive and dangerous might be quite the opposite for others. Unfortunately, judges who don’t engage in BDSM decide in the end. So, it’s important to know what and with whom you’re doing.
Are There Laws Governing BDSM?
The U.S. law is pretty clear about things involving violence of this kind, unlike some other things. When a person causes physical harm to another, it’s a criminal offense that’s punishable by law. And unfortunately, there’s not enough consent in the world that will go against that. Well, that’s not always the case, but we’ll talk about that a bit later. Nevertheless, BDSM isn’t exactly MMA, is it?
Unlike sexual masochism disorder, BDSM is rather mild and doesn’t involve all that much sweat and pain. Sexual masochism disorder is recognized by the American Psychiatric Association, as it involves extreme acts of violence. That is not the case with the fetish we’re talking about here. Not at all.
In reality, there are no exact BDSM laws (at least they don’t go by that name). In the United States, every state has the responsibility to treat any act that consists of physical violence as a criminal offense. Simply put — federal law doesn’t apply here.
Things like cutting, bruising, or burning are all aggravated and sexual assault, battery, and sexual abuse. Well, at least they can be prosecuted as such. On the other hand, in case of divorce and custody battles, no law protects people from answering if they participate in BDSM or other sexual acts.
But BDSM Is Supposed to Be With Consent, Right?
Since our article aims to talk about the legality of BDSM practices of consenting adults, it’s only fair that we mention some of the most famous court cases revolving around it. The main thing here is consent and how the law in America sees it. So, let’s check some of them, shall we?
Back in the ’60s, our favorite dangerous kink was something of a myth in the minds of average Americans. However, for a certain Martin Samuels, it would prove to be a nightmare. People vs. Samuels was a 1967 case in California that didn’t care for consent. Martin’s acts in a film with a bondage scene made for a guilty verdict.
A similar thing came to be for a certain Collier in Iowa in 1985. Even though both parties had a pretty different view of the events, the judge didn’t see consent as a valid ground for the defendant. Similar to this case, another one in 2009 came to the conclusion that consent doesn’t work when assault comes into play. Govan, the defendant, had fun with a hot knife and an electrical cord with his then-partner.
To avoid making this article a paper report of all bondage-related cases in the U.S., we’ll segue into the topic of ongoing efforts for consensual BDSM decriminalization. But before we do, it’s important to mention once again that participation in such acts should always come with a healthy dose of knowing your partner. People often overlook whom they come in contact with because of the jaw-dropping lure of BDSM satisfaction.
Decriminalizing BDSM
Just like with every new kink, perversion, or sexual orientation, there are always groups for and against it. In some ways, we have a similar social climate to that of the late ’60s when the Stonewall riots turned the tide of homophobia in the U.S. The legal BDSM community is in a somewhat same position as queers were back then. Mainstream sees it as dangerous, sleazy, and unacceptable, which is quite disturbing for a world that talks about tolerance and inclusion.
Namely, the National Coalition for Sexual Freedom is paving the way for laws to protect the bondage community. They aim to separate sexual assault and BDSM intercourse. Their views are that it should only come under prosecution if the injuries are so severe that they fail to meet the practices of BDSM. However, some groups don’t see these views as normal and protest the movement.
The chances are that in the future, we’ll come more in line with European practices like those of Scandinavian countries, where they rarely penalize consensual BDSM activities. Still, this is a pretty gray and muddy area even for lawmakers and lawyers. But it doesn’t mean that you should avoid consent even if it might prove useless in an unfortunate event of a trial. It’s key that you play smart and don’t go for it with anyone who’s seemingly willing to be your sub/Dom partner.