Legality of BDSM: Is BDSM Legal in the US and Other Countries?

Legality of BDSM: Is BDSM Legal in the US and Other Countries?

The BDSM acronym stands for bondage and discipline, dominance and submission, and sadism and masochism and has an ambiguous and controversial legal standing.

Certain BDSM procedures might be detrimental to the persons concerned. Legally, you cannot agree to be tortured or abused, although it is one of the pillars of BDSM play. The ambiguity lies there.

This might put legislators in a tricky predicament.
Even when they consent, BDSM actions may be subject to state criminal prosecution in the United States. There are several legal systems in other nations.

It has always been difficult to put legislation protecting BDSM participants into effect since behaviors that may seem consensual and safe might seem coercive and harmful to some people.

Laws Regarding BDSM

Regardless of whether the victim gives their agreement or not, it is against the law in the United States for one person to intentionally inflict bodily damage on another.

It should be highlighted that sexual masochism disorder, which is recognized by the DSM-5 and often entails severe actions and agony, is distinct from BDSM. The consensus is that BDSM is gentler and doesn't hurt or cause pain.

Each state must classify an act that results in bodily injury as a criminal. There is no federal statute that specifies this difference.

Activities like cutting, burning, or strangling that might harm another person are punishable as assault, aggravated assault, battery, sexual assault, or sexual abuse.

In addition, no privacy regulations shield BDSM users from having their sexual preferences exposed in court cases like divorce or child custody disputes.

The Issue of Consent

Even if the other person approves, it is illegal to hurt them in the US. To put it another way, it is illegal for someone to offer their agreement to being physically abused.

The legal standard for consent differs in BDSM cases as opposed to rape cases. If one of the participants did not agree to the sexual act, it is not considered illegal rape. In contrast, the criminal in a BDSM case is bodily injury.

A US appellate court has not yet recognized consent as a defense in a BDSM assault case.

However, some jurisdictions' statutes now include "consent to BDSM actions." The state of New Jersey, for instance, defines "simple assault" as "a disorderly person's crime unless when committed in a brawl or struggle engaged into by mutual accord, in which case it is a petty disorderly people charge."

Remarkable BDSM Court Cases

Several significant court cases that included significant decisions on BDSM topics include:

People v. Samuels (1967) Martin Samuels was found guilty of assault in the 1967 California case of People v. Samuels after appearing in a movie that included a BDSM scene. The court denied the defense of consent.

Commonwealth v.Appleby (1980) "Grimm's assent to Appleby's assault and battery against him by use of a hazardous weapon cannot relieve Appleby of the charge," a Massachusetts court said in Commonwealth v. Appleby (1980).

Iowa v. Collier (1985) Although the parties in Iowa v. Collier (1985) gave radically different stories of the BDSM encounter, the court would not allow the jury to consider consent as a defense.

People v.Jovanovic (1999) People v. Jovanovic (1999): After a BDSM scene descended into violence, Jovanovic was tried and found guilty of assault, sexual assault, and abduction. According to public policy, a person could not avoid criminal responsibility for an assault that results in injury or poses a risk of serious harm even if the victim requested or consented to the act, just as a person cannot consent to their own murder. This was stated by the court of appeals even though it reversed the convictions based on the evidence in the case.

People v. Febrissy (2006) Febrissy was accused of torturing, forceful raping, assault with a lethal weapon, and inflicting corporal harm in People v. Febrissy (2006). Only the most recent accusation was found to be true. His attorney tried to use a principle upheld by the Supreme Court in Lawrence v. Texas during the appeal (a landmark ruling that made homosexual activity between two consenting adults legal). According to the idea, the government cannot criminalize private, voluntary sexual behavior without a strong public interest (moral disapproval is not such an interest). The case was dismissed by the court.

Govan v.State (2009) State v. Govan (2009) Govan, the defendant, was found guilty of assault and violence after branding his partner with a hot knife and whipping her with an extension wire. The appeal court disagreed, holding that Govan could not use the other person's permission as a defense against an assault allegation.

Doe v.Rector and Visitors of George Mason University (2016) Doe v. George Mason University's Rector and Visitors (2016) In this instance, an unnamed lady, was accused of assault. The man, identified only as John Doe, said the victim failed to utilize the designated safe word. The court reached the daring conclusion that there is no constitutionally protected right to practice BDSM in the United States.

Efforts to Decriminalize BDSM

Some awareness organizations, including the National Coalition for Sexual Freedom, have started campaigns to change the legislation so that people in the BDSM community are more protected. Their "Consent Counts" campaign strives to educate the public that BDSM that is consensual is not sexual assault.

The group works to persuade jurors that BDSM-related harms should only be punished if they are either extrajudicial or sufficiently severe to constitute an abuse of BDSM practices.

Some professionals and supporters encourage using contracts that specify the boundaries and guidelines of BDSM activity. These contracts are not legally binding, although they could be advantageous to the parties.

BDSM in Other Countries

BDSM activities are ruled by regulations that differ from nation to nation.

Countries like Germany, the Netherlands, and Scandinavia generally recognize consent to some extent and seldom prosecute BDSM activities, depending on the circumstances.

On the other hand, British law is more similar to American law because it does not accept consenting to physical damage. The U.K.'s House of Lords declined to consider permission as a defense for partaking in sadomasochistic behaviors in the landmark case R v. Brown in 1994.

According to some experts, some BDSM sex activities may qualify as crimes of torture under international human rights standards. No one should be "subjected to torture or cruel, inhuman or degrading treatment or punishment," according to Article 7 of the International Covenant on Civil and Political Rights of the United Nations.

The Bottom Line

There are numerous ambiguities and unsettled concerns about BDSM and the law.

Advocates for legal rights for the BDSM community contend that what consenting individuals do in their beds shouldn't be considered illegal.

Some claim that it is a slippery slope. One significant worry is that if the courts accept consent as a valid defense, it may be used to claim domestic violence and abuse.

As BDSM grows more and more commonplace, this discussion will probably go on for years to come, both within and outside the courts.