When engaging in BDSM sport and play, getting consent by both participants can lead to a more beneficial, safer experience. (Photo Credit: Gennadiy Poznyakov)

As more people communicate their wants and needs to the world, and hopefully their partners, we understand that more and more people have similar kinks and non-sexual conduct needs. A 2005 survey stated that 36 percent of adults have used some kinds of masks, blindfolds or bondage tools. The number could be up to 60 percent of adults per another study completed after the onslaught of the mainstream reading frenzy of 2012, with “50 Shades of Grey” being read by every soccer mom in the nation. Even college campuses have kink organizations — from Harvard’s Munch started in 2012 to Cornell, Tufts, Yale and over 30 more campuses — while many more have professors who teach or research the subject.

Before you engage in role-play, impact play, rope play or one of the many other types of kink or BDSM (bondage/discipline, dominance/submission and sadism/masochism) conduct, you must get informed consent from all sexual and non-sexual partners. Informed consent is the communication and understanding about who is doing the activity, how it will be performed and even for how long. This consent can come in both oral and written forms and may include the use of negotiation instruments or contracts. When medical care or law enforcement is sought is when consent and the understanding of all in the relationship are important. The legal system is behind in both areas of non-sexual conduct and consent. Even with written informed consent, a person can be found guilty of assault, either sexual or non-sexual conduct, if the other person is harmed by the play.

Informed consent is not a legal term in most states in criminal law, but it is used in organizations that educate people about preventing sexual assault in the BDSM community. Each state has different definitions for consent, from very in-depth fact-specific consent to basically no defense of consent. As kink and BDSM become mainstream, the term “consent” is being discussed in the legal community based on many cases wherein people try to use the affirmative defense of “consent to the conduct.” There are actually over ten law review articles regarding consent within contracts and criminal law. Consent is divided in two parts: Sexual conduct and non-sexual conduct.

Having a ‘contract’ between consenting adults with regard to BDSM encounters is important for its success. (Photo Credit: Denis Kadatsky via Adobe Stock)

Sexual conduct requires sexual organs and some state laws still say that sexual conduct requires the entry of a sexual organ.

Non-sexual conduct is any activity that does not involve sexual organs. This can be a sport, a bar fight or BDSM.

Sexual conduct falls under the protections of the landmark Supreme Court case of 2003 named Lawrence v. Texas. The case stated that private sexual conduct between consenting adults is protected under the Constitution. That has not been extended to non-sexual conduct, because of the historical common law, model penal code and state statutory laws saying that a person cannot consent to an assault or violence. A 2016 case named Doe v. Rector & Visitors of George Mason University stated that a person does not have protection under the Constitution to engage in BDSM sexual activity, and the state has an interest in restricting BDSM activity that places a sexual partner in situations with elevated risk of physical harm. A 2008 Supreme Court case named United States v. Marcus talked about the difference between consent and abuse within domestic relationships that had nonconsensual and consensual BDSM conduct along with forced labor. The real legal issue was the timing of a new federal act that was passed during the conduct. The finding of the 1999 New York case named People v. Jovanovic states that a person can be found guilty of an act of “sadomasochism,” which is an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act. “Most kink, especially in the BDSM lifestyle, is actually non-sexual conduct. Any action that could harm another person could be considered assault in most states. For the most part, a person cannot consent to an assault except in athletics.”

In-state laws, consent cannot be given by someone underage, impaired by drugs or alcohol, cognitively impaired or developmentally disabled or coerced. The defense is only applicable to BDSM within the consent to sexual contact, and it varies widely between states. Since laws about assault, consent, and even “no-drop policies” change from state to state and even from county or city, dungeons and other “play spaces” with clear defined club rules and policies could be a good place to play when traveling and even learning about the lifestyle. They usually, if part of national organizations and reputable, will have rules and policies that could be extra-judicial in nature yet understand the standard of consent within that community. Many websites have popped up to try and educate people and provide a place for people to meet others in the lifestyle. Many people who are new to this lifestyle have been lured in and even harmed by people who are not educated in the lifestyle. As with any relationship and activity, you must use caution when meeting people and getting into new situations.

Clubs, on the other hand, have more robust consent policies that include statements such as “no means no” to even the need for express permission to touch play equipment or even take a photograph with people in the background. The rules are directive and instructive. They inform people what to do and what not to do, and they instruct people in how to go about navigating consent. Most clubs state that consent cannot be given when incapacitated by alcohol or drugs, and some even include mental state influenced by anger or grief. Club policy or bylaws cover adjudication handled in-house with due process, appeal process and even statute of limitation. Some have a more open policy of starting the in-house adjudication process to facilitate the ability to be heard by all parties, but the consequences vary widely between clubs, from language suggesting repeat offenders are still welcome, to termination of membership.

As you celebrate Valentine’s or just next Thursday, realize that you must accept the responsibility of getting consent for any conduct and contact with your partners, no matter if it is sexual or non-sexual. This hinges on communication between all parties and understanding the conduct or contact along with the knowledge of doing it safely. There are many sites to educate yourself and partners about getting informed consent and many clubs to learn how to do it safely. Just understand that all actions have consequences and that you must play within your abilities.

Cristal Robinson, JD & MBA is a national attorney located in Charlotte, N.C. and Texas who helps sex-positive businesses and people stay out of court by educating them on what to do right in the first place and by helping families and other individuals stay out of court through mediation and collaborative law. For more information, visit cristalrobinson.com.

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