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Petitioning American Law Institute

Consent should be a defense for BDSM activities

I urge the American Law Institute in its consideration of proposals to revise the Model Penal Code (MPC) provisions relating to sexual assault, to provide in the MPC that prosecutions arising from BDSM (bondage, discipline, Dominance & Submission and sadomasochism) conduct be pursued as “sexual contact” rather than as criminal assault. I believe this is appropriate because consensual BDSM is intended to be a mutually pleasurable erotic activity and not a violent assault by one person against another. Criminal prosecution may be appropriate if consent is not given, but consent should be allowed as a defense.

Background:

NCSF has urged the ALI Committee to treat BDSM under a category they define as “sexual contact” even if there is no contact with the breasts or genitals. Under the ALI’s draft proposal, “sexual contact” is not a crime if consent is given for such contact. If consent is not given, sexual contact is a misdemeanor, not a felony. Such treatment of BDSM—as not a crime if consensual and as a misdemeanor if nonconsensual—would be fully consistent with the concept that BDSM is intended to be a mutually pleasurable activity rather than an act of violence. If a rape is committed in a BDSM encounter then it can be prosecuted as felony sexual assault and the fact that BDSM activities were also included will reduce the confusion for prosecutors and courts. Judgment can be made solely in the context of whether there was consent for each act that was committed.

A further benefit of our proposal would be that a person who is injured in a nonconsensual BDSM incident would have the shelter of “rape shield” rules, which prohibit introduction of evidence of prior acts and provides the victim anonymity. This protection applies to complaints in sexual assault cases, but not in criminal assault cases. People who are assaulted in a BDSM context typically choose not to report what happened to the police because they will be outed as kinky by the public court documents and they may even face media exposure if their assailant is charged with criminal assault rather than sexual assault.

Find out more about our ALI Petition: www.ncsfreedom.org/ALIpetition

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  • American Law Institute


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