In the last year, I have been approached to consult on a number of legal cases that center around disputes over whether a given sex act constituted consensual BDSM or sexual violence. This prompted me to do more extensive research into the area of BDSM and the law, which led me to a recent book titled Consensual Violence: Sex, Sports, and the Politics of Injury by Dr. Jill Weinberg, who happens to be both a sociologist and a lawyer. I decided to give it a read and I’m glad I did because it was nothing short of fascinating.
Weinberg’s book discusses two very different acts that, while consensual, have the potential to be violent in nature: mixed martial arts and BDSM. In both cases, people agree to participate in activities that could potentially result in injury; however, these activities are treated in very different ways under the law. In the case of mixed martial arts, participants are usually not subject to criminal charges, while in the case of BDSM, the story is very different.
As Weinberg writes, under US law, “a person cannot consent to bodily injury because it is against public policy for an individual to consent to be a victim of an offense that affects larger society.” However, there are limited exceptions to this, one of which is when “the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.” In other words, we explicitly carve out an exception in the law to clarify that injuries from competitive sports are acceptable; however, there is no such exception for injuries that might arise from consensual sexual activity.
The result is that many BDSM-related cases have gone to court and, as Weinberg writes, “the courts have consistently concluded that consent is not a defense.” Indeed, as she writes later in the book, “no federal, state, or local law protects a person based on a BDSM lifestyle.”
Weinberg describes the history of both BDSM and mixed martial arts and discusses how consent is usually constructed or regulated in each context. In the case of BDSM, participants are actively involved in this process; however, in the case of mixed martial arts, that is not the case.
Think about is this way: in a competitive sport like mixed martial arts, participants don’t stop and ask each other about their contact preferences or personal limits—they just go at it (and spectators cheer at them to keep going further and further). In BDSM, however, it’s very different. This is especially true when BDSM practitioners set “hard limits” with one another about what is and is not acceptable behavior (i.e., the rules and boundaries for each participant are very well defined). Of course, some BDSM practitioners are comfortable with “soft limits” where things aren’t quite as explicitly defined—however, it’s still expected that participants will communicate with one another when things have gone past their comfort zone.
The fact that consensual BDSM isn’t protected under the law means that practitioners tend to be hyper-aware of the potential legal risks and take great care and effort to mitigate them. For example, large BDSM events will often feature panels devoted to legal issues. Likewise, practitioners will often get to know a potential partner first before engaging in BDSM with them in order to develop a certain level of trust.
Weinberg grapples with a lot of important questions in this book, including what consent really means, how (and why) consent changes across contexts, and the pros and cons of letting the state regulate consent (top-down) versus letting communities develop their own standards for consent (bottom-up).
While there are moments in the book that move a little slow and some sections that get a little deep in legalese, it remains a fascinating and engaging read overall for anyone with an interest in this topic. This book also raises some really important and worthwhile questions that I hope will spark a larger discussion about consensual violence and the law.
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