There is increasing evidence that human sexuality involves far more diverse flavors and interests than historically acknowledged. When von Kafft-Ebing first began labeling various paraphilic sexual interests, they were believed to be generally rare. But research by Joyal and Carpentier reports that nearly 50 percent of a non-clinical, random sample disclosed being interested in at least one sexual behavior historically deemed unusual or anomalous.
Engaging in BDSM (an umbrella acronym describing a variety of behaviors such as bondage, discipline, sado-masochism, dominance, and submission) was historically deemed not just unusual but unhealthy. Sadism and masochism were paraphilias included in the DSM, though, as Joyal and Carpentier found, around 25 percent of people have fantasies of masochism and 7 percent of sadism. Another nationally representative study found that 20 percent of people in the U.S. have engaged in bondage, and 30 percent enjoy spanking during sex.
Increasingly, diverse sexual interests such as BDSM have gained some social acceptance and recognition that these behaviors are not inherently unhealthy, with clinical guidelines for kink promulgated in 2019. However, clinical acceptance of such diversity is one thing; acceptance in halls of justice is another.
There have been numerous past cases in which people were prosecuted for criminal or sexual assault for behaviors which were reported to have been consensual. The most famous of these was Operation Spanner in the United Kingdom, in which gay men who’d engaged in extreme BDSM behaviors while being filmed were prosecuted and convicted, with courts ruling that the men’s consent was “immaterial” and that consent did not allow such bodily harm in a “civilized society.” Unfortunately, no court decisions in the United States have accepted consent as a defense to prosecution for assault or abuse when involving BDSM. Because the criminal court system is generally unfriendly to BDSM, many potential criminal acts within BDSM go unreported due to fear of stigma or embarrassment.
I’ve consulted and testified in numerous cases in which charges were filed, and courts, judges, and juries had to try to wade through complex details and parse out what was or wasn’t consensual. In such cases, my role as expert is usually to help juries make decisions based on a solid, grounded understanding of sexual diversity, rather than assuming these behaviors are inherently indicative of disturbed persons and making legal decisions from that flawed perspective.
Unfortunately, until now, neither people involved in BDSM nor the legal system had a solid, agreed-upon framework of what kinds of things could and should be done in BDSM to ensure the greatest protection from criminal charges. The kink and BDSM communities have had guidelines, such as Risk-Aware Consensual Kink (RACK) and Safe, Sane and Consensual, which the community used and taught in order to distinguish unacceptable, harmful, and dangerous behaviors. These guidelines offer protection to the community by excluding nonconsensual behaviors, but may offer little legal protection should such “risk-aware, consensual “ behaviors result in criminal charges.
My Psychology Today colleague Eli Sheff published a post describing her own experiences in such cases. She uses lessons learned from these cases to recommend that people involved in kink could best avoid criminal charges by being sober during activities; seeking training and education in safe kink; clarifying consent with explicit verbal and/or written discussions; and using extreme caution with extreme activities, such as erotic asphyxiation, or more serious physical harmful behaviors, such as piercing or cutting.
THE BASICS