Across Parts 1 and 2 it has become apparent that despite widespread critiques of the law a resurgent bogus BDSM argument is being used by some commentators to defend and to shore up the criminalisation of BDSM. This argument is figured as posing a significant stumbling block to decriminalisation, with even a detractor acknowledging that it provides ‘[o]ne of the stronger arguments in favor of prohibiting consensual BDSM activity’.Footnote 77 This article contends that the bogus BDSM argument is not strong at all but rather is deeply flawed and does not justify the criminalisation of BDSM activities. This Part refutes the bogus BDSM argument by demonstrating the untenability of its assumption that law cannot distinguish between BDSM and nonconsensual abuse, the illogicality of its exceptionalisation of BDSM, and the legal irrelevance of its references to fatal offence cases. Ultimately, this Part shows that law can draw a sufficiently clear regulatory line between BDSM and nonconsensual abuse but that doing so will require educating legal officials about the norms and conventions of BDSM culture.
The Assumption of Indistinguishability
The first major flaw that unites the different formulations of the bogus BDSM argument is a fallacy that I will refer to as the “assumption of indistinguishability”. This assumption is that if BDSM activities were legalised then law would be unable to properly distinguish between cases involving authentic BDSM and those involving nonconsensual abuse masked by a bogus claim of BDSM. I refer to this as an “assumption” because proponents of the bogus BDSM argument typically assert that law would face difficulty making this distinction and gesture broadly to what they see as similarities between BDSM and nonconsensual abuse, but do not explain in detail why there would be such difficulty. Similarly, proponents of the bogus BDSM argument often do not make entirely clear what they believe the scope of the problem here to be. Is law imagined to be wholly incapable of distinguishing BDSM from a bogus claim? To have serious difficulty doing so? Or just to have some difficulty doing so? Is this problem imagined to arise in every case involving a claim of BDSM? Most cases? Many cases? Or just some cases? In order to provide a justifiable rationale for criminalising all injurious BDSM activities, the bogus BDSM argument presumably needs to at least claim that law would have substantial difficulty distinguishing BDSM from a bogus claim in a substantial proportion of cases. But regardless of its exact scope this assumption is crucial to the bogus BDSM argument. This is because this assumption sutures together the legal fates of BDSM and nonconsensual abuse; the bogus BDSM argument justifies its sweeping approach to criminalisation on the basis that legalising BDSM activities simultaneously and necessarily permits nonconsensual abuse as well. The assumption of indistinguishability thus provides the lynchpin that enables the bogus BDSM argument to leverage the threat of legal under-inclusivity. But is this assumption tenable? Why would law struggle to distinguish between BDSM and a bogus claim?
Legal discourse has historically characterised BDSM activities as wild and unconstrained. In R v Brown, the majority judgements constructed an image of BDSM as violence that was ‘unpredictably dangerous’, escalatory, reckless as to the safety of the passive participants, and marked by a ‘loss of control’.Footnote 78 This characterisation of BDSM in terms of ‘unpredictability and dangerousness’ was ‘crucial’ to the majority’s reasoning,Footnote 79 because it feeds into the notion that BDSM activities need to be criminalised because ‘sado-masochistic participants have no way of fore-telling the degree of bodily harm which will result from their encounters’.Footnote 80 The notion that BDSM activities constitute a kind of ‘sexual frenzy’Footnote 81 is drawn on and reinforced further by proponents of the bogus BDSM argument who frame claims of BDSM as a kind of “rough sex” defence, implying that BDSM itself is nothing more than an especially violent and physical form of sex.
If the characterisation of BDSM activities that emerges from this legal discourse was accurate—if BDSM was merely a type of wild, unpredictable and physical sex—then it might be tenable to claim that law would have trouble distinguishing between BDSM and nonconsensual abuse. Even then, however, the bogus BDSM argument could still be refuted on the basis that ‘[a]llowing consent to harm in principle and difficulties in ascertaining the genuineness of consent should be two distinct questions’.Footnote 82 Whilst law may struggle and ‘find it difficult to decide on the boundaries between consensual sado-masochism and assault … such difficulties are not in themselves an argument for making sado-masochism illegal’.Footnote 83 Instead of criminalising BDSM activities these difficulties could instead be addressed by placing strict conditions on the legal recognition of consent to BDSM activities, such as requiring that the victim give oral evidence at trial that they consented,Footnote 84 or imposing a ‘presumption of nonconsent combined with a high burden of proof’ on the defendant to establish the victim’s consent.Footnote 85 However, such strict conditions are unnecessary because law’s characterisation of BDSM activities here is not accurate.
It is reductive to conceptualise BDSM activities as simply sex with some minor quantitative additions, that is more physicality, more danger and more unpredictability. To be properly understood, BDSM activities should be recognised as a complex array of differing personal interactions that are unified by the common norms and conventions of BDSM culture. These core features of BDSM culture make the assumption of indistinguishability untenable because they provide a set of distinctive evidentiary characteristics that can be used to distinguish BDSM from bogus claims of BDSM. First, BDSM has developed a strong consent culture built around formal mechanisms for ensuring that participants in BDSM activities give clear, affirmative and ongoing consent.Footnote 86 ‘Negotiations’ are the process by which participants in potential future BDSM activities discuss the terms of their participation in advance, setting out the specific activities that they consent to and those they do not (their ‘limits’). Negotiations include setting a ‘safeword’, a designated signal which when given by any participant indicates the immediate retraction of their consent and brings the activities to an end. During the course of lengthy BDSM activities, it is also commonplace for “active” participants to periodically ‘check in’ with “passive” participants to reconfirm their enjoyment of the activities. Even after BDSM activities end there may still be ‘aftercare’, a process by which the immediate needs of the participants—such as hydration, sustenance, quiet, physical contact, etc.—are met. Second, BDSM culture values both ‘education’ and ‘knowledge-sharing’.Footnote 87 Local BDSM communities typically hold workshops on issues like basic medical knowledge and proper techniques for activities, and experienced participants may mentor those with less experience. Such information is also available within BDSM publications, such as how-to books, and via internet-based resources, such as video tutorials. Third, BDSM cultural standards discourage engaging in BDSM activities whilst intoxicated by alcohol and/or drugs. Within the widespread community credo ‘Safe, Sane and Consensual’,Footnote 88 the term ‘Sane’ refers in part to BDSM participants being ‘in full control of their faculties when making the decision’ to participate in BDSM activities and any risks that may involve. Fourth, local BDSM community events that involve ‘play’, such as those held at dedicated dungeon venues or private houses, are typically governed by event rules that may include house-imposed ‘limits’ on the kinds of activities that are acceptable, house-defined ‘safewords’ and patrolling ‘Dungeon Monitors’ tasked with rule enforcement and ensuring general safety.Footnote 89 Fifth, whilst ‘[w]hat is possible within kink is vast [it] is also composed … along striated lines of permissibility’.Footnote 90 “Edgeplay” is the term given to activities that are regarded as ‘controversial’ within BDSM communitiesFootnote 91 and which may be banned within local BDSM community spaces. Such activities exist at the borderline of what is acceptable within BDSM culture and of what ‘belong[s] in the community’.Footnote 92 Activities considered edgeplay are characterised by a higher level of risk and/or a higher level of necessary technical proficiency, or they are controversial for ethical or political reasons. This includes playing with blood, fire, asphyxiation, race-based power dynamics, etc.
Far from being wild and unpredictable, BDSM activities are thus actually a highly controlled set of practices governed by clear and identifiable cultural standards of behaviour. Indeed, ‘[c]ontrary to images of “rough sex”, a sense of genuine recklessness and chaos is normally undesirable in SM interactions’.Footnote 93 Far from being easy to raise and difficult to disprove, claims of BDSM can be strongly tested in a variety of ways with reference to the core features of BDSM culture. This could include inquiries into and questions about:
Whether negotiations took place and what they covered;
What limits were set;
What safeword was agreed on and whether it was used;
Whether checking-in took place;
Whether aftercare took place;
The participants’ experience in relation to BDSM generally and the relevant activities specifically;
The participants’ training or education in relation to BDSM generally and the relevant activities specifically;
The steps the participants took to minimise any potential risks of the relevant activities;
The participants’ knowledge of the norms and conventions of BDSM culture;
The extent of the participants’ involvement in local or online BDSM communities;
The extent to which the relevant activities are recognised by BDSM communities as constituting BDSM; and,
The extent to which the relevant activities are accepted within BDSM communities.
These issues are all potentially useful indicators for determining whether a claim of BDSM is bogus.
Due to a general social lack of understanding about BDSM, it may be the case that not all police officers, lawyers, judges and juries, possess the requisite knowledge needed to identify and utilise these distinctive evidentiary features when tasked with assessing a claim of BDSM. Accordingly, a number of commentators have identified that the provision of proper information and education about BDSM is the key means of ensuring the ability to distinguish between BDSM and nonconsensual abuse.Footnote 94 If there is a knowledge-gap here then remedial efforts should be made to equip all legal officials with the cultural competence necessary to deal appropriately with claims of BDSM. In addition to training programs for lawyers, judges and police, it may also be necessary to call expert witnesses in order to explain BDSM for the benefit of juries,Footnote 95 and to ‘testify that there are several features distinguishing a consensual S/M relationship from domestic violence’ and other nonconsensual abuse.Footnote 96 (Expert witnesses have already been of assistance to Canadian judges in some BDSM cases.Footnote 97) Juries may also need to be provided with judicial instructions that explain BDSM.Footnote 98
Although BDSM has developed strong internal cultural norms around consent and safety, BDSM activities are not immune from the potential for abuse. BDSM culture is not some utopia free from the wrongdoing and predation that afflicts human society. Examples of abusive behaviour within BDSM activities include the continuation of play after a safeword has been used and the imposition of activities by the “active” participant that exceed the “passive” participant’s pre-agreed limits. These nonconsensual behaviours are rightly criminalised and would remain criminal after the decriminalisation of consensual BDSM activities. To the extent that enhanced legal education and decriminalisation would de-stigmatise BDSM and heighten community awareness of how it works, these steps could even ‘lead to greater protection of those who do not consent’.Footnote 99 Pitagora has identified ‘a need to educate the general population’ about the difference between BDSM and abuse within BDSM relationships, as well as a need for law enforcement officials that are ‘more empathetic and culturally competent’ in this area.Footnote 100 These changes could help to give a voice to those BDSM participants who are actually abused and are currently silenced by stigma and discrimination.Footnote 101 There is an opportunity here for law to protect, rather than persecute, members of BDSM communities.
The Exceptionalisation of BDSM
The second major flaw apparent across formulations of the bogus BDSM argument is the illogical exceptionalisation of BDSM that is necessary to reach the conclusion that BDSM activities should be criminalised. That is, this argument relies on arbitrarily singling BDSM activities out for special legal scrutiny and additional legal requirements. This exceptionalisation manifests in a number of ways, including following lines of reasoning that are not universalisable to other similar situations and treating defense claims of BDSM in manner that is inconsistent with the treatment of other defense claims.
Exceptionalisation is apparent in the way the bogus BDSM argument unproblematically concludes that over-inclusivity is preferable to under-inclusivity when it comes to regulating BDSM. Assuming arguendo that legalising BDSM activities would make law under-inclusive, why is over-inclusivity preferable here? Blackstone’s Ratio that “better that ten guilty persons escape, than that one innocent suffer” is inverted for BDSM,Footnote 102 with the bogus BDSM argument concluding instead that it is better that some non-culpable BDSM participants suffer than more nonconsensual abusers escape criminal liability. Problematically, this argument does not impose criminal liability on BDSM participants for the principled reason that participating in BDSM activities itself constitutes culpable wrongdoing,Footnote 103 but instead does so for the instrumental reason that this will bolster the chances of convicting people who have not participated in BDSM activities. The exceptionalising nature of this approach to BDSM comes into focus if we consider a hypothetical proposal to criminalise sex that mirrors, mutatis mutandis, Hanna’s bogus BDSM argument for criminalising BDSM activities.Footnote 104 Such a proposal would look something like this:
Criminalising all sex, regardless of consent, would resolve the serious difficulties that prosecutors have in trying rape cases where the defendant claims that the victim “asked for it”. Bogus claims of consent in rape cases are easy to raise and notoriously difficult to disprove, so preventing them from being raised at all would greatly enhance the prospects for conviction. Whilst criminalising all sex would make the law over-inclusive because it would criminalise both consensual sex as well as rape, this is preferable to the law being under-inclusive by permitting both consensual sex and rape where consent is falsely claimed. Over-inclusivity is preferable here because it is very unlikely that consensual sex would be brought to the attention of legal authorities or prosecuted, and there are far more people who have been victimised by rape than those held criminally liable for engaging in consensual sex.
These are risible reasons for criminalising sex. Whilst rape is a serious and pressing issue that law certainly needs to address in an effective manner, the reasons given here simply do not justify such gross state overreach and such deep intrusion into the core human rights of autonomy and privacy. If these reasons for criminalisation are rightly rejected when it comes to sex, they cannot logically be regarded as compelling reasons for criminalising BDSM activities. Indeed, the bogus BDSM argument fails on multiple fronts to treat the regulation of BDSM activities consistently with the regulation of other activities. Another example of this is identified by Kaplan, who notes that if concerns about proof of consent are really so ‘significant’ in determining whether consent should constitute a defence to activities involving injuries, ‘then we might expect to see courts and legislatures prohibiting the consent defense in the context of informal sports that lack oversight by referees or umpires’.Footnote 105
Exceptionalisation also manifests in the way the bogus BDSM argument attempts to leverage the assumption of indistinguishability to justify criminalisation. Accepting arguendo that law would face some level of difficulty identifying bogus claims of BDSM, how is this different from the other difficult defense claims that law deals with already? One would think that the ‘most straightforward solution’ to sorting BDSM from bogus claims of BDSM would be to proceed ‘in the same way we handle rape and sexual assault—that is, on an ad hoc, case-by-case basis’.Footnote 106 It is standard operating procedure for trials to test all sorts of complex claims and ‘courts routinely grapple with questions of consent in many criminal and civil cases’.Footnote 107 In such ‘difficult cases’ we ‘trust the judicial adversarial fact-finding system’ and its evaluative procedures, such as ‘cross-examination, evidentiary rules, expert testimony, and thorough investigations’.Footnote 108 It is arbitrary to contend that out of the panoply of difficult defense claims that can be raised, claims of consent to BDSM should not be allowed because they are somehow too hard for the law to deal with. Any ‘[p]ractical problems with policing sado-masochism are similar to those of policing other practices’ that involve consent,Footnote 109 and any such problems should be resolved through the typical legal measures, such as ‘judicial instructions, the ethical obligations of defence counsel to not lead false or bad faith defences and expert evidence on the nature of S/M practices’.Footnote 110
Indeed, it is unclear why the bogus BDSM argument seems to treat bogus claims of BDSM as if they are a particularly powerful means of excusing or minimising criminal liability. ‘Simply allowing a defendant to raise consent as a defense … does not necessarily mean that the fact-finder in the case will view statements to that effect as credible’,Footnote 111 and there is no reason to think that bogus claims of BDSM are somehow more inherently credible than other defense claims. Law is not obliged to ‘take every claim of consent at face value’ and ‘[e]ven if SM were lawful … the jury might still judge the encounter to be non-consensual and convict the accused’.Footnote 112 Indeed, in an analysis of every Canadian criminal case between 2005 and 2011 where the defendant relied on a claim of consensual BDSM, Busby concluded that ‘[c]onvictions are likely where the evidence clearly supports a finding that an assertion of consensual BDSM is little more than a pretense to justify extreme violence’.Footnote 113 In cases where the victim gives evidence that they did not consent, this can easily reveal the bogus nature of such a claim and lead to it being rejected by decision-makers.Footnote 114 Where a victim does not give evidence there nevertheless remains, as discussed above, a number of distinctive evidentiary features of BDSM that can still be used to identify bogus BDSM claims. Concerns that victims of nonconsensual abuse may in some cases perjure themselves and give evidence in support of a defendant’s bogus claim of BDSM do not justify law’s blanket refusal to recognise the possibility of authentic consent to BDSM activities in all cases.
The Irrelevance of Fatal Offences
The third major flaw in the bogus BDSM argument is only apparent in those formulations that extend their scope of concern beyond cases involving non-fatal offences to also encompass fatal offences. Whilst the term ‘“rough sex” defense’ was originally used to describe a particular kind of defence in fatal offence cases, some commentators now use this term more broadly as a descriptor that also encompasses claims of consent in non-fatal offence cases involving injuries that occurred in a sexual context (including rape cases and violent offence cases). Hanna, for example, describes claims of consensual injurious sex as constituting a “rough sex” defence to assault and battery charges.Footnote 115 This terminological expansion would seem to capture each and every claim of BDSM under the broadened rubric of the “rough sex” defence, regardless of whether the offence charged was assault occasioning bodily harm or murder.Footnote 116 But when addressing the decriminalisation of BDSM activities it is misleading to use the single term ‘“rough sex” defence’ interchangeably across both categories of offences. It is also misleading for the discussion to freely traverse both fatal and non-fatal offence cases.Footnote 117 These rhetorical moves are misleading because they conflate claims of BDSM in non-fatal offence cases with claims of BDSM in fatal offence cases. In actuality, these claims operate in different ways and have different effects across these two categories of offence, and they should be properly understood as constituting two distinct and separate legal issues.
Let us begin with claims of consent to BDSM activities in non-fatal offence cases. The current criminalisation of BDSM activities means that consent does not negate criminal liability for non-fatal violent offences involving the causation of even minor injuries. The decriminalisation of BDSM activities would involve a change to the law that allowed, at minimum, a successful defense claim of consent to negate criminal liability for non-fatal violent offences involving minor injuries. Whether or not decriminalisation should also extend to encompass major injuries, such as those that constitute grievous bodily harm, is a more vexed question. It should be noted here that the infliction of disabling or potentially life-threatening injuries is not a feature of BDSM culture, indeed this violates the “Safe” aspect of the “Safe, Sane and Consensual” credo. Whilst some BDSM participants do engage in activities that involve the infliction of permanent (or semi-permanent) decorative body markings, such as piercing, branding and cutting, this is regarded as “edgeplay” within BDSM culture. There are a variety of different proposals for the decriminalisation of BDSM activities. Some proposals contend that the exculpatory power of consent to injuries inflicted in the course of BDSM activities should be the same as it is for injuries inflicted in the course of similar activities such as sport, cosmetic surgery, tattooing and piercing,Footnote 118 other proposals contend that such consent should only extend to minor injuries and not more serious injuries.Footnote 119 Despite differences across these proposals in terms of what exact level of injury should be decriminalised within the course of BDSM activities, it has never been proposed that killing should be decriminalised. Needless to say, such a proposal would be outlandish. It would be wildly at odds with the practices of BDSM communities and the norms and conventions of BDSM culture, it is never been sought by BDSM advocates and it would give consent to BDSM activities an exculpatory legal power far beyond that given to consent to other injurious activities (whilst consent is recognised to injuries inflicted in sport, for example, this does not permit gladiatorial combat to the death).
Let us turn now to claims of BDSM in fatal offence cases. BDSM versions of the “rough sex” defence do not claim that the killing was legally authorised, excused or justified by the BDSM context. They do not claim that because it is lawful to consensually inflict injuries in the course of BDSM activities that it is thereby lawful to kill in the course of BDSM activities. All the “rough sex” defence does is invoke BDSM as an expository prop that attempts to recontextualise the killing in a manner more favourable to the accused. The claim of a BDSM context here is not so much a legal defence as it is a factual assertion with legal implications, as what it offers is a narrative that can be put before the decision-maker to explain why the defendant lacked the intent to kill the victim. Because the viability of the “rough sex” defence does not depend on whether the infliction of injuries in the course of BDSM activities is criminal or lawful, the continued criminalisation of BDSM activities is not somehow needed to prevent “rough sex” defences from being raised in fatal offences cases. This disconnection is evidenced by the fact that the “rough sex” defence has consistently been raised for decades within jurisdictions that already criminalise BDSM activities. Decriminalisation of BDSM activities would not enable or boost these defences—indeed it would have no legal effect on them. Whether or not consent negates liability for the infliction of injuries in the course of BDSM activities is simply a different issue from whether consent protects against liability for the infliction of death in the course of BDSM activities.
Concerns about the operation of the “rough sex” defence in fatal offence cases are thus a red herring in discussions about the decriminalisation of BDSM activities in terms of non-fatal offences. The only marginal claim for relevance that could possibly be made here is that if the law were to explicitly and specifically criminalise BDSM activities within non-fatal offences then bogus claims of BDSM in fatal offence cases would be less believable. The argument would be that criminalisation places an additional burden on lying defendants because they would have to convince the decision-maker that the victim voluntarily participated in a criminal (and thereby presumably a condemned and socially marginal) activity. Conversely, if BDSM activities were to be decriminalised then the argument would be that lying defendants would be more believable because decision-makers would be more likely to believe that the victim participated in a lawful (and thereby presumably more socially acceptable) activity. This argument, if taken at face value, provides a very tenuous basis for the state to take the weighty step of attaching criminal liability to participants in all injurious BDSM activities. This argument also falls apart under scrutiny. If anything, it is the continued criminalisation of BDSM activities that makes bogus claims of BDSM more believable because it hinders the spread of accurate information about BDSM by marginalising BDSM participants, driving BDSM communities underground and allowing misrepresentations of BDSM to proliferate. As has been argued above in this Part, for legal officials to be able to properly test and evaluate bogus BDSM claims they need to understand the norms and conventions of BDSM culture. Only decriminalisation can facilitate proper access to this information.
There may very well be valid and serious concerns about the ability of defendants to raise “rough sex” defences by falsely claiming BDSM after they have killed someone.Footnote 120 However, these concerns have no bearing on whether consent to injuries within BDSM activities should be legally recognised. To the extent that some proponents of the bogus BDSM argument conflate these two categories of offences, this is at best misguided and at worst deliberately misleading. Revealing the irrelevance of fatal offence cases not only directly rebuts account of the bogus BDSM argument that rely on such cases it also indirectly undermines the persuasive power of the bogus BDSM argument more generally. The fact that fatal offence cases are included within the scope of discussion about the criminal regulation of BDSM activities creates the false impression that decriminalisation is a matter of life-and-death. This false impression bolsters all versions of the bogus BDSM argument by inaccurately amplifying considerations of risk and danger. Dispelling this illusion reveals that the true stakes of the bogus BDSM argument are actually a matter of injury, and indeed many calls for decriminalisation extend only to minor injuries.