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Consent Counts!

July 15, 2021—The American Law Institute (ALI) has approved the revised Model Penal Code on Sexual Assault, which decriminalizes BDSM activities in connection with sexual penetration, oral sex or sexual contact.

Dick Cunningham, NCSF’s Legal Counsel and member of the ALI, says, “The Model Penal Code on Sexual Assault (including unwanted or injurious contact), approved by the prestigious American Law Institute at its June meeting, is a milestone in the law’s understanding of BDSM and a major advance in the treatment of consent as the central element by which sexual contact is to be judged. The National Coalition for Sexual Freedom has been deeply involved in the ALI process for over 6 years and is recognized in the ALI’s report for its many contributions.”

Consent as it is practiced in the BDSM communities is accurately reflected in Section 213.10 of the MPC, with “Explicit Prior Permission” preventing criminal prosecution of activities that are truly consensual and do not result in serious injury. Permission is “explicit” when it is personally given, orally or by written agreement, along with:

(a) specifying that the actor may ignore the other party’s expressions of unwillingness or other absence of consent;

(b) identifying the specific forms and extent of force, restraint, or threats that are permitted; and

(c) stipulating the specific words or gestures that will withdraw the permission.

Watch the ALI video summarizing the new MPC on Sexual AssaultAffirmative Defense of Explicit Prior Permission starts at 14:20.

Read the text of the new MPC: Sexual Assault Section 213.10Affirmative Defense of Explicit Prior Permission.

Dick Cunningham has been assisting in the revision of the Model Penal Code on Sexual Assault as part of NCSF’s Consent Counts project, helping to establish this legal framework that acknowledges the use of safewords, protecting those who use them properly, and equipping prosecution for when they are violated or when serious harm is done. Survivors who are sexually assaulted during kink activities also may now be covered by “rape shield” laws, meaning that their prior sexual behavior with others generally can’t be used as evidence, reducing exposure to possible stigma attached to kink activities. 

“Without this change, BDSM practices, even when consensual, might still be violating the law,” says Susan Wright, Spokesperson for NCSF. “In fact, there is not a single appellate court decision in the U.S. that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct. This case law has established that using nipple clamps or dripping hot wax on someone constitutes ‘serious bodily injury,’ when in reality, these are relatively mild activities.” 

Section 213.10 may be cited in opinions and briefs in cases involving BDSM activities, even in states where the legislature has not adopted the MPC on Sexual Assault. This could reduce one of the major barriers to reporting to the police by providing a legal framework that can now accommodate BDSM-related cases. For example, less than 3% of the 1,041 people who had nonconsensual experiences in a BDSM context reported it to the police (NCSF Consent Violations Survey, 2015). (A national prevalence survey in 2017 found that 30% of adults in the U.S. like to be spanked during sexual activities, 20% enjoy bondage, 13% enjoy “playful whipping,” and 22% engage in roleplay, Herbenick, 2017).

In addition, the new MPC on Sexual Assault includes a general definition of consent for sexual activity, in which consent may be inferred from behavior—both action and inaction—in the context of all the circumstances. Neither verbal nor physical resistance is required to establish that consent is lacking, however consent is ineffective when given by a person who is incompetent to consent or under circumstances precluding the free exercise of consent. Currently, over 20 states have no definition of consent in their sexual assault law, and there is no uniform legal definition of consent according to RAINN.

Since the founding of Consent Counts in 2006 at the Leather Caucus at NGLTF’s Creating Change conference, the project has worked to decriminalize BDSM activities. NCSF assumed responsibility for Consent Counts in 2007, and broadened the mission to decriminalize sexual conduct between consenting adults.

NCSF will present a webinar on July 29 at 8 pm Eastern / 5 pm Pacific providing information on the new consent definitions for sex and for BDSM, as well as how the Consent Counts project achieved this effort. We’ll also discuss how the stigma of criminalization has impacted our communities, and brainstorm on where we can go from here. If you’d like to join, please email [email protected]