Many activities come under the general heading of BDSM. Those that attract legal attention are first of all only the ones that are reported to it in complaint form and then include sado masochistic activities and public play. The sado masochistic activities are covered by the law of assault and public play could conceivably be covered by assault, incitement or conspiracy to commit an offence, offences against public decency and morality and living off immoral earnings if you run the club.
This article concerns the English and Welsh legal system but that system may be considered highly influential for all English speaking systems derived from it including South Africa, Australia, the USA, Canada. Scotland has a Romano-Dutch legal system with different though similar roots and a Calvinist moral culture which is the envy of the puritan world. Scotland too is heavily influenced by English legal morality. I make no statement of the law for any other jurisdiction than the English-Welsh system. The following principles may be influential for example in the American courts but the actual legal rules there are different. Comparing systems is only really fruitful, if at all, at the higher echelons of legal policy and procedure and as such are not generally relevant unless points of law are at issue in the higher or even Supreme Court.
Assault under common law is the only crime that places responsibility for the mens rea, or mental element of the crime, in the mind of the victim. In all other crimes the prosecutor must prove the accused intended the crime under investigation or that he or she was reckless to the consequences of his or her act. An assault is committed if a potential victim is given cause to apprehend the immediate threat of personal force. The potential assailant need not touch the potential victim nor intend them to feel fear. If the putative aggressor commits a threatening act, a lunge, a grimace, whatever, they may be considered liable for placing the putative victim in fear of attack. A battery is committed when that assault is then compounded by physical contact. Ancient common law takes the view that we may not under any circumstances touch each other without permission, specifies a specific instance when such contact is particularly odious in law, and then proceeds to allow certain consensual contact for the purposes of maintaining society.
That is a simple statement of the common law rules for assault and battery and if the elements of the crime are brought to the attention of the forces of law and order they are duty bound to act. If they do then the supposed aggressor may have a defence. He or she may be able to claim that the victim consented and the law will consider that carefully according to certain clear rules.
We all consent to a degree of contact with our fellow human beings and a good example of this is a crowded commuter train. Many today feel increasingly herded and jostled when travelling during busy periods. The law considers that we give implicit consent to that jostling when we buy our tickets in order that our transport and commuter systems can function without endless petty lawsuits flooding the courts. Similarly sportsmen and women consent to a degree of risk and danger when they compete in their chosen fields, be it boxing, football or any other sport. The legal rules regarding consent to physical contact for the purposes of pleasure are the ones that relate to actions brought as a result of BDSM activities.
In the early 1930's a man called Donovan caned a seventeen year old girl at her request. She then reported him to the police for assault who duly arrested and charged him. On appeal to The King's Bench after convictions for common assault and indecent assault at first instance, Justice Swift said:
It is an unlawful act to beat another person with such a degree of violence that the infliction of actual bodily harm is a probable consequence, and when such an act is proved, consent is immaterial."
Donovan's conviction was quashed on the grounds that the original trial jury was not directed on the issue of consent. The rule of law that any hurt or harm inflicted during consensual play must be no more than ".. trifling or transient .." remained for many years the clearest statement of the limits of consent to pleasurable assault and the courts duly followed the general line that it was not legally possible for any victim to consent to more than minor bruising or redness. The judgement in this case also made reference to the exceptions to this rule which include sports generally and "manly diversions" such as wrestling where actual bodily harm may be inflicted without liability.
That statement of the law held as a rule for private play between consenting adults at least until the Spanner Case and as we shall see has only recently begun to relax in terms of the freedom that consenting adults have in private.
The Spanner Case involved some 44 suspects, 10 years worth of videos and one person under the age of 21 at least when he joined the group. The police acted on a tip off and rounded up a number of people, confiscated videos and other goods and conducted a full scale investigation into their activities. The result was a conviction for some of the accused for assault under the terms of the Donovan ruling. The harm inflicted was considered more than merely trifling or inconsequential. This case too went all the way to the House of Lords where the conviction was this time upheld and the defendants were forced to proceed to the European Court of Human Rights where they again lost. You can find out more about the case from the Spanner Trust and a reference is given below. The essential point is that as of 1932 for Donovan and thence for Messrs Brown and Others in Spanner the courts and judges of this country were not prepared to allow anyone to inflict more than a moderate spanking and get away with it, regardless of what any supposed victim actually wanted.
So, a tiger does indeed defecate in the forest. Until 1991 at least. Before, during and after the Spanner Case action and pressure groups were and continue to be formed to lobby the legislators and the courts to both widen and deepen the law's toleration of what adults may privately consent to. These groups have at least in part stimulated a number of practice statements and recommendations from the courts and others to suggest that the law should be changed to permit a wider range of human experience. For example:
June 1994 CPS Guidelines define Actual Bodily Harm as minor but not merely superficial cuts that require stitches. The injuries in the Spanner Case were far less serious but they were found guilty of ABH.
Dec 1995 Law Commission issue second consultation document recommending that SM, short of causing serious or permanently disabling injury, should be legal.
One result of this is the case is the case of R v Wilson where a man branding his initials on his wife's bottom with a hot knife. At first instance he too was convicted but at the Court of Appeal it was held that:
".. consensual activity in the privacy of the matrimonial home was not a matter for criminal prosecution .."
And Wilson was exonerated. Like Donovan he was originally convicted and so still had to endure the trauma of that even if he is now a free man without, presumably, a stain on his character. The lower courts may in time come to reflect what may be the willingness of the higher courts to allow adults greater freedom to act and interact as they see right fit and proper. R v Wilson suggests this might be so as the defendant only had to proceed to the Court of Appeal but the C of A is subordinate to the House of Lords and so the strict legal rules remain theoretically unchanged. In practice decisions and precedents of this nature are often handed down from the court of appeal, run for a few years as a form of social experiment, and are then either refuted or affirmed in the course of time by the House of Lords. It remains to be seen when the next BDSM assault case reaches the House of Lords how they will react. The Spanner Case was upheld on a 3:2 majority verdict there showing a degree of division and therefore the possibility of change.
It should be noted that although the law may fairly be considered to be reluctant to involve itself in matrimonial affairs for a variety of reasons it is not necessarily unwilling to interfere as the Lords case of R v R in 1991 shows, where a man was convicted of raping his wife whilst they lived under the same roof but in separate bedrooms. That was clearly non-consensual but highlights an interesting historical legal anomaly. Before R v R a man could spank his wife to subdue her if his intention was to have intercourse. That was his legal right. If he did not proceed to have intercourse with her then he could be found guilty of an assault because the law did not, after the 1950's, recognise a husband's right to chastise his wife as a matter of domestic discipline.
Medical procedures are treated similarly to any other form of contact and consent is required before any operation to absolve the surgeon from liability for what would otherwise be a very serious assault. One may consent to a variety of extremely traumatic and invasive surgical procedures in the pursuit of youth and beauty or body modification yet one cannot consent to either of these procedures if the intention is to derive pleasure rather than to enhance function or appearance. Similarly piercings are legal if carried out for the purposes of decoration but not if indulged in for the pleasure of piercing itself.
The distinctions may seem arbitrary and often are in practice as, for many, the beauty and the joy of having ones nipples pierced are part and parcel of the same experience. However, if one stood up in court and said, "I got my nipples pierced because I enjoyed the experience." then the piercer would probably be guilty of assault. If, on the other hand, one stood up in court and said, "I got my nipples pierced because its beautiful to look at." then the piercer would not be guilty of an assault.
I mentioned recklessness as a matter of legal culpability in the mind of an accused. It should be apparent that if hurt or harm befalls another in the course of play, and that hurt or harm was found to be the result of recklessness, then the law would consider that in itself an offence and the matter of consent would not apply. Recklessness is defined in law as taking an unjustifiable risk and was, prior to Caldwell, considered to be a subjective test, ie: "did the accused consider the risk too great and go on to take it anyway?". Caldwell changed this to an objective test and now we have to ask, "did the accused know of the risk and go on to take it anyway or was he in fact heedless to the risk and gave no thought to it at all?". If the accused has not seen the risk then the law takes the view he or she ought to have and will find the actions in question reckless and the accused will be found guilty. Recklessness is a general legal principle for liability and is not confined to assault or crimes against the person.
There ends the simple rules of consent to assault during private BDSM play. No mention has been made of anyone's responsibility to ensure the health of another during any other forms of play, for example suspension or other forms of bondage that do not involve actual assaults. I suspect the law would examine a pure bondage session closely to ensure it had a good ferret around in there for anything that looked like assault and then declare it could find nothing intrinsically illegal. I have considered it briefly and I can't find anything culpable in pure bondage other than the general legal concepts of negligence, carelessness and recklessness with the health of another. If she damages her back it's your fault, but that goes without saying. That is assuming she consented to being tied up, if she didn't then by definition you assaulted her to get her in there and are probably guilty of false or malicious imprisonment too. The importance of consent cannot be over emphasised.
I have not yet mentioned the statutory forms that assault takes: actual bodily harm (ABH), grievous bodily harm (GBH) and assault with intent, which is only marginally less serious than attempted murder. ABH stops short of breaking the skin or deep damage which would come under the heading of GBH which includes broken skin and bones and could include very severe bruising. Once an assault is proved under common law the grade of assault only becomes relevant for the purposes of sentencing. Common law assault carries a maximum two years in jail, ABH five years and GBH and assault with intent 10 years each. In practice BDSM convictions do not carry long sentences which perhaps reflects the fact that the law does in fact recognise the element of consent involved yet refuses to deal with it fairly.
The law regarding keeping an immoral house governs aspects of public play and was also an issue in the Spanner Case. Keeping an immoral house is a common law offence. Such a house is "one which is not regulated by the restraints of morality and which is so conducted as to violate law and good order. There must be an element of 'open house', but it does not need to be open for the public at large ... Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house, it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort (a) amounts to an outrage of public decency, or (b) tends to corrupt or deprave, or (c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment" ([1996] Archbold's Criminal Pleading, Evidence and Practice 20, at 224)."
Hence all play parties are licensed and Dungeon Masters have to be careful to ensure that the organisers or the venue itself are not liable as a result of public play. If one reads the definition carefully, the old canards of outraging public decency and tending to deprave and corrupt, the moral police of the old world in my view, are applicable almost anywhere the censors ultimately consider applying them. That means that the law does not permit any discussion or rights in the matter beyond those above but instead concerns itself entirely with the matter of public morality, of which it is the final arbiter.
It may also be apparent that many of the English speaking legal systems have similar rules regarding morality and that in most cases local authorities have considerable leeway as regards their right to fix the standard of public morality through licensing and other means. Similarly the practical definitions of what may tend to deprave or corrupt vary from society to society. In Japan the erect penis is worshipped each year and monks carry a giant plastic one through the streets and insert it into a vagina shrine too much music laughter and merriment yet pubic hair is banned in any graphic image. Here in the UK we permit graphic images of pubic hair but draw the line at erect penises. This regional morality is also why different states of the USA have different rules regarding BDSM although most consider the sado masochistic practices similarly to R v Donovan and the public play aspects as similar to keeping a particularly extreme form of brothel.
Those who do not think the law is the final arbiter of morality may read J. S. Mill's On Liberty for the Victorian emergence of the concept of liberty as an end in itself and a philosophical imperative for the good of society and Lord Devlin's comments in the 1950's in response to the Wolfenden report on the Legalisation of Homosexuality. Judges are kindly and decent people at heart and want the best for us. So does the man on the Clapham Omnibus who is much admired in legal circles for his sound good sense and practical wisdom. What does he think of BDSM because, in the end, that's what the judges think.
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