New Consent Laws for BDSM-S05E06

By Master KuldrinLive, Podcast, Show Notes
Recorded: May 21st, 2023 / Published: August 19th, 2023 
  • – Welcome to Kuldrin’s Krypt. I’m your host Master Kuldrin. If you are new to the show we use our combined 35 years of BDSM experience and my 20 years working in the psychology field to dispel myths, get rid of stereotypes, and answer your questions about BDSM. Text in your questions and comments to 865-268-4005 or visit the Krypt at https://kuldrinskrypt.com.  
  • – In this episode, Mayfair and I are diving deep into the new legal standards involving BDSM.
  • – Rules to Love By: (https://inclusionwoodworks.com)
    • 1: Safe, sane, consensual, and informed
    • 2: KNKI: Knowledge, No Intolerance, Kindness, Integrity
    • 3: “Submission is not about authority and it’s not about obedience; it is all about relationships of love and respect.” -Wm. Paul Young
  • – “New Consent Laws for BDSM-S05E06”
  • “Criminal Charges and Consensual Kink New guidelines may help consenting adults avoid being charged.” Posted June 2, 2023 by: David J. Ley, Ph.D., is a clinical psychologist and the author of “Insatiable Wives, Women Who Stray and The Men Who Love Them.”
    • KEY POINTS
      • BDSM and kinky sexual practices are increasingly seen as forms of normal sexual diversity.
      • BDSM and kinky sex can result in criminal charges, even when such behaviors are completely consensual.
      • New guidelines, known as Explicit Prior Permission (EPP), may offer protection from prosecution.
      • EPP requires explicit informed consent, no extreme behaviors, and an ability to end activities.
    • There is increasing evidence that human sexuality involves far more diverse flavors and interests than historically acknowledged. When von Kafft-Ebing first began labeling various paraphilic sexual interests, they were believed to be generally rare. But research by Joyal and Carpentier reports that nearly 50 percent of a non-clinical, random sample disclosed being interested in at least one sexual behavior historically deemed unusual or anomalous.

Engaging in BDSM (an umbrella acronym describing a variety of behaviors such as bondage, discipline, sado-masochism, dominance, and submission) was historically deemed not just unusual but unhealthy. Sadism and masochism were paraphilias included in the DSM, though, as Joyal and Carpentier found, around 25 percent of people have fantasies of masochism and 7 percent of sadism. Another nationally representative study found that 20 percent of people in the U.S. have engaged in bondage, and 30 percent enjoy spanking during sex.

Increasingly, diverse sexual interests such as BDSM have gained some social acceptance and recognition that these behaviors are not inherently unhealthy, with clinical guidelines for kink promulgated in 2019. However, clinical acceptance of such diversity is one thing; acceptance in halls of justice is another.

Criminal Conflict With BDSM

    • There have been numerous past cases in which people were prosecuted for criminal or sexual assault for behaviors which were reported to have been consensual. The most famous of these was Operation Spanner in the United Kingdom, in which gay men who’d engaged in extreme BDSM behaviors while being filmed were prosecuted and convicted, with courts ruling that the men’s consent was “immaterial” and that consent did not allow such bodily harm in a “civilized society.” Unfortunately, no court decisions in the United States have accepted consent as a defense to prosecution for assault or abuse when involving BDSM. Because the criminal court system is generally unfriendly to BDSM, many potential criminal acts within BDSM go unreported due to fear of stigma or embarrassment.

I’ve consulted and testified in numerous cases in which charges were filed, and courts, judges, and juries had to try to wade through complex details and parse out what was or wasn’t consensual. In such cases, my role as expert is usually to help juries make decisions based on a solid, grounded understanding of sexual diversity, rather than assuming these behaviors are inherently indicative of disturbed persons and making legal decisions from that flawed perspective.

Unfortunately, until now, neither people involved in BDSM nor the legal system had a solid, agreed-upon framework of what kinds of things could and should be done in BDSM to ensure the greatest protection from criminal charges. The kink and BDSM communities have had guidelines, such as Risk-Aware Consensual Kink (RACK) and Safe, Sane and Consensual, which the community used and taught in order to distinguish unacceptable, harmful, and dangerous behaviors. These guidelines offer protection to the community by excluding nonconsensual behaviors, but may offer little legal protection should such “risk-aware, consensual “ behaviors result in criminal charges.

My Psychology Today colleague Eli Sheff published a post describing her own experiences in such cases. She uses lessons learned from these cases to recommend that people involved in kink could best avoid criminal charges by being sober during activities; seeking training and education in safe kink; clarifying consent with explicit verbal and/or written discussions; and using extreme caution with extreme activities, such as erotic asphyxiation, or more serious physical harmful behaviors, such as piercing or cutting.

    • EPP: Explicit Prior Permission

A collaborative project between the American Law Institute and the National Coalition for Sexual Freedom has now gone a step further and produced not only guidelines to influence safe, consensual BDSM behaviors, but language that is being adopted into model penal and criminal codes, to prevent prosecution of consensual behaviors which meet these guidelines.

With more than 20 U.S. states having no legal definition of “consent” in their sexual assault laws, these new guidelines, called Explicit Prior Permission or EPP, now begin to guide both BDSM practitioners and criminal justice systems in the same direction.

EPP requires five steps:

      • You agree to specific acts and the intensity.
      • You are of sound mind.
      • You can’t seriously injure someone.
      • You agree what roleplay resistance is OK to ignore.
      • You have to have a way to stop at any time.

Informed consent can only be given by people who are of age to consent and who are not impaired in a way that inhibits informed understanding. Consent should be given in writing or verbally, and nonverbal consent is unlikely to meet the expectations of EPP. Even if prior consent has been given in the past, current affirmative consent is required to meet protection under EPP.

EPP does not offer protection if an individual is asleep or unconscious. This is important, as a Canadian case found that even though prior consent had been given, when a woman was unconscious due to erotic asphyxiation with her partner, her partner’s continued sexual activity with her was criminal.

The requirement for there to be a way to stop the behavior at any time reflects the 9th Principle of the Nuremberg Code on research, which states that participants must be able to discontinue participation at any time. It also conflicts with the practice of Consensual NonConsent (CNC) which is sometimes practiced in a manner in which people may negotiate, in advance, the framework of a BDSM activity, but choose to not have the ability to end a scene. Under the EPP model, CNC activities would not be protected if there was no way for the participants to end the scene in the midst of the activities, regardless of prior consent. I’ve previously written about CNC and how it is increasingly presenting in criminal cases, where prior consent is not a defense.

The Explicit Prior Permission model is an extraordinary and progressive accomplishment by the NCSF and ALI, offering greater legal protection to sexual diversity and, hopefully, increasing the legal system’s understanding of kink and decreasing stigma. Individuals involved in kink and BDSM should absolutely educate themselves on EPP and identify any of their own practices which may not meet these standards. They should also advocate for states and legal bodies to adopt the EPP language into criminal code to 

Important Links:
  1. Full show notes: https://kuldrinskrypt.com/506
  2. National Suicide Hotline: 1-800-273-8255
  3. NCSF Kink Aware Professionals: https://www.kapprofessionals.org 
  4. https://kuldrinskrypt.com/silentcommunication 
  5. https://KuldrinsKrypt.com/survey 
  6. https://kuldrinskrypt.com/TeePublic 
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