Our Legal System Doesn’t Care About Your Consent
I’m kinky. But if you want details, you’ll have to subpoena me.
In Massachusetts, as well as numerous other U.S. states, activities involving the threat of physical violence or actual physical violence (striking, flogging, whipping, slapping, choking) committed for the purposes of sexual pleasure are illegal and punishable by law. More specifically, these states criminalize violence preceding, during, or proceeding sexual activities, regardless of consent. As such, consent is not a defense to charges of assault and battery committed during sexual interactions.
For states that have rejected consent as a justifiable defense, persons who engage in consensual bondage-discipline, sado-masochism, and domination-submission (otherwise, collectively and colloquially known as BDSM) activities may be successfully prosecuted for a) committing the assault and battery against a partner or b) being an “accomplice” to their own assault and battery (I know, what in the world?!), or c) both. What does all this legal mumbo-jumbo mean to you and me? It means us kinky femme folks better educate ourselves.
If you had told me six months ago that I could go to jail for spanking my partner with their full and enthusiastic consent, I’d have chuckled and handed you a copy of the United States’ Constitution. Sadly, it appears this document is only as effective at protecting the sexual autonomy of consenting adults as abstinence-only-education is at preventing unwanted pregnancies (zing!). Over a third of all Americans have engaged in a type of BDSM related activity within the bedroom (all the way back in 1955—the pre-50 Shades of Grey years—the Kinsey Institute found that over half of all Americans liked being bitten, for example). However, there has not been a single higher court decision in the United States that accepted consent as a defense to a charge of assault committed during a sexual interaction. Not a single case. Where does this leave us?
Imagine your past.
Imagine your worst, most vindictive ex-partner/girlfriend/boyfriend. Yeah, that one! What an ex-hole. Now imagine they brought charges against you for that one (or several, wink) night you tried out something “new” in the bedroom where they asked you to spank them. Of course you did, ’cause you loved them (sh, don’t ask yourself why right now) and they were into it. And now they are saying not that they didn’t consent, but that it’s irrelevant that they did because what you did was illegal. You hit them with your hand. Doesn’t matter that they wanted you to. And the law agrees. Your ex’s consent is not a defense.
Scary right? But this isn’t some imaginary trial from Game of Thrones, and no wild fire explosion is about to save you. This is real life. The law is the law.
The legal system doesn’t care.
Let’s take a (brief) break from your impending prosecution to consider the broader societal implications of the legal system’s approach. Firstly, the law allows no room for consent. Despite the BDSM community’s fixation (and rightfully so!) on consent–with a variety of approaches including RACK (risk aware consensual kink), PRICK (personal responsibility informed consensual kink), and the generalized “safe, sane, and consensual” motto– the law disavows any interest in the subject of consent in kink at all. Such an approach has pernicious and unexpected downstream effects, namely disincentivizing the need for consent for kink activities. If the law doesn’t care if my partner consents, should I? While I am confident that each and every single one of you answered in the affirmative, I would prefer a legal system that would incentivize me to respect my partner’s bodily autonomy. Wouldn’t you?
Second, let’s consider the fact that you CAN consent to assault and battery if we are participating in a lawful sporting activity like football. Of course on the field, tackles are tackled and people get hurt. As such, the law, in its infinite wisdom, has decreed that athletes (or folks like us playing capture the flag) can consent to harm received incidental to playing sports. A question comes to mind then: Why does the law allow us consent to receiving frequent concussions during a football game and not to small bruises from a partner’s flogger? It seems counter-intuitive and yet, this is the state of affairs, folks. Some activities the law considers socially valuable, such as jumping on top of people for the sake of a brown oblong cowhide ball, and others, such as partners engaging in consensual sexual activities in the privacy of their own bedrooms, not. Third, as with all sorts of criminalization, our privilege is showing. While many can safely engage in these activities and avoid police interference, persons of color are disproportionately likely to be arrested, charged, and prosecuted for all crimes, this being no exception.
You will always lose in the eyes of the law.
Back to the case at hand. Despite our long and illustrious history of Supreme Court precedent creating and expanding our constitutionally protected right to privacy, you lose. You were always going to lose. The fact that your ex consented didn’t matter. The fact that you had a safe word only mattered as far as it was used against you; the judge citing it as evidence in court that you were aware of the risk of physical injury to your partner otherwise, why else have a safe word to begin with? In addition, any indication that your partner had wanted you to spank them and that they had specifically consented to you doing so was used as evidence that your partner was not in “full possession of his[her, their] mental faculties” and therefore could not consent. Not that it mattered. The judge concludes the case, gazing adamantly in your eyes all the while, that any constitutional right you had to sexual freedom or your partner had to bodily integrity were outweighed by the State’s interest in “preventing violence by the use of dangerous weapons.” The weapon, of course, being your hand. Lastly, the judge recommends that your children (mazel tov, you have two!) be removed from your custody, as BDSM activities are sufficient grounds to see you as an incompetent parent.
As we embark on pride month, and consider all the amazing wins we’ve had as a queer community, both in terms of societal acceptance and legal recognition (same-sex marriage for the win!), let’s pause to consider those of us who are still at risk of prosecution for engaging in non-normative sexual activities. After all, it was only 16 years ago that it was illegal to have anal sex—an activity that, much akin to BDSM, was considered not normal—with your partner (of any gender) in Texas. 16 years, that’s all. We may not have as many differences as we do similarities with our kink siblings.
We are left with numerous unanswered questions (foremost, only 16 years?!), but the one that lingers on tip of my tongue is a two parter: Does my yes matter to the law? Does my partner’s?
At the end of the day, the answer to both depends entirely and unfairly on what type of sex we’ve been up to. Vanilla? Kinky?
Like I said, get a subpoena.
For more information on the status of the law in your state (remember, whether or not BDSM sexual interactions are legally protected varies from state to state), please check out the National Coalition for Sexual Freedom’s excellent summary, “Consent and BDSM: The State of the Law.“
- People v. Samuels (1967), a California court decision finding that a person could not consent to great bodily harm received as a result of sexual activities.
- Commonwealth v. Applby (1980).
- Lawrence v. Texas, 539 U.S. 558 (2003).