The Conversation
by Thalia Anthony
Christian Grey knows exactly his hard limits in sadomasochism and he may also know a thing or two about his legal limits. The Dominant character Grey in the fantasy fiction Fifty Shades of Grey is bent on alluring his coprotagonist, Anastasia (Ana) Steele, to become his Submissive in a BDSM – Bondage & Discipline (BD) Domination & Submission (DS) Sadism & Masochism (SM) – relationship.
The layers of coercion, consent, pleasure and pain are as complex as the acronym itself and defined by the participants themselves. The cinematic account of this fiction – released this past weekend – illustrates some of the problematic demarcations in the law of assault in the real world.
When Grey informs the innocent Ana about the unnegotiable “hard limits” he sets down in a contract governing their BDSM activities – including no fire play, cutting, piercing, bloodletting, gynaecological instruments, scarring, permanent disfiguration, breath control, defecating/ urinating or use of electric current – she is confounded (probably with a blush and the cautious words of her subconscious). The law is a bit confounded too.
“Hard limits” – in the BDSM arrangement between Grey and Ana – are those activities excluded from the pair’s BDSM arrangement as a safety precaution. “Soft limits” – such as caning and flogging – are more negotiable: Grey does not regard them as a safety issue but they’re left open for negotiation on the grounds that they may cause unbearable pain.
So what does the law have to say about legal status of the sadomasochistic acts?
A legal perspective
For criminal lawyers, for humans in general, the hard limits described above may look a little bit like assault. The offence of wounding or grievous bodily harm with intent – which includes where there is permanent disfiguration or serious harm – attracts a maximum sentence 25 years imprisonment.
In Australia’s Northern Territory, mandatory prison sentences apply to first-time serious violent offenders. This may include acts involving cutting, scarring, whipping or caning. But the legislation does not prescribe the nature of violent activities or whether inflicting pain in the name of sexual pleasure is permissible.
In principle, if the participant suffering the harm consents to the violence, this would legalise what would otherwise be deemed assault.
In Fifty Shades, Christian Grey’s relentless pursuit of Ana’s consent before engaging in BDSM was well-advised, as consent provides an important pillar in nullifying assault claims – but it’s not the only pillar. There are, it seems, at least 50 shades of grey when it comes to the application of the laws relating to consensual bodily harm. …