It’s fair to assume that most people don’t wish to be beaten by their spouse, girlfriend, boyfriend, or other intimate partner. But it’s not accurate to say no one wants to be hit by their lover, and over half of all people fantasize about dominating or being dominated by a partner. Many people throughout the world enjoy a little pain with their pleasure and participate in healthy and consensual bondage and S&M play. Unfortunately, S&M and domestic violence are often confused with one another, and participants in this lifestyle are sometimes wrongfully charged with spousal assault and battery.
Is Bondage Play Illegal?
No, at least not in most places in the US. While some states have rules concerning the use of handcuffs, it is legal, for the most part, to tie up a consenting partner. Like all sexual activities, though, these activities are only legal as long as one partner has consented, so if the bound person wishes to be released, failing to do so could be considered false imprisonment. If the other individual continues to perform sex acts while refusing to untie them, they could face rape charges.
Is S&M Legal?
Technically, yes, but it’s a complicated topic. Obviously, if one person does not agree to a BDSM activity or revokes their consent to it, the activity must stop, or it becomes a crime. However, even with complete consent, certain S&M activities are illegal because individuals cannot consent to these behaviors legally. For example, a person cannot agree to be murdered or tortured.
Unfortunately, what BDSM practices a person can or cannot agree to vary based on the laws of the specific state in question and the personal opinion of the police officers, DA, and judge assigned to the case. In 2016, the Federal District Court of East Virginia ruled that while the Supreme Court decided that states cannot pass laws prohibiting sodomy between consenting adults, Americans have no constitutional right to BDSM.
What this means in practice is that while most states will permit couples to lightly spank each other on the bottoms as long as the spanking leaves no marks, using a paddle, punching, burning, choking, or similar practices could result in domestic violence or battery charges.
BDSM Vs. Abuse
As anyone in the community will tell you, BDSM is not the same as domestic violence. While consensual S&M, bondage, and dominance play are all legal, these encounters must remain consensual the entire time, or they will cross the line from realm into domestic violence. If you wish to try out your own version of 50 Shades of Gray do it safely and legally by establishing and respecting safewords to ensure both parties always have the ability to stop at any time. Always respond immediately when your partner uses their safeword, as failing to do so can open you up to criminal charges.
Remember that while consensual BDSM is legal in most states, when someone uses a safeword, they are revoking their consent for a given activity. Failure to respect that revocation of consent can be a criminal offense. However, there are still defenses to this crime, including a failure to hear the safeword or misunderstandings about safewords and their meanings. Do not try to defend yourself or talk to the police without your lawyer present, or you could end up hurting your case.
Avoiding Domestic Violence Allegations When You’re Into Kink
Worryingly, nosy neighbors, concerned friends, and even confused children can sometimes misinterpret and confuse S&M play with domestic violence when they see evidence of these sex acts or overhear a couple engaging in dominance/submission play. Sexual conduct that could confuse outsiders could include the submissive party having bruises or yelling, crying, or even saying “no” during intercourse. In most cases, when the police appear at a well check and find out a couple was engaged in these types of sex acts, they will leave without placing anyone under arrest.
But while police should know the difference between S&M and domestic violence, they may still make an arrest if they feel the alleged victim is lying because they are scared or if the victim is nervous or embarrassed about discussing their sex life and fails to tell the police the alleged “abuse” was a consensual sexual activity. When this happens, speak with a domestic violence attorney as soon as possible because consent is a strong defense in these cases.
If you are concerned your partner may be too scared or embarrassed to tell the police the truth if questioned, you can always create a written contract or a video agreement discussing the terms and limits of your activities. While this isn’t an airtight defense, it can help clarify between kinks and domestic violence in many situations.
If you have been accused of domestic violence after participating in a consensual sexual activity with your partner and believe the police mistakenly arrested you for domestic violence, please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss. His office is conveniently located across the street from the Vista courthouse and jail.