This article is written by Niharika Malhotra,  a student of Jindal Global Law School, Sonepat.

BDSM (BD- Bondage and Discipline, DS- Dominance and Submission, SM- Sadism and Masochism) constitutes a part of sexual activity that couples indulge into to give pleasure. In the case of BDSM, partners involved are deeply intimate and have a need to explore their sexuality through other means. It involves administering pain to get pleasure and usually it is limited to penetrative sex and not necessarily peno-vaginal. This also involves heavy power exchange and gives absolute control to one of the partners.[1] The sadist/ dominator or dominatrix does the act and the pain is inflicted upon the other partner known as the submissive. The idea behind BDSM is to enjoy the pain. This is because psyche of desires is vast and in search of one’s sexual likes and dislikes, people indulge into various activities, infliction of pain being one of them. Since BDSM involves a notion of power exchange, Foucault spoke about this kind of discipline and its relation with sexuality. He describes power not as a privilege to conquer but as a strategy or a tactic that is deciphered in a relationship.[2] It is a model that focuses on perpetual battle. According to him BDSM, amongst many other projects, is a different discourse that will focus more on desires and challenges heteronormative norms.[3] BDSM can be best explained using Foucault’s idea of power dynamics that states power is not external; it is internal and has rationality behind it. Furthermore, Foucault concentrates on the point that in BDSM is a kind of sexual practice that goes beyond societal meanings of dominance and submission, masculinity and femininity.[4] For example, a kind of BDSM- Femdom, which denotes female dominant, does not have a notion of anything abnormal when a male is a submissive.[5] That male will not be and is not defined by other BDSM practioners, thereby, not giving any stringent definition to any particular attribute.[6] What is more interesting is that the true notion of BDSM does not give a male submissive to think himself of unmasculine just because he prefers to be a submissive.[7] In other words, there is no normalization of attributes restricted to one sex like masculinity/femininity or dominance/ submission.

Therefore, making BDSM more liberal than any “normal” sexual intercourse. However, exploring sexuality in such a liberal manner becomes complicated for two reasons- first being the idea of consent and secondly intervention of state when a private activity involves intentional bodily injury for pleasure.

Consent factor in BDSM plays the most important role not only because the act itself can be injurious towards the submissive but also because it is the only factor that distinguishes any healthy sexual act, like BDSM from a coerced sexual act constituting sexual assault, sexual harassment or even rape after the 2013 amendment.  The partners indulging into BDSM perform a scripted ‘scene’, negotiate to set limits and only then consent is given. However, according to literature of BDSM, practitioners of BDSM often test their limits and this way the concept of consent becomes slightly confusing. Therefore, as a rule there are hard limits, soft limits and safe word. A safe word is used to indicate that the submissive wants to end the act and at that very moment the consent cease to exist. Therefore, if the dominator/ dominatrix continues to do so despite the use of safe word by the submissive, it’ll be constituted as sexual assault or sexual harassment or even rape.

This is a simple notion and couples who practice this are mostly aware of such rules. The problem starts when BDSM activities involves breath play (erotic asphyxiation) or any other form of BDSM act that involves temporary loss of consciousness of the submissive. In the case of R v. JA[8], where in the couple was involved in breath play and once the submissive was unconscious the dominator (JA) inserted a dildo in her anus. After regaining consciousness, JA took off the dildo and thereafter they had normal intercourse. After two months the submissive (KD) lodged a complaint against JA for sexual assault and said that her consent was only for breath play not for inserting a dildo in her anus. The court then discussed the issue of consent and came to the conclusion that consent must be continuous conscious consent and prior consent is not enough as mind should be ‘capable’ of consenting.[9] In other words, if a submissive is unconscious, he/she is not capable of consenting and therefore, it will be assumed by the court that no consent was taken even though the submissive might have given prior consent. In the article, “Asking for it: Erotic Asphyxiation and the Limitations of Sexual Consent”[10] by Ingrid Olson, the author has criticized the judgment. Olson argues that prior consent is enough and loss of consciousness should not cease the consent given prior to the sexual act. This argument is problematic at various levels and puts hard burden on the victim to prove otherwise. This argument is also problematic as it can easily dilute existing rape law as even a discussion like “we should try this” between couples can be counted as consent and rapes can be justified. Furthermore, BDSM has an aspect of using safe word, which is used by a submissive to cease the consent. If prior consent is accepted then using a safe word will loose its existence. In the same case, the defendants argued that breath-play within BDSM must form a different category just like medical surgery. This argument has no relevance as a different level of care and diligence is involved. A surgeon is well trained and various kinds of obligations are also involved, as opposed to a dominator/dominatrix who might be unaware of the consequences. Thus, defining the line between a healthy BDSM act and sexual assault, sexual harassment or rape. Therefore, the idea of prior consent seems problematic. However, it is still unlikely to make people aware whoever practices BDSM after taking inputs from pornography or erotica about consent issue. This is only possible if mindset of the society is exposed to such ideas.

This exposure seems problematic, as government might not recognize BDSM as part of sex culture. At the same time assistance from the legislature seems tempting to make laws and convict the dominator/dominatrix for inflicting pain on the submissive. However, is it right to let state interfere in a private sex life?  Such a question was posed in England in the case of R v. Brown[11]. In this case, the men had videotaped their BDSM act for their private viewing and this police got to know about this videotape. They charged them for assault for causing bodily injury with or without weapon. The court did realize that none of the partner had lodged a complaint or required medical care, but the focal point of the case was that an illegal act of causing bodily injury was being committed. The defendants argued that the act being done in private, all possible precautions were taken, consent was taken and they were used to such BDSM activities. However, the Crown responded by saying that society must be protected from the cult of violence and one cannot legally consent to it. Thus, by following a similar ideology they saw the submissive partners as abetting in a crime by consenting to it. This entire paternalistic approach disregards the fact that one may have a sexual agency or desire. State often ignores psyche of desire and looks at everything from a lens of obscenity. Therefore, state intervention should also be very well thought of and must not be taken too quickly.

Before everything else, it is very important to understand that before making State understand psyche of desire and its unwanted hypocrite attention, we needs to educate people about what healthy BDSM sexual act constitutes. This process by no means curbs or bans erotica or pornography material, but merely sensitizes people about exaggeration of depiction. One of the best ways to do so is to engage in a dialogue, which should constitute a strong and definitive meaning of consent (ruling out the consent debate on rape) and various components of BDSM like hard limits, soft limits and usage of safe word. It is important to understand that BDSM is a different aspect of sexuality and should not be seen in an isolated manner just because it involves a different technique to explore one’s sexuality.

[1] “Consent v. Coercion: Interactions Highlight a Fine but Immutable Line”, by Dulcinea Pitagora, The New School for Social Research, Published by The New School Psychology Bulletin, 2013, Volume 10, No. 1

[2] “The Pleasure of Discipline and Punishment: A Foucauldian Analysis of Power Exchange in Female Domination”, by Carlon Robbins.

[3] Id

[4] Id

[5] Id

[6] Id

[7] Id

[8] R. v. J.A., 2011 SCC 28

[9] Id

[10] “Asking for it: Erotic Asphyxiation and the Limitations of Sexual Consent”, by Ingrid Olson, Published by Jindal Global Law Review. Volume 4, Issue 1, August 2012

[11] R v Brown [1993] 2 All ER 75

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