Australian social norms are generally quite tolerant towards unusual or ‘deviant’ sexual activities, including ‘kinky’ activities which fall within the categories of bondage, submission and sadomasochism or “BDSM”.
However, BDSM activities present a number of unique challenges for police and prosecutors in their attempts to differentiate between consensual sexual play and acts that cross the line into abuse or criminal conduct.
The following outlines the interactions between common BDSM activities and the criminal law, with a particular focus on how law enforcement may pursue they view as ‘borderline’ between consensual sex and abuse.
What is BDSM?
BDSM describes a wide range of sexual practices that involve restraint, power exchange and sensation play. Activities may include spanking, hitting, caning, whipping, piercing, choking and a variety of other activities which may, at first glance, appear as violence and abuse.
Most BDSM encounters occur within short, negotiated “scenes,” although some people participate in ongoing “24/7” dominance and submission relationships.
Contrary to popular belief, a sexual interest in BDSM is not that unusual or indicative of sexual pathology. One Belgian study found that nearly half (46.8%) of the population had engaged in BDSM-related activities at least once, whilst smaller Australian studies indicate that around 2% of adults engage in BDSM activities on a regular basis.
Research suggests that serious health consequences arising from BDSM are rare, with the most common injuries cited in the literature being minor bruises musculoskeletal strain, usually from impact play. Fatal outcomes as a result of BDSM ‘play’ are incredibly uncommon, with the most cited BDSM activity resulting in death involving auto-erotic asphyxiation whilst masturbating, which occurs at a rate of approximately 0.3 per million inhabitants per year in Australia.
BDSM and Consent
A person may be prosecuted for utilising BDSM activities on another without their consent either under rape, sexual touching or related sexual offences; or under broader assault and injury offences.
The decision on which offence to pursue has a significant effect on the evidence required to prove non-consent for an offence.
Sexual offences have higher standards for what constitutes legal consent to any sexual act: in most jurisdictions an affirmative consent standard, with a list of circumstances which would negate consent. Sexual offences also have particular conditions for the level of knowledge of non-consent required by a defendant encompassing knowledge of consent, inadvertence and a genuine, but unreasonable, belief in consent.
However, if non-consensual BDSM activity is prosecuted utilising general assault or injury offences, consent will be determined on the basis of its ‘ordinary meaning’ and there are no particular rules regarding knowledge of non-consent, generally the mens rea is simply intentional or reckless application of force.
Lastly, if the BDSM activity involves asphyxiation or “choking” recently introduced strangulation offences across Australia have their own rules regarding whether lack of consent is a required element for prosecution, with their own standards for valid consent.
If a case involves individuals who are part of the ‘BDSM lifestyle’ as opposed to merely participating in BDSM activities, there are likely to be clear rules and rituals in place to indicate consent of both parties. During formalised BDSM play, participants will negotiate in advance what activities will occur, the limits of play and how either partner can stop the encounter. Safe words, traffic-light systems and written checklists are common tools to ensure consent remains ongoing.
To reach the standard of consent required under sexual offences in Australia, consent to BDSM activities must be active, ongoing and revocable. This standard may be difficult to achieve if a participant in BDSM activities is gagged, intoxicated or unconscious as a result of BDSM activities.
In the Victorian appeal case of R v Stein (2007), the applicant was convicted of manslaughter over the death of a man following a BDSM activity. A defence submission on appeal was that the jury could not have been satisfied that the applicant had committed an unlawful and dangerous act because the act of tying a gag around the mouth of the deceased formed part of the bondage session that the deceased had agreed to. Kellam JA noted, firstly, that the evidence before the jury was that the deceased had consented to bondage activity, including the use of restraints, but that there was still a possibility he had not consented to having a gag placed into his mouth (at [16]). His Honour went on to note that even if the deceased had consented to the gag (at [19]):
In any event, any consent by the deceased to the application of the gag cannot be regarded as being consent to the risk of the infliction upon him of actual bodily harm by reason thereof.
His Honour’s reasoning was based on the fact that the placing of the gag had essentially removed the capacity of the deceased to withdraw consent, a key factor in deciding whether consent was given.
Finally, evidence of prior consent, including written ‘slave contracts’ or other fantasy objects, will not necessarily amount to a barrier to prosecution for non-consensual BDSM activities.
Brutalisation and the Limits of Consent
Even when there are clear indications of consent, certain BDSM activities remain unlawful under the criminal law in Australia if they result in injuries constituting actual bodily harm or more serious injury.
The base principle under the common law that ‘an assault with consent is not an assault at all’ (R v Schloss, 1897), has always been qualified by clear limits in which a person can still be prosecuted for assault regardless of the other person’s consent. This has generally been in the form of distinguishing mere common assault and battery (for which consent is a defence) from serious assaults which result in injury.
The earliest determined limits of consent to assault were found in cases of ‘prize fights’ which resulted in injury ‘of such nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as the person injured’ (R v Coney, 1882). Early on, the level of injury required for consent to no longer act as a defence was determined as causing ‘actual bodily harm’. Nevertheless, exceptions for contacts sports (Re: Jewell and Crimes Compensation Tribunal, 1987), medical procedures and other socially acceptable activities are well recognised exceptions to the rule.
The principles of consent to assault within the context of sadomasochism were clarified in a series of UK decisions throughout the 1990s. In R v Boyea (1992), the defendant’s claim that the victim consented to having a hand inserted into her vagina and twisted causing injury, was found to be irrelevant because the act had resulted in actual bodily harm. In contrast, R v Wilson (1996) recognised consent as a defence to charges arising from a husband branding his initials with a hot knife on his wife’s buttocks.
By far the most influential application of the principles of consent to sadomasochistic activities occurred in the House Lords decision of R v Brown (1993) also known as the Spanner case. In Brown, the House of Lords upheld the conviction of a group of gay men who engaged in BDSM resulting in injuries to their bodies. A range of consensual assaults occurred as part of the discrete play sessions between the men including assaults amounting to actual bodily harm, wounding and grievous bodily harm. The majority in Brown upheld the convictions on the basis that the unique harms of consensual sadomasochism were qualitatively distinct from acts such as surgery, authorised sporting activities and corporal punishment which all had a recognised social utility.
In the Victorian case of R v McIntosh (1999), the accused was initially charged with murder but pled down to manslaughter over the killing of a man during an act of alleged consensual choking. The Crown case was that the defendant deliberately pulled on a rope around the deceased’s neck for sexual purposes, with the rope being pulled on for too long resulting in his death. Vincent J noted the principles of Brown in his sentencing decision that consent was not a barrier to a conviction, stating that [at 14]:
In my opinion if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur then the consent of the victim will not be recognised.
The minimum level of injury in Australia which nullifies consent within the context of BDSM activities is somewhat subjective and differs by jurisdictions. Under the common law, the threshold is set at injuries constituting ‘actual bodily harm’ which has been defined as those which are ‘more than mere transient or trifling’ (R v Donovan, 1934). The ‘Code jurisdictions’ in Australia may have a slightly higher standard of ‘wounding’ which requires both layers of skin, the outer epidermis and the interior dermis, to be broken or cut. Some recent cases of consensual BDSM activities which were deemed unlawful despite the existence of consent include:
- The removal of genitals through amateur surgical procedures.
- The excising of labia and other body modification procedures.
- The branding of letters on a person’s buttocks (although, older case law would suggest otherwise).
- Use of asphyxiation techniques including gagging, hanging and wrapping, where a person loses consciousness.
Although the factual details of R v Brown would suggest that even milder forms of BDSM that result in bruising (such as whipping or spanking) could be unlawful, the recent trend in prosecutions has been to focus on circumstances involving disfigurement or grievous bodily harm or where death was the result of a particularly risk activity (such as unmonitored asphyxiation).
Conclusion
While BDSM is a relatively common and usually safe form of sexual expression, its intersection with criminal law remains fraught with complexity. Australian courts have consistently held that consent cannot legitimise conduct causing actual bodily harm or more serious injury, and that the ability to withdraw consent is essential.
For BDSM participants, clear communication, active consent, and adherence to safety protocols are vital. For police and prosecutors, a nuanced understanding of BDSM culture is equally important to ensure that genuine abuse is prosecuted without criminalising consensual sexuality.
Jarryd Bartle 