Like a little kink eh?

Fifty shades of legal liability - legal risks of kinky sex

By Tamara Tabo
Friday, February 13, 2015

Just in time for Valentine’s Day, the much-hyped movie Fifty Shades of Grey releases in theatres nationwide today. The movie reportedly grossed $3.7 million in early release on Wednesday. It’s based on the novel of the same name, the novel that introduced frank sexual discussion of sadomasochism, bondage, and domination to the book clubs of middle-aged, middle-class women the world over. Thanks to Fifty Shades, your mom now knows what “BDSM” stands for, even if you really hope that she didn’t before. A blockbuster movie based and a bestselling book go a long way toward legitimizing BDSM as a mainstream sexual preference.

Just how mainstream has kinky sex started to become, thanks to Fifty Shades of Grey? The Vermont Teddy Bear Company, otherwise known for boundary-pushing pieces like the Hoodie-Footie Pajama Bear, is hawking a Fifty Shades of Grey Bear. The bear comes with a mask and mini handcuffs. (At the bottom of the page, a safety warning reads, “Contains small parts. Not suitable for children.” Because the small parts are what makes a BDSM-themed teddy bear unsuitable for children.)
I confess that I have avoided the book on snooty literary grounds, for the same reasons I avoid Harlequin bodice-rippers and the Twilight series. I don’t object morally. I just like my books like I like my men — pretentious, difficult to understand, and weird. Characters with names as clunky and hamfisted as “Christian Grey” and “Anastasia Steele” — so symbolic! — make me break out in hives.

Whether kink’s your thing or not, the mainstreaming of BDSM is bound (ha!) to change the legal landscape. Much of the potential liability centers around consent — the authenticity of it, the legal validity of it, and the ways to prove it. So, put down the ball gag, lovebirds, and read this first.

Authenticity of Consent

Even plain vanilla sex requires a person to form a reasonable, good faith belief in his or her partner’s consent. Doing so can sometimes be tricky, even in the most bland, typical heterosexual encounters — just ask a college-aged male at the end of a date. BDSM sex, however, raises much greater concerns. It may already be hard (ha!) for guys to know the difference between coquettishness and authentic refusal. This puzzle becomes more complicated when part of the fun can be role-playing non-consent. If a woman asks her boyfriend to act out her rape fantasy, then begs him to stop when he attempts to go through with it, is she withdrawing her consent? Or will she be disappointed if he stops, since she was just resisting as a part of the role play?

Of course, experienced members of the kink community often recommend establishing “safe words” that, when uttered, let the partner know that he or she really, really wants to stop. That strategy may help with the authenticity question among partners, but more on safe words below.

Legal Validity of Consent

What if mature, competent adults want to agree to a BDSM arrangement? Unfortunately for them, the law may not recognize their consent as valid.

Consider a potential civil suit for damages for injuries arising out of kink gone awry. The defendant could argue that the plaintiff assumed a risk of injury by participating in BDSM sex. If you volunteer to have your partner dribble hot oil on your bare thigh, you assumed the risk that you might get burned, right? Maybe. A plaintiff’s knowing and voluntary assumption of risk is only going to stand a chance against ordinary negligence claims. Assumption of risk generally does not apply to claims of gross negligence or willful misconduct by the defendant.

What about a signed waiver, a formal contract between the partners? Christian Grey, the fictional dom in Fifty Shades, apparently asks the protagonist Anastasia Steele to sign such a contract. As a general legal matter, though, signed waivers won’t protect against gross negligence or willful misconduct claims, though they may protect against ordinary negligence claims. And don’t even get started on the public policy arguments for voiding Christian’s contract. Analyzing the Fifty Shades agreement would make for good fact pattern for a 1L exam, but only because there are so many, many ways that such an agreement would fail a legal challenge.

Proof of Consent

The greatest legal concern surrounding BDSM sex is the difficulty of proving the existence or absence of consent of participants who may be engaged in behavior that can look a whole hell of a lot like criminal or tortious conduct.

How would prosecutors or a defendant prove something so private, something that often (but not always!) involves two people alone, two people who now disagree about what happened? Proving consent in kink cases is particularly difficult because most people don’t share their sexual proclivities with people other than their partners. In fact, in some cases, folks will go to long lengths to hide evidence of “deviant” sex. How many witnesses could you call to show that your ex is into breath play? To make matters worse, a woman with regrets about a kinky sexual encounter has the opportunity to not only claim that she was sexually assaulted, but also that she was simply assaulted, if she was on the M side of the S&M equation. How does a court know she consented, either to the sex or the violence?

Withdrawal of consent during intimate encounters is even harder to prove or disprove. BDSM’s “safe words” give willing participants a way to clearly communicate withdrawal without ruining the mood. But what good does it do someone accused of a crime if his partner claims she said the safe word but he claims she didn’t say it?

The legal risks associated with kink don’t apply to men only.

There are plenty of female doms and plenty of straight male subs. If typical gender roles persist outside of the S&M dungeon, though, most straight men will probably avoid making false assault claims against women by whom they were actually being sexually dominated. Testifying that you were spanked by a woman during sex may be slightly embarrassing, but testifying that you got spanked by a woman in the middle of an argument seems more emasculating to the average straight male psyche. Many guys would probably rather pay the hospital bill for their mangled scrotum or broken bone themselves.

The bigger concern for women is that they will face serious challenges when theylegitimately accuse someone of sexual assault or abuse. A man who truly did violate a woman might falsely argue that they were role-playing forced sex. A woman who actually does consent to some BDSM activities may have a hard time proving that her partner went too far or that she asked him to stop. Even if she knows this to be true, will a jury believe her? Divorce battles and child custody disputes might get more complicated when a wife believes her husband was physically or emotionally abusive, but her husband insists that they had an ongoing, mutual interest in kink. How does a court distinguish the facts?

The characters in Fifty Shades of Grey may be fictional, but the legal risks of kinky sex are not. Whether that reality changes your Valentine’s Day plans or not, be as safe and smart as you can.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her attabo.atl@gmail.com.