Gender, Sexuality and Law: Kinky Sex as Assault

Harper Jean Tobin

Last November, two Iowa State University students got up in front of a roomful of their peers to teach them a thing or two about safety. As part of their lesson, one of them stood against a wall while the other whacked her across her jean-clad buttocks with a short, many-tailed whip, or flogger. The students were members of a four-year-old student organization called Cuffs, whose mission to educate about bondage, dominance and sadomasochism, or BDSM. The purpose of the meeting was to demonstrate safety techniques for students interested in such activities.

The university was not pleased. It took disciplinary action against the group, charging that they violated school policies and state law by sponsoring acts of assault. And while the parties involved were consenting and no one was harmed, it appears that the school did have the law on their side. Before we get into that, however, a little explanation may be in order.

Though increasingly referenced in popular culture, BDSM is often misunderstood. BDSM includes a range of intimate activities involving role-playing, physical restraint, intense sensation, or some combination thereof, for purposes of mutual pleasure. These can range from playing “French maid,” holding a lover down by the wrists, wearing a blindfold or getting a light spanking – activities enjoyed by millions of Americans – to the use of leather restraints, floggers, hot wax, needles and mild static electricity. This is a mix of sex, sport and theater, where a ruse of domination can be an exercise in trust and pain and pleasure blend in ecstatic endorphin rushes.

Practitioners are quick to distinguish BDSM from genuine violence and abuse; to them, the difference is much like the difference between consensual sex and rape. Indeed, the watchwords of the BDSM community are “safe, sane and consensual.” Clear communication of consent and boundaries is expected, as are reasonable precautions against serious injury. Getting welts and bruises can be sexy to some, but nobody gets turned on by a broken leg.

Probably the most famous court case involving BDSM is a British one called Regina v. Brown. It arose, bizarrely enough, from a police raid of a BDSM party; several men where charged for assault, and one was charged for aiding and abetting his own assault. Britain’s high court ruled that the consent of the “victims” was irrelevant in light of the State’s interest in public health and morals. The European Court of Human Rights, generally expansive in its view of privacy rights, okayed the convictions.

Iowa State based its own ruling on State v. Collier, in which the Iowa Supreme Court held that sadomasochistic activity did not constitute a “sport, social or other activity, not in itself criminal” in the context of which consent could be a defense to a charge of assault. Its rationale mirrors the British court’s: “protecting citizens’ health, safety, and moral welfare” outweighed consent.

One of the cases it relied on, State v. Brown from New Jersey, is hardly on point. It involved an alcoholic who agreed that her husband would physically punish her for drinking – whatever you want to say about that, it’s clearly distinct from activities where the “assaultive” behavior is an end in itself.

Another case arose from a 1964 sting against gay pornographers; a conviction for the filmed sadomasochistic flogging of an unidentified man appears to have been the icing on the cake for the morals police. It based its holding on the “common sense” that no sane person would consent to such things. Suffice to say that psychologists today know better than judges did forty years ago on this score.

In the remaining two cases, as well as a more recent case from New York, the facts suggest that either a claim of consent was being used as a cover for real violence or an initially consensual BDSM game went far beyond the bounds of “sane, safe and consensual.” These courts could have let consent remain an issue of fact – was there consent? Was it withdrawn? How serious was the injury? – rather than an issue of law, but precisely because of the specific facts before them saw no need to make such a distinction. This seems to be a case of bad facts making for bad law.

The dissenter in State v. Collier chided his colleagues for jumping to a conclusion rather than analyzing the issues. In his view, “sport, social or other activity” should be read broadly; whipping a person with a belt was not “in itself criminal”; and the injuries involved (welts, bruises, a swollen lip) were not “serious” per the statute. These arguments are similar to those of the dissenters in the British case, which also drew analogies between BDSM and contact sports. Your typical boxing or football match, for example, poses greater risk of lasting injury than your typical erotic flogging. And when someone causes serious harm through recklessness or ill will in these activities, we hold them accountable without casting a legal shadow on the activities themselves.

While most BDSM encounters, like sodomy, are by their nature unlikely to come to the attention of police, banning them can have far-reaching implications. First, there will always be the odd case where police do invade people’s bedrooms. In 2000, Attleboro, MA police happened upon a private BDSM party during an unrelated investigation and arrested two people. There is also the possibility of overzealous neighbors calling the police about suspicious sounds; in such cases, domestic violence laws may leave police no discretion about whether to arrest, so defendants would need a consent defense.

Secondly, as with sodomy laws, criminalization can be used to justify discrimination. While the student group in Iowa was suspended and forbidden from holding further demonstrations, similar student groups have been forbidden altogether on the grounds that they promote dangerous and illegal behavior. Proponents, of course, argue that the purpose of such groups is precisely to prevent truly dangerous behavior through education. Criminalization also reinforces the taboo and stigma around BDSM in ways that are less tangible but nonetheless important.

Demonstrations or no, Cuffs plans to continue its efforts to raise awareness about BDSM and educate about safety. Whether the future will present a BDSM equivalent of Lawrence v. Texas, only time will tell.

For more information on the trials of Cuffs see: http://www.stuorg.iastate.edu/cuffs. On BDSM generally, see: http://www.ncsfreedom.org/library/whatissm and http://www.sexuality.org/bdsm.html.

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