Is It Legal To Engage In 'Hard' BDSM?

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BDSM stands for Bondage & Discipline (BD), Domination & Submission (DS) and Sadism & Masochism (SM). The layers of coercion, consent, pleasure and pain are as complex as the acronym itself and defined by the participants themselves.

What goes on in private between consenting adults is typically no one else's business - but it can present problematic demarcations in the law of assault. So what does our legal system have to say about so-called "hard" sadomasochistic acts? Let's find out.

In the erotic novel Fifty Shades Of Grey and its film adaptation, the titular Christian Grey knows exactly his hard limits in sadomasochism. He may also know a thing or two about his legal limits.

When Grey informs the innocent Ana about the unnegotiable “hard limits” he sets down in a contract governing their BDSM activities – including no fire play, cutting, piercing, bloodletting, gynaecological instruments, scarring, permanent disfiguration, breath control, defecating/ urinating or use of electric current – she is confounded (probably with a blush and the cautious words of her subconscious). The law is a bit confounded too.

A legal perspective

For criminal lawyers, for humans in general, the hard limits described above may look a little bit like assault. The offence of wounding or grievous bodily harm with intent – which includes where there is permanent disfiguration or serious harm – attracts a maximum sentence 25 years imprisonment.

In Australia’s Northern Territory, mandatory prison sentences apply to first-time serious violent offenders. This may include acts involving cutting, scarring, whipping or caning. But the legislation does not prescribe the nature of violent activities or whether inflicting pain in the name of sexual pleasure is permissible.

In principle, if the participant suffering the harm consents to the violence, this would legalise what would otherwise be deemed assault. Consent provides an important pillar in nullifying assault claims – but it’s not the only pillar.

The law on consensual violence is cobbled together from a small pool of legal cases. The parameters are rarely tested, given that consenting and willing participants are hardly going to complain to police and press charges. Cases are often brought to the attention of authorities when something goes wrong or evidence emerges during an investigation for another crime (such as video tapes found during a drug investigation).

Demarcations of acceptable harm, beyond which would constitute serious assault, appear to hinge on the participants. In cases of “rough but innocent horse-play” in heterosexual relations, or violence inflicted in boxing or prize fighting, courts have refrained from convicting participants of assault due to the presence of consent.

Consent also legalises bodily harm arising in the normal course of surgery, contact sports, ritual circumcision, tattooing and ear piercing. But the law has been less accommodating with similar acts and similar levels of harm in different contexts.

Beyond consent

Courts have condemned consensual acts of gay sadomasochism or Indigenous law punishment. The Northern Territory Supreme Court in the 2004 bail case of Re Anthony held that it could not condone the offender being let into the community to allegedly have Elders in the Tanami Desert community of Lajamanu spear him in the leg and hit him with nulla nullas.

The Court regarded that it was immaterial that the offender consented to the spearing, on the grounds that it would restore relations and remove the curse of his offence, because the serious nature of the harm meant it was not in the community’s interest. In the 1994 case of R v Brown, the House of Law found that consensual sadomasochistic activities involving a group of gay men was illegal.

This case was brought to the House of Lords to determine whether proof of wounds or harmful assaults in the course of sadomasochism required the prosecution to prove a lack of consent. The majority held that the gay sadomasochistic assaults were unlawful “because public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men”.

It also regarded the availability of code words that the participants could pronounce to discontinue the act as insufficient evidence of ongoing consent.

Permissible harm

Apart from courts relying on morality and colonial jurisdiction to set limits for lawful bodily harm, there is a spectrum of permissible harms in the context of consensual force (at least as far as BDSM and Indigenous law is concerned) that does not extend to wounding or serious harm.

The law may differ in other settings, such as permitting wounding in a tattoo parlour or through an elective caesarean. In R v Brown, where the House of Lords considered the legality of harm in gay sadomasochistic acts, it prohibited genital torture, violence (including beating) to the buttocks, anus, penis, testicles and nipples, branding, bloodletting and wounding with instruments.

The majority described these acts as uncivilised, involving the indulgence of cruelty by sadists and humiliating and degrading activities such as defecation. There is a lack of legal precedent on whether public policy would grant heterosexual couples with greater latitude to exact consensual sadomasochistic harm.

However, even with written consent, it is unlikely that acts such as bloodletting and permanent disfigurement would escape lawful punishment based on the level of serious harm and the intimidation that may underpin the procurement of consent.



Thalia Anthony, Senior Lecturer in Law, University of Technology Sydney

This article was originally published on The Conversation.

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Comments

    Honestly, in the pdf of Regina vs Brown we see proof that the old fossilised "elites" are handing down rulings that are completely out of touch with society as it now stands 25 years on. Statements like:

    "Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life...a relaxation of the prohibitions...can only encourage the practice of homosexual sado-masochism,"

    Makes me want to puke all over their powdered white wigs.

    On and on and on they keep raving about the crimes of buggery and the gross indecency of these disgusting homosexual practices. At one point they talk of one of the subs who expressed an interest in gay sex who has... "since reformed and now thankfully leads a happy heterosexual life" to use their own words.

    All of this case law is outdated, irrelevant, and should be burnt - especially if it makes a distinction or even mentions the word homosexual.

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