Can a person in BDSM relationship legally protect themselves?

Question

A large part of BDSM lifestyle is the "SM" part - namely, a desire by two sides of a couple, to inflict pain on another, or have pain inflicted on them (if done right, obviously in a consensual manner, duh). Often, this is done in ways that would - outside the context of BDSM relationship - be classified as a crime (assault, battery, etc...). Clearly, this produces a sizeable legal risk.

As such, is there a way for a "S" partner in a relationship (the one inflicting pain), to protect themselves legally in a reasonable way in either the case of third-party exposure (e.g. some nosy person calls the cops on the couple); or worse yet, the relationship breaking down and the "M" partner of the relationship filing charges over what they supposedly consented to previously? Just to re-iterate, the scope of the question is activity that is (at the time it happens) fully consensual.

In general societal context, obviously there is a way to engage in consensual violence without being charged - for example, a boxer or martial artist would never be charged for participating in a martial arts competition or training, which involves acts that - outside of them - would be criminally penalized.

Is there a way to do that in a BDSM relationship context - that would actually stand up in a judicial setting? In other words, anyone can sign any "BDSM contract" (probably the only thematically accurate BDSM related topic in the otherwise deplorable "50 shades" series); but did any such contract ever stand up in court when one of the partner was charged with perpetrating violence on another?

I'm mostly interested in an answer related to criminal justice system; but an answer covering civil charges from one partner on another also would be welcome, if the two answers differ. Jurisdiction is USA, if more precision is needed let's say New York City where BDSM is common enough that things like this probably actually made it to court.

Answer 1

canada

The law

"The [Criminal] Code requires 'ongoing, conscious consent' to 'each and every sexual act' and can be revoked at any time." See R. v. Sweet, 2018 BCSC 1696, citing R. v. J.A., 2011 SCC 28. "The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance." R. v. J.A., para. 66.

The Supreme Court has explicitly declined to decide "whether or in which circumstances individuals may consent to bodily harm during sexual activity" (R. v. J.A., para. 21). However, in the context of a non-sport fist fight or brawl, one cannot consent to another intentionally applying force that causes serious hurt or non-trivial bodily harm: R. v. Jobidon, [1991] 2 S.C.R. 714.¹ And at the provincial appellate level, it has been held that "consent is not a defence to a charge of sexual assault causing bodily harm in circumstances where the accused has deliberately inflicted pain or injury upon a person that gave rise to bodily harm" (R. v. Quashie (2005), 198 C.C.C. (3d) 337 (Ont. C.A.)).

Consent would be irrelevant in a charge of criminal negligence or manslaughter, if the activities were to escalate this far (R. c. Deschatelets, 2013 QCCQ 1948, para. 175-77).

The content of advance negotiations is not relevant to whether the complainant was consenting to the impugned conduct, however, it may be relevant as evidence of expectations about how consent would be communicated between the parties throughout the conduct. See R. v. Barton, 2019 SCC 33, para. 93 (citations omitted):

For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question.” These “negotiations” would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact.

See also R. v. Sweet, 2018 BCSC 1696, para. 141:

... consenting adults may enjoy the personal autonomy to establish rules such as “no means yes”. If so, in my view, this passage suggests a corollary requirement to establish an alternative “safe word” or other mechanism to ensure that each party is also able to maintain their personal autonomy to put an end to unwanted sexual activity.

Application

A contract cannot provide advance consent, therefore it is irrelevant as to proof of consent during the acts. However, advance agreements can (and several courts suggests should) set out the expectations about how consent will be communicated. Any evidence of such agreements would be relevant to establishing the defence of "mistaken belief in communicated consent."

None of this would assist an accused in the circumstance where a court finds that any consent was vitiated because the accused deliberately inflicted pain or injury that gave rise to bodily harm (this position has not been confirmed by the Supreme Court).

If you are simply asking how to prove a fact in litigation, see this Q&A.

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^{1. Since this is a judicially-developed limit, the conception of "bodily harm" used here does not necessarily have to match that codified in the Criminal Code. But: "The common law definition of 'bodily harm' has been substantially incorporated in s. 245.1(2) of the Criminal Code, and means 'any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling'" (R. v. Martineau, [1990] 2 S.C.R. 633).}

Answer 2

united-states

Is there a way to do that in a BDSM relationship context - that would actually stand up in a judicial setting? In other words, anyone can sign any "BDSM contract" (probably the only thematically accurate BDSM related topic in the otherwise deplorable "50 shades" series); but did any such contract ever stand up in court when one of the partner was charged with perpetrating violence on another?

Not really. At best, it can discourage law enforcement or prosecutors from exercising their discretion to bring criminal charges, even though they could be brought.

Consent to the conduct in question can't be given irrevocably

You can't irrevocably provide consent of this kind in a contract. Historically, you could do that through marriage, but marriage is no longer a defense to sexual assault claims, or as was the case even earlier, against almost all criminal charges involving one spouse against another.

A contract like that would provide one piece of evidence that a jury would consider in addition to testimony, possible audio or video recordings, statements made after episodes of BSDM activity, or records/testimony concerning times that "safe words" were invoked or honored.

It is particularly relevant because it goes to the mens rea (i.e. intent) of the person who is at risk of being a criminal defendant. If that person sincerely and reasonably believes that consent is present, even if it is not, that person hasn't committed a crime in many cases. Still, subsequent events can cast doubt on the reasonableness of continuing to rely on consent given in a contract in advance.

Testimony from an alleged victim under oath that something was consensual is very helpful, but even then, is not conclusive. The jury could conclude that the alleged victim is still under hidden duress of some kind.

Moreover, it is essentially impossible to protect oneself reliably from betrayal in which an episode was actually consensual, but the alleged victim falsely testifies otherwise in court.

This shouldn't be terribly surprising.

BDSM, by its very nature, simulates activity that is otherwise undertaken only in a non-consensual context, that when it is non-consensual would constitute serious crimes. The thin line between consensual BDSM and non-consensual abuse is to some extent the source of the thrill that is the whole point of BDSM for many people who engage in it.

Consent isn't always a defense

Another risk is that not all forms of conduct, which is within the scope of what is called BDSM, is conduct for which consent may lawfully be given.

Generally speaking, competent adults can consent to sex (outside select special relationships like parent and child, or guard and prisoner, where consent isn't a defense).

Likewise, one usually isn't capable of "false imprisonment" if the person constrained consents to being bound or confined, unless it is in circumstances where consent can't be promptly withdrawn, or in circumstances where there is an obvious risk of harm.

But, it is not in general, in all U.S. jurisdictions (or even in most U.S. jurisdictions) permissible to consent to another person doing bodily harm to you outside of select safe harbor situations. There are safe harbor cases for certain contact sports, medical treatment, and medical research. But there is no similar safe harbor for BSDM conduct. More than de minimis infliction of physical pain or physical injury is often something for which the consent of the victim is not a defense at all.

Answer 3

In germany, assault charges can be negated by the consent of an informed and mentally competent victim. Two boxers in the ring can batter each other, and the assumption is that they mutually consented to being attacked within the rules of the sport. That is, a jab or a left hook would be covered, even if it breaks a jaw, but a boxer could not stomp on an opponent on the ground.

In your case, the question would be just what the victim consented to, if that can be proven, and if the court accepts it as sane (the term SSC, safe, sane, and consensual, thanks for that comment). "You can kill me" would not be accepted even if it was put in writing (the assisted suicide debate is an entirely different issue). Going to a professional sex worker who specializes in such 'services' (prostitution is legal, but regulated) could be interpreted as consent to getting spanked. In between is a wide field.

• There was a case where members of rival biker gangs agreed to 'go outside and settle things.' The survivor wanted to use the consent defense, but IIRC the court ruled that not even the consent that was claimed would have covered drawing a knife.

• In a different case, a man with serious burns claimed to have given consent. No charges against his partner on these counts, but she went to court for some other things.