National Association of Public Defenders

NCSF is presenting Cultural Competency: Kink vs. Abuse

In June 2021 the American Law Institute approved a new Model Penal Code on Sexual Assault which included a legal framework for consent in kink activities. The addition of “Explicit Prior Permission” is groundbreaking because kink activities, even when consensual, are considered illegal under U.S. case law that does not allow defense as a defense, so there is no framework to distinguish consensual activities from abuse. That means law enforcement and prosecutors often refuse to pursue sexual assault cases that involve kink activities. With up to 30% of adult Americans engaging in power exchange and kink, it’s important for service providers to understand this underserved population and the new affirmative consent framework of Explicit Prior Permission in order to assist clients.