Consent And BDSM
Certain sexual practices can be prosecuted under state criminal laws. This is true even when there is clear consent.
BY DAVID HAKIMFAR
• One of extraordinary qualities of the gay community is its acceptance and celebration of sexual expression within the many subgroups that make up the community as a whole. This includes the leather, BDSM and other fetish groups whose activities are often misunderstood and looked down upon by society at large. However, certain practices that are seen as commonplace within the gay community, including bondage, sadomasochism, domination and other types of fetish play, can land the participants in serious legal trouble.
You read that right. Certain BDSM sexual practices can be and sometimes are prosecuted under state criminal laws dealing with assault, aggravated assault, sexual assault or sexual abuse. This is true even when there is clear consent.
Criminal prosecution can arise in various circumstances, including situations in which one participant is injured requiring medical treatment and the injury is brought to the attention of the police by hospital staff, doctors or a family member.
In other cases, the BDSM encounter is more extreme than one participant expected, and the injured person contacts the police. Sometimes a person may feel guilt or shame for their participation in the experience after the fact. Or the relationship may have soured and they want to get revenge against the other person. Conversely, police may raid a BDSM event and witness conduct that they construe as unlawful. In other scenarios, video or pictures of BDSM activity may be turned into police, or discovered online by law enforcement officials.
Use common sense. Make sure that you play with people that you know and trust.
Technically speaking, any type of “impact play” is illegal. One person cannot legally give their consent to being physically assaulted. As far as the law and courts are concerned the issue becomes one of violence, not sex. The criminal offense is that one person is causing another person physical harm. To contrast, the issue of consent is different for BDSM cases than it is for a rape case, for example.
In a rape case, the sex act is not considered criminal unless it can be shown that one party did not consent. In a BDSM case, however, the causing of physical harm is in and of itself criminal. The question then becomes the extent to which the courts will allow such criminal conduct to be excused by one person’s consent.
The definitions of assault, abuse and other such crimes involving infliction of physical harm vary from state to state. There are no federal statues in this area. Most state laws covering assault do not cite consent as a defense.
Under California law, the crime of “assault” takes place when someone performs an act that is likely to result in the application of force to another person. There is no actual requirement that an assault result in a violent or forceful act upon another. It is only necessary that a person attempted to commit such an act, and had the ability to do so.
Unchanged since being enacted in 1872, California Penal Code 240 PC is a misdemeanor. Prosecutors typically charge this simple assault crime when the alleged victim doesn’t suffer a significant injury. But if a weapon or serious injury does occur, then a more serious charge can be applied. Keep in mind that prosecutors could view certain “play items” such as whips, chains, vibrators or other sexual toys as weapons depending on how these objects are used.
While BDSM practices are kept in the same category as criminal assault, it should come as no shock that the justice system and lawmakers are hesitant to allow consent as a defense to sexual practices that result in injury. There is a long history of case law that regards BDSM as aberrant or depraved behavior, despite the fact that the American Psychiatric Association (APA) declassified BDSM, along with cross-dressing and other fetishism, as a form of mental illness twenty years ago.
HOW TO PROTECT YOURSELF
Use common sense. Make sure that you “play” with people that you know and trust. Establish clear boundaries and avoid behavior that can inflict serious injury upon another person. Use “safe words” that can enlisted be when things are about to cross the line. Avoid the taking of pictures or video or other forms of recording that could be used against you as evidence at a later date.
If the police do become involved, remember that you do not need to allow them into your home without a search warrant unless they believe someone is in immediate danger. If you are arrested, invoke your right to not make a statement and immediately ask for a lawyer. You are not under any obligation to make a statement without an attorney present.
David Hakimfar is a trial attorney and senior partner of Hakimfar Law, PLC, and a member attorney of Pride Legal. He can be reached at 310-770-1250.