Mission: To decriminalize consensual BDSM (Bondage, Discipline, Dominance/submission, sadomasochism) in U.S. law by ensuring that consent will be recognized as a defense to criminal charges brought under assault laws and other statutes.
Unlike most other sexual issues (rape, for example), BDSM activities—a “scene”, a dungeon party, a Dominant/submissive or Master/slave relationship—can result in a criminal prosecution and conviction even where the activity is entirely consensual. It’s important to remember that most BDSM activities are treated as violence and not sex. This is not speculation; in 2010, NCSF’s incident response help line received 204 requests for help concerning criminal prosecutions.
NCSF’s research of cases throughout the United States revealed that not a single appellate court decision has allowed consent as a defense to a BDSM-based criminal prosecution for assault, sexual abuse, etc. Even where a state law allows the consent defense in cases that do not involve “serious bodily injury,” appellate courts have ruled that the use of nipple clamps or hot wax produces “serious bodily injury”.
The realization that our communities are at risk of criminal prosecution led to the launch of the “Consent Counts” initiative in 2006 at a Leather Leadership Roundtable at NGLTF’s Creating Change. At this Roundtable and one held subsequently at the Leather Leadership Conference, decriminalization of consensual BDSM was determined to be the number one priority of the BDSM/Leather/Fetish communities. It was subsequently determined that NCSF would take a leadership and coordinating role. This is, with the related initiative to change the way BDSM is viewed by psychiatry in the DSM criteria, NCSF’s most important project.
Our “Consent Counts” initiative is multi-faceted. We have researched the statutes, court decisions and relevant law review articles in all 50 states, and the results of that research are available on the NCSF website. We are presenting programs and holding meetings with our communities across the country, to build understanding of the issues and to develop consensus on an effective approach to nationwide activism. A national discussion guide has been created to facilitate local discussions to assist in the drafting of a community-wide statement on consent at LLC at Seattle 2013 with the goal of decriminalization and to promote local and national activism. This aspect of our initiative also includes an EOP focused on Frequently Asked Questions about the criminal law issues and on Best Practices by which individuals and groups can reduce the likelihood of prosecution and—equally important—enable us to argue more effectively that what we do is mutually pleasurable erotic activity (not violence) and
that care is taken to ensure consensuality and avoid excessive stimulation or unintended harm. In addition, NCSF has published primers for both alleged victims and for those accused of consent violations.
The activism aspect of “Consent Counts” will be equally multifaceted. We have already begun reaching out to law enforcement, to legislators and to educators. In the coming year, we will be presenting continuing legal education (CLE) programs to lawyers, working with bar associations and law student groups, and participating selectively with “friend of the court” briefs in legal cases. Further down the road is the development of grass roots activism to change state laws and law enforcement practices.
In all of this, we need your help. You can report BDSM-related criminal investigations and prosecutions to NCSF. Your local groups can host “Consent Counts” presentations and discussions on activism strategies and on community practices that can help avoid criminal problems. As we go forward, we are seeking volunteers for various forms of activism and educational outreach. And, of course, your continuing donations to the NCSF Foundation (tax-deductible) and NCSF are essential for making this project effective.