Above the Law
By TAMARA TABO
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. …