BDSM and the law: what is legal and what isn't?

“BDSM and the law: what is legal and what isn't?” was written for BDSMforyou.nl by Mistress Moriah.

For some people, BDSM is an exciting and/or arousing adventure, with consent of course forming the basis of every BDSM experience. But what about the legal side of things? What is allowed and what isn't? You may agree on things together, but are those agreements watertight? Is everything that falls under BDSM legal?

A dungeon or play room: is that allowed?

You have a spare room and decide to transform it into a proper BDSM play room, complete with whips, restraints and perhaps a St Andrew's cross. It sounds appealing and tempting, but is it legal?

In the Netherlands, having a private space for consensual BDSM activities is permitted, provided you stay within the law. It is important that everyone involved is of legal age and has given explicit, informed consent. Also make sure the activities are safe and do not cause lasting injury. But don't forget that noise nuisance can be a spoilsport; keep the fun indoors to stay on good terms with the neighbours.

Practising BDSM with others: what are the rules?

Can you experience BDSM at home with anyone? In principle, yes, as long as all parties are adults and agree to the activities. Without mutual consent, actions can quickly be seen as assault or worse. So it is important to make clear agreements beforehand and to respect limits. It is also wise to agree on a safeword to indicate when a limit has been reached. Because let's be honest, nobody wants to end up in A&E because the knots were just a bit too tight, or because something shot up the anus and won't come back out.

When does it become illegal?

Actions that lead to serious physical injury, or that are humiliating in a way that violates human dignity, can become legally problematic. Even with mutual consent, the law can step in if the activities are considered too extreme. So it is wise to be aware of the legal boundaries and to respect them.

A concrete example

Suppose that during a BDSM session someone is made to lose consciousness, for example through extreme oxygen deprivation (as can happen with breath play). Although both parties gave consent beforehand, the law may still see this as a criminal offence. This is because such activities are considered dangerous, can pose a serious risk of lasting injury or can even lead to death. The idea behind this is that the state has a duty to protect people, even when they voluntarily agree to dangerous acts.

Another example

Another example is inflicting serious injuries, such as deep cuts or burns, that cause permanent scarring or loss of function. Even if both parties had explicitly agreed to it, this can be classed as assault under Article 300 of the Dutch Criminal Code.

In short, consent is important, but it is not a carte blanche for everything. If an act is seen as extremely dangerous or harmful, the law can step in to provide protection.

Can you put certain agreements in a contract?

A contract in which both parties agree to certain BDSM activities can be useful for discussing and clarifying certain things. In it you can record limits, preferences, safewords and responsibilities. It also shows that there is mutual consent and that the intentions are sincere and well thought through. But from a legal point of view, such a contract has limitations.

The reason? In the Netherlands (and most other countries) you cannot give valid consent to acts that the law considers punishable. For example: you cannot consent to assault that leads to serious injury. Even if both parties agree beforehand and put it in writing, a judge can declare the contract void. Put simply: in such cases the law takes precedence over what is in a contract.

A BDSM contract is a handy tool for clarity and mutual understanding, but it is not a legal shield. So remember: if your activities enter the grey area of the law, you are taking a risk, regardless of what is on paper.

Example of a BDSM consent contract (pdf)

European law and BDSM

At European level, there is no specific legislation aimed at BDSM practices. Article 8 of the European Convention on Human Rights (ECHR) does provide the right to respect for private and family life, which leaves room for personal choices in consensual sexual activities.

However, this does not mean that everything is allowed. In several cases, the European Court of Human Rights has ruled that, although consensual sexual acts in principle fall under the protection of Article 8, the state may impose restrictions, especially where serious physical harm is involved.

Important for all Doms

This is important information for all Doms, both private and professional. You can make agreements beforehand and tailor the BDSM experience entirely to the sub's wishes, but if this goes against the law, you are still acting illegally and you can be punished for it. The sub could easily regret it afterwards and then hang you from the highest legal tree. That is why you always remain responsible for the content of the BDSM experience, and some fantasies are better left as fantasies.

How to stay within the law

To stay within the limits of the law while still enjoying BDSM, here are a few tips:

Clear communication
Discuss wishes, limits and expectations clearly with your partner(s) beforehand. This prevents misunderstandings and creates a safe environment.

Using safewords
Agree on a safeword that can be used to stop the activity immediately. This adds an extra layer of safety and trust.

Know the limits
Be aware of the physical and psychological limits of yourself and your partner. Avoid actions that can cause serious injury.

Document consent
Although it may sound a bit unromantic, it can be useful to have written consent for certain acts, especially if they are more intense. This can help prevent legal complications later on.

Mistress Moriah

Source

Text: Mrs Moriah
Photography: 123rf.com