To peruse the General Laws of our fairest commonwealth is to journey back to a Puritanical yore, to a time when “crimes against chastity” apparently weighed so heavily on the legislative conscience as to make matters like fornication and adultery fit for fines and imprisonment (up to three months in jail and a $30 penance for fornication, maximum three years and $500 for cheating).
Any number of quaint-sounding statutes outlining the proper sentencing for a thrice-convicted nightwalker, possessing instruments intended for “self-abuse” (read: “masturbation”) or “keeping a house of ill fame” remain as so many blots on the books.
Granted, Massachusetts and national courts have invalidated many of these statutes with respect to private, consenting adults. As early as 1974, Massachusetts courts held that prohibitions on “crimes against nature” and “unnatural acts” (read: “sodomy”) cannot be applied to private consensual acts between adults, a ruling that anticipated the Supreme Court’s striking down of all state sodomy bans in 2003. While adultery remains a crime, bans on fornication remain virtually unenforced in face of suspect constitutionality. The Commonwealth is also clearly on the national forefront as far as LGBT rights: the Massachusetts Supreme Court paved the way for same-sex marriages in 2003, and the state legislature has extended discrimination protections to cover sexual orientation (1989) and gender (2012).
There remains, however, a considerable “alternative” sexual community that continues to fall outside legal protection or recognition: namely, those involved in BDSM relationships. As in most states, BDSM (a compound acronym–Bondage and Discipline; Domination and Submission; Sadism and Masochism) is technically illegal in Massachusetts: statutes governing assault and assault with a dangerous weapon (such as a whip or paddle) include no caveats for consent.
That is, a dominant partner in a BDSM relationship could be charged with criminal assault even in the face of infallible and unquestioned proof that all acts were by active consent of the submissive.
Members of the BDSM community and advocates for eliminating stigma surrounding BDSM (which includes decriminalization) emphasize the critical role that consent plays, and the difficult terrain inherent in navigating between abuse and consensual play. “This is not about promoting an ‘anything-goes’ mentality,” explains Susan Wright, spokesperson for the National Coalition for Sexual Freedom (NCSF), which calls for assault law reform. “Consent is certainly a tricky subject. There are issues of coercion, especially in instances of domestic cohabitation, or mental illness and the capacity to consent, such as with cases of bipolar disorder and depression.”
But Wright and other advocates suggest that refusing to address the thornier legal aspects of consent can pose significant danger to actual victims of assault. They point to cases like “Paddleboro,” in which attendees at an Attleboro BDSM party were arrested and charged with assault in 2000 (charges were later dropped), as fostering distrust among members of the BDSM community toward police.
“Because BDSM is so stigmatized, victims are afraid to come forward” when BDSM relationships cross the line into real abuse, according to Wright. Not only might those engaged in BDSM fear criminal repercussions, but also the potential to lose employment or public reputation should they be “outed.” ...