It's a Travesty That BDSM Isn't Technically Legal

Illustration by Sarah MacReading

John Doe was a student at George Mason University (GMU) when he met Jane Roe, a woman with whom he formed a BDSM-based sexual relationship that culminated in an assault on or around October 27th, 2013. Roe, who played the submissive role, alleged in court documents (where both were assigned anonymous monikers) that on that day she pushed Doe away and did not want to continue. But he did—because, he alleges, she didn't use their safe word.

This March, the Virginia federal court in which Doe v. Rector & Visitors of George Mason University was heard made a historic leap in American case law as it relates to sex: They ruled that there is no constitutional right to engage in BDSM play in America. While no US laws currently criminalize BDSM, it's still a crime to harm others, regardless of whether they consent. It's a puzzle which places acts of BDSM in legal limbo—how do you legislate and define consensual, safe practices which are designed to sometimes look nonconsensual and dangerous?

It's not a completely unfamiliar problem for state legislatures, which have all had to legislate forms of consensual harm, such as tattoos, piercings, medical treatments and organized sports. When the political will is there, laws can be made to allow for such liberties while keeping people protected by the state. The time has come, say BDSM experts, for our nation to explicitly legalize BDSM, rather than let it wither in the legal grey area where it currently sits.

The Virginia decision, it should be noted, merely concluded that states have the constitutional right to criminalize BDSM, and didn't rule as to the morality of the practice or explicitly criminalize BDSM itself. Through the ruling, Virginia said that if a particular state or public entity (like GMU) believes it has an interest in preventing BDSM activity or passing laws which criminalize the practice, they can, and those prosecuted now have no legal recourse.

The idea that one cannot consent to harm is a basic principle of common law which has existed for centuries. Some believe we should abandon this principle in turn and enshrine consent as the guiding ideology of our legal framework instead. We let grown-ups do what they want—if a competent adult wants to be harmed, what business does the state have telling her otherwise?

It's not so simple. The consent to harm principle stands for good reason—because the law exists to preserve the public peace, not just to protect us from each other. We all have an interest in preventing people from settling their disputes by fighting and dueling. Equally important is that laws against consensual harm provide vital protection for domestic violence victims, who often tell police that they don't mind such abuse. Prosecutors need to be able to bring charges against abusers even when victims don't cooperate.

This might seem like a non-issue, because people are rarely prosecuted for engaging in BDSM, and police generally enjoy a strong relationship with the kink community. "The majority of run-ins and police have been minor and positive," Coreen Grace, a marriage and family therapy professor at the University of Nevada, Las Vegas and 20-year BDSM scene veteran, told VICE. In general, she continued, the BDSM scene has taken it upon itself to educate law enforcement bodies as to the ins-and-outs of their subculture.

"Since 1997, we've really transformed the way the police department treats us," Susan Wright, spokesperson for the National Coalition for Sexual Freedom (NCSF), told VICE.

But the legal right to engage in BDSM is still necessary for several reasons. First, BDSM players are frequent targets of discrimination. Because their behavior is not a recognized right, they have no legal recourse for the rare instances in which they are targeted for their lifestyle. Employers are free to fire people for being kinky, and BDSM activity can, and often does, become an issue in custody battles, where it can cause players to be deemed unfit to parent. A 2008 survey by the NCSF reported that a quarter of kinksters have suffered discrimination due to their proclivities. The NCSF offers legal assistance to BDSM players who face legal discrimination; Wright says that the number who have sought their help has dropped significantly over the past few years, but discrimination does continue.

Though statutes against gay sex were at one point rarely enforced, they legitimized homophobia and officially condemned homosexuality. By failing to recognize a public right to engage in BDSM, we condone the idea that kinksters are not normal.

As the law stands, if something non-consensual happens during BDSM play, victims may face trouble in getting prosecutors to press charges. And charges which manage to be successfully brought to court today are often tried under standard assault law rather than as sexual assault—and victims who seek justice under the former lack key protections offered to those who do so under the latter. Legal clarity on BDSM practice would also help in the prosecution of domestic abusers, who sometimes claim that their behavior was part of consensual play, by helping to legally distinguish genuine BDSM practice from sexual abuse.

It's worth noting that legal BDSM recognition could help reverse the social stigma against kinky sex as well. It's no secret that many try BDSM at some point in their lives; according to the 2005 Durex Global Sex Survey, 36 percent of U.S. adults have experimented with some form of bondage, and that was before the 2011 release of Fifty Shades of Grey. Yet many still consider BDSM strange or embarrassing. "While awareness is increasing and acceptance is too, is still very taboo," said Ruth Neustifter, a relationship therapy professor at the University of Guelph and active BDSM player. "It frightens many people, and it's far from their conception of what's normal."

Our laws serve as a ledger of our shared social values. Though statutes against gay sex were at one point rarely enforced, they legitimized homophobia and officially condemned homosexuality. By failing to recognize a public right to engage in BDSM, we condone the idea that kinksters are not normal. Explicitly recognizing their legal rights would signal that our society accepts kinky sex and recognizes its practice as a legitimate sexual identity. It would serve to manifest the promise of Lawrence v. Texas, a ruling meant not only to grant adults true sexual freedom but to ennoble their personhood as sexual beings. Sex is an intimate, inextricable part of our identity. If American legislators are willing to grant gays and lesbians recognition for their identity, it only follows that they should do the same for kinksters, and grant them the liberties they deserve.

Neil McArthur is associate director of the Centre for Professional and Applied Ethics at University of Manitoba, where his work focuses on sexual ethics and the philosophy of sexuality. Follow him on Twitter.

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