Know your rights: the criminalization of kink

Over the course of the 2010s, kink went from a fringe topic, relegated to niche forums and closed bedroom doors, to an established element of mainstream culture and consciousness. This degree of visibility and popular acceptance makes it easy to forget (and a real mind fuck to remember) that many kinks—even some of the most common and well-known, like S&M—are still technically criminalized in much of the world. Including the U.S.

Most American dungeon owners, doms, and other kink professionals are aware of this issue, and groups like the National Coalition for Sexual Freedom (NCSF) do their best to share information and organize educational talks and workshops on the topic. But Susan Wright, the NCSF’s executive director, says “most people, including many new organizers, are unaware of the risks they are taking.”

This lack of awareness probably comes down to the fact that the criminalization of kink is a kind of wonky subject that will probably never affect most kinksters—even the really avid and hardcore folks. But in the world of kink, we always benefit from understanding the risks involved in play, and how to navigate them. So let's explore how and when kinks come into conflict with the law.

The legal murk

In 2016, as part of a lawsuit over the complex consequences of a BDSM relationship that went awry, a federal court ruled that BDSM sex is legally distinct from “traditional types of sexual activity.” Americans have no fundamental right to engage in BDSM, the court clarified, adding that the state has every right to regulate this type of non-traditional sexual activity in the interest of preventing harm. 

According to Stuart Green, a professor at Rutgers Law School who literally wrote the book on America’s approach to criminalizing specific forms of sexual conduct, “there is no jurisdiction that criminalizes S&M or BDSM as such.” Instead, people end up in legal trouble over elements of kink play that run afoul of legal conceptualizations of consent, assault, and battery. (The NCSF maintains a database of each state's laws that may overlap with kink play and relationships.)

Notably, some in the kink community practice forms of consensual non-consent (CNC) play in which partners agree ahead of time that one of them will not be able to stop a scene once it starts, or that their partner can play with them in their sleep. But legally speaking, as soon as a person loses the ability to withdraw consent, that play is criminally non-consensual.

Under most nations' laws, including America's, people also can't consent to serious harm. Which means that, if the state decides enough harm was sustained during play, they can bring charges against those who inflicted it even if no one wants them to and you have documentation proving enthusiastic consent. 

This may sound absurd. But it’s an important tool for taking action against, say, an abuser whose victims are too cowed or scared to bring charges on their own, and there are protections for some activities, like contact sports and tattooing, that involve "harm" but are clearly legit. Yet the courts clarified in a 1985 case that these exemptions don't cover S&M sex “or other deviant sexual behavior,” as unlike sports, sadomasochism supposedly has no redeeming social value. Instead, the judges in that case argued, this form of sex is “in conflict with the general moral principles of our society.”

“What constitutes a minor injury versus one serious enough to qualify as assault is subjective,” notes Ummni Khan, a legal scholar at Canada’s Carleton University who studies the way judicial systems interact with kinky sex. But courts often seem to overlook injuries sustained via vanilla sex mishaps, like all those cowgirl penile fractures, while inflating the harms and risks associated with kink play—even with acts as simple as dripping hot wax on a partner, or using tight bonds or nipple clamps. “Judges may be squicked out or offended by some BDSM activities,” says Khan, “making legal determinations that are, in essence, rooted in their own sense of disgust.” 

When to worry

No matter how dystopian everyday surveillance and modern police state tactics may feel, modern law enforcement generally isn’t interested in how we get our kicks unless abuse is reported. Which is why so many people engage in technically harmful and criminal play, yet so few face legal trouble. Usually, criminalization only becomes an issue when something goes wrong during play and someone ends up in the hospital, Wright explains, as medical professionals are often morally and legally bound to report even a whiff of possible abuse to the authorities. 

Dr. Elisabeth “Eli” Sheff, a kink and polyamory educator who serves as an expert witness in kinky sex cases, rarely sees such cases make it all the way to court, for lack of “victim” cooperation, or prosecutorial inclination. But kinksters may still face prolonged, stressful investigations. And now and then, officials do go ahead and prosecute people for “harm” inflicted even on consenting partners. 

Historically, NIMBY-types and cops also used the official criminalization of kinky sex as a pretext to raid dungeons, kink bars, and queer cruising spots, Khan adds, and prosecute attendees. These raids aren’t common anymore, Khan acknowledges. But many venue operators and event organizers are attuned to the legal risks they face if their cordial relationship with authorities breaks down and moralizing activists or politicians move to scapegoat them. 

“It’s hard to determine how common these issues are,” Khan says. Yet even if you’re unlikely to suffer due to the criminalization of kink, the knowledge that with a little bad luck you could end up in legal trouble is an irksome burden. Khan also finds it concerning that "if a more serious injury occurs during a kinky encounter, many hesitate to seek medical assistance out of fear.” 

A path forward

Over the last decade a handful of legal scholars have pointed out the flaws in the U.S.’s current legal stance on kinky sex, calling for serious reevaluations. The NCSF has been working with the American Law Institute (ALI), an organization of legal pros and scholars who develop resources used by legislators across the nation, since 2016 to develop new legal standards called “Explicit Prior Permission (EPP).” If adopted by states, EPP would explicitly sanction most kinky activities—so long as participants can document their consent to specific acts, while in a sound state of mind, and always have a way to stop a scene. 

EPP standards won’t cover “can’t-stop-the-scene consensual non-consent,” or activities likely to cause a serious risk of death (such as choking), permanent disfigurement, or the loss of a limb or organ. And Wright acknowledges there is some ambiguity around what might get counted as disfigurement. But Wright and her colleagues hope this language will allow most consenting partners to protect themselves in the event that they do suffer an accident and end up under legal scrutiny. 

The new ALI Model Penal Code containing EPP standards will come out later this year, and Wright says the NCSF is “prepared to lobby states to adopt Explicit Prior Permission.” However, until the NCSF's work bears fruit, kinksters just have to do whatever we can to avoid the situations that might put us at legal risk—like getting educated on how to play safely. 

“At least 30 percent of the U.S. population engages in kink activities,” Wright notes. “But less than 4 percent attend a BDSM workshop or party. So that’s a lot of people who aren’t getting the education they need.” A few lessons from experts can drastically reduce your risk of, say, seriously pinching a nerve during rope play. 

Oh, and if you can afford it, buy quality gear rather than cheapo stuff. No one needs to end up in court because their budget suspension rig exploded in a shower of metal and misfortune.