Consent as a Defense to Assault Charges: A BDSM Case Study
Social Sciences
Politics Senior Thesis
This paper investigates the ability for people to use consent as a defense to the criminal charge of assault, with a specific lens over the charge’s applicability to the sexual practice of BDSM. In doing so, the study reviews applicable statutory laws, case precedent, the BDSM community’s conceptualization of consent, and the social contract theory to create a test for BDSM, with the intention of the test being added as a subclause to consent laws.
This review revealed key shortfalls with the legal system’s approach towards BDSM, calling into question the lack of enforcement of the Fourth and Fourteenth Amendments’ equal protection and privacy laws, as well as the intentions behind criminalization. A common argument made by courts criminalizing BDSM practitioners, being the state’s interest in providing physical safety to its constituents, is refuted, citing sport fighting allowances and investigating the intentions behind assault charges. Further, the BDSM community’s conceptualization of consent via its use of a version of the social contract is examined, demonstrating how the law can improve.
With these findings in mind, a legal recommendation is made to include consent laws in all fifty state’s criminal law codes, with the inclusion of BDSM as a potential qualifier.
