BDSM and the law
The relationship between BDSM and the law changes significantly from nation to nation. It is entirely dependent on the legal situation in individual countries whether the practice of BDSM has any criminal relevance or legal consequences. Criminalization of consensually implemented BDSM practices is usually not with explicit reference to BDSM, but results from the fact that such behavior as spanking or cuffing someone could be considered a breach of personal rights, which in principle constitutes a criminal offense. In Germany, Netherlands, Japan and Scandinavia, such behavior is legal in principle. In Austria the legal status is not clear, while in Switzerland some BDSM practices can be considered criminal. Spectacular incidents like the US scandal of People v. Jovanovic and the British Operation Spanner demonstrate the degree to which difficult grey areas can pose a problem for the individuals and authorities involved. It is very important to learn the legal status of the right of consent in the judicial statue of the country of resident for the practitioners of BDSM.
§90 of the criminal code declares bodily injury (§§ 83, 84) or the endangerment of physical security (§89) to not be subject to penalty in cases in which the "victim" has consented and the injury or endangerment does not offend moral sensibilities. Case law from the Austrian Supreme Court has consistently shown that bodily injury is only offensive to moral sensibilities (and thus punishable) when a "serious injury" (meaning a damage to health or an employment disability lasting more than 24 days) or the "death" of the "victim" results. A light injury is considered generally permissible when the "victim" has consented to it. In cases of threats to bodily well-being, the standard depends on the probability that an injury will actually occur. If serious injury or even death would be a likely result of a threat being carried out, then even the threat itself is considered punishable.
In 2004, a judge in Canada ruled that videos seized by the police featuring BDSM activities were not obscene, and did not constitute violence, but a "normal and acceptable" sexual activity between two consenting adults.
In 2011, the Supreme Court of Canada ruled in R. v. J.A. that a person must have an active mind during the specific sexual activity in order to legally consent. The Court ruled that it is a criminal offence to perform a sexual act on an unconscious person – whether or not that person consented in advance.
The practice of BDSM is not generally penalized in Germany if it is conducted with the mutual consent of the partners involved.
The following sections of the criminal code may be relevant in certain instances for BDSM practices:
To fulfill the charge of coercion, the use of violence or the threat of a "severe mistreatment" must involve an endangerment to life and limb. In cases where the continued application of the treatment could be ended through the use of a safeword, neither coercion nor sexual coercion may be charged. In the case of charges of sexual abuse of people incapable of resistance, similar principles apply. In this case, taking advantage of a person's inability to resist in order to perform sexual acts on that person is considered punishable. The potential use of the safeword is considered to be sufficient possibility for resistance, since this would lead to the cessation of the act, and so a true inability to resist is not considered to be in effect. The charge of insult (slander) can only be prosecuted if the defamed person chooses to press charges, according to §194. False imprisonment can be charged if the victim—when applying an objective view—can be considered to be impaired in his or her rights of free movement.
According to §228 of the German criminal code, a person inflicting a bodily injury on another person with that person's permission violates the law only in cases in which the deed can be considered to have violated good morals in spite of permission having been given. On 26 May 2004, the Criminal Panel No. 2 of the Bundesgerichtshof (German Federal Court) ruled that sado-masochistically motivated physical injuries are not per se indecent and thus subject to §228. Still, this ruling makes the question of indecency dependent on the degree to which the bodily injury might be likely to impair the health of the receiving party. According to the BGH, the line of indecency is definitively crossed when "under an objectively prescient consideration of all relevant circumstances the party granting consent could be brought into concrete danger of death by the act of bodily injury." In its ruling, the court overturned a verdict by the Provincial Court of Kassel, according to which a man who had choked his partner and thereby involuntarily strangled her, had been sentenced to probation for negligent manslaughter. The court had rejected a conviction on charges of bodily injury leading to death on the grounds that the victim had, in its opinion, consented to the act. Following cases in which sado-masochistic practices had been repeatedly used as pressure tactics against former partners in custody cases, the Appeals Court of Hamm ruled in February 2006 that sexual inclinations toward sado-masochism are no indication of a lack of capabilities for successful childraising.
For Italian law, BDSM is right on the border between crime and legality, and everything lies in the interpretation of the Code by the judge. This concept is that anyone willingly causing "injury" to another person is to be punished. In this context, though, "injury" is legally defined as "anything causing a condition of illness", and "illness" is ill-defined itself in two different legal ways. The first is "any anatomical or functional alteration of the organism" (thus technically including little scratches and bruises too); The second is "a significant worsening of a previous condition relevant to organic and relational processes, requiring any kind of therapy". This makes it somewhat risky to play with someone, as later the "victim" might call for foul play using any sort of little mark as evidence against the partner. Also, any injury requiring over 20 days of medical care must be denounced by the professional medic who discovers it, leading to automatic indictment of the person who caused it. BDSM play between nonconsenting adults or minors or in public is of course punished according to normal laws.
In September 2010, a Swedish court ruled that a 32-year-old man was acquitted of assault for engaging in consensual BDSM play with a 16-year-old woman (the age of consent in Sweden is 15). Norway's legal system has likewise taken a similar position, that safe and consensual BDSM play should not be subject to criminal prosecution. This parallels the stance of the mental health professions in the Nordic countries, which have removed sadomasochism from their respective lists of psychiatric illnesses.
The age of consent in Switzerland is 16 years, which also applies for BDSM play. Children (i.e. those under 16) are not subject to punishment for BDSM play as long as the age difference between them is less than three years. Certain practices, however, require granting consent to light injuries and thus are only allowed for those over 18. Since Articles 135 and 197 of the Swiss Criminal Code were tightened, on 1 April 2002, ownership of "objects or demonstrations [...] which depict sexual acts with violent content" is punishable. This law amounts to a general criminalization of sado-masochists, since nearly every sado-masochist will have some kind of media which fulfill these criteria. Critics also object to the wording of the law, which puts sado-masochists in the same category as pedophiles and pederasts.
British law does not recognize the possibility of consenting to actual bodily harm. Such acts are illegal, even between consenting adults, and these laws are enforced (R v Brown being the leading case). R v Brown dismissed the defence of consent, meaning that the men charged of sexual offences could not defend their actions. It has been pointed out that people can consent to activities such as boxing and body piercing, which also result in pain, but apparently cannot consent to BDSM. This leads to the situation that, while Great Britain and especially London are world centers of the closely related fetish scene, there are only very private events for the BDSM scene which are in no way comparable to the German "Play party" scene.
Operation Spanner was the name of an operation carried out by police in the United Kingdom city of Manchester in 1987, as a result of which a group of homosexual men were convicted of assault occasioning actual bodily harm for their involvement in consensual sadomasochism over a ten-year period. The resulting House of Lords case (R v Brown, colloquially known as "the Spanner case") ruled that consent was not a valid legal defence for wounding and actual bodily harm in the UK, except as a foreseeable incident of a lawful activity in which the person injured was participating, e.g. surgery. Following Operation Spanner the European Court of Human Rights ruled in January 1999 in Laskey, Jaggard and Brown v. United Kingdom that no violation of Article 8 occurred because the amount of physical or psychological harm that the law allows between any two people, even consenting adults, is to be determined by the jurisdiction the individuals live in, as it is the State's responsibility to balance the concerns of public health and well-being with the amount of control a State should be allowed to exercise over its citizens. In the Criminal Justice and Immigration Bill 2007, the British Government cited the Spanner case as justification for criminalizing images of consensual acts, as part of its proposed criminalization of possession of "extreme pornography".
Following the Audiovisual Media Services Regulations 2014 the video distribution of some BDSM practices has become illegal.
The United States Federal law does not list a specific criminal determination for consensual BDSM acts. Many BDSM practitioners cite the legal decision of People v. Jovanovic, 95 N.Y.2d 846 (2000), or the "Cybersex Torture Case", which was the first U.S. appellate decision to hold (in effect) that one does not commit assault if the victim consents. However, many individual states do criminalize specific BDSM actions within their state borders. Some states specifically address the idea of "consent to BDSM acts" within their assault laws, such as the state of New Jersey, which defines "simple assault" to be "a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense".
Oregon Ballot Measure 9 was a ballot measure in the U.S. state of Oregon in 1992, concerning sadism, masochism, gay rights, pedophilia, and public education, that drew widespread national attention. It would have added the following text to the Oregon Constitution:
|“||All governments in Oregon may not use their monies or properties to promote, encourage or facilitate homosexuality, pedophilia, sadism or masochism. All levels of government, including public education systems, must assist in setting a standard for Oregon's youth which recognizes that these behaviors are abnormal, wrong, unnatural and perverse and they are to be discouraged and avoided.||”|
In March 2016, the case of Doe v. George Mason University, the Federal District court of east Virginia ruled that there is no constitutional right to engage in consensual BDSM sexual activity.
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- Mike Blanchfield (27 May 2011). "Woman can't consent to sex while unconscious, Supreme Court rules". The Toronto Star. Retrieved 27 May 2011.
- Decision of the Bundesgerichtshof, 26 May 2004, 2 StR 505/03, which may be found at: BGHSt 49, 166 (bundesgerichtshof.de)
- Appeals Court of Hamm in its judgement of 1 February 2006, case number 10 UF 147/04, available online at the Portal of the North Rhine-Westfalian Ministry of Justice Archived 17 December 2004 at the Wayback Machine. (German)
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- "No constitutional right to engage in consensual BDSM sex - The Washington Post".